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PredEx_Instruction-Tuning_Pred-Exp

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Case Name stringlengths 11 235	Input stringlengths 944 6.86k	Output stringlengths 11 196k	Label int64 0 1	Count int64 176 118k	Decision_Count int64 7 37.8k	text stringlengths 1.43k 13.9k
ENGINEERING ANALYSIS CENTRE OF EXCELLENCE PRIVATE LIMITED Vs. THE COMMISSIONER OF INCOME TAX & ANR	108. After taking cognizance of these observations, the Committee considers that the option of withholding tax offers a practical way of allocating partial taxing rights in respect of income from digital economy, which shares attributes that may be similar to royalty or fee for technical services, and which can be complied in respect of B2B transactions by the process of withholding. However, such a tax on income would be feasible only if it is included in the tax treaties, which take precedence over Indian domestic laws, unless it is designed as a tax on the gross payment. (emphasis supplied) 162. These reports also do not carry the matter much further as they are recommendatory reports expressing the views of the committee members, which the Government of India may accept or reject. When it comes to DTAA provisions, even if the position put forth in the aforementioned reports were to be accepted, a DTAA would have to be bilaterally amended before any such recommendation can become law in force for the purposes of the Income Tax Act. 163. The learned Additional Solicitor General also sought to rely on a decision of the Audiencia Nacional (Spanish National Court) in Case No. 207019/1990 dated 28.02.1995 and a decision of the Tribunal Supremo (Spanish Supreme Court) in Case No. 8066/1994 dated 02.10.1999. Quite apart from the fact that he only presented certain extracts and not the entire judgment rendered in these cases, these authorities have no relevance to the appeals before us, having been decided on the basis of the taxation law of Spain. 164. The learned Additional Solicitor General then referred to the judgment of this Court in Commissioner of Customs v. G.M. Exports, (2016) 1 SCC 91, and in particular on the four propositions that were culled out in the context of the levy of an anti-dumping duty in consonance with the General Agreement on Tariffs and Trade (GATT), 1994, as follows: 23. A conspectus of the aforesaid authorities would lead to the following conclusions: (1) Article 51(c) of the Constitution of India is a directive principle of State policy which states that the State shall endeavour to foster respect for international law and treaty obligations. As a result, rules of international law which are not contrary to domestic law are followed by the courts in this country. This is a situation in which there is an international treaty to which India is not a signatory or general rules of international law are made applicable. It is in this situation that if there happens to be a conflict between domestic law and international law, domestic law will prevail. (2) In a situation where India is a signatory nation to an international treaty, and a statute is passed pursuant to the said treaty, it is a legitimate aid to the construction of the provisions of such statute that are vague or ambiguous to have recourse to the terms of the treaty to resolve such ambiguity in favour of a meaning that is consistent with the provisions of the treaty. (3) In a situation where India is a signatory nation to an international treaty, and a statute is made in furtherance of such treaty, a purposive rather than a narrow literal construction of such statute is preferred. The interpretation of such a statute should be construed on broad principles of general acceptance rather than earlier domestic precedents, being intended to carry out treaty obligations, and not to be inconsistent with them. (4) In a situation in which India is a signatory nation to an international treaty, and a statute is made to enforce a treaty obligation, and if there be any difference between the language of such statute and a corresponding provision of the treaty, the statutory language should be construed in the same sense as that of the treaty. This is for the reason that in such cases what is sought to be achieved by the international treaty is a uniform international code of law which is to be applied by the courts of all the signatory nations in a manner that leads to the same result in all the signatory nations. 165. The conclusions in the aforestated paragraph have no direct relevance to the facts at hand as the effect of section 90(2) of the Income Tax Act, read with explanation 4 thereof, is to treat the DTAA provisions as the law that must be followed by Indian courts, notwithstanding what may be contained in the Income Tax Act to the contrary, unless more beneficial to the assessee. For all these reasons therefore, these submissions of the learned Additional Solicitor General are rejected. 166. At this juncture, it is also important to point out that vide Circular No. 10/2002 dated 09.10.2002, the Revenue, after referring to section 195 of the Income Tax Act and deciding that a No Objection Certificate from the Department would not be necessary if the person making the remittance is to submit an undertaking along with the certificate of an accountant to the Reserve Bank of India [RBI], has itself made a distinction in the proforma of the certificate to be issued in Annexure B to the aforesaid Circular, between remittances for royalties (see Row No. 5) and remittances for supply of articles or computer software (see Row No. 7), as follows: ANNEXURE B CERTIFICATE Table (emphasis supplied) 167. The Revenue, therefore, when referring to royalties under the DTAA, makes a distinction between such royalties, no doubt in the context of technical services, and remittances for supply of computer software, which is then treated as business profits, taxable under the relevant DTAA depending upon whether there is a PE through which the assessee operates in India. This is one more circumstance to show that the Revenue has itself appreciated the difference between the payment of royalty and the supply/use of computer software in the form of goods, which is then treated as business income of the assessee taxable in India if it has a PE in India. CONCLUSION	1[ds]25. The scheme of the Income Tax Act, insofar as the question raised before us is concerned, is that for income to be taxed under the Income Tax Act, residence in India, as defined by section 6, is necessary in most cases. By section 4(1), income tax shall be charged for any assessment year at any rate or rates, as defined by section 2(37A) of the Income Tax Act, in respect of the total income of the previous year of every person. Under section 4(2), in respect of income chargeable under sub-section (1) thereof, income tax shall be deducted at source or paid in advance, depending upon the provisions of the Income Tax Act. Importantly, under section 5(2) of the Income Tax Act, the total income of a person who is a non-resident, includes all income from whatever source derived, which accrues or arises or is deemed to accrue or arise to such person in India during such year. This, however, is subject to the provisions of the Income Tax Act. Certain income is deemed to arise or accrue in India, under section 9 of the Income Tax Act, notwithstanding the fact that such income may accrue or arise to a non-resident outside India. One such income is income by way of royalty, which, under section 9(1)(vi) of the Income Tax Act, means the transfer of all or any rights, including the granting of a licence, in respect of any copyright in a literary work.26. That such transaction may be governed by a DTAA is then recognized by section 5(2) read with section 90 of the Income Tax Act, making it clear that the Central Government may enter into any such agreement with the government of another country so as to grant relief in respect of income tax chargeable under the Income Tax Act or under any corresponding law in force in that foreign country, or for the avoidance of double taxation of income under the Income Tax Act and under the corresponding law in force in that country. What is of importance is that once a DTAA applies, the provisions of the Income Tax Act can only apply to the extent that they are more beneficial to the assessee and not otherwise. Further, by explanation 4 to section 90 of the Income Tax Act, it has been clarified by the Parliament that where any term is defined in a DTAA, the definition contained in the DTAA is to be looked at. It is only where there is no such definition that the definition in the Income Tax Act can then be applied. This position has been recognised by this Court in Azadi Bachao Andolan (supra), which held:21. The provisions of Sections 4 and 5 of the Act are expressly made subject to the provisions of this Act, which would include Section 90 of the Act. As to what would happen in the event of a conflict between the provision of the Income Tax Act and a notification issued under Section 90, is no longer res integra.28. A survey of the aforesaid cases makes it clear that the judicial consensus in India has been that Section 90 is specifically intended to enable and empower the Central Government to issue a notification for implementation of the terms of a Double Taxation Avoidance Agreement. When that happens, the provisions of such an agreement, with respect to cases to which they apply, would operate even if inconsistent with the provisions of the Income Tax Act. We approve of the reasoning in the decisions which we have noticed. If it was not the intention of the legislature to make a departure from the general principle of chargeability to tax under Section 4 and the general principle of ascertainment of total income under Section 5 of the Act, then there was no purpose in making those sections subject to the provisions of the Act. The very object of grafting the said two sections with the said clause is to enable the Central Government to issue a notification under Section 90 towards implementation of the terms of DTACs which would automatically override the provisions of the Income Tax Act in the matter of ascertainment of chargeability to income tax and ascertainment of total income, to the extent of inconsistency with the terms of DTAC.27. The machinery provision contained in section 195 of the Income Tax Act is inextricably linked with the charging provision contained in section 9 read with section 4 of the Income Tax Act, as a result of which, a person resident in India, responsible for paying a sum of money, chargeable under the provisions of [the] Act, to a non-resident, shall at the time of credit of such amount to the account of the payee in any mode, deduct tax at source at the rate in force which, under section 2(37A)(iii) of the Income Tax Act, is the rate in force prescribed by the DTAA. Importantly, such deduction is only to be made if the non- resident is liable to pay tax under the charging provision contained in section 9 read with section 4 of the Income Tax Act, read with the DTAA. Thus, it is only when the non-resident is liable to pay income tax in India on income deemed to arise in India and no deduction of TDS is made under section 195(1) of the Income Tax Act, or such person has, after applying section 195(2) of the Income Tax Act, not deducted such proportion of tax as is required, that the consequences of a failure to deduct and pay, reflected in section 201 of the Income Tax Act, follow, by virtue of which the resident-payee is deemed an assessee in default, and thus, is made liable to pay tax, interest and penalty thereon. This position is also made amply clear by the referral order in the concerned appeals from the High Court of Karnataka, namely, the judgment of this Court in GE Technology (supra).31. It will be seen that section 194E of the Income Tax Act belongs to a set of various provisions which deal with TDS, without any reference to chargeability of tax under the Income Tax Act by the concerned non- resident assessee. This section is similar to sections 193 and 194 of the Income Tax Act by which deductions have to be made without any reference to the chargeability of a sum received by a non-resident assessee under the Income Tax Act. On the other hand, as has been noted in GE Technology (supra), at the heart of section 195 of the Income Tax Act is the fact that deductions can only be made if the non- resident assessee is liable to pay tax under the provisions of the Income Tax Act in the first place.32. Thus, the judgment of this Court in PILCOM (supra), dealing with a completely different provision in a completely different setting, has no application to the facts of this case.34. A reading of the aforesaid provisions leads to the following conclusions. Under section 2(o) of the Copyright Act, a literary work includes a computer programme and a computer programme has been defined under section 2(ffc) of the Copyright Act to mean a set of instructions expressed in words, codes, schemes or in any other form capable of causing a computer to perform a particular task or achieve a particular result.35. Though the expression copyright has not been defined separately in the definitions section of the Copyright Act, yet, section 14 makes it clear that copyright means the exclusive right, subject to the provisions of the Act, to do or authorise the doing of certain acts in respect of a work. When an author in relation to a literary work which includes a computer programme, creates such work, such author has the exclusive right, subject to the provisions of the Copyright Act, to do or authorise the doing of several acts in respect of such work or any substantial part thereof. In the case of a computer programme, section 14(b) specifically speaks of two sets of acts – the seven acts enumerated in sub-clause (a) and the eighth act of selling or giving on commercial rental or offering for sale or for commercial rental any copy of the computer programme. Insofar as the seven acts that are set out in sub-clause (a) are concerned, they all delineate how the exclusive right that is with the owner of the copyright may be parted with, i.e., if there is any parting with the right to reproduce the work in any material form; the right to issue copies of the work to the public, not being copies already in circulation; the right to perform the work in public or communicate it to the public; the right to make any cinematograph film or sound recording in respect of the work; the right to make any translation of the work; the right to make any adaptation of the work; or the right to do any of the specified acts in relation to a translation or an adaptation.36. In essence, such right is referred to as copyright, and includes the right to reproduce the work in any material form, issue copies of the work to the public, perform the work in public, or make translations or adaptations of the work. This is made even clearer by the definition of an infringing copy contained in section 2(m) of the Copyright Act, which in relation to a computer programme, i.e., a literary work, means reproduction of the said work. Thus, the right to reproduce a computer programme and exploit the reproduction by way of sale, transfer, license etc. is at the heart of the said exclusive right.What is conspicuous by its absence is the phrase regardless of whether such copy has been sold or given on hire on earlier occasions.38. Importantly, no copyright exists in India outside the provisions of the Copyright Act or any other special law for the time being in force, vide section 16 of the Copyright Act. When the owner of copyright in a literary work assigns wholly or in part, all or any of the rights contained in section 14(a) and (b) of the Copyright Act, in the said work for a consideration, the assignee of such right becomes entitled to all such rights comprised in the copyright that is assigned, and shall be treated as the owner of the copyright of what is assigned to him (see section 18(2) read with section 19(3) of the Copyright Act). Also, under section 30 of the Copyright Act, the owner of the copyright in any literary work may grant any interest in any right mentioned in section 14(a) of the Copyright Act by licence in writing by him to the licensee, under which, for parting with such interest, royalty may become payable (see section 30A of the Copyright Act). When such licence is granted, copyright is infringed when any use, relatable to the said interest/right that is licensed, is contrary to the conditions of the licence so granted. Infringement of copyright takes place when a person makes for sale or hire or sells or lets for hire or offers for sale or hire or distributes…so as to affect prejudicially the owner of the copyright, vide section 51(b) of the Copyright Act. Importantly, the making of copies or adaptation of a computer programme in order to utilise the said computer programme for the purpose for which it was supplied, or to make up back-up copies as a temporary protection against loss, destruction or damage so as to be able to utilise the computer programme for the purpose for which it was supplied, does not constitute an act of infringement of copyright under section 52(1)(aa) of the Copyright Act. In short, what is referred to in section 52(1)(aa) of the Copyright Act would not amount to reproduction so as to amount to an infringement of copyright.39. Section 52(1)(ad) is independent of section 52(1)(aa) of the Copyright Act, and states that the making of copies of a computer programme from a personally legally obtained copy for non-commercial personal use would not amount to an infringement of copyright. However, it is not possible to deduce from this what is sought to be deduced by the learned Additional Solicitor General, namely, that if personally legally obtained copies of a computer programme are to be exploited for commercial use, it would necessarily amount to an infringement of copyright. Section 52(1)(ad) of the Copyright Act cannot be read to negate the effect of section 52(1)(aa), since it deals with a subject matter that is separate and distinct from that contained in section 52(1)(aa) of the Copyright Act.42. The subject matter of each of the DTAAs with which we are concerned is income tax payable in India and a foreign country. Importantly, as is now reflected by explanation 4 to section 90 of the Income Tax Act and under Article 3(2) of the DTAA, the definition of the term royalties shall have the meaning assigned to it by the DTAA, meaning thereby that the expression royalty, when occurring in section 9 of the Income Tax Act, has to be construed with reference to Article 12 of the DTAA.43. Thus, by virtue of Article 12(3) of the DTAA, royalties are payments of any kind received as consideration for the use of, or the right to use, any copyright of a literary work, which includes a computer programme or software.45. A reading of the aforesaid distribution agreement would show that what is granted to the distributor is only a non-exclusive, non-transferable licence to resell computer software, it being expressly stipulated that no copyright in the computer programme is transferred either to the distributor or to the ultimate end-user. This is further amplified by stating that apart from a right to use the computer programme by the end-user himself, there is no further right to sub-license or transfer, nor is there any right to reverse-engineer, modify, reproduce in any manner otherwise than permitted by the licence to the end-user. What is paid by way of consideration, therefore, by the distributor in India to the foreign, non-resident manufacturer or supplier, is the price of the computer programme as goods, either in a medium which stores the software or in a medium by which software is embedded in hardware, which may be then further resold by the distributor to the end-user in India, the distributor making a profit on such resale. Importantly, the distributor does not get the right to use the product at all.46. When it comes to an end-user who is directly sold the computer programme, such end-user can only use it by installing it in the computer hardware owned by the end-user and cannot in any manner reproduce the same for sale or transfer, contrary to the terms imposed by the EULA.47. In all these cases, the licence that is granted vide the EULA, is not a licence in terms of section 30 of the Copyright Act, which transfers an interest in all or any of the rights contained in sections 14(a) and 14(b) of the Copyright Act, but is a licence which imposes restrictions or conditions for the use of computer software. Thus, it cannot be said that any of the EULAs that we are concerned with are referable to section 30 of the Copyright Act, inasmuch as section 30 of the Copyright Act speaks of granting an interest in any of the rights mentioned in sections 14(a) and 14(b) of the Copyright Act. The EULAs in all the appeals before us do not grant any such right or interest, least of all, a right or interest to reproduce the computer software. In point of fact, such reproduction is expressly interdicted, and it is also expressly stated that no vestige of copyright is at all transferred, either to the distributor or to the end-user. A simple illustration to explain the aforesaid position will suffice. If an English publisher sells 2000 copies of a particular book to an Indian distributor, who then resells the same at a profit, no copyright in the aforesaid book is transferred to the Indian distributor, either by way of licence or otherwise, inasmuch as the Indian distributor only makes a profit on the sale of each book. Importantly, there is no right in the Indian distributor to reproduce the aforesaid book and then sell copies of the same. On the other hand, if an English publisher were to sell the same book to an Indian publisher, this time with the right to reproduce and make copies of the aforesaid book with the permission of the author, it can be said that copyright in the book has been transferred by way of licence or otherwise, and what the Indian publisher will pay for, is the right to reproduce the book, which can then be characterised as royalty for the exclusive right to reproduce the book in the territory mentioned by the licence.48. An instructive judgment of this Court in this respect is to be found in State Bank of India v. Collector of Customs, (2000) 1 SCC 727 . In this case, the State Bank of India imported a consignment of computer software and manuals from Kindle Software Ltd., Dublin, Ireland, and cleared the goods for home consumption, and filed an application before the Additional Collector of Customs, claiming a refund of customs duty. After setting out section 14 of the Customs Act 1962 and rule 9(1)(c) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, the Court stated:9. Now, if we refer to the interpretative note relating to Rule 9(1)(c) it says that royalties and licence fees may include, among other things, payments in respect to patents, trademarks and copyrights. There is, however, an exception which says that the charges for the right to reproduce the imported goods in the country of importation shall not be added to the price actually paid or payable for the imported goods in determining the customs value. Further payments made by the buyer for the right to distribute or resell the imported goods shall not be added to the price actually paid or payable for the imported goods if such payments are not a condition of the sale for the exports to the country of importation of the imported goods.11. What we have now to see is if under the agreement SBI has the right to reproduce the imported software and for that purpose SBI has paid royalties and licence fee which have been added to the price actually paid for the imported software for use at the principal place called the Support Centre. If that is so under the press note no customs duty is leviable on the royalty so paid. This takes us to the relevant terms of the agreement which would indicate as to whether or not the royalty/licence fees needed to be included in the value of the imported goods.49. The contention of the State Bank of India that the countrywide licence fee paid by it by way of royalty was for the reproduction of the said software and was thus exempt from customs duty, was turned down by this Court as follows:17. The question that arises for consideration is if licence fee charged towards countrywide use of software in the second invoice could be the charges for the right to reproduction and were these added to the price actually paid or payable for the imported goods. If we refer to the agreement, software is not sold to SBI as such but it was to remain the property of Kindle. There is no other value of the software indicated in the agreement except the licence fee. Price is payable only for allowing SBI to use the software in a limited way at its own centres for a limited period and that is why the amount charged is called the licence fee. After five years SBI is required to pay only recurring licence fee. Countrywide use of the software and reproduction of software are two different things and licence fee for countrywide use cannot be considered as the charges for the right to reproduce the imported goods. Under the agreement copying, storage, removal, etc. are under the strict control of Kindle and all copies are the property of Kindle. SBI can use the software for its internal requirements only. Licence has been given to SBI to use the property of Kindle at its branches and not for reproduction of the software as claimed by SBI. The words in the agreement are specific that SBI shall pay the licensor the initial licence fee and the recurring licence fees for use under the provisions of this agreement.50. The Court then made an important observation, stating:21. Reproduction and use are two different things. Now under the agreement user is specifically limited to licence sites. The transaction as a whole is to be seen. The press note is of no help to SBI. Rule 9(1)(c) and the interpretative note thereto did not apply as nothing was added to the price actually paid for the imported goods by way of royalties etc. Refund would be allowable only if there was something added on to the royalty payment which was not in the present case. The invoice originally presented was complete in itself. The second invoice was not filed along with the bill of entry. In the second invoice also it is the licence fee for the right to use countrywide and it is not the right to reproduce as claimed by SBI. Schedule I to the agreement is module and copies are modalities for the use of software by SBI with various restrictions. If we again refer to clause 6.4 of the agreement there is a complete restraint on SBI which says SBI shall not use, print, copy, reproduce or disclose the software or documentation in whole or in part except as is expressly permitted by the agreement nor shall SBI permit any of the foregoing. SBI is also barred from allowing access to its software or documentation except what is permitted under the agreement. Again SBI is barred from selling, charging or otherwise making the software or documentation available to any person except what is expressly permitted under the agreement. Clause 6.5 of the agreement says that SBI shall not copy or permit copying of the software supplied to it by Kindle save as may be strictly required for delivery to licence sites. The terms of the agreement also apply to the copies.Though this judgment has been delivered under the Customs Act 1962, yet the important differentiation made between the right to reproduce and the right to use computer software has been recognized by this judgment. Whereas the former would amount to a parting of copyright by the owner thereof, the latter would not.This argument has no legs to stand on. It is settled law that in all such cases, the real nature of the transaction must be looked at upon reading the agreement as a whole. Thus, in Sundaram Finance Ltd. v. State of Kerala, (1966) 2 SCR 828 , one of the questions that was raised before this Court was as to the execution of a sale letter acknowledging the sale of a vehicle. This sale letter was dealt with by the Court as follows:The appellants are financiers and their business is to advance loans on favourable terms on the security of vehicles. This is effected by obtaining a promissory-note for repayment of the amount advanced, and a hire-purchase agreement which provides a mechanism for recovery of the amount. It is true that a sale letter is obtained from the customer, but the consideration for the sale letter is only the balance remaining payable to the dealer, after giving credit against the price of the vehicle the amount paid by the customer. The application for a loan, and the letter addressed to the appellants undertaking to insure the vehicle expressly mention that a loan is asked for and granted on the security of the motor-vehicle under the hire- purchase agreement. It is the customer who insures the vehicle, and in the books of the Motor Vehicle Authorities he remains, with the consent of the appellants, owner of the vehicle. Undue importance to the acknowledgment of sale in the sale letter and the recital of sale in the bill and in the receipt cannot therefore be attached. These documents — sale letter, bill and receipt — must be read with the application for granting a loan on the security of the vehicles, the letter in which the customer requests the appellants to pay the balance of the price remaining to be paid by him to the dealer, the promissory-note executed by him for that amount, the undertaking to insure the vehicle, and intimation to the Motor Vehicles Authorities to make note of the hire- purchase agreement.The true effect of a transaction may be determined from the terms of the agreement considered in the light of the surrounding circumstances. In each case, the Court has, unless prohibited by statute, power to go behind the documents and to determine the nature of the transaction, whatever may be the form of the documents. An owner of goods who purports absolutely to convey or acknowledges to have conveyed goods and subsequently purports to hire them under a hire-purchase agreement is not estopped from proving that the real bargain was a loan on the security of the goods. If there is a bona fide and completed sale of goods, evidenced by documents, anterior to and independent of a subsequent and distinct hiring to the vendor, the transaction may not be regarded as a loan transaction, even though the reason for which it was entered into was to raise money. If the real transaction is a loan of money secured by a right of seizure of the goods, the property ostensibly passes under the documents embodying the transaction, but subject to the terms of the hiring agreement, which become part of the buyers title, and confer a licence to seize. When a person desiring to purchase goods and not having sufficient money on hand borrows the amount needed from a third person and pays it over to the vendor, the transaction between the customer and the lender will unquestionably be a loan transaction. The real character of the transaction would not be altered if the lender himself is the owner of the goods and the owner accepts the promise of the purchaser to pay the price or the balance remaining due against delivery of goods. But a hire- purchase agreement is a more complex transaction. The owner under the hire-purchase agreement enters into a transaction of hiring out goods on the terms and conditions set out in the agreement, and the option to purchase exercisable by the customer on payment of all the instalments of hire arises when the instalments are paid and not before. In such a hire-purchase agreement there is no agreement to buy goods; the hirer being under no legal obligation to buy, has an option either to return the goods or to become its owner by payment in full of the stipulated hire and the price for exercising the option. This class of hire- purchase agreements must be distinguished from transactions in which the customer is the owner of the goods and with a view to finance his purchase he enters into an arrangement which is in the form of a hire-purchase agreement with the financier, but in substance evidences a loan transaction, subject to a hiring agreement under which the lender is given the license to seize the goods.In the light of these principles the true nature of the transactions of the appellants may now be stated. The appellants are carrying on the business of financiers: they are not dealing in motor-vehicles. The motor-vehicle purchased by the customer is registered in the name of the customer and remains at all material times so registered in his name. In the letter taken from the customer under which the latter agrees to keep the vehicle insured, it is expressly recited that the vehicle has been given as security for the loan advanced by the appellants. As a security for repayment of the loan, the customer executes a promissory- note for the amount paid by the appellants to the dealer of the vehicle. The so-called sale letter is a formal document which is not made effective by registering the vehicle in the name of the appellants and even the insurance of the vehicle has to be effected as if the customer is the owner. Their right to seize the vehicle is merely a licence to ensure compliance with the terms of the hire-purchase agreement. The customer remains qua the world at large the owner and remains in possession, and on condition of performing the covenants, has a right to continue to remain in possession. The right of the appellants may be extinguished by payment of the amount due to them under the terms of the hire- purchase agreement even before the dates fixed for payment. The agreement undoubtedly contains several onerous covenants, but they are all intended to secure to the appellants recovery of the amount advanced. We are accordingly of the view that the intention of the appellants in obtaining the hire-purchase and the allied agreements was to secure the return of loans advanced to their customers, and no real sale of the vehicle was intended by the customer to the appellants. The transactions were merely financing transactions.52. There can be no doubt as to the real nature of the transactions in the appeals before us. What is licensed by the foreign, non-resident supplier to the distributor and resold to the resident end-user, or directly supplied to the resident end-user, is in fact the sale of a physical object which contains an embedded computer programme, and is therefore, a sale of goods, which, as has been correctly pointed out by the learned counsel for the assessees, is the law declared by this Court in the context of a sales tax statute in Tata Consultancy Services v. State of A.P., 2005 (1) SCC 308 (see paragraph 27).54. There is no doubt that section 9 of the Income Tax Act refers to persons who are non-residents and taxes their income as income which is deemed to accrue or arise in India, thus, making such persons assessees under the Income Tax Act, who are liable to pay tax. There is also no doubt that the person responsible for paying spoken of in section 195 of the Income Tax Act is not a non-resident assessee, but a person resident in India, who is liable to make deductions under section 195 of the Income Tax Act when payments are made by it to the non-resident assessee. The submission of the learned Additional Solicitor General is answered by the judgment of this Court in GE Technology (supra). This judgment, after setting out section 195 of the Income Tax Act, held:8. The most important expression in Section 195(1) consists of the words chargeable under the provisions of the Act. A person paying interest or any other sum to a non- resident is not liable to deduct tax if such sum is not chargeable to tax under the IT Act. For instance, where there is no obligation on the part of the payer and no right to receive the sum by the recipient and that the payment does not arise out of any contract or obligation between the payer and the recipient but is made voluntarily, such payments cannot be regarded as income under the IT Act.9. It may be noted that Section 195 contemplates not merely amounts, the whole of which are pure income payments, it also covers composite payments which have an element of income embedded or incorporated in them. Thus, where an amount is payable to a non-resident, the payer is under an obligation to deduct TAS in respect of such composite payments. The obligation to deduct TAS is, however, limited to the appropriate proportion of income chargeable under the Act forming part of the gross sum of money payable to the non-resident. This obligation being limited to the appropriate proportion of income flows from the words used in Section 195(1), namely, chargeable under the provisions of the Act. It is for this reason that vide Circular No. 728 dated 30-10-1995 CBDT has clarified that the tax deductor can take into consideration the effect of DTAA in respect of payment of royalties and technical fees while deducting TAS. It may also be noted that Section 195(1) is in identical terms with Section 18(3-B) of the 1922 Act.11. While deciding the scope of Section 195(2) it is important to note that the tax which is required to be deducted at source is deductible only out of the chargeable sum. This is the underlying principle of Section 195. Hence, apart from Section 9(1), Sections 4, 5, 9, 90, 91 as well as the provisions of DTAA are also relevant, while applying tax deduction at source provisions.13. If the contention of the Department that the moment there is remittance the obligation to deduct TAS arises is to be accepted then we are obliterating the words chargeable under the provisions of the Act in Section 195(1). The said expression in Section 195(1) shows that the remittance has got to be of a trading receipt, the whole or part of which is liable to tax in India. The payer is bound to deduct TAS only if the tax is assessable in India. If tax is not so assessable, there is no question of TAS being deducted. (See Vijay Ship Breaking Corpn. v. CIT [(2010) 10 SCC 39 : (2009) 314 ITR 309 ] .)14. One more aspect needs to be highlighted. Section 195 falls in Chapter XVII which deals with collection and recovery. Chapter XVII-B deals with deduction at source by the payer. On analysis of various provisions of Chapter XVII one finds the use of different expressions, however, the expression sum chargeable under the provisions of the Act is used only in Section 195. For example, Section 194-C casts an obligation to deduct TAS in respect of any sum paid to any resident. Similarly, Sections 194-EE and 194-F inter alia provide for deduction of tax in respect of any amount referred to in the specified provisions. In none of the provisions we find the expression sum chargeable under the provisions of the Act, which as stated above, is an expression used only in Section 195(1). Therefore, this Court is required to give meaning and effect to the said expression. It follows, therefore, that the obligation to deduct TAS arises only when there is a sum chargeable under the Act.18. If the contention of the Department that any person making payment to a non-resident is necessarily required to deduct TAS then the consequence would be that the Department would be entitled to appropriate the monies deposited by the payer even if the sum paid is not chargeable to tax because there is no provision in the IT Act by which a payer can obtain refund. Section 237 read with Section 199 implies that only the recipient of the sum i.e. the payee could seek a refund. It must therefore follow, if the Department is right, that the law requires tax to be deducted on all payments. The payer, therefore, has to deduct and pay tax, even if the so-called deduction comes out of his own pocket and he has no remedy whatsoever, even where the sum paid by him is not a sum chargeable under the Act. The interpretation of the Department, therefore, not only requires the words chargeable under the provisions of the Act to be omitted, it also leads to an absurd consequence. The interpretation placed by the Department would result in a situation where even when the income has no territorial nexus with India or is not chargeable in India, the Government would nonetheless collect tax. In our view, Section 195(2) provides a remedy by which a person may seek a determination of the appropriate proportion of such sum so chargeable where a proportion of the sum so chargeable is liable to tax.20. We find no merit in these contentions. As stated hereinabove, Section 195(1) uses the expression sum chargeable under the provisions of the Act. We need to give weightage to those words. Further, Section 195 uses the word payer and not the word assessee. The payer is not an assessee. The payer becomes an assessee-in-default only when he fails to fulfil the statutory obligation under Section 195(1). If the payment does not contain the element of income the payer cannot be made liable. He cannot be declared to be an assessee-in-default.21. The abovementioned contention of the Department is based on an apprehension which is ill-founded. The payer is also an assessee under the ordinary provisions of the IT Act. When the payer remits an amount to a non-resident out of India he claims deduction or allowances under the Income Tax Act for the said sum as an expenditure. Under Section 40(a)(i), inserted vide the Finance Act, 1988 w.e.f. 1-4-1989, payment in respect of royalty, fees for technical services or other sums chargeable under the Income Tax Act would not get the benefit of deduction if the assessee fails to deduct TAS in respect of payments outside India which are chargeable under the IT Act. This provision ensures effective compliance with Section 195 of the IT Act relating to tax deduction at source in respect of payments outside India in respect of royalties, fees or other sums chargeable under the IT Act. In a given case where the payer is an assessee he will definitely claim deduction under the IT Act for such remittance and on inquiry if the AO finds that the sums remitted outside India come within the definition of royalty or fees for technical service or other sums chargeable under the IT Act then it would be open to the AO to disallow such claim for deduction. Similarly, vide the Finance Act, 2008 w.e.f. 1-4-2008 sub-section (6) has been inserted in Section 195 which requires the payer to furnish information relating to payment of any sum in such form and manner as may be prescribed by the Board. This provision is brought into force only from 1-4-2008. It will not apply for the period with which we are concerned in these cases before us. Therefore, in our view, there are adequate safeguards in the Act which would prevent revenue leakage.24. In our view, Section 195(2) is based on the principle of proportionality. The said sub-section gets attracted only in cases where the payment made is a composite payment in which a certain proportion of payment has an element of income chargeable to tax in India. It is in this context that the Supreme Court stated: (Transmission Corpn. case [(1999) 7 SCC 266 : (1999) 239 ITR 587 ] , SCC p. 274, para 10)10. … If no such application is filed income tax on such sum is to be deducted and it is the statutory obligation of the person responsible for paying such sum to deduct tax thereon before making payment. He has to discharge the obligation [to TDS].If one reads the observation of the Supreme Court, the words such sum clearly indicate that the observation refers to a case of composite payment where the payer has a doubt regarding the inclusion of an amount in such payment which is exigible to tax in India. In our view, the above observations of this Court in Transmission Corpn. case [(1999) 7 SCC 266 : (1999) 239 ITR 587 ] which is put in italics has been completely, with respect, misunderstood by the Karnataka High Court to mean that it is not open for the payer to contend that if the amount paid by him to the non-resident is not at all chargeable to tax in India, then no TAS is required to be deducted from such payment. This interpretation of the High Court completely loses sight of the plain words of Section 195(1) which in clear terms lays down that tax at source is deductible only from sums chargeable under the provisions of the IT Act i.e. chargeable under Sections 4, 5 and 9 of the IT Act.25. Before concluding we may clarify that in the present case on facts ITO(TDS) had taken the view that since the sale of the software concerned, included a licence to use the same, the payment made by the appellant(s) to foreign suppliers constituted royalty which was deemed to accrue or arise in India and, therefore, TAS was liable to be deducted under Section 195(1) of the Act. The said finding of ITO(TDS) was upheld by CIT(A). However, in the second appeal, ITAT held that such sum paid by the appellant(s) to the foreign software suppliers was not a royalty and that the same did not give rise to any income taxable in India and, therefore, the appellant(s) was not liable to deduct TAS. However, the High Court did not go into the merits of the case and it went straight to conclude that the moment there is remittance an obligation to deduct TAS arises, which view stands hereby overruled.55. What is made clear by the judgment in GE Technology (supra) is the fact that the person spoken of in section 195(1) of the Income Tax Act is liable to make the necessary deductions only if the non-resident is liable to pay tax as an assessee under the Income Tax Act, and not otherwise. This judgment also clarifies, after referring to CBDT Circular No. 728 dated 30.10.1995, that the tax deductor must take into consideration the effect of the DTAA provisions. The crucial link, therefore, is that a deduction is to be made only if tax is payable by the non-resident assessee, which is underscored by this judgment, stating that the charging and machinery provisions contained in sections 9 and 195 of the Income Tax Act are interlinked.56. This conclusion is also echoed in Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613, wherein the following observations were made on the scope and applicability of section 195 of the Income Tax Act:171. Section 195 casts an obligation on the payer to deduct tax at source (TAS, for short) from payments made to non- residents which payments are chargeable to tax. Such payment(s) must have an element of income embedded in it which is chargeable to tax in India. If the sum paid or credited by the payer is not chargeable to tax then no obligation to deduct the tax would arise. Shareholding in companies incorporated outside India (CGP) is property located outside India. Where such shares become subject-matter of offshore transfer between two non-residents, there is no liability for capital gains tax. In such a case, question of deduction of TAS would not arise.172. If in law the responsibility for payment is on a non- resident, the fact that the payment was made, under the instructions of the non-resident, to its agent/nominee in India or its PE/Branch Office will not absolve the payer of his liability under Section 195 to deduct TAS. Section 195(1) casts a duty upon the payer of any income specified therein to a non-resident to deduct therefrom TAS unless such payer is himself liable to pay income tax thereon as an agent of the payee. Section 201 says that if such person fails to so deduct TAS he shall be deemed to be an assessee-in- default in respect of the deductible amount of tax (Section 201).173. Liability to deduct tax is different from assessment under the Act. Thus, the person on whom the obligation to deduct TAS is cast is not the person who has earned the income. Assessment has to be done after liability to deduct TAS has arisen. The object of Section 195 is to ensure that tax due from non-resident persons is secured at the earliest point of time so that there is no difficulty in collection of tax subsequently at the time of regular assessment.57. The absurd consequence that the resident in India, after making the deduction/payment, would not then get any excess payment made by way of refund when regular assessment takes place, as the non- resident assessee alone would be entitled to such refund, is also pointed out in paragraph 18 of the judgment in GE Technology (supra). It was after keeping all this in view that this Court then set aside the judgment of the High Court of Karnataka dated 24.09.2009 and remanded the case to the High Court for a decision of the question on merits, i.e., on the sole question as to whether the ITAT was justified in holding that the amounts paid by the appellants to the foreign software suppliers did not amount to royalty, as a result of which, no liability to deduct TDS arose.58. Even otherwise, a look at Article 12(2) of the India-Singapore DTAA would demonstrate the fallacy of the aforesaid submission of the learned Additional Solicitor General. Under Article 12(2) of the India- Singapore DTAA, royalties may be taxed in the Contracting State in which they arise (India) and according to the laws of that Contracting State (Indian laws), if the recipient is a beneficial owner of the royalties, and the tax so charged is capped at the rate of 10% or 15%. If the learned Additional Solicitor General is correct in his submission, as the DTAA would then not apply, royalty would be liable to be taxed in India at the rate mentioned in the Income Tax Act which can be much higher than the DTAA rate, as a result of which, the deduction made under section 195 of the Income Tax Act by the person responsible would have to be a proportion of a much higher sum than the tax that is ultimately payable by the non-resident assessee. This equally absurd result cannot be countenanced given the fact that the person liable to deduct tax is only liable to deduct tax first and foremost if the non- resident person is liable to pay tax, and second, that if so liable, is then liable to deduct tax depending on the rate mentioned in the DTAA.59. Further, tearing an article of a specific DTAA, namely Article 30 of the India-USA DTAA, out of context in order to buttress his submission, in a manner far removed from the actual rationale behind that provision, does not commend itself to us.60. Obviously, the logic behind Article 30 of the India-USA DTAA is for reasons connected with USAs municipal taxation laws, and has nothing to do with Indian municipal law governing the liability of persons to deduct tax at source under section 195 of the Income Tax Act. This is reinforced by the fact that the OECD Commentary on Articles 30 and 31 acknowledges the fact that the entry into force provisions, unlike the rest of the provisions in the OECD Model Tax Convention on Income and on Capital, depend on the domestic laws of Contracting States, as follows:COMMENTARY ON ARTICLES 30 AND 31 CONCERNING THE ENTRY INTO FORCE AND THE TERMINATION OF THE CONVENTION3. It is open to Contracting States to agree that the Convention shall enter into force when a specified period has elapsed after the exchange of the instruments of ratification or after the confirmation that each State has completed the procedures required for such entry into force.4. No provisions have been drafted as to the date on which the Convention shall have effect or cease to have effect, since such provisions would largely depend on the domestic laws of the Contracting States concerned. Some of the States assess tax on the income received during the current year, others on the income received during the previous year, others again have a fiscal year which differs from the calendar year. Furthermore, some conventions provide, as regards taxes levied by deduction at the source, a date for the application or termination which differs from the date applying to taxes levied by assessment.61. For all these reasons, we do not permit the learned Additional Solicitor General to have a second bite at the same cherry, albeit through the ingenious argument made by him based on Article 30 of the India-USA DTAA.62. In order to ascertain whether the question which was posed by this Court in GE Technology (supra) was correctly answered by the High Court of Karnataka vide the impugned judgment dated 15.10.2011,(CIT v. Samsung Electronics Co. Ltd., (2012) 345 ITR 494.) the first expression that has to be considered by us is the expression royalty.63. Firstly, it will be seen that when Article 12 of the India-Singapore DTAA defines the term royalties in sub-article (3) thereof, it does so stating that such definition is exhaustive – it uses the expression means. Secondly, the term royalties refers to payments of any kind that are received as a consideration for the use of or the right to use any copyright in a literary work. As opposed to this, the definition contained in explanation 2 to section 9(1)(vi) of the Income Tax Act, is wider in at least three respects:i. It speaks of consideration, but also includes a lump-sum consideration which would not amount to income of the recipient chargeable under the head capital gains;ii. When it speaks of the transfer of all or any rights, it expresslyincludes the granting of a licence in respect thereof; andiii. It states that such transfer must be in respect of any copyright of any literary work.64. However, even where such transfer is in respect of copyright, the transfer of all or any rights in relation to copyright is a sine qua non under explanation 2 to section 9(1)(vi) of the Income Tax Act. In short, there must be transfer by way of licence or otherwise, of all or any of the rights mentioned in section 14(b) read with section 14(a) of the Copyright Act.65. In State of Madras v. Swastik Tobacco Factory, (1966) 3 SCR 79 , this Court construed the words in respect of used in rule 5(1)(i) of the Madras General Sales Tax (Turnover and Assessment) Rules 1939, as follows:The House of Lords in Inland Revenue Commissioners v. Coutts & Co. [(1963) 2 All ER 722, 732], in the context of payment of estate duty, construed the words in respect of in Section 5(2) of the Finance Act, 1894 (57 & 58 Vict, c. 30) and observed that the phrase denoted some imprecise kind of nexus between the property and the estate duty. The House of Lords in Asher v. Seaford Court Estates Ltd. [LR 1950 AC 608] in construing the provisions of Section 2, sub- section (3) of Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. 5, c. 17), held that theexpression in respect of m ust be read as equivalent toattributable. The Privy Council in Bicher Ltd. v. CIT [(1962) 3 All ER 294] observed that the said words could mean more than consisting of or namely.It is not necessary to refer to other decisions. It may be accepted that the said expression received a wide interpretation, having regard to the object of the provisions and the setting in which the said words appeared. On the other hand, Indian tax laws use the expression in respect of as synonymous with the expression on: see Article 288 of the Constitution of India; Section 3 of the Indian Income Tax Act, 1922; Sections 3(2) and 3(5), Second Proviso, of the Madras General Sales Tax Act, 1939; Section 3(1-A) of the Central Excise and Salt Act, 1944; and Section 9 of the Kerala Sales Tax Act. We should not be understood to have construed the said provisions, but only have referred to them to state the legislative practice. Consistent with the said practice, Rule 5(1)(i) of the Rules uses the same expression. When the said Rule says excise duty paid in respect of the goods, the excise duty referred to is the excise duty paid under Section 3(1), read with the Schedule of the Central Excises and Salt Act, 1944 (1 of 1944). Under the said Section, read with the Schedule, excise duty is levied on the goods described in the Schedule. Therefore, when Rule 5(1)(i) of the Rules refers to the duty paid in respect of the goods to the Central Government, it necessarily refers to the duty paid on the goods mentioned in the Schedule. As the duty exempted from the gross turnover is the duty so paid under the Central Act, read with the Schedule, the expression in respect of in the context can only mean excise duty paid on goods. In our view, the expression in respect of the goods in Rule 5(1)(i) of the Rules means only on the goods. Even if the word attributable is substituted for the words in respect of, the result will not be different, for the duty paid shall be attributable to the goods. If it was paid on the raw material it can be attributable only to raw material and not to the goods. We, therefore, hold that only excise duty paid on the goods sold by the assessee is deductible from the gross turnover under Rule 5(1)(i) of the Rules.66. The aforesaid meaning accords with the meaning to be given to the expression in respect of contained in explanation 2(v) to section 9(1)(vi) of the Income Tax Act.67. The insertion of sub-sections (v), (vi) and (vii) in section 9(1) of the Income Tax Act, by way of an amendment through the Finance Act 1976,(Act 66 of 1976, (w.e.f 1-6-1976).) was to introduce source-based taxation for income in the hands of a non-resident by way of interest, royalty and fees for technical services. In Carborandum & Co. v. CIT, (1977) 2 SCC 862, this Court, applying residence-based rules of taxation, held that the technical service fees received by the non-resident assessee (relatable to the assessment year 1957-1958) could only be deemed to accrue in India if such income could be attributed to a business connection in India. In the facts of that case, since no part of the foreign assessees operations were carried on in India, the technical services being rendered wholly in foreign territory, it was held that no part of the technical service fees received by the foreign assessee accrued in India.69. Consequently, section 9(1)(vi) of the Income Tax Act was brought into force. The definition of royalty contained in explanation 2(v) of section 9(1)(vi) of the Income Tax Act includes the transfer of all or any rights (including the granting of a licence) in respect of any copyright, literary, artistic or scientific work.71. The transfer of all or any rights (including the granting of a licence) in respect of any copyright, in the context of computer software, is referable to sections 14(a), 14(b) and 30 of the Copyright Act. As has been held hereinabove, the expression in respect of is equivalent to in or attributable to. Thus, explanation 2(v) to section 9(1)(vi) of the Income Tax Act, when it speaks of all of any rights…in respect of copyright is certainly more expansive than the DTAA provision, which speaks of the use of, or the right to use any copyright. This has been recognised by the High Court of Delhi in CIT v. DCM Limited, ITA Nos. 87-89/1992 in its judgment dated 10.03.2011, as follows:9. A bare perusal of Article XIII(3) would show that the expression payments of any kind is circumscribed by the latter part of the definition which speaks of consideration received (including in the form of rentals) for use of or right to use intellectual properties. The Tribunal, in our view, rightly observed that the CIT(A) had erred in coming to the conclusion that the expression payments of any kind was broad enough to include even an outright sale. To drive home this point the Tribunal, once again, has correctly drawn a distinction between the definition of royalty as appearing in the DTAA and that which finds mention in explanation 2 to section 9(1)(vi) of the I.T. Act. A perusal of the provisions of the said explanation would show that it brings within the ambit of royalty a wider range of transactions which would include payments made for transfer of all or any right in patents, inventions, model, design, etc. apart from payments based for use of such right, patent, innovation, model, design, secret formula or process or trade mark or similar property. As a matter of fact, a perusal of clause (i) of explanation 2 of section 9(1)(vi) of the I.T. Act would show that transfer of all or any right could take place by execution of licences as well, which was the methodology adopted by Tate and the assessee in the present case…72. However, when it comes to the expression use of, or the right to use, the same position would obtain under explanation 2(v) of section 9(1)(vi) of the Income Tax Act, inasmuch as, there must, under the licence granted or sale made, be a transfer of any of the rights contained in sections 14(a) or 14(b) of the Copyright Act, for explanation 2(v) to apply. To this extent, there will be no difference in the position between the definition of royalties in the DTAAs and the definition of royalty in explanation 2(v) of section 9(1)(vi) of the Income Tax Act.73. Even if we were to consider the ambit of royalty only under the Income Tax Act on the footing that none of the DTAAs apply to the facts of these cases, the definition of royalty that is contained in explanation 2 to section 9(1)(vi) of the Income Tax Act would make it clear that there has to be a transfer of all or any rights which includes the grant of a licence in respect of any copyright in a literary work. The expression including the granting of a licence in clause (v) of explanation 2 to section 9(1)(vi) of the Income Tax Act, would necessarily mean a licence in which transfer is made of an interest in rights in respect of copyright, namely, that there is a parting with an interest in any of the rights mentioned in section 14(b) read with section 14(a) of the Copyright Act. To this extent, there will be no difference between the position under the DTAA and explanation 2 to section 9(1)(vi) of the Income Tax Act.A reference to the Memorandum explaining the provisions in the Finance Bill 2012 set out hereinabove, would make it clear that the expression as mentioned in Explanation 2 in sub-para (i) of the aforesaid Memorandum shows that explanation 4 was inserted retrospectively to expand the scope of explanation 2(v). In any case, explanation 2(v) contains the expression, the transfer of all or any rights which is an expression that would subsume any right, property or information and is wider than the expression any right, property or information. It is therefore difficult to accept Shri Pardiwalas argument that explanation 4 does not expand the scope of the expression royalty as contained in explanation 2 to section 9(1)(vi) of the Income Tax Act.77. It is equally difficult to accept the learned Additional Solicitor Generals submission that explanation 4 to section 9(1)(vi)of the Income Tax Act is clarificatory of the position as it always stood, since 01.06.1976, for which he strongly relied upon CBDT Circular No. 152 dated 27.11.1974. Quite obviously, such a circular cannot apply as it would then be explanatory of a position that existed even before section 9(1)(vi) was actually inserted in the Income Tax Act vide the Finance Act 1976. Secondly, insofar as section 9(1)(vi) of the Income Tax Act relates to computer software, explanation 3 thereof, refers to computer software for the first time with effect from 01.04.1991, when it was introduced, which was then amended vide the Finance Act 2000. Quite clearly, explanation 4 cannot apply to any right for the use of or the right to use computer software even before the term computer software was inserted in the statute. Likewise, even qua section 2(o) of the Copyright Act, the term computer software was introduced for the first time in the definition of a literary work, and defined under section 2(ffc) only in 1994 (vide Act 38 of 1994).78. Furthermore, it is equally ludicrous for the aforesaid amendment which also inserted explanation 6 to section 9(1)(vi) of the Income Tax Act, to apply with effect from 01.06.1976, when technology relating to transmission by a satellite, optic fibre or other similar technology, was only regulated by the Parliament for the first time through the Cable Television Networks (Regulation) Act, 1995, much after 1976. For all these reasons, it is clear that explanation 4 to section 9(1)(vi) of the Income Tax Act is not clarificatory of the position as of 01.06.1976, but in fact, expands that position to include what is stated therein, vide the Finance Act 2012.This statement, again, in no manner furthers the case of the Revenue that explanation 4 is merely clarificatory of the legal position as it always stood. Likewise, Notification No. 21/2012 dated 13.06.2012, which deals with section 194J of the Income Tax Act, does no more than providing that a transferee is exempt from deducting TDS under section 194J when TDS has already been deducted under section 195 on the payment made in the previous transfer of the same software which the transferee acquires without any modification. In any case, this notification being issued on 13.06.2012, i.e., after explanation 4 was inserted vide the Finance Act 2012, it would not assist the Revenue in asserting that explanation 4 clarifies the legal position as it always stood.81. This question is answered by two latin maxims, lex non cogit ad impossibilia, i.e., the law does not demand the impossible and impotentia excusat legem, i.e., when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused. Recently, in the judgment in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 delivered by this Court, this Court applied the said maxims in the context of the requirement of a certificate to produce evidence by way of electronic record under section 65B of the Evidence Act, 1872 and held that having taken all possible steps to obtain the certificate and yet being unable to obtain it for reasons beyond his control, the respondent in the facts of the case, was relieved of the mandatory obligation to furnish a certificate. In so holding, this Court referred to previous judgments dealing with the doctrine of impossibility and concluded as follows:47. However, a caveat must be entered here. The facts of the present case show that despite all efforts made by the respondents, both through the High Court and otherwise, to get the requisite certificate under Section 65-B(4) of the Evidence Act from the authorities concerned, yet the authorities concerned wilfully refused, on some pretext or the other, to give such certificate. In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC. Once such application is made to the court, and the court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate. Two Latin maxims become important at this stage. The first is lex non cogit ad impossibilia i.e. the law does not demand the impossible, and impotentia excusat legem i.e. when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused. This was well put by this Court in Presidential Poll, In re [Presidential Poll, In re, (1974) 2 SCC 33] as follows : (SCC pp. 49-50, paras 14-15)14. If the completion of election before the expiration of the term is not possible because of the death of the prospective candidate it is apparent that the election has commenced before the expiration of the term but completion before the expiration of the term is rendered impossible by an act beyond the control of human agency. The necessity for completing the election before the expiration of the term is enjoined by the Constitution in public and State interest to see that the governance of the country is not paralysed by non-compliance with the provision that there shall be a President of India.15. The impossibility of the completion of the election to fill the vacancy in the office of the President before the expiration of the term of office in the case of death of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him. Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Brooms Legal Maxims, 10th Edn. at pp. 162-63 and Craies on Statute Law, 6th Edn. at p. 268.)It is important to note that the provision in question in Presidential Poll, In re [Presidential Poll, In re, (1974) 2 SCC 33] was also mandatory, which could not be satisfied owing to an act of God, in the facts of that case. These maxims have been applied by this Court in different situations in other election cases — See Chandra Kishore Jha v. Mahavir Prasad [Chandra Kishore Jha v. Mahavir Prasad, (1999) 8 SCC 266] (at paras 17 and 21); Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter) [Special Reference No. 1 of 2002, In re (Gujarat Assembly Election matter), (2002) 8 SCC 237] (at paras 130 and 151) and Raj Kumar Yadav v. Samir Kumar Mahaseth [Raj Kumar Yadav v. Samir Kumar Mahaseth, (2005) 3 SCC 601] (at paras 13 and 14).48. These Latin maxims have also been applied in several other contexts by this Court. In Cochin State Power & Light Corpn. Ltd. v. State of Kerala [Cochin State Power & Light Corpn. Ltd. v. State of Kerala, (1965) 3 SCR 187 : AIR 1965 SC 1688 ] , a question arose as to the exercise of an option of purchasing an undertaking by the State Electricity Board under Section 6(4) of the Electricity Act, 1910. The provision required a notice of at least 18 months before the expiry of the relevant period to be given by such State Electricity Board to the State Government. Since this mandatory provision was impossible of compliance, it was held that the State Electricity Board was excused from giving such notice, as follows : (1965) 3 SCR 187 , at p. 193 : AIR pp. 1691-92, para 88. Sub-section (1) of Section 6 expressly vests in the State Electricity Board the option of purchase on the expiry of the relevant period specified in the licence. But the State Government claims that under sub-section (2) of Section 6 it is now vested with the option. Now, under sub-section (2) of Section 6, the State Government would be vested with the option only where a State Electricity Board has not been constituted, or if constituted, does not elect to purchase the undertaking. It is common case that the State Electricity Board was duly constituted. But the State Government claims that the State Electricity Board did not elect to purchase the undertaking. For this purpose, the State Government relies upon the deeming provisions of sub-section (4) of Section 6, and contends that as the Board did not send to the State Government any intimation in writing of its intention to exercise the option as required by the sub-section, the Board must be deemed to have elected not to purchase the undertaking. Now, the effect of sub- section (4) read with sub-section (2) of Section 6 is that on failure of the Board to give the notice prescribed by sub-section (4), the option vested in the Board under sub-section (1) of Section 6 was liable to be divested. Sub-section (4) of Section 6 imposed upon the Board the duty of giving after the coming into force of Section 6 a notice in writing of its intention to exercise the option at least 18 months before the expiry of the relevant period. Section 6 came into force on 5-9-1959, and the relevant period expired on 3-12-1960. In the circumstances, the giving of the requisite notice of 18 months in respect of the option of purchase on the expiry of 2-12-1960, was impossible from the very commencement of Section 6. The performance of this impossible duty must be excused in accordance with the maxim, lex non cogitia ad impossibilia (the law does not compel the doing of impossibilities), and sub-section (4) of Section 6 must be construed as not being applicable to a case where compliance with it is impossible. We must, therefore, hold that the State Electricity Board was not required to give the notice under sub-section (4) of Section 6 in respect of its option of purchase on the expiry of 25 years. It must follow that the Board cannot be deemed to have elected not to purchase the undertaking under sub-section (4) of Section 6. By the notice served upon the appellant, the Board duly elected to purchase the undertaking on the expiry of 25 years. Consequently, the State Government never became vested with the option of purchasing the undertaking under sub-section (2) of Section 6. The State Government must, therefore, be restrained from taking further action under its notice, Ext. G, dated 20-11-1959.49. In Raj Kumar Dey v. Tarapada Dey [Raj Kumar Dey v. Tarapada Dey, (1987) 4 SCC 398] , the maxim lex non cogit ad impossibilia was applied in the context of the applicability of a mandatory provision of the Registration Act, 1908, as follows : (SCC pp. 402-03, paras 6-7)6. We have to bear in mind two maxims of equity which are well settled, namely, actus curiae neminem gravabit — An act of the court shall prejudice no man. In Brooms Legal Maxims, 10th Edn., 1939 at p. 73 this maxim is explained that this maxim was founded upon justice and good sense; and afforded a safe and certain guide for the administration of the law. The above maxim should, however, be applied with caution. The other maxim is lex non cogit ad impossibilia (Brooms Legal Maxims, p. 162) — The law does not compel a man to do that which he cannot possibly perform. The law itself and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases.7. In this case indisputably during the period from 26-7-1978 to December 1982 there was subsisting injunction preventing the arbitrators from taking any steps. Furthermore, as noted before the award was in the custody of the court, that is to say, 28-1- 1978 till the return of the award to the arbitrators on 24-11-1983, arbitrators or the parties could not have presented the award for its registration during that time. The award as we have noted before was made on 28-11-1977 and before the expiry of the four months from 28-11-1977, the award was filed in the court pursuant to the order of the court. It was argued that the order made by the court directing the arbitrators to keep the award in the custody of the court was wrong and without jurisdiction, but no arbitrator could be compelled to disobey the order of the court and if in compliance or obedience with court of doubtful jurisdiction, he could not take back the award from the custody of the court to take any further steps for its registration then it cannot be said that he has failed to get the award registered as the law required. The aforesaid two legal maxims — the law does not compel a man to do that which he cannot possibly perform and an act of the court shall prejudice no man would, apply with full vigour in the facts of this case and if that is the position then the award as we have noted before was presented before the Sub-Registrar, Arambagh on 25-11-1983 the very next one day of getting possession of the award from the court. The Sub-Registrar pursuant to the order of the High Court on 24-6-1985 found that the award was presented within time as the period during which the judicial proceedings were pending that is to say, from 28-1-1978 to 24-11-1983 should be excluded in view of the principle laid down in Section 15 of the Limitation Act, 1963. The High Court [Tarapada Dey v. District Registrar, Hooghly, 1986 SCC OnLine Cal 101 : AIR 1987 Cal 107] , therefore, in our opinion, was wrong in holding that the only period which should be excluded was from 26-7-1978 till 20-12-1982. We are unable to accept this position. 26-7-1978 was the date of the order of the learned Munsif directing maintenance of status quo and 20-12-1982 was the date when the interim injunction was vacated, but still the award was in the custody of the court and there is ample evidence as it would appear from the narration of events hereinbefore made that the arbitrators had tried to obtain the custody of the award which the court declined to give to them.(emphasis in original)50. These maxims have also been applied to tenancy legislation — see B.P. Khemka (P) Ltd. v. Birendra Kumar Bhowmick [B.P. Khemka (P) Ltd. v. Birendra Kumar Bhowmick, (1987) 2 SCC 407] (at para 12), and have also been applied to relieve authorities of fulfilling their obligation to allot plots when such plots have been found to be unallottable, owing to the contravention of the Central statutes — see Hira Tikkoo v. State (UT of Chandigarh) [Hira Tikkoo v. State (UT of Chandigarh), (2004) 6 SCC 765] (at paras 23 and 24).51. On an application of the aforesaid maxims to the present case, it is clear that though Section 65-B(4) is mandatory, yet, on the facts of this case, the respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third party over whom the respondents had no control, must be relieved of the mandatory obligation contained in the said sub-section.82. As a matter of fact, even under the Income Tax Act, the High Court of Bombay has taken a view, applying the aforestated maxims in the context of the provisions of the relevant DTAAs, to hold that persons are not obligated to do the impossible, i.e., to apply a provision of a statute when it was not actually and factually on the statute book.85. It is thus clear that the person mentioned in section 195 of the Income Tax Act cannot be expected to do the impossible, namely, to apply the expanded definition of royalty inserted by explanation 4 to section 9(1)(vi) of the Income Tax Act, for the assessment years in question, at a time when such explanation was not actually and factually in the statute.87. The first and most comprehensive authority dealing with the question raised in these appeals is by the AAR in its ruling in Dassault Systems, K.K., In Re., (2010) 322 ITR 125 (AAR) [Dassault (AAR)]. In that case, the applicant was a company incorporated under the laws of Japan, which marketed licensed computer software products, through a distribution channel comprising value added resellers [VAR], who were independent third-party resellers in the business of selling software to end-users. The question posed by the AAR to itself was as follows:Whether on the facts and circumstances of the case and in law the payment received by Dassault Systems K.K. (hereinafter referred to as the the applicant) from sale of software products to independent third party resellers will be taxable as business profits under Article 7 of the India-Japan Double Taxation Avoidance Agreement (India-Japan DTAA or Treaty) and will not constitute royalties and fee for technical services as defined in Article 12 of India-Japan DTAA?88. After setting out Article 12 of the India-Japan DTAA, which is in the same terms as Article 12 of the India-Singapore DTAA and the other DTAAs that we are concerned with, and after adverting to the definition of royalty that is contained in explanation 2 to section 9(1)(vi) of the Income Tax Act, the AAR then set out, from the locus classicus on copyright law, the following passage:Before entering into a discussion on the applicability of the royalty definition, it is appropriate to recapitulate certain basic principles concerning the copyright as a legal concept. We may, in this connection, refer to some passages from the classic treatise of Copinger and Skone James on Copyright (1999 Edn):	1	64,422	14,901	### 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: 108. After taking cognizance of these observations, the Committee considers that the option of withholding tax offers a practical way of allocating partial taxing rights in respect of income from digital economy, which shares attributes that may be similar to royalty or fee for technical services, and which can be complied in respect of B2B transactions by the process of withholding. However, such a tax on income would be feasible only if it is included in the tax treaties, which take precedence over Indian domestic laws, unless it is designed as a tax on the gross payment. (emphasis supplied) 162. These reports also do not carry the matter much further as they are recommendatory reports expressing the views of the committee members, which the Government of India may accept or reject. When it comes to DTAA provisions, even if the position put forth in the aforementioned reports were to be accepted, a DTAA would have to be bilaterally amended before any such recommendation can become law in force for the purposes of the Income Tax Act. 163. The learned Additional Solicitor General also sought to rely on a decision of the Audiencia Nacional (Spanish National Court) in Case No. 207019/1990 dated 28.02.1995 and a decision of the Tribunal Supremo (Spanish Supreme Court) in Case No. 8066/1994 dated 02.10.1999. Quite apart from the fact that he only presented certain extracts and not the entire judgment rendered in these cases, these authorities have no relevance to the appeals before us, having been decided on the basis of the taxation law of Spain. 164. The learned Additional Solicitor General then referred to the judgment of this Court in Commissioner of Customs v. G.M. Exports, (2016) 1 SCC 91, and in particular on the four propositions that were culled out in the context of the levy of an anti-dumping duty in consonance with the General Agreement on Tariffs and Trade (GATT), 1994, as follows: 23. A conspectus of the aforesaid authorities would lead to the following conclusions: (1) Article 51(c) of the Constitution of India is a directive principle of State policy which states that the State shall endeavour to foster respect for international law and treaty obligations. As a result, rules of international law which are not contrary to domestic law are followed by the courts in this country. This is a situation in which there is an international treaty to which India is not a signatory or general rules of international law are made applicable. It is in this situation that if there happens to be a conflict between domestic law and international law, domestic law will prevail. (2) In a situation where India is a signatory nation to an international treaty, and a statute is passed pursuant to the said treaty, it is a legitimate aid to the construction of the provisions of such statute that are vague or ambiguous to have recourse to the terms of the treaty to resolve such ambiguity in favour of a meaning that is consistent with the provisions of the treaty. (3) In a situation where India is a signatory nation to an international treaty, and a statute is made in furtherance of such treaty, a purposive rather than a narrow literal construction of such statute is preferred. The interpretation of such a statute should be construed on broad principles of general acceptance rather than earlier domestic precedents, being intended to carry out treaty obligations, and not to be inconsistent with them. (4) In a situation in which India is a signatory nation to an international treaty, and a statute is made to enforce a treaty obligation, and if there be any difference between the language of such statute and a corresponding provision of the treaty, the statutory language should be construed in the same sense as that of the treaty. This is for the reason that in such cases what is sought to be achieved by the international treaty is a uniform international code of law which is to be applied by the courts of all the signatory nations in a manner that leads to the same result in all the signatory nations. 165. The conclusions in the aforestated paragraph have no direct relevance to the facts at hand as the effect of section 90(2) of the Income Tax Act, read with explanation 4 thereof, is to treat the DTAA provisions as the law that must be followed by Indian courts, notwithstanding what may be contained in the Income Tax Act to the contrary, unless more beneficial to the assessee. For all these reasons therefore, these submissions of the learned Additional Solicitor General are rejected. 166. At this juncture, it is also important to point out that vide Circular No. 10/2002 dated 09.10.2002, the Revenue, after referring to section 195 of the Income Tax Act and deciding that a No Objection Certificate from the Department would not be necessary if the person making the remittance is to submit an undertaking along with the certificate of an accountant to the Reserve Bank of India [RBI], has itself made a distinction in the proforma of the certificate to be issued in Annexure B to the aforesaid Circular, between remittances for royalties (see Row No. 5) and remittances for supply of articles or computer software (see Row No. 7), as follows: ANNEXURE B CERTIFICATE Table (emphasis supplied) 167. The Revenue, therefore, when referring to royalties under the DTAA, makes a distinction between such royalties, no doubt in the context of technical services, and remittances for supply of computer software, which is then treated as business profits, taxable under the relevant DTAA depending upon whether there is a PE through which the assessee operates in India. This is one more circumstance to show that the Revenue has itself appreciated the difference between the payment of royalty and the supply/use of computer software in the form of goods, which is then treated as business income of the assessee taxable in India if it has a PE in India. CONCLUSION ### Response: 1 ### Explanation: was subsisting injunction preventing the arbitrators from taking any steps. Furthermore, as noted before the award was in the custody of the court, that is to say, 28-1- 1978 till the return of the award to the arbitrators on 24-11-1983, arbitrators or the parties could not have presented the award for its registration during that time. The award as we have noted before was made on 28-11-1977 and before the expiry of the four months from 28-11-1977, the award was filed in the court pursuant to the order of the court. It was argued that the order made by the court directing the arbitrators to keep the award in the custody of the court was wrong and without jurisdiction, but no arbitrator could be compelled to disobey the order of the court and if in compliance or obedience with court of doubtful jurisdiction, he could not take back the award from the custody of the court to take any further steps for its registration then it cannot be said that he has failed to get the award registered as the law required. The aforesaid two legal maxims — the law does not compel a man to do that which he cannot possibly perform and an act of the court shall prejudice no man would, apply with full vigour in the facts of this case and if that is the position then the award as we have noted before was presented before the Sub-Registrar, Arambagh on 25-11-1983 the very next one day of getting possession of the award from the court. The Sub-Registrar pursuant to the order of the High Court on 24-6-1985 found that the award was presented within time as the period during which the judicial proceedings were pending that is to say, from 28-1-1978 to 24-11-1983 should be excluded in view of the principle laid down in Section 15 of the Limitation Act, 1963. The High Court [Tarapada Dey v. District Registrar, Hooghly, 1986 SCC OnLine Cal 101 : AIR 1987 Cal 107] , therefore, in our opinion, was wrong in holding that the only period which should be excluded was from 26-7-1978 till 20-12-1982. We are unable to accept this position. 26-7-1978 was the date of the order of the learned Munsif directing maintenance of status quo and 20-12-1982 was the date when the interim injunction was vacated, but still the award was in the custody of the court and there is ample evidence as it would appear from the narration of events hereinbefore made that the arbitrators had tried to obtain the custody of the award which the court declined to give to them.(emphasis in original)50. These maxims have also been applied to tenancy legislation — see B.P. Khemka (P) Ltd. v. Birendra Kumar Bhowmick [B.P. Khemka (P) Ltd. v. Birendra Kumar Bhowmick, (1987) 2 SCC 407] (at para 12), and have also been applied to relieve authorities of fulfilling their obligation to allot plots when such plots have been found to be unallottable, owing to the contravention of the Central statutes — see Hira Tikkoo v. State (UT of Chandigarh) [Hira Tikkoo v. State (UT of Chandigarh), (2004) 6 SCC 765] (at paras 23 and 24).51. On an application of the aforesaid maxims to the present case, it is clear that though Section 65-B(4) is mandatory, yet, on the facts of this case, the respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third party over whom the respondents had no control, must be relieved of the mandatory obligation contained in the said sub-section.82. As a matter of fact, even under the Income Tax Act, the High Court of Bombay has taken a view, applying the aforestated maxims in the context of the provisions of the relevant DTAAs, to hold that persons are not obligated to do the impossible, i.e., to apply a provision of a statute when it was not actually and factually on the statute book.85. It is thus clear that the person mentioned in section 195 of the Income Tax Act cannot be expected to do the impossible, namely, to apply the expanded definition of royalty inserted by explanation 4 to section 9(1)(vi) of the Income Tax Act, for the assessment years in question, at a time when such explanation was not actually and factually in the statute.87. The first and most comprehensive authority dealing with the question raised in these appeals is by the AAR in its ruling in Dassault Systems, K.K., In Re., (2010) 322 ITR 125 (AAR) [Dassault (AAR)]. In that case, the applicant was a company incorporated under the laws of Japan, which marketed licensed computer software products, through a distribution channel comprising value added resellers [VAR], who were independent third-party resellers in the business of selling software to end-users. The question posed by the AAR to itself was as follows:Whether on the facts and circumstances of the case and in law the payment received by Dassault Systems K.K. (hereinafter referred to as the the applicant) from sale of software products to independent third party resellers will be taxable as business profits under Article 7 of the India-Japan Double Taxation Avoidance Agreement (India-Japan DTAA or Treaty) and will not constitute royalties and fee for technical services as defined in Article 12 of India-Japan DTAA?88. After setting out Article 12 of the India-Japan DTAA, which is in the same terms as Article 12 of the India-Singapore DTAA and the other DTAAs that we are concerned with, and after adverting to the definition of royalty that is contained in explanation 2 to section 9(1)(vi) of the Income Tax Act, the AAR then set out, from the locus classicus on copyright law, the following passage:Before entering into a discussion on the applicability of the royalty definition, it is appropriate to recapitulate certain basic principles concerning the copyright as a legal concept. We may, in this connection, refer to some passages from the classic treatise of Copinger and Skone James on Copyright (1999 Edn):
Paul Enterprises Vs. Rajib Chatterjee & Co.	Corpn. Ltd. v. Presiding Officer, Labour Court) The word `includes when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words "means and includes", on the other hand, indicate `an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions." 25. In K.V. Muthu v. Angamuthu Ammal [(1997) 2 SCC 53] , this Court held: "10. Apparently, it appears that the definition is conclusive as the word "means" has been used to specify the members, namely, spouse, son, daughter, grandchild or dependant parent, who would constitute the family. Section 2 of the Act in which various terms have been defined, opens with the words "in this Act, unless the context otherwise requires" which indicates that the definitions, as for example, that of "family", which are indicated to be conclusive may not be treated to be conclusive if it was otherwise required by the context. This implies that a definition, like any other word in a statute, has to be read in the light of the context and scheme of the Act as also the object for which the Act was made by the legislature.11. While interpreting a definition, it has to be borne in mind that the interpretation placed on it should not only be not repugnant to the context, it should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which would defeat or was likely to defeat the purpose of the Act has to be ignored and not accepted.12. Where the definition or expression, as in the instant case, is preceded by the words "unless the context otherwise requires", the said definition set out in the section is to be applied and given effect to but this rule, which is the normal rule may be departed from if there be something in the context to show that the definition could not be applied." 26. In Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union [(2007) 4 SCC 685] , this Court held: "23. Section 2(bb) of the ID Act as initially introduced by Act 54 of 1949 used the words "means ... and includes" and was confined to a "banking company" as defined in Section 5 of the Banking Companies Act, 1949, having branches or other establishments in more than one province and includes Imperial Bank of India. Similarly, Section 2(kk), which was also introduced by Act 54 of 1949, defines insurance company as "an insurance company as defined in Section 2 of the Insurance Act, 1938 (4 of 1938), having branches or other establishments in more than one province". It is trite to say that when in the definition clause given in any statute the word "means" is used, what follows is intended to speak exhaustively. When the word "means" is used in the definition, to borrow the words of Lord Esher, M.R. in Gough v. Gough it is a "hard-and-fast" definition and no meaning other than that which is put in the definition can be assigned to the same. (Also see P. Kasilingam v. P.S.G. College of Technology.) On the other hand, when the word "includes" is used in the definition, the legislature does not intend to restrict the definition: it makes the definition enumerative but not exhaustive. That is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or may not comprise. Therefore, the use of the word "means" followed by the word "includes" in Section 2(bb) of the ID Act is clearly indicative of the legislative intent to make the definition exhaustive and would cover only those banking companies which fall within the purview of the definition and no other." 27. Even if we apply the standards which are applicable in the industrial law meaning thereby Section 17B of the Industrial Disputes Act, 1947 as also a situation where the question arises as to grant of back wages for not being able to gainfully employed, a person living on mere subsistence earning as of necessity is not considered to be gainfully employed. [See Novartis India Ltd. v. State of West Bengal and Ors. [2008 (15) SCALE 470 ] 28. Keeping in view the interpretative tools required to be used in a case of this nature, we are of the opinion, despite the fact that the respondents had been earning some money, the same would not disentitle them to take part in the selection process for grant of a license in terms of the order. 29. The advertisement in question keeping in view the text and context in which it was issued clearly go to show that for the purpose of applying for grant of a liquor shop, the respondents were qualified having been continuing to be registered in the Employment Exchange and having been granted a certificate in that behalf by the person specified in the advertisement. 30. It is not a case where the word `unemployed should be given a literal or even the dictionary meaning. In our view, it is required to be given a purposive meaning; a meaning which is capable of being translated in the action, a meaning which would not lead to an anomaly or absurdity; a meaning which satisfies the text and context in which the word has been used. 31. Furthermore, the appellant No. 1 applied for and was granted the similar certificate. It is, therefore, too late in the day for him to contend now that the provisions relating to grant of certificate being devoid of any guideline or objective criteria should be declared ultra vires. 32. In any event, even otherwise, the validity and/or legality of the said Order has not been challenged. 33.	0[ds]we are of the opinion, despite the fact that the respondents had been earning some money, the same would not disentitle them to take part in the selection process for grant of a license in terms of theadvertisement in question keeping in view the text and context in which it was issued clearly go to show that for the purpose of applying for grant of a liquor shop, the respondents were qualified having been continuing to be registered in the Employment Exchange and having been granted a certificate in that behalf by the person specified in theis not a case where the word `unemployed should be given a literal or even the dictionary meaning. In our view, it is required to be given a purposive meaning; a meaning which is capable of being translated in the action, a meaning which would not lead to an anomaly or absurdity; a meaning which satisfies the text and context in which the word has been	0	4,460	175	### 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: Corpn. Ltd. v. Presiding Officer, Labour Court) The word `includes when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words "means and includes", on the other hand, indicate `an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions." 25. In K.V. Muthu v. Angamuthu Ammal [(1997) 2 SCC 53] , this Court held: "10. Apparently, it appears that the definition is conclusive as the word "means" has been used to specify the members, namely, spouse, son, daughter, grandchild or dependant parent, who would constitute the family. Section 2 of the Act in which various terms have been defined, opens with the words "in this Act, unless the context otherwise requires" which indicates that the definitions, as for example, that of "family", which are indicated to be conclusive may not be treated to be conclusive if it was otherwise required by the context. This implies that a definition, like any other word in a statute, has to be read in the light of the context and scheme of the Act as also the object for which the Act was made by the legislature.11. While interpreting a definition, it has to be borne in mind that the interpretation placed on it should not only be not repugnant to the context, it should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which would defeat or was likely to defeat the purpose of the Act has to be ignored and not accepted.12. Where the definition or expression, as in the instant case, is preceded by the words "unless the context otherwise requires", the said definition set out in the section is to be applied and given effect to but this rule, which is the normal rule may be departed from if there be something in the context to show that the definition could not be applied." 26. In Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union [(2007) 4 SCC 685] , this Court held: "23. Section 2(bb) of the ID Act as initially introduced by Act 54 of 1949 used the words "means ... and includes" and was confined to a "banking company" as defined in Section 5 of the Banking Companies Act, 1949, having branches or other establishments in more than one province and includes Imperial Bank of India. Similarly, Section 2(kk), which was also introduced by Act 54 of 1949, defines insurance company as "an insurance company as defined in Section 2 of the Insurance Act, 1938 (4 of 1938), having branches or other establishments in more than one province". It is trite to say that when in the definition clause given in any statute the word "means" is used, what follows is intended to speak exhaustively. When the word "means" is used in the definition, to borrow the words of Lord Esher, M.R. in Gough v. Gough it is a "hard-and-fast" definition and no meaning other than that which is put in the definition can be assigned to the same. (Also see P. Kasilingam v. P.S.G. College of Technology.) On the other hand, when the word "includes" is used in the definition, the legislature does not intend to restrict the definition: it makes the definition enumerative but not exhaustive. That is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or may not comprise. Therefore, the use of the word "means" followed by the word "includes" in Section 2(bb) of the ID Act is clearly indicative of the legislative intent to make the definition exhaustive and would cover only those banking companies which fall within the purview of the definition and no other." 27. Even if we apply the standards which are applicable in the industrial law meaning thereby Section 17B of the Industrial Disputes Act, 1947 as also a situation where the question arises as to grant of back wages for not being able to gainfully employed, a person living on mere subsistence earning as of necessity is not considered to be gainfully employed. [See Novartis India Ltd. v. State of West Bengal and Ors. [2008 (15) SCALE 470 ] 28. Keeping in view the interpretative tools required to be used in a case of this nature, we are of the opinion, despite the fact that the respondents had been earning some money, the same would not disentitle them to take part in the selection process for grant of a license in terms of the order. 29. The advertisement in question keeping in view the text and context in which it was issued clearly go to show that for the purpose of applying for grant of a liquor shop, the respondents were qualified having been continuing to be registered in the Employment Exchange and having been granted a certificate in that behalf by the person specified in the advertisement. 30. It is not a case where the word `unemployed should be given a literal or even the dictionary meaning. In our view, it is required to be given a purposive meaning; a meaning which is capable of being translated in the action, a meaning which would not lead to an anomaly or absurdity; a meaning which satisfies the text and context in which the word has been used. 31. Furthermore, the appellant No. 1 applied for and was granted the similar certificate. It is, therefore, too late in the day for him to contend now that the provisions relating to grant of certificate being devoid of any guideline or objective criteria should be declared ultra vires. 32. In any event, even otherwise, the validity and/or legality of the said Order has not been challenged. 33. ### Response: 0 ### Explanation: we are of the opinion, despite the fact that the respondents had been earning some money, the same would not disentitle them to take part in the selection process for grant of a license in terms of theadvertisement in question keeping in view the text and context in which it was issued clearly go to show that for the purpose of applying for grant of a liquor shop, the respondents were qualified having been continuing to be registered in the Employment Exchange and having been granted a certificate in that behalf by the person specified in theis not a case where the word `unemployed should be given a literal or even the dictionary meaning. In our view, it is required to be given a purposive meaning; a meaning which is capable of being translated in the action, a meaning which would not lead to an anomaly or absurdity; a meaning which satisfies the text and context in which the word has been
Perfect Machine Tools Company Limited Vs. State of Maharashtra & Others	29 Rule 2 of the Code of Civil Procedure and on ratio decidendi, the law would not be applicable to the facts of the present case. Under Rule 2A of Order 29, the service could be affected on a Corporation or a statutory body on the Secretary or any director or either Principal Officer of the Corporation. The Supreme Court had taken the view keeping in view the liberal language used by the Legislature in those provisions. In contra-distinction to that, the provision of section 127 of the Act read with sections 2(19) and 136 of the Act makes it mandatory that notice should be served upon the Principal Officer of the Planning Authority viz. the Municipal Corporation of Greater Mumbai.16.It will be useful to refer to some judgments of different courts dealing with the service of notice under section 434 of the Companies Act, 1956. The statutory notice contemplated under that provision was held to be mandatory and it was said that notice must be addressed to the Company itself and the notice addressed to the Managing Director was held to be improper. A notice which was not served on the registered office of the company was also held to be not a good notice. (Rajearajeswari Packaging Products v. Dev Fasteners Ltd. 2002 (108) Company Cases 715 (Mad) and Tata Iron & Steel Co. v. HIM Ispat Ltd., 2002 (108) Company Cases 537).17.Even in the case of Vysya Bank Ltd. V. Randhir Steel and Alloys P. Ltd. 1993 (76) Company Cases 244, the Division Bench of this court held that where the registered office of the company was not functioning and that the company was giving some other address for correspondence, a notice at that address was held to be no good service.18.In the case of M/s. Shalimar Rope Works Ltd. V. M/s. Abdul Hussain H.M. Hassan Bhai Rassiwala and others, AIR 1980 SC 1163 , the Supreme Court held that even for compliance of the provisions of Order 29 Rule 2, Clause (b) the notice or summons should be left at the registered office of the company and summons served on the employees sitting in the registered office of the company who was merely an office assistant in the Sales Department of the company and was not officer of the company duly authorized officer to accept summons on behalf of the company, there was no valid service.19.The mere fact that the Chief Engineer in his capacity had replied to the notice should be treated to be a deemed service upon the Principal Officer of the company can also not be accepted. Once the law contemplates service, mode of service, service on a person and that too within the specified periods, has to be mandatory. Furthermore, in the fact and circumstances of the present case, the petitioner, in any case cannot take any advantage inasmuch as steps had been taken for acquisition of the said land and notification in that behalf already stands issued.20.The contention that no format has been prescribed under the statute would leave the petitioner of compliance to the provisions of the Act is also without any merit. Merely because a format has not been specified in the section or in appendix to the rule would in no way absolve the petitioner of his obligation to comply with the statutory requirements. The afore-referred provisions clearly state what should be stated in the notice, on which authority the notice should be served and what should the applicant asked for and how it should be served. Once the provisions are clear, there is no requirement to read these provisions ambiguously. We, therefore, reject this contention.21.We are not going into the validity or otherwise of the said notification in view of the finding of fact recorded by us that purchase notice served by the petitioner under section 127 was not in compliance of the provisions of the said section.22.In the case of Amar Nath Dogra v. Union of India, AIR 1963 SC 424 , the Supreme Court had taken the view that provisions of section 80 of the Code of Civil Procedure require the notice to be served in terms of the section and compliance of this provision was mandatory. It may not be correct to argue that substantial and imperative compliance of the provisions of the section would be a hyper technical approach. This provision cannot be equated to mere procedural section but is a section which has serious consequences on the rights of the parties. The provisions which are not only capable of but, in fact, vest one party with rights while divest the other, where it can unsettle the settled position, that too resulting from the default of appropriate authorities, then such provision would fall in line with the rule of strict construction. In clear distinction to the provisions of procedural laws simplicitor, the legislature has worded this provision differently and conveyed the intent of the framers of law unambiguously. By deemed fiction of law it alters the right in property, thus, can hardly be equated to the directory provisions of procedural law embodied in codes like Civil Procedure or Criminal Procedure. The notice under Section 127 of the Act, therefore, should essentially contain the material averments contemplated under these provisions, it should be served upon the prescribed authority and in the manner specified therein. It is only thereafter and upon expiry of the statutory period that any beneficial consequences in favour of the applicant will flow. The statute does not specifically or otherwise indicate any diverse rule to satisfy the legal requirements of Section 127. This would further support the approach that acts required under this provision must be done only in the manner specified in law. The service upon any other authority except the specified authority and without specific averments will not be a good notice for the purpose of Section 127 of the Act. The applicant, that is the interested person in the land, therefore, cannot take any benefit of such defective notice.	0[ds]6.It is a settled canon of law that the legislature is quite competent to create the legal fiction, in other words, to enact a deeming provision for the purposes of assuming existence of a fact which does not really exist provided the declaration offact as existing does not offend the constitution. The legal fiction, thus, could be enacted without using express words. The court while interpreting such a provision has to ascertain for what purpose the fiction is created and then court may even assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. The courts, however, have to take definite precaution that while construing the fiction it is not to be extended beyond the purpose for which it is created or beyond the language in the section by which it isacquire the benefit of the provisions resulting from a legal fiction, it would be obligatory upon the part of the beneficiary to comply with the requirements of the statutory provisions strictly. Conditions postulated under this provision would be mandatory and not merely directory since the default has the effect of taking the land outside the ambit of acquisition/reservation. Thus, the compliance of the requirements of the provisions would be a condition precedent to the invocation of the right granting such benefit. The interested person should serve a notice on the Planning Authority, Development Authority or the appropriate authority as the case may be. The notice should state that despite its reservation, notification and after coming into force of the final development plan for 10 years, the land has not been acquired. The person should assert his right and still if within six months from the date of service of such notice the land is not acquired or no steps as stated in the section are commenced, then alone, the land shall be deemed to be released from such reservation and would be available to the owner.8.Withreference to the provisions of section 127, the contention raised on behalf of the respondents is that the Planning Authority, as stated under this provision, would be a local authority as defined under section 2(19) would be the Corporation and the notice ought to have been served as contemplated under this provision upon the Principal Officer of the Municipal Corporation.As the notice was neither addressed nor served on the said authority, it will be violation of the provisions of section 127 of the Act which are imperative and thus, the petitioner would not be entitled to any benefit. However, according to the petitioner, no format has been prescribed under section 127 of the Act of the notice in question and substantial compliance to the provisions would be sufficient to receive the benefits under the deemed fiction particularly when the requisite period hasis no dispute to the fact that the Municipal Corporation of Greater Mumbai has been duly nominated or notified to be the Planning Authority for Greater Mumbai. The notice, thus, should have been addressed to the Principal Officer, Municipal Corporation of Greater Mumbai and delivered at the office of the said Corporation. The petitioner had addressed his notice dated 29th September, 2004 to the Chief Engineer, Development Plan, Municipal Corporation of Greater Mumbai. This notice was stated to be a purchase notice under section 127 of the MRTP Act and certain documents werethe light of the above facts, it is clear that there is no compliance to the statutory provision embodied in the language of section 127 of the Act. These provisions cannot be termed strictly as directory but would be mandatory as their compliance provides great benefit to the land owner or a person interested in the land and takes the land in question outside the ambit of reservation/development plan. Notice ought to be addressed to the prescribed authority and should be served by the registered post or delivered at the office and also the period of ten years and six months respectively specified under the Act should lapse before the person could claim any benefits from the default of the authorities concerned. On the plain reading of the provisions, it is obvious that it does not lie in the discretion of the applicant to serve the notice on the authorities which he thinks proper and in a manner considered proper by the applicant. It is obligatory upon the person to comply strictly with the provisions of the section as it divest the other party i.e. the Planning Authority of any right to carry out any development on that land. The deemed legal fiction of serious consequences cannot be said to be operative without strict compliance of the mandatory provisions. Maxwell correctly notices that it is impossible to lay down any general rule for determining whether a provision is imperative ormere use of the words may serve notice on the Planning Authority by itself per se would not render the provisions as directory in their nature and substance. The legislative intention is to bring the default to the notice of the competent authority (Planning Authority) and that the particular authority has still failed to take action or take steps for acquisition etc. within six months thereafter then alone the deeming fiction of law or deemed lapse would come into play. The purpose of the provision of section 127 of the Act does not admit of such construction that court should be inclined to hold that directory compliance to the provision would be sufficient to entitle the parties of statutory benefit. It is a matter of common knowledge that a letter addressed to the wrong officer though in the same Corporation may not be dealt with for months together as they may genuinely be under the impression that they are not expected to deal with the notice and in any case, may not be exactly aware of the consequences flowing from such default as it is only and squarely falls within the exclusive jurisdiction of the Principal Officer of the Planningcontention that no format has been prescribed under the statute would leave the petitioner of compliance to the provisions of the Act is also without any merit. Merely because a format has not been specified in the section or in appendix to the rule would in no way absolve the petitioner of his obligation to comply with the statutory requirements. Theprovisions clearly state what should be stated in the notice, on which authority the notice should be served and what should the applicant asked for and how it should be served. Once the provisions are clear, there is no requirement to read these provisions ambiguously. We, therefore, reject this contention.21.We are not going into the validity or otherwise of the said notification in view of the finding of fact recorded by us that purchase notice served by the petitioner under section 127 was not in compliance of the provisions of the said section.22.In the case of Amar Nath Dogra v. Union of India, AIR 1963 SC 424 , the Supreme Court had taken the view that provisions of section 80 of the Code of Civil Procedure require the notice to be served in terms of the section and compliance of this provision was mandatory. It may not be correct to argue that substantial and imperative compliance of the provisions of the section would be a hyper technical approach. This provision cannot be equated to mere procedural section but is a section which has serious consequences on the rights of the parties. The provisions which are not only capable of but, in fact, vest one party with rights while divest the other, where it can unsettle the settled position, that too resulting from the default of appropriate authorities, then such provision would fall in line with the rule of strict construction. In clear distinction to the provisions of procedural laws simplicitor, the legislature has worded this provision differently and conveyed the intent of the framers of law unambiguously. By deemed fiction of law it alters the right in property, thus, can hardly be equated to the directory provisions of procedural law embodied in codes like Civil Procedure or Criminal Procedure. The notice under Section 127 of the Act, therefore, should essentially contain the material averments contemplated under these provisions, it should be served upon the prescribed authority and in the manner specified therein. It is only thereafter and upon expiry of the statutory period that any beneficial consequences in favour of the applicant will flow. The statute does not specifically or otherwise indicate any diverse rule to satisfy the legal requirements of Section 127. This would further support the approach that acts required under this provision must be done only in the manner specified in law. The service upon any other authority except the specified authority and without specific averments will not be a good notice for the purpose of Section 127 of the Act. The applicant, that is the interested person in the land, therefore, cannot take any benefit of such defective notice.	0	5,790	1,599	### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: 29 Rule 2 of the Code of Civil Procedure and on ratio decidendi, the law would not be applicable to the facts of the present case. Under Rule 2A of Order 29, the service could be affected on a Corporation or a statutory body on the Secretary or any director or either Principal Officer of the Corporation. The Supreme Court had taken the view keeping in view the liberal language used by the Legislature in those provisions. In contra-distinction to that, the provision of section 127 of the Act read with sections 2(19) and 136 of the Act makes it mandatory that notice should be served upon the Principal Officer of the Planning Authority viz. the Municipal Corporation of Greater Mumbai.16.It will be useful to refer to some judgments of different courts dealing with the service of notice under section 434 of the Companies Act, 1956. The statutory notice contemplated under that provision was held to be mandatory and it was said that notice must be addressed to the Company itself and the notice addressed to the Managing Director was held to be improper. A notice which was not served on the registered office of the company was also held to be not a good notice. (Rajearajeswari Packaging Products v. Dev Fasteners Ltd. 2002 (108) Company Cases 715 (Mad) and Tata Iron & Steel Co. v. HIM Ispat Ltd., 2002 (108) Company Cases 537).17.Even in the case of Vysya Bank Ltd. V. Randhir Steel and Alloys P. Ltd. 1993 (76) Company Cases 244, the Division Bench of this court held that where the registered office of the company was not functioning and that the company was giving some other address for correspondence, a notice at that address was held to be no good service.18.In the case of M/s. Shalimar Rope Works Ltd. V. M/s. Abdul Hussain H.M. Hassan Bhai Rassiwala and others, AIR 1980 SC 1163 , the Supreme Court held that even for compliance of the provisions of Order 29 Rule 2, Clause (b) the notice or summons should be left at the registered office of the company and summons served on the employees sitting in the registered office of the company who was merely an office assistant in the Sales Department of the company and was not officer of the company duly authorized officer to accept summons on behalf of the company, there was no valid service.19.The mere fact that the Chief Engineer in his capacity had replied to the notice should be treated to be a deemed service upon the Principal Officer of the company can also not be accepted. Once the law contemplates service, mode of service, service on a person and that too within the specified periods, has to be mandatory. Furthermore, in the fact and circumstances of the present case, the petitioner, in any case cannot take any advantage inasmuch as steps had been taken for acquisition of the said land and notification in that behalf already stands issued.20.The contention that no format has been prescribed under the statute would leave the petitioner of compliance to the provisions of the Act is also without any merit. Merely because a format has not been specified in the section or in appendix to the rule would in no way absolve the petitioner of his obligation to comply with the statutory requirements. The afore-referred provisions clearly state what should be stated in the notice, on which authority the notice should be served and what should the applicant asked for and how it should be served. Once the provisions are clear, there is no requirement to read these provisions ambiguously. We, therefore, reject this contention.21.We are not going into the validity or otherwise of the said notification in view of the finding of fact recorded by us that purchase notice served by the petitioner under section 127 was not in compliance of the provisions of the said section.22.In the case of Amar Nath Dogra v. Union of India, AIR 1963 SC 424 , the Supreme Court had taken the view that provisions of section 80 of the Code of Civil Procedure require the notice to be served in terms of the section and compliance of this provision was mandatory. It may not be correct to argue that substantial and imperative compliance of the provisions of the section would be a hyper technical approach. This provision cannot be equated to mere procedural section but is a section which has serious consequences on the rights of the parties. The provisions which are not only capable of but, in fact, vest one party with rights while divest the other, where it can unsettle the settled position, that too resulting from the default of appropriate authorities, then such provision would fall in line with the rule of strict construction. In clear distinction to the provisions of procedural laws simplicitor, the legislature has worded this provision differently and conveyed the intent of the framers of law unambiguously. By deemed fiction of law it alters the right in property, thus, can hardly be equated to the directory provisions of procedural law embodied in codes like Civil Procedure or Criminal Procedure. The notice under Section 127 of the Act, therefore, should essentially contain the material averments contemplated under these provisions, it should be served upon the prescribed authority and in the manner specified therein. It is only thereafter and upon expiry of the statutory period that any beneficial consequences in favour of the applicant will flow. The statute does not specifically or otherwise indicate any diverse rule to satisfy the legal requirements of Section 127. This would further support the approach that acts required under this provision must be done only in the manner specified in law. The service upon any other authority except the specified authority and without specific averments will not be a good notice for the purpose of Section 127 of the Act. The applicant, that is the interested person in the land, therefore, cannot take any benefit of such defective notice. ### Response: 0 ### Explanation: to the Principal Officer, Municipal Corporation of Greater Mumbai and delivered at the office of the said Corporation. The petitioner had addressed his notice dated 29th September, 2004 to the Chief Engineer, Development Plan, Municipal Corporation of Greater Mumbai. This notice was stated to be a purchase notice under section 127 of the MRTP Act and certain documents werethe light of the above facts, it is clear that there is no compliance to the statutory provision embodied in the language of section 127 of the Act. These provisions cannot be termed strictly as directory but would be mandatory as their compliance provides great benefit to the land owner or a person interested in the land and takes the land in question outside the ambit of reservation/development plan. Notice ought to be addressed to the prescribed authority and should be served by the registered post or delivered at the office and also the period of ten years and six months respectively specified under the Act should lapse before the person could claim any benefits from the default of the authorities concerned. On the plain reading of the provisions, it is obvious that it does not lie in the discretion of the applicant to serve the notice on the authorities which he thinks proper and in a manner considered proper by the applicant. It is obligatory upon the person to comply strictly with the provisions of the section as it divest the other party i.e. the Planning Authority of any right to carry out any development on that land. The deemed legal fiction of serious consequences cannot be said to be operative without strict compliance of the mandatory provisions. Maxwell correctly notices that it is impossible to lay down any general rule for determining whether a provision is imperative ormere use of the words may serve notice on the Planning Authority by itself per se would not render the provisions as directory in their nature and substance. The legislative intention is to bring the default to the notice of the competent authority (Planning Authority) and that the particular authority has still failed to take action or take steps for acquisition etc. within six months thereafter then alone the deeming fiction of law or deemed lapse would come into play. The purpose of the provision of section 127 of the Act does not admit of such construction that court should be inclined to hold that directory compliance to the provision would be sufficient to entitle the parties of statutory benefit. It is a matter of common knowledge that a letter addressed to the wrong officer though in the same Corporation may not be dealt with for months together as they may genuinely be under the impression that they are not expected to deal with the notice and in any case, may not be exactly aware of the consequences flowing from such default as it is only and squarely falls within the exclusive jurisdiction of the Principal Officer of the Planningcontention that no format has been prescribed under the statute would leave the petitioner of compliance to the provisions of the Act is also without any merit. Merely because a format has not been specified in the section or in appendix to the rule would in no way absolve the petitioner of his obligation to comply with the statutory requirements. Theprovisions clearly state what should be stated in the notice, on which authority the notice should be served and what should the applicant asked for and how it should be served. Once the provisions are clear, there is no requirement to read these provisions ambiguously. We, therefore, reject this contention.21.We are not going into the validity or otherwise of the said notification in view of the finding of fact recorded by us that purchase notice served by the petitioner under section 127 was not in compliance of the provisions of the said section.22.In the case of Amar Nath Dogra v. Union of India, AIR 1963 SC 424 , the Supreme Court had taken the view that provisions of section 80 of the Code of Civil Procedure require the notice to be served in terms of the section and compliance of this provision was mandatory. It may not be correct to argue that substantial and imperative compliance of the provisions of the section would be a hyper technical approach. This provision cannot be equated to mere procedural section but is a section which has serious consequences on the rights of the parties. The provisions which are not only capable of but, in fact, vest one party with rights while divest the other, where it can unsettle the settled position, that too resulting from the default of appropriate authorities, then such provision would fall in line with the rule of strict construction. In clear distinction to the provisions of procedural laws simplicitor, the legislature has worded this provision differently and conveyed the intent of the framers of law unambiguously. By deemed fiction of law it alters the right in property, thus, can hardly be equated to the directory provisions of procedural law embodied in codes like Civil Procedure or Criminal Procedure. The notice under Section 127 of the Act, therefore, should essentially contain the material averments contemplated under these provisions, it should be served upon the prescribed authority and in the manner specified therein. It is only thereafter and upon expiry of the statutory period that any beneficial consequences in favour of the applicant will flow. The statute does not specifically or otherwise indicate any diverse rule to satisfy the legal requirements of Section 127. This would further support the approach that acts required under this provision must be done only in the manner specified in law. The service upon any other authority except the specified authority and without specific averments will not be a good notice for the purpose of Section 127 of the Act. The applicant, that is the interested person in the land, therefore, cannot take any benefit of such defective notice.
Anthony C. Leo Vs. Nandlal Balkrishnan	with the provisions of such statute. The Court in such cases has no jurisdiction to pass orders and direction affecting the right of the tenant protected, controlled or regulated by the Rent Act on the score of expediency in passing some order or direction for the maintenance and preservation of the property in custodia legis.18. It is to be indicated that though a tenant of a property in custodia legis cannot be deprived of statutory protection of the rights of tenant vis-a?-vis landlord, a tenant cannot claim protection of any assumed right not flowing from the incidences of tenancy. For example, if a tenant starts making some unauthorised construction in the tenanted premises threatening safely and security of the tenanted premises or of the building as a whole, the landlord can certainly prevent such activities by the tenant by bringing appropriate action in Court seeking prohibitory and mandatory order against the tenant without seeking his eviction. Such right of the landlord must be held to be in addition to his right to seek eviction under the appropriate tenancy law, if permitted.19. In our view, if a tenant resorts to unauthorised and illegal activity in respect of tenanted premises when such premises is in custodia legis, for prevention of such illegal and unauthorised activities not consistent with any right flowing from the incidence of his tenancy, it may not be necessary to institute a suit for preventing the tenant from such illegal activities, but the Court, being apprised by the receiver of such illegal activities of a tenant, thereby obstructing the Courts overall supervision and concern for preserving or maintaining the property in custodia legis, will be within its right to pass suitable order or direction against the tenant for prevention of illegal and unauthorised activities after giving the tenant reasonable opportunity, to place his defences against allegation of unlawful and illegal activity. What should be the reasonable opportunity must depend on the facts of each case. The Court, in such a case, should ensure broadly that the tenant is not deprived of the reasonable opportunity to which he would have been entitled if an action against him in a Court of law had been brought on such complaint. 20. It appears to us that since the Court must be presumed to be fully unbiased in deciding the allegation of unauthorised and illegal activities of a tenant causing prejudice against the lawful owner in the matter of preservation and maintenance of the property pendente lite, the necessity of adjudication of such dispute by another Court by bringing a legal action before it, as a matter of course, is neither necessary nor expedient. It, however, should be made clear that if for the purpose of deciding the dispute of unauthorised and illegal activity affecting maintenance and preservation of the property in custodia legis it becomes necessary, to determine any right claimed under a statute or flowing from some action inter parte as may he pleaded and required to be decided, it is only desirable that the Court would refrain from such determination in the summary proceeding initiated before it on the complaint of the receiver or a party to the suit and the court will direct the receiver to seek adjudication of the dispute before a competent Court by bringing appropriate legal action. Save as aforesaid, it will not be correct to contend that in no case the Court exercising control and supervision of the property in suit by appointing a receiver will be incompetent even to pass direction against a third party for the purpose of preservation of the property, once such third party pleads defence in justification of his action. The question of summary adjudication by the Court appointing the receiver or relegating the receiver to a regular suit for adjudication of the dispute concerning third party will depend on the nature of dispute and the defence claimed by the third party.21. In the facts of the case, however, it appears, to us that the appellant tenant has come out with a specific case that the structures in question were there before his induction as a tenant. In support of such contention, a number of supporting affidavits have been filed. The appellant has also contended that the landlords and the receiver were fully aware of the existence of the structures long back, and according to the appellant, at one point of time an agreement was reached between the landlords and the appellant for payment of a sum of Rs, 120/- for such construction covering about 60 sq. ft. besides further amount on account of additional premium to be paid by the landlords and an Advocates letter was sent to the receiver apprising the receiver of such understanding between the parties.22. The appellant has also claimed right to operate in a portion of the tenanted premises a permit room for serving liquor to the customers of the hotel after obtaining licence from the statutory authority on the footing that such right is incidental and ancillary to his right to operate an eating house or restaurant. Such contentions should not be decided in a summary proceeding to dispose of reports of the receiver or a complaint by a party to the suit about alleged illegal activities by a tenant in a property in suit. Any summary disposal of such dispute on the claim of some legal right by the tenant is likely to seriously affect the tenant, because once some constructions in the tenanted premises are removed on a finding that such constructions were made illegally and unauthorisedly by the tenant, the tenant not only suffers the said direction of removal at present but becomes liable to be evicted from the suit premises for such unauthorised construction by him. Similarly, the finding against the tenant on the question of running a permit room cannot but seriously affect the tenants right to operate a permit room and is also likely to expose him to the risk of being evicted from the suit premises.	1[ds]20. It appears to us that since the Court must be presumed to be fully unbiased in deciding the allegation of unauthorised and illegal activities of a tenant causing prejudice against the lawful owner in the matter of preservation and maintenance of the property pendente lite, the necessity of adjudication of such dispute by another Court by bringing a legal action before it, as a matter of course, is neither necessary nor expedient. It, however, should be made clear that if for the purpose of deciding the dispute of unauthorised and illegal activity affecting maintenance and preservation of the property in custodia legis it becomes necessary, to determine any right claimed under a statute or flowing from some action inter parte as may he pleaded and required to be decided, it is only desirable that the Court would refrain from such determination in the summary proceeding initiated before it on the complaint of the receiver or a party to the suit and the court will direct the receiver to seek adjudication of the dispute before a competent Court by bringing appropriate legal action. Save as aforesaid, it will not be correct to contend that in no case the Court exercising control and supervision of the property in suit by appointing a receiver will be incompetent even to pass direction against a third party for the purpose of preservation of the property, once such third party pleads defence in justification of his action. The question of summary adjudication by the Court appointing the receiver or relegating the receiver to a regular suit for adjudication of the dispute concerning third party will depend on the nature of dispute and the defence claimed by the third party.21. In the facts of the case, however, it appears, to us that the appellant tenant has come out with a specific case that the structures in question were there before his induction as a tenant. In support of such contention, a number of supporting affidavits have been filed. The appellant has also contended that the landlords and the receiver were fully aware of the existence of the structures long back, and according to the appellant, at one point of time an agreement was reached between the landlords and the appellant for payment of a sum of Rs, 120/for such construction covering about 60 sq. ft. besides further amount on account of additional premium to be paid by the landlords and an Advocates letter was sent to the receiver apprising the receiver of such understanding between the parties.22. The appellant has also claimed right to operate in a portion of the tenanted premises a permit room for serving liquor to the customers of the hotel after obtaining licence from the statutory authority on the footing that such right is incidental and ancillary to his right to operate an eating house or restaurant. Such contentions should not be decided in a summary proceeding to dispose of reports of the receiver or a complaint by a party to the suit about alleged illegal activities by a tenant in a property in suit. Any summary disposal of such dispute on the claim of some legal right by the tenant is likely to seriously affect the tenant, because once some constructions in the tenanted premises are removed on a finding that such constructions were made illegally and unauthorisedly by the tenant, the tenant not only suffers the said direction of removal at present but becomes liable to be evicted from the suit premises for such unauthorised construction by him. Similarly, the finding against the tenant on the question of running a permit room cannot but seriously affect the tenants right to operate a permit room and is also likely to expose him to the risk of being evicted from the suit premises.Giving our careful consideration to the facts and circumstances of the case and submissions made by the learned counsel for the parties, it appears to us that a receiver is appointed by the Court when the Court entertains a view that for preservation of the properties in suit, till the rights of parties to the suit are finally adjudicated, such properties should be preserved by exercising control and supervision of the same through the officer of the Court, the receiver. The Court becomes custodia legis of the properties in suit in respect of which receiver is appointed. Such de Jure possession of the Court through its receiver, however, does not bring about vesting of the properties in receiver or in Court free from incumbrances even pendente lite. Despite appointment of a receiver, rights and obligations of third parties in respect of properties in custodia legis remain unaffected. Where a receiver appointed by the Court is in actual physical possession of a property, no one, whoever he may be, can disturb the possession of the receiver and the Court may hold such person who disturbs receivers possession as guilty for committing contempt of Court. A man, who thinks he has a right paramount to that of receiver, must, before he takes any step of his own motion, apply to the Court for leave to assert his right. Grant of leave in such case is the rule and refusal to grant leave is exception (Everest Coal Company Pvt. Ltd. v. State of Bihar. The rule that receivers possession will not be disturbed without leave of the Court is, however, not applicable if the receiver is not in actual physical possession of the property.16. Since the properties in a suit is being managed, maintained and administered by the Court through receiver, the receiver is under an obligation to take all reasonable steps for preservation and maintenance of such properties. If for such preservation, action in civil on criminal Court is necessary, receiver is to draw the attention of the Court of relevant facts necessitating such legal action and take leave of the Court to institute appropriate legal proceedings for the preservation of the property. As the property does not vest free from incumbrances in custodia legis by annulling all rights and obligations attached to the property, the receiver cannot interfere with any right of the third party.(2) of Rule 1 of Order 40 of the Code of Civil Procedure provides : "Nothing in this rule shall authorise the Court to remove from possession or custody of property any person whom any party to the suit has not a present right to remove."Suchclearly indicates that the Court and its officer, the receiver, does not possess any right higher than the right a party to the suit possesses.17. Where a Rent Act is applicable, the inter se rights and obligations of the landlord and tenant are regulated and controlled by such Rent Act. In areas where any special law governing, the incidences of tenancy is not applicable, the law relating, to lessor and lessee as envisaged by the general law of the land, namely, Transfer of Property Act, will regulate and determine inter se right and obligations which a third party may have in respect of a property in which a receiver has been appointed, the receiver, like a party to the suit, will have same limitation. The receiver will be bound by the incidences of tenancy flowing from the statute regulating and determining inter se rights of landlord and tenant. Therefore, there is no manner of doubt that no order for eviction of the tenant can be passed by the Court at the instance of its officer, the receiver, without taking recourse to appropriate proceedings for eviction of the tenant under the appropriate statute regulating and governing the inter se rights of landlord and tenant. It may also be emphasised here that even apart from an eviction proceeding, any incidence of tenancy which is regulated and controlled by a special statute cannot be altered, varied on interfered with except in accordance with the provisions of such statute. The Court in such cases has no jurisdiction to pass orders and direction affecting the right of the tenant protected, controlled or regulated by the Rent Act on the score of expediency in passing some order or direction for the maintenance and preservation of the property in custodia legis.18. It is to be indicated that though a tenant of a property in custodia legis cannot be deprived of statutory protection of the rights of tenantlandlord, a tenant cannot claim protection of any assumed right not flowing from the incidences of tenancy. For example, if a tenant starts making some unauthorised construction in the tenanted premises threatening safely and security of the tenanted premises or of the building as a whole, the landlord can certainly prevent such activities by the tenant by bringing appropriate action in Court seeking prohibitory and mandatory order against the tenant without seeking his eviction. Such right of the landlord must be held to be in addition to his right to seek eviction under the appropriate tenancy law, if permitted.19. In our view, if a tenant resorts to unauthorised and illegal activity in respect of tenanted premises when such premises is in custodia legis, for prevention of such illegal and unauthorised activities not consistent with any right flowing from the incidence of his tenancy, it may not be necessary to institute a suit for preventing the tenant from such illegal activities, but the Court, being apprised by the receiver of such illegal activities of a tenant, thereby obstructing the Courts overall supervision and concern for preserving or maintaining the property in custodia legis, will be within its right to pass suitable order or direction against the tenant for prevention of illegal and unauthorised activities after giving the tenant reasonable opportunity, to place his defences against allegation of unlawful and illegal activity. What should be the reasonable opportunity must depend on the facts of each case. The Court, in such a case, should ensure broadly that the tenant is not deprived of the reasonable opportunity to which he would have been entitled if an action against him in a Court of law had been brought on such complaint.	1	6,327	1,799	### 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: with the provisions of such statute. The Court in such cases has no jurisdiction to pass orders and direction affecting the right of the tenant protected, controlled or regulated by the Rent Act on the score of expediency in passing some order or direction for the maintenance and preservation of the property in custodia legis.18. It is to be indicated that though a tenant of a property in custodia legis cannot be deprived of statutory protection of the rights of tenant vis-a?-vis landlord, a tenant cannot claim protection of any assumed right not flowing from the incidences of tenancy. For example, if a tenant starts making some unauthorised construction in the tenanted premises threatening safely and security of the tenanted premises or of the building as a whole, the landlord can certainly prevent such activities by the tenant by bringing appropriate action in Court seeking prohibitory and mandatory order against the tenant without seeking his eviction. Such right of the landlord must be held to be in addition to his right to seek eviction under the appropriate tenancy law, if permitted.19. In our view, if a tenant resorts to unauthorised and illegal activity in respect of tenanted premises when such premises is in custodia legis, for prevention of such illegal and unauthorised activities not consistent with any right flowing from the incidence of his tenancy, it may not be necessary to institute a suit for preventing the tenant from such illegal activities, but the Court, being apprised by the receiver of such illegal activities of a tenant, thereby obstructing the Courts overall supervision and concern for preserving or maintaining the property in custodia legis, will be within its right to pass suitable order or direction against the tenant for prevention of illegal and unauthorised activities after giving the tenant reasonable opportunity, to place his defences against allegation of unlawful and illegal activity. What should be the reasonable opportunity must depend on the facts of each case. The Court, in such a case, should ensure broadly that the tenant is not deprived of the reasonable opportunity to which he would have been entitled if an action against him in a Court of law had been brought on such complaint. 20. It appears to us that since the Court must be presumed to be fully unbiased in deciding the allegation of unauthorised and illegal activities of a tenant causing prejudice against the lawful owner in the matter of preservation and maintenance of the property pendente lite, the necessity of adjudication of such dispute by another Court by bringing a legal action before it, as a matter of course, is neither necessary nor expedient. It, however, should be made clear that if for the purpose of deciding the dispute of unauthorised and illegal activity affecting maintenance and preservation of the property in custodia legis it becomes necessary, to determine any right claimed under a statute or flowing from some action inter parte as may he pleaded and required to be decided, it is only desirable that the Court would refrain from such determination in the summary proceeding initiated before it on the complaint of the receiver or a party to the suit and the court will direct the receiver to seek adjudication of the dispute before a competent Court by bringing appropriate legal action. Save as aforesaid, it will not be correct to contend that in no case the Court exercising control and supervision of the property in suit by appointing a receiver will be incompetent even to pass direction against a third party for the purpose of preservation of the property, once such third party pleads defence in justification of his action. The question of summary adjudication by the Court appointing the receiver or relegating the receiver to a regular suit for adjudication of the dispute concerning third party will depend on the nature of dispute and the defence claimed by the third party.21. In the facts of the case, however, it appears, to us that the appellant tenant has come out with a specific case that the structures in question were there before his induction as a tenant. In support of such contention, a number of supporting affidavits have been filed. The appellant has also contended that the landlords and the receiver were fully aware of the existence of the structures long back, and according to the appellant, at one point of time an agreement was reached between the landlords and the appellant for payment of a sum of Rs, 120/- for such construction covering about 60 sq. ft. besides further amount on account of additional premium to be paid by the landlords and an Advocates letter was sent to the receiver apprising the receiver of such understanding between the parties.22. The appellant has also claimed right to operate in a portion of the tenanted premises a permit room for serving liquor to the customers of the hotel after obtaining licence from the statutory authority on the footing that such right is incidental and ancillary to his right to operate an eating house or restaurant. Such contentions should not be decided in a summary proceeding to dispose of reports of the receiver or a complaint by a party to the suit about alleged illegal activities by a tenant in a property in suit. Any summary disposal of such dispute on the claim of some legal right by the tenant is likely to seriously affect the tenant, because once some constructions in the tenanted premises are removed on a finding that such constructions were made illegally and unauthorisedly by the tenant, the tenant not only suffers the said direction of removal at present but becomes liable to be evicted from the suit premises for such unauthorised construction by him. Similarly, the finding against the tenant on the question of running a permit room cannot but seriously affect the tenants right to operate a permit room and is also likely to expose him to the risk of being evicted from the suit premises. ### Response: 1 ### Explanation: of the properties in suit, till the rights of parties to the suit are finally adjudicated, such properties should be preserved by exercising control and supervision of the same through the officer of the Court, the receiver. The Court becomes custodia legis of the properties in suit in respect of which receiver is appointed. Such de Jure possession of the Court through its receiver, however, does not bring about vesting of the properties in receiver or in Court free from incumbrances even pendente lite. Despite appointment of a receiver, rights and obligations of third parties in respect of properties in custodia legis remain unaffected. Where a receiver appointed by the Court is in actual physical possession of a property, no one, whoever he may be, can disturb the possession of the receiver and the Court may hold such person who disturbs receivers possession as guilty for committing contempt of Court. A man, who thinks he has a right paramount to that of receiver, must, before he takes any step of his own motion, apply to the Court for leave to assert his right. Grant of leave in such case is the rule and refusal to grant leave is exception (Everest Coal Company Pvt. Ltd. v. State of Bihar. The rule that receivers possession will not be disturbed without leave of the Court is, however, not applicable if the receiver is not in actual physical possession of the property.16. Since the properties in a suit is being managed, maintained and administered by the Court through receiver, the receiver is under an obligation to take all reasonable steps for preservation and maintenance of such properties. If for such preservation, action in civil on criminal Court is necessary, receiver is to draw the attention of the Court of relevant facts necessitating such legal action and take leave of the Court to institute appropriate legal proceedings for the preservation of the property. As the property does not vest free from incumbrances in custodia legis by annulling all rights and obligations attached to the property, the receiver cannot interfere with any right of the third party.(2) of Rule 1 of Order 40 of the Code of Civil Procedure provides : "Nothing in this rule shall authorise the Court to remove from possession or custody of property any person whom any party to the suit has not a present right to remove."Suchclearly indicates that the Court and its officer, the receiver, does not possess any right higher than the right a party to the suit possesses.17. Where a Rent Act is applicable, the inter se rights and obligations of the landlord and tenant are regulated and controlled by such Rent Act. In areas where any special law governing, the incidences of tenancy is not applicable, the law relating, to lessor and lessee as envisaged by the general law of the land, namely, Transfer of Property Act, will regulate and determine inter se right and obligations which a third party may have in respect of a property in which a receiver has been appointed, the receiver, like a party to the suit, will have same limitation. The receiver will be bound by the incidences of tenancy flowing from the statute regulating and determining inter se rights of landlord and tenant. Therefore, there is no manner of doubt that no order for eviction of the tenant can be passed by the Court at the instance of its officer, the receiver, without taking recourse to appropriate proceedings for eviction of the tenant under the appropriate statute regulating and governing the inter se rights of landlord and tenant. It may also be emphasised here that even apart from an eviction proceeding, any incidence of tenancy which is regulated and controlled by a special statute cannot be altered, varied on interfered with except in accordance with the provisions of such statute. The Court in such cases has no jurisdiction to pass orders and direction affecting the right of the tenant protected, controlled or regulated by the Rent Act on the score of expediency in passing some order or direction for the maintenance and preservation of the property in custodia legis.18. It is to be indicated that though a tenant of a property in custodia legis cannot be deprived of statutory protection of the rights of tenantlandlord, a tenant cannot claim protection of any assumed right not flowing from the incidences of tenancy. For example, if a tenant starts making some unauthorised construction in the tenanted premises threatening safely and security of the tenanted premises or of the building as a whole, the landlord can certainly prevent such activities by the tenant by bringing appropriate action in Court seeking prohibitory and mandatory order against the tenant without seeking his eviction. Such right of the landlord must be held to be in addition to his right to seek eviction under the appropriate tenancy law, if permitted.19. In our view, if a tenant resorts to unauthorised and illegal activity in respect of tenanted premises when such premises is in custodia legis, for prevention of such illegal and unauthorised activities not consistent with any right flowing from the incidence of his tenancy, it may not be necessary to institute a suit for preventing the tenant from such illegal activities, but the Court, being apprised by the receiver of such illegal activities of a tenant, thereby obstructing the Courts overall supervision and concern for preserving or maintaining the property in custodia legis, will be within its right to pass suitable order or direction against the tenant for prevention of illegal and unauthorised activities after giving the tenant reasonable opportunity, to place his defences against allegation of unlawful and illegal activity. What should be the reasonable opportunity must depend on the facts of each case. The Court, in such a case, should ensure broadly that the tenant is not deprived of the reasonable opportunity to which he would have been entitled if an action against him in a Court of law had been brought on such complaint.
M/S GEO MILLER & CO.PVT.LTD Vs. CHAIRMAN, RAJASTHAN VIDYUT UTPADAN NIGAM LTD	It is relevant to note that the findings in Hari Shankar Singhania were made in the specific context of a family settlement. This Court specifically observed that such a settlement is to be treated differently from a formal commercial settlement, and that efforts should be made to promote family settlements without the obstruction of technicalities of limitation, etc. Hence this Court was not dealing with a mercantile dispute such as in the present case. In Shree Ram Mills Ltd (supra), this Court found that the parties were continuously at loggerheads over joint development of certain land. They had entered into a Memorandum of Understanding to settle their dispute, however the respondent cancelled this Memorandum; hence the dispute was referred to arbitration under Section 11(6) of the 1996 Act. This Court, upon considering the complete history of negotiation between the parties which was placed before it, on the facts of that case, concluded that the claim would not be barred by limitation as there was a continuing cause of action between the parties. Having perused through the relevant precedents, we agree that on a certain set of facts and circumstances, the period during which the parties were bona fide negotiating towards an amicable settlement may be excluded for the purpose of computing the period of limitation for reference to arbitration under the 1996 Act. However, in such cases the entire negotiation history between the parties must be specifically pleaded and placed on the record. The Court upon careful consideration of such history must find out what was the breaking point at which any reasonable party would have abandoned efforts at arriving at a settlement and contemplated referral of the dispute for arbitration. This breaking point would then be treated as the date on which the cause of action arises, for the purpose of limitation. The threshold for determining when such a point arises will be lower in the case of commercial disputes, where the partys primary interest is in securing the payment due to them, than in family disputes where it may be said that the parties have a greater stake in settling the dispute amicably, and therefore delaying formal adjudication of the claim. Moreover, in a commercial dispute, while mere failure to pay may not give rise to a cause of action, once the applicant has asserted their claim and the respondent fails to respond to such claim, such failure will be treated as a denial of the applicants claim giving rise to a dispute, and therefore the cause of action for reference to arbitration. It does not lie to the applicant to plead that waited for an unreasonably long period to refer the dispute to arbitration merely on account of the respondents failure to settle their claim and because they were writing representations and reminders to the respondent in the meanwhile. 11. We are of the considered opinion that the decisions in Hari Shankar Singhania and Shree Ram Mills Ltd. (supra) will not be applicable to the appellants case as in these cases the entire negotiation history of the parties had been made available to this Court. In the present case, the appellant company vaguely stated before this Court that it was involved in negotiation with the respondents in the 14 years preceding the application dated 4.10.1997 before the Settlement Committee. However it did not place on record any evidence to show when it had first made a representation to the respondent in respect of the outstanding amounts, and what was the history of their negotiation with the respondents such that it was only in 1997 that they thought of approaching the Settlement Committee. Further, they have not brought anything on record to show that they were required to proceed before the Settlement Committee before requesting the appointment of an arbitrator. The arbitration clause does not stipulate any such requirement. We therefore find that the appellant companys case has a certain element of mala fide in so far as it has made detailed submissions in respect of its communications with the respondents subsequent to 4.10.1997, but has remained conspicuously silent on the specific actions taken to recover the payments due prior to that date. Under Section 114(g) of the Indian Evidence Act, 1872 this Court can presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Hence, in the absence of specific pleadings and evidence placed on record by the appellant with respect to the parties negotiation history, this Court cannot accept the appellants contention that it was only after the respondents letter dated 18.12.1999 that the appellant could have contemplated arbitration in relation to the outstanding amounts. Even if we were to include the time spent proceeding before the Settlement Committee, the limitation period, at the latest, would have started running from 4.10.1997 which is when the appellant made a representation to the Settlement Committee and the Committee failed to respond to the same. It is further relevant to note that even the respondents letter dated 18.12.1999 does not completely repudiate the appellants claims but requests the submission of certain documents for verification. Hence it was not so radical a departure from the prevailing situation at that time so as to give a finding that the appellant could not have contemplated arbitration prior to the aforesaid letter. We also find it pertinent to add that the appellants own default in sleeping over his right for 14 years will not constitute a case of undue hardship justifying extension of time under Section 43(3) of the 1996 Act or show sufficient cause for condonation of delay under Section 5 of the Limitation Act. The appellant should have approached the Court for appointment of an arbitrator under Section 8(2) of the 1940 Act within the appropriate limitation period. We agree with the High Courts observation that the entire dispute seems concocted so as to pursue a monetary claim against the respondents, taking advantage of the provisions of the 1996 Act.	0[ds]It is settled law that the date of commencement of arbitration proceedings for the purpose of deciding which Act applies, upon a conjoint reading of Sections 21 and Section 85(2)(a) of the 1996 Act, shall be regarded as the date on which notice was served to the other party requesting appointment of an arbitrator (See Milkfood Ltd. v. GMC Ice Cream (P) Ltd, (2004) 7 SCC 288 ; Shettys Constructions Co. Pvt. Ltd. v. Konkan Railway Construction and Another, (1998) 5 SCC 599 )Though strictly speaking the 1996 Act came into force from 22.8.1996, for all practical purposes it is deemed to have been effective from 25.1.1996, which is when the Arbitration and Conciliation Ordinance, 1996 came into force. Hence if the date of notice was prior to 25.1.1996, the 1940 Act will apply. If the date of notice was on or after 25.1.1996, the 1996 Act will apply to the arbitral proceedings though the arbitration clause contemplated proceedings under the 1940 Act (See Fuerst Day Lawson Ltd v. Jindal Exports Ltd., (2001) 6 SCC 356 : O.P. Malhotra on The Law and Practice of Arbitration, Justice Indu Malhotra ed., 3 rd . edn, 2014 at page 1915). In Milkfood Ltd (supra) as well, the arbitration agreement was governed by the provisions of the 1940 Act. The appellant sent a notice to the respondent for appointment of an arbitrator on 14.9.1995. Hence this Court held that the 1940 Act would applyIn the present case, since notice was served to the respondent in 2002, the provisions of the 1996 Act will be deemed to apply to the present Arbitration Applications filed by the appellantWe also find the decision in Panchu Gopal Bose (supra) relevant for the purpose of this case. This was a case similar to the present set of facts, where the petitioner sent bills to the respondent in 1979, but payment was not made. After an interval of a decade, he sent a notice to the respondent in 1989 for reference to arbitration. This Court in Panchu Gopal Bose observed that in mercantile references of this kind, it is implied that the arbitrator must decide the dispute according to the existing law of contract, and every defence which would have been open to the parties in a court of law, such as the plea of limitation, would be open to the parties for the arbitrators decision as well. Otherwise, as this Court observed:8…a claim for breach of contract containing a reference clause could be brought at any time, it might be 20 or 30 years after the cause of action had arisen, although the legislature has prescribed a limit of three years for the enforcement of such a claim in any application that might be made to the law courts…This Court further held as follows:11. Therefore, the period of limitation for the commencement of arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued. Just as in the case of civil actions the claim is not to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accruedTherefore in Panchu Gopal Bose this Court held that the claim is hopelessly barred by limitation as the petitioner by his own conduct had slept over his right for more than 10 years8. Undoubtedly, a different scheme has been evolved under the 1996 Act. However we find that the same principles continue to apply with respect to the applicability of the law of limitation to an application under Section 11(6) of the 1996 Act as laid down in the decisions dealing with judicial appointment of an arbitrator under Sections 8 and 20 of the 1940 ActOur finding is supported by the decision of a three¬Judge Bench of this Court in Grasim Industries (supra). In Grasim Industries, similar to the present case, the arbitration agreement provided for reference to be made under the 1940 Act. However the appellant raised their claim in 2002, attracting the application of the 1996 Act. This Court was therefore faced with the issue of whether an application for appointment of an arbitrator under the 1996 Act would be barred by limitation in respect of the appellants claim. This Court found that, in view of Section 28 of the Indian Contract Act, 1872, the parties in the arbitration agreement could not stipulate a restricted period for raising a claim. However, the limitation period for invocation of arbitration would be three years from the date of the cause of action under Article 137 of the Limitation Act, 1963. However in the facts of that case, this Court found that certain claims had arisen within the three year limitation period and hence, could be allowedApplying the aforementioned principles to the present case, we find ourselves in agreement with the finding of the High Court that the appellants cause of action in respect of Arbitration Applications Nos. 25/2003 and 27/2003, relating to the work orders dated 7.10.1979 and 4.4.1980 arose on 8.2.1983, which is when the final bill handed over to the respondent became due. Mere correspondence of the appellant by way of writing letters/reminders to the respondent subsequent to this date would not extend the time of limitation. Hence the maximum period during which this Court could have allowed the appellants application for appointment of an arbitrator is 3 years from the date on which cause of action arose i.e. 8.2.1986. Similarly, with respect to Arbitration Application Nos. 28/2003 relating to the work order dated 3.5.1985, the respondent has stated that final bill was handed over and became due on 10.8.1989. This has not been disputed by the appellant. Hence the limitation period ended on 10.8.1992Since the appellant served notice for appointment of arbitrator in 2002, and requested the appointment of an arbitrator before a Court only by the end of 2003, his claim is clearly barred by limitation9. The decisions relied upon by the appellant are inapplicable to the present facts and circumstances. At the outset, we observe that the decision in Sunder Kukreja (supra) is on a different set of facts. In that decision, the question before this Court was whether the arbitration clause in a partnership deed would continue to subsist in light of a subsequent retirement deed which the appellant denied executing, and whether the arbitrator appointed by the Court could examine the genuineness of the said retirement deed. Hence it is not relevant to the issue of limitationTurning to the other decisions, it is true that in Major (Retd.) Inder Singh Rekhi (supra), this Court observed that the existence of a dispute is essential for appointment of an arbitrator. A dispute arises when a claim is asserted by one party and denied by the other. The term dispute entails a positive element and mere inaction to pay does not lead to the inference that dispute exists. In that case, since the respondent failed to finalise the bills due to the applicant, this Court held that cause of action would be treated as arising not from the date on which the payment became due, but on the date when the applicant first wrote to the respondent requesting finalisation of the bills. However, the Court also expressly observed that a party cannot postpone the accrual of cause of action by writing reminders or sending remindersIn the present case, the appellant has not disputed the High Courts finding that the appellant itself had handed over the final bill to the respondent on 8.2.1983. Hence, the holding in Major (Retd.) Inder Singh Rekhi (supra) will not apply, as in that case, the applicants claim was delayed on account of the respondents failure to finalize the bills. Therefore the right to apply in the present case accrued from the date on which the final bill was raised (See Union of India v. Momin Construction Company, (1997) 9 SCC 97 )Having perused through the relevant precedents, we agree that on a certain set of facts and circumstances, the period during which the parties were bona fide negotiating towards an amicable settlement may be excluded for the purpose of computing the period of limitation for reference to arbitration under the 1996 Act. However, in such cases the entire negotiation history between the parties must be specifically pleaded and placed on the record. The Court upon careful consideration of such history must find out what was the breaking point at which any reasonable party would have abandoned efforts at arriving at a settlement and contemplated referral of the dispute for arbitration. This breaking point would then be treated as the date on which the cause of action arises, for the purpose of limitation. The threshold for determining when such a point arises will be lower in the case of commercial disputes, where the partys primary interest is in securing the payment due to them, than in family disputes where it may be said that the parties have a greater stake in settling the dispute amicably, and therefore delaying formal adjudication of the claimMoreover, in a commercial dispute, while mere failure to pay may not give rise to a cause of action, once the applicant has asserted their claim and the respondent fails to respond to such claim, such failure will be treated as a denial of the applicants claim giving rise to a dispute, and therefore the cause of action for reference to arbitration. It does not lie to the applicant to plead that waited for an unreasonably long period to refer the dispute to arbitration merely on account of the respondents failure to settle their claim and because they were writing representations and reminders to the respondent in the meanwhile11. We are of the considered opinion that the decisions in Hari Shankar Singhania and Shree Ram Mills Ltd. (supra) will not be applicable to the appellants case as in these cases the entire negotiation history of the parties had been made available to this Court. In the present case, the appellant company vaguely stated before this Court that it was involved in negotiation with the respondents in the 14 years preceding the application dated 4.10.1997 before the Settlement Committee. However it did not place on record any evidence to show when it had first made a representation to the respondent in respect of the outstanding amounts, and what was the history of their negotiation with the respondents such that it was only in 1997 that they thought of approaching the Settlement Committee. Further, they have not brought anything on record to show that they were required to proceed before the Settlement Committee before requesting the appointment of an arbitrator. The arbitration clause does not stipulate any such requirementWe therefore find that the appellant companys case has a certain element of mala fide in so far as it has made detailed submissions in respect of its communications with the respondents subsequent to 4.10.1997, but has remained conspicuously silent on the specific actions taken to recover the payments due prior to that date. Under Section 114(g) of the Indian Evidence Act, 1872 this Court can presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds itHence, in the absence of specific pleadings and evidence placed on record by the appellant with respect to the parties negotiation history, this Court cannot accept the appellants contention that it was only after the respondents letter dated 18.12.1999 that the appellant could have contemplated arbitration in relation to the outstanding amounts. Even if we were to include the time spent proceeding before the Settlement Committee, the limitation period, at the latest, would have started running from 4.10.1997 which is when the appellant made a representation to the Settlement Committee and the Committee failed to respond to the sameIt is further relevant to note that even the respondents letter dated 18.12.1999 does not completely repudiate the appellants claims but requests the submission of certain documents for verification. Hence it was not so radical a departure from the prevailing situation at that time so as to give a finding that the appellant could not have contemplated arbitration prior to the aforesaid letterWe also find it pertinent to add that the appellants own default in sleeping over his right for 14 years will not constitute a case of undue hardship justifying extension of time under Section 43(3) of the 1996 Act or show sufficient cause for condonation of delay under Section 5 of the Limitation Act. The appellant should have approached the Court for appointment of an arbitrator under Section 8(2) of the 1940 Act within the appropriate limitation period. We agree with the High Courts observation that the entire dispute seems concocted so as to pursue a monetary claim against the respondents, taking advantage of the provisions of the 1996 Act.	0	4,545	2,373	### 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: It is relevant to note that the findings in Hari Shankar Singhania were made in the specific context of a family settlement. This Court specifically observed that such a settlement is to be treated differently from a formal commercial settlement, and that efforts should be made to promote family settlements without the obstruction of technicalities of limitation, etc. Hence this Court was not dealing with a mercantile dispute such as in the present case. In Shree Ram Mills Ltd (supra), this Court found that the parties were continuously at loggerheads over joint development of certain land. They had entered into a Memorandum of Understanding to settle their dispute, however the respondent cancelled this Memorandum; hence the dispute was referred to arbitration under Section 11(6) of the 1996 Act. This Court, upon considering the complete history of negotiation between the parties which was placed before it, on the facts of that case, concluded that the claim would not be barred by limitation as there was a continuing cause of action between the parties. Having perused through the relevant precedents, we agree that on a certain set of facts and circumstances, the period during which the parties were bona fide negotiating towards an amicable settlement may be excluded for the purpose of computing the period of limitation for reference to arbitration under the 1996 Act. However, in such cases the entire negotiation history between the parties must be specifically pleaded and placed on the record. The Court upon careful consideration of such history must find out what was the breaking point at which any reasonable party would have abandoned efforts at arriving at a settlement and contemplated referral of the dispute for arbitration. This breaking point would then be treated as the date on which the cause of action arises, for the purpose of limitation. The threshold for determining when such a point arises will be lower in the case of commercial disputes, where the partys primary interest is in securing the payment due to them, than in family disputes where it may be said that the parties have a greater stake in settling the dispute amicably, and therefore delaying formal adjudication of the claim. Moreover, in a commercial dispute, while mere failure to pay may not give rise to a cause of action, once the applicant has asserted their claim and the respondent fails to respond to such claim, such failure will be treated as a denial of the applicants claim giving rise to a dispute, and therefore the cause of action for reference to arbitration. It does not lie to the applicant to plead that waited for an unreasonably long period to refer the dispute to arbitration merely on account of the respondents failure to settle their claim and because they were writing representations and reminders to the respondent in the meanwhile. 11. We are of the considered opinion that the decisions in Hari Shankar Singhania and Shree Ram Mills Ltd. (supra) will not be applicable to the appellants case as in these cases the entire negotiation history of the parties had been made available to this Court. In the present case, the appellant company vaguely stated before this Court that it was involved in negotiation with the respondents in the 14 years preceding the application dated 4.10.1997 before the Settlement Committee. However it did not place on record any evidence to show when it had first made a representation to the respondent in respect of the outstanding amounts, and what was the history of their negotiation with the respondents such that it was only in 1997 that they thought of approaching the Settlement Committee. Further, they have not brought anything on record to show that they were required to proceed before the Settlement Committee before requesting the appointment of an arbitrator. The arbitration clause does not stipulate any such requirement. We therefore find that the appellant companys case has a certain element of mala fide in so far as it has made detailed submissions in respect of its communications with the respondents subsequent to 4.10.1997, but has remained conspicuously silent on the specific actions taken to recover the payments due prior to that date. Under Section 114(g) of the Indian Evidence Act, 1872 this Court can presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Hence, in the absence of specific pleadings and evidence placed on record by the appellant with respect to the parties negotiation history, this Court cannot accept the appellants contention that it was only after the respondents letter dated 18.12.1999 that the appellant could have contemplated arbitration in relation to the outstanding amounts. Even if we were to include the time spent proceeding before the Settlement Committee, the limitation period, at the latest, would have started running from 4.10.1997 which is when the appellant made a representation to the Settlement Committee and the Committee failed to respond to the same. It is further relevant to note that even the respondents letter dated 18.12.1999 does not completely repudiate the appellants claims but requests the submission of certain documents for verification. Hence it was not so radical a departure from the prevailing situation at that time so as to give a finding that the appellant could not have contemplated arbitration prior to the aforesaid letter. We also find it pertinent to add that the appellants own default in sleeping over his right for 14 years will not constitute a case of undue hardship justifying extension of time under Section 43(3) of the 1996 Act or show sufficient cause for condonation of delay under Section 5 of the Limitation Act. The appellant should have approached the Court for appointment of an arbitrator under Section 8(2) of the 1940 Act within the appropriate limitation period. We agree with the High Courts observation that the entire dispute seems concocted so as to pursue a monetary claim against the respondents, taking advantage of the provisions of the 1996 Act. ### Response: 0 ### Explanation: pay does not lead to the inference that dispute exists. In that case, since the respondent failed to finalise the bills due to the applicant, this Court held that cause of action would be treated as arising not from the date on which the payment became due, but on the date when the applicant first wrote to the respondent requesting finalisation of the bills. However, the Court also expressly observed that a party cannot postpone the accrual of cause of action by writing reminders or sending remindersIn the present case, the appellant has not disputed the High Courts finding that the appellant itself had handed over the final bill to the respondent on 8.2.1983. Hence, the holding in Major (Retd.) Inder Singh Rekhi (supra) will not apply, as in that case, the applicants claim was delayed on account of the respondents failure to finalize the bills. Therefore the right to apply in the present case accrued from the date on which the final bill was raised (See Union of India v. Momin Construction Company, (1997) 9 SCC 97 )Having perused through the relevant precedents, we agree that on a certain set of facts and circumstances, the period during which the parties were bona fide negotiating towards an amicable settlement may be excluded for the purpose of computing the period of limitation for reference to arbitration under the 1996 Act. However, in such cases the entire negotiation history between the parties must be specifically pleaded and placed on the record. The Court upon careful consideration of such history must find out what was the breaking point at which any reasonable party would have abandoned efforts at arriving at a settlement and contemplated referral of the dispute for arbitration. This breaking point would then be treated as the date on which the cause of action arises, for the purpose of limitation. The threshold for determining when such a point arises will be lower in the case of commercial disputes, where the partys primary interest is in securing the payment due to them, than in family disputes where it may be said that the parties have a greater stake in settling the dispute amicably, and therefore delaying formal adjudication of the claimMoreover, in a commercial dispute, while mere failure to pay may not give rise to a cause of action, once the applicant has asserted their claim and the respondent fails to respond to such claim, such failure will be treated as a denial of the applicants claim giving rise to a dispute, and therefore the cause of action for reference to arbitration. It does not lie to the applicant to plead that waited for an unreasonably long period to refer the dispute to arbitration merely on account of the respondents failure to settle their claim and because they were writing representations and reminders to the respondent in the meanwhile11. We are of the considered opinion that the decisions in Hari Shankar Singhania and Shree Ram Mills Ltd. (supra) will not be applicable to the appellants case as in these cases the entire negotiation history of the parties had been made available to this Court. In the present case, the appellant company vaguely stated before this Court that it was involved in negotiation with the respondents in the 14 years preceding the application dated 4.10.1997 before the Settlement Committee. However it did not place on record any evidence to show when it had first made a representation to the respondent in respect of the outstanding amounts, and what was the history of their negotiation with the respondents such that it was only in 1997 that they thought of approaching the Settlement Committee. Further, they have not brought anything on record to show that they were required to proceed before the Settlement Committee before requesting the appointment of an arbitrator. The arbitration clause does not stipulate any such requirementWe therefore find that the appellant companys case has a certain element of mala fide in so far as it has made detailed submissions in respect of its communications with the respondents subsequent to 4.10.1997, but has remained conspicuously silent on the specific actions taken to recover the payments due prior to that date. Under Section 114(g) of the Indian Evidence Act, 1872 this Court can presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds itHence, in the absence of specific pleadings and evidence placed on record by the appellant with respect to the parties negotiation history, this Court cannot accept the appellants contention that it was only after the respondents letter dated 18.12.1999 that the appellant could have contemplated arbitration in relation to the outstanding amounts. Even if we were to include the time spent proceeding before the Settlement Committee, the limitation period, at the latest, would have started running from 4.10.1997 which is when the appellant made a representation to the Settlement Committee and the Committee failed to respond to the sameIt is further relevant to note that even the respondents letter dated 18.12.1999 does not completely repudiate the appellants claims but requests the submission of certain documents for verification. Hence it was not so radical a departure from the prevailing situation at that time so as to give a finding that the appellant could not have contemplated arbitration prior to the aforesaid letterWe also find it pertinent to add that the appellants own default in sleeping over his right for 14 years will not constitute a case of undue hardship justifying extension of time under Section 43(3) of the 1996 Act or show sufficient cause for condonation of delay under Section 5 of the Limitation Act. The appellant should have approached the Court for appointment of an arbitrator under Section 8(2) of the 1940 Act within the appropriate limitation period. We agree with the High Courts observation that the entire dispute seems concocted so as to pursue a monetary claim against the respondents, taking advantage of the provisions of the 1996 Act.
Mrs. Helen C. Rebello & Ors Vs. Maharashtra State Road Transport Corpn. & Anr	death. This, of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law. 31. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co- relation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the insured, if he lives till maturity after paying all the premiums, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insureds death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of ones death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as pecuniary advantage liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual. 32. As we have observed the whole scheme of the Act, in relation to the payment of compensation to the claimant, is a beneficial legislation, the intention of the legislature is made more clear by the change of language from what was in Fatal Accidents Act, 1855 and what is brought under Section 110-B of 1939 Act. This is also visible through the provision of Section 168(1) under the Motor Vehicle Act, 1988 and Section 92-A of 1939 Act which fixes the liability on the owner of the vehicle even on no fault. It provides where the death or permanent disablement of any person has resulted from an accident in spite of no fault of the owner of the vehicle, an amount of compensation fixed therein is payable to claimant by such owner of the vehicle. Section 92-B ensures that the claim for compensation under Section 92-A is in addition to any other right to claim compensation in respect whereof under any other provision of this Act or of any other law for the time being in force. This clearly indicates the intention of the legislature which is conferring larger benefit to the claimant. Interpretation of such beneficial legislation is also well settled. Whenever there be two possible interpretations in such statute then the one which subserves the object of legislation, viz., benefit to the subject should be accepted. In the present case, two interpretations have given of this statute, evidenced by two distinct sets of decisions of the various High Courts. We have no hesitation to conclude that the set of decisions, which applied the principle of no deduction of the life insurance amount should be accepted and other set, which interpreted to deduct, is to be rejected. For all these considerations, we have no hesitation to hold that such High Courts were wrong in deducting the amount paid or payable under the life insurance by giving restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intents of the legislature under various provisions of the Motor Vehicles Act, 1939.33. Accordingly, we set aside the impugned judgment dated 9th September, 1985 and restore the judgment of the tribunal dated 29th September, 1980 and hold that the amount received by the claimant on the life insurance of the deceased is not deductible from the compensation computed under the Motor Vehicles Act. The concerned respondent shall make the payment accordingly, if not already paid in terms thereof.	1[ds]16. It is true that the aforesaid two English decisions were cases of injuries, but the principle as spelt out is equally applicable in cases of death. The English Court held that any money coming under the contract of insurance, it would be unjust and unreasonable to hold that the money which he prudently spent on premiums, the benefit from it should ensure to the benefit of the tortfeasor. To this, we fully endorse. Under the life insurance, in case one lives upto the time of maturity, after paying full premium he receives the assured money back, based on the terms of the contract. In fact, he receives less than the total premium paid. It is for this gain to the insurer it is obliged to pay to the extent the sum assured, to the claimant in case of injury or death under the contract. In other words, payable only on the contingency as referred, if the contingency of injury or death does not happen, the insurer is the gainer as it receives more under premium than to pay on maturity of the policy, and in case contingency occurs the claimant, the gainer as he receives the amount even before paying the full premiums and the gain is to the proportion of the balance unpaid premium, whether it is injury or death. A large number of persons, under the policy may live upto the maturity of policy by paying full premium and the contingency of injury or death may not happen. On each of such matured policies, Life Insurance Corporation has their gain in mind enters into its business, to offer to the policy holders in term, in case of happening of the said contingency to pay the full amount assured, if it takes place earlier, without paying the full premium. It is this game of gain or loss the Life Insurance Corporation enters into the contract.Many invest through this policy for variety of reasons, may be, to secure the same for himself as forced saving, may be, as in India, for deduction towards his income-tax liability, to secure loan by himself in case needed on a meagre interest for building his residence or to secure sum in case of happening of the said contingencies etc. He enters into this contract with an open eye, as an act of wisdom, of course, not towards the gain to the tortfeasor. The English Court expressing concern on this aspect in the aforesaid decision recorded : "why should the plaintiff be left worse off than if he had never insured". Thus, the interpretation of deduction of life insurance would result into the gain to the wrong-doer in proportion to the higher scale of premium paid by the insured for no contribution of his and loss to the claimant in proportion to the higher scale of premium paid, as he would have received the compensation amount without payment of any premium.y invest through this policy for variety of reasons, may be, to secure the same for himself as forced saving, may be, as in India, for deduction towards his income-tax liability, to secure loan by himself in case needed on a meagre interest for building his residence or to secure sum in case of happening of the said contingencies etc. He enters into this contract with an open eye, as an act of wisdom, of course, not towards the gain to the tortfeasor. The English Court expressing concern on this aspect in the aforesaid decision recorded : "why should the plaintiff be left worse off than if he had never insured". Thus, the interpretation of deduction of life insurance would result into the gain to the wrong-doer in proportion to the higher scale of premium paid by the insured for no contribution of his and loss to the claimant in proportion to the higher scale of premium paid, as he would have received the compensation amount without payment of any premium.y invest through this policy for variety of reasons, may be, to secure the same for himself as forced saving, may be, as in India, for deduction towards his income-tax liability, to secure loan by himself in case needed on a meagre interest for building his residence or to secure sum in case of happening of the said contingencies etc. He enters into this contract with an open eye, as an act of wisdom, of course, not towards the gain to the tortfeasor. The English Court expressing concern on this aspect in the aforesaid decision recorded : "why should the plaintiff be left worse off than if he had never insured". Thus, the interpretation of deduction of life insurance would result into the gain to the wrong-doer in proportion to the higher scale of premium paid by the insured for no contribution of his and loss to the claimant in proportion to the higher scale of premium paid, as he would have received the compensation amount without payment of any premium.Fleming has also expressed that the deduction or set off of the life insurance could not be justifiable. When he uses the words not be justifiable he refers to ones conscience, fairness and contrary to what is just. In this context, the use of the word just, which was neither in the English 1846 Act nor in the Indian 1855 Act, now brought in under 1939 Act, gains importance. This shows that the word just was deliberately brought in Sections 110-B of the 1939 Act to enlarge the consideration in computing the compensation which, of course, would include the question of deductibility, if any. This leads us to an irresistible conclusion that principle of computation of the compensation both under the English Fatal Accidents Act, 1846 and underthe Indian Fatal Accidents Act, 1855 by the earlier decision, were restrictive in nature in the absence of any guiding words therein, hence the courts applied the general principle at the common law of loss and gain but that would not apply to the considerations under Section 110-B of 1939 Act which enlarges the discretion to deliver better justice to the claimant, in computing the compensation, to see what is just. Thus, we find that all the decisions of the High Courts, which based its interpretation on the principles of these two Acts, viz., English 1846 Act and Indian 1855 Act to hold deductions, were valid cannot be upheld. As we have observed above, the decisions even with reference to the decision of this Court in Gobald Motor Service (supra), where the question was neither raised nor adjudicated and that case also, being under the 1855 Act, cannot be pressed into service. Thus, these Courts by giving restrictive interpretation in computation of compensation based on the limitation of the language of the Fatal Accidents Act, fell into an error, as it did not take into account the change of language in the 1939 Act and did not consider the widening of the discretion of the Tribunal under Section 110-B. The word just, as its nomenclature, denotes equitability, fairness and reasonableness having large peripheral field. The largeness is, of course, not arbitrary; it is restricted by the conscience which is fair, reasonable and equitable, if it exceeds; it is termed as unfair, unreasonable, unequilable, not just. Thus, this field of wider discretion of the Tribunal has to be within the said limitations and the limitations under any provision of this Act or any other provision having force of law.Thus, we have no hesitation in concluding that the Tribunal, while computing the compensation under Section 110-B of the 1939 Act, has a wider discretion, that what it had under the 1855 Act. Various provisions of this Act indicate legislatures intent conferring visible benefit to the claimant by securing compensation through casting obligation on the tortfeasor and the insurer. Section 94 makes it obligatory to insure a vehicle against third party risk before putting on the road. Statutory obligations and the limit of the insurer is provided under Section 95. Under Section 95-AA in addition to the deposits under Sec. 7 ofthe Insurance Act, 1938, the insurer has to deposit with the Reserve Bank of India or State Bank of India a security of thirty thousand for discharging any liability covered by the insurance policy. Then, Section 96 casts obligation on the insurers to satisfy judgments in respect of third party risks. No settlement between insurer and insured in respect of any claim to which the third party is entitled, is valid unless third party is a party to such settlement under Section 97. All these and such other provisions are clearly beneficial legislation, hence should be interpreted which confers benefit and not which usurp its benefit.27. This being so, we finally revert to the question, which is in issue for consideration, whether the compensation computed under 1939 Act, the life insurance amount received by the claimants occasioned by the death of the deceased, is deductible from it or not?28. Submission by the learned counsel for the appellants is, the insurance money is by virtue of a contractual relationship between the deceased and the Insurance Company and is payable to the legal heirs of the deceased in terms of the contract. Such money cannot be said to have been received by the heirs only on account of the death of the deceased, but truly it is a fruit of the premium paid by the deceased during his life time. The deceased bought this insurance policy as an act of his prudence, to confer benefit either to himself or to his heirs in case of death. This amount is receivable by the claimant irrespective of the accidental death, even if he would have died the natural death. He further submits that the interpretation given by the High Court confers benefit to the tortfeasor for his negligence and wrong leading to the untimely death without any contribution by him. It permits him to escape from the liability cast by the statute. Thus, his submission is, any amount payable under any contract of social assurance or any insurance, ought not to be deducted as the same is payable to the heirs because of the contract and not on account of the death of the insured person. Referring on the dictionary meaning of the word compensation, he submits it would mean anything given to make things equal in value. He submits that in this case the death of the deceased-husband of the claimant was due to the negligence of the respondents has to be offset by a just equivalent, where claimants are put back in position where they would have been but for such death. On this, he draws the conclusion, the benefits of insurance policy cannot be deducted while awarding the compensation. On the other hand, learned counsel for the respondents restricted the argument as was advanced before the High Court and submitted, the High Court, after considering all aspects including English decisions and the decisions of this Court, rightly concluded to deduct the life insurance money out of the compensation payable to the claimant.29. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the pecuniary advantage which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions ofthe Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, co-relating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co- relate to this type of injury or deaths, viz., accidental. If the words pecuniary advantage from whatever source are to be interpreted to mean any form of death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the pecuniary advantage resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, case and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death.This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record herein both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of ones labour or contribution towards ones wealth, savings, etc. either for himself or for his family, which such person knows, under the law, has to go to his heirs after his death either by succession or under a will could be said to be the pecuniary gain only on the account of ones accidental death. This, of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law.As we have observed the whole scheme of the Act, in relation to the payment of compensation to the claimant, is a beneficial legislation, the intention of the legislature is made more clear by the change of language from what was in Fatal Accidents Act, 1855 and what is brought under Section 110-B of 1939 Act. This is also visible through the provision of Section 168(1) under the Motor Vehicle Act, 1988 and Section 92-A of 1939 Act which fixes the liability on the owner of the vehicle even on no fault. It provides where the death or permanent disablement of any person has resulted from an accident in spite of no fault of the owner of the vehicle, an amount of compensation fixed therein is payable to claimant by such owner of the vehicle. Section 92-B ensures that the claim for compensation under Section 92-A is in addition to any other right to claim compensation in respect whereof under any other provision of this Act or of any other law for the time being in force. This clearly indicates the intention of the legislature which is conferring larger benefit to the claimant. Interpretation of such beneficial legislation is also well settled. Whenever there be two possible interpretations in such statute then the one which subserves the object of legislation, viz., benefit to the subject should be accepted. In the present case, two interpretations have given of this statute, evidenced by two distinct sets of decisions of the various High Courts. We have no hesitation to conclude that the set of decisions, which applied the principle of no deduction of the life insurance amount should be accepted and other set, which interpreted to deduct, is to be rejected. For all these considerations, we have no hesitation to hold that such High Courts were wrong in deducting the amount paid or payable under the life insurance by giving restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intents of the legislature under various provisions ofthe Motor Vehicles Act, 1939.33. Accordingly, we set aside the impugned judgment dated 9th September, 1985 and restore the judgment of the tribunal dated 29th September, 1980 and hold that the amount received by the claimant on the life insurance of the deceased is not deductible from the compensation computed under the Motor Vehicles Act. The concerned respondent shall make the payment accordingly, if not already paid in terms thereof.	1	11,105	3,326	### 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: death. This, of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law. 31. Broadly, we may examine the receipt of the provident fund which is a deferred payment out of the contribution made by an employee during the tenure of his service. Such employee or his heirs are entitled to receive this amount irrespective of the accidental death. This amount is secured, is certain to be received, while the amount under the Motor Vehicles Act is uncertain and is receivable only on the happening of the event, viz., accident, which may not take place at all. Similarly, family pension is also earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. No co- relation between the two. Similarly, life insurance policy is received either by the insured or the heirs of the insured on account of the contract with the insurer, for which insured contributes in the form of premium. It is receivable even by the insured, if he lives till maturity after paying all the premiums, in the case of death insurer indemnifies to pay the sum to the heirs, again in terms of the contracts for the premium paid. Again, this amount is receivable by the claimant not on account of any accidental death but otherwise on insureds death. Death is only a step or contingency in terms of the contract, to receive the amount. Similarly any cash, bank balance, shares, fixed deposits, etc. though are all a pecuniary advantage receivable by the heirs on account of ones death but all these have no co-relation with the amount receivable under a statute occasioned only on account of accidental death. How could such an amount come within the periphery of the Motor Vehicles Act to be termed as pecuniary advantage liable for deduction. When we seek the principle of loss and gain, it has to be on similar and same plane having nexus inter se between them and not to which, there is no semblance of any co-relation. The insured (deceased) contributes his own money for which he receives the amount has no co-relation to the compensation computed as against tortfeasor for his negligence on account of accident. As aforesaid, the amount receivable as compensation under the Act is on account of the injury or death without making any contribution towards it, then how can fruits of an amount received through contributions of the insured be deducted out of the amount receivable under the Motor Vehicles Act. The amount under this Act, he receives without any contribution. As we have said the compensation payable under the Motor Vehicles Act is statutory while the amount receivable under the life insurance policy is contractual. 32. As we have observed the whole scheme of the Act, in relation to the payment of compensation to the claimant, is a beneficial legislation, the intention of the legislature is made more clear by the change of language from what was in Fatal Accidents Act, 1855 and what is brought under Section 110-B of 1939 Act. This is also visible through the provision of Section 168(1) under the Motor Vehicle Act, 1988 and Section 92-A of 1939 Act which fixes the liability on the owner of the vehicle even on no fault. It provides where the death or permanent disablement of any person has resulted from an accident in spite of no fault of the owner of the vehicle, an amount of compensation fixed therein is payable to claimant by such owner of the vehicle. Section 92-B ensures that the claim for compensation under Section 92-A is in addition to any other right to claim compensation in respect whereof under any other provision of this Act or of any other law for the time being in force. This clearly indicates the intention of the legislature which is conferring larger benefit to the claimant. Interpretation of such beneficial legislation is also well settled. Whenever there be two possible interpretations in such statute then the one which subserves the object of legislation, viz., benefit to the subject should be accepted. In the present case, two interpretations have given of this statute, evidenced by two distinct sets of decisions of the various High Courts. We have no hesitation to conclude that the set of decisions, which applied the principle of no deduction of the life insurance amount should be accepted and other set, which interpreted to deduct, is to be rejected. For all these considerations, we have no hesitation to hold that such High Courts were wrong in deducting the amount paid or payable under the life insurance by giving restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intents of the legislature under various provisions of the Motor Vehicles Act, 1939.33. Accordingly, we set aside the impugned judgment dated 9th September, 1985 and restore the judgment of the tribunal dated 29th September, 1980 and hold that the amount received by the claimant on the life insurance of the deceased is not deductible from the compensation computed under the Motor Vehicles Act. The concerned respondent shall make the payment accordingly, if not already paid in terms thereof. ### Response: 1 ### Explanation: accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co- relate to this type of injury or deaths, viz., accidental. If the words pecuniary advantage from whatever source are to be interpreted to mean any form of death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the pecuniary advantage resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, case and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death.This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record herein both the sources, viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned out of ones labour or contribution towards ones wealth, savings, etc. either for himself or for his family, which such person knows, under the law, has to go to his heirs after his death either by succession or under a will could be said to be the pecuniary gain only on the account of ones accidental death. This, of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no co-relation between the two amounts. Not even remotely. How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any co-relation with an amount earned by an individual. Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or any provisions of law.As we have observed the whole scheme of the Act, in relation to the payment of compensation to the claimant, is a beneficial legislation, the intention of the legislature is made more clear by the change of language from what was in Fatal Accidents Act, 1855 and what is brought under Section 110-B of 1939 Act. This is also visible through the provision of Section 168(1) under the Motor Vehicle Act, 1988 and Section 92-A of 1939 Act which fixes the liability on the owner of the vehicle even on no fault. It provides where the death or permanent disablement of any person has resulted from an accident in spite of no fault of the owner of the vehicle, an amount of compensation fixed therein is payable to claimant by such owner of the vehicle. Section 92-B ensures that the claim for compensation under Section 92-A is in addition to any other right to claim compensation in respect whereof under any other provision of this Act or of any other law for the time being in force. This clearly indicates the intention of the legislature which is conferring larger benefit to the claimant. Interpretation of such beneficial legislation is also well settled. Whenever there be two possible interpretations in such statute then the one which subserves the object of legislation, viz., benefit to the subject should be accepted. In the present case, two interpretations have given of this statute, evidenced by two distinct sets of decisions of the various High Courts. We have no hesitation to conclude that the set of decisions, which applied the principle of no deduction of the life insurance amount should be accepted and other set, which interpreted to deduct, is to be rejected. For all these considerations, we have no hesitation to hold that such High Courts were wrong in deducting the amount paid or payable under the life insurance by giving restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intents of the legislature under various provisions ofthe Motor Vehicles Act, 1939.33. Accordingly, we set aside the impugned judgment dated 9th September, 1985 and restore the judgment of the tribunal dated 29th September, 1980 and hold that the amount received by the claimant on the life insurance of the deceased is not deductible from the compensation computed under the Motor Vehicles Act. The concerned respondent shall make the payment accordingly, if not already paid in terms thereof.
State of U.P. & Others Vs. Pawan Kumar Divedi & Others	were part of the Act. In our view, the definition of ?Junior High School? in the 1978 Rules cannot be judicially noticed for the purposes of construction and obligation of the 1978 Act. 43. We are also not persuaded by the submission of Mr. Sunil Gupta that since the expression ?Junior High School? is not defined in the 1978 Act, its meaning can be ascertained from the 1978 Rules by applying the principle that when an expression in a later statute is ambiguous, its meaning can be ascertained from its use and/or meaning in a prior statute or statutory instrument dealing with the same subject matter for the present purpose. On the above principle of interpretation, there is not much challenge. The question is of its applicability to the present case. The 1978 Rules are made by the Governor under the 1972 Act, which do not deal with the aspect of payment of salaries to the teachers and the employees of a recognized school at all. The State Legislature has made a separate enactment, viz., the 1978 Act, for payment of salaries. The definition of ?Junior High School? in the 1978 Rules does not exhaust the scope of the expression ?Junior High School?. Moreover, a prior rule cannot be taken in aid to construe a subsequent enactment. 44. It is important to notice here that recognised Junior High Schools can be of three kinds: (one) having Classes I to VIII, i.e., Classes I to V (Junior Basic School) and so also Classes VI to VIII (Senior Basic School), (two) a school as above and upgraded to High School or intermediate standard and (three) Classes VI to VIII (Senior Basic School) initially with no Junior Basic School (Classes I to V) being part of the said school. 45. As regards the first two categories of Junior High Schools, the applicability of Section 10 of the 1978 Act does not create any difficulty. The debate which has centered round in this group of appeals is in respect of third category of the schools where Classes I to V are added after obtaining recognition to the schools which are recognized and aided for imparting education in Classes VI to VIII. Whether teachers of primary section Classes I to V in such schools are entitled to the benefit of Section 10 of the 1978 Act is the moot question. As noticed, the constitutional obligation of the state to provide for free and compulsory education of children till they complete the age of 14 years is beyond doubt now. The note appended to clause (xxvi), para 1 of the Educational Code (revised edition, 1958), inter alia, provides that Basic Schools include single schools with Classes I to VIII. In our view, if a Junior Basic School (Classes I to V) is added after obtaining necessary recognition to a recognized and aided Senior Basic School (Classes VI to VIII), then surely such Junior Basic School becomes integral part of one school, i.e., Basic School having Classes I to VIII. The expression ?Junior High School? in the 1978 Act is intended to refer to the schools imparting basic education, i.e., education up to VIII class. We do not think it is appropriate to give narrow meaning to the expression ?Junior High School? as contended by the learned senior counsel for the state. That Legislature used the expression Junior High School and not the Basic School as used and defined in the 1972 Act, in our view, is insignificant. The view, which we have taken, is fortified by the fact that in Section 2(j) of the 1978 Act, the expressions defined in the 1972 Act are incorporated. 46. The submission of Mr. P.P. Rao, learned senior counsel for the State of U.P. with reference to the subject School, namely, Riyaz Junior High School (Classes VI to VIII), that the said school was initially a private recognized and aided school and the primary section (Classes I to V) was opened by the management later on after obtaining separate recognition, which was un-aided, the teachers of such primary section, in terms of definition in Rule 2(b) and Rule 4 of the 1975 Rules are not entitled to the benefits of Section 10 of the 1978 Act does not appeal to us for what we have already said above. The view taken by the High Court in the first round in Vinod Sharma1 that Classes I to VIII taught in the institution are one unit, the teachers work under one management and one Head Master and, therefore, teachers of the primary classes cannot be deprived of the benefit of the 1978 Act, cannot be said to be a wrong view. Rather, it is in accord and conformity with the Constitutional scheme relating to free education to the children up to 14 years. 47. Though in the Reference Order, the two-Judge Bench has observed that the High Court in the first round in Vinod Sharma1 did not appreciate that the education at the primary level has been separated from the Junior High School level and separately entrusted under the different enactments to the Board constituted under Section 3 of the 1972 Act and the same Board exercises control over Junior Basic Schools and it was a conscious distinction made by the Legislature between two sets of schools and treat them two separate components and, therefore, Vinod Sharma1 does not take the correct view but we think that the features noted in the reference order do not render the view taken in Vinod Sharma1 bad. We find merit in the argument of Dr. M.P. Raju that the schools having the Junior Basic Schools and the Senior Basic Schools either separately or together are under the same Board, i.e., the Board of Basic Education, as per the 1972 Act. Moreover, any other view may render the provisions of the 1978 Act unconstitutional on the ground of discrimination. In our considered view, any interpretation which may lead to unconstitutionality of the provision must be avoided.	1[ds]On behalf of the appellants, heavy reliance is placed on the definition of ?Junior High School? in the 1978 Rules. Does the definition of ?Junior High School? in the 1978 Rules control the same expression occurring in the 1978 Act? We do not think so. The definition of ?Junior High School? in Rule 2(e) of the 1978 Rules is not incorporated in the 1978 Act either expressly or impliedly. The principle of interpretation that an expression used in a rule or bye-law framed in exercise of power conferred by a statute must have the same meaning as is assigned to it under the statute has no application in a situation such as the present one where the meaning of an expression occurring in a statute is itself to be determined. Obviously that cannot be done with the help of a rule made under a different statuteSection 2(j) of the 1978 Act says that the words and expressions defined in the 1972 Act and not defined in this Act shall have the meanings assigned to them in the 1972 Act. But, the 1972 Act also does not define the expression ?Junior High School?, it merely refers to it as examination. Mr. Sunil Gupta, learned senior counsel for the appellants sought to invoke the principle of interpretation of statutes that Rules made under a statute must be treated for all purposes of construction and obligation exactly as if they were in the Act, and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction and obligation. The invocation of this principle is misplaced. Firstly, because we are not concerned with the construction of an expression in the 1972 Act under which the 1978 Rules have been made. Secondly and more importantly, there is no principle that rules made under a different and distinct statute must be treated for the purposes of construction as if they were part of the Act. In our view, the definition of ?Junior High School? in the 1978 Rules cannot be judicially noticed for the purposes of construction and obligation of the 1978 ActWe are also not persuaded by the submission of Mr. Sunil Gupta that since the expression ?Junior High School? is not defined in the 1978 Act, its meaning can be ascertained from the 1978 Rules by applying the principle that when an expression in a later statute is ambiguous, its meaning can be ascertained from its use and/or meaning in a prior statute or statutory instrument dealing with the same subject matter for the present purpose. On the above principle of interpretation, there is not much challenge. The question is of its applicability to the present case. The 1978 Rules are made by the Governor under the 1972 Act, which do not deal with the aspect of payment of salaries to the teachers and the employees of a recognized school at all. The State Legislature has made a separate enactment, viz., the 1978 Act, for payment of salaries. The definition of ?Junior High School? in the 1978 Rules does not exhaust the scope of the expression ?Junior High School?. Moreover, a prior rule cannot be taken in aid to construe a subsequent enactmentIt is important to notice here that recognised Junior High Schools can be of three kinds: (one) having Classes I to VIII, i.e., Classes I to V (Junior Basic School) and so also Classes VI to VIII (Senior Basic School), (two) a school as above and upgraded to High School or intermediate standard and (three) Classes VI to VIII (Senior Basic School) initially with no Junior Basic School (Classes I to V) being part of the said schoolAs regards the first two categories of Junior High Schools, the applicability of Section 10 of the 1978 Act does not create any difficulty. The debate which has centered round in this group of appeals is in respect of third category of the schools where Classes I to V are added after obtaining recognition to the schools which are recognized and aided for imparting education in Classes VI to VIII.Whether teachers ofprimary section Classes I to V in such schools are entitled to the benefit of Section 10 of the 1978 Act is the moot question. As noticed, the constitutional obligation of the state to provide for free and compulsory education of children till they complete the age of 14 years is beyond doubt now. The note appended to clause (xxvi), para 1 of the Educational Code (revised edition, 1958), inter alia, provides that Basic Schools include single schools with Classes I to VIII. In our view, if a Junior Basic School (Classes I to V) is added after obtaining necessary recognition to a recognized and aided Senior Basic School (Classes VI to VIII), then surely such Junior Basic School becomes integral part of one school, i.e., Basic School having Classes I to VIII. The expression ?Junior High School? in the 1978 Act is intended to refer to the schools imparting basic education, i.e., education up to VIII class. We do not think it is appropriate to give narrow meaning to the expression ?Junior High School? as contended by the learned senior counsel for the state. That Legislature used the expression Junior High School and not the Basic School as used and defined in the 1972 Act, in our view, is insignificant. The view, which we have taken, is fortified by the fact that in Section 2(j) of the 1978 Act, the expressions defined in the 1972 Act are incorporatedThe submission of Mr. P.P. Rao, learned senior counsel for the State of U.P. with reference to the subject School, namely, Riyaz Junior High School (Classes VI to VIII), that the said school was initially a private recognized and aided school and the primary section (Classes I to V) was opened by the management later on after obtaining separate recognition, which was un-aided, the teachers of such primary section, in terms of definition in Rule 2(b) and Rule 4 of the 1975 Rules are not entitled to the benefits of Section 10 of the 1978 Act does not appeal to us for what we have already said above. The view taken by the High Court in the first round in Vinod Sharma1 that Classes I to VIII taught in the institution are one unit, the teachers work under one management and one Head Master and, therefore, teachers of the primary classes cannot be deprived of the benefit of the 1978 Act, cannot be said to be a wrong viewRather, it is in accord and conformity with the Constitutional scheme relating to free education to the children up to 14 yearsThough in the Reference Order, the two-Judge Bench has observed that the High Court in the first round in Vinod Sharma1 did not appreciate that the education at the primary level has been separated from the Junior High School level and separately entrusted under the different enactments to the Board constituted under Section 3 of the 1972 Act and the same Board exercises control over Junior Basic Schools and it was a conscious distinction made by the Legislature between two sets of schools and treat them two separate components and, therefore, Vinod Sharma1 does not take the correct view but we think that the features noted in the reference order do not render the view taken in Vinod Sharma1 bad. We find merit in the argument of Dr. M.P. Raju that the schools having the Junior Basic Schools and the Senior Basic Schools either separately or together are under the same Board, i.e., the Board of Basic Education, as per the 1972 Act. Moreover, any other view may render the provisions of the 1978 Act unconstitutional on the ground of discrimination. In our considered view, any interpretation which may lead to unconstitutionality of the provision must be avoided	1	10,033	1,471	### 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: were part of the Act. In our view, the definition of ?Junior High School? in the 1978 Rules cannot be judicially noticed for the purposes of construction and obligation of the 1978 Act. 43. We are also not persuaded by the submission of Mr. Sunil Gupta that since the expression ?Junior High School? is not defined in the 1978 Act, its meaning can be ascertained from the 1978 Rules by applying the principle that when an expression in a later statute is ambiguous, its meaning can be ascertained from its use and/or meaning in a prior statute or statutory instrument dealing with the same subject matter for the present purpose. On the above principle of interpretation, there is not much challenge. The question is of its applicability to the present case. The 1978 Rules are made by the Governor under the 1972 Act, which do not deal with the aspect of payment of salaries to the teachers and the employees of a recognized school at all. The State Legislature has made a separate enactment, viz., the 1978 Act, for payment of salaries. The definition of ?Junior High School? in the 1978 Rules does not exhaust the scope of the expression ?Junior High School?. Moreover, a prior rule cannot be taken in aid to construe a subsequent enactment. 44. It is important to notice here that recognised Junior High Schools can be of three kinds: (one) having Classes I to VIII, i.e., Classes I to V (Junior Basic School) and so also Classes VI to VIII (Senior Basic School), (two) a school as above and upgraded to High School or intermediate standard and (three) Classes VI to VIII (Senior Basic School) initially with no Junior Basic School (Classes I to V) being part of the said school. 45. As regards the first two categories of Junior High Schools, the applicability of Section 10 of the 1978 Act does not create any difficulty. The debate which has centered round in this group of appeals is in respect of third category of the schools where Classes I to V are added after obtaining recognition to the schools which are recognized and aided for imparting education in Classes VI to VIII. Whether teachers of primary section Classes I to V in such schools are entitled to the benefit of Section 10 of the 1978 Act is the moot question. As noticed, the constitutional obligation of the state to provide for free and compulsory education of children till they complete the age of 14 years is beyond doubt now. The note appended to clause (xxvi), para 1 of the Educational Code (revised edition, 1958), inter alia, provides that Basic Schools include single schools with Classes I to VIII. In our view, if a Junior Basic School (Classes I to V) is added after obtaining necessary recognition to a recognized and aided Senior Basic School (Classes VI to VIII), then surely such Junior Basic School becomes integral part of one school, i.e., Basic School having Classes I to VIII. The expression ?Junior High School? in the 1978 Act is intended to refer to the schools imparting basic education, i.e., education up to VIII class. We do not think it is appropriate to give narrow meaning to the expression ?Junior High School? as contended by the learned senior counsel for the state. That Legislature used the expression Junior High School and not the Basic School as used and defined in the 1972 Act, in our view, is insignificant. The view, which we have taken, is fortified by the fact that in Section 2(j) of the 1978 Act, the expressions defined in the 1972 Act are incorporated. 46. The submission of Mr. P.P. Rao, learned senior counsel for the State of U.P. with reference to the subject School, namely, Riyaz Junior High School (Classes VI to VIII), that the said school was initially a private recognized and aided school and the primary section (Classes I to V) was opened by the management later on after obtaining separate recognition, which was un-aided, the teachers of such primary section, in terms of definition in Rule 2(b) and Rule 4 of the 1975 Rules are not entitled to the benefits of Section 10 of the 1978 Act does not appeal to us for what we have already said above. The view taken by the High Court in the first round in Vinod Sharma1 that Classes I to VIII taught in the institution are one unit, the teachers work under one management and one Head Master and, therefore, teachers of the primary classes cannot be deprived of the benefit of the 1978 Act, cannot be said to be a wrong view. Rather, it is in accord and conformity with the Constitutional scheme relating to free education to the children up to 14 years. 47. Though in the Reference Order, the two-Judge Bench has observed that the High Court in the first round in Vinod Sharma1 did not appreciate that the education at the primary level has been separated from the Junior High School level and separately entrusted under the different enactments to the Board constituted under Section 3 of the 1972 Act and the same Board exercises control over Junior Basic Schools and it was a conscious distinction made by the Legislature between two sets of schools and treat them two separate components and, therefore, Vinod Sharma1 does not take the correct view but we think that the features noted in the reference order do not render the view taken in Vinod Sharma1 bad. We find merit in the argument of Dr. M.P. Raju that the schools having the Junior Basic Schools and the Senior Basic Schools either separately or together are under the same Board, i.e., the Board of Basic Education, as per the 1972 Act. Moreover, any other view may render the provisions of the 1978 Act unconstitutional on the ground of discrimination. In our considered view, any interpretation which may lead to unconstitutionality of the provision must be avoided. ### Response: 1 ### Explanation: distinct statute must be treated for the purposes of construction as if they were part of the Act. In our view, the definition of ?Junior High School? in the 1978 Rules cannot be judicially noticed for the purposes of construction and obligation of the 1978 ActWe are also not persuaded by the submission of Mr. Sunil Gupta that since the expression ?Junior High School? is not defined in the 1978 Act, its meaning can be ascertained from the 1978 Rules by applying the principle that when an expression in a later statute is ambiguous, its meaning can be ascertained from its use and/or meaning in a prior statute or statutory instrument dealing with the same subject matter for the present purpose. On the above principle of interpretation, there is not much challenge. The question is of its applicability to the present case. The 1978 Rules are made by the Governor under the 1972 Act, which do not deal with the aspect of payment of salaries to the teachers and the employees of a recognized school at all. The State Legislature has made a separate enactment, viz., the 1978 Act, for payment of salaries. The definition of ?Junior High School? in the 1978 Rules does not exhaust the scope of the expression ?Junior High School?. Moreover, a prior rule cannot be taken in aid to construe a subsequent enactmentIt is important to notice here that recognised Junior High Schools can be of three kinds: (one) having Classes I to VIII, i.e., Classes I to V (Junior Basic School) and so also Classes VI to VIII (Senior Basic School), (two) a school as above and upgraded to High School or intermediate standard and (three) Classes VI to VIII (Senior Basic School) initially with no Junior Basic School (Classes I to V) being part of the said schoolAs regards the first two categories of Junior High Schools, the applicability of Section 10 of the 1978 Act does not create any difficulty. The debate which has centered round in this group of appeals is in respect of third category of the schools where Classes I to V are added after obtaining recognition to the schools which are recognized and aided for imparting education in Classes VI to VIII.Whether teachers ofprimary section Classes I to V in such schools are entitled to the benefit of Section 10 of the 1978 Act is the moot question. As noticed, the constitutional obligation of the state to provide for free and compulsory education of children till they complete the age of 14 years is beyond doubt now. The note appended to clause (xxvi), para 1 of the Educational Code (revised edition, 1958), inter alia, provides that Basic Schools include single schools with Classes I to VIII. In our view, if a Junior Basic School (Classes I to V) is added after obtaining necessary recognition to a recognized and aided Senior Basic School (Classes VI to VIII), then surely such Junior Basic School becomes integral part of one school, i.e., Basic School having Classes I to VIII. The expression ?Junior High School? in the 1978 Act is intended to refer to the schools imparting basic education, i.e., education up to VIII class. We do not think it is appropriate to give narrow meaning to the expression ?Junior High School? as contended by the learned senior counsel for the state. That Legislature used the expression Junior High School and not the Basic School as used and defined in the 1972 Act, in our view, is insignificant. The view, which we have taken, is fortified by the fact that in Section 2(j) of the 1978 Act, the expressions defined in the 1972 Act are incorporatedThe submission of Mr. P.P. Rao, learned senior counsel for the State of U.P. with reference to the subject School, namely, Riyaz Junior High School (Classes VI to VIII), that the said school was initially a private recognized and aided school and the primary section (Classes I to V) was opened by the management later on after obtaining separate recognition, which was un-aided, the teachers of such primary section, in terms of definition in Rule 2(b) and Rule 4 of the 1975 Rules are not entitled to the benefits of Section 10 of the 1978 Act does not appeal to us for what we have already said above. The view taken by the High Court in the first round in Vinod Sharma1 that Classes I to VIII taught in the institution are one unit, the teachers work under one management and one Head Master and, therefore, teachers of the primary classes cannot be deprived of the benefit of the 1978 Act, cannot be said to be a wrong viewRather, it is in accord and conformity with the Constitutional scheme relating to free education to the children up to 14 yearsThough in the Reference Order, the two-Judge Bench has observed that the High Court in the first round in Vinod Sharma1 did not appreciate that the education at the primary level has been separated from the Junior High School level and separately entrusted under the different enactments to the Board constituted under Section 3 of the 1972 Act and the same Board exercises control over Junior Basic Schools and it was a conscious distinction made by the Legislature between two sets of schools and treat them two separate components and, therefore, Vinod Sharma1 does not take the correct view but we think that the features noted in the reference order do not render the view taken in Vinod Sharma1 bad. We find merit in the argument of Dr. M.P. Raju that the schools having the Junior Basic Schools and the Senior Basic Schools either separately or together are under the same Board, i.e., the Board of Basic Education, as per the 1972 Act. Moreover, any other view may render the provisions of the 1978 Act unconstitutional on the ground of discrimination. In our considered view, any interpretation which may lead to unconstitutionality of the provision must be avoided
Central Bank of India Vs. N.R.C. Limited	situated, was taken over by the Life Insurance Corporation, and thereafter by the Central Bank of India. In view of this judgment, the relationship between the Central Bank of India and the N.R.C. Ltd. as landlord and tenant will continue to be governed under the Bombay Rent Act and now under The Maharashtra Rent Control Act, 1999. 5. Inasmuch as this submission has been raised by Mr. Andhiyarujina, learned senior counsel, we would like to point out that this judgment in Dr. Pophale?s case clarifies the legal position as laid down by this Court earlier in the case of Ashoka Marketing Ltd. & Anr. vs. Punjab National Bank & Ors. reported in 1990 (4) SCC 406. That judgment has held that the Public Premises Act and the State Rent Control Acts were both referable to the concurrent list, and would be valid in their spheres, but Public Premises Act will prevail to the extent of any repugnancy. Therefore, this Court held earlier in the case of Banatwala and Company vs. Life Insurance Corporation of India & Anr. reported in 2011 (13) SCC 446 that to the extent the Public Premises Act covers the relationship between the landlord and the tenant, namely, for eviction of unauthorized occupants and for recovery of arrears of rent, the Public Premises Act will apply and not in other aspects of their relationship. This is why in Banatwalas case (supra) it was held that the application for the maintenance of the premises would lie to the Court of Small Causes in Mumbai, and it will not be hit by the provisions of the Public Premises Act. The issue in Dr. Suhas H. Pophales case was as to when the Public Premises Act will apply, and it was laid down that the Act will not apply prior to the Act coming into force, and until the premises concerned belonged to the concerned public corporation, whichever is the later date. This was on the footing that if there are any welfare provisions in the statutes, the legislature cannot be intended to have taken them away if there is no repugnancy. 6. In Dr. Suhas H. Pophales case the judgment of this Court in the case of Rashtriya Mill Mazdoor Sangh, Nagpur vs. The Model Mills, Nagpur and Anr. reported in AIR 1984 S.C. 1813 was specifically referred in paragraph No.29 to point out that if there is any welfare provision in a statute it cannot be taken away. This was in the context of the Payment of Bonus Act. It was also held that the judgment in M/s Jain Ink Manufacturing Company vs. Life Insurance Corporation of India & Anr. reported in 1980 (4) SCC 435 did not consider the issue of protection in a welfare legislation to the tenant, prior to the premises becoming public premises, and the issue of retrospectivity. So also these issues were not in consideration in the case of Ashoka Marketing Ltd. (supra). In paragraph 49 of Dr. Pophale?s case, this Court discussed the inter relation between Article 254(1) and 254 (2) of the Constitution, and specifically pointed out that the Government and the statutory corporations were taken out of the protective umbrella when the Maharashtra Rent Control Act was passed, and so they would be covered under the Public Premises Act, but of course from the date when the Act comes into force or from the date when the premises belong to the concerned Government corporation. What applies to the landlord, equally applies to the tenants. 7. As far as the present action initiated by the Central Bank of India is concerned, the notice to evict was issued on 26th June, 2007, much after the Maharashtra Rent Control Act came into force on 31.3.2000. This Act clearly lays down that it shall not apply to Public Ltd. Companies having a paid up share capital of Rs. One Crore or more. Section 3 (1) (b) of the Act reads as follows:- "3 Exemption 1) This act shall not apply a) ........ (b) To any premises let or sub-let to banks, or any Public Sector Undertakings or any Corporation established by or under any Central or State Act, or foreign missions, international agencies multinational companies, and private limited companies and public limited companies having a paid up share capital of rupees one crore or more." There is no dispute that the respondent N.R.C. Ltd. is a company having a paid up share capital of more than rupees one crore. That being so, the protective umbrella of the State Rent Control Act which was available to the N.R.C. Ltd. would not be available to it beyond 31.3.2000. That being so, the provisions of Public Premises Act would clearly apply to these premise on or after 31.3.2000 for the purposes of eviction of unauthorised occupants and therefore, the action initiated by the Central Bank of India could not be faulted with. 8. Mr. Andhiyarujina, learned senior counsel, appearing for the N.R.C. Ltd. has drawn our attention to the fact that the company?s affairs are before the BIFR, and it also had correspondence with the trade union representing the employees, but the employees union was not ready to help in any manner. Those are different aspects, and as pointed out by Mr. Raju Ramachandran, learned senior counsel, the financial difficulties of N.R.C. Ltd. were brought to the notice of this Court by filing the I.A.No.2 of 2014 which was not pressed, and that being so, the issue cannot be allowed to be re-agitated. A tenant or an occupant cannot be permitted to be on the premises of the landlord without paying the rent, or the occupation charges, which is what N.R.C. Ltd. is attempting to do. 9. This being the position, in our view, the Central Bank will be entitled to take back the possession of the concerned premises with respect to which the order of eviction has been passed, and we permit it to resume the same by taking the help of police if required. 10.	1[ds]7. As far as the present action initiated by the Central Bank of India is concerned, the notice to evict was issued on 26th June, 2007, much after the Maharashtra Rent Control Act came into force on 31.3.2000. This Act clearly lays down that it shall not apply to Public Ltd. Companies having a paid up share capital of Rs. One Crore or more. Section 3 (1) (b) of the Act reads as follows:-1) This act shall not apply(b) To any premises let or sub-let to banks, or any Public Sector Undertakings or any Corporation established by or under any Central or State Act, or foreign missions, international agencies multinational companies, and private limited companies and public limited companies having a paid up share capital of rupees one crore or more."There is no dispute that the respondent N.R.C. Ltd. is a company having a paid up share capital of more than rupees one crore. That being so, the protective umbrella of the State Rent Control Act which was available to the N.R.C. Ltd. would not be available to it beyond 31.3.2000. That being so, the provisions of Public Premises Act would clearly apply to these premise on or after 31.3.2000 for the purposes of eviction of unauthorised occupants and therefore, the action initiated by the Central Bank of India could not be faulted with8. Mr. Andhiyarujina, learned senior counsel, appearing for the N.R.C. Ltd. has drawn our attention to the fact that the company?s affairs are before the BIFR, and it also had correspondence with the trade union representing the employees, but the employees union was not ready to help in any manner. Those are different aspects, and as pointed out by Mr. Raju Ramachandran, learned senior counsel, the financial difficulties of N.R.C. Ltd. were brought to the notice of this Court by filing the I.A.No.2 of 2014 which was not pressed, and that being so, the issue cannot be allowed to be re-agitated. A tenant or an occupant cannot be permitted to be on the premises of the landlord without paying the rent, or the occupation charges, which is what N.R.C. Ltd. is attempting to do	1	1,974	413	### 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: situated, was taken over by the Life Insurance Corporation, and thereafter by the Central Bank of India. In view of this judgment, the relationship between the Central Bank of India and the N.R.C. Ltd. as landlord and tenant will continue to be governed under the Bombay Rent Act and now under The Maharashtra Rent Control Act, 1999. 5. Inasmuch as this submission has been raised by Mr. Andhiyarujina, learned senior counsel, we would like to point out that this judgment in Dr. Pophale?s case clarifies the legal position as laid down by this Court earlier in the case of Ashoka Marketing Ltd. & Anr. vs. Punjab National Bank & Ors. reported in 1990 (4) SCC 406. That judgment has held that the Public Premises Act and the State Rent Control Acts were both referable to the concurrent list, and would be valid in their spheres, but Public Premises Act will prevail to the extent of any repugnancy. Therefore, this Court held earlier in the case of Banatwala and Company vs. Life Insurance Corporation of India & Anr. reported in 2011 (13) SCC 446 that to the extent the Public Premises Act covers the relationship between the landlord and the tenant, namely, for eviction of unauthorized occupants and for recovery of arrears of rent, the Public Premises Act will apply and not in other aspects of their relationship. This is why in Banatwalas case (supra) it was held that the application for the maintenance of the premises would lie to the Court of Small Causes in Mumbai, and it will not be hit by the provisions of the Public Premises Act. The issue in Dr. Suhas H. Pophales case was as to when the Public Premises Act will apply, and it was laid down that the Act will not apply prior to the Act coming into force, and until the premises concerned belonged to the concerned public corporation, whichever is the later date. This was on the footing that if there are any welfare provisions in the statutes, the legislature cannot be intended to have taken them away if there is no repugnancy. 6. In Dr. Suhas H. Pophales case the judgment of this Court in the case of Rashtriya Mill Mazdoor Sangh, Nagpur vs. The Model Mills, Nagpur and Anr. reported in AIR 1984 S.C. 1813 was specifically referred in paragraph No.29 to point out that if there is any welfare provision in a statute it cannot be taken away. This was in the context of the Payment of Bonus Act. It was also held that the judgment in M/s Jain Ink Manufacturing Company vs. Life Insurance Corporation of India & Anr. reported in 1980 (4) SCC 435 did not consider the issue of protection in a welfare legislation to the tenant, prior to the premises becoming public premises, and the issue of retrospectivity. So also these issues were not in consideration in the case of Ashoka Marketing Ltd. (supra). In paragraph 49 of Dr. Pophale?s case, this Court discussed the inter relation between Article 254(1) and 254 (2) of the Constitution, and specifically pointed out that the Government and the statutory corporations were taken out of the protective umbrella when the Maharashtra Rent Control Act was passed, and so they would be covered under the Public Premises Act, but of course from the date when the Act comes into force or from the date when the premises belong to the concerned Government corporation. What applies to the landlord, equally applies to the tenants. 7. As far as the present action initiated by the Central Bank of India is concerned, the notice to evict was issued on 26th June, 2007, much after the Maharashtra Rent Control Act came into force on 31.3.2000. This Act clearly lays down that it shall not apply to Public Ltd. Companies having a paid up share capital of Rs. One Crore or more. Section 3 (1) (b) of the Act reads as follows:- "3 Exemption 1) This act shall not apply a) ........ (b) To any premises let or sub-let to banks, or any Public Sector Undertakings or any Corporation established by or under any Central or State Act, or foreign missions, international agencies multinational companies, and private limited companies and public limited companies having a paid up share capital of rupees one crore or more." There is no dispute that the respondent N.R.C. Ltd. is a company having a paid up share capital of more than rupees one crore. That being so, the protective umbrella of the State Rent Control Act which was available to the N.R.C. Ltd. would not be available to it beyond 31.3.2000. That being so, the provisions of Public Premises Act would clearly apply to these premise on or after 31.3.2000 for the purposes of eviction of unauthorised occupants and therefore, the action initiated by the Central Bank of India could not be faulted with. 8. Mr. Andhiyarujina, learned senior counsel, appearing for the N.R.C. Ltd. has drawn our attention to the fact that the company?s affairs are before the BIFR, and it also had correspondence with the trade union representing the employees, but the employees union was not ready to help in any manner. Those are different aspects, and as pointed out by Mr. Raju Ramachandran, learned senior counsel, the financial difficulties of N.R.C. Ltd. were brought to the notice of this Court by filing the I.A.No.2 of 2014 which was not pressed, and that being so, the issue cannot be allowed to be re-agitated. A tenant or an occupant cannot be permitted to be on the premises of the landlord without paying the rent, or the occupation charges, which is what N.R.C. Ltd. is attempting to do. 9. This being the position, in our view, the Central Bank will be entitled to take back the possession of the concerned premises with respect to which the order of eviction has been passed, and we permit it to resume the same by taking the help of police if required. 10. ### Response: 1 ### Explanation: 7. As far as the present action initiated by the Central Bank of India is concerned, the notice to evict was issued on 26th June, 2007, much after the Maharashtra Rent Control Act came into force on 31.3.2000. This Act clearly lays down that it shall not apply to Public Ltd. Companies having a paid up share capital of Rs. One Crore or more. Section 3 (1) (b) of the Act reads as follows:-1) This act shall not apply(b) To any premises let or sub-let to banks, or any Public Sector Undertakings or any Corporation established by or under any Central or State Act, or foreign missions, international agencies multinational companies, and private limited companies and public limited companies having a paid up share capital of rupees one crore or more."There is no dispute that the respondent N.R.C. Ltd. is a company having a paid up share capital of more than rupees one crore. That being so, the protective umbrella of the State Rent Control Act which was available to the N.R.C. Ltd. would not be available to it beyond 31.3.2000. That being so, the provisions of Public Premises Act would clearly apply to these premise on or after 31.3.2000 for the purposes of eviction of unauthorised occupants and therefore, the action initiated by the Central Bank of India could not be faulted with8. Mr. Andhiyarujina, learned senior counsel, appearing for the N.R.C. Ltd. has drawn our attention to the fact that the company?s affairs are before the BIFR, and it also had correspondence with the trade union representing the employees, but the employees union was not ready to help in any manner. Those are different aspects, and as pointed out by Mr. Raju Ramachandran, learned senior counsel, the financial difficulties of N.R.C. Ltd. were brought to the notice of this Court by filing the I.A.No.2 of 2014 which was not pressed, and that being so, the issue cannot be allowed to be re-agitated. A tenant or an occupant cannot be permitted to be on the premises of the landlord without paying the rent, or the occupation charges, which is what N.R.C. Ltd. is attempting to do
M/S Rasiklal Kantilal & Co Vs. Board Of Trustee Of Port Of Bombay	person claiming delivery of the goods acquired title to the goods only towards the end of the period of the bailment of the goods with the 1st respondent would result in driving the 1st respondent to recover the amount due to it from the bailor or his agent who may or may not be within the jurisdiction of the municipal courts of this country (by resorting to a cumbersome procedure of litigation). The 1st submission is, therefore, rejected. 48A. Now, we deal with the second submission. The appellant claims that he is entitled to complete remission of the demurrage. According to the appellant, the facts of the case not only justify but also demand the exercise of the discretion conferred upon the 1st respondent under Section 53 of the Act to grant a complete remission of the demurrage in question. According to the appellant, the Government of India issued certain guidelines It is not very clear from the record whether these guidelines were issued by the Government of India or guidelines framed by the 1st respondent. In the written submissions, the appellant describes the guidelines framed by the Government of India whereas under the judgment under appeal at para 24, it appears that the appellant’s case before the High Court was that they were guidelines framed by the 1st respondent. “….He would submit that the guidelines framed by the BPT itself provides for remission asked for by the petitioners when the detention of the goods by the Custom was for bonafide operation of ITC formalities.” Per contra the case of the 1st respondent before the High Court regarding the guidelines appears to be “…..remission is granted on ex-gratia basis, that too, by exercising discretion on the basis of guidelines issued by the Union of India and adopted by resolution passed by respondent No. 1 along with Custom Department.” The High Court did not record any categorical finding in this regard except stating “47. In exercise of statutory powers under section 101 of the Major Port Trust Act guidelines for remission of demurrage charges are framed.” dated 24.1.1992 which structure the discretion of the Port Trust in the matter of granting remission. 49. We notice that the text of the guidelines permit granting of remission upto 80 per cent of demurrage in appropriate cases. We also notice that the cap of 80 per cent is not absolute. The 1st respondent can even grant complete remission in appropriate cases. (i) Admittedly, the 1st respondent granted remission to an extent of Rs.90,52,535.00 (approximately) out of the total claim towards demurrage of Rs.2,81,67,333.00. (ii) The liability to pay demurrage arose because of the non-clearance of the goods from the 1st respondent’s property for a considerable period of time. (iii) The period could be divided into two phases: Phase I before the point of time when appellant started claiming the right to take delivery; Delay in taking delivery is attributable purely to the failure of the original consignee. The appellant clearly knew or at least ought to have known, when he purchased the goods that the 1st respondent would demand demurrage. The appellant as a person claiming through the consignor is not entitled in law to claim any right of remission on the ground that he did not have any interest or title in the goods for such period. AND Phase II after the present appellant’s right to take delivery of goods came into existence. Such delay occurred because of the time taken in ensuring that the appellant complied with the various statutory obligations to import goods such as amendment of the IGM etc. 50. The fact that the appellant was not permitted to clear the goods because of the pendency of some proceedings initiated by the customs authorities by itself does not create a right of remission in favour of the appellant. See International Airports Authority of India v. Grand Slam International, (1995) 3 SCC 151 Though it may constitute a relevant circumstance for considering granting remission if the 1st respondent so chooses as a matter of policy. As a matter of fact, remission of a part of the demurrage was granted by the 1st respondent. 51. Now, we come to the submission that the respondent’s decision to decline remission to the appellant is discriminatory because remission was granted in the case of a similarly situated consignee called Gilt Pack. Unfortunately, though the High Court noted the rival submission in the context of the allegation of discrimination, it did not record any conclusion on that count. 52. From the facts available on record, we are of the opinion that firstly, the cases of Gilt Pack and appellant are not identical. Gilt Pack was the case where the original consignee sold the goods to a third party on high seas even before their arrival into India. It so transpired that the purchaser did not have an appropriate license under the relevant law to import the goods. In view of the said problem, the goods were detained for some time and eventually the original consignee himself cleared the goods The full factual background as to how it all happened is not relevant for our purpose.. It is in the said circumstances Gilt Pack was granted remission. We are not concerned with the question whether the discretion was appropriately exercised in the case of Gilt Pack. We are only on the question whether the facts of Gilt Pack and the appellant herein are identical. 53. However, we must make it clear that the authority of the 1st respondent to grant or decline remission of any amount due towards any rate payable under THE ACT must be based on rational consideration and a sound policy. Such a requirement is inherent in the fact that 1st respondent is a statutory body discharging important statutory obligations. 1st respondent could not bring anything on record to our notice which demonstrates the reasons for declining remission as claimed by the appellant nor any clear policy of the respondent which regulates the discretion.	1[ds]19. It is apparent from the language of Section 48 that though it authorises BOARDS to stipulate and collect rates for various services to be rendered, the Act is silent regarding persons from whom such rates could be collected. It is pertinent to note that since services contemplated under Sections 49A, 49B, 50A and 50B are services exclusively to be rendered to the vessel (ship). It is reasonable to interpret that only the ship and its agents are liable to pay the rates for those services. We are fortified in our conclusion by the language of Sections 50A50A. Port-due on vessels in ballast.— A vessel entering any port in ballast and not carrying passengers shall be charged with a port-due at a rate to be determined by the Authority and not exceeding three-fourths of the rate with which she would otherwise beon 50B. Port-due on vessels not discharging or taking in cargo.— When a vessel enters a port but does not discharge or take in any cargo or passengers therein, (within the exception of such unshipment and reshipment as may be necessary for purposes of repair), she shall be charged with a port-due at a rate to be determined by the authority and not exceeding half the rate with which she would otherwise bemake it express when they sayn Maritime Law by a long established practice a vessel is always referred to as22. It appears to us that in view of the fact Section 42(2) only contemplatesof the goods but notof goods, Parliament conferred on BOARDS the authority tothe goods of which charge is taken of. The purpose behind the twin declarations contained in Section 59 is a little intriguing. However, we do not wish to express any final opinion in this regard as no submission in this regard is made and such an examination is not necessary for deciding the case on hand.In our opinion, though the question was not raised before the High Court, the appellant need not be barred from raising this question before us because it is a pure and substantial question of law. No enquiry into any fact is really necessary to decide the said question of law. The only fact which is not clearly established on record is the point of time at which the title in the goods passed to the appellant. But, in our opinion (for the reasons to be given later), that fact is wholly irrelevant for determining the authority of the 1st respondent to collect demurrage from the appellant. We, therefore, proceed to examine the correctness of the submission.With respect, we agree with the conclusions recorded by this Court in the cases of ROWTHER-II and Forbes that a BOARD could recover the rates due, either from the steamer agent or the consignee but we are of the humble opinion that enquiry into the question as to when the property in the goods passes to the consignee is nothave already noticed the submission of the appellant that the appellant is not liable to make payment of any demurrage incurred prior to the acquisition of title in the goods by the appellant. Enquiry into the title of the goods and the point of time at which the title passes to the consignee is equally irrelevant for determining the authority of a BOARD to recover the amounts due to it under THE ACT.Enquiry into the relationship between either the BOARD, the consignor of goods, the owner of the vessel and the steamer agent on one hand or the consignee and the BOARD on the other, in our opinion, is wholly irrelevant in examining the right of the BOARD to recover the amounts due towards the rates or rent for services rendered with respect to the goods. The right of the BOARD is unquestionable. The only question is: fromwhom can the BOARD recover– we emphasise the question is not who is liable. Depending on the nature of the relationship between the consignor and consignee, the liability may befall either ofobligation of the bailee to return the bailed goods when the purpose of bailment is accomplished and the obligation of the bailor to pay the baileenecessary expenses incurred by him for the purpose of thein our opinion would attend not only a bailment by contract but every kind ofthis juncture, we must point out that the declaration under Section 42(7)42 (7) After any goods have been taken charge of and a receipt given for them under this section, no liability for any loss or damage which may occur to them shall attach to any person to whom a receipt has been given or to the master or owner of the vessel from which the goods have been landed orthe owner of the ship and his agents is limited only to the obligations owed by the bailor to the consignee not to the sub bailor like the 1st respondent.On the other hand, in the light of the legal position declared by the Constitution Bench in ROWTHER-I, the 1st respondent is a sub-bailee of the goods bailed by consignor (bailor) to the ship-owner (bailee). The goods are bailed through the agent (steamer agent) of the bailee. The appellant is only a person claiming through the bailor, without any direct contractual relationship with the 1st respondent.It can be seen from the above that the 1856 Act enacts a fiction that the consignee to whom the property in the goods shall pass shall beto the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made withBill of lading is evidence of a contracteen the shipper (consignor) and the owner of the ship by which the owner of the ship agrees to transport the goods delivered by the consignor to a specified destination and deliver it to the consignee. Delivery of goods pursuant to a bill of lading creates a bailment between the shipper and the owner of the ship. Obviously the legislature knew that a consignee under a bill of lading is a 3rd party to the contract but intrinsically connected with the transaction and thought it necessary to specify the rights and obligations of the consignee. Hence, the fiction under the 1856 Act, that the moment the property in goods passes to the consignee, the liabilities of the consignee in respect of such goods would be the same as those of the consignor, as if the contract contained in the bill of lading had been made with the consignee.The consequence is that the 1st respondent (sub-bailee) would be entitled to enforce its rights flowing from the Bailment between the ship owner and the 1st respondent against the consignee and recover expenses incurred by it in connection with the bailment from the consignee. The terms and conditions of the contract between the consignor or person claiming delivery of the goods are irrelevant for determining the right of the 1st respondent to recover its dues. The obligations/liability of the consignee is determined by the statute. But the said obligation is not exclusive to the consignee. The consignor (bailor) is not relieved of the obligation to pay by virtue of Section 158 of the Contract Act the expenses incurred by the 1st respondent. Nothing is brought to our notice to hold otherwise. Atthis juncture, we must point out that the declaration under Section 42(7)2 (7) After any goods have been taken charge of and a receipt given for them under this section, no liability for any loss or damage which may occur to them shall attach to any person to whom a receipt has been given or to the master or owner of the vessel from which the goods have been landed orthe owner of the ship and his agents is limited only to the obligations owed by the bailor to the consignee not to the sub bailor like the 1st respondent.If the ACT authorises the 1st respondent to recover its dues by bailing the goods under bailment, in those cases where the consignee does not turn up to take the delivery of the goods within the time stipulated under Sections 61 or 62 of the ACT, to deny the right to demand and recover the amounts due from the consignee when he seeks delivery of the goods under bailment would be illogical and inconsistent with the scheme of theright, in our view, undoubtedly enables the 1st respondent to claim various amounts due to it, from any person claiming delivery of the goods either the bailor or a person claiming through the bailor for the services rendered w.r.t. the goods. Denying such a right on the ground that the person claiming delivery of the goods acquired title to the goods only towards the end of the period of the bailment of the goods with the 1st respondent would result in driving the 1st respondent to recover the amount due to it from the bailor or his agent who may or may not be within the jurisdiction of the municipal courts of this country (by resorting to a cumbersome procedure of1st submission is, therefore, rejected.Now, we deal with the second submission. The appellant claims that he is entitled to complete remission of the demurrage. According to the appellant, the facts of the case not only justify but also demand the exercise of the discretion conferred upon the 1st respondent under Section 53 of the Act to grant a complete remission of the demurrage in question. According to the appellant, the Government of India issued certain guidelinesis not very clear from the record whether these guidelines were issued by the Government of India or guidelines framed by the 1st respondent. In the written submissions, the appellant describes the guidelines framed by the Government of India whereas under the judgment under appeal at para 24, it appears that thecase before the High Court was that they were guidelines framed by the 1st respondent.We notice that the text of the guidelines permit granting of remission upto 80 per cent of demurrage in appropriate cases. We also notice that the cap of 80 per cent is not absolute. The 1st respondent can even grant complete remission in appropriate cases.The fact that the appellant was not permitted to clear the goods because of the pendency of some proceedings initiated by the customs authorities by itself does not create a right of remission in favour of the appellant.International Airports Authority of India v. Grand Slam International, (1995) 3 SCCit may constitute a relevant circumstance for considering granting remission if the 1st respondent so chooses as a matter of policy. As a matter of fact, remission of a part of the demurrage was granted by the 1st respondent.Now, we come to the submission that thedecision to decline remission to the appellant is discriminatory because remission was granted in the case of a similarly situated consignee called Gilt Pack. Unfortunately, though the High Court noted the rival submission in the context of the allegation of discrimination, it did not record any conclusion on that count.From the facts available on record, we are of the opinion that firstly, the cases of Gilt Pack and appellant are not identical. Gilt Pack was the case where the original consignee sold the goods to a third party on high seas even before their arrival into India. It so transpired that the purchaser did not have an appropriate license under the relevant law to import the goods. In view of the said problem, the goods were detained for some time and eventually the original consignee himself cleared the goodsfull factual background as to how it all happened is not relevant for our purpose.It is in the said circumstances Gilt Pack was granted remission. We are not concerned with the question whether the discretion was appropriately exercised in the case of Gilt Pack. We are only on the question whether the facts of Gilt Pack and the appellant herein are identical.However, we must make it clear that the authority of the 1st respondent to grant or decline remission of any amount due towards any rate payable under THE ACT must be based on rational consideration and a sound policy. Such a requirement is inherent in the fact that 1st respondent is a statutory body discharging important statutory obligations. 1st respondent could not bring anything on record to our notice which demonstrates the reasons for declining remission as claimed by the appellant nor any clear policy of the respondent which regulates the discretion.	1	12,285	2,215	### 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: person claiming delivery of the goods acquired title to the goods only towards the end of the period of the bailment of the goods with the 1st respondent would result in driving the 1st respondent to recover the amount due to it from the bailor or his agent who may or may not be within the jurisdiction of the municipal courts of this country (by resorting to a cumbersome procedure of litigation). The 1st submission is, therefore, rejected. 48A. Now, we deal with the second submission. The appellant claims that he is entitled to complete remission of the demurrage. According to the appellant, the facts of the case not only justify but also demand the exercise of the discretion conferred upon the 1st respondent under Section 53 of the Act to grant a complete remission of the demurrage in question. According to the appellant, the Government of India issued certain guidelines It is not very clear from the record whether these guidelines were issued by the Government of India or guidelines framed by the 1st respondent. In the written submissions, the appellant describes the guidelines framed by the Government of India whereas under the judgment under appeal at para 24, it appears that the appellant’s case before the High Court was that they were guidelines framed by the 1st respondent. “….He would submit that the guidelines framed by the BPT itself provides for remission asked for by the petitioners when the detention of the goods by the Custom was for bonafide operation of ITC formalities.” Per contra the case of the 1st respondent before the High Court regarding the guidelines appears to be “…..remission is granted on ex-gratia basis, that too, by exercising discretion on the basis of guidelines issued by the Union of India and adopted by resolution passed by respondent No. 1 along with Custom Department.” The High Court did not record any categorical finding in this regard except stating “47. In exercise of statutory powers under section 101 of the Major Port Trust Act guidelines for remission of demurrage charges are framed.” dated 24.1.1992 which structure the discretion of the Port Trust in the matter of granting remission. 49. We notice that the text of the guidelines permit granting of remission upto 80 per cent of demurrage in appropriate cases. We also notice that the cap of 80 per cent is not absolute. The 1st respondent can even grant complete remission in appropriate cases. (i) Admittedly, the 1st respondent granted remission to an extent of Rs.90,52,535.00 (approximately) out of the total claim towards demurrage of Rs.2,81,67,333.00. (ii) The liability to pay demurrage arose because of the non-clearance of the goods from the 1st respondent’s property for a considerable period of time. (iii) The period could be divided into two phases: Phase I before the point of time when appellant started claiming the right to take delivery; Delay in taking delivery is attributable purely to the failure of the original consignee. The appellant clearly knew or at least ought to have known, when he purchased the goods that the 1st respondent would demand demurrage. The appellant as a person claiming through the consignor is not entitled in law to claim any right of remission on the ground that he did not have any interest or title in the goods for such period. AND Phase II after the present appellant’s right to take delivery of goods came into existence. Such delay occurred because of the time taken in ensuring that the appellant complied with the various statutory obligations to import goods such as amendment of the IGM etc. 50. The fact that the appellant was not permitted to clear the goods because of the pendency of some proceedings initiated by the customs authorities by itself does not create a right of remission in favour of the appellant. See International Airports Authority of India v. Grand Slam International, (1995) 3 SCC 151 Though it may constitute a relevant circumstance for considering granting remission if the 1st respondent so chooses as a matter of policy. As a matter of fact, remission of a part of the demurrage was granted by the 1st respondent. 51. Now, we come to the submission that the respondent’s decision to decline remission to the appellant is discriminatory because remission was granted in the case of a similarly situated consignee called Gilt Pack. Unfortunately, though the High Court noted the rival submission in the context of the allegation of discrimination, it did not record any conclusion on that count. 52. From the facts available on record, we are of the opinion that firstly, the cases of Gilt Pack and appellant are not identical. Gilt Pack was the case where the original consignee sold the goods to a third party on high seas even before their arrival into India. It so transpired that the purchaser did not have an appropriate license under the relevant law to import the goods. In view of the said problem, the goods were detained for some time and eventually the original consignee himself cleared the goods The full factual background as to how it all happened is not relevant for our purpose.. It is in the said circumstances Gilt Pack was granted remission. We are not concerned with the question whether the discretion was appropriately exercised in the case of Gilt Pack. We are only on the question whether the facts of Gilt Pack and the appellant herein are identical. 53. However, we must make it clear that the authority of the 1st respondent to grant or decline remission of any amount due towards any rate payable under THE ACT must be based on rational consideration and a sound policy. Such a requirement is inherent in the fact that 1st respondent is a statutory body discharging important statutory obligations. 1st respondent could not bring anything on record to our notice which demonstrates the reasons for declining remission as claimed by the appellant nor any clear policy of the respondent which regulates the discretion. ### Response: 1 ### Explanation: been made with the consignee.The consequence is that the 1st respondent (sub-bailee) would be entitled to enforce its rights flowing from the Bailment between the ship owner and the 1st respondent against the consignee and recover expenses incurred by it in connection with the bailment from the consignee. The terms and conditions of the contract between the consignor or person claiming delivery of the goods are irrelevant for determining the right of the 1st respondent to recover its dues. The obligations/liability of the consignee is determined by the statute. But the said obligation is not exclusive to the consignee. The consignor (bailor) is not relieved of the obligation to pay by virtue of Section 158 of the Contract Act the expenses incurred by the 1st respondent. Nothing is brought to our notice to hold otherwise. Atthis juncture, we must point out that the declaration under Section 42(7)2 (7) After any goods have been taken charge of and a receipt given for them under this section, no liability for any loss or damage which may occur to them shall attach to any person to whom a receipt has been given or to the master or owner of the vessel from which the goods have been landed orthe owner of the ship and his agents is limited only to the obligations owed by the bailor to the consignee not to the sub bailor like the 1st respondent.If the ACT authorises the 1st respondent to recover its dues by bailing the goods under bailment, in those cases where the consignee does not turn up to take the delivery of the goods within the time stipulated under Sections 61 or 62 of the ACT, to deny the right to demand and recover the amounts due from the consignee when he seeks delivery of the goods under bailment would be illogical and inconsistent with the scheme of theright, in our view, undoubtedly enables the 1st respondent to claim various amounts due to it, from any person claiming delivery of the goods either the bailor or a person claiming through the bailor for the services rendered w.r.t. the goods. Denying such a right on the ground that the person claiming delivery of the goods acquired title to the goods only towards the end of the period of the bailment of the goods with the 1st respondent would result in driving the 1st respondent to recover the amount due to it from the bailor or his agent who may or may not be within the jurisdiction of the municipal courts of this country (by resorting to a cumbersome procedure of1st submission is, therefore, rejected.Now, we deal with the second submission. The appellant claims that he is entitled to complete remission of the demurrage. According to the appellant, the facts of the case not only justify but also demand the exercise of the discretion conferred upon the 1st respondent under Section 53 of the Act to grant a complete remission of the demurrage in question. According to the appellant, the Government of India issued certain guidelinesis not very clear from the record whether these guidelines were issued by the Government of India or guidelines framed by the 1st respondent. In the written submissions, the appellant describes the guidelines framed by the Government of India whereas under the judgment under appeal at para 24, it appears that thecase before the High Court was that they were guidelines framed by the 1st respondent.We notice that the text of the guidelines permit granting of remission upto 80 per cent of demurrage in appropriate cases. We also notice that the cap of 80 per cent is not absolute. The 1st respondent can even grant complete remission in appropriate cases.The fact that the appellant was not permitted to clear the goods because of the pendency of some proceedings initiated by the customs authorities by itself does not create a right of remission in favour of the appellant.International Airports Authority of India v. Grand Slam International, (1995) 3 SCCit may constitute a relevant circumstance for considering granting remission if the 1st respondent so chooses as a matter of policy. As a matter of fact, remission of a part of the demurrage was granted by the 1st respondent.Now, we come to the submission that thedecision to decline remission to the appellant is discriminatory because remission was granted in the case of a similarly situated consignee called Gilt Pack. Unfortunately, though the High Court noted the rival submission in the context of the allegation of discrimination, it did not record any conclusion on that count.From the facts available on record, we are of the opinion that firstly, the cases of Gilt Pack and appellant are not identical. Gilt Pack was the case where the original consignee sold the goods to a third party on high seas even before their arrival into India. It so transpired that the purchaser did not have an appropriate license under the relevant law to import the goods. In view of the said problem, the goods were detained for some time and eventually the original consignee himself cleared the goodsfull factual background as to how it all happened is not relevant for our purpose.It is in the said circumstances Gilt Pack was granted remission. We are not concerned with the question whether the discretion was appropriately exercised in the case of Gilt Pack. We are only on the question whether the facts of Gilt Pack and the appellant herein are identical.However, we must make it clear that the authority of the 1st respondent to grant or decline remission of any amount due towards any rate payable under THE ACT must be based on rational consideration and a sound policy. Such a requirement is inherent in the fact that 1st respondent is a statutory body discharging important statutory obligations. 1st respondent could not bring anything on record to our notice which demonstrates the reasons for declining remission as claimed by the appellant nor any clear policy of the respondent which regulates the discretion.
Swapnil Prajapati and Ors Vs. Sagar Suresh Katkar and Ors	1. The present petition is filed under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash the First Information Report No.217 of 2019 dated 30/05/2019 registered with Kasturba Sub Police Station, for the offences punishable under Sections 417, 419, 420 r/w section 34 of the Indian Penal Code and under Sections 66(c) and 66(d) of the Information Technology (Amendment) Act, 2008. 2. The brief facts of the present case are as under:- The Petitioners herein were either the Directors and/or employees of a company namely M/s. High Brow Market Research Investment Advisor Pvt. Ltd., at some time or the other. The Respondent No.1 is the First Informant as whose instance the FIR in question was registered. 3. It is the case of the Petitioners that the Petitioner Nos.1 and 3 were Directors of the said Company from the period 26/12/2011 to 01/07/2017 and thereafter they resigned. The Petitioner No.5, was an employee of the Company and had absolutely no role to play in the day to day affairs of the Company and /or conduct of it, as such the Petitioners did not have any role in the transactions, which took place between Respondent No.1 and the Company. 4. It is the case of the Petitioners that on 30/05/2019 Respondent No.1 lodged a police complaint alleging therein that because of misrepresentation of the accused persons named in the FIR, the Informant had invested huge amount in their bogus schemes and thereby he had been cheated by the petitioners. Thereupon the Petitioners have filed this petition to quash the FIR in question. 5. The Informant has filed an affidavit dated 14/02/2020, interalia stating that the Informant and the Petitioners have settled their dispute amicably in view of the consent terms recorded on 14/02/2020 and thereby the Petitioners along with the Company agreed to pay an amount of Rs.7,20,000/- in two installments. 6. It is further stated in the affidavit that in the light of the consent terms, the Informant does not want to proceed with the FIR in question and as such he supports the prayers made in the present petition for quashing of the FIR. 7. After going through the FIR, it is clear that the nature of allegations are of commercial nature and no public element is involved. As the dispute between the parties, has resolved and the Informant has received the amount agreed to be paid by the Petitioners in view of the consent terms dated 14/02/2020, we are of the opinion that no purpose would be served even if the trial is allowed to continue. 8. In these circumstances, and especially, in view of the law laid down by the Apex Court in the case of Madan Mohan Abbot vs. State of Punjab, [(2008) 4 SCC 582] , we find that no purpose would be served by keeping the criminal proceedings pending except burdening the Criminal Courts which are already overburdened. We are of the view that in the backdrop of the aforestated fact-situation, the continuation of prosecution of Petitioner in the instant case will amount to abuse of the process of Court and therefore it is in the fitness of things to quash the FIR and subject proceedings in order to secure the ends of justice. We are in agreement with the submission of the learned Counsel appearing for the respective parties that continuation of criminal proceedings in the instant case will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored. 9. In the light of the principles laid down by the Apex Court in the aforesaid decision as well as in the case of Narinder Singh vs. State of Punjab [2014 AIR SCW 2065] we are of the considered view that there is no impediment in quashing the criminal proceedings and FIR in question.	1[ds]7. After going through the FIR, it is clear that the nature of allegations are of commercial nature and no public element is involved. As the dispute between the parties, has resolved and the Informant has received the amount agreed to be paid by the Petitioners in view of the consent terms dated 14/02/2020, we are of the opinion that no purpose would be served even if the trial is allowed to continue.8. In these circumstances, and especially, in view of the law laid down by the Apex Court in the case of Madan Mohan Abbot vs. State of Punjab, [(2008) 4 SCC 582] , we find that no purpose would be served by keeping the criminal proceedings pending except burdening the Criminal Courts which are already overburdened. We are of the view that in the backdrop of the aforestated fact-situation, the continuation of prosecution of Petitioner in the instant case will amount to abuse of the process of Court and therefore it is in the fitness of things to quash the FIR and subject proceedings in order to secure the ends of justice. We are in agreement with the submission of the learned Counsel appearing for the respective parties that continuation of criminal proceedings in the instant case will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored.9. In the light of the principles laid down by the Apex Court in the aforesaid decision as well as in the case of Narinder Singh vs. State of Punjab [2014 AIR SCW 2065] we are of the considered view that there is no impediment in quashing the criminal proceedings and FIR in question.	1	710	313	### 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: 1. The present petition is filed under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash the First Information Report No.217 of 2019 dated 30/05/2019 registered with Kasturba Sub Police Station, for the offences punishable under Sections 417, 419, 420 r/w section 34 of the Indian Penal Code and under Sections 66(c) and 66(d) of the Information Technology (Amendment) Act, 2008. 2. The brief facts of the present case are as under:- The Petitioners herein were either the Directors and/or employees of a company namely M/s. High Brow Market Research Investment Advisor Pvt. Ltd., at some time or the other. The Respondent No.1 is the First Informant as whose instance the FIR in question was registered. 3. It is the case of the Petitioners that the Petitioner Nos.1 and 3 were Directors of the said Company from the period 26/12/2011 to 01/07/2017 and thereafter they resigned. The Petitioner No.5, was an employee of the Company and had absolutely no role to play in the day to day affairs of the Company and /or conduct of it, as such the Petitioners did not have any role in the transactions, which took place between Respondent No.1 and the Company. 4. It is the case of the Petitioners that on 30/05/2019 Respondent No.1 lodged a police complaint alleging therein that because of misrepresentation of the accused persons named in the FIR, the Informant had invested huge amount in their bogus schemes and thereby he had been cheated by the petitioners. Thereupon the Petitioners have filed this petition to quash the FIR in question. 5. The Informant has filed an affidavit dated 14/02/2020, interalia stating that the Informant and the Petitioners have settled their dispute amicably in view of the consent terms recorded on 14/02/2020 and thereby the Petitioners along with the Company agreed to pay an amount of Rs.7,20,000/- in two installments. 6. It is further stated in the affidavit that in the light of the consent terms, the Informant does not want to proceed with the FIR in question and as such he supports the prayers made in the present petition for quashing of the FIR. 7. After going through the FIR, it is clear that the nature of allegations are of commercial nature and no public element is involved. As the dispute between the parties, has resolved and the Informant has received the amount agreed to be paid by the Petitioners in view of the consent terms dated 14/02/2020, we are of the opinion that no purpose would be served even if the trial is allowed to continue. 8. In these circumstances, and especially, in view of the law laid down by the Apex Court in the case of Madan Mohan Abbot vs. State of Punjab, [(2008) 4 SCC 582] , we find that no purpose would be served by keeping the criminal proceedings pending except burdening the Criminal Courts which are already overburdened. We are of the view that in the backdrop of the aforestated fact-situation, the continuation of prosecution of Petitioner in the instant case will amount to abuse of the process of Court and therefore it is in the fitness of things to quash the FIR and subject proceedings in order to secure the ends of justice. We are in agreement with the submission of the learned Counsel appearing for the respective parties that continuation of criminal proceedings in the instant case will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored. 9. In the light of the principles laid down by the Apex Court in the aforesaid decision as well as in the case of Narinder Singh vs. State of Punjab [2014 AIR SCW 2065] we are of the considered view that there is no impediment in quashing the criminal proceedings and FIR in question. ### Response: 1 ### Explanation: 7. After going through the FIR, it is clear that the nature of allegations are of commercial nature and no public element is involved. As the dispute between the parties, has resolved and the Informant has received the amount agreed to be paid by the Petitioners in view of the consent terms dated 14/02/2020, we are of the opinion that no purpose would be served even if the trial is allowed to continue.8. In these circumstances, and especially, in view of the law laid down by the Apex Court in the case of Madan Mohan Abbot vs. State of Punjab, [(2008) 4 SCC 582] , we find that no purpose would be served by keeping the criminal proceedings pending except burdening the Criminal Courts which are already overburdened. We are of the view that in the backdrop of the aforestated fact-situation, the continuation of prosecution of Petitioner in the instant case will amount to abuse of the process of Court and therefore it is in the fitness of things to quash the FIR and subject proceedings in order to secure the ends of justice. We are in agreement with the submission of the learned Counsel appearing for the respective parties that continuation of criminal proceedings in the instant case will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored.9. In the light of the principles laid down by the Apex Court in the aforesaid decision as well as in the case of Narinder Singh vs. State of Punjab [2014 AIR SCW 2065] we are of the considered view that there is no impediment in quashing the criminal proceedings and FIR in question.
GODREJ & BOYCE MANUFACTURING COMPANY LTD Vs. ENGINEERING WORKERS ASSOCIATION & ORS	Abhay Manohar Sapre, J. - Leave granted. 2. These appeals are directed against the final judgment and order dated 29.08.2018 passed by the High Court of Judicature at Bombay in W.P.(C) Nos.3150/2017, 3188/2017 and 3189/2017 whereby the High Court disposed of the writ petitions filed by the appellant herein and upheld the award dated 02.03.2017 passed by the Industrial Tribunal, Maharashtra, Mumbai in Reference (IT) No.15 of 2006. 3. In order to appreciate the issues involved in these appeals, few facts need mention hereinbelow. 4. An industrial reference (IT) 15 of 2006 was made by the Commissioner of Labour under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the ID Act) to the Industrial Tribunal at the instance of the Engineering Workers Association(respondent herein). The industrial reference reads as under: Company shall take into its employment the 99 workmen who are working through the devise of the contractor M/s Mazda Services and whose names here inter impleaded as Complainants in Complaint (ULP) No.529 of 1995 w.e.f. 30.05.1995 and to pay them the differences in wages and other benefits as paid to the regular workmen of the company and to continue to pay the same thereafter. 5. The Godrej & Boyce Manufacturing Company Ltd. (employer), Engineering Workers Association (Workers Association), Godrej Boyce Shramik Sangh (recognized union) and Mazda Services (contractor) filed their respective statements in support of their case and also adduced their evidence. The Tribunal, by awards dated 23/24.07.2014 answered the references in favour of the employer. 6. The workers Association felt aggrieved and filed petitions bearing W.P.(C) Nos. 819, 820 and 821 of 2015 in the High Court of Judicature at Bombay and questioned therein the legality and correctness of the awards. By common order dated 11.08.2015, the High Court allowed the writ petitions and while setting aside the awards remanded the cases to the Industrial Tribunal for deciding the references afresh on merits. 7. By award dated 02.03.2017, the Industrial Tribunal answered the reference in favour of the Workers Association. In answering so, the Industrial Tribunal also directed the employer to pay a lump sum amount of Rs. 5 lacs to each workman. The employer felt aggrieved and filed writ petitions (Nos.3150,3188 & 3189/2017) in the High Court. By impugned order, the High Court upheld the award of the Industrial Tribunal but quashed the direction pertaining to payment of Rs. 5 lacs to each workman. 8. Against this order of the High Court, the employer and the contractor have felt aggrieved and filed the present appeals by way of special leave in this Court. 9. Heard Mr. P.S. Patwalia, Mr. J.P. Cama, learned senior counsel for the appellants and Mr. Vinay Navare, learned counsel for the respondents. 10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order remand the case to the High Court for deciding the writ petitions afresh on merits. 11. The need to remand the case has been occasioned on account of one factual error committed by the High Court while dealing with two submission of the appellant (employer) in Para 34 of the impugned order. It is noticed that while dealing with the submissions of the appellant(employer), viz., that the reference made to the Industrial Tribunal is improperly and presumptuously worded and secondly, the Industrial Tribunal travelled beyond the scope of the reference, the High Court instead of quoting the reference, by mistake quoted the operative portion of the award passed by the Industrial Tribunal and treated the operative portion of the award as reference and proceeded to examine the submissions and rejected the same. 12. In our opinion, this being obviously an error apparent on the face of the record of the case and rightly admitted by the learned counsel appearing for the respondents, we have no option but to set aside the impugned order and remand the case to the High Court for deciding the writ petitions afresh on merits. We express no opinion on any of the issues dealt with by the High Court in the impugned order.	1[ds]10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order remand the case to the High Court for deciding the writ petitions afresh on merits.11. The need to remand the case has been occasioned on account of one factual error committed by the High Court while dealing with two submission of the appellant (employer) in Para 34 of the impugned order. It is noticed that while dealing with the submissions of the appellant(employer), viz., that the reference made to the Industrial Tribunal is improperly and presumptuously worded and secondly, the Industrial Tribunal travelled beyond the scope of the reference, the High Court instead of quoting the reference, by mistake quoted the operative portion of the award passed by the Industrial Tribunal and treated the operative portion of the award as reference and proceeded to examine the submissions and rejected the same.12. In our opinion, this being obviously an error apparent on the face of the record of the case and rightly admitted by the learned counsel appearing for the respondents, we have no option but to set aside the impugned order and remand the case to the High Court for deciding the writ petitions afresh on merits. We express no opinion on any of the issues dealt with by the High Court in the impugned order.	1	791	261	### Instruction: Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation. ### Input: Abhay Manohar Sapre, J. - Leave granted. 2. These appeals are directed against the final judgment and order dated 29.08.2018 passed by the High Court of Judicature at Bombay in W.P.(C) Nos.3150/2017, 3188/2017 and 3189/2017 whereby the High Court disposed of the writ petitions filed by the appellant herein and upheld the award dated 02.03.2017 passed by the Industrial Tribunal, Maharashtra, Mumbai in Reference (IT) No.15 of 2006. 3. In order to appreciate the issues involved in these appeals, few facts need mention hereinbelow. 4. An industrial reference (IT) 15 of 2006 was made by the Commissioner of Labour under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the ID Act) to the Industrial Tribunal at the instance of the Engineering Workers Association(respondent herein). The industrial reference reads as under: Company shall take into its employment the 99 workmen who are working through the devise of the contractor M/s Mazda Services and whose names here inter impleaded as Complainants in Complaint (ULP) No.529 of 1995 w.e.f. 30.05.1995 and to pay them the differences in wages and other benefits as paid to the regular workmen of the company and to continue to pay the same thereafter. 5. The Godrej & Boyce Manufacturing Company Ltd. (employer), Engineering Workers Association (Workers Association), Godrej Boyce Shramik Sangh (recognized union) and Mazda Services (contractor) filed their respective statements in support of their case and also adduced their evidence. The Tribunal, by awards dated 23/24.07.2014 answered the references in favour of the employer. 6. The workers Association felt aggrieved and filed petitions bearing W.P.(C) Nos. 819, 820 and 821 of 2015 in the High Court of Judicature at Bombay and questioned therein the legality and correctness of the awards. By common order dated 11.08.2015, the High Court allowed the writ petitions and while setting aside the awards remanded the cases to the Industrial Tribunal for deciding the references afresh on merits. 7. By award dated 02.03.2017, the Industrial Tribunal answered the reference in favour of the Workers Association. In answering so, the Industrial Tribunal also directed the employer to pay a lump sum amount of Rs. 5 lacs to each workman. The employer felt aggrieved and filed writ petitions (Nos.3150,3188 & 3189/2017) in the High Court. By impugned order, the High Court upheld the award of the Industrial Tribunal but quashed the direction pertaining to payment of Rs. 5 lacs to each workman. 8. Against this order of the High Court, the employer and the contractor have felt aggrieved and filed the present appeals by way of special leave in this Court. 9. Heard Mr. P.S. Patwalia, Mr. J.P. Cama, learned senior counsel for the appellants and Mr. Vinay Navare, learned counsel for the respondents. 10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order remand the case to the High Court for deciding the writ petitions afresh on merits. 11. The need to remand the case has been occasioned on account of one factual error committed by the High Court while dealing with two submission of the appellant (employer) in Para 34 of the impugned order. It is noticed that while dealing with the submissions of the appellant(employer), viz., that the reference made to the Industrial Tribunal is improperly and presumptuously worded and secondly, the Industrial Tribunal travelled beyond the scope of the reference, the High Court instead of quoting the reference, by mistake quoted the operative portion of the award passed by the Industrial Tribunal and treated the operative portion of the award as reference and proceeded to examine the submissions and rejected the same. 12. In our opinion, this being obviously an error apparent on the face of the record of the case and rightly admitted by the learned counsel appearing for the respondents, we have no option but to set aside the impugned order and remand the case to the High Court for deciding the writ petitions afresh on merits. We express no opinion on any of the issues dealt with by the High Court in the impugned order. ### Response: 1 ### Explanation: 10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order remand the case to the High Court for deciding the writ petitions afresh on merits.11. The need to remand the case has been occasioned on account of one factual error committed by the High Court while dealing with two submission of the appellant (employer) in Para 34 of the impugned order. It is noticed that while dealing with the submissions of the appellant(employer), viz., that the reference made to the Industrial Tribunal is improperly and presumptuously worded and secondly, the Industrial Tribunal travelled beyond the scope of the reference, the High Court instead of quoting the reference, by mistake quoted the operative portion of the award passed by the Industrial Tribunal and treated the operative portion of the award as reference and proceeded to examine the submissions and rejected the same.12. In our opinion, this being obviously an error apparent on the face of the record of the case and rightly admitted by the learned counsel appearing for the respondents, we have no option but to set aside the impugned order and remand the case to the High Court for deciding the writ petitions afresh on merits. We express no opinion on any of the issues dealt with by the High Court in the impugned order.
Commissioner of Income Tax, Gujarat, Ahmedabad Vs. Jayantilal Prem Chand Shah	Civil Appeals Nos. 716 and 828 of 1975 and 1255 and 1256 of 19761. The first two appeals arise out of a common judgment. The second two appeals arise out of orders that follow the common judgment. The respondents in the two sets of appeals are brothers, the Kartas of their joint Hindu families and assessees as such. The question to be considered may be quoted in respect of the first appeal, whose facts we shall state"Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the income earned by Suresh Kumar Jayantilal and Ashok Kumar Jayantilal from the partnership of Messrs. A. J. and Co. cannot be included in the income of the assessee ?" * 2. The assessment years with which we are concerned in the first set of appeals in Assessment Year 1964-65 and in the second set Assessment Year 1965-66 3. The assessee (in the first appeal) is a Hindu Undivided Family of which Jayantilal Premchand Shah was the Karta. He represented the Hindu Undivided Family as a partner in the firm of A. J. and Company. The firm had been originally constituted under a partnership deed dated 12-11-1959. Jayantilal had a share of 5 annas in a rupee in the said firm. By an agreement dated 29-10-1962, the said firm was reconstituted and Suresh Kumar and Ashok Kumar, the two minor sons of Jayantilal, were given benefits in the said firm. Thus, the share of Jayantilal in the firm was reduced to 2 annas in a rupee and Suresh Kumar and Ashok Kumar given the benefit of a share of 1-1/2 annas each4. The Income Tax Officer included the shares of the two minor sons of Jayantilal in the income of the Hindu Undivided Family upon the basis that the beneficial ownership thereof remained with the Hindu Undivided Family. He found that there had been no partition, partial or total, of the Hindu Undivided Family so that it could not have foregone a part of its share in the said firm in favour of the minors. The decision of the ITO was upheld by the Appellate Assistant Commissioner. The assessee carried the matter in appeal to the INcome Tax Appellate Tribunal. The Tribunal found that the minors were admitted to the benefits of the said firm in the shares stipulated in the partnership deed and, as a result, the Hindu Undivided Family had agreed to a smaller share inthe said firm. It was not necessary that there should be a partial partition or gift because the same could be inferred from the proven facts. There was no evidence to show that the minors were the benamidars of the Hindu Undivided Family or that the beneficial owner of the shares of the minors was the Hindu Undivided Family. In these circumstances, there was no justification for clubbing the income earned by the minors with income of the Hindu Undivided Family5. The High Court considered the question to which we have adverted on a reference made at the instance of the Revenue. It observed that only a person who was capable of entering into a contract, in the sense of being sui generis as Karta or not, could enter into a partnership. If he did so on behalf of the Hindu Undivided Family, he represented the Hindu Undivided Family and the legal consequences would follow. A minor could not enter into a contract and, therefore, he could not represent the Hindu Undivided Family in the partnership. He could only represent himself, having been admitted to the benefits of the firm. The Tribunal had found as a fact that the minors were not benamidars of the Hindu Undivided Family and the only ground on which the Revenue could have succeeded was that was referred to the High Court was, thus, answered in the affirmative and in favour of the assessees 6. What is most relevant to note is that the tribunal found as a fact that the minors were not benamidars of their Hindu Undivided Family. Once that position is established, it is clear that they represented only themselves and that, in that capacity, were entitled to their respective shares in the said firm as their own income. Necessarily, this is not income that can be added to the income of the Hindu Undivided Family and be assessed in the hands of the Hindu Undivided Family7. Reference was made by counsel for the revenue to the judgment of the Gujarat High Court in Pitamberdas Bhikhabhai and Co. v. CIT. This was a case of a partnership between the karta of a Hindu Undivided Family and the adult coparceners of the same Hindu Undivided Family in their individual capacities. It was held that this was not a valid partnership. The facts of this case have no relation to the question before us	0[ds]5. The High Court considered the question to which we have adverted on a reference made at the instance of the Revenue. It observed that only a person who was capable of entering into a contract, in the sense of being sui generis as Karta or not, could enter into a partnership. If he did so on behalf of the Hindu Undivided Family, he represented the Hindu Undivided Family and the legal consequences would follow. A minor could not enter into a contract and, therefore, he could not represent the Hindu Undivided Family in the partnership. He could only represent himself, having been admitted to the benefits of the firm. The Tribunal had found as a fact that the minors were not benamidars of the Hindu Undivided Family and the only ground on which the Revenue could have succeeded was that was referred to the High Court was, thus, answered in the affirmative and in favour of theWhat is most relevant to note is that the tribunal found as a fact that the minors were not benamidars of their Hindu Undivided Family. Once that position is established, it is clear that they represented only themselves and that, in that capacity, were entitled to their respective shares in the said firm as their own income. Necessarily, this is not income that can be added to the income of the Hindu Undivided Family and be assessed in the hands of the Hindu Undivided Family7. Reference was made by counsel for the revenue to the judgment of the Gujarat High Court in Pitamberdas Bhikhabhai and Co. v. CIT. This was a case of a partnership between the karta of a Hindu Undivided Family and the adult coparceners of the same Hindu Undivided Family in their individual capacities. It was held that this was not a valid partnership.	0	873	332	### 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: Civil Appeals Nos. 716 and 828 of 1975 and 1255 and 1256 of 19761. The first two appeals arise out of a common judgment. The second two appeals arise out of orders that follow the common judgment. The respondents in the two sets of appeals are brothers, the Kartas of their joint Hindu families and assessees as such. The question to be considered may be quoted in respect of the first appeal, whose facts we shall state"Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the income earned by Suresh Kumar Jayantilal and Ashok Kumar Jayantilal from the partnership of Messrs. A. J. and Co. cannot be included in the income of the assessee ?" * 2. The assessment years with which we are concerned in the first set of appeals in Assessment Year 1964-65 and in the second set Assessment Year 1965-66 3. The assessee (in the first appeal) is a Hindu Undivided Family of which Jayantilal Premchand Shah was the Karta. He represented the Hindu Undivided Family as a partner in the firm of A. J. and Company. The firm had been originally constituted under a partnership deed dated 12-11-1959. Jayantilal had a share of 5 annas in a rupee in the said firm. By an agreement dated 29-10-1962, the said firm was reconstituted and Suresh Kumar and Ashok Kumar, the two minor sons of Jayantilal, were given benefits in the said firm. Thus, the share of Jayantilal in the firm was reduced to 2 annas in a rupee and Suresh Kumar and Ashok Kumar given the benefit of a share of 1-1/2 annas each4. The Income Tax Officer included the shares of the two minor sons of Jayantilal in the income of the Hindu Undivided Family upon the basis that the beneficial ownership thereof remained with the Hindu Undivided Family. He found that there had been no partition, partial or total, of the Hindu Undivided Family so that it could not have foregone a part of its share in the said firm in favour of the minors. The decision of the ITO was upheld by the Appellate Assistant Commissioner. The assessee carried the matter in appeal to the INcome Tax Appellate Tribunal. The Tribunal found that the minors were admitted to the benefits of the said firm in the shares stipulated in the partnership deed and, as a result, the Hindu Undivided Family had agreed to a smaller share inthe said firm. It was not necessary that there should be a partial partition or gift because the same could be inferred from the proven facts. There was no evidence to show that the minors were the benamidars of the Hindu Undivided Family or that the beneficial owner of the shares of the minors was the Hindu Undivided Family. In these circumstances, there was no justification for clubbing the income earned by the minors with income of the Hindu Undivided Family5. The High Court considered the question to which we have adverted on a reference made at the instance of the Revenue. It observed that only a person who was capable of entering into a contract, in the sense of being sui generis as Karta or not, could enter into a partnership. If he did so on behalf of the Hindu Undivided Family, he represented the Hindu Undivided Family and the legal consequences would follow. A minor could not enter into a contract and, therefore, he could not represent the Hindu Undivided Family in the partnership. He could only represent himself, having been admitted to the benefits of the firm. The Tribunal had found as a fact that the minors were not benamidars of the Hindu Undivided Family and the only ground on which the Revenue could have succeeded was that was referred to the High Court was, thus, answered in the affirmative and in favour of the assessees 6. What is most relevant to note is that the tribunal found as a fact that the minors were not benamidars of their Hindu Undivided Family. Once that position is established, it is clear that they represented only themselves and that, in that capacity, were entitled to their respective shares in the said firm as their own income. Necessarily, this is not income that can be added to the income of the Hindu Undivided Family and be assessed in the hands of the Hindu Undivided Family7. Reference was made by counsel for the revenue to the judgment of the Gujarat High Court in Pitamberdas Bhikhabhai and Co. v. CIT. This was a case of a partnership between the karta of a Hindu Undivided Family and the adult coparceners of the same Hindu Undivided Family in their individual capacities. It was held that this was not a valid partnership. The facts of this case have no relation to the question before us ### Response: 0 ### Explanation: 5. The High Court considered the question to which we have adverted on a reference made at the instance of the Revenue. It observed that only a person who was capable of entering into a contract, in the sense of being sui generis as Karta or not, could enter into a partnership. If he did so on behalf of the Hindu Undivided Family, he represented the Hindu Undivided Family and the legal consequences would follow. A minor could not enter into a contract and, therefore, he could not represent the Hindu Undivided Family in the partnership. He could only represent himself, having been admitted to the benefits of the firm. The Tribunal had found as a fact that the minors were not benamidars of the Hindu Undivided Family and the only ground on which the Revenue could have succeeded was that was referred to the High Court was, thus, answered in the affirmative and in favour of theWhat is most relevant to note is that the tribunal found as a fact that the minors were not benamidars of their Hindu Undivided Family. Once that position is established, it is clear that they represented only themselves and that, in that capacity, were entitled to their respective shares in the said firm as their own income. Necessarily, this is not income that can be added to the income of the Hindu Undivided Family and be assessed in the hands of the Hindu Undivided Family7. Reference was made by counsel for the revenue to the judgment of the Gujarat High Court in Pitamberdas Bhikhabhai and Co. v. CIT. This was a case of a partnership between the karta of a Hindu Undivided Family and the adult coparceners of the same Hindu Undivided Family in their individual capacities. It was held that this was not a valid partnership.
Committee of Management Vs. The Director of Higher Education & Others	this Court granted an interim stay of the impugned judgment and order passed by the High Court. On 14th May, 2009 this Court modified the interim order passed on 28th February, 2005 by requiring a report to be filed whether the respondents fulfil the requirements of Section 31- C of the Act.18. In compliance with the order dated 14th May, 2009 the Director of Higher Education passed an order on 1st December, 2009 to the effect that the respondents “who were appointed as part-time teachers, substantially fulfil the requirements of Section 31(C) of the U.P. Higher Education Service Commission Act, 1980.”19. A reading of the order dated 1st December, 2009 gives a clear indication that even as recently as 2009 the Director of Higher Education was of the view that the appointment of the respondents was only on a part-time basis and not on an ad hoc basis. Since the respondents were not appointed on an ad hoc basis (even if they fulfilled the requirements of Section 31-C of the Act), they had no right to be regularized since they were not so appointed.20. On these broad facts, we heard all the affected parties on the merits of the case.Findings21. In our opinion, the High Court erred in taking the view that it did. There is absolutely no doubt that the respondents had not applied for the post of ad hoc Lecturer pursuant to the advertisement dated 12th January, 1988. On the contrary, the respondents moved independent applications to the effect that they had come to know through reliable sources that the post of a part-time Lecturer was available. It is on the basis of these applications that the respondents were appointed on a part-time basis for a fixed period by the College and on a fixed salary. There is absolutely no question of the respondents having been appointed on an ad hoc basis or on any basis other than part-time or pursuant to the advertisement dated 12th January, 1988. The High Court completely overlooked this aspect of the matter.22. The provisions of the Act also do not come to the rescue of the respondents. Section 16 and Section 31-C of the Act were placed before us for consideration. These provisions read as follows:“16. Appointment of ad hoc teachers.- (1) Where the management has notified a vacancy to the Commission in accordance with sub-section (2) of Section 12, and the Commission fails to recommend the names of suitable candidates in accordance with sub-section (1) of that section within three months from the date of such notification, the management may appoint a teacher on purely ad hoc basis from amongst the persons holding qualification prescribed therefor.(2) xxx xxx xxx”“31-C. Regularisation of other ad hoc appointments. - (1) Any teacher, other than a principal who –(a) was appointed on ad hoc basis after January 3,1984 but not later than November 22, 1991 on a post –(i) which after its due creation was never filled earlier, or(ii) which after its due creation was filled earlier and after its falling vacant, permission to fill it was obtained from the Director; or(iii) which came into being in pursuance of the terms of new affiliation or recognition granted to the College and has been continuously serving the College from the date of such ad hoc appointment up to the date of commencement of the Uttar Pradesh Higher Education Services Commission (Amendment) Act, 1992;(b) was appointed on ad hoc basis under sub-section (1) of Section 16 as it stood before its omission by the Act referred to in clause (a), whether or not the vacancy was notified by the Commission.(c) possessed on the date of such commencement, the qualifications required for regular appointment to the post or was given relaxation from such qualification under the provisions of the relevant Statutes in force on the date of such ad hoc appointment;(d) [* * *](e) has been found suitable for regular appointment by a Selection Committee constituted under sub-section (2); may be given substantive appointment by the Management of the College, if any substantive vacancy of the same cadre and grade in the same department is available on the date of commencement of the Act referred to in clause (a).(2) The Selection Committee consisting, the following members namely –(i) a member of the Commission nominated by the Government who shall be the Chairman;(ii) an officer not below the rank of Special Secretary, to be nominated by the Secretary to the Government of Uttar Pradesh in the Higher Education Department;(iii) the Director;shall consider the cases of every such ad hoc teacher and on being satisfied about his eligibility in view of the provisions of sub-section (1), and his work and conduct on the basis of his record, recommend his name to the Management of the College for appointment under sub-section (1).(3) to (5) xxx xxx xxx”23. A bare perusal of these provisions makes it quite clear that they deal with the procedure of ad hoc selection and regularization of those selected on an ad hoc basis. These provisions have absolutely no application to the appointment of part-time Lecturers or their regularization. In fact the statute does not at all provide for regularization of part-time Lecturers.24. There is also nothing on the record to indicate that the respondents had worked beyond 30th April, 1990. It was only their submission that they had worked beyond April 1990 but nothing was placed on record to even give a suggestion that the respondents had worked beyond April 1990.25. Under these circumstances, the question of regularization of the respondents including the correctness of the order passed by the Secretary, U. P. Government on 26th February, 2001 simply did not arise. The respondents had absolutely no right in their favour and the only option available to the High Court was to have dismissed the writ petition filed by the respondents and to have allowed the writ petition filed by the College and set aside the order dated 26th February, 2001 regularising the services of the respondents.	1[ds]19. A reading of the order dated 1st December, 2009 gives a clear indication that even as recently as 2009 the Director of Higher Education was of the view that the appointment of the respondents was only on abasis and not on an ad hoc basis. Since the respondents were not appointed on an ad hoc basis (even if they fulfilled the requirements of Sectionof the Act), they had no right to be regularized since they were not so appointed.In our opinion, the High Court erred in taking the view that it did. There is absolutely no doubt that the respondents had not applied for the post of ad hoc Lecturer pursuant to the advertisement dated 12th January, 1988. On the contrary, the respondents moved independent applications to the effect that they had come to know through reliable sources that the post of aLecturer was available. It is on the basis of these applications that the respondents were appointed on abasis for a fixed period by the College and on a fixed salary. There is absolutely no question of the respondents having been appointed on an ad hoc basis or on any basis other thanor pursuant to the advertisement dated 12th January, 1988. The High Court completely overlooked this aspect of the matter.22. The provisions of the Act also do not come to the rescue of the respondents.A bare perusal of these provisions makes it quite clear that they deal with the procedure of ad hoc selection and regularization of those selected on an ad hoc basis. These provisions have absolutely no application to the appointment ofLecturers or their regularization. In fact the statute does not at all provide for regularization ofLecturers.24. There is also nothing on the record to indicate that the respondents had worked beyond 30th April, 1990. It was only their submission that they had worked beyond April 1990 but nothing was placed on record to even give a suggestion that the respondents had worked beyond April 1990.25. Under these circumstances, the question of regularization of the respondents including the correctness of the order passed by the Secretary, U. P. Government on 26th February, 2001 simply did not arise. The respondents had absolutely no right in their favour and the only option available to the High Court was to have dismissed the writ petition filed by the respondents and to have allowed the writ petition filed by the College and set aside the order dated 26th February, 2001 regularising the services of the respondents.	1	2,758	449	### 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: this Court granted an interim stay of the impugned judgment and order passed by the High Court. On 14th May, 2009 this Court modified the interim order passed on 28th February, 2005 by requiring a report to be filed whether the respondents fulfil the requirements of Section 31- C of the Act.18. In compliance with the order dated 14th May, 2009 the Director of Higher Education passed an order on 1st December, 2009 to the effect that the respondents “who were appointed as part-time teachers, substantially fulfil the requirements of Section 31(C) of the U.P. Higher Education Service Commission Act, 1980.”19. A reading of the order dated 1st December, 2009 gives a clear indication that even as recently as 2009 the Director of Higher Education was of the view that the appointment of the respondents was only on a part-time basis and not on an ad hoc basis. Since the respondents were not appointed on an ad hoc basis (even if they fulfilled the requirements of Section 31-C of the Act), they had no right to be regularized since they were not so appointed.20. On these broad facts, we heard all the affected parties on the merits of the case.Findings21. In our opinion, the High Court erred in taking the view that it did. There is absolutely no doubt that the respondents had not applied for the post of ad hoc Lecturer pursuant to the advertisement dated 12th January, 1988. On the contrary, the respondents moved independent applications to the effect that they had come to know through reliable sources that the post of a part-time Lecturer was available. It is on the basis of these applications that the respondents were appointed on a part-time basis for a fixed period by the College and on a fixed salary. There is absolutely no question of the respondents having been appointed on an ad hoc basis or on any basis other than part-time or pursuant to the advertisement dated 12th January, 1988. The High Court completely overlooked this aspect of the matter.22. The provisions of the Act also do not come to the rescue of the respondents. Section 16 and Section 31-C of the Act were placed before us for consideration. These provisions read as follows:“16. Appointment of ad hoc teachers.- (1) Where the management has notified a vacancy to the Commission in accordance with sub-section (2) of Section 12, and the Commission fails to recommend the names of suitable candidates in accordance with sub-section (1) of that section within three months from the date of such notification, the management may appoint a teacher on purely ad hoc basis from amongst the persons holding qualification prescribed therefor.(2) xxx xxx xxx”“31-C. Regularisation of other ad hoc appointments. - (1) Any teacher, other than a principal who –(a) was appointed on ad hoc basis after January 3,1984 but not later than November 22, 1991 on a post –(i) which after its due creation was never filled earlier, or(ii) which after its due creation was filled earlier and after its falling vacant, permission to fill it was obtained from the Director; or(iii) which came into being in pursuance of the terms of new affiliation or recognition granted to the College and has been continuously serving the College from the date of such ad hoc appointment up to the date of commencement of the Uttar Pradesh Higher Education Services Commission (Amendment) Act, 1992;(b) was appointed on ad hoc basis under sub-section (1) of Section 16 as it stood before its omission by the Act referred to in clause (a), whether or not the vacancy was notified by the Commission.(c) possessed on the date of such commencement, the qualifications required for regular appointment to the post or was given relaxation from such qualification under the provisions of the relevant Statutes in force on the date of such ad hoc appointment;(d) [* * *](e) has been found suitable for regular appointment by a Selection Committee constituted under sub-section (2); may be given substantive appointment by the Management of the College, if any substantive vacancy of the same cadre and grade in the same department is available on the date of commencement of the Act referred to in clause (a).(2) The Selection Committee consisting, the following members namely –(i) a member of the Commission nominated by the Government who shall be the Chairman;(ii) an officer not below the rank of Special Secretary, to be nominated by the Secretary to the Government of Uttar Pradesh in the Higher Education Department;(iii) the Director;shall consider the cases of every such ad hoc teacher and on being satisfied about his eligibility in view of the provisions of sub-section (1), and his work and conduct on the basis of his record, recommend his name to the Management of the College for appointment under sub-section (1).(3) to (5) xxx xxx xxx”23. A bare perusal of these provisions makes it quite clear that they deal with the procedure of ad hoc selection and regularization of those selected on an ad hoc basis. These provisions have absolutely no application to the appointment of part-time Lecturers or their regularization. In fact the statute does not at all provide for regularization of part-time Lecturers.24. There is also nothing on the record to indicate that the respondents had worked beyond 30th April, 1990. It was only their submission that they had worked beyond April 1990 but nothing was placed on record to even give a suggestion that the respondents had worked beyond April 1990.25. Under these circumstances, the question of regularization of the respondents including the correctness of the order passed by the Secretary, U. P. Government on 26th February, 2001 simply did not arise. The respondents had absolutely no right in their favour and the only option available to the High Court was to have dismissed the writ petition filed by the respondents and to have allowed the writ petition filed by the College and set aside the order dated 26th February, 2001 regularising the services of the respondents. ### Response: 1 ### Explanation: 19. A reading of the order dated 1st December, 2009 gives a clear indication that even as recently as 2009 the Director of Higher Education was of the view that the appointment of the respondents was only on abasis and not on an ad hoc basis. Since the respondents were not appointed on an ad hoc basis (even if they fulfilled the requirements of Sectionof the Act), they had no right to be regularized since they were not so appointed.In our opinion, the High Court erred in taking the view that it did. There is absolutely no doubt that the respondents had not applied for the post of ad hoc Lecturer pursuant to the advertisement dated 12th January, 1988. On the contrary, the respondents moved independent applications to the effect that they had come to know through reliable sources that the post of aLecturer was available. It is on the basis of these applications that the respondents were appointed on abasis for a fixed period by the College and on a fixed salary. There is absolutely no question of the respondents having been appointed on an ad hoc basis or on any basis other thanor pursuant to the advertisement dated 12th January, 1988. The High Court completely overlooked this aspect of the matter.22. The provisions of the Act also do not come to the rescue of the respondents.A bare perusal of these provisions makes it quite clear that they deal with the procedure of ad hoc selection and regularization of those selected on an ad hoc basis. These provisions have absolutely no application to the appointment ofLecturers or their regularization. In fact the statute does not at all provide for regularization ofLecturers.24. There is also nothing on the record to indicate that the respondents had worked beyond 30th April, 1990. It was only their submission that they had worked beyond April 1990 but nothing was placed on record to even give a suggestion that the respondents had worked beyond April 1990.25. Under these circumstances, the question of regularization of the respondents including the correctness of the order passed by the Secretary, U. P. Government on 26th February, 2001 simply did not arise. The respondents had absolutely no right in their favour and the only option available to the High Court was to have dismissed the writ petition filed by the respondents and to have allowed the writ petition filed by the College and set aside the order dated 26th February, 2001 regularising the services of the respondents.
Commissioner Of Income-Tax, Uttar Pradesh Vs. Manmohandas	duties to dispenses with the services of the Treasurer forthwith. The Treasurer was not to engage any person as his assistant or peon about whose character, conduct or reliability the manger of the Board of Directors of the Bank may have any objection. Shivnandan was a nominee of the Treasurer, but from the terms of his employment it appeared that he was working directly under the control and supervision of the Punjab National Bank. This Court held that the Treasurers relation to the Bank was that of a servant to the master, and the ministerial staff of the Cash Department appointed by him were also the employees in the Cash Department. It is difficult to regard the agreement in Shivnandan Sharmas case, 1955-1 SCR 1427 : ((S) AIR 1955 SC 404 ), as even substantially similar to the agreement in the present case between the Allahabad Bank and the Treasurer, so as to make the interpretation of the agreement a guide or a precedent in the interpretation of the agreement before us. 12. In Piyare Lal Adishwar Lals case, 1960-40 ITR 17 : (AIR 1960 SC 997 ), one Sheel Chandra was appointed Treasurer of the Central Bank for various branches on a monthly salary. Under the agreement between Sheel Chandra and the Bank, Sheel Chandra had to engage and employ all subordinate staff. He had the power to control, dismiss and change the staff at his pleasure but he could not engage or transfer any member of the staff except with the approval of the Bank and he had to dismiss any such member if so required by the managing director of the Bank or Agent of the office. The Treasurer was responsible for the acts and omissions of his representatives whom he was entitled to appoint at the various branches with the approval of the Bank, and he had agreed to indemnify the Bank against any loss arising from any neglect or omission on their part. But the Treasurer and his staff were under the direct control of the Bank. The agreement which was terminable by three calendar months notice in writing by either side, could in the event of any breach of any condition of the agreement by the Treasurer be terminated by the Bank forthwith. Having regard to the nature of his work and the control and supervision of the Bank over the Treasurer, it was held that the Treasurer was a servant of the Bank and the emoluments received by the Treasurer were in the nature of salary and assessable under S. 7 of the Income-tax Act and not profits and gain of business under S. 10. Some of the covenants of the contract between the Central Bank and the Treasurer are similar to the agreement under consideration in this appeal, but in Piyare Lal Adishwar Lals case, 1960-40 ITR 17 : (AIR 1960 SC 997 ), this Court founded its conclusion upon the existence of control and supervision of the Bank over the Treasurer and upon the power vested in the Bank to summarily dismiss the Treasurer in case of breach of any of the conditions of the agreement. 13. In the present case there is no covenant which either expressly or impliedly confers upon the Bank such control and supervision over the work done by the Treasurer, and the agreement is not liable to summary determination. His duties, liabilities and responsibilities are to be such as either by custom or contract usually devolve upon the Treasurers and those which are specified in the agreement. It is true that under Cl. (d) he has to transmit from one place to another place whenever so required, under such guard as may be provided by the Bank, all such money, cash, bullion, securities, cheques, notes hundies, drafts, orders and other documents, but that does not put the Treasurer under the general supervision of the Bank. 14. On a careful consideration of the covenants, we are of the view that the Treasurer was not a servant of the Allahabad Bank under the terms of the agreement, dated January 2, 1931, and the remuneration received by him was not "salaries" within the meaning of S. 7 of the Income-tax Act. But that is not sufficient to conclude the matter in favour of the assessee. The benefit of S. 24 (2) of the Indian Income-tax Act may be availed of by the assessee only if the loss sought to be set off was suffered under the head "Profits and gains * * in any business, profession or vocation". It is difficult to regard the occupation of the Treasurer under the agreement as a profession, for a profession involves occupation requiring purely intellectual or manual skill, and the work of the Treasurer under the contract cannot be so regarded. Occupation of a Treasurer is not one of the recognized professions, nor can it be said that it partakes of the character of a business or trade. In performing his duties under the agreement the assessee exercised his skill and judgment in making proper appointments and made arrangements for supervising the work done by the staff in the Cash Department of the Banks Branches. The remuneration received by him was for due performance of the duties and also for the guarantee against loss arising to the Bank out of the acts or omissions of the Cash and other staff of the Bank. Taking into consideration the nature of the duties performed, and the obligations undertaken, together with the right to remuneration subject to compensation for loss arising to the Bank from his own acts and omissions or of the servants introduced by him into the business of the Bank, the assessee may be regarded as following a vocation. The remuneration must therefore, be computed under S. 10 of the Income-tax Act and loss of profit suffered in that vocation in any year may be carried forward to the next year and be set off against the profit of the succeeding year.	0[ds]13. In the present case there is no covenant which either expressly or impliedly confers upon the Bank such control and supervision over the work done by the Treasurer, and the agreement is not liable to summary determination. His duties, liabilities and responsibilities are to be such as either by custom or contract usually devolve upon the Treasurers and those which are specified in the agreement. It is true that under Cl. (d) he has to transmit from one place to another place whenever so required, under such guard as may be provided by the Bank, all such money, cash, bullion, securities, cheques, notes hundies, drafts, orders and other documents, but that does not put the Treasurer under the general supervision of the Bank14. On a careful consideration of the covenants, we are of the view that the Treasurer was not a servant of the Allahabad Bank under the terms of the agreement, dated January 2, 1931, and the remuneration received by him was not "salaries" within the meaning of S. 7 of the Income-tax Act. But that is not sufficient to conclude the matter in favour of the assessee. The benefit of S. 24 (2) of the Indian Income-tax Act may be availed of by the assessee only if the loss sought to be set off was suffered under the head "Profits and gains * * in any business, profession or vocation". It is difficult to regard the occupation of the Treasurer under the agreement as a profession, for a profession involves occupation requiring purely intellectual or manual skill, and the work of the Treasurer under the contract cannot be so regarded. Occupation of a Treasurer is not one of the recognized professions, nor can it be said that it partakes of the character of a business or trade. In performing his duties under the agreement the assessee exercised his skill and judgment in making proper appointments and made arrangements for supervising the work done by the staff in the Cash Department of the Banks Branches. The remuneration received by him was for due performance of the duties and also for the guarantee against loss arising to the Bank out of the acts or omissions of the Cash and other staff of the Bank. Taking into consideration the nature of the duties performed, and the obligations undertaken, together with the right to remuneration subject to compensation for loss arising to the Bank from his own acts and omissions or of the servants introduced by him into the business of the Bank, the assessee may be regarded as following a vocation. The remuneration must therefore, be computed under S. 10 of the Income-tax Act and loss of profit suffered in that vocation in any year may be carried forward to the next year and be set off against the profit of the succeeding year.	0	5,404	525	### 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: duties to dispenses with the services of the Treasurer forthwith. The Treasurer was not to engage any person as his assistant or peon about whose character, conduct or reliability the manger of the Board of Directors of the Bank may have any objection. Shivnandan was a nominee of the Treasurer, but from the terms of his employment it appeared that he was working directly under the control and supervision of the Punjab National Bank. This Court held that the Treasurers relation to the Bank was that of a servant to the master, and the ministerial staff of the Cash Department appointed by him were also the employees in the Cash Department. It is difficult to regard the agreement in Shivnandan Sharmas case, 1955-1 SCR 1427 : ((S) AIR 1955 SC 404 ), as even substantially similar to the agreement in the present case between the Allahabad Bank and the Treasurer, so as to make the interpretation of the agreement a guide or a precedent in the interpretation of the agreement before us. 12. In Piyare Lal Adishwar Lals case, 1960-40 ITR 17 : (AIR 1960 SC 997 ), one Sheel Chandra was appointed Treasurer of the Central Bank for various branches on a monthly salary. Under the agreement between Sheel Chandra and the Bank, Sheel Chandra had to engage and employ all subordinate staff. He had the power to control, dismiss and change the staff at his pleasure but he could not engage or transfer any member of the staff except with the approval of the Bank and he had to dismiss any such member if so required by the managing director of the Bank or Agent of the office. The Treasurer was responsible for the acts and omissions of his representatives whom he was entitled to appoint at the various branches with the approval of the Bank, and he had agreed to indemnify the Bank against any loss arising from any neglect or omission on their part. But the Treasurer and his staff were under the direct control of the Bank. The agreement which was terminable by three calendar months notice in writing by either side, could in the event of any breach of any condition of the agreement by the Treasurer be terminated by the Bank forthwith. Having regard to the nature of his work and the control and supervision of the Bank over the Treasurer, it was held that the Treasurer was a servant of the Bank and the emoluments received by the Treasurer were in the nature of salary and assessable under S. 7 of the Income-tax Act and not profits and gain of business under S. 10. Some of the covenants of the contract between the Central Bank and the Treasurer are similar to the agreement under consideration in this appeal, but in Piyare Lal Adishwar Lals case, 1960-40 ITR 17 : (AIR 1960 SC 997 ), this Court founded its conclusion upon the existence of control and supervision of the Bank over the Treasurer and upon the power vested in the Bank to summarily dismiss the Treasurer in case of breach of any of the conditions of the agreement. 13. In the present case there is no covenant which either expressly or impliedly confers upon the Bank such control and supervision over the work done by the Treasurer, and the agreement is not liable to summary determination. His duties, liabilities and responsibilities are to be such as either by custom or contract usually devolve upon the Treasurers and those which are specified in the agreement. It is true that under Cl. (d) he has to transmit from one place to another place whenever so required, under such guard as may be provided by the Bank, all such money, cash, bullion, securities, cheques, notes hundies, drafts, orders and other documents, but that does not put the Treasurer under the general supervision of the Bank. 14. On a careful consideration of the covenants, we are of the view that the Treasurer was not a servant of the Allahabad Bank under the terms of the agreement, dated January 2, 1931, and the remuneration received by him was not "salaries" within the meaning of S. 7 of the Income-tax Act. But that is not sufficient to conclude the matter in favour of the assessee. The benefit of S. 24 (2) of the Indian Income-tax Act may be availed of by the assessee only if the loss sought to be set off was suffered under the head "Profits and gains * * in any business, profession or vocation". It is difficult to regard the occupation of the Treasurer under the agreement as a profession, for a profession involves occupation requiring purely intellectual or manual skill, and the work of the Treasurer under the contract cannot be so regarded. Occupation of a Treasurer is not one of the recognized professions, nor can it be said that it partakes of the character of a business or trade. In performing his duties under the agreement the assessee exercised his skill and judgment in making proper appointments and made arrangements for supervising the work done by the staff in the Cash Department of the Banks Branches. The remuneration received by him was for due performance of the duties and also for the guarantee against loss arising to the Bank out of the acts or omissions of the Cash and other staff of the Bank. Taking into consideration the nature of the duties performed, and the obligations undertaken, together with the right to remuneration subject to compensation for loss arising to the Bank from his own acts and omissions or of the servants introduced by him into the business of the Bank, the assessee may be regarded as following a vocation. The remuneration must therefore, be computed under S. 10 of the Income-tax Act and loss of profit suffered in that vocation in any year may be carried forward to the next year and be set off against the profit of the succeeding year. ### Response: 0 ### Explanation: 13. In the present case there is no covenant which either expressly or impliedly confers upon the Bank such control and supervision over the work done by the Treasurer, and the agreement is not liable to summary determination. His duties, liabilities and responsibilities are to be such as either by custom or contract usually devolve upon the Treasurers and those which are specified in the agreement. It is true that under Cl. (d) he has to transmit from one place to another place whenever so required, under such guard as may be provided by the Bank, all such money, cash, bullion, securities, cheques, notes hundies, drafts, orders and other documents, but that does not put the Treasurer under the general supervision of the Bank14. On a careful consideration of the covenants, we are of the view that the Treasurer was not a servant of the Allahabad Bank under the terms of the agreement, dated January 2, 1931, and the remuneration received by him was not "salaries" within the meaning of S. 7 of the Income-tax Act. But that is not sufficient to conclude the matter in favour of the assessee. The benefit of S. 24 (2) of the Indian Income-tax Act may be availed of by the assessee only if the loss sought to be set off was suffered under the head "Profits and gains * * in any business, profession or vocation". It is difficult to regard the occupation of the Treasurer under the agreement as a profession, for a profession involves occupation requiring purely intellectual or manual skill, and the work of the Treasurer under the contract cannot be so regarded. Occupation of a Treasurer is not one of the recognized professions, nor can it be said that it partakes of the character of a business or trade. In performing his duties under the agreement the assessee exercised his skill and judgment in making proper appointments and made arrangements for supervising the work done by the staff in the Cash Department of the Banks Branches. The remuneration received by him was for due performance of the duties and also for the guarantee against loss arising to the Bank out of the acts or omissions of the Cash and other staff of the Bank. Taking into consideration the nature of the duties performed, and the obligations undertaken, together with the right to remuneration subject to compensation for loss arising to the Bank from his own acts and omissions or of the servants introduced by him into the business of the Bank, the assessee may be regarded as following a vocation. The remuneration must therefore, be computed under S. 10 of the Income-tax Act and loss of profit suffered in that vocation in any year may be carried forward to the next year and be set off against the profit of the succeeding year.
Chief Controlling Revenue Authority Vs. Costal Gujarat Power Ltd.	duties with which separate instrument, each comprising or relating to one of such matters or distinct transactions, would be chargeable under this Act.6. Instruments coming within several descriptions in Schedule I.-Subject to the provisions of the last preceding section, an instrument so framed as to come within two or more of the descriptions in Schedule I, shall, where the duties chargeable thereunder are different, be chargeable only with the highest of such duties: Provided that nothing in this Act contained shall render chargeable with duty exceeding one rupee a counterpart or duplicate of any instrument chargeable with duty and in respect of which the proper duty has-been paid.” 31. From bare reading of these provisions, it is clear that Section 4 deals with single transaction completed in several instruments, whereas Section 5 deals only with the instrument which comprises more than one transaction and it is immaterial for the purpose whether those transactions are of the same category or of different categories.32. It appears from the trustee document that altogether 13 banks lent money to the mortgagor, details of which have been described in the schedule and for the repayment of money, the borrower entered into separate loan agreements with 13 financial institutions. Had this borrower entered into a separate mortgage deed with these financial institutions in order to secure the loan there would have been a separate document for distinct transactions. On proper construction of this indenture of mortgage it can safely be regarded as 13 distinct transactions which falls under Section 5 of the Act. 33. Both the learned counsel put reliance on the five Judges Constitution Bench Judgment of this Court in the Case of The Member, Board of Revenue vs. Arthur Paul Benthall (supra). The said case originated from a reference made to the High Court of Calcutta by the Revenue Authorities seeking opinion with regard to the stamp duty payable in the instrument. The respondent in that case was at the material time the Managing Director of M/s. Bird and Co. Ltd. and Messrs F.W. Heilgers and Com. Ltd which were acting Managing Agents of several Companies Act under the Indian Companies Act. The respondents were also Director of a number of other Companies, and had on occasions acted as liquidator of some Companies, as executor or administrator of estates of deceased persons and as trustee of various estates. He proposed to execute power of attorney empowering the M/s. Douglas Chisholm Fairbairn and John James Brims Southerland jointly and severally to act for him in his individual capacity and also as executor administrator, trustee, Managing Agents, liquidator, and all other capacities. The Collector referred the matter under Section 56(2) of the Act to the decision of Chief Controller, Revenue Authority, who eventually referred it to the High Court of Calcutta stating his own opinion that stamp duty was payable on the power “for as many respective capacities as the principal executes the power”. The majority view of the Bench held that the different capacities of the executants would not constitute the distinct matter for the purpose of Section 5 of the Act and that the proper duty and instrument was payable under Article 48(d) of Schedule 1(a) of the Stamp Act. 34. Answering the Reference, the Constitution Bench of this Court elaborately discussed the scope and object of Sections 4,5, and 6 of the Stamp Act and finally allowed the appeal. Their Lordship held:- “We are unable to accept the contention that the word "matter" in section 5 was intended to convey the same meaning as the word "description" in section 6. In its popular sense, the expression "distinct matters" would connote something different from distinct "categories". Two transactions might be of same description, but all the same, they might be distinct. If A sells Black-acre to X and mortgages White-acre to Y, the transactions fall under different categories, and they are also distinct matters. But if A mortgages Black-acre to X and White-acre to Y, the two transactions fall under the same category, but they would certainly be distinct matters. If the intention of the legislature was that the expression distinct matter in section5 should be understood not in its popular sense but narrowly as meaning different categories in the Schedule, nothing would have been easier than to say so. When two words of different import are used in a statute in two consecutive provisions, it would be difficult to maintain that they are used in the same sense, and the conclusion must follow that the expression "distinct matters" in section 5 and "description" in section 6 have different connotations.” 35. Their Lordships further held that:- “When a person possesses both a personal capacity and a representative capacity, such as trustee, and there is a delegation of power by him in both those capacities, the position in law is exactly the same as if different persons join in executing a power in respect of matters which are unrelated. There being no community of interest between the personal estate belonging to the executant and the trust estate vested in him, they must be held to be distinct matters for purposes of section 5. The position is the same when a person is executor or administrator, because in that capacity he represents the estate of the deceased, whose persona is deemed to continue in him for purposes of administration." 36. We have also gone through the provisions contained in Sections 33, 39, Article 6 and 6(b) of the Act as also Bombay Stamp (Gujarat Second Amendment) Rules, 2007 and the Circular dated 2.4.2007. After giving out anxious consideration to those provisions and also in the light of the ratio decided by the Constitution Bench of this Court in The Benthall case (supra), we are of the definite opinion that the High Court has committed serious error of law in interpreting the provisions of Sections 5 and 6 of the Act. Consequently, the answer given by the High Court on the Reference cannot be sustained in Law.	1[ds]22. From the body of this agreement, it reveals that the borrower had requested the senior lenders i.e. thirteen banks/financial institutions to make available to the borrower loan details of which is more fully set out in Schedule II. Pursuant to the loan agreement entered into by the borrower and the senior lenders, each of senior lenders inter alia agreed to provide to the borrower credit and loan facilities to finance part of the project, costs of the project, more specifically set out in Schedule II.From the facts discussed and narrated hereinabove, it is manifest that the instrument of mortgage came into existence only after separate loan agreements were executed by the borrower with the lenders with regard to separate loan advanced by those lenders to the respondent borrower. The mortgage deed which recites at length as to how and under what circumstances property was mortgaged with the security trustee for and on behalf of lender bank.From bare reading of these provisions, it is clear that Section 4 deals with single transaction completed in several instruments, whereas Section 5 deals only with the instrument which comprises more than one transaction and it is immaterial for the purpose whether those transactions are of the same category or of different categories.32. It appears from the trustee document that altogether 13 banks lent money to the mortgagor, details of which have been described in the schedule and for the repayment of money, the borrower entered into separate loan agreements with 13 financial institutions. Had this borrower entered into a separate mortgage deed with these financial institutions in order to secure the loan there would have been a separate document for distinct transactions. On proper construction of this indenture of mortgage it can safely be regarded as 13 distinct transactions which falls under Section 5 of the Act.We have also gone through the provisions contained in Sections 33, 39, Article 6 and 6(b) of the Act as also Bombay Stamp (Gujarat Second Amendment) Rules, 2007 and the Circular dated 2.4.2007. After giving out anxious consideration to those provisions and also in the light of the ratio decided by the Constitution Bench of this Court in The Benthall case (supra), we are of the definite opinion that the High Court has committed serious error of law in interpreting the provisions of Sections 5 and 6 of the Act. Consequently, the answer given by the High Court on the Reference cannot be sustained in Law.	1	5,524	445	### 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: duties with which separate instrument, each comprising or relating to one of such matters or distinct transactions, would be chargeable under this Act.6. Instruments coming within several descriptions in Schedule I.-Subject to the provisions of the last preceding section, an instrument so framed as to come within two or more of the descriptions in Schedule I, shall, where the duties chargeable thereunder are different, be chargeable only with the highest of such duties: Provided that nothing in this Act contained shall render chargeable with duty exceeding one rupee a counterpart or duplicate of any instrument chargeable with duty and in respect of which the proper duty has-been paid.” 31. From bare reading of these provisions, it is clear that Section 4 deals with single transaction completed in several instruments, whereas Section 5 deals only with the instrument which comprises more than one transaction and it is immaterial for the purpose whether those transactions are of the same category or of different categories.32. It appears from the trustee document that altogether 13 banks lent money to the mortgagor, details of which have been described in the schedule and for the repayment of money, the borrower entered into separate loan agreements with 13 financial institutions. Had this borrower entered into a separate mortgage deed with these financial institutions in order to secure the loan there would have been a separate document for distinct transactions. On proper construction of this indenture of mortgage it can safely be regarded as 13 distinct transactions which falls under Section 5 of the Act. 33. Both the learned counsel put reliance on the five Judges Constitution Bench Judgment of this Court in the Case of The Member, Board of Revenue vs. Arthur Paul Benthall (supra). The said case originated from a reference made to the High Court of Calcutta by the Revenue Authorities seeking opinion with regard to the stamp duty payable in the instrument. The respondent in that case was at the material time the Managing Director of M/s. Bird and Co. Ltd. and Messrs F.W. Heilgers and Com. Ltd which were acting Managing Agents of several Companies Act under the Indian Companies Act. The respondents were also Director of a number of other Companies, and had on occasions acted as liquidator of some Companies, as executor or administrator of estates of deceased persons and as trustee of various estates. He proposed to execute power of attorney empowering the M/s. Douglas Chisholm Fairbairn and John James Brims Southerland jointly and severally to act for him in his individual capacity and also as executor administrator, trustee, Managing Agents, liquidator, and all other capacities. The Collector referred the matter under Section 56(2) of the Act to the decision of Chief Controller, Revenue Authority, who eventually referred it to the High Court of Calcutta stating his own opinion that stamp duty was payable on the power “for as many respective capacities as the principal executes the power”. The majority view of the Bench held that the different capacities of the executants would not constitute the distinct matter for the purpose of Section 5 of the Act and that the proper duty and instrument was payable under Article 48(d) of Schedule 1(a) of the Stamp Act. 34. Answering the Reference, the Constitution Bench of this Court elaborately discussed the scope and object of Sections 4,5, and 6 of the Stamp Act and finally allowed the appeal. Their Lordship held:- “We are unable to accept the contention that the word "matter" in section 5 was intended to convey the same meaning as the word "description" in section 6. In its popular sense, the expression "distinct matters" would connote something different from distinct "categories". Two transactions might be of same description, but all the same, they might be distinct. If A sells Black-acre to X and mortgages White-acre to Y, the transactions fall under different categories, and they are also distinct matters. But if A mortgages Black-acre to X and White-acre to Y, the two transactions fall under the same category, but they would certainly be distinct matters. If the intention of the legislature was that the expression distinct matter in section5 should be understood not in its popular sense but narrowly as meaning different categories in the Schedule, nothing would have been easier than to say so. When two words of different import are used in a statute in two consecutive provisions, it would be difficult to maintain that they are used in the same sense, and the conclusion must follow that the expression "distinct matters" in section 5 and "description" in section 6 have different connotations.” 35. Their Lordships further held that:- “When a person possesses both a personal capacity and a representative capacity, such as trustee, and there is a delegation of power by him in both those capacities, the position in law is exactly the same as if different persons join in executing a power in respect of matters which are unrelated. There being no community of interest between the personal estate belonging to the executant and the trust estate vested in him, they must be held to be distinct matters for purposes of section 5. The position is the same when a person is executor or administrator, because in that capacity he represents the estate of the deceased, whose persona is deemed to continue in him for purposes of administration." 36. We have also gone through the provisions contained in Sections 33, 39, Article 6 and 6(b) of the Act as also Bombay Stamp (Gujarat Second Amendment) Rules, 2007 and the Circular dated 2.4.2007. After giving out anxious consideration to those provisions and also in the light of the ratio decided by the Constitution Bench of this Court in The Benthall case (supra), we are of the definite opinion that the High Court has committed serious error of law in interpreting the provisions of Sections 5 and 6 of the Act. Consequently, the answer given by the High Court on the Reference cannot be sustained in Law. ### Response: 1 ### Explanation: 22. From the body of this agreement, it reveals that the borrower had requested the senior lenders i.e. thirteen banks/financial institutions to make available to the borrower loan details of which is more fully set out in Schedule II. Pursuant to the loan agreement entered into by the borrower and the senior lenders, each of senior lenders inter alia agreed to provide to the borrower credit and loan facilities to finance part of the project, costs of the project, more specifically set out in Schedule II.From the facts discussed and narrated hereinabove, it is manifest that the instrument of mortgage came into existence only after separate loan agreements were executed by the borrower with the lenders with regard to separate loan advanced by those lenders to the respondent borrower. The mortgage deed which recites at length as to how and under what circumstances property was mortgaged with the security trustee for and on behalf of lender bank.From bare reading of these provisions, it is clear that Section 4 deals with single transaction completed in several instruments, whereas Section 5 deals only with the instrument which comprises more than one transaction and it is immaterial for the purpose whether those transactions are of the same category or of different categories.32. It appears from the trustee document that altogether 13 banks lent money to the mortgagor, details of which have been described in the schedule and for the repayment of money, the borrower entered into separate loan agreements with 13 financial institutions. Had this borrower entered into a separate mortgage deed with these financial institutions in order to secure the loan there would have been a separate document for distinct transactions. On proper construction of this indenture of mortgage it can safely be regarded as 13 distinct transactions which falls under Section 5 of the Act.We have also gone through the provisions contained in Sections 33, 39, Article 6 and 6(b) of the Act as also Bombay Stamp (Gujarat Second Amendment) Rules, 2007 and the Circular dated 2.4.2007. After giving out anxious consideration to those provisions and also in the light of the ratio decided by the Constitution Bench of this Court in The Benthall case (supra), we are of the definite opinion that the High Court has committed serious error of law in interpreting the provisions of Sections 5 and 6 of the Act. Consequently, the answer given by the High Court on the Reference cannot be sustained in Law.
S.K.Bhate and Others Vs. Union of India and Others	the petitioners want to take advantage, were really the result of a mistake or misunderstanding in not realising the actual legal position of the petitioners as direct recruits. It was pointed out that, in the letters issued calling them for interviews as direct recruits, it was made clear to them that their appointments did not carry with them any decision about their fitness for the post applied for and that they could be considered for any lower post to which they might he so entitled. In other words, this clearly meant that they were on trial. It was also pointed out that promotions are only made under Rule 6 of the Indian Ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956, as amended in 1961 to Chargemen Grade II, on the basis of "a selection list prepared by the appropriate Departmental Promotion Committee". rt was asserted that, in the minutes of the Departmental Promotions Committee held in the month of April 1963, prior to the appointment of petitioners as Chargemen Grade II, the Committee had prescribed a normal minimum qualification of three years service in the post of Grade A for promotion barring exceptional cases of ex- apprentices. It was asserted that, as the Petitioners had not satisfied this condition, they could not be considered for promotion to the posts of Chargemen Grade II. They did not belong to the class which had any exceptional qualifications. Hence, their names did not appear in the list of persons to be promoted prepared by the Departmental Promotions Committee for the post of Chargemen Grade II.It was asserted that they were being treated as direct recruits and not promotees despite their wrong description and even wrong orders conveying the impression that they were promotees. The condition precedent to promotion not having been satisfied they could only be considered as direct recruits and get the appointments reserved for the class of direct recruits as and when their turns arrived in this quota. It was conceded on behalf of the respondents that much larger number of appointments had been made in the class of direct recruits than the vacancies available. It was, however, explained that this was due to the sudden and exceptional demands for these appointments as a result of the pressure on our ordnance Factories due t o the war with China and other defence requirements. It was urged that the petitioners could not take advantage of erroneous orders made by the Manager of their ordnance Factory even if the error had been repeated by the Director General Ordnance Factories. If the petitioners had not satisfied the condition precedent to promotion, they could not get the appointments reserved for the 80% quota of promotees whose work was watched by the Promotions Committee so that they could be declared fit for promotion. The promotions were on the basis of a selection on merit, the tests of which had not been satisfied by the petitioners In fact, the petitioners were considered with others, and were not selected. It was not necessary to give them opportunities of being heard on comparative merits, as they claimed, just as candidates at an examination are not entitled to any such opportunities as these are not disciplinary proceedings.4. Counsel for the petitioners was, in our opinion, not able to meet the objections put forward to petitioners claims as promotees. He could not show that they satisfied the conditions precedent to promotions. Hence, the so called orders of promotion could not cure the defect. It was immaterial that the petitioners were wrongly shown as Promotees in their service records or that they had not received intimations or their appointments as direct recruits. There was a justifiable ground for a distinction between them and the class to which the respondents belonged. There was no challenge to the fairness of the 20% quota reserved for direct recruits as against that of promotees. Hence, we do not think that the petitioners can complain of violation of any fundamental rights under Article 16 of the Constitution petitioners cannot also claim any benefit resulting from being treated as persons belonging to the same class as respondents 5 to 16 whose places on the seniority list are questioned by them as amounting to illegal supersessions of the petitioners. We may mention here that Mr. Sanghi, Counsel appearing for the Union of India, Respondent No. 1, and the Director General ordnance Factory, Respondent No. 2, and other officials, has fairly conceded that so far as the case of Petitioner No. 11 is concerned, it stands on a special footing and that his clients are considering it on that footing. Counsel for the petitioners has also conceded that so far as 3 of the petitioners are concerned, they have been rightly treated as direct recruits. We find no error in treating the others also as direct recruits.5. It may also be mentioned here that Mr. Sanghi, Counsel for the Union of India and its officials, has stated to the Court that none of the petitioners will be reverted to his substantive post merely on the ground that he was treated as a direct recruit. The question of inter-se seniority is a different matter. The petitioners have been unable to establish that they have been denied their seniority in violation of any right under Article 16 of the Constitution.6. It may be mentioned here that, in Amrit Lal Berry Vs. Collector of Central Excise Central Revenue & Ors this Court laid down (at p. 546):"It was for the petitioner to satisfy the Court that he was not given the senior grade although he satisfied all the required conditions of it and that others, who were promoted into it were given unjustifiable preference over him". As we are not satisfied that the seniority list has been prepared in violation of any rule or principle of justice, we are unable to accept the petition before us. We therefore, dismiss this petition. The parties will bear their own costs.	0[ds]4. Counsel for the petitioners was, in our opinion, not able to meet the objections put forward to petitioners claims as promotees. He could not show that they satisfied the conditions precedent to promotions. Hence, the so called orders of promotion could not cure the defect. It was immaterial that the petitioners were wrongly shown as Promotees in their service records or that they had not received intimations or their appointments as direct recruits. There was a justifiable ground for a distinction between them and the class to which the respondents belonged. There was no challenge to the fairness of the 20% quota reserved for direct recruits as against that of promotees. Hence, we do not think that the petitioners can complain of violation of any fundamental rights under Article 16 of the Constitution petitioners cannot also claim any benefit resulting from being treated as persons belonging to the same class as respondents 5 to 16 whose places on the seniority list are questioned by them as amounting to illegal supersessions of the petitioners. We may mention here that Mr. Sanghi, Counsel appearing for the Union of India, Respondent No. 1, and the Director General ordnance Factory, Respondent No. 2, and other officials, has fairly conceded that so far as the case of Petitioner No. 11 is concerned, it stands on a special footing and that his clients are considering it on that footing. Counsel for the petitioners has also conceded that so far as 3 of the petitioners are concerned, they have been rightly treated as direct recruits. We find no error in treating the others also as direct recruits.It may be mentioned here that, in Amrit Lal Berry Vs. Collector of Central Excise Central Revenue & Ors this Court laid down (at p. 546):"It was for the petitioner to satisfy the Court that he was not given the senior grade although he satisfied all the required conditions of it and that others, who were promoted into it were given unjustifiable preference over him". As we are not satisfied that the seniority list has been prepared in violation of any rule or principle of justice, we are unable to accept the petition before us. We therefore, dismiss this petition. The parties will bear their own costs.	0	2,344	422	### 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 petitioners want to take advantage, were really the result of a mistake or misunderstanding in not realising the actual legal position of the petitioners as direct recruits. It was pointed out that, in the letters issued calling them for interviews as direct recruits, it was made clear to them that their appointments did not carry with them any decision about their fitness for the post applied for and that they could be considered for any lower post to which they might he so entitled. In other words, this clearly meant that they were on trial. It was also pointed out that promotions are only made under Rule 6 of the Indian Ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956, as amended in 1961 to Chargemen Grade II, on the basis of "a selection list prepared by the appropriate Departmental Promotion Committee". rt was asserted that, in the minutes of the Departmental Promotions Committee held in the month of April 1963, prior to the appointment of petitioners as Chargemen Grade II, the Committee had prescribed a normal minimum qualification of three years service in the post of Grade A for promotion barring exceptional cases of ex- apprentices. It was asserted that, as the Petitioners had not satisfied this condition, they could not be considered for promotion to the posts of Chargemen Grade II. They did not belong to the class which had any exceptional qualifications. Hence, their names did not appear in the list of persons to be promoted prepared by the Departmental Promotions Committee for the post of Chargemen Grade II.It was asserted that they were being treated as direct recruits and not promotees despite their wrong description and even wrong orders conveying the impression that they were promotees. The condition precedent to promotion not having been satisfied they could only be considered as direct recruits and get the appointments reserved for the class of direct recruits as and when their turns arrived in this quota. It was conceded on behalf of the respondents that much larger number of appointments had been made in the class of direct recruits than the vacancies available. It was, however, explained that this was due to the sudden and exceptional demands for these appointments as a result of the pressure on our ordnance Factories due t o the war with China and other defence requirements. It was urged that the petitioners could not take advantage of erroneous orders made by the Manager of their ordnance Factory even if the error had been repeated by the Director General Ordnance Factories. If the petitioners had not satisfied the condition precedent to promotion, they could not get the appointments reserved for the 80% quota of promotees whose work was watched by the Promotions Committee so that they could be declared fit for promotion. The promotions were on the basis of a selection on merit, the tests of which had not been satisfied by the petitioners In fact, the petitioners were considered with others, and were not selected. It was not necessary to give them opportunities of being heard on comparative merits, as they claimed, just as candidates at an examination are not entitled to any such opportunities as these are not disciplinary proceedings.4. Counsel for the petitioners was, in our opinion, not able to meet the objections put forward to petitioners claims as promotees. He could not show that they satisfied the conditions precedent to promotions. Hence, the so called orders of promotion could not cure the defect. It was immaterial that the petitioners were wrongly shown as Promotees in their service records or that they had not received intimations or their appointments as direct recruits. There was a justifiable ground for a distinction between them and the class to which the respondents belonged. There was no challenge to the fairness of the 20% quota reserved for direct recruits as against that of promotees. Hence, we do not think that the petitioners can complain of violation of any fundamental rights under Article 16 of the Constitution petitioners cannot also claim any benefit resulting from being treated as persons belonging to the same class as respondents 5 to 16 whose places on the seniority list are questioned by them as amounting to illegal supersessions of the petitioners. We may mention here that Mr. Sanghi, Counsel appearing for the Union of India, Respondent No. 1, and the Director General ordnance Factory, Respondent No. 2, and other officials, has fairly conceded that so far as the case of Petitioner No. 11 is concerned, it stands on a special footing and that his clients are considering it on that footing. Counsel for the petitioners has also conceded that so far as 3 of the petitioners are concerned, they have been rightly treated as direct recruits. We find no error in treating the others also as direct recruits.5. It may also be mentioned here that Mr. Sanghi, Counsel for the Union of India and its officials, has stated to the Court that none of the petitioners will be reverted to his substantive post merely on the ground that he was treated as a direct recruit. The question of inter-se seniority is a different matter. The petitioners have been unable to establish that they have been denied their seniority in violation of any right under Article 16 of the Constitution.6. It may be mentioned here that, in Amrit Lal Berry Vs. Collector of Central Excise Central Revenue & Ors this Court laid down (at p. 546):"It was for the petitioner to satisfy the Court that he was not given the senior grade although he satisfied all the required conditions of it and that others, who were promoted into it were given unjustifiable preference over him". As we are not satisfied that the seniority list has been prepared in violation of any rule or principle of justice, we are unable to accept the petition before us. We therefore, dismiss this petition. The parties will bear their own costs. ### Response: 0 ### Explanation: 4. Counsel for the petitioners was, in our opinion, not able to meet the objections put forward to petitioners claims as promotees. He could not show that they satisfied the conditions precedent to promotions. Hence, the so called orders of promotion could not cure the defect. It was immaterial that the petitioners were wrongly shown as Promotees in their service records or that they had not received intimations or their appointments as direct recruits. There was a justifiable ground for a distinction between them and the class to which the respondents belonged. There was no challenge to the fairness of the 20% quota reserved for direct recruits as against that of promotees. Hence, we do not think that the petitioners can complain of violation of any fundamental rights under Article 16 of the Constitution petitioners cannot also claim any benefit resulting from being treated as persons belonging to the same class as respondents 5 to 16 whose places on the seniority list are questioned by them as amounting to illegal supersessions of the petitioners. We may mention here that Mr. Sanghi, Counsel appearing for the Union of India, Respondent No. 1, and the Director General ordnance Factory, Respondent No. 2, and other officials, has fairly conceded that so far as the case of Petitioner No. 11 is concerned, it stands on a special footing and that his clients are considering it on that footing. Counsel for the petitioners has also conceded that so far as 3 of the petitioners are concerned, they have been rightly treated as direct recruits. We find no error in treating the others also as direct recruits.It may be mentioned here that, in Amrit Lal Berry Vs. Collector of Central Excise Central Revenue & Ors this Court laid down (at p. 546):"It was for the petitioner to satisfy the Court that he was not given the senior grade although he satisfied all the required conditions of it and that others, who were promoted into it were given unjustifiable preference over him". As we are not satisfied that the seniority list has been prepared in violation of any rule or principle of justice, we are unable to accept the petition before us. We therefore, dismiss this petition. The parties will bear their own costs.
Savitri Pandey Vs. Prem Chandra Pandey	Approach of the court should be to preserve the matrimonial home and be reluctant to dissolve the marriage on the asking of one of the parties. 15. For upholding the judgment and decree of the Family Court, Shri Dinesh Kumar Garg, the learned counsel appearing for the appellant submitted that as after the decree of divorce the appellant had remarried with one Sudhakar Pandey and out of the second marriage a child is also stated to have been born, it would be in the interest of justice and the parties that the marriage between them is dissolved by a decree of divorce. In support of his contention he has relied upon judgments of this Court in Anita Sabharwal v. Anil Sabharwal [1997 (11) SCC 490 ], Shashi Garg (Smt.) v. Arun Garg[1997 (7) SCC 565 ], Ashok Hurra v. Rupa Bipin Zaveri [1997 (4) SCC 226 ] and Madhuri Mehta v. Meet Verma [1997 (11) SCC 81 ]. 16. To appreciate such a submission some facts have to be noticed and the interest of public and society to be borne in mind. It appears that the marriage between the parties was dissolved by a decree of divorce vide the judgment and decree of the Family Court dated 8.7.1996. The respondent-husband filed appeal against the judgment and decree on 19.1.1997. As no stay was granted, the appellant solemnised the second marriage on 29.5.1997, admittedly, during the pendency of the appeal before the High Court. There is no denial of the fact that right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending in the High Court. No person can be permitted to flout the course of justice by his or her overt and covert acts. The facts of the cases relied upon by the learned counsel for the appellant are distinct having no proximity with the facts of the present case. In all the cases relied upon by the appellant and referred to hereinabove, the marriage between the parties was dissolved by a decree of divorce by mutual consent in terms of application under Section 13B of the Act. This Court while allowing the applications filed under Section 13B took into consideration the circumstances of each case and granted the relief on the basis of compromise. Almost in all cases the other side was duly compensated by the grant of lumpsum amount and permanent provision regarding maintenance. 17. This court in Ms. Jorden Diengdeh v. S.S. Chopra [AIR 1985 SC 935 ] suggested for a complete reform of law of marriage and to make a uniform law applicable to all people irrespective of religion or caste. The Court observed: "It appears to be necessary to introduce irretrievable breakdown of marriage and mutual consent as grounds of divorce in all cases..... There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situation in which couples like the present have found themselves." 18. Marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity or marriage cannot be left at the whims of one of the annoying spouses. This Court in V. Bhagat v. Mrs. D. Bhagat [AIR 1994 SC 710 ] held that irretrievable breakdown of the marriage is not a ground by itself to dissolve it. 19. As already held, the appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this court under Article 142 of the Constitution for dissolving the marriage. 20. At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf. 21.	0[ds]Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where on spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension or bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general the be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife has failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the familythe offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to bring cohabitation permanently to an and (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts ofperiod of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf.	0	4,210	760	### 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: Approach of the court should be to preserve the matrimonial home and be reluctant to dissolve the marriage on the asking of one of the parties. 15. For upholding the judgment and decree of the Family Court, Shri Dinesh Kumar Garg, the learned counsel appearing for the appellant submitted that as after the decree of divorce the appellant had remarried with one Sudhakar Pandey and out of the second marriage a child is also stated to have been born, it would be in the interest of justice and the parties that the marriage between them is dissolved by a decree of divorce. In support of his contention he has relied upon judgments of this Court in Anita Sabharwal v. Anil Sabharwal [1997 (11) SCC 490 ], Shashi Garg (Smt.) v. Arun Garg[1997 (7) SCC 565 ], Ashok Hurra v. Rupa Bipin Zaveri [1997 (4) SCC 226 ] and Madhuri Mehta v. Meet Verma [1997 (11) SCC 81 ]. 16. To appreciate such a submission some facts have to be noticed and the interest of public and society to be borne in mind. It appears that the marriage between the parties was dissolved by a decree of divorce vide the judgment and decree of the Family Court dated 8.7.1996. The respondent-husband filed appeal against the judgment and decree on 19.1.1997. As no stay was granted, the appellant solemnised the second marriage on 29.5.1997, admittedly, during the pendency of the appeal before the High Court. There is no denial of the fact that right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending in the High Court. No person can be permitted to flout the course of justice by his or her overt and covert acts. The facts of the cases relied upon by the learned counsel for the appellant are distinct having no proximity with the facts of the present case. In all the cases relied upon by the appellant and referred to hereinabove, the marriage between the parties was dissolved by a decree of divorce by mutual consent in terms of application under Section 13B of the Act. This Court while allowing the applications filed under Section 13B took into consideration the circumstances of each case and granted the relief on the basis of compromise. Almost in all cases the other side was duly compensated by the grant of lumpsum amount and permanent provision regarding maintenance. 17. This court in Ms. Jorden Diengdeh v. S.S. Chopra [AIR 1985 SC 935 ] suggested for a complete reform of law of marriage and to make a uniform law applicable to all people irrespective of religion or caste. The Court observed: "It appears to be necessary to introduce irretrievable breakdown of marriage and mutual consent as grounds of divorce in all cases..... There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situation in which couples like the present have found themselves." 18. Marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity or marriage cannot be left at the whims of one of the annoying spouses. This Court in V. Bhagat v. Mrs. D. Bhagat [AIR 1994 SC 710 ] held that irretrievable breakdown of the marriage is not a ground by itself to dissolve it. 19. As already held, the appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this court under Article 142 of the Constitution for dissolving the marriage. 20. At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf. 21. ### Response: 0 ### Explanation: Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where on spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension or bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general the be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife has failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the familythe offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to bring cohabitation permanently to an and (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts ofperiod of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf.
Kamaksha Rai Vs. State of U.P	time to cross-check the particulars given in the chart. After cross-checking the same with reference to the evidence available on record, the learned counsel for the State has agreed that the particulars given in the chart are correct. In view of the fact that there is considerable confusion in the ranking assigned to the appellants/accused persons in the trial Court, High Court and in this Court, we consider it necessary to refer to the appellants by their names while discussing the merits of their individual cases in these appeals. The evidence of PWs. 1 to 3 has not found any corroboration in regard to the appellants - Basan Rai son of Sukha Rao, Shri Rai son of Sheomuni Rai, Singhasan Rai son of Brahmdeo Rao, Uma Rai son of Badan Rai, Sita Rai son of Ramadeo Rai, Gurudatt Rai son of Lodhi Rai, Lallu @ Lallu Rai son of Radhika Rai, Nand Kishore Rai son of Lakshmi Rai, Bindhyachal Rai son of Nandan Rai, Munni Lal Rai son of Radhika Rai, Chhabinath Rai son of Bipin Bihari Rai and Mahendra Rai son of Ram Naresh Rai. On the basis of the reasoning adopted by us hereinabove as against these appellants, it cannot be said that the prosecution has established its case beyond reasonable doubt as against these appellants.15. With reference to Deena Rai son of Brahmdeo Rai, apart fom the evidence of PWs. 1-3, PW-5 has spoken about their presence at the time of the second incident and he has stated that these three persons were responsible to set his house on fire. In the cross-examination apart from establishing the fact that his evidence was recorded 3 days after the incident which in a case of this nature we find not very unnatural we are of the opinion that there is corroboration in regard to the evidence of PWs. 1-3 in regard to the participation of this accused person. In regard to Tarkeshwar Rai son of Ram Raksh Rai in addition to the evidence of PWs. 1-3, there is the evidence of PWs. 10, 11, 12, 14 and 15 which corroborates the evidence of PWs. 1-3, hence, we do not find any difficulty in coming to the conclusion that the prosecution has established the charges levelled against this accused with reference to the second incident. 16. In regard to Sivil Rai son of Baijnath Rai apart from the anchor evidence, there is the evidence of PW-8. He has stated in his evidence that Sivil Rai was one of the persons who was present at the time of attack and had set his house ablaze. We find in the cross-examination nothing material has been elicited to disbelieve the evidence of this witness. Therefore, we find corroboration in the prosecution case in support of the evidence of PWs. 1-3 to find this person also guilty of his participation in the second incident. 17. In regard to Kamaksha Rai son of Chengan Rai apart from the anchor evidence, there is the evidence of PWs. 11, 15 and 16 corroborating the same. Therefore, we do not find any difficulty in coming to the conclusion that this accused was present and had taken part in the second incident. The same can be said of Raja Ram Rai son of Chengan Rai whose presence and participation is corroborated in support of the anchor evidence by PWs. 10 and 16. Tarkeshwar Rai son of Suraj Rais participation in the second incident is spoken to by the anchor witness whose evidence is supported by the evidence of PW-10. She has in specific terms stated that two Tarkeshwar Rais i.e. Tarkeshwar Rai son of Ram Raksh Rai and Junior Tarkeshwar Rai meaning thereby both the Tarkeshwars had set her house afire consequent to which she lost her house and two domestic animals. In her cross-examination, we find that the defence has not been able to establish any contradiction or doubt. Therefore, we have no hesitation in accepting her evidence. With reference to Harihar Rai son of Dubari Lal apart from the anchor evidence PW-6 has spoken in specific terms with reference to the act of this accused having set his house on fire. Therefore, on finding corroboration, we find him guilty of his presence and participation in the second incident. In regard to Rama Rai son of Kali Ram - the case against him is sought to be corroborated through the evidence of PW-6 whose evidence we have already accepted with reference to Harihar Rai and this corroborating witness has also named this accused specifically with particulars of the overt act of burning his house. Therefore, his case stands on the same footing as that of Harihar Rai and we accept the prosecution case against this accused in regard to his presence and participation in the second incident. 18. In regard to Mukteshwar Upadhya son of Rama Upadhya, PW-5 apart from the anchor witnesses speaks about the presence of this accused at the time of the second incident. We have accepted the evidence of this witness with reference to Deena Rai above. On the same basis we find that this witness PW-5 corroborates the evidence of the anchor witness in regard to this appellant, hence, we find him also guilty of the presence and participation in the second incident. 19. In regard to Sheomuni Rai son of Chengan Rai, PWs. 1 to 3s evidence is supported by the evidence of PW-8. Though we have accepted the evidence of PW-8 with reference to the participation of Sivil Rai son of Baijnath Rai, we find it difficult to accept the evidence of this witness (PW-8) with reference to this accused since there seems to be some confusion in regard to the name of this accused in the evidence of this witness as there is no other witness to corroborate the evidence of the anchor witnesses. Apart from this witness, we consider it unsafe to rely upon the evidence of this witness. Hence, this accused is entitled to the benefit of doubt.	0[ds]In view of the fact that there is considerable confusion in the ranking assigned to the appellants/accused persons in the trial Court, High Court and in this Court, we consider it necessary to refer to the appellants by their names while discussing the merits of their individual cases in these appeals. The evidence of PWs. 1 to 3 has not found any corroboration in regard to the appellantsBasan Rai son of Sukha Rao, Shri Rai son of Sheomuni Rai, Singhasan Rai son of Brahmdeo Rao, Uma Rai son of Badan Rai, Sita Rai son of Ramadeo Rai, Gurudatt Rai son of Lodhi Rai, Lallu @ Lallu Rai son of Radhika Rai, Nand Kishore Rai son of Lakshmi Rai, Bindhyachal Rai son of Nandan Rai, Munni Lal Rai son of Radhika Rai, Chhabinath Rai son of Bipin Bihari Rai and Mahendra Rai son of Ram Naresh Rai. On the basis of the reasoning adopted by us hereinabove as against these appellants, it cannot be said that the prosecution has established its case beyond reasonable doubt as against these appellants.15. With reference to Deena Rai son of Brahmdeo Rai, apart fom the evidence of PWs.5 has spoken about their presence at the time of the second incident and he has stated that these three persons were responsible to set his house on fire. In theapart from establishing the fact that his evidence was recorded 3 days after the incident which in a case of this nature we find not very unnatural we are of the opinion that there is corroboration in regard to the evidence of PWs.in regard to the participation of this accused person. In regard to Tarkeshwar Rai son of Ram Raksh Rai in addition to the evidence of PWs.there is the evidence of PWs. 10, 11, 12, 14 and 15 which corroborates the evidence of PWs.hence, we do not find any difficulty in coming to the conclusion that the prosecution has established the charges levelled against this accused with reference to the secondn, we find that the defence has not been able to establish any contradiction or doubt. Therefore, we have no hesitation in accepting her evidence. With reference to Harihar Rai son of Dubari Lal apart from the anchor evidencehas spoken in specific terms with reference to the act of this accused having set his house on fire. Therefore, on finding corroboration, we find him guilty of his presence and participation in the second incident. In regard to Rama Rai son of Kali Ramthe case against him is sought to be corroborated through the evidence ofwhose evidence we have already accepted with reference to Harihar Rai and this corroborating witness has also named this accused specifically with particulars of the overt act of burning his house. Therefore, his case stands on the same footing as that of Harihar Rai and we accept the prosecution case against this accused in regard to his presence and participation in the secondthe same basis we find that this witnesscorroborates the evidence of the anchor witness in regard to this appellant, hence, we find him also guilty of the presence and participation in the secondwe have accepted the evidence ofwith reference to the participation of Sivil Rai son of Baijnath Rai, we find it difficult to accept the evidence of this witnesswith reference to this accused since there seems to be some confusion in regard to the name of this accused in the evidence of this witness as there is no other witness to corroborate the evidence of the anchor witnesses. Apart from this witness, we consider it unsafe to rely upon the evidence of this witness. Hence, this accused is entitled to the benefit of doubt.20. Coming to the appeal of the State wherein the State has challenged the acquittal of those 5 persons of the charges under Section 302 read with Section 149, Section 364 read with Section 149 and further reducing the sentence of all the respondents for the offences under Sections 429/149 and 436/149 IPC from 5 years to 3 years RI and from 10 years and to 5 years RI. We have heard learned counsel for the State as well as for the respondents. We find the reasoning of the High Court that the incident leading to the murders of Radhey Shyam and Banarsi has not been established by the prosecution, as alleged by it. From the evidence on record the prosecution has failed to explain the circumstances in which Ram Chander Rai and Mangla Rai came to be murdered. The notice attributed in the present case having a direct bearing on the incident which led to the death of Ram Chander Rai and Mangla Rai, it cannot be said that the genesis of the attack has been properly brought forth in the prosecution case. The view taken by the High Court that both the sets of murder might have been the result of a fight between two groups of persons in the village which the investigating agency has not been able to unearth and present to the Court in its true perspective/sequence, cannot be said to be perverse and unreasonable so as to call for interference by this Court in these appeals. We are also of the opinion that taking into consideration all facts and circumstances of the case, the decision of the High Court to alter the sentence awarded by the trial Court by reducing the same from 5 years to 3 years RI for offence under Section 429 read with Section 149 and from 10 years to 5 years RI for offence under Section 436 read with Section 149 IPC respectively cannot also be said to be erroneous and unreasonable so as to call for our interference.	0	4,464	1,015	### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: time to cross-check the particulars given in the chart. After cross-checking the same with reference to the evidence available on record, the learned counsel for the State has agreed that the particulars given in the chart are correct. In view of the fact that there is considerable confusion in the ranking assigned to the appellants/accused persons in the trial Court, High Court and in this Court, we consider it necessary to refer to the appellants by their names while discussing the merits of their individual cases in these appeals. The evidence of PWs. 1 to 3 has not found any corroboration in regard to the appellants - Basan Rai son of Sukha Rao, Shri Rai son of Sheomuni Rai, Singhasan Rai son of Brahmdeo Rao, Uma Rai son of Badan Rai, Sita Rai son of Ramadeo Rai, Gurudatt Rai son of Lodhi Rai, Lallu @ Lallu Rai son of Radhika Rai, Nand Kishore Rai son of Lakshmi Rai, Bindhyachal Rai son of Nandan Rai, Munni Lal Rai son of Radhika Rai, Chhabinath Rai son of Bipin Bihari Rai and Mahendra Rai son of Ram Naresh Rai. On the basis of the reasoning adopted by us hereinabove as against these appellants, it cannot be said that the prosecution has established its case beyond reasonable doubt as against these appellants.15. With reference to Deena Rai son of Brahmdeo Rai, apart fom the evidence of PWs. 1-3, PW-5 has spoken about their presence at the time of the second incident and he has stated that these three persons were responsible to set his house on fire. In the cross-examination apart from establishing the fact that his evidence was recorded 3 days after the incident which in a case of this nature we find not very unnatural we are of the opinion that there is corroboration in regard to the evidence of PWs. 1-3 in regard to the participation of this accused person. In regard to Tarkeshwar Rai son of Ram Raksh Rai in addition to the evidence of PWs. 1-3, there is the evidence of PWs. 10, 11, 12, 14 and 15 which corroborates the evidence of PWs. 1-3, hence, we do not find any difficulty in coming to the conclusion that the prosecution has established the charges levelled against this accused with reference to the second incident. 16. In regard to Sivil Rai son of Baijnath Rai apart from the anchor evidence, there is the evidence of PW-8. He has stated in his evidence that Sivil Rai was one of the persons who was present at the time of attack and had set his house ablaze. We find in the cross-examination nothing material has been elicited to disbelieve the evidence of this witness. Therefore, we find corroboration in the prosecution case in support of the evidence of PWs. 1-3 to find this person also guilty of his participation in the second incident. 17. In regard to Kamaksha Rai son of Chengan Rai apart from the anchor evidence, there is the evidence of PWs. 11, 15 and 16 corroborating the same. Therefore, we do not find any difficulty in coming to the conclusion that this accused was present and had taken part in the second incident. The same can be said of Raja Ram Rai son of Chengan Rai whose presence and participation is corroborated in support of the anchor evidence by PWs. 10 and 16. Tarkeshwar Rai son of Suraj Rais participation in the second incident is spoken to by the anchor witness whose evidence is supported by the evidence of PW-10. She has in specific terms stated that two Tarkeshwar Rais i.e. Tarkeshwar Rai son of Ram Raksh Rai and Junior Tarkeshwar Rai meaning thereby both the Tarkeshwars had set her house afire consequent to which she lost her house and two domestic animals. In her cross-examination, we find that the defence has not been able to establish any contradiction or doubt. Therefore, we have no hesitation in accepting her evidence. With reference to Harihar Rai son of Dubari Lal apart from the anchor evidence PW-6 has spoken in specific terms with reference to the act of this accused having set his house on fire. Therefore, on finding corroboration, we find him guilty of his presence and participation in the second incident. In regard to Rama Rai son of Kali Ram - the case against him is sought to be corroborated through the evidence of PW-6 whose evidence we have already accepted with reference to Harihar Rai and this corroborating witness has also named this accused specifically with particulars of the overt act of burning his house. Therefore, his case stands on the same footing as that of Harihar Rai and we accept the prosecution case against this accused in regard to his presence and participation in the second incident. 18. In regard to Mukteshwar Upadhya son of Rama Upadhya, PW-5 apart from the anchor witnesses speaks about the presence of this accused at the time of the second incident. We have accepted the evidence of this witness with reference to Deena Rai above. On the same basis we find that this witness PW-5 corroborates the evidence of the anchor witness in regard to this appellant, hence, we find him also guilty of the presence and participation in the second incident. 19. In regard to Sheomuni Rai son of Chengan Rai, PWs. 1 to 3s evidence is supported by the evidence of PW-8. Though we have accepted the evidence of PW-8 with reference to the participation of Sivil Rai son of Baijnath Rai, we find it difficult to accept the evidence of this witness (PW-8) with reference to this accused since there seems to be some confusion in regard to the name of this accused in the evidence of this witness as there is no other witness to corroborate the evidence of the anchor witnesses. Apart from this witness, we consider it unsafe to rely upon the evidence of this witness. Hence, this accused is entitled to the benefit of doubt. ### Response: 0 ### Explanation: In view of the fact that there is considerable confusion in the ranking assigned to the appellants/accused persons in the trial Court, High Court and in this Court, we consider it necessary to refer to the appellants by their names while discussing the merits of their individual cases in these appeals. The evidence of PWs. 1 to 3 has not found any corroboration in regard to the appellantsBasan Rai son of Sukha Rao, Shri Rai son of Sheomuni Rai, Singhasan Rai son of Brahmdeo Rao, Uma Rai son of Badan Rai, Sita Rai son of Ramadeo Rai, Gurudatt Rai son of Lodhi Rai, Lallu @ Lallu Rai son of Radhika Rai, Nand Kishore Rai son of Lakshmi Rai, Bindhyachal Rai son of Nandan Rai, Munni Lal Rai son of Radhika Rai, Chhabinath Rai son of Bipin Bihari Rai and Mahendra Rai son of Ram Naresh Rai. On the basis of the reasoning adopted by us hereinabove as against these appellants, it cannot be said that the prosecution has established its case beyond reasonable doubt as against these appellants.15. With reference to Deena Rai son of Brahmdeo Rai, apart fom the evidence of PWs.5 has spoken about their presence at the time of the second incident and he has stated that these three persons were responsible to set his house on fire. In theapart from establishing the fact that his evidence was recorded 3 days after the incident which in a case of this nature we find not very unnatural we are of the opinion that there is corroboration in regard to the evidence of PWs.in regard to the participation of this accused person. In regard to Tarkeshwar Rai son of Ram Raksh Rai in addition to the evidence of PWs.there is the evidence of PWs. 10, 11, 12, 14 and 15 which corroborates the evidence of PWs.hence, we do not find any difficulty in coming to the conclusion that the prosecution has established the charges levelled against this accused with reference to the secondn, we find that the defence has not been able to establish any contradiction or doubt. Therefore, we have no hesitation in accepting her evidence. With reference to Harihar Rai son of Dubari Lal apart from the anchor evidencehas spoken in specific terms with reference to the act of this accused having set his house on fire. Therefore, on finding corroboration, we find him guilty of his presence and participation in the second incident. In regard to Rama Rai son of Kali Ramthe case against him is sought to be corroborated through the evidence ofwhose evidence we have already accepted with reference to Harihar Rai and this corroborating witness has also named this accused specifically with particulars of the overt act of burning his house. Therefore, his case stands on the same footing as that of Harihar Rai and we accept the prosecution case against this accused in regard to his presence and participation in the secondthe same basis we find that this witnesscorroborates the evidence of the anchor witness in regard to this appellant, hence, we find him also guilty of the presence and participation in the secondwe have accepted the evidence ofwith reference to the participation of Sivil Rai son of Baijnath Rai, we find it difficult to accept the evidence of this witnesswith reference to this accused since there seems to be some confusion in regard to the name of this accused in the evidence of this witness as there is no other witness to corroborate the evidence of the anchor witnesses. Apart from this witness, we consider it unsafe to rely upon the evidence of this witness. Hence, this accused is entitled to the benefit of doubt.20. Coming to the appeal of the State wherein the State has challenged the acquittal of those 5 persons of the charges under Section 302 read with Section 149, Section 364 read with Section 149 and further reducing the sentence of all the respondents for the offences under Sections 429/149 and 436/149 IPC from 5 years to 3 years RI and from 10 years and to 5 years RI. We have heard learned counsel for the State as well as for the respondents. We find the reasoning of the High Court that the incident leading to the murders of Radhey Shyam and Banarsi has not been established by the prosecution, as alleged by it. From the evidence on record the prosecution has failed to explain the circumstances in which Ram Chander Rai and Mangla Rai came to be murdered. The notice attributed in the present case having a direct bearing on the incident which led to the death of Ram Chander Rai and Mangla Rai, it cannot be said that the genesis of the attack has been properly brought forth in the prosecution case. The view taken by the High Court that both the sets of murder might have been the result of a fight between two groups of persons in the village which the investigating agency has not been able to unearth and present to the Court in its true perspective/sequence, cannot be said to be perverse and unreasonable so as to call for interference by this Court in these appeals. We are also of the opinion that taking into consideration all facts and circumstances of the case, the decision of the High Court to alter the sentence awarded by the trial Court by reducing the same from 5 years to 3 years RI for offence under Section 429 read with Section 149 and from 10 years to 5 years RI for offence under Section 436 read with Section 149 IPC respectively cannot also be said to be erroneous and unreasonable so as to call for our interference.
HARYANA POWER PURCHASE CENTRE Vs. MAGNUM POWER GENERATION LIMITED & ANR	order, not being challenged by either party. (viii) Despite this order and the clear direction of the Commission that fixed costs have to be paid to the generator irrespective of whether energy is purchased or not, the HERC order dated 23.03.2010 ultimately dismissed the appellants appeal filed under Section 86(1)(f) of the Electricity Act as follows:- Final Order The above order of the Commission on each issue needs to be given a concrete shape by calculating the due amount payable to the either party and whatever is the net to be paid to the petitioner as per the following directions:- After calculating the due amount within a period of one month, first instalment of the same may be paid within a period of two months and the balance amount two months thereafter. This amount however would not be reimbursed by HERC through any claim or through FSA since the respondents have been claiming FSA in respect of MPGL under the head Deemed Generation Charges and the same stands recovered from the electricity consumers. Hence, whatsoever the excess recovery they have made from the consumer on this account, after settlement of account with MPGL in the light of the findings in the earlier paragraphs, the remaining amount either be refunded back to the consumer or to be adjusted against the future filing with the prior approval of HERC. FSA formula approved by the Commission itself provides for subsequent adjustment of/under/over recovery of the same. In passing, the Commission would wish for the revival of the plant to augment the generating capacity in the State. It is advised that both the parties may request a generation expert at the Central Electricity Authority (CEA) Govt. Of India to pay a visit to the site to check up the present state of the plant in presence of both the parties. The fees for this maybe equally shared. Thereafter the parties may work out a scheme for operationalising the plant for the benefit of all the stakeholders by entering into a fresh PPA/renegotiating the existing one which is workable and takes into account the financial interest of both the parties and the interest of the consumers of Haryana at large. (ix) An appeal from this order was also dismissed by the Appellate Tribunal by judgment dated 23.03.2012 in which after setting out the various clauses of the PPA, the Appellate Tribunal held as follows:- 33. The above analysis of Article 8.2 would indicate that the Appellant was under obligation to make available the plant to generate atleast 148.79 MU at 75% PLF. This conclusion is supported by Article 6.1(j) & (k) under which the Appellant has undertaken to supply the Contracted Capacity as defined in Schedule 3 of the PPA and works out to 143.79 for tested capacity of the Plant. These provisions are reproduced below for better understanding and completeness. (i) Make available to HSEB not later than the Required Synchronization Date, the Contracted energy and the Contracted operating Characteristics of each Units; and (k) Operate and maintain the Project so as to provide the HSEB with the Contracted energy and the Contracted Operating Characteristics of the Units reliably over the Term of this Agreement, taking into account permissible degradation. 3.1 Formula for Contracted Electrical Output Contracted Electrical output per year in Million Kwh (MU) = (8760 x 0.75 x 1000) (1-AuxCons.%)xTested Capacity in MW 1000000 = 8760 x 0.75 x 0.965 x 22.67/1000 = 143.79 MU. 34. In the light of above analysis, we hold that the Appellant was under obligation to declare annual availability of the plant to atleast 75% of tested capacity so as to obtain an annual PLF of 75%. 2. Mr. Jayant Bhushan, learned senior counsel appearing on behalf of the appellant has argued that because of the Commissions order of 12.08.2002 and because the power generated by the appellant would impact the consumer as electricity charges would then become very high, the Commission made it clear that the appellants electrical energy was not a source of power which could at all be tapped as a result of which not even a single mega watt of power was supplied or sold by the appellant to the respondent. He, however, contended that this very Commissions order made it clear that this was in the consumer interest, but that the appellant would be entitled to recover its fixed cost, which unfortunately has been missed by both the Commission as well as the Appellate Tribunal in the impugned order. He also argued that both the orders were faulty in their reading of Clause 8.2 of the PPA which cannot be read so that supply at atleast 75% of the Plant Load Factor be made a condition precedent for claiming fixed energy charges, as that clause when properly read makes it clear that the PPA itself made it clear that once the power project has been set up by the appellant, the fixed energy cost will have to be paid in any event. 3. As against this, Mr. Gurinder Singh Gill, learned senior counsel appearing on behalf of the respondent, supported the judgments of the Commission and the Tribunal, and argued that a proper reading of Article 8.2 would make it clear that it would become operative only when declared availability is more than 75% of the Plant Load Factor. 4. Having heard learned counsel for both sides, these appeals can be disposed of on the short ground that the Commissions Tariff Order of 12.08.2003 had made it clear that fixed costs during the currency of the agreement for generating electricity must be paid despite no supply having been made because the tariff order itself interdicted such supply in consumer interest. We have also noted that for the years in question it is clear that the fixed cost that has been demanded by the appellant from the respondent has in fact been collected from the consumer but not paid over to the appellant, which would result in an unjust windfall for the respondent.	1[ds]4. Having heard learned counsel for both sides, these appeals can be disposed of on the short ground that the Commissions Tariff Order of 12.08.2003 had made it clear that fixed costs during the currency of the agreement for generating electricity must be paid despite no supply having been made because the tariff order itself interdicted such supply in consumer interest. We have also noted that for the years in question it is clear that the fixed cost that has been demanded by the appellant from the respondent has in fact been collected from the consumer but not paid over to the appellant, which would result in an unjust windfall for the respondent.	1	3,001	122	### 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: order, not being challenged by either party. (viii) Despite this order and the clear direction of the Commission that fixed costs have to be paid to the generator irrespective of whether energy is purchased or not, the HERC order dated 23.03.2010 ultimately dismissed the appellants appeal filed under Section 86(1)(f) of the Electricity Act as follows:- Final Order The above order of the Commission on each issue needs to be given a concrete shape by calculating the due amount payable to the either party and whatever is the net to be paid to the petitioner as per the following directions:- After calculating the due amount within a period of one month, first instalment of the same may be paid within a period of two months and the balance amount two months thereafter. This amount however would not be reimbursed by HERC through any claim or through FSA since the respondents have been claiming FSA in respect of MPGL under the head Deemed Generation Charges and the same stands recovered from the electricity consumers. Hence, whatsoever the excess recovery they have made from the consumer on this account, after settlement of account with MPGL in the light of the findings in the earlier paragraphs, the remaining amount either be refunded back to the consumer or to be adjusted against the future filing with the prior approval of HERC. FSA formula approved by the Commission itself provides for subsequent adjustment of/under/over recovery of the same. In passing, the Commission would wish for the revival of the plant to augment the generating capacity in the State. It is advised that both the parties may request a generation expert at the Central Electricity Authority (CEA) Govt. Of India to pay a visit to the site to check up the present state of the plant in presence of both the parties. The fees for this maybe equally shared. Thereafter the parties may work out a scheme for operationalising the plant for the benefit of all the stakeholders by entering into a fresh PPA/renegotiating the existing one which is workable and takes into account the financial interest of both the parties and the interest of the consumers of Haryana at large. (ix) An appeal from this order was also dismissed by the Appellate Tribunal by judgment dated 23.03.2012 in which after setting out the various clauses of the PPA, the Appellate Tribunal held as follows:- 33. The above analysis of Article 8.2 would indicate that the Appellant was under obligation to make available the plant to generate atleast 148.79 MU at 75% PLF. This conclusion is supported by Article 6.1(j) & (k) under which the Appellant has undertaken to supply the Contracted Capacity as defined in Schedule 3 of the PPA and works out to 143.79 for tested capacity of the Plant. These provisions are reproduced below for better understanding and completeness. (i) Make available to HSEB not later than the Required Synchronization Date, the Contracted energy and the Contracted operating Characteristics of each Units; and (k) Operate and maintain the Project so as to provide the HSEB with the Contracted energy and the Contracted Operating Characteristics of the Units reliably over the Term of this Agreement, taking into account permissible degradation. 3.1 Formula for Contracted Electrical Output Contracted Electrical output per year in Million Kwh (MU) = (8760 x 0.75 x 1000) (1-AuxCons.%)xTested Capacity in MW 1000000 = 8760 x 0.75 x 0.965 x 22.67/1000 = 143.79 MU. 34. In the light of above analysis, we hold that the Appellant was under obligation to declare annual availability of the plant to atleast 75% of tested capacity so as to obtain an annual PLF of 75%. 2. Mr. Jayant Bhushan, learned senior counsel appearing on behalf of the appellant has argued that because of the Commissions order of 12.08.2002 and because the power generated by the appellant would impact the consumer as electricity charges would then become very high, the Commission made it clear that the appellants electrical energy was not a source of power which could at all be tapped as a result of which not even a single mega watt of power was supplied or sold by the appellant to the respondent. He, however, contended that this very Commissions order made it clear that this was in the consumer interest, but that the appellant would be entitled to recover its fixed cost, which unfortunately has been missed by both the Commission as well as the Appellate Tribunal in the impugned order. He also argued that both the orders were faulty in their reading of Clause 8.2 of the PPA which cannot be read so that supply at atleast 75% of the Plant Load Factor be made a condition precedent for claiming fixed energy charges, as that clause when properly read makes it clear that the PPA itself made it clear that once the power project has been set up by the appellant, the fixed energy cost will have to be paid in any event. 3. As against this, Mr. Gurinder Singh Gill, learned senior counsel appearing on behalf of the respondent, supported the judgments of the Commission and the Tribunal, and argued that a proper reading of Article 8.2 would make it clear that it would become operative only when declared availability is more than 75% of the Plant Load Factor. 4. Having heard learned counsel for both sides, these appeals can be disposed of on the short ground that the Commissions Tariff Order of 12.08.2003 had made it clear that fixed costs during the currency of the agreement for generating electricity must be paid despite no supply having been made because the tariff order itself interdicted such supply in consumer interest. We have also noted that for the years in question it is clear that the fixed cost that has been demanded by the appellant from the respondent has in fact been collected from the consumer but not paid over to the appellant, which would result in an unjust windfall for the respondent. ### Response: 1 ### Explanation: 4. Having heard learned counsel for both sides, these appeals can be disposed of on the short ground that the Commissions Tariff Order of 12.08.2003 had made it clear that fixed costs during the currency of the agreement for generating electricity must be paid despite no supply having been made because the tariff order itself interdicted such supply in consumer interest. We have also noted that for the years in question it is clear that the fixed cost that has been demanded by the appellant from the respondent has in fact been collected from the consumer but not paid over to the appellant, which would result in an unjust windfall for the respondent.
Ravish Vs. R. Bharathi	R. Banumathi J.1. Leave granted.2. This appeal is preferred against the judgment of the High Court of Karnataka at Bengaluru dated 20.07.2015 in and by which the High Court dismissed the Regular First Appeal No.522 of 2015 granting liberty to the appellants/defendants to institute independent proceedings and establish their claim in an appropriate suit.3. Briefly stated, case of the respondent/plaintiff as per the averments in the plaint is as follows:- Respondent/plaintiff filed the suit bearing OS No.4376 of 2014 for permanent injunction claiming that she is the absolute owner of the site bearing No.1077/21. Case of the respondent/plaintiff is that the said site came to be allotted in her name by Vishwabharathi House Building Co-operative Society (for short `VHBC Society) by way of allotment letter dated 02.08.2004. Pursuant to the issuance of site allotment letter dated 02.08.2004, VHBC Society executed sale deed dated 06.12.2004 in favour of the respondent/plaintiff which came to be registered on 09.12.2004. Respondent/plaintiff states that the VHBC Society had issued possession certificate dated 10.01.2005 in her name. Further case of the respondent/plaintiff is that as there was dispute amongst the members regarding allotment of sites, some members of the VHBC Society filed a writ petition against VHBC Society and in the said writ petition vide order dated 16.11.2010, the High Court stipulated certain guidelines to be followed by VHBC Society for allotment of sites to the members. Pursuant to the direction of the High Court, VHBC Society issued a paper publication calling upon its members to produce the documents pertaining to the seniority and eligibility of its members for allotment of sites in the layout formed by VHBC Society as per the new Bangalore Development Authority(BDA) layout plan.The respondent/plaintiff states that VHBC Society issued a fresh allotment letter dated 14.06.2013 allotting a new Site No.4307 measuring 139.40 sq. mtrs. in Phase-IV of VHBC Society layout which was approved by BDA. Further case of the respondent/plaintiff is that subsequent to the issuance of the said allotment letter dated 14.06.2013, a supplement deed dated 30.08.2013 came to be executed in favour of the respondent/plaintiff for the said Site bearing No.4307. Possession of the said site is also said to have been given to the plaintiff for the new Site No.4307 with the possession certificate dated 19.11.2013. Claiming that she is the owner of the said Site No.4307 and alleging that the appellants/defendants are trying to interfere with her possession, respondent/plaintiff filed the suit bearing OS No.4376 of 2014 for permanent injunction before the XVII Additional City Civil and Sessions Judge, Bengaluru.4. In the said suit, summons were served upon the appellants/defendants but the appellants did not appear in the suit. Based on the evidence of the plaintiff (PW-1) and the documents filed by the respondent/plaintiff, the suit was decreed ex-parte on 13.10.2014. Being aggrieved by the ex- parte decree passed in OS No.4376 of 2014, the appellants/defendants filed Regular First Appeal bearing No.522 of 2015. Case of the appellants/defendants is that the suit schedule property originally being carved as bearing Site No.690 came to be sold by VHBC Society in favour of Shri M.N. Sundaresh by a registered sale deed dated 27.06.2003. The said VHBC Society also gave possession of the said property Site No.690 in favour of the said M.N. Sundaresh and to that effect, a possession certificate was also issued by VHBC Society in favour of the said M.N. Sundaresh. Further case of the appellants/defendants is that they purchased the suit property bearing Site No.690 by a registered sale deed dated 03.06.2011 from the said M.N. Sundaresh. Case of the appellants is that the suit property is nothing but Site No.690 and only the appellants are in possession and enjoyment of the suit property. Further case of the appellants/defendants is that the plaintiff/respondent has manipulated certain documents to lay a false claim in the suit property.5. The High Court in appeal noticed that the appellants/defendants were claiming to be owners of the suit property; however, the High Court observed that the suit property is in respect of Site No.4307, but the sale deed of the appellants/defendants and their predecessors are in respect of original Site No.690 and directed the appellants/defendants to institute independent proceedings to establish their right by filing an appropriate suit. In our view, as both parties claim right to the suit property through VHBC Society by virtue of sale deeds in their favour, the High Court rather than relegating the appellants/defendants to file a fresh suit, it would have been in order if the High Court remitted the matter back to the trial court to resolve the dispute after trial. In our view, the High Court erred in dismissing the appeal and relegating the appellants/defendants to file a fresh suit. As both the parties are claiming right to the registered sale deed originating from VHBC Society and also claiming right of possession, in the interest of justice, the judgment of the High Court as well as the trial court are to be set aside and the matter remitted back to the trial court.6. The learned counsel for the respondent/plaintiff raised objections for remitting the matter back to the trial court and submitted that the respondent/plaintiff has already put up construction in the suit property and if the matter is remitted back to the trial court, it may prejudicially affect the interest of the respondent/plaintiff. Having regard to the rival contentions of the parties claiming to be in possession, it would be open to the trial court to appoint a Commissioner to get a report as to the location of the disputed sites both Site No.4307 and Site No.690 and their physical features and other relevant facts. It is also open to the trial court either on its own or on the application of either of the parties to summon the officials of the Vishwabharathi House Building Co-operative Society Limited and relevant documents for resolving the dispute between the parties.	1[ds]Having regard to the rival contentions of the parties claiming to be in possession, it would be open to the trial court to appoint a Commissioner to get a report as to the location of the disputed sites both Site No.4307 and Site No.690 and their physical features and other relevant facts. It is also open to the trial court either on its own or on the application of either of the parties to summon the officials of the Vishwabharathi House Building Co-operative Society Limited and relevant documents for resolving the dispute between themake it clear that we have not expressed any opinion on the merits of the matter.	1	1,052	116	### 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: R. Banumathi J.1. Leave granted.2. This appeal is preferred against the judgment of the High Court of Karnataka at Bengaluru dated 20.07.2015 in and by which the High Court dismissed the Regular First Appeal No.522 of 2015 granting liberty to the appellants/defendants to institute independent proceedings and establish their claim in an appropriate suit.3. Briefly stated, case of the respondent/plaintiff as per the averments in the plaint is as follows:- Respondent/plaintiff filed the suit bearing OS No.4376 of 2014 for permanent injunction claiming that she is the absolute owner of the site bearing No.1077/21. Case of the respondent/plaintiff is that the said site came to be allotted in her name by Vishwabharathi House Building Co-operative Society (for short `VHBC Society) by way of allotment letter dated 02.08.2004. Pursuant to the issuance of site allotment letter dated 02.08.2004, VHBC Society executed sale deed dated 06.12.2004 in favour of the respondent/plaintiff which came to be registered on 09.12.2004. Respondent/plaintiff states that the VHBC Society had issued possession certificate dated 10.01.2005 in her name. Further case of the respondent/plaintiff is that as there was dispute amongst the members regarding allotment of sites, some members of the VHBC Society filed a writ petition against VHBC Society and in the said writ petition vide order dated 16.11.2010, the High Court stipulated certain guidelines to be followed by VHBC Society for allotment of sites to the members. Pursuant to the direction of the High Court, VHBC Society issued a paper publication calling upon its members to produce the documents pertaining to the seniority and eligibility of its members for allotment of sites in the layout formed by VHBC Society as per the new Bangalore Development Authority(BDA) layout plan.The respondent/plaintiff states that VHBC Society issued a fresh allotment letter dated 14.06.2013 allotting a new Site No.4307 measuring 139.40 sq. mtrs. in Phase-IV of VHBC Society layout which was approved by BDA. Further case of the respondent/plaintiff is that subsequent to the issuance of the said allotment letter dated 14.06.2013, a supplement deed dated 30.08.2013 came to be executed in favour of the respondent/plaintiff for the said Site bearing No.4307. Possession of the said site is also said to have been given to the plaintiff for the new Site No.4307 with the possession certificate dated 19.11.2013. Claiming that she is the owner of the said Site No.4307 and alleging that the appellants/defendants are trying to interfere with her possession, respondent/plaintiff filed the suit bearing OS No.4376 of 2014 for permanent injunction before the XVII Additional City Civil and Sessions Judge, Bengaluru.4. In the said suit, summons were served upon the appellants/defendants but the appellants did not appear in the suit. Based on the evidence of the plaintiff (PW-1) and the documents filed by the respondent/plaintiff, the suit was decreed ex-parte on 13.10.2014. Being aggrieved by the ex- parte decree passed in OS No.4376 of 2014, the appellants/defendants filed Regular First Appeal bearing No.522 of 2015. Case of the appellants/defendants is that the suit schedule property originally being carved as bearing Site No.690 came to be sold by VHBC Society in favour of Shri M.N. Sundaresh by a registered sale deed dated 27.06.2003. The said VHBC Society also gave possession of the said property Site No.690 in favour of the said M.N. Sundaresh and to that effect, a possession certificate was also issued by VHBC Society in favour of the said M.N. Sundaresh. Further case of the appellants/defendants is that they purchased the suit property bearing Site No.690 by a registered sale deed dated 03.06.2011 from the said M.N. Sundaresh. Case of the appellants is that the suit property is nothing but Site No.690 and only the appellants are in possession and enjoyment of the suit property. Further case of the appellants/defendants is that the plaintiff/respondent has manipulated certain documents to lay a false claim in the suit property.5. The High Court in appeal noticed that the appellants/defendants were claiming to be owners of the suit property; however, the High Court observed that the suit property is in respect of Site No.4307, but the sale deed of the appellants/defendants and their predecessors are in respect of original Site No.690 and directed the appellants/defendants to institute independent proceedings to establish their right by filing an appropriate suit. In our view, as both parties claim right to the suit property through VHBC Society by virtue of sale deeds in their favour, the High Court rather than relegating the appellants/defendants to file a fresh suit, it would have been in order if the High Court remitted the matter back to the trial court to resolve the dispute after trial. In our view, the High Court erred in dismissing the appeal and relegating the appellants/defendants to file a fresh suit. As both the parties are claiming right to the registered sale deed originating from VHBC Society and also claiming right of possession, in the interest of justice, the judgment of the High Court as well as the trial court are to be set aside and the matter remitted back to the trial court.6. The learned counsel for the respondent/plaintiff raised objections for remitting the matter back to the trial court and submitted that the respondent/plaintiff has already put up construction in the suit property and if the matter is remitted back to the trial court, it may prejudicially affect the interest of the respondent/plaintiff. Having regard to the rival contentions of the parties claiming to be in possession, it would be open to the trial court to appoint a Commissioner to get a report as to the location of the disputed sites both Site No.4307 and Site No.690 and their physical features and other relevant facts. It is also open to the trial court either on its own or on the application of either of the parties to summon the officials of the Vishwabharathi House Building Co-operative Society Limited and relevant documents for resolving the dispute between the parties. ### Response: 1 ### Explanation: Having regard to the rival contentions of the parties claiming to be in possession, it would be open to the trial court to appoint a Commissioner to get a report as to the location of the disputed sites both Site No.4307 and Site No.690 and their physical features and other relevant facts. It is also open to the trial court either on its own or on the application of either of the parties to summon the officials of the Vishwabharathi House Building Co-operative Society Limited and relevant documents for resolving the dispute between themake it clear that we have not expressed any opinion on the merits of the matter.
Narinder Singh Vs. New India Assurance Company Ltd	been done, it does not amount to violation of any statutory requirement and in such a case, if the accident takes place, the insured is entitled to claim benefit under the insurance policy. There is no statutory bar in insuring the vehicle without registration and hence there is no bar in making payment of insured sum in the eventuality of an accident. Appellant submitted that the Apex Court in the case of Amalendu Sahoo vs. Oriental Insurance Company Ltd., (2010) 4 SCC 536 , has held that in case of any variation from the policy document/any breach of the policy document, the Insurance company cannot repudiate the claim in toto and the claim of the complainant ought to be settled on non-standard basis. It is further contended that the main purpose of any temporary/permanent registration is to have identification of the vehicle in the records of the Government authorities so as to identify the vehicle, particularly, in case of any motor accident and for tracing the owner of the vehicle, and in this case, there was a temporary registration number (although its date expired) affixed on the vehicle, which would lead to the owner and other details as required in law. 10. Per contra, respondents case is that the vehicle can be driven only after proper registration and in the present case, the vehicle being driven without registration, which is in contravention to Section 192 of the Act. Further, there is no endorsement on the driving licence of Rajiv Hetta for driving HGV, which was valid up to 20.4.2002, and as such, there is violation of the terms and conditions of the insurance policy as the vehicle in question was being driven by a person who was not authorized to drive the same. 11. We have perused the order passed by the three Forums. The only issue for consideration is, as to whether the National Commission is correct in law in holding that the appellant is not entitled to claim compensation for damages in respect of the vehicle when admittedly the vehicle was being driven on the date of accident without any valid registration as contemplated under the provisions of Section 39 and Section 43 of Motor Vehicles Act. For better appreciation, Section 39 and Section 43 which are relevant are quoted herein below:- 39. Necessity for registration.—No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner: Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government. 43. Temporary registration.—(1) Notwithstanding anything contained in section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark. (2) A registration made under this section shall be valid only for a period not exceeding one month, and shall not be renewable: Provided that where a motor vehicle so registered is a chassis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or any unforeseen circumstances beyond the control of the owner, the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow. (3) In a case where the motor vehicle is held under hire-purchase agreement, lease or hypothecation, the registering authority or other prescribed authority shall issue a temporary certificate of registration of such vehicle, which shall incorporate legibly and prominently the full name and address of the person with whom such agreement has been entered into by the owner. 12. A bare perusal of Section 39 shows that no person shall drive the motor vehicle in any public place without any valid registration granted by the registering authority in accordance with the provisions of the Act. 13. However, according to Section 43, the owner of the vehicle may apply to the registering authority for temporary registration and a temporary registration mark. If such temporary registration is granted by the authority, the same shall be valid only for a period not exceeding one month. The proviso to Section 43 clarified that the period of one month may be extended for such a further period by the registering authority only in a case where a temporary registration is granted in respect of chassis to which body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or unforeseen circumstances beyond the control of the owner. 14. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of policy contract.	0[ds]14. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of policy contract	0	1,918	149	### Instruction: Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case. ### Input: been done, it does not amount to violation of any statutory requirement and in such a case, if the accident takes place, the insured is entitled to claim benefit under the insurance policy. There is no statutory bar in insuring the vehicle without registration and hence there is no bar in making payment of insured sum in the eventuality of an accident. Appellant submitted that the Apex Court in the case of Amalendu Sahoo vs. Oriental Insurance Company Ltd., (2010) 4 SCC 536 , has held that in case of any variation from the policy document/any breach of the policy document, the Insurance company cannot repudiate the claim in toto and the claim of the complainant ought to be settled on non-standard basis. It is further contended that the main purpose of any temporary/permanent registration is to have identification of the vehicle in the records of the Government authorities so as to identify the vehicle, particularly, in case of any motor accident and for tracing the owner of the vehicle, and in this case, there was a temporary registration number (although its date expired) affixed on the vehicle, which would lead to the owner and other details as required in law. 10. Per contra, respondents case is that the vehicle can be driven only after proper registration and in the present case, the vehicle being driven without registration, which is in contravention to Section 192 of the Act. Further, there is no endorsement on the driving licence of Rajiv Hetta for driving HGV, which was valid up to 20.4.2002, and as such, there is violation of the terms and conditions of the insurance policy as the vehicle in question was being driven by a person who was not authorized to drive the same. 11. We have perused the order passed by the three Forums. The only issue for consideration is, as to whether the National Commission is correct in law in holding that the appellant is not entitled to claim compensation for damages in respect of the vehicle when admittedly the vehicle was being driven on the date of accident without any valid registration as contemplated under the provisions of Section 39 and Section 43 of Motor Vehicles Act. For better appreciation, Section 39 and Section 43 which are relevant are quoted herein below:- 39. Necessity for registration.—No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner: Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government. 43. Temporary registration.—(1) Notwithstanding anything contained in section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark. (2) A registration made under this section shall be valid only for a period not exceeding one month, and shall not be renewable: Provided that where a motor vehicle so registered is a chassis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or any unforeseen circumstances beyond the control of the owner, the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow. (3) In a case where the motor vehicle is held under hire-purchase agreement, lease or hypothecation, the registering authority or other prescribed authority shall issue a temporary certificate of registration of such vehicle, which shall incorporate legibly and prominently the full name and address of the person with whom such agreement has been entered into by the owner. 12. A bare perusal of Section 39 shows that no person shall drive the motor vehicle in any public place without any valid registration granted by the registering authority in accordance with the provisions of the Act. 13. However, according to Section 43, the owner of the vehicle may apply to the registering authority for temporary registration and a temporary registration mark. If such temporary registration is granted by the authority, the same shall be valid only for a period not exceeding one month. The proviso to Section 43 clarified that the period of one month may be extended for such a further period by the registering authority only in a case where a temporary registration is granted in respect of chassis to which body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or unforeseen circumstances beyond the control of the owner. 14. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of policy contract. ### Response: 0 ### Explanation: 14. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of policy contract
H.D. Sikand (D) Through L.Rs. & Another Vs. Central Bureau of Investigation & Others	reasons: i) Motive to Kill: It is evident from Respondent No.2s letters that he had reconciled to the inevitability of divorce. The High Court has come to the correct finding that while there is scope for an argument that inasmuch as there is evidence wherefrom a motive can be attributed to Respondent No.2; there is an equal scope for an argument that there is evidence on record wherefrom said motive gets negated. To conclude, the only admissible evidence which remains against Respondent No.2 is that of motive, which itself is negated from the readings of the said letters. But motive, being presumptive evidence, is a weak evidence and by itself cannot form a chain of circumstances so complete that the only inference possible is the guilt of Respondent No.2, ruling out his innocence.ii) Access to Hand Grenade: It is submitted that Respondent No.2 was an Army Officer and there is no evidence on record that he respondent would have procured or have access to a POK hand grenades as categorically proved by the testimony of PW-45, DW-3 and DW-6. Also the Respondent was evacuated from the battlefield in a wounded condition after he was relieved of all the arms and ammunition. Moreover, the Respondent belonged to four horse regiment who are not specialized in anatomy of arms and ammunition especially hand grenade. Further, there was no evidence to the effect that any POK hand grenade was stolen at any time. Also it would be preposterous to suggest that the Respondent had stolen a Pakistani grenade during the Indo-Pak in 1971, so that he may use it for personal objective in future and that he actually used it a decade later in 1982.iii) Presence of Respondent at Deceaseds house: The whereabouts of the Respondent on 25.09.1982 is on record from about 1 pm till about 11 pm and at no stage he went anywhere in the vicinity of 98, Sunder Nagar. The Respondent played golf from 1.30 pm till 5.30 pm, then refreshed himself, changed and had refreshments. PW-20 has deposed before the Court in his cross-examination that the Respondent was with him from 7.45 pm on 25.09.1982 till 8.15 pm. It is corroborated by DW-2 Maj. A.K. Nehra that the Respondent arrived at Friends Colony at about 8.15 pm accompanied by short fat person signifying PW-20. Thereafter, DW-2 dropped the Respondent at 4, Friends Colony, where a party was going on. The Respondents presence is further confirmed till 11 pm by DW-1 Mr. Rattan Sehgal at a party in Friends Colony.iv) Disclosure Statement: The "voluntary" disclosure statement dated 05.08.1993 was coerced after five days in CBI custody and the Respondent has not signed the disclosure statement. The witness to such disclosure statement has also not signed the statement of the Respondent. One of the two independent witnesses has been given up by the prosecution. The Respondent had not pointed to any specific typewriter and the typewriter machine alleged to be used by the Respondent for typing the address was not even sealed on the same day, but much later i.e. on 01.10.1983.v) Typewriter used for typing address on the Parcel PW-75 has led no evidence of any special knowledge gained by him except for a three days stint with Godrej, a company which manufactures typewriters. Further the High Court has in details discussed the criteria for comparison of typewriter evidence, whereby the High Court came to the conclusion that the expert in comparing the two address as alleged typed from the same machine has not followed the reasoning and procedure which an expert necessarily needs to follow as per Fryes test. The seized specimens taken from Janta Commercial were not sealed. Further, PW-75 has admitted that the questioned document does not contain clear impressions due to mutilation and that having admitted thirteen dissimilarities during cross-examination, an attempt was made by PW-75 to explain the said thirteen dissimilarities, and therefore, no reliance can be placed on his report and testimony. 17. Learned counsel for Respondent No.2 submitted that the rule of evidence setting out the threshold of conviction based on circumstantial evidence emanating from the decision in the English case of R. v. Hodge (168 ER 1163 (1838), and subsequently followed by all the common law countries, is that before a person is convicted entirely on circumstantial evidence, the Court must be satisfied not only that those circumstances are consistent with his having committed the act, but also that the facts are such, so as to be inconsistent with any other rational conclusion other than the one that the accused is the guilty person, is not met by any stretch of imagination in the above-mentioned factual and legal scenario, and therefore, these appeals deserve to be dismissed. 18. After hearing the learned counsel for the parties and after going through the records of this matter, including the evidence, as analyzed by the High Court as well as the Trial Court, it appears that the case in hand is totally dependent upon the circumstantial evidence. We have examined the evidence laid in course of the arguments and have specifically considered the tests which have to be met by the prosecution to get success in the matter as laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , wherein the tests have been specifically given and it appears to us after analyzing the facts and evidence in this case, that the prosecution has failed to pass such tests to bring home the guilt of the accused. Accordingly, in our opinion, the High Court has correctly come to the conclusion after analyzing the facts and the evidence. In our opinion, the arguments which have been put forward in the matter by Mr. D.N. Ray, learned counsel appearing on behalf of respondent No.2, are much more acceptable in the facts and circumstances of this case. The findings recorded by the High Court are plausible, logical and persuasive, reached by the materials on record and command for affirmation.	1[ds]18. After hearing the learned counsel for the parties and after going through the records of this matter, including the evidence, as analyzed by the High Court as well as the Trial Court, it appears that the case in hand is totally dependent upon the circumstantial evidence. We have examined the evidence laid in course of the arguments and have specifically considered the tests which have to be met by the prosecution to get success in the matter as laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , wherein the tests have been specifically given and it appears to us after analyzing the facts and evidence in this case, that the prosecution has failed to pass such tests to bring home the guilt of the accused. Accordingly, in our opinion, the High Court has correctly come to the conclusion after analyzing the facts and the evidence. In our opinion, the arguments which have been put forward in the matter by Mr. D.N. Ray, learned counsel appearing on behalf of respondent No.2, are much more acceptable in the facts and circumstances of this case. The findings recorded by the High Court are plausible, logical and persuasive, reached by the materials on record and command for affirmation.	1	5,850	239	### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: reasons: i) Motive to Kill: It is evident from Respondent No.2s letters that he had reconciled to the inevitability of divorce. The High Court has come to the correct finding that while there is scope for an argument that inasmuch as there is evidence wherefrom a motive can be attributed to Respondent No.2; there is an equal scope for an argument that there is evidence on record wherefrom said motive gets negated. To conclude, the only admissible evidence which remains against Respondent No.2 is that of motive, which itself is negated from the readings of the said letters. But motive, being presumptive evidence, is a weak evidence and by itself cannot form a chain of circumstances so complete that the only inference possible is the guilt of Respondent No.2, ruling out his innocence.ii) Access to Hand Grenade: It is submitted that Respondent No.2 was an Army Officer and there is no evidence on record that he respondent would have procured or have access to a POK hand grenades as categorically proved by the testimony of PW-45, DW-3 and DW-6. Also the Respondent was evacuated from the battlefield in a wounded condition after he was relieved of all the arms and ammunition. Moreover, the Respondent belonged to four horse regiment who are not specialized in anatomy of arms and ammunition especially hand grenade. Further, there was no evidence to the effect that any POK hand grenade was stolen at any time. Also it would be preposterous to suggest that the Respondent had stolen a Pakistani grenade during the Indo-Pak in 1971, so that he may use it for personal objective in future and that he actually used it a decade later in 1982.iii) Presence of Respondent at Deceaseds house: The whereabouts of the Respondent on 25.09.1982 is on record from about 1 pm till about 11 pm and at no stage he went anywhere in the vicinity of 98, Sunder Nagar. The Respondent played golf from 1.30 pm till 5.30 pm, then refreshed himself, changed and had refreshments. PW-20 has deposed before the Court in his cross-examination that the Respondent was with him from 7.45 pm on 25.09.1982 till 8.15 pm. It is corroborated by DW-2 Maj. A.K. Nehra that the Respondent arrived at Friends Colony at about 8.15 pm accompanied by short fat person signifying PW-20. Thereafter, DW-2 dropped the Respondent at 4, Friends Colony, where a party was going on. The Respondents presence is further confirmed till 11 pm by DW-1 Mr. Rattan Sehgal at a party in Friends Colony.iv) Disclosure Statement: The "voluntary" disclosure statement dated 05.08.1993 was coerced after five days in CBI custody and the Respondent has not signed the disclosure statement. The witness to such disclosure statement has also not signed the statement of the Respondent. One of the two independent witnesses has been given up by the prosecution. The Respondent had not pointed to any specific typewriter and the typewriter machine alleged to be used by the Respondent for typing the address was not even sealed on the same day, but much later i.e. on 01.10.1983.v) Typewriter used for typing address on the Parcel PW-75 has led no evidence of any special knowledge gained by him except for a three days stint with Godrej, a company which manufactures typewriters. Further the High Court has in details discussed the criteria for comparison of typewriter evidence, whereby the High Court came to the conclusion that the expert in comparing the two address as alleged typed from the same machine has not followed the reasoning and procedure which an expert necessarily needs to follow as per Fryes test. The seized specimens taken from Janta Commercial were not sealed. Further, PW-75 has admitted that the questioned document does not contain clear impressions due to mutilation and that having admitted thirteen dissimilarities during cross-examination, an attempt was made by PW-75 to explain the said thirteen dissimilarities, and therefore, no reliance can be placed on his report and testimony. 17. Learned counsel for Respondent No.2 submitted that the rule of evidence setting out the threshold of conviction based on circumstantial evidence emanating from the decision in the English case of R. v. Hodge (168 ER 1163 (1838), and subsequently followed by all the common law countries, is that before a person is convicted entirely on circumstantial evidence, the Court must be satisfied not only that those circumstances are consistent with his having committed the act, but also that the facts are such, so as to be inconsistent with any other rational conclusion other than the one that the accused is the guilty person, is not met by any stretch of imagination in the above-mentioned factual and legal scenario, and therefore, these appeals deserve to be dismissed. 18. After hearing the learned counsel for the parties and after going through the records of this matter, including the evidence, as analyzed by the High Court as well as the Trial Court, it appears that the case in hand is totally dependent upon the circumstantial evidence. We have examined the evidence laid in course of the arguments and have specifically considered the tests which have to be met by the prosecution to get success in the matter as laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , wherein the tests have been specifically given and it appears to us after analyzing the facts and evidence in this case, that the prosecution has failed to pass such tests to bring home the guilt of the accused. Accordingly, in our opinion, the High Court has correctly come to the conclusion after analyzing the facts and the evidence. In our opinion, the arguments which have been put forward in the matter by Mr. D.N. Ray, learned counsel appearing on behalf of respondent No.2, are much more acceptable in the facts and circumstances of this case. The findings recorded by the High Court are plausible, logical and persuasive, reached by the materials on record and command for affirmation. ### Response: 1 ### Explanation: 18. After hearing the learned counsel for the parties and after going through the records of this matter, including the evidence, as analyzed by the High Court as well as the Trial Court, it appears that the case in hand is totally dependent upon the circumstantial evidence. We have examined the evidence laid in course of the arguments and have specifically considered the tests which have to be met by the prosecution to get success in the matter as laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , wherein the tests have been specifically given and it appears to us after analyzing the facts and evidence in this case, that the prosecution has failed to pass such tests to bring home the guilt of the accused. Accordingly, in our opinion, the High Court has correctly come to the conclusion after analyzing the facts and the evidence. In our opinion, the arguments which have been put forward in the matter by Mr. D.N. Ray, learned counsel appearing on behalf of respondent No.2, are much more acceptable in the facts and circumstances of this case. The findings recorded by the High Court are plausible, logical and persuasive, reached by the materials on record and command for affirmation.
C.B.I Vs. Maninder Singh	of customs officers. 10. The allegation against the respondent is ‘forgery’ for the purpose of cheating and use of forged documents as genuine in order to embezzle the public money. After facing such serious charges of forgery, the respondent wants the proceedings to be quashed on account of settlement with the bank. The development in means of communication, science & technology etc. have led to an enormous increase in economic crimes viz. phishing, ATM frauds etc. which are being committed by intelligent but devious individuals involving huge sums of public or government money. These are actually public wrongs or crimes committed against society and the gravity and magnitude attached to these offences is concentrated at public at large.11. The inherent power of the High Court under Section 482 Cr.P.C. should be sparingly used. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings. In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is a well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved. 12. In recent decision in Vikram Anantrai Doshi (supra), this Court distinguished Nikhil Merchant’s case and Narendra Lal Jain’s case where the compromise was a part of the decree of the court and by which the parties withdrew all allegations against each other. After referring to various case laws under subject in Vikram Anantrai Doshi’s case, this Court observed that cheating by bank exposits fiscal impurity and such financial fraud is an offence against society at large in para (23), this Court held as under:- “23. …Be it stated, that availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominantingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation. The cleverness which has been skillfully contrived, if the allegations are true, has a serious consequence. A crime of this nature, in our view, would definitely fall in the category of offences which travel far ahead of personal or private wrong. It has the potentiality to usher in economic crisis. Its implications have its own seriousness, for it creates a concavity in the solemnity that is expected in financial transactions. It is not such a case where one can pay the amount and obtain a “no due certificate” and enjoy the benefit of quashing of the criminal proceedings on the hypostasis that nothing more remains to be done. The collective interest of which the Court is the guardian cannot be a silent or a mute spectator to allow the proceedings to be withdrawn, or for that matter yield to the ingenuous dexterity of the accused persons to invoke the jurisdiction under Article 226 of the Constitution or under Section 482 of the Code and quash the proceeding. It is not legally permissible. The Court is expected to be on guard to these kinds of adroit moves. The High Court, we humbly remind, should have dealt with the matter keeping in mind that in these kind of litigations the accused when perceives a tiny gleam of success, readily invokes the inherent jurisdiction for quashing of the criminal proceeding. The court’s principal duty, at that juncture, should be to scan the entire facts to find out the thrust of allegations and the crux of the settlement. It is the experience of the Judge comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. As we find in the case at hand the learned Single Judge has not taken pains to scrutinize the entire conspectus of facts in proper perspective and quashed the criminal proceeding. The said quashment neither helps to secure the ends of justice nor does it prevent the abuse of the process of the Court nor can it be also said that as there is a settlement no evidence will come on record and there will be remote chance of conviction. Such a finding in our view would be difficult to record. Be that as it may, the fact remains that the social interest would be on peril and the prosecuting agency, in these circumstances, cannot be treated as an alien to the whole case. Ergo, we have no other option but to hold that the order of the High Court is wholly indefensible”. 13. In this case, the High Court while exercising its inherent power ignored all the facts viz. the impact of the offence, the use of the State machinery to keep the matter pending for so many years coupled with the fraudulent conduct of the respondent. Considering the facts and circumstances of the case at hand in the light of the decision in Vikram Anantrai Doshi’s case, the order of the High Court cannot be sustained.	1[ds]10. The allegation against the respondent isfor the purpose of cheating and use of forged documents as genuine in order to embezzle the public money. After facing such serious charges of forgery, the respondent wants the proceedings to be quashed on account of settlement with the bank. The development in means of communication, science & technology etc. have led to an enormous increase in economic crimes viz. phishing, ATM frauds etc. which are being committed by intelligent but devious individuals involving huge sums of public or government money. These are actually public wrongs or crimes committed against society and the gravity and magnitude attached to these offences is concentrated at public at large.11. The inherent power of the High Court under Section 482 Cr.P.C. should be sparingly used. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings. In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is a well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved.In this case, the High Court while exercising its inherent power ignored all the facts viz. the impact of the offence, the use of the State machinery to keep the matter pending for so many years coupled with the fraudulent conduct of the respondent. Considering the facts and circumstances of the case at hand in the light of the decision in Vikram Anantraicase, the order of the High Court cannot be sustained.	1	2,671	382	### 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: of customs officers. 10. The allegation against the respondent is ‘forgery’ for the purpose of cheating and use of forged documents as genuine in order to embezzle the public money. After facing such serious charges of forgery, the respondent wants the proceedings to be quashed on account of settlement with the bank. The development in means of communication, science & technology etc. have led to an enormous increase in economic crimes viz. phishing, ATM frauds etc. which are being committed by intelligent but devious individuals involving huge sums of public or government money. These are actually public wrongs or crimes committed against society and the gravity and magnitude attached to these offences is concentrated at public at large.11. The inherent power of the High Court under Section 482 Cr.P.C. should be sparingly used. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings. In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is a well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved. 12. In recent decision in Vikram Anantrai Doshi (supra), this Court distinguished Nikhil Merchant’s case and Narendra Lal Jain’s case where the compromise was a part of the decree of the court and by which the parties withdrew all allegations against each other. After referring to various case laws under subject in Vikram Anantrai Doshi’s case, this Court observed that cheating by bank exposits fiscal impurity and such financial fraud is an offence against society at large in para (23), this Court held as under:- “23. …Be it stated, that availing of money from a nationalized bank in the manner, as alleged by the investigating agency, vividly exposits fiscal impurity and, in a way, financial fraud. The modus operandi as narrated in the chargesheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and it has immense societal impact. It is an accepted principle of handling of finance that whenever there is manipulation and cleverly conceived contrivance to avail of these kind of benefits it cannot be regarded as a case having overwhelmingly and predominantingly of civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of the society. The gravity of the offence creates a dent in the economic spine of the nation. The cleverness which has been skillfully contrived, if the allegations are true, has a serious consequence. A crime of this nature, in our view, would definitely fall in the category of offences which travel far ahead of personal or private wrong. It has the potentiality to usher in economic crisis. Its implications have its own seriousness, for it creates a concavity in the solemnity that is expected in financial transactions. It is not such a case where one can pay the amount and obtain a “no due certificate” and enjoy the benefit of quashing of the criminal proceedings on the hypostasis that nothing more remains to be done. The collective interest of which the Court is the guardian cannot be a silent or a mute spectator to allow the proceedings to be withdrawn, or for that matter yield to the ingenuous dexterity of the accused persons to invoke the jurisdiction under Article 226 of the Constitution or under Section 482 of the Code and quash the proceeding. It is not legally permissible. The Court is expected to be on guard to these kinds of adroit moves. The High Court, we humbly remind, should have dealt with the matter keeping in mind that in these kind of litigations the accused when perceives a tiny gleam of success, readily invokes the inherent jurisdiction for quashing of the criminal proceeding. The court’s principal duty, at that juncture, should be to scan the entire facts to find out the thrust of allegations and the crux of the settlement. It is the experience of the Judge comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. As we find in the case at hand the learned Single Judge has not taken pains to scrutinize the entire conspectus of facts in proper perspective and quashed the criminal proceeding. The said quashment neither helps to secure the ends of justice nor does it prevent the abuse of the process of the Court nor can it be also said that as there is a settlement no evidence will come on record and there will be remote chance of conviction. Such a finding in our view would be difficult to record. Be that as it may, the fact remains that the social interest would be on peril and the prosecuting agency, in these circumstances, cannot be treated as an alien to the whole case. Ergo, we have no other option but to hold that the order of the High Court is wholly indefensible”. 13. In this case, the High Court while exercising its inherent power ignored all the facts viz. the impact of the offence, the use of the State machinery to keep the matter pending for so many years coupled with the fraudulent conduct of the respondent. Considering the facts and circumstances of the case at hand in the light of the decision in Vikram Anantrai Doshi’s case, the order of the High Court cannot be sustained. ### Response: 1 ### Explanation: 10. The allegation against the respondent isfor the purpose of cheating and use of forged documents as genuine in order to embezzle the public money. After facing such serious charges of forgery, the respondent wants the proceedings to be quashed on account of settlement with the bank. The development in means of communication, science & technology etc. have led to an enormous increase in economic crimes viz. phishing, ATM frauds etc. which are being committed by intelligent but devious individuals involving huge sums of public or government money. These are actually public wrongs or crimes committed against society and the gravity and magnitude attached to these offences is concentrated at public at large.11. The inherent power of the High Court under Section 482 Cr.P.C. should be sparingly used. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings. In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is a well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecution against the economic offenders are not allowed to continue, the entire community is aggrieved.In this case, the High Court while exercising its inherent power ignored all the facts viz. the impact of the offence, the use of the State machinery to keep the matter pending for so many years coupled with the fraudulent conduct of the respondent. Considering the facts and circumstances of the case at hand in the light of the decision in Vikram Anantraicase, the order of the High Court cannot be sustained.
Mohan Lal Vs. Management of Messrs Bharat Electronics Limited	on the ground that it would render sub-section (2) otiose. The language of sub- section (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it. But as Mr. Markandaya referred to some authorities, we will briefly notice them.In Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen, referring to section 25B as it then stood read with section 2(eee) which defined continuous service, this Court held as under:"The position therefore is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of section 25B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more. For, in any case, the requirements o f section 25B would not be satisfied by the mere fact of the number of working days being not less than 240 days."12. If section 25B had not been amended, the interpretation which it received in the aforementioned case would be binding on us. However, section 25B and section 2(eee) have been the subject-matter of amendment by the Industrial Disputes (Amendment) Act, 1964. Section 2(eee) was deleted and section 25B was amended. Prior to its amendment by the 1964 amendment Act, section 25B read as under:"For the purposes of ss. 25C and 25F a workman who during the period of 12 calendar months has actually worked in an industry for not less than 240 days, shall be deemed to have completed one year of continuous service in the industry."13. We have already extracted section 25B since its amendment and the change in language is the legislative exposition of which note must be taken. In fact, we need not further dilate upon this aspect because in Surendra Kumar Verma and Ors. v. Central Government Industrial-cum-Labour Court, New Delhi and Anr., Chinnappa Reddy. J., after noticing the amendment and referring to the decision in Sur Enamel and Stamping Works (P) Ltd case , held as under:"These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months, it is not necessary that he should have been in the service of the employer for one whole year."14. In a concurring judgment Pathak J. agreed with this interpretation of section 25B(2). Therefore, both on principle and on precedent it must be held that section 25B(2) comprehends a situation where a workman is not in employment for a period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date, i.e. the date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year for the purpose of section 25B and Chapter VA.15. Reverting to the facts of this case, admittedly the appellant was employed and was on duty from December 8, 1973 to October 19, 1974 when his service was terminated. The relevant date will be the date of termination of service, i.e. October 19, 1974 Commencing from that date and counting backwards, admittedly he had rendered service for a period of 240 days within a period of 12 months and, indisputably, therefore, his case falls within section 25B(2) (a) and he shall be deemed to be in continuous service for a period of one year for the purpose of Chapter VA.16. Appellant has thus satisfied both the eligibility qualifications prescribed in section 25F for claiming retrenchment compensation. He has satisfactorily established that his case is not covered by any o f the excepted or excluded categories and he has rendered continuous service for one year. Therefore, termination of his service would constitute retrenchment. As pre-condition for a valid retrenchment has not been satisfied the termination of service is ab initio void, invalid and inoperative. He must, therefore, be deemed to be in continuous service.The last submission was that looking to the record of the appellant this Court should not grant reinstatement but award compensation. If the termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that he continues to be in service with all consequential benefits. Undoubtedly, in some decisions of this Court such as Ruby General Insurance Co. Ltd v. Chopra (P.P.), and Hindustan Steel Ltd. Rourkela v. A. K. Roy and Others it was held that the Court before granting reinstatement mu st weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the Courts in the field of social justice and we do not propose to depart in the case.17.	1[ds]Admittedly his service was terminated by letter dated October 12, 1974, with effect from October 19, 1974. It is not the case of the respondent that there was any further extension of the probationary period. Thus, if the initial appointment which was described as temporary is treat ed on probation, even according to the respondent the period of probation was six months, it expired on June 8, 1974. Even if by the letter dated July 10, 1974, the period of probation was said to have been extended, on its own terms it ex pired on September 8, 1974. The service of the appellant was terminated with effect from October 19, 1974. What was the nature and character of service of the appellant from September 8, 1974 when the extended period of probation expired and termination of his service on October 19, 1974? He was unquestionably not on probation. He was either temporary or permanent but not a probationer. How is it open then to the Labour Court to record a finding that the service of the appellant was terminated during the period of probation on account of his unsatisfactory work which did not improve in spite of repeated warnings? The Labour Court concluded that notwithstanding the fact that the appellant was not shown to have been p laced on probation in the initial appointment letter but in view of the subsequent orders there was a period of probation prescribed for the appellant and that his service was terminated during the extended period of probation. This is gross error apparent on the face of the record which, if not interfered with, would result in miscarriage of justice.If on October 19, 1974, the appellant was not on probation and assuming maximum in favour of the respondent that he was a temporary employee, could termination of his service. even according to the respondent, not as and by way of punishment but a discharge of a temporary servant, constitute retrenchment within the meaning of section 2(oo), is the core question.Markendaya contended that clauses (I) and (2) o f section 25B provide for two different contingencies and that none of the clauses is satisfied by the appellant. He contended that) provides for uninterrupted service and) comprehends a case where the workman is not in continuous service.The language employed in sub-sections (1) and (2) does not admit of this dichotomy. Sub-sections (1) and (2) introduce a deeming fiction as to in what circumstances a workman could be said to be in continuous service for the purposes of Chapter VA. Sub-section (1) provides a deeming fiction in that where a workman is in service for a certain period he shall be deemed to be in continuous service for that period even if service is interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal or a lockout or a cessation of work which is not due to any fault on the part of the workman. Situations such as sickness, authorised leave, an accident, a strike not illegal, a lockout or a cessation of work would ipso facto interrupt a service. These interruptions have to be ignored to treat the workman in uninterrupted service and such service interrupted on account of the aforementioned causes which would be deemed to be uninterrupted would be continuous service for the period for which the workman has been in service. In industrial employment or for that matter in any service, sickness, authorised leave, an accident, a strike which is not illegal, a lockout and a cessation of work not due to any fault on the part of the workman, are known hazards and there are bound to be interruptions on that account. Sub-section (I) mandates that interruptions therein indicated are to be ignored meaning thereby that on account of such cessation an interrupted service shall be deemed to be uninterrupted and such uninterrupted service shall for the purposes of Chapter VA be deemed to be continuous service. That is only one part of the fiction.Sub-section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) f or a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with ref erence to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicating in sub-section (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in clause (a) of sub-section (2). The conditions are that commencing the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter VA. It is not necessary for the purposes of sub-section (2) (a) that the workman should be in service for a period of one year. If he is in service for a pe riod of one year and that if that service is continuous service within the meaning of sub-section (1) his case would be governed by sub-section (1) and his case need not be covered by sub-section (2).to the facts of this case, admittedly the appellant was employed and was on duty from December 8, 1973 to October 19, 1974 when his service was terminated. The relevant date will be the date of termination of service, i.e. October 19, 1974 Commencing from that date and counting backwards, admittedly he had rendered service for a period of 240 days within a period of 12 months and, indisputably, therefore, his case falls within section 25B(2) (a) and he shall be deemed to be in continuous service for a period of one year for the purpose of Chapterhas thus satisfied both the eligibility qualifications prescribed in section 25F for claiming retrenchment compensation. He has satisfactorily established that his case is not covered by any o f the excepted or excluded categories and he has rendered continuous service for one year. Therefore, termination of his service would constitute retrenchment. As pre-condition for a valid retrenchment has not been satisfied the termination of service is ab initio void, invalid and inoperative. He must, therefore, be deemed to be in continuous service.The last submission was that looking to the record of the appellant this Court should not grant reinstatement but award compensation. If the termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that he continues to be in service with all consequential benefits. Undoubtedly, in some decisions of this Court such as Ruby General Insurance Co. Ltd v. Chopra (P.P.), and Hindustan Steel Ltd. Rourkela v. A. K. Roy and Others it was held that the Court before granting reinstatement mu st weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the Courts in the field of social justice and we do not propose to depart in thethe answer is in affirmative, the consequential question will have to be answered whether in view of the admitted position that the mandatoryprescribed by section 25F for a valid retrenchment having not been satisfied, the appellant would be entitled to reinstatement with back wages or as contended by Mr. Markandey in the special facts of this case, the Court should not direct reinstatement but award compensation in lieu of reinstatement.4. An apparent contradiction which stares in the eye on the stand taken by the respondent is overlooked by the Labour Court which has resulted in the miscarriage of justice. In this context the facts as alleged by the respondent may be taken as true. Says the respondent, that the appellant was appointed by order dated July 21, 1973. The relevant portion of the order of which notice may be taken is paragraph 2. It reads asappointment will be temporary in the first instance but is likely to be made permanent.Paragraph 4 refers to the consequences of a temporary appointment, n amely, that the service would be terminable without notice and without any compensation in lieu of notice on either side. Paragraph 6 provides that the employment of the appellant shall be governed by rules, regulations and standing o rders of the company then in force and which may be amended, altered or extended from time to time and the acceptance of the offer carries with it the necessary agreement to obey all such rules, regulations and standing orders. There is not even a whisper of any period of probation prescribed for the appointment nor any suggestion that there are some rules which govern appointment of the appellant which would initially be on probation. Thus, the appointment was temporary in the first instance and there was an inner indication that it was likely to be made permanent. Even if this promise of likely to be made permanent is ignored, indubitably the appointment was temporary. The respondent, however, says that note 3 at t he foot of the appointment order intimates to the appellant that in the event of his permanent appointment the temporary service put in by him will be counted as part of probationary period of service as required under the rules. This consequence would follow in the event of permanent appointment being offered and this is clear from the language employed in note 3. In this case no permanent appointment having been offered, the consequence set out in note 3 could not have emerged. Assuming, however, that this note incorporates all the necessary rules and regulations in the contract of employment, it was incumbent upon the respondent to show that even when appointment is not shown to be on probation in the order of appointment, in view of the rules governing the contract of employment there shall always be a period of probation for every appointee. Witness Bawdekar who appeared on behalf of the respondent stated in his evidence that the appellant was appointed as a probationary salesman. Even according to him prescribed period of probation was six months. He then stated that by the letter dated July 10, 1974, respondent informed the appellant that his service should have been terminated on the exp iry of initial period of probation, i.e. on June 8, 1974. However, as a special case the probation period was extended upto September 8, 1974. No rule was pointed out to us enabling the respondent to extend the initial period of probation. Assuming even then that such was the power of the respondent, on September 9, 1974, the period of probation having not been further extended nor termination of service having been ordered during or at the end of the probationary period on the ground of unsuitability, the consequence in law is that either he would be a temporary employee or a permanent employee as per the rules governing the contract of employment between the appellant and the respondent.	1	6,248	2,190	### 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: on the ground that it would render sub-section (2) otiose. The language of sub- section (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it. But as Mr. Markandaya referred to some authorities, we will briefly notice them.In Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen, referring to section 25B as it then stood read with section 2(eee) which defined continuous service, this Court held as under:"The position therefore is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of section 25B. Before a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or more. For, in any case, the requirements o f section 25B would not be satisfied by the mere fact of the number of working days being not less than 240 days."12. If section 25B had not been amended, the interpretation which it received in the aforementioned case would be binding on us. However, section 25B and section 2(eee) have been the subject-matter of amendment by the Industrial Disputes (Amendment) Act, 1964. Section 2(eee) was deleted and section 25B was amended. Prior to its amendment by the 1964 amendment Act, section 25B read as under:"For the purposes of ss. 25C and 25F a workman who during the period of 12 calendar months has actually worked in an industry for not less than 240 days, shall be deemed to have completed one year of continuous service in the industry."13. We have already extracted section 25B since its amendment and the change in language is the legislative exposition of which note must be taken. In fact, we need not further dilate upon this aspect because in Surendra Kumar Verma and Ors. v. Central Government Industrial-cum-Labour Court, New Delhi and Anr., Chinnappa Reddy. J., after noticing the amendment and referring to the decision in Sur Enamel and Stamping Works (P) Ltd case , held as under:"These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months, it is not necessary that he should have been in the service of the employer for one whole year."14. In a concurring judgment Pathak J. agreed with this interpretation of section 25B(2). Therefore, both on principle and on precedent it must be held that section 25B(2) comprehends a situation where a workman is not in employment for a period of 12 calendar months, but has rendered service for a period of 240 days within the period of 12 calendar months commencing and counting backwards from the relevant date, i.e. the date of retrenchment. If he has, he would be deemed to be in continuous service for a period of one year for the purpose of section 25B and Chapter VA.15. Reverting to the facts of this case, admittedly the appellant was employed and was on duty from December 8, 1973 to October 19, 1974 when his service was terminated. The relevant date will be the date of termination of service, i.e. October 19, 1974 Commencing from that date and counting backwards, admittedly he had rendered service for a period of 240 days within a period of 12 months and, indisputably, therefore, his case falls within section 25B(2) (a) and he shall be deemed to be in continuous service for a period of one year for the purpose of Chapter VA.16. Appellant has thus satisfied both the eligibility qualifications prescribed in section 25F for claiming retrenchment compensation. He has satisfactorily established that his case is not covered by any o f the excepted or excluded categories and he has rendered continuous service for one year. Therefore, termination of his service would constitute retrenchment. As pre-condition for a valid retrenchment has not been satisfied the termination of service is ab initio void, invalid and inoperative. He must, therefore, be deemed to be in continuous service.The last submission was that looking to the record of the appellant this Court should not grant reinstatement but award compensation. If the termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that he continues to be in service with all consequential benefits. Undoubtedly, in some decisions of this Court such as Ruby General Insurance Co. Ltd v. Chopra (P.P.), and Hindustan Steel Ltd. Rourkela v. A. K. Roy and Others it was held that the Court before granting reinstatement mu st weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the Courts in the field of social justice and we do not propose to depart in the case.17. ### Response: 1 ### Explanation: terminated. The relevant date will be the date of termination of service, i.e. October 19, 1974 Commencing from that date and counting backwards, admittedly he had rendered service for a period of 240 days within a period of 12 months and, indisputably, therefore, his case falls within section 25B(2) (a) and he shall be deemed to be in continuous service for a period of one year for the purpose of Chapterhas thus satisfied both the eligibility qualifications prescribed in section 25F for claiming retrenchment compensation. He has satisfactorily established that his case is not covered by any o f the excepted or excluded categories and he has rendered continuous service for one year. Therefore, termination of his service would constitute retrenchment. As pre-condition for a valid retrenchment has not been satisfied the termination of service is ab initio void, invalid and inoperative. He must, therefore, be deemed to be in continuous service.The last submission was that looking to the record of the appellant this Court should not grant reinstatement but award compensation. If the termination of service is ab initio void and inoperative, there is no question of granting reinstatement because there is no cessation of service and a mere declaration follows that he continues to be in service with all consequential benefits. Undoubtedly, in some decisions of this Court such as Ruby General Insurance Co. Ltd v. Chopra (P.P.), and Hindustan Steel Ltd. Rourkela v. A. K. Roy and Others it was held that the Court before granting reinstatement mu st weigh all the facts and exercise discretion properly whether to grant reinstatement or to award compensation. But there is a catena of decisions which rule that where the termination is illegal especially where there is an ineffective order of retrenchment, there is neither termination nor cessation of service and a declaration follows that the workman concerned continues to be in service with all consequential benefits. No case is made out for departure from this normally accepted approach of the Courts in the field of social justice and we do not propose to depart in thethe answer is in affirmative, the consequential question will have to be answered whether in view of the admitted position that the mandatoryprescribed by section 25F for a valid retrenchment having not been satisfied, the appellant would be entitled to reinstatement with back wages or as contended by Mr. Markandey in the special facts of this case, the Court should not direct reinstatement but award compensation in lieu of reinstatement.4. An apparent contradiction which stares in the eye on the stand taken by the respondent is overlooked by the Labour Court which has resulted in the miscarriage of justice. In this context the facts as alleged by the respondent may be taken as true. Says the respondent, that the appellant was appointed by order dated July 21, 1973. The relevant portion of the order of which notice may be taken is paragraph 2. It reads asappointment will be temporary in the first instance but is likely to be made permanent.Paragraph 4 refers to the consequences of a temporary appointment, n amely, that the service would be terminable without notice and without any compensation in lieu of notice on either side. Paragraph 6 provides that the employment of the appellant shall be governed by rules, regulations and standing o rders of the company then in force and which may be amended, altered or extended from time to time and the acceptance of the offer carries with it the necessary agreement to obey all such rules, regulations and standing orders. There is not even a whisper of any period of probation prescribed for the appointment nor any suggestion that there are some rules which govern appointment of the appellant which would initially be on probation. Thus, the appointment was temporary in the first instance and there was an inner indication that it was likely to be made permanent. Even if this promise of likely to be made permanent is ignored, indubitably the appointment was temporary. The respondent, however, says that note 3 at t he foot of the appointment order intimates to the appellant that in the event of his permanent appointment the temporary service put in by him will be counted as part of probationary period of service as required under the rules. This consequence would follow in the event of permanent appointment being offered and this is clear from the language employed in note 3. In this case no permanent appointment having been offered, the consequence set out in note 3 could not have emerged. Assuming, however, that this note incorporates all the necessary rules and regulations in the contract of employment, it was incumbent upon the respondent to show that even when appointment is not shown to be on probation in the order of appointment, in view of the rules governing the contract of employment there shall always be a period of probation for every appointee. Witness Bawdekar who appeared on behalf of the respondent stated in his evidence that the appellant was appointed as a probationary salesman. Even according to him prescribed period of probation was six months. He then stated that by the letter dated July 10, 1974, respondent informed the appellant that his service should have been terminated on the exp iry of initial period of probation, i.e. on June 8, 1974. However, as a special case the probation period was extended upto September 8, 1974. No rule was pointed out to us enabling the respondent to extend the initial period of probation. Assuming even then that such was the power of the respondent, on September 9, 1974, the period of probation having not been further extended nor termination of service having been ordered during or at the end of the probationary period on the ground of unsuitability, the consequence in law is that either he would be a temporary employee or a permanent employee as per the rules governing the contract of employment between the appellant and the respondent.
Bhavesh D. Parish Vs. Union of India	be carried on unchecked and unregulatory was ample justification for the impugned legislation, keeping in mind the experience of the public which had been dealing with such unincorporated bodies in Kerala and Tamil Nadu. It is open to the appellants to organise their business within the permissible legal set up by forming non-banking financial corporations and functioning in accordance with Chapter III-B of the Act and the directives issued by the Bank from time to time. The prohibition on partnership firms to carry on their business like that of shroffs cannot be regarded as being an unreasonable restriction on the fundamental right of the appellants to carry on their trade. They can continue lending money as long as they do not borrow from the public. 16. The services rendered by certain informal sectors of the Indian economy could not be belittled. However, in the path of economic progress, if the informal system was sought to be replaced by a more organised system, capable of better regulation and discipline, then this was an economic philosophy reflected by the legislation in question. Such a philosophy might have its merits and demerits. But these were matters of economic policy. They are best left to the wisdom of the legislature and in policy matters the accepted principle is that the Courts should not interfere. Moreover, in the context of the changed economic scenario the expertise of people dealing with the subject should not be lightly interfered with. The consequences of such interdiction can have large-scale ramifications and can put the clock back for a number of years. The process of rationalisation of the infirmities in the economy can be put in serious jeopardy and therefore, it is necessary that while dealing with economic legislations, this Court, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those few cases where the view reflected in the legislation is not possible to be taken at allExamining the validity of the amended s. 45-S of the Act by applying the principles enunciated over the years by this Court, and as encapsuled in the passage quoted in the earlier part of this judgment from this Courts decision in Papnasan Labour Unions case (supra) we find that the said section is in noway illegal or bad in law. Sec. 45-S no doubt prohibits the conduct of banking business by an unincorporated non-banking entity like a shroff, but this prohibition has come about, inter alia, in the interest of unwary depositors and borrowers (from shroffs) and with a view to prevent them from committing financial suicide. Earlier attempts to adequately regulate the non-banking institutions not having achieved the desired result of protecting large number of depositors from unincorporated financial institutions which would suddenly mushroom overnight and then vanish without a trace but taking with it depositors money, left the RBI with no alternative but to prohibit such unincorporated entities from conducting financial business which was more than akin to banking. 17. The restrictions imposed against acceptance of deposits by unincorporated bodies carrying on financial activity or the business of deposit acceptance or lending in any manner are in the larger interest of general public vis-a-vis few persons accepting such deposits. The need for such restrictions had become acute and imperative in view of large scale mismanagement of public funds by such unincorporated bodies. 18. Accordingly, we hold that the provisions of s. 45-S of the Act are valid. 19. Before we conclude there is another matter to which we must advert to. It has been brought to our notice that s. 45-S of the Act has been challenged in various High Courts and few of them have granted the stay of provisions of s. 45-S. When considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or change then the Courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the Courts must show judicial restrain in staying the applicability of the same. Merely because a statute comes up for examination and some arguable point is raised, which persuades the Courts to consider the controversy, the legislative will should not normally be put under suspension pending such consideration. It is now well-settled that there is always a presumption in favour of the constitutional validity of any legislation, unless the same is set aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the interim stage, cannot be understood. The system of checks and balances has to be utilised in a balanced manner with the primary objective of accelerating economic growth rather than suspending its growth by doubting its constitutional efficacy at the threshold itselfWhile the Courts should not abrogate its duty of granting interim injunctions where necessary, equally important is the need to ensure that the judicial discretion does not abrogate from the function of weighing the overwhelming public interest in favour of the continuing operation of a fiscal statute or a piece of economic reform legislation, till on a mature consideration at the final hearing, it is found to be unconstitutional. It is, therefore, necessary to sound a word of caution against intervening at the interlocutory stage in matters of economic reforms and fiscal statutes. 20. A number of petitions had been filed in this Court seeking transfer of writ petitions pending in different High Courts. By order dt. 17th February, 2000, those transfer petitions were dismissed as not pressed. Besides the writ petitions, in respect of which, those transfer petitions had been filed, a number of other petitions are pending disposal in various High Courts. In quite a few of them the High Courts have granted an interim injunction staying the operation of the implementation of the amended s. 45-S of the Act. For the view we have taken now, it is imperative that these petitions, pending in the different High Courts, are formally disposed of at an early date.	0[ds]8.25 We, therefore, suggest that the Reserve Banks control may be extended to finance corporations and necessary enabling legislation be passed to that effect. We recognise that the administrative task of watching and regulating the operations of a large number of small firms will be difficult. We, therefore, suggest that if the law permits, only companies may be allowed to do the banking business in the sense of accepting deposits from the public for the purpose of lending or investment. In that case, the Banking Regulation Act would govern the operations of the Bangalore type finance corporations. If, however, the law does not permit it, any scheme of regulation may have as one of its objections the reduction in the number of finance corporations besides, of course, the safeguarding of depositors interestit is a constitutional truism that restrictions in extreme cases should be pushed to the point of prohibition, if any lesser strategy will not achieve the purpose." It cannot be denied that shroffs have played an important role in providing finance in the rural sector and in small towns. But, despite the services which they may have rendered, it is difficult to accept the contention that the RBI was not justified in imposing ban on unincorporated bodies accepting deposits from public while carrying on financing business. The inherent danger to the public especially in small towns and villages in permitting such business to be carried on unchecked and unregulatory was ample justification for the impugned legislation, keeping in mind the experience of the public which had been dealing with such unincorporated bodies in Kerala and Tamil Nadu. It is open to the appellants to organise their business within the permissible legal set up by formingg financial corporations and functioning in accordance with ChapterB of the Act and the directives issued by the Bank from time to time. The prohibition on partnership firms to carry on their business like that of shroffs cannot be regarded as being an unreasonable restriction on the fundamental right of the appellants to carry on their trade. They can continue lending money as long as they do not borrow from the publicThe services rendered by certain informal sectors of the Indian economy could not be belittled. However, in the path of economic progress, if the informal system was sought to be replaced by a more organised system, capable of better regulation and discipline, then this was an economic philosophy reflected by the legislation in question. Such a philosophy might have its merits and demerits. But these were matters of economic policy. They are best left to the wisdom of the legislature and in policy matters the accepted principle is that the Courts should not interfere. Moreover, in the context of the changed economic scenario the expertise of people dealing with the subject should not be lightly interfered with. The consequences of such interdiction can havee ramifications and can put the clock back for a number of years. The process of rationalisation of the infirmities in the economy can be put in serious jeopardy and therefore, it is necessary that while dealing with economic legislations, this Court, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those few cases where the view reflected in the legislation is not possible to be taken at allExamining the validity of the amended s.S of the Act by applying the principles enunciated over the years by this Court, and as encapsuled in the passage quoted in the earlier part of this judgment from this Courts decision in Papnasan Labour Unions case (supra) we find that the said section is in noway illegal or bad in law. Sec.S no doubt prohibits the conduct of banking business by an unincorporatedg entity like a shroff, but this prohibition has come about, inter alia, in the interest of unwary depositors and borrowers (from shroffs) and with a view to prevent them from committing financial suicide. Earlier attempts to adequately regulate theg institutions not having achieved the desired result of protecting large number of depositors from unincorporated financial institutions which would suddenly mushroom overnight and then vanish without a trace but taking with it depositors money, left the RBI with no alternative but to prohibit such unincorporated entities from conducting financial business which was more than akin to bankingThe restrictions imposed against acceptance of deposits by unincorporated bodies carrying on financial activity or the business of deposit acceptance or lending in any manner are in the larger interest of general publics few persons accepting such deposits. The need for such restrictions had become acute and imperative in view of large scale mismanagement of public funds by such unincorporated bodiesAccordingly, we hold that the provisions of s.S of the Act are validBefore we conclude there is another matter to which we must advert to. It has been brought to our notice that s.S of the Act has been challenged in various High Courts and few of them have granted the stay of provisions of s.. Whenconsidering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or change then the Courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the Courts must show judicial restrain in staying the applicability of the same. Merely because a statute comes up for examination and some arguable point is raised, which persuades the Courts to consider the controversy, the legislative will should not normally be put under suspension pending such consideration. It is nowd that there is always a presumption in favour of the constitutional validity of any legislation, unless the same is set aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the interim stage, cannot be understood. The system of checks and balances has to be utilised in a balanced manner with the primary objective of accelerating economic growth rather than suspending its growth by doubting its constitutional efficacy at the threshold itselfWhile the Courts should not abrogate its duty of granting interim injunctions where necessary, equally important is the need to ensure that the judicial discretion does not abrogate from the function of weighing the overwhelming public interest in favour of the continuing operation of a fiscal statute or a piece of economic reform legislation, till on a mature consideration at the final hearing, it is found to be unconstitutional. It is, therefore, necessary to sound a word of caution against intervening at the interlocutory stage in matters of economic reforms and fiscal statutesA number of petitions had been filed in this Court seeking transfer of writ petitions pending in different High Courts. By order dt. 17th February, 2000, those transfer petitions were dismissed as not pressed. Besides the writ petitions, in respect of which, those transfer petitions had been filed, a number of other petitions are pending disposal in various High Courts. In quite a few of them the High Courts have granted an interim injunction staying the operation of the implementation of the amended s.S of the Act. For the view we have taken now, it is imperative that these petitions, pending in the different High Courts, are formally disposed of at an early date	0	6,873	1,305	### 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: be carried on unchecked and unregulatory was ample justification for the impugned legislation, keeping in mind the experience of the public which had been dealing with such unincorporated bodies in Kerala and Tamil Nadu. It is open to the appellants to organise their business within the permissible legal set up by forming non-banking financial corporations and functioning in accordance with Chapter III-B of the Act and the directives issued by the Bank from time to time. The prohibition on partnership firms to carry on their business like that of shroffs cannot be regarded as being an unreasonable restriction on the fundamental right of the appellants to carry on their trade. They can continue lending money as long as they do not borrow from the public. 16. The services rendered by certain informal sectors of the Indian economy could not be belittled. However, in the path of economic progress, if the informal system was sought to be replaced by a more organised system, capable of better regulation and discipline, then this was an economic philosophy reflected by the legislation in question. Such a philosophy might have its merits and demerits. But these were matters of economic policy. They are best left to the wisdom of the legislature and in policy matters the accepted principle is that the Courts should not interfere. Moreover, in the context of the changed economic scenario the expertise of people dealing with the subject should not be lightly interfered with. The consequences of such interdiction can have large-scale ramifications and can put the clock back for a number of years. The process of rationalisation of the infirmities in the economy can be put in serious jeopardy and therefore, it is necessary that while dealing with economic legislations, this Court, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those few cases where the view reflected in the legislation is not possible to be taken at allExamining the validity of the amended s. 45-S of the Act by applying the principles enunciated over the years by this Court, and as encapsuled in the passage quoted in the earlier part of this judgment from this Courts decision in Papnasan Labour Unions case (supra) we find that the said section is in noway illegal or bad in law. Sec. 45-S no doubt prohibits the conduct of banking business by an unincorporated non-banking entity like a shroff, but this prohibition has come about, inter alia, in the interest of unwary depositors and borrowers (from shroffs) and with a view to prevent them from committing financial suicide. Earlier attempts to adequately regulate the non-banking institutions not having achieved the desired result of protecting large number of depositors from unincorporated financial institutions which would suddenly mushroom overnight and then vanish without a trace but taking with it depositors money, left the RBI with no alternative but to prohibit such unincorporated entities from conducting financial business which was more than akin to banking. 17. The restrictions imposed against acceptance of deposits by unincorporated bodies carrying on financial activity or the business of deposit acceptance or lending in any manner are in the larger interest of general public vis-a-vis few persons accepting such deposits. The need for such restrictions had become acute and imperative in view of large scale mismanagement of public funds by such unincorporated bodies. 18. Accordingly, we hold that the provisions of s. 45-S of the Act are valid. 19. Before we conclude there is another matter to which we must advert to. It has been brought to our notice that s. 45-S of the Act has been challenged in various High Courts and few of them have granted the stay of provisions of s. 45-S. When considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or change then the Courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the Courts must show judicial restrain in staying the applicability of the same. Merely because a statute comes up for examination and some arguable point is raised, which persuades the Courts to consider the controversy, the legislative will should not normally be put under suspension pending such consideration. It is now well-settled that there is always a presumption in favour of the constitutional validity of any legislation, unless the same is set aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the interim stage, cannot be understood. The system of checks and balances has to be utilised in a balanced manner with the primary objective of accelerating economic growth rather than suspending its growth by doubting its constitutional efficacy at the threshold itselfWhile the Courts should not abrogate its duty of granting interim injunctions where necessary, equally important is the need to ensure that the judicial discretion does not abrogate from the function of weighing the overwhelming public interest in favour of the continuing operation of a fiscal statute or a piece of economic reform legislation, till on a mature consideration at the final hearing, it is found to be unconstitutional. It is, therefore, necessary to sound a word of caution against intervening at the interlocutory stage in matters of economic reforms and fiscal statutes. 20. A number of petitions had been filed in this Court seeking transfer of writ petitions pending in different High Courts. By order dt. 17th February, 2000, those transfer petitions were dismissed as not pressed. Besides the writ petitions, in respect of which, those transfer petitions had been filed, a number of other petitions are pending disposal in various High Courts. In quite a few of them the High Courts have granted an interim injunction staying the operation of the implementation of the amended s. 45-S of the Act. For the view we have taken now, it is imperative that these petitions, pending in the different High Courts, are formally disposed of at an early date. ### Response: 0 ### Explanation: from public while carrying on financing business. The inherent danger to the public especially in small towns and villages in permitting such business to be carried on unchecked and unregulatory was ample justification for the impugned legislation, keeping in mind the experience of the public which had been dealing with such unincorporated bodies in Kerala and Tamil Nadu. It is open to the appellants to organise their business within the permissible legal set up by formingg financial corporations and functioning in accordance with ChapterB of the Act and the directives issued by the Bank from time to time. The prohibition on partnership firms to carry on their business like that of shroffs cannot be regarded as being an unreasonable restriction on the fundamental right of the appellants to carry on their trade. They can continue lending money as long as they do not borrow from the publicThe services rendered by certain informal sectors of the Indian economy could not be belittled. However, in the path of economic progress, if the informal system was sought to be replaced by a more organised system, capable of better regulation and discipline, then this was an economic philosophy reflected by the legislation in question. Such a philosophy might have its merits and demerits. But these were matters of economic policy. They are best left to the wisdom of the legislature and in policy matters the accepted principle is that the Courts should not interfere. Moreover, in the context of the changed economic scenario the expertise of people dealing with the subject should not be lightly interfered with. The consequences of such interdiction can havee ramifications and can put the clock back for a number of years. The process of rationalisation of the infirmities in the economy can be put in serious jeopardy and therefore, it is necessary that while dealing with economic legislations, this Court, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those few cases where the view reflected in the legislation is not possible to be taken at allExamining the validity of the amended s.S of the Act by applying the principles enunciated over the years by this Court, and as encapsuled in the passage quoted in the earlier part of this judgment from this Courts decision in Papnasan Labour Unions case (supra) we find that the said section is in noway illegal or bad in law. Sec.S no doubt prohibits the conduct of banking business by an unincorporatedg entity like a shroff, but this prohibition has come about, inter alia, in the interest of unwary depositors and borrowers (from shroffs) and with a view to prevent them from committing financial suicide. Earlier attempts to adequately regulate theg institutions not having achieved the desired result of protecting large number of depositors from unincorporated financial institutions which would suddenly mushroom overnight and then vanish without a trace but taking with it depositors money, left the RBI with no alternative but to prohibit such unincorporated entities from conducting financial business which was more than akin to bankingThe restrictions imposed against acceptance of deposits by unincorporated bodies carrying on financial activity or the business of deposit acceptance or lending in any manner are in the larger interest of general publics few persons accepting such deposits. The need for such restrictions had become acute and imperative in view of large scale mismanagement of public funds by such unincorporated bodiesAccordingly, we hold that the provisions of s.S of the Act are validBefore we conclude there is another matter to which we must advert to. It has been brought to our notice that s.S of the Act has been challenged in various High Courts and few of them have granted the stay of provisions of s.. Whenconsidering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or change then the Courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the Courts must show judicial restrain in staying the applicability of the same. Merely because a statute comes up for examination and some arguable point is raised, which persuades the Courts to consider the controversy, the legislative will should not normally be put under suspension pending such consideration. It is nowd that there is always a presumption in favour of the constitutional validity of any legislation, unless the same is set aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the interim stage, cannot be understood. The system of checks and balances has to be utilised in a balanced manner with the primary objective of accelerating economic growth rather than suspending its growth by doubting its constitutional efficacy at the threshold itselfWhile the Courts should not abrogate its duty of granting interim injunctions where necessary, equally important is the need to ensure that the judicial discretion does not abrogate from the function of weighing the overwhelming public interest in favour of the continuing operation of a fiscal statute or a piece of economic reform legislation, till on a mature consideration at the final hearing, it is found to be unconstitutional. It is, therefore, necessary to sound a word of caution against intervening at the interlocutory stage in matters of economic reforms and fiscal statutesA number of petitions had been filed in this Court seeking transfer of writ petitions pending in different High Courts. By order dt. 17th February, 2000, those transfer petitions were dismissed as not pressed. Besides the writ petitions, in respect of which, those transfer petitions had been filed, a number of other petitions are pending disposal in various High Courts. In quite a few of them the High Courts have granted an interim injunction staying the operation of the implementation of the amended s.S of the Act. For the view we have taken now, it is imperative that these petitions, pending in the different High Courts, are formally disposed of at an early date
Industrial Plastic Corporation Private Limited Vs. Union of India	the decision dated October 6, 1982 was issued by the Government of india. Shri Diwan submitted that in these circumstances, there is no reason why the petitioners should be deprived the doctrine of the refund of the duty paid right from year 1962 onwards. Shri mehta submitted that the doctrine of mistake of law should not be permitted to be extended for such a long period and urged that the Supreme Court decision reported in 1984 (16) ELT 171 (SC) (Shri Vallabh Glass Works Ltd. and Another v. Union of India and Others) lays down that assessee is not eligible for relief in respect of payments made beyond the period of three years from the date of filing of the Writ Petition. The submission is not correct. The Supreme Court was examining the question as to what is the point from which the limitation will commence to run when mistake became known and in that context observed that relief in respect of payments made beyond the period of three years may not be granted. We are unable to read the decision of the Supreme Court as laying down that the assessee who has paid the duty under mistake is not entitled to refund for a period beyond three years from the date of filing of the petition even though the mistake came to be known just prior to filing of petition. The issue was squarely canvassed before this High Court and in the decision reported in 1986 (25) ELT 625 (Shalimar textile Mfg. Pvt. Ltd. v. Union of India and Others) one of us (Pendse, J.) held that under Article 265 of the Constitution, no tax can be levied or collected except by authority of law, and in case any such tax is levied and collected without and authority of law, then it would not be permissible for the Department to refuse of such amount on the spacious ground that the claim for refund was made belatedly. It was further held that the authority which was recovering tax without jurisdiction cannot be permitted to retain the amount merely because the tax payer was not aware that the recovery was without jurisdiction and consequently if recovery is illegal and without jurisdiction, the claim of refund is not governed by law of limitation. It was further held that the refund would be admissible irrespective of the period covered by the refund application and not restricted only for a period of three years prior to the date of knowledge of mistake of law. Another single Judge in the decision reported in 1986 (25) ELT 638 (Bombay) (Devidayal electronics and Wires Ltd. v. Union of India and Others) after considering the decision of the supreme Court in Shri Vallabh Glass Works Limited case reached the identical conclusion. We are in respectful agreement with the view taken by the Single Judges and the claim made by the petitioners for refund of duty from year 1962 cannot be denied on the ground of limitation. ( 8 ) SHRI Mehta then submitted that the petitioners are not entitled to refund in view of the doctrine of unjust enrichment. It was urged that the excise duty being indirect tax is invariably passed on to the consumers and as the monetary burden is shifted to the consumers, the refund should be refused as the Company is not going to return the amount to various consumers. It was urged that as the duty was not paid from the pocket of the manufacturer, the refund to the manufacturer is entirely unjust. It was also claimed that the Government cannot be asked to make refund of money paid in distant past because the money so received has already been spent. We are not impressed by this submission for more than one reason. Indeed, by catena of decisions of this Court, the claim for unjust enrichment raised by the Department has been turned down. The Full Bench of this Court in the decision reported in 1990 (46) ELT 23 (Bom.) (New india Industries Ltd. v. Union of India) observed that Court ought not presume that the burden of tax has been passed to the consumers and upon that assumption reject the consequential payer for refund. The Full Bench further observed that it is for the Department to raise such a plea on affidavit and Court should decide the question according to the facts and circumstances of the case. The Court is required to satisfy itself that the tax burden has been shifted to the consumers and the order of refund would result in securing unjust enrichment. The Full Bench then observed that even when in a given case the Court is satisfied that the burden of tax has been passed on to the consumers, still there would be no uniform formula for moulding the consequential relief for benefiting those who had ultimately borne the burden. In the affidavit in the present case on behalf of the Department, there is no averment that the burden was infact shifted to the consumers save and except claiming that the excise duty is invariably passed on to the customers. It is not the averment which is sufficient to examine the claim of unjust enrichment by Writ Court in absence of any data produced by Department. In accordance with the decision of the Full Bench, it is not possible to examine the claim of unjust enrichment, even assuming that such plea is permissible. A contention that the Government should not be directed to make refund because the Government has spent the duty amount received is only required to be stated to be rejected. If such contention is to be accepted, then there would be no refund even to the assessees under the Income Tax Act because normally the duty or tax collected is immediately spent by the Government. It is no defence that the amount is spent when the recovery of dues is without authority. In our judgment, the Department is liable to refund the duty wrongfully recovered.	1[ds]The submission is correct and deservesview of these subsequent events, which inter alia support the petitioners, the question of validity of order dated September 7, 1981 or order dated July 20, 1983 accepting revised classification of price list claiming no duty payable only from December 18, 1982 instead of May 12, 1982 loses all its significance and is only of academic interest. It is, therefore, not necessary to examine as to whether the petitioner Company was entitled to advantage of exemption Notifications dated June 1, 1971 and February 27, 1982 as the petitioner Company was not liable to pay any excise duty allsubmission is not correct. The Supreme Court was examining the question as to what is the point from which the limitation will commence to run when mistake became known and in that context observed that relief in respect of payments made beyond the period of three years may not be granted. We are unable to read the decision of the Supreme Court as laying down that the assessee who has paid the duty under mistake is not entitled to refund for a period beyond three years from the date of filing of the petition even though the mistake came to be known just prior to filing of petition. The issue was squarely canvassed before this High Court and in the decision reported in 1986 (25) ELT 625 (Shalimar textile Mfg. Pvt. Ltd. v. Union of India and Others) one of us (Pendse, J.) held that under Article 265 of the Constitution, no tax can be levied or collected except by authority of law, and in case any such tax is levied and collected without and authority of law, then it would not be permissible for the Department to refuse of such amount on the spacious ground that the claim for refund was made belatedly. It was further held that the authority which was recovering tax without jurisdiction cannot be permitted to retain the amount merely because the tax payer was not aware that the recovery was without jurisdiction and consequently if recovery is illegal and without jurisdiction, the claim of refund is not governed by law of limitation. It was further held that the refund would be admissible irrespective of the period covered by the refund application and not restricted only for a period of three years prior to the date of knowledge of mistake of law. Another single Judge in the decision reported in 1986 (25) ELT 638 (Bombay) (Devidayal electronics and Wires Ltd. v. Union of India and Others) after considering the decision of the supreme Court in Shri Vallabh Glass Works Limited case reached the identical conclusion. We are in respectful agreement with the view taken by the Single Judges and the claim made by the petitioners for refund of duty from year 1962 cannot be denied on the ground ofare not impressed by this submission for more than oneare not impressed by this submission for more than onereason. Indeed, by catena of decisions of this Court, the claim for unjust enrichment raised by the Department has been turned down. The Full Bench of this Court in the decision reported in 1990 (46) ELT 23 (Bom.) (New india Industries Ltd. v. Union of India) observed that Court ought not presume that the burden of tax has been passed to the consumers and upon that assumption reject the consequential payer for refund. The Full Bench further observed that it is for the Department to raise such a plea on affidavit and Court should decide the question according to the facts and circumstances of the case. The Court is required to satisfy itself that the tax burden has been shifted to the consumers and the order of refund would result in securing unjust enrichment. The Full Bench then observed that even when in a given case the Court is satisfied that the burden of tax has been passed on to the consumers, still there would be no uniform formula for moulding the consequential relief for benefiting those who had ultimately borne the burden. In the affidavit in the present case on behalf of the Department, there is no averment that the burden was infact shifted to the consumers save and except claiming that the excise duty is invariably passed on to the customers. It is not the averment which is sufficient to examine the claim of unjust enrichment by Writ Court in absence of any data produced by Department. In accordance with the decision of the Full Bench, it is not possible to examine the claim of unjust enrichment, even assuming that such plea is permissible. A contention that the Government should not be directed to make refund because the Government has spent the duty amount received is only required to be stated to be rejected. If such contention is to be accepted, then there would be no refund even to the assessees under the Income Tax Act because normally the duty or tax collected is immediately spent by the Government. It is no defence that the amount is spent when the recovery of dues is without authority. In our judgment, the Department is liable to refund the duty wrongfully recovered.	1	3,642	936	### Instruction: Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation. ### Input: the decision dated October 6, 1982 was issued by the Government of india. Shri Diwan submitted that in these circumstances, there is no reason why the petitioners should be deprived the doctrine of the refund of the duty paid right from year 1962 onwards. Shri mehta submitted that the doctrine of mistake of law should not be permitted to be extended for such a long period and urged that the Supreme Court decision reported in 1984 (16) ELT 171 (SC) (Shri Vallabh Glass Works Ltd. and Another v. Union of India and Others) lays down that assessee is not eligible for relief in respect of payments made beyond the period of three years from the date of filing of the Writ Petition. The submission is not correct. The Supreme Court was examining the question as to what is the point from which the limitation will commence to run when mistake became known and in that context observed that relief in respect of payments made beyond the period of three years may not be granted. We are unable to read the decision of the Supreme Court as laying down that the assessee who has paid the duty under mistake is not entitled to refund for a period beyond three years from the date of filing of the petition even though the mistake came to be known just prior to filing of petition. The issue was squarely canvassed before this High Court and in the decision reported in 1986 (25) ELT 625 (Shalimar textile Mfg. Pvt. Ltd. v. Union of India and Others) one of us (Pendse, J.) held that under Article 265 of the Constitution, no tax can be levied or collected except by authority of law, and in case any such tax is levied and collected without and authority of law, then it would not be permissible for the Department to refuse of such amount on the spacious ground that the claim for refund was made belatedly. It was further held that the authority which was recovering tax without jurisdiction cannot be permitted to retain the amount merely because the tax payer was not aware that the recovery was without jurisdiction and consequently if recovery is illegal and without jurisdiction, the claim of refund is not governed by law of limitation. It was further held that the refund would be admissible irrespective of the period covered by the refund application and not restricted only for a period of three years prior to the date of knowledge of mistake of law. Another single Judge in the decision reported in 1986 (25) ELT 638 (Bombay) (Devidayal electronics and Wires Ltd. v. Union of India and Others) after considering the decision of the supreme Court in Shri Vallabh Glass Works Limited case reached the identical conclusion. We are in respectful agreement with the view taken by the Single Judges and the claim made by the petitioners for refund of duty from year 1962 cannot be denied on the ground of limitation. ( 8 ) SHRI Mehta then submitted that the petitioners are not entitled to refund in view of the doctrine of unjust enrichment. It was urged that the excise duty being indirect tax is invariably passed on to the consumers and as the monetary burden is shifted to the consumers, the refund should be refused as the Company is not going to return the amount to various consumers. It was urged that as the duty was not paid from the pocket of the manufacturer, the refund to the manufacturer is entirely unjust. It was also claimed that the Government cannot be asked to make refund of money paid in distant past because the money so received has already been spent. We are not impressed by this submission for more than one reason. Indeed, by catena of decisions of this Court, the claim for unjust enrichment raised by the Department has been turned down. The Full Bench of this Court in the decision reported in 1990 (46) ELT 23 (Bom.) (New india Industries Ltd. v. Union of India) observed that Court ought not presume that the burden of tax has been passed to the consumers and upon that assumption reject the consequential payer for refund. The Full Bench further observed that it is for the Department to raise such a plea on affidavit and Court should decide the question according to the facts and circumstances of the case. The Court is required to satisfy itself that the tax burden has been shifted to the consumers and the order of refund would result in securing unjust enrichment. The Full Bench then observed that even when in a given case the Court is satisfied that the burden of tax has been passed on to the consumers, still there would be no uniform formula for moulding the consequential relief for benefiting those who had ultimately borne the burden. In the affidavit in the present case on behalf of the Department, there is no averment that the burden was infact shifted to the consumers save and except claiming that the excise duty is invariably passed on to the customers. It is not the averment which is sufficient to examine the claim of unjust enrichment by Writ Court in absence of any data produced by Department. In accordance with the decision of the Full Bench, it is not possible to examine the claim of unjust enrichment, even assuming that such plea is permissible. A contention that the Government should not be directed to make refund because the Government has spent the duty amount received is only required to be stated to be rejected. If such contention is to be accepted, then there would be no refund even to the assessees under the Income Tax Act because normally the duty or tax collected is immediately spent by the Government. It is no defence that the amount is spent when the recovery of dues is without authority. In our judgment, the Department is liable to refund the duty wrongfully recovered. ### Response: 1 ### Explanation: The submission is correct and deservesview of these subsequent events, which inter alia support the petitioners, the question of validity of order dated September 7, 1981 or order dated July 20, 1983 accepting revised classification of price list claiming no duty payable only from December 18, 1982 instead of May 12, 1982 loses all its significance and is only of academic interest. It is, therefore, not necessary to examine as to whether the petitioner Company was entitled to advantage of exemption Notifications dated June 1, 1971 and February 27, 1982 as the petitioner Company was not liable to pay any excise duty allsubmission is not correct. The Supreme Court was examining the question as to what is the point from which the limitation will commence to run when mistake became known and in that context observed that relief in respect of payments made beyond the period of three years may not be granted. We are unable to read the decision of the Supreme Court as laying down that the assessee who has paid the duty under mistake is not entitled to refund for a period beyond three years from the date of filing of the petition even though the mistake came to be known just prior to filing of petition. The issue was squarely canvassed before this High Court and in the decision reported in 1986 (25) ELT 625 (Shalimar textile Mfg. Pvt. Ltd. v. Union of India and Others) one of us (Pendse, J.) held that under Article 265 of the Constitution, no tax can be levied or collected except by authority of law, and in case any such tax is levied and collected without and authority of law, then it would not be permissible for the Department to refuse of such amount on the spacious ground that the claim for refund was made belatedly. It was further held that the authority which was recovering tax without jurisdiction cannot be permitted to retain the amount merely because the tax payer was not aware that the recovery was without jurisdiction and consequently if recovery is illegal and without jurisdiction, the claim of refund is not governed by law of limitation. It was further held that the refund would be admissible irrespective of the period covered by the refund application and not restricted only for a period of three years prior to the date of knowledge of mistake of law. Another single Judge in the decision reported in 1986 (25) ELT 638 (Bombay) (Devidayal electronics and Wires Ltd. v. Union of India and Others) after considering the decision of the supreme Court in Shri Vallabh Glass Works Limited case reached the identical conclusion. We are in respectful agreement with the view taken by the Single Judges and the claim made by the petitioners for refund of duty from year 1962 cannot be denied on the ground ofare not impressed by this submission for more than oneare not impressed by this submission for more than onereason. Indeed, by catena of decisions of this Court, the claim for unjust enrichment raised by the Department has been turned down. The Full Bench of this Court in the decision reported in 1990 (46) ELT 23 (Bom.) (New india Industries Ltd. v. Union of India) observed that Court ought not presume that the burden of tax has been passed to the consumers and upon that assumption reject the consequential payer for refund. The Full Bench further observed that it is for the Department to raise such a plea on affidavit and Court should decide the question according to the facts and circumstances of the case. The Court is required to satisfy itself that the tax burden has been shifted to the consumers and the order of refund would result in securing unjust enrichment. The Full Bench then observed that even when in a given case the Court is satisfied that the burden of tax has been passed on to the consumers, still there would be no uniform formula for moulding the consequential relief for benefiting those who had ultimately borne the burden. In the affidavit in the present case on behalf of the Department, there is no averment that the burden was infact shifted to the consumers save and except claiming that the excise duty is invariably passed on to the customers. It is not the averment which is sufficient to examine the claim of unjust enrichment by Writ Court in absence of any data produced by Department. In accordance with the decision of the Full Bench, it is not possible to examine the claim of unjust enrichment, even assuming that such plea is permissible. A contention that the Government should not be directed to make refund because the Government has spent the duty amount received is only required to be stated to be rejected. If such contention is to be accepted, then there would be no refund even to the assessees under the Income Tax Act because normally the duty or tax collected is immediately spent by the Government. It is no defence that the amount is spent when the recovery of dues is without authority. In our judgment, the Department is liable to refund the duty wrongfully recovered.
New India Assurance Co. Ltd Vs. Shanti Bopanna & Others	loss of dependency, ii) loss of Estate, iii) funeral expenses and loss of consortium respectively. The High Court further upheld the award of interest @ 6% and dismissed the appeal.3. The deceased-Venkata Subramanyam Bopana was travelling in a car which belonged to his employer, the M/s Surya Pharmaceutical Ltd. He held the post of Vice President and was due to be promoted as a Managing Director of the aforesaid company. The car was being driven by another person. An accident was occurred on 30.03.2009 in which the deceased died. At the relevant time, his age was about 51 years. A claim Petition was filed under Section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") by the Widow and the minor son against the appellant-company and others. The respondents-herein omitted to implead the mother of the deceased as a respondent to the Claim Petition. According to them, though it is required by Section 166 of the Act that all the legal representatives be impleaded, they did not do so because the employee was not a legal representative, having relinquished all her rights in respect of Estate of the claimant-widow on 17.02.2010, i.e., after the accident and during the pendency of the Claim Petition.4. We might add, at the outset, that the Release Deed is on record and we have heard learned counsel for respondent No. 5, the mother of the deceased and we find that there is no evidence and sufficient material to resolve the dispute between the mother and the deceased on the one hand and the claimants, i.e, widow and adopted child on the other. We, therefore, relegate this dispute to be decided by appropriate proceedings, which the mother may adopt, if so advised.5. The Tribunal found that at the relevant time, the deceased was found to have an income of Rs. 22,92,148/- per annum as Vice President of the company. The Tribunal added 30% towards future prospects; it deducted 30% towards income tax and thus arrived at the actual salary of Rs. 22,92,148/-. The Tribunal also deducted ?rd towards personal expenses of the deceased and arrived at the multiplicand of Rs.15,28,099/- per annum. The Tribunal held the age of the deceased as 49 years. The multiplier applied was 11. The loss of dependency to the family was found to be Rs. 1,68,09,089/- As noted above, Rs. 2000/-, Rs.5000/- and Rs. 2500/- were added on account of funeral expenses, loss of consortium and loss of Estate respectively.The Insurance Policy6. The vehicle belonged to M/s Surya Pharmaceutical Ltd. and it was covered by package policy,also known as a comprehensive policy. This policy was clearly not an Act Policy under Section 147 of the Act. It is not in dispute that this policy was not Act policy under Section 147 of the Act. The relevant terms of the policy are as follows :"...Subject to the limits of liability as laid down in the schedule thereto, the company will indemnify the insured in the event of accident caused by or arising out of the use of the insured vehicles against all sums which the insured shall become legally liable to pay in respect :-(i) death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicle Act, the company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured."7. The clause of the policy reproduced above clearly covers the insured against all sums which the insurer may become liable to pay in respect of :"(i)death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward)...."8. We thus find that the claim of the widow and the adopted son is fully covered by the clause in the insurance contract, i.e., the policy and there is no scope for acceding to the submission made on behalf of the appellant-company that the claim is excepted by virtue of the provisions of Section 147 (1) of the Act in this case. We, therefore, reject the contention made on behalf of the appellant that the deceased was not a third party because he was an employee sitting in the car. It is obvious from the circumstances that the deceased was indeed a third party being neither the insurer not the insured.9. The next contention raised on behalf of the appellant is that the future prospects have been unreasonably granted to the respondents. According to the appellant, the High Court noted that according to the appellant-company the deceased was 51 years but we find that no categorical finding was recorded that the deceased was 51 years of age. We, therefore, accept the finding of the Tribunal that the deceased was 49 years of age. It might therefore, not be necessary to consider the submission made by the appellant-company that because the deceased was above 50 years of age, the thumb rule laid down in the case of Sarla Verma v. DTC reported in 2009 (6) SCC 121 ought to have been followed. We find from the observations relied on in Sarla Vermas case (supra) that there is a thumb rule that future prospects may not be awarded in case the deceased is above 50 years of age. This Court has observed as follows :"....A departure therefrom should be made only in rare and exceptional cases involving special circumstances."10. We find that the High Court has rightly observed as follows :"the deceased was holding the post of a Vice President and was due to be promoted as Managing Director thereby his income would have raised to 5.00 lacs per month (sic). Thus 30% had to be added to his income for future prospects as rightly done by the Tribunal."There is, thus, no merit in this contention made on behalf of the appellant.	0[ds]4. We might add, at the outset, that the Release Deed is on record and we have heard learned counsel for respondent No. 5, the mother of the deceased and we find that there is no evidence and sufficient material to resolve the dispute between the mother and the deceased on the one hand and the claimants, i.e, widow and adopted child on the other. We, therefore, relegate this dispute to be decided by appropriate proceedings, which the mother may adopt, if so advised.We thus find that the claim of the widow and the adopted son is fully covered by the clause in the insurance contract, i.e., the policy and there is no scope for acceding to the submission made on behalf of thethat the claim is excepted by virtue of the provisions of Section 147 (1) of the Act in this case.We, therefore, reject the contention made on behalf of the appellant that the deceased was not a third party because he was an employee sitting in the car. It is obvious from the circumstances that the deceased was indeed a third party being neither the insurer not thetherefore, accept the finding of the Tribunal that the deceased was 49 years of age. It might therefore, not be necessary to consider the submission made by thethat because the deceased was above 50 years of age, the thumb rule laid down in the case of Sarla Verma v. DTC reported in 2009 (6) SCC 121 ought to have been followed. We find from the observations relied on in Sarla Vermas case (supra) that there is a thumb rule that future prospects may not be awarded in case the deceased is above 50 years of age.We find that the High Court has rightly observed as followsdeceased was holding the post of a Vice President and was due to be promoted as Managing Director thereby his income would have raised to 5.00 lacs per month (sic). Thus 30% had to be added to his income for future prospects as rightly done by theis, thus, no merit in this contention made on behalf of the appellant.	0	1,216	392	### 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: loss of dependency, ii) loss of Estate, iii) funeral expenses and loss of consortium respectively. The High Court further upheld the award of interest @ 6% and dismissed the appeal.3. The deceased-Venkata Subramanyam Bopana was travelling in a car which belonged to his employer, the M/s Surya Pharmaceutical Ltd. He held the post of Vice President and was due to be promoted as a Managing Director of the aforesaid company. The car was being driven by another person. An accident was occurred on 30.03.2009 in which the deceased died. At the relevant time, his age was about 51 years. A claim Petition was filed under Section 166 of the Motor Vehicles Act, 1988 (for short, "the Act") by the Widow and the minor son against the appellant-company and others. The respondents-herein omitted to implead the mother of the deceased as a respondent to the Claim Petition. According to them, though it is required by Section 166 of the Act that all the legal representatives be impleaded, they did not do so because the employee was not a legal representative, having relinquished all her rights in respect of Estate of the claimant-widow on 17.02.2010, i.e., after the accident and during the pendency of the Claim Petition.4. We might add, at the outset, that the Release Deed is on record and we have heard learned counsel for respondent No. 5, the mother of the deceased and we find that there is no evidence and sufficient material to resolve the dispute between the mother and the deceased on the one hand and the claimants, i.e, widow and adopted child on the other. We, therefore, relegate this dispute to be decided by appropriate proceedings, which the mother may adopt, if so advised.5. The Tribunal found that at the relevant time, the deceased was found to have an income of Rs. 22,92,148/- per annum as Vice President of the company. The Tribunal added 30% towards future prospects; it deducted 30% towards income tax and thus arrived at the actual salary of Rs. 22,92,148/-. The Tribunal also deducted ?rd towards personal expenses of the deceased and arrived at the multiplicand of Rs.15,28,099/- per annum. The Tribunal held the age of the deceased as 49 years. The multiplier applied was 11. The loss of dependency to the family was found to be Rs. 1,68,09,089/- As noted above, Rs. 2000/-, Rs.5000/- and Rs. 2500/- were added on account of funeral expenses, loss of consortium and loss of Estate respectively.The Insurance Policy6. The vehicle belonged to M/s Surya Pharmaceutical Ltd. and it was covered by package policy,also known as a comprehensive policy. This policy was clearly not an Act Policy under Section 147 of the Act. It is not in dispute that this policy was not Act policy under Section 147 of the Act. The relevant terms of the policy are as follows :"...Subject to the limits of liability as laid down in the schedule thereto, the company will indemnify the insured in the event of accident caused by or arising out of the use of the insured vehicles against all sums which the insured shall become legally liable to pay in respect :-(i) death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicle Act, the company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured."7. The clause of the policy reproduced above clearly covers the insured against all sums which the insurer may become liable to pay in respect of :"(i)death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward)...."8. We thus find that the claim of the widow and the adopted son is fully covered by the clause in the insurance contract, i.e., the policy and there is no scope for acceding to the submission made on behalf of the appellant-company that the claim is excepted by virtue of the provisions of Section 147 (1) of the Act in this case. We, therefore, reject the contention made on behalf of the appellant that the deceased was not a third party because he was an employee sitting in the car. It is obvious from the circumstances that the deceased was indeed a third party being neither the insurer not the insured.9. The next contention raised on behalf of the appellant is that the future prospects have been unreasonably granted to the respondents. According to the appellant, the High Court noted that according to the appellant-company the deceased was 51 years but we find that no categorical finding was recorded that the deceased was 51 years of age. We, therefore, accept the finding of the Tribunal that the deceased was 49 years of age. It might therefore, not be necessary to consider the submission made by the appellant-company that because the deceased was above 50 years of age, the thumb rule laid down in the case of Sarla Verma v. DTC reported in 2009 (6) SCC 121 ought to have been followed. We find from the observations relied on in Sarla Vermas case (supra) that there is a thumb rule that future prospects may not be awarded in case the deceased is above 50 years of age. This Court has observed as follows :"....A departure therefrom should be made only in rare and exceptional cases involving special circumstances."10. We find that the High Court has rightly observed as follows :"the deceased was holding the post of a Vice President and was due to be promoted as Managing Director thereby his income would have raised to 5.00 lacs per month (sic). Thus 30% had to be added to his income for future prospects as rightly done by the Tribunal."There is, thus, no merit in this contention made on behalf of the appellant. ### Response: 0 ### Explanation: 4. We might add, at the outset, that the Release Deed is on record and we have heard learned counsel for respondent No. 5, the mother of the deceased and we find that there is no evidence and sufficient material to resolve the dispute between the mother and the deceased on the one hand and the claimants, i.e, widow and adopted child on the other. We, therefore, relegate this dispute to be decided by appropriate proceedings, which the mother may adopt, if so advised.We thus find that the claim of the widow and the adopted son is fully covered by the clause in the insurance contract, i.e., the policy and there is no scope for acceding to the submission made on behalf of thethat the claim is excepted by virtue of the provisions of Section 147 (1) of the Act in this case.We, therefore, reject the contention made on behalf of the appellant that the deceased was not a third party because he was an employee sitting in the car. It is obvious from the circumstances that the deceased was indeed a third party being neither the insurer not thetherefore, accept the finding of the Tribunal that the deceased was 49 years of age. It might therefore, not be necessary to consider the submission made by thethat because the deceased was above 50 years of age, the thumb rule laid down in the case of Sarla Verma v. DTC reported in 2009 (6) SCC 121 ought to have been followed. We find from the observations relied on in Sarla Vermas case (supra) that there is a thumb rule that future prospects may not be awarded in case the deceased is above 50 years of age.We find that the High Court has rightly observed as followsdeceased was holding the post of a Vice President and was due to be promoted as Managing Director thereby his income would have raised to 5.00 lacs per month (sic). Thus 30% had to be added to his income for future prospects as rightly done by theis, thus, no merit in this contention made on behalf of the appellant.
Union of India Vs. Indian Charge Chrome	two. Project suggests something very much more extensive than a plant. The learned senior counsel for the appellants is right in submitting that "Power project" could not have meant "power plant" also and the scope for confusion or doubts, if any, was done away by inserting a clarification. Thus, the amendment notification was clarificatory merely. 16. In Kasinka Trading and another v. Union of India & anothers case (supra) this Court has held that the power of exemption under Section 25(1) of the Act has been granted to the Government by the Legislature with a view to enabling it to regulate, control and promote the industries and industrial productions in the country. Where the Government on the basis of the material available before it is satisfied bona fide that the public interest would be served by either granting exemption or by withdrawing, modifying or rescinding an exemption already granted it should be allowed a free hand to do so. What was given in public interest can also be curtailed in public interest. Individual interest must yield in favour of societal interest. In the case at hand we find the respondent in its writ petition having laid challenge to the validity of the amendment notification on the ground of invidious discrimination but there is no plea raised that formation of opinion as to public interest was based on no material or was vitiated by malafides. 17. Coming to the fourth point, in so far as the refusal to register the contract with M/s Asea Stal is concerned, no fault can be found therewith. Mere making of an application for registration does not confer any vested right in the applicant. The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration. the correspondence between the parties shows that further information-material in nature and having impact on acceptability of the respondents prayer - was called for from the applicant and therefore the prayer was not ripe for consideration. In between there were drastic changes in the factual matrix. The exemption notification had stood clarified and Project Imports (Registration of Contract) Regulations, 1965 under which the application for registration was made had stood superseded by Project Imports Regulations, 1986. No fault can be found with the refusal to register the contract. We find no merit in the submission of the learned senior counsel for the respondent that one application for registration having been moved in respect of the two contracts and the goods forming subject matter of the two contracts being complementary to each other for the purpose of erecting the power plant, the registration of one on the contracts having been allowed, the prayer for registration of the other contract could not have been refused. Though the refusal to register the respondents contract with M/s Asea Stal as contained in the letter of Assistant Collector of Customs, Paradeep dated 17.8.1987 is being upheld, we would like to make it clear that this refusal has to be read in the light of the averments made in the application dated 28.1.1986 of the respondent wherein it was stated that the registration of the contract was sought for securing the benefit of the Exemption Notification No. 71/85-cus. of 17.3.1985 and thereby treating the respondents imports for power project assessable at nil duty. If the respondents contract is entitled for registration for any purpose other than the one mentioned in the application, i.e., seeking exemption from payment of customs duty on the plea of the imports being referable to power project, the rejection would not come inthe way of the respondent pressing its prayer for registration of the contract for such other purpose. Such an application, if made, shall be dealt with and disposed of by the authority concerned in accordance with law.18. As to the fifth and last point, the appellants contract with Gotaverken Engery Systems was registered under the Import (Registration of Contract) Regulations, 1965 promulgated under the Custom Tarrif Act, 1975. Under the Regulations as importer claiming assessment of articles falling under any of the sub-headings of Heading No. 84.66 had to apply to the proper officer of the customs for registration of the contract at the port where the goods were to be imported. The registration was duly applied fro and granted by a competent officer. The Project Imports (Regulation of Contract) Regulations, 1965 were superseded with effect from 3.4.1986 by the Project Imports Regulations, 1986 issued in exercise of the power conferred by Section 157 of the Customs Act, 1962. The Preamble to the new Regulations clearly carves out an exception as regards things done or omitted to be done before such supersession. The new Regulations do not contain any provision for superseding or cancelling any registration of the contract allowed under the superseded Regulations of 1965. Admittedly, no opportunity of hearing was given to the respondent before cancelling the registration of contract. In our opinion the new Regulations having specifically saved things done or omitted to be done under the superseded Regulations the authority empowered to register the contract could not have cancelled the registration already done, more so without affording the respondent any opportunity of hearing. The High Court was therefore justified in setting aside the communication by the Assistant Collector of Customs cancelling the registration of the contract. We may however make it clear that what will be the effect of such registration on the dutiability or exemption from payment of duty on the goods imported pursuant to the contract is not an issue before us and therefore we have not expressed any opinion thereon leaving it to be adjudicated upon as and when an occasion may arise for the purpose.19. This judgment deals only with the notifications referred to in the opening part of this judgment and by reference to which only the case was argued before us by the learned counsel for the parties.	1[ds]From the very beginning the intention was not totally excluded. "Generation and distribution of electricity was placed in Schedule "A".The resolution mentions that all new units in these industries (i.e. listed in Schedule A), save where their establishment in the private sector had already been approved would be set up only by the State Government though ordinarily there would be no bar to small privately owned units undertakings generation of power for local needs and small scale mining. In thefiled on behalf of the Central Government apart from referring to the said Industrial Policy Resolution, it was further been pointed out that under the Industries (Development and Regulation) Act, 1951 it was not possible for the private units like the respondent to set up a power project for generation and distribution of electricity. The Industrial Resolution made a clear distinction between "power project" which is set up for generation and distribution of electricity and a "power plant" which is set up to generate power for the own requirement or captive consumption of the industrial unit. the captive "power plant" cannot be considered as "power project" and the two cannot be equated with each other. A power project is set up by the Government to cater to the needs of public by generating and distributing the electricity generally while a captive power plant is set up by an industrial unit to feed power to its own plant or unit for manufacturing of goods other than power. Though it is true that an industrial unit installing a power plant to the extent of the electricity generated by it shares the burden of the Government power projects generating electricity for distribution and to that extent their purpose may be alike, the fact remains that a power generating unit in public sector has its own limitations and short comings as well. An industrial unit depending on public power generation source shall have to bear with power cuts, failure and other regulations and restrictions imposed in public interest. By installing its own power plant, the industrial unit is free to generate and avail uninterrupted power supply or the quantum and flow of electricity suited to its own requirements and thereby it can maximise its production and consequently its profits. It is therefore, clear that power plant projects engaged in generation and distribution of power as its and product the sense in which the expression has been used in the Industrial Policy Resolution constitute a class by themselves distinct from the power plants established by industrial units generating electricity for captive consumption and not for distribution. The two classes are well defined.14. What is prohibited by Article 14 of the Constitution is class legislation. If the Legislature takes care to reasonably classify persons for legislative purposes, so long as the classification is founded on an intelligible differentia which lays down a perceptible differentiation between the two groups and the differentiation has a rational relation with the object sought to be achieved, such a classification does not fall foul of Article 14 of the Constitution. We have already held that the two classes in the case at hand have a well defined differentiation. There is nothing wrong in the Central Government forming an opinion that it was in public interest to grant exemption from payment of custom duty to the imports meant for power projects engaged in production of power as an end product meant for public distribution as such while denying a similar benefit to the imports referable to power plants generating electricity for captive consumption only.15. We agree with the learned senior counsel for the appellants in his submission that the exemption granted by the Notification No. 133/85 related to the goods falling under the Heading No. 84.66 of the First Schedule to the Customs Tariff Act, 1975 imported into India for power projects) the end product whereof was electricity meant for public distribution and therefore the amendment notification (No. 306/86) dated 1.5.1986 was only clarificatory in nature. It only clarified that the full exemption from payment of customs duty as granted by the Central Government by Notification No. 133/85 was not intended to apply to such power plants which were set up by units engaged in activities other than power generation and which generated power for captive consumption. The words used in the Notification No. 133/85 were"Power Projects (including gas turbine Power Projects)". A power plant is not the same thing as a power project. Chambers 20th Century Dictionary defines Project as "a proposal for undertaking : an undertaking." Plant is defined as "equipment, machinery, apparatus for an industrial activity." The distinction between the two terms is determinable by reference to mass, magnitude or extent of the two. Project suggests something very much more extensive than a plant. The learned senior counsel for the appellants is right in submitting that "Power project" could not have meant "power plant" also and the scope for confusion or doubts, if any, was done away by inserting a clarification. Thus, the amendment notification was clarificatory merely.Coming to the fourth point, in so far as the refusal to register the contract with M/s Asea Stal is concerned, no fault can be found therewith. Mere making of an application for registration does not confer any vested right in the applicant. The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration. the correspondence between the parties shows that furtherin nature and having impact on acceptability of the respondents prayerwas called for from the applicant and therefore the prayer was not ripe for consideration. In between there were drastic changes in the factual matrix. The exemption notification had stood clarified and Project Imports (Registration of Contract) Regulations, 1965 under which the application for registration was made had stood superseded by Project Imports Regulations, 1986. No fault can be found with the refusal to register the contract. We find no merit in the submission of the learned senior counsel for the respondent that one application for registration having been moved in respect of the two contracts and the goods forming subject matter of the two contracts being complementary to each other for the purpose of erecting the power plant, the registration of one on the contracts having been allowed, the prayer for registration of the other contract could not have been refused. Though the refusal to register the respondents contract with M/s Asea Stal as contained in the letter of Assistant Collector of Customs, Paradeep dated 17.8.1987 is being upheld, we would like to make it clear that this refusal has to be read in the light of the averments made in the application dated 28.1.1986 of the respondent wherein it was stated that the registration of the contract was sought for securing the benefit of the Exemption Notification No.of 17.3.1985 and thereby treating the respondents imports for power project assessable at nil duty. If the respondents contract is entitled for registration for any purpose other than the one mentioned in the application, i.e., seeking exemption from payment of customs duty on the plea of the imports being referable to power project, the rejection would not come inthe way of the respondent pressing its prayer for registration of the contract for such other purpose. Such an application, if made, shall be dealt with and disposed of by the authority concerned in accordance with law.18. As to the fifth and last point, the appellants contract with Gotaverken Engery Systems was registered under the Import (Registration of Contract) Regulations, 1965 promulgated under the Custom Tarrif Act, 1975. Under the Regulations as importer claiming assessment of articles falling under any of theof Heading No. 84.66 had to apply to the proper officer of the customs for registration of the contract at the port where the goods were to be imported. The registration was duly applied fro and granted by a competent officer. The Project Imports (Regulation of Contract) Regulations, 1965 were superseded with effect from 3.4.1986 by the Project Imports Regulations, 1986 issued in exercise of the power conferred by Section 157 of the Customs Act, 1962. The Preamble to the new Regulations clearly carves out an exception as regards things done or omitted to be done before such supersession. The new Regulations do not contain any provision for superseding or cancelling any registration of the contract allowed under the superseded Regulations of 1965. Admittedly, no opportunity of hearing was given to the respondent before cancelling the registration of contract. In our opinion the new Regulations having specifically saved things done or omitted to be done under the superseded Regulations the authority empowered to register the contract could not have cancelled the registration already done, more so without affording the respondent any opportunity of hearing. The High Court was therefore justified in setting aside the communication by the Assistant Collector of Customs cancelling the registration of the contract. We may however make it clear that what will be the effect of such registration on the dutiability or exemption from payment of duty on the goods imported pursuant to the contract is not an issue before us and therefore we have not expressed any opinion thereon leaving it to be adjudicated upon as and when an occasion may arise for the purpose.19. This judgment deals only with the notifications referred to in the opening part of this judgment and by reference to which only the case was argued before us by the learned counsel for the parties.	1	4,357	1,728	### 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: two. Project suggests something very much more extensive than a plant. The learned senior counsel for the appellants is right in submitting that "Power project" could not have meant "power plant" also and the scope for confusion or doubts, if any, was done away by inserting a clarification. Thus, the amendment notification was clarificatory merely. 16. In Kasinka Trading and another v. Union of India & anothers case (supra) this Court has held that the power of exemption under Section 25(1) of the Act has been granted to the Government by the Legislature with a view to enabling it to regulate, control and promote the industries and industrial productions in the country. Where the Government on the basis of the material available before it is satisfied bona fide that the public interest would be served by either granting exemption or by withdrawing, modifying or rescinding an exemption already granted it should be allowed a free hand to do so. What was given in public interest can also be curtailed in public interest. Individual interest must yield in favour of societal interest. In the case at hand we find the respondent in its writ petition having laid challenge to the validity of the amendment notification on the ground of invidious discrimination but there is no plea raised that formation of opinion as to public interest was based on no material or was vitiated by malafides. 17. Coming to the fourth point, in so far as the refusal to register the contract with M/s Asea Stal is concerned, no fault can be found therewith. Mere making of an application for registration does not confer any vested right in the applicant. The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration. the correspondence between the parties shows that further information-material in nature and having impact on acceptability of the respondents prayer - was called for from the applicant and therefore the prayer was not ripe for consideration. In between there were drastic changes in the factual matrix. The exemption notification had stood clarified and Project Imports (Registration of Contract) Regulations, 1965 under which the application for registration was made had stood superseded by Project Imports Regulations, 1986. No fault can be found with the refusal to register the contract. We find no merit in the submission of the learned senior counsel for the respondent that one application for registration having been moved in respect of the two contracts and the goods forming subject matter of the two contracts being complementary to each other for the purpose of erecting the power plant, the registration of one on the contracts having been allowed, the prayer for registration of the other contract could not have been refused. Though the refusal to register the respondents contract with M/s Asea Stal as contained in the letter of Assistant Collector of Customs, Paradeep dated 17.8.1987 is being upheld, we would like to make it clear that this refusal has to be read in the light of the averments made in the application dated 28.1.1986 of the respondent wherein it was stated that the registration of the contract was sought for securing the benefit of the Exemption Notification No. 71/85-cus. of 17.3.1985 and thereby treating the respondents imports for power project assessable at nil duty. If the respondents contract is entitled for registration for any purpose other than the one mentioned in the application, i.e., seeking exemption from payment of customs duty on the plea of the imports being referable to power project, the rejection would not come inthe way of the respondent pressing its prayer for registration of the contract for such other purpose. Such an application, if made, shall be dealt with and disposed of by the authority concerned in accordance with law.18. As to the fifth and last point, the appellants contract with Gotaverken Engery Systems was registered under the Import (Registration of Contract) Regulations, 1965 promulgated under the Custom Tarrif Act, 1975. Under the Regulations as importer claiming assessment of articles falling under any of the sub-headings of Heading No. 84.66 had to apply to the proper officer of the customs for registration of the contract at the port where the goods were to be imported. The registration was duly applied fro and granted by a competent officer. The Project Imports (Regulation of Contract) Regulations, 1965 were superseded with effect from 3.4.1986 by the Project Imports Regulations, 1986 issued in exercise of the power conferred by Section 157 of the Customs Act, 1962. The Preamble to the new Regulations clearly carves out an exception as regards things done or omitted to be done before such supersession. The new Regulations do not contain any provision for superseding or cancelling any registration of the contract allowed under the superseded Regulations of 1965. Admittedly, no opportunity of hearing was given to the respondent before cancelling the registration of contract. In our opinion the new Regulations having specifically saved things done or omitted to be done under the superseded Regulations the authority empowered to register the contract could not have cancelled the registration already done, more so without affording the respondent any opportunity of hearing. The High Court was therefore justified in setting aside the communication by the Assistant Collector of Customs cancelling the registration of the contract. We may however make it clear that what will be the effect of such registration on the dutiability or exemption from payment of duty on the goods imported pursuant to the contract is not an issue before us and therefore we have not expressed any opinion thereon leaving it to be adjudicated upon as and when an occasion may arise for the purpose.19. This judgment deals only with the notifications referred to in the opening part of this judgment and by reference to which only the case was argued before us by the learned counsel for the parties. ### Response: 1 ### Explanation: the learned senior counsel for the appellants in his submission that the exemption granted by the Notification No. 133/85 related to the goods falling under the Heading No. 84.66 of the First Schedule to the Customs Tariff Act, 1975 imported into India for power projects) the end product whereof was electricity meant for public distribution and therefore the amendment notification (No. 306/86) dated 1.5.1986 was only clarificatory in nature. It only clarified that the full exemption from payment of customs duty as granted by the Central Government by Notification No. 133/85 was not intended to apply to such power plants which were set up by units engaged in activities other than power generation and which generated power for captive consumption. The words used in the Notification No. 133/85 were"Power Projects (including gas turbine Power Projects)". A power plant is not the same thing as a power project. Chambers 20th Century Dictionary defines Project as "a proposal for undertaking : an undertaking." Plant is defined as "equipment, machinery, apparatus for an industrial activity." The distinction between the two terms is determinable by reference to mass, magnitude or extent of the two. Project suggests something very much more extensive than a plant. The learned senior counsel for the appellants is right in submitting that "Power project" could not have meant "power plant" also and the scope for confusion or doubts, if any, was done away by inserting a clarification. Thus, the amendment notification was clarificatory merely.Coming to the fourth point, in so far as the refusal to register the contract with M/s Asea Stal is concerned, no fault can be found therewith. Mere making of an application for registration does not confer any vested right in the applicant. The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration. the correspondence between the parties shows that furtherin nature and having impact on acceptability of the respondents prayerwas called for from the applicant and therefore the prayer was not ripe for consideration. In between there were drastic changes in the factual matrix. The exemption notification had stood clarified and Project Imports (Registration of Contract) Regulations, 1965 under which the application for registration was made had stood superseded by Project Imports Regulations, 1986. No fault can be found with the refusal to register the contract. We find no merit in the submission of the learned senior counsel for the respondent that one application for registration having been moved in respect of the two contracts and the goods forming subject matter of the two contracts being complementary to each other for the purpose of erecting the power plant, the registration of one on the contracts having been allowed, the prayer for registration of the other contract could not have been refused. Though the refusal to register the respondents contract with M/s Asea Stal as contained in the letter of Assistant Collector of Customs, Paradeep dated 17.8.1987 is being upheld, we would like to make it clear that this refusal has to be read in the light of the averments made in the application dated 28.1.1986 of the respondent wherein it was stated that the registration of the contract was sought for securing the benefit of the Exemption Notification No.of 17.3.1985 and thereby treating the respondents imports for power project assessable at nil duty. If the respondents contract is entitled for registration for any purpose other than the one mentioned in the application, i.e., seeking exemption from payment of customs duty on the plea of the imports being referable to power project, the rejection would not come inthe way of the respondent pressing its prayer for registration of the contract for such other purpose. Such an application, if made, shall be dealt with and disposed of by the authority concerned in accordance with law.18. As to the fifth and last point, the appellants contract with Gotaverken Engery Systems was registered under the Import (Registration of Contract) Regulations, 1965 promulgated under the Custom Tarrif Act, 1975. Under the Regulations as importer claiming assessment of articles falling under any of theof Heading No. 84.66 had to apply to the proper officer of the customs for registration of the contract at the port where the goods were to be imported. The registration was duly applied fro and granted by a competent officer. The Project Imports (Regulation of Contract) Regulations, 1965 were superseded with effect from 3.4.1986 by the Project Imports Regulations, 1986 issued in exercise of the power conferred by Section 157 of the Customs Act, 1962. The Preamble to the new Regulations clearly carves out an exception as regards things done or omitted to be done before such supersession. The new Regulations do not contain any provision for superseding or cancelling any registration of the contract allowed under the superseded Regulations of 1965. Admittedly, no opportunity of hearing was given to the respondent before cancelling the registration of contract. In our opinion the new Regulations having specifically saved things done or omitted to be done under the superseded Regulations the authority empowered to register the contract could not have cancelled the registration already done, more so without affording the respondent any opportunity of hearing. The High Court was therefore justified in setting aside the communication by the Assistant Collector of Customs cancelling the registration of the contract. We may however make it clear that what will be the effect of such registration on the dutiability or exemption from payment of duty on the goods imported pursuant to the contract is not an issue before us and therefore we have not expressed any opinion thereon leaving it to be adjudicated upon as and when an occasion may arise for the purpose.19. This judgment deals only with the notifications referred to in the opening part of this judgment and by reference to which only the case was argued before us by the learned counsel for the parties.
URVASHIBEN Vs. KRISHNAKANT MANUPRASAD TRIVEDI	pertains to eviction from tenanted premises which was contested by the tenant. In the said case where rejection of plaint under O.VII R.11(d) was considered on the ground that plaint does not disclose cause of action but not a case for rejection of plaint on the ground of limitation. In the case of Hardesh Ores (supra) it was the case falling in the first limb of Article 54 of the Limitation Act 1963 but not a case falling under second limb, where the time is not the essence of the contract. In the judgment in the case of Dilboo (Dead) (supra) this Court has considered relevant principles of applicability of O.VII R.11 of CPC. Equally, the case of I.T.C. Limited (supra) is a case concerning rejection of plaint under O.VII R.11(a) but not case of rejection on the ground of limitation. In the case of Raj Narain Sarin (supra) the suit was filed after 40 years after execution of the Sale Deed and as a fact it was found that Sale Deed was to the knowledge of the plaintiff and he had not taken any steps to declare the Sale Deed invalid. In that context, the order passed under O.VII R.11 was confirmed by this Court. In the case of N.V. Srinivasa (supra) the suit is for declaration but not for specific performance and in the said suit having regard to the facts of the case this Court has held that suit for declaration filed by the plaintiff is not maintainable. In the case of Madanuri Rama (supra) the suit was filed seeking cancellation of Sale Deed on the ground that property in question is a waqf property which cannot be sold to a private party. The aforesaid case is a case not concerning limitation under Article 54 of the Limitation Act 1963. 14. On the other hand, judgment in the case Gunwantbhai (supra) this Court has held as under : 8. We may straightaway say that the manner in which the question of limitation has been dealt with by the courts below is highly unsatisfactory. It was rightly noticed that the suit was governed by Article 54 of the Limitation Act, 1963. Then, the enquiry should have been, first, whether any time was fixed for performance in the agreement for sale, and if it was so fixed, to hold that a suit filed beyond thre years of the date was barred by limitation unless any case of extension was pleaded and established. But in a case where no time for performance was fixed, the court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date, to see whether the suit was filed within three years thereof. We have explained the position in the recent decision in R.K. Parvtharaj Gupta v. K.C. Jayadeva Reddy (2002) 2 SCC 428. In the case on hand, there is no dispute that no date for performance is fixed in the agreement and if so, the suit could be held to be barred by limitation only on a finding that the plaintiffs had notice that the defendants were refusing performance of the agreement. In a case of that nature normally, the question of limitation could be decided only after taking evidence and recording a finding as to the date on which the plaintiff had such notice. We are not unmindful of the fact that a statement appears to have been filed on behalf of the plaintiffs that they did not want to lead any evidence. The defendants, of course, took the stand that they also did not want to lead any evidence. As we see it, the trial court should have insisted on the parties leading evidence on this question or the court ought to have postponed the consideration of the issue of limitation along with the other issues arising in the suit, after a trial. In the aforesaid case, it is clearly held that in cases falling in second limb of Article 54 finding can be recorded only after recording evidence. The said view expressed by this Court supports the case of the respondent-plaintiff. In the judgment in the case of Rathnavathi (supra) in paragraphs 42 and 43 it was clearly held that when the time is not fixed in the agreement, the limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that defendant has refused the performance of the agreement. In the judgment in the case of Ahmadsahab Abdul Mulla(2)(Dead) by Proposed LRs. v. Bibijan & Ors. (2009) 5 SCC 462 while interpreting Article 54 of the Limitation Act, it is held that words date fixed for the performance is a crystallised notion. The second part time from which period begins to run refers to a case where no such date is fixed. In the case of Balsaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors. (2006) 5 SCC 658 and Chhotanben (supra) this Court clearly held that issue of limitation, being a mixed question of fact and law, is to be decided only after evidence is adduced. 15. By applying the aforesaid principles in the judgments relied on by Sri Dushyant Dave, learned senior counsel appearing for the respondent, we are of the considered view that merits and demerits of the matter cannot be gone into at this stage, while deciding an application filed under O.VII R.11 of the CPC. It is fairly well settled that at this stage only averments in the plaint are to be looked into and from a reading of the averments in the plaint in the case on hand, it cannot be said that suit is barred by limitation. The issue as to when the plaintiff had noticed refusal, is an issue which can be adjudicated after trial.Even assuming that there is inordinate delay and laches on the part of the plaintiff, same cannot be a ground for rejection of plaint under O.VII R.11(d) of CPC.	0[ds]11. It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of plaint in exercise of powers under O.VII R.11(d) of the CPC. Equally, it is well settled that for the purpose of deciding application filed under O.VII R.11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into. Article 54 of the Limitation Act, 1963 prescribes the limitation of three years, for suits for specific performance12. From a reading of the aforesaid Article, it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff, has notice of refusal. When rejection of plaint is sought in an application filed under O.VII R.11, same is to be considered from the facts of each case, looking at the averments made in the plaint, for the purpose of adjudicating such application. As averred in the plaint, it is the case of the plaintiff that even after payment of the entire consideration amount registration of the document was not made and prolonged on some grounds and ultimately when he had visited the site on 25.05.2017 he had come to know that the same land was sold to third parties and appellants have refused performance of contract. In such event, it is a matter for trial to record correctness or otherwise of such allegation made in the plaint. In thesuits for specific performance falling in the second limb of the Article, period of three years is to be counted from the date when it had come to the notice of the plaintiff that performance is refused by the defendants. For the purpose of cause of action and limitation when it is pleaded that when he had visited the site on 25.05.2017 he had come to know that the sale was made in favour of third parties and the appellants have refused to execute the Sale Deed in which event same is a case for adjudication after trial but not a case for rejection of plaint under O.VII R.11(d) of CPC13. Counsel for the appellants has placed reliance on the judgment in the case of Prabhakar (supra). In the above said case, this Court has held that, even where no limitation period is prescribed by the Statute, courts apply doctrine of delay/laches/acquiescence and non-suit litigants who approach court belatedly without justifiable explanation. Delay and laches are to be examined with reference to facts of each case and the said judgment is not helpful to support the case of the appellant inasmuch as this matter arises out of an application filed under O.VII R.11(d) of the CPC. Thejudgment in the case of T. Arivandandam (supra) pertains to eviction from tenanted premises which was contested by the tenant. In the said case where rejection of plaint under O.VII R.11(d) was considered on the ground that plaint does not disclose cause of action but not a case for rejection of plaint on the ground of limitation. In the case of Hardesh Ores (supra) it was the case falling in the first limb of Article 54 of the Limitation Act 1963 but not a case falling under second limb, where the time is not the essence of the contract. In the judgment in the case of Dilboo (Dead) (supra) this Court has considered relevant principles of applicability of O.VII R.11 of CPC. Equally, the case of I.T.C. Limited (supra) is a case concerning rejection of plaint under O.VII R.11(a) but not case of rejection on the ground of limitation. In the case of Raj Narain Sarin (supra) the suit was filed after 40 years after execution of the Sale Deed and as a fact it was found that Sale Deed was to the knowledge of the plaintiff and he had not taken any steps to declare the Sale Deed invalid. In that context, the order passed under O.VII R.11 was confirmed by this Court. In the case of N.V. Srinivasa (supra) the suit isfor declaration but not for specific performance and in the said suit having regard to the facts of the case this Court has held that suit for declaration filed by the plaintiff is not maintainable. In the case of Madanuri Rama (supra) the suit was filed seeking cancellation of Sale Deed on the ground that property in question is a waqf property which cannot be sold to a private party. The aforesaid case is a case not concerning limitation under Article 54 of the Limitation Act 1963In the aforesaid case, it is clearly held that in cases falling in second limb of Article 54 finding can be recorded only after recording evidence. The said view expressed by this Court supports the case of the respondent-plaintiff. In the judgment in the case of Rathnavathi (supra) in paragraphs 42 and 43 it was clearly held that when the time is not fixed in the agreement, the limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that defendant has refused the performance of the agreement.15. By applying the aforesaid principles in the judgments relied on by Sri Dushyant Dave, learned senior counsel appearing for the respondent, we are of the considered view that merits and demerits of the matter cannot be gone into at this stage, while deciding an application filed under O.VII R.11 of the CPC. It is fairly well settled that at this stage only averments in the plaint are to be looked into and from a reading of the averments in the plaint in the case on hand, it cannot be said that suit is barred by limitation. The issue as to when the plaintiff had noticed refusal, is an issue which can be adjudicated after trial.Even assuming that there is inordinate delay and laches on the part of the plaintiff, same cannot be a ground for rejection of plaint under O.VII R.11(d) of CPC.	0	3,256	1,145	### 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: pertains to eviction from tenanted premises which was contested by the tenant. In the said case where rejection of plaint under O.VII R.11(d) was considered on the ground that plaint does not disclose cause of action but not a case for rejection of plaint on the ground of limitation. In the case of Hardesh Ores (supra) it was the case falling in the first limb of Article 54 of the Limitation Act 1963 but not a case falling under second limb, where the time is not the essence of the contract. In the judgment in the case of Dilboo (Dead) (supra) this Court has considered relevant principles of applicability of O.VII R.11 of CPC. Equally, the case of I.T.C. Limited (supra) is a case concerning rejection of plaint under O.VII R.11(a) but not case of rejection on the ground of limitation. In the case of Raj Narain Sarin (supra) the suit was filed after 40 years after execution of the Sale Deed and as a fact it was found that Sale Deed was to the knowledge of the plaintiff and he had not taken any steps to declare the Sale Deed invalid. In that context, the order passed under O.VII R.11 was confirmed by this Court. In the case of N.V. Srinivasa (supra) the suit is for declaration but not for specific performance and in the said suit having regard to the facts of the case this Court has held that suit for declaration filed by the plaintiff is not maintainable. In the case of Madanuri Rama (supra) the suit was filed seeking cancellation of Sale Deed on the ground that property in question is a waqf property which cannot be sold to a private party. The aforesaid case is a case not concerning limitation under Article 54 of the Limitation Act 1963. 14. On the other hand, judgment in the case Gunwantbhai (supra) this Court has held as under : 8. We may straightaway say that the manner in which the question of limitation has been dealt with by the courts below is highly unsatisfactory. It was rightly noticed that the suit was governed by Article 54 of the Limitation Act, 1963. Then, the enquiry should have been, first, whether any time was fixed for performance in the agreement for sale, and if it was so fixed, to hold that a suit filed beyond thre years of the date was barred by limitation unless any case of extension was pleaded and established. But in a case where no time for performance was fixed, the court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date, to see whether the suit was filed within three years thereof. We have explained the position in the recent decision in R.K. Parvtharaj Gupta v. K.C. Jayadeva Reddy (2002) 2 SCC 428. In the case on hand, there is no dispute that no date for performance is fixed in the agreement and if so, the suit could be held to be barred by limitation only on a finding that the plaintiffs had notice that the defendants were refusing performance of the agreement. In a case of that nature normally, the question of limitation could be decided only after taking evidence and recording a finding as to the date on which the plaintiff had such notice. We are not unmindful of the fact that a statement appears to have been filed on behalf of the plaintiffs that they did not want to lead any evidence. The defendants, of course, took the stand that they also did not want to lead any evidence. As we see it, the trial court should have insisted on the parties leading evidence on this question or the court ought to have postponed the consideration of the issue of limitation along with the other issues arising in the suit, after a trial. In the aforesaid case, it is clearly held that in cases falling in second limb of Article 54 finding can be recorded only after recording evidence. The said view expressed by this Court supports the case of the respondent-plaintiff. In the judgment in the case of Rathnavathi (supra) in paragraphs 42 and 43 it was clearly held that when the time is not fixed in the agreement, the limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that defendant has refused the performance of the agreement. In the judgment in the case of Ahmadsahab Abdul Mulla(2)(Dead) by Proposed LRs. v. Bibijan & Ors. (2009) 5 SCC 462 while interpreting Article 54 of the Limitation Act, it is held that words date fixed for the performance is a crystallised notion. The second part time from which period begins to run refers to a case where no such date is fixed. In the case of Balsaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors. (2006) 5 SCC 658 and Chhotanben (supra) this Court clearly held that issue of limitation, being a mixed question of fact and law, is to be decided only after evidence is adduced. 15. By applying the aforesaid principles in the judgments relied on by Sri Dushyant Dave, learned senior counsel appearing for the respondent, we are of the considered view that merits and demerits of the matter cannot be gone into at this stage, while deciding an application filed under O.VII R.11 of the CPC. It is fairly well settled that at this stage only averments in the plaint are to be looked into and from a reading of the averments in the plaint in the case on hand, it cannot be said that suit is barred by limitation. The issue as to when the plaintiff had noticed refusal, is an issue which can be adjudicated after trial.Even assuming that there is inordinate delay and laches on the part of the plaintiff, same cannot be a ground for rejection of plaint under O.VII R.11(d) of CPC. ### Response: 0 ### Explanation: plaint in exercise of powers under O.VII R.11(d) of the CPC. Equally, it is well settled that for the purpose of deciding application filed under O.VII R.11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into. Article 54 of the Limitation Act, 1963 prescribes the limitation of three years, for suits for specific performance12. From a reading of the aforesaid Article, it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff, has notice of refusal. When rejection of plaint is sought in an application filed under O.VII R.11, same is to be considered from the facts of each case, looking at the averments made in the plaint, for the purpose of adjudicating such application. As averred in the plaint, it is the case of the plaintiff that even after payment of the entire consideration amount registration of the document was not made and prolonged on some grounds and ultimately when he had visited the site on 25.05.2017 he had come to know that the same land was sold to third parties and appellants have refused performance of contract. In such event, it is a matter for trial to record correctness or otherwise of such allegation made in the plaint. In thesuits for specific performance falling in the second limb of the Article, period of three years is to be counted from the date when it had come to the notice of the plaintiff that performance is refused by the defendants. For the purpose of cause of action and limitation when it is pleaded that when he had visited the site on 25.05.2017 he had come to know that the sale was made in favour of third parties and the appellants have refused to execute the Sale Deed in which event same is a case for adjudication after trial but not a case for rejection of plaint under O.VII R.11(d) of CPC13. Counsel for the appellants has placed reliance on the judgment in the case of Prabhakar (supra). In the above said case, this Court has held that, even where no limitation period is prescribed by the Statute, courts apply doctrine of delay/laches/acquiescence and non-suit litigants who approach court belatedly without justifiable explanation. Delay and laches are to be examined with reference to facts of each case and the said judgment is not helpful to support the case of the appellant inasmuch as this matter arises out of an application filed under O.VII R.11(d) of the CPC. Thejudgment in the case of T. Arivandandam (supra) pertains to eviction from tenanted premises which was contested by the tenant. In the said case where rejection of plaint under O.VII R.11(d) was considered on the ground that plaint does not disclose cause of action but not a case for rejection of plaint on the ground of limitation. In the case of Hardesh Ores (supra) it was the case falling in the first limb of Article 54 of the Limitation Act 1963 but not a case falling under second limb, where the time is not the essence of the contract. In the judgment in the case of Dilboo (Dead) (supra) this Court has considered relevant principles of applicability of O.VII R.11 of CPC. Equally, the case of I.T.C. Limited (supra) is a case concerning rejection of plaint under O.VII R.11(a) but not case of rejection on the ground of limitation. In the case of Raj Narain Sarin (supra) the suit was filed after 40 years after execution of the Sale Deed and as a fact it was found that Sale Deed was to the knowledge of the plaintiff and he had not taken any steps to declare the Sale Deed invalid. In that context, the order passed under O.VII R.11 was confirmed by this Court. In the case of N.V. Srinivasa (supra) the suit isfor declaration but not for specific performance and in the said suit having regard to the facts of the case this Court has held that suit for declaration filed by the plaintiff is not maintainable. In the case of Madanuri Rama (supra) the suit was filed seeking cancellation of Sale Deed on the ground that property in question is a waqf property which cannot be sold to a private party. The aforesaid case is a case not concerning limitation under Article 54 of the Limitation Act 1963In the aforesaid case, it is clearly held that in cases falling in second limb of Article 54 finding can be recorded only after recording evidence. The said view expressed by this Court supports the case of the respondent-plaintiff. In the judgment in the case of Rathnavathi (supra) in paragraphs 42 and 43 it was clearly held that when the time is not fixed in the agreement, the limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that defendant has refused the performance of the agreement.15. By applying the aforesaid principles in the judgments relied on by Sri Dushyant Dave, learned senior counsel appearing for the respondent, we are of the considered view that merits and demerits of the matter cannot be gone into at this stage, while deciding an application filed under O.VII R.11 of the CPC. It is fairly well settled that at this stage only averments in the plaint are to be looked into and from a reading of the averments in the plaint in the case on hand, it cannot be said that suit is barred by limitation. The issue as to when the plaintiff had noticed refusal, is an issue which can be adjudicated after trial.Even assuming that there is inordinate delay and laches on the part of the plaintiff, same cannot be a ground for rejection of plaint under O.VII R.11(d) of CPC.
Sukhnandan Singh Etc Vs. Jamiat Singh & Ors	in judicial proceedings is normally associated with secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such a proceeding the claim put forward is fictitious, the contest feigned or unreal and the final adjudication a mask designed to give false appearance of a genuine judicial determination, and this is generally done with the object of confounding third parties. In such a proceeding the contest is a mere sham. In the case of pre-emption it is open to the plaintiff to find financial aid and from any source he likes He has a statutory right to pre-empt the sale and it is no concern of the vendees whether he borrows money from someone or otherwise arranges for finances for pre-empting the sale. It is true that it is a personal right and is not capable of being transferred. And the right of pre-emption being a right of substitution, the vendor also cannot in the garb of a benamidar preempt his own sale. But merely because the vendors who are the fathers of the plaintiff-pre-emptors are helping their sons to exercise the statutory right conferred on the sons cannot, without more, deprive them of the right to be substituted for the vendees in exercise of their right of pre-emption. The property pre-empted, if they are successful, will belong to them and not to their fathers who were the vendors. Even in the wider sense of the word "collusion" which suggests a deceitful agreement or compact between two or more persons to do some act in order to prejudice a third person or for some improper purpose, would not apply to the present case so as to operate as estoppel against the plaintiffs. Whether or not a pre-emptor-plaintiff who is a benamidar for the vendor or some other party loses his right because of being a benamidar is a question which does not concern us in this case and we express no opinion thereon. On the facts of the present case there is absolutely no material on which the plaintiffs can be held to have lost their right of pre-emption on the ground of collusion. 8. The next point relates to the plea of limitation. Article 10 of the Second Schedule of the Indian Limitation Act provides a period of one year to enforce a right of pre-emption whether founded on law or general usage or on special contract, the terminus a quo being the date when the purchaser takes under the sale, sought to be pre-empted, physical possession of the whole of the property sold or where the subject of the sale does not admit of physical possession, the date when the instrument of sale is registered. Section 30 of the Punjab Pre-emption Act applies only when the case does not fall within Article 10. On the finding of the District Judge and of the High Court it is obvious that physical possession of the whole of the property sold was not taken by the vendees, on the date of sale. Therefore, the first part of article does not apply. According to the appellants counsel the land sold does admit of physical possession and if a part of the land has been taken into possession by the vendees then Article 10 would be inapplicable and Section 30 of the Punjab Pre-emotion Act would be attracted. In that case the terminus a quo according to Shri Gosain would be the date on which the vendees took under the sale physical possession of any part of such land. The argument in our view is misconceived. The second part of Article 10, in our opinion, covers cases where the subject of the sale, which means the whole of the property sold, does not admit of physical possession and that would be so when a part of the land is in the possession of the tenants. The argument that use of the expression "subject of the sale" suggests that this article would apply only if the entire and not only a part of the land is in the possession of the tenants is not acceptable The expression "physical possession" came up for construction before the Privy Council in Batul Begam v Mansur Ali Khan, (1902) ILR 24 All 17 (PC). Lord Robertson speaking for the Judicial Committee said:"What has to be considered is as the High Court accurately formulated, the question, Does the property- admit of physical possession? The word "physical" is of itself a strong word, highly restrictive of the kind of possession indicated and when it is found, as is pointed out by the High Court that the Legislature has in successive enactments about the limitation of such suits gone on strengthening the language used,-first in 1859 prescribing "possession", then in 1871 requiring "actual possession" and finally in 1877 substituting the word "physical" for "actual,, it is seen that that word has been very deliberately chosen and for a restrictive purpose. Their Lordships are of opinion that the High Courts are right in the conclusion they have stated. Their Lordships consider that the expression used by Stuart. C J., in regard to the words "actual possession" is applicable with still more certainty to the words "physical possession" and that what is meant is a "personal and immediate" possession". This view has ever since then been followed by the High Courts in India No decision holding to the contrary was brought to our notice. Indeed, Shri Gosain virtually conceded that there was none to his knowledge. The properties in possession of tenants have on this reasoning to be held to be incapable of physical possession which means personal and immediate possession. It was so held in Ghulam Mustafa v. Shahabuddin, 1908 PR 49 (FB). In that case the Full Bench of the Punjab Chief Court approved of some of its earlier decisions overruling the dictum in one of the earlier decisions of that Court.	0[ds]We are, however, unable to find merit in either of them. So far as the question of collusion is concerned it was not clarified by the learned counsel how the plaintiffs could be held to have lost their right of pre-emption merely because their fathers either came to the court with them, which they did openly, or allowed their sons as plaintiff to use in court, copy of a public document procured by the father of one of the plaintiffs. Collusion in judicial proceedings is normally associated with secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such a proceeding the claim put forward is fictitious, the contest feigned or unreal and the final adjudication a mask designed to give false appearance of a genuine judicial determination, and this is generally done with the object of confounding third parties. In such a proceeding the contest is a mere sham. In the case of pre-emption it is open to the plaintiff to find financial aid and from any source he likes He has a statutory right to pre-empt the sale and it is no concern of the vendees whether he borrows money from someone or otherwise arranges for finances for pre-empting the sale. It is true that it is a personal right and is not capable of being transferred. And the right of pre-emption being a right of substitution, the vendor also cannot in the garb of a benamidar preempt his own sale. But merely because the vendors who are the fathers of the plaintiff-pre-emptors are helping their sons to exercise the statutory right conferred on the sons cannot, without more, deprive them of the right to be substituted for the vendees in exercise of their right of pre-emption. The property pre-empted, if they are successful, will belong to them and not to their fathers who were the vendors. Even in the wider sense of the word "collusion" which suggests a deceitful agreement or compact between two or more persons to do some act in order to prejudice a third person or for some improper purpose, would not apply to the present case so as to operate as estoppel against the plaintiffs. Whether or not a pre-emptor-plaintiff who is a benamidar for the vendor or some other party loses his right because of being a benamidar is a question which does not concern us in this case and we express no opinion thereon. On the facts of the present case there is absolutely no material on which the plaintiffs can be held to have lost their right of pre-emption on the ground of collusion8. The next point relates to the plea of limitation. Article 10 of the Second Schedule of the Indian Limitation Act provides a period of one year to enforce a right of pre-emption whether founded on law or general usage or on special contract, the terminus a quo being the date when the purchaser takes under the sale, sought to be pre-empted, physical possession of the whole of the property sold or where the subject of the sale does not admit of physical possession, the date when the instrument of sale is registered. Section 30 of the Punjab Pre-emption Act applies only when the case does not fall within Article 10. On the finding of the District Judge and of the High Court it is obvious that physical possession of the whole of the property sold was not taken by the vendees, on the date of sale. Therefore, the first part of article does not apply. According to the appellants counsel the land sold does admit of physical possession and if a part of the land has been taken into possession by the vendees then Article 10 would be inapplicable and Section 30 of the Punjab Pre-emotion Act would be attracted. In that case the terminus a quo according to Shri Gosain would be the date on which the vendees took under the sale physical possession of any part of such land. The argument in our view is misconceived. The second part of Article 10, in our opinion, covers cases where the subject of the sale, which means the whole of the property sold, does not admit of physical possession and that would be so when a part of the land is in the possession of the tenants. The argument that use of the expression "subject of the sale" suggests that this article would apply only if the entire and not only a part of the land is in the possession of the tenants is not acceptableThis view has ever since then been followed by the High Courts in India No decision holding to the contrary was brought to our notice. Indeed, Shri Gosain virtually conceded that there was none to his knowledge. The properties in possession of tenants have on this reasoning to be held to be incapable of physical possession which means personal and immediate possession. It was so held in Ghulam Mustafa v. Shahabuddin, 1908 PR 49 (FB). In that case the Full Bench of the Punjab Chief Court approved of some of its earlier decisions overruling the dictum in one of the earlier decisions of that Court.	0	2,800	948	### Instruction: Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction. ### Input: in judicial proceedings is normally associated with secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such a proceeding the claim put forward is fictitious, the contest feigned or unreal and the final adjudication a mask designed to give false appearance of a genuine judicial determination, and this is generally done with the object of confounding third parties. In such a proceeding the contest is a mere sham. In the case of pre-emption it is open to the plaintiff to find financial aid and from any source he likes He has a statutory right to pre-empt the sale and it is no concern of the vendees whether he borrows money from someone or otherwise arranges for finances for pre-empting the sale. It is true that it is a personal right and is not capable of being transferred. And the right of pre-emption being a right of substitution, the vendor also cannot in the garb of a benamidar preempt his own sale. But merely because the vendors who are the fathers of the plaintiff-pre-emptors are helping their sons to exercise the statutory right conferred on the sons cannot, without more, deprive them of the right to be substituted for the vendees in exercise of their right of pre-emption. The property pre-empted, if they are successful, will belong to them and not to their fathers who were the vendors. Even in the wider sense of the word "collusion" which suggests a deceitful agreement or compact between two or more persons to do some act in order to prejudice a third person or for some improper purpose, would not apply to the present case so as to operate as estoppel against the plaintiffs. Whether or not a pre-emptor-plaintiff who is a benamidar for the vendor or some other party loses his right because of being a benamidar is a question which does not concern us in this case and we express no opinion thereon. On the facts of the present case there is absolutely no material on which the plaintiffs can be held to have lost their right of pre-emption on the ground of collusion. 8. The next point relates to the plea of limitation. Article 10 of the Second Schedule of the Indian Limitation Act provides a period of one year to enforce a right of pre-emption whether founded on law or general usage or on special contract, the terminus a quo being the date when the purchaser takes under the sale, sought to be pre-empted, physical possession of the whole of the property sold or where the subject of the sale does not admit of physical possession, the date when the instrument of sale is registered. Section 30 of the Punjab Pre-emption Act applies only when the case does not fall within Article 10. On the finding of the District Judge and of the High Court it is obvious that physical possession of the whole of the property sold was not taken by the vendees, on the date of sale. Therefore, the first part of article does not apply. According to the appellants counsel the land sold does admit of physical possession and if a part of the land has been taken into possession by the vendees then Article 10 would be inapplicable and Section 30 of the Punjab Pre-emotion Act would be attracted. In that case the terminus a quo according to Shri Gosain would be the date on which the vendees took under the sale physical possession of any part of such land. The argument in our view is misconceived. The second part of Article 10, in our opinion, covers cases where the subject of the sale, which means the whole of the property sold, does not admit of physical possession and that would be so when a part of the land is in the possession of the tenants. The argument that use of the expression "subject of the sale" suggests that this article would apply only if the entire and not only a part of the land is in the possession of the tenants is not acceptable The expression "physical possession" came up for construction before the Privy Council in Batul Begam v Mansur Ali Khan, (1902) ILR 24 All 17 (PC). Lord Robertson speaking for the Judicial Committee said:"What has to be considered is as the High Court accurately formulated, the question, Does the property- admit of physical possession? The word "physical" is of itself a strong word, highly restrictive of the kind of possession indicated and when it is found, as is pointed out by the High Court that the Legislature has in successive enactments about the limitation of such suits gone on strengthening the language used,-first in 1859 prescribing "possession", then in 1871 requiring "actual possession" and finally in 1877 substituting the word "physical" for "actual,, it is seen that that word has been very deliberately chosen and for a restrictive purpose. Their Lordships are of opinion that the High Courts are right in the conclusion they have stated. Their Lordships consider that the expression used by Stuart. C J., in regard to the words "actual possession" is applicable with still more certainty to the words "physical possession" and that what is meant is a "personal and immediate" possession". This view has ever since then been followed by the High Courts in India No decision holding to the contrary was brought to our notice. Indeed, Shri Gosain virtually conceded that there was none to his knowledge. The properties in possession of tenants have on this reasoning to be held to be incapable of physical possession which means personal and immediate possession. It was so held in Ghulam Mustafa v. Shahabuddin, 1908 PR 49 (FB). In that case the Full Bench of the Punjab Chief Court approved of some of its earlier decisions overruling the dictum in one of the earlier decisions of that Court. ### Response: 0 ### Explanation: We are, however, unable to find merit in either of them. So far as the question of collusion is concerned it was not clarified by the learned counsel how the plaintiffs could be held to have lost their right of pre-emption merely because their fathers either came to the court with them, which they did openly, or allowed their sons as plaintiff to use in court, copy of a public document procured by the father of one of the plaintiffs. Collusion in judicial proceedings is normally associated with secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such a proceeding the claim put forward is fictitious, the contest feigned or unreal and the final adjudication a mask designed to give false appearance of a genuine judicial determination, and this is generally done with the object of confounding third parties. In such a proceeding the contest is a mere sham. In the case of pre-emption it is open to the plaintiff to find financial aid and from any source he likes He has a statutory right to pre-empt the sale and it is no concern of the vendees whether he borrows money from someone or otherwise arranges for finances for pre-empting the sale. It is true that it is a personal right and is not capable of being transferred. And the right of pre-emption being a right of substitution, the vendor also cannot in the garb of a benamidar preempt his own sale. But merely because the vendors who are the fathers of the plaintiff-pre-emptors are helping their sons to exercise the statutory right conferred on the sons cannot, without more, deprive them of the right to be substituted for the vendees in exercise of their right of pre-emption. The property pre-empted, if they are successful, will belong to them and not to their fathers who were the vendors. Even in the wider sense of the word "collusion" which suggests a deceitful agreement or compact between two or more persons to do some act in order to prejudice a third person or for some improper purpose, would not apply to the present case so as to operate as estoppel against the plaintiffs. Whether or not a pre-emptor-plaintiff who is a benamidar for the vendor or some other party loses his right because of being a benamidar is a question which does not concern us in this case and we express no opinion thereon. On the facts of the present case there is absolutely no material on which the plaintiffs can be held to have lost their right of pre-emption on the ground of collusion8. The next point relates to the plea of limitation. Article 10 of the Second Schedule of the Indian Limitation Act provides a period of one year to enforce a right of pre-emption whether founded on law or general usage or on special contract, the terminus a quo being the date when the purchaser takes under the sale, sought to be pre-empted, physical possession of the whole of the property sold or where the subject of the sale does not admit of physical possession, the date when the instrument of sale is registered. Section 30 of the Punjab Pre-emption Act applies only when the case does not fall within Article 10. On the finding of the District Judge and of the High Court it is obvious that physical possession of the whole of the property sold was not taken by the vendees, on the date of sale. Therefore, the first part of article does not apply. According to the appellants counsel the land sold does admit of physical possession and if a part of the land has been taken into possession by the vendees then Article 10 would be inapplicable and Section 30 of the Punjab Pre-emotion Act would be attracted. In that case the terminus a quo according to Shri Gosain would be the date on which the vendees took under the sale physical possession of any part of such land. The argument in our view is misconceived. The second part of Article 10, in our opinion, covers cases where the subject of the sale, which means the whole of the property sold, does not admit of physical possession and that would be so when a part of the land is in the possession of the tenants. The argument that use of the expression "subject of the sale" suggests that this article would apply only if the entire and not only a part of the land is in the possession of the tenants is not acceptableThis view has ever since then been followed by the High Courts in India No decision holding to the contrary was brought to our notice. Indeed, Shri Gosain virtually conceded that there was none to his knowledge. The properties in possession of tenants have on this reasoning to be held to be incapable of physical possession which means personal and immediate possession. It was so held in Ghulam Mustafa v. Shahabuddin, 1908 PR 49 (FB). In that case the Full Bench of the Punjab Chief Court approved of some of its earlier decisions overruling the dictum in one of the earlier decisions of that Court.
Ambaji @ Nana Hanmant Pati Vs. The State of Maharashtra	case rests on the circumstantial evidence, we have no hesitation in holding that the circumstances on which the prosecution relies is consistent with the sole hypothesis of the guilt of the accused. Even medical evidence on record is consistent with the prosecution case. The evidence of P.W.1 and P.W.7 stands corroborated with the evidence of P.W.5 and P.W. 8 on material aspects. P.W.5 and P.W.8 are independent witnesses. Merely because P.W.1 and P.W.7 are closely related to the deceased Ganapati is no ground to discard their testimony as we find that their evidence is otherwise trustworthy and credible and find corroboration from the testimony of P.W.5 and P.W.8. 29. Learned counsel for the appellant argued that the prosecution has failed to establish the motive and therefore, it is fatal to the prosecution case. It is his submission that the present case being completely based on the circumstantial evidence, failure to prove the motive breaks the link in the chain of the circumstances connecting the appellant with the crime. We are not persuaded by this submission of learned counsel. The Apex Court in the case of AIR 1992 SC 1175 Mulakh Raj Etc Vs.Satish Kumar and others in paragraph 17 has held that undoubtedly in cases of circumstantial evidence motive bears important signifcance. Motive always locks up in the mind of the accused and some time it is difcult to unlock. People do not act wholly without motive. The failure to discover the motive of an ofence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case. This proposition of law is reiterated by the Apex Court in the case of 2013 AIR SCW 3208Rohtash vs State Of Haryana & Another. A proftable reference can also be made to the decision of the AIR 1955 SC 807 Atley vs State Of Uttar Pradesh in which case Their Lordships held that where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this efect, only that the other evidence bearing on the guilt of the accused has to be very closely examined. 30. Let us now advert to the plea of alibi raised by the appellant. The burden of proving alibi undoubtedly lies on the accused for setting up the defence. Nonetheless, the law is well settled by the dictum of the Apex Court in AIR 1956 SC 460 Gurucharan Singh V/s. State of Punjab that even if the accused sets up the plea of alibi in his defence, the burden of proving the case against the accused is on the prosecution irrespective whether or not the accused has made out a plausible defence. It is equally well settled that the standard of proof which is required with regard to the plea of alibi must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard. This position is illuminatingly stated by Their Lordships in the case of 7Mohinder Singh Vs. The State. We are equally conscious that the weakness or falsity of an alibi is not sufcient ground for holding that the case of the prosecution is thereby improved. We find that no evidence whatsoever has been adduced in support of the plea of alibi taken up by the appellant. We therefore have no hesitation in coming to the conclusion that the appellant – accused has failed to establish the plea of alibi. 31. We, therefore, are of the opinion that the prosecution has discharged its burden in proving that the accused was present at the scene and participated in the crime in view of the following circumstances which we summarise in brief : (i) From the evidence of P.W.5 – Dr.Jadhav, it is established that the appellant was last seen in the company of the accused till 2.20 p.m. on 17th September 2014. (ii) The evidence that P.W.5 was in the company of deceased is corroborated by the evidence of P.W.1 – Kiran and P.W.7 – Sharada. (iii) P.W.8 deposed about the appellant coming to his shop at 4.30 p.m. informing him that Ganapati was lying injured in his house. (iv) P.W8 noticed the clothes of the appellant having blood stains. The forensic evidence reveals that the blood on the clothes of the appellant is human blood. (v) The appellant has not ofered any explanation much less probable and satisfactory explanation as to when he parted company with the deceased. He had raised a defence of alibi which appellant could not establish. (vi) The dead body of Ganapati is found in a pool of blood in the appellants house. The appellant has failed to ofer any explanation much less probable and satisfactory explanation as regards the presence of dead body of Ganapati in his house. (vii) The time gap between the point of time when the accused and deceased last seen alive and deceased is found dead is so small that possibility of any person other than the accused being the author of the crime is impossible. (viii) The Medical Ofcer has deposed that injuries on the person of the deceased are possible by the wooden batten which was seized from the house of the appellant. The wooden batten was stained with blood. The forensic report established that the blood on the wooden batten is human. (ix) No explanation has been ofered by the appellant when he was examined under section 313 of Cr.P.C. with respect to the incriminating circumstances appearing against him.	0[ds]15. The incident in question took place on 17th September 2014. P.W.1 – Kiran Maskar – nephew of deceased Ganpati deposed that deceased Ganpati is his maternal uncle. When P.W.1 was proceeding for his work towards Kolhapur at about 12.30 p.m., he noticed deceased Ganpati and accused Ambaji – P.W.1 talking in front of the house of accused – Ambaji. P.W.1 received a call at 4.30 p.m. from P.W.8 – Bajirao Jadhav on his mobile. P.W.8 - Bajirao informed P.W.1- Kiran that accused Ambaji told him about Ganpati lying in a pool of blood in his house. Kiran made a phone call to P.W.5 – Dr.Mansing narrating what Bajirao told him and requested him to go to the spot. P.W.5 – Dr.Mansing informed P.W.1 that he had visited house of Ambaji at 2.00 p.m. and at that time, Ambaji and Ganpati were drinking liquor. Kiran returned to village Kololi at 5.45 p.m. when he found several villagers gathered in front of house of appellant – Ambaji. Kiran saw his maternal uncle – Ganapati was lying on the foor. He was lying dead in a pool of blood. Kiran noticed injuries on Ganpatis forehead and head. He also saw one wooden batten lying there. In his cross examination, he admitted that deceased Ganpati was addicted to liquor and he was drinking liquor heavily. A suggestion was put to Kiran that as Ganpati was addicted to liquor and that Kiran was not giving money to him, it is for this reason P.W. 1 - Kiran and deceased Ganpati had dispute and quarrel which suggestion Kiran denied. Nothing is elicited in the cross examination which discredits the testimony of P.W.1 – Kiran. The testimony of P.W.1 – Kiran cannot be discarded merely because he is related to the deceased as the same is otherwise trustworthy and is corroborated by the testimony of other witnesses viz. P.W.5, P.W.7 & P.W.8 on material aspects16. P.W.7 – Sharada is the wife of deceased Ganpati. It is in her deposition that on the date of incident, she was proceeding towards her feld. She had seen accused – Ambaji and her husband - deceased Ganpati talking near Ambajis house. She asked her husband to have lunch from the tifn kept in the shed of the feld. At around 5.00o clock, when P.W.7 returned home from the agricultural feld, she was informed by one Shri Mahesh Patil that her husband Ganpati is lying in a pool of blood in the house of Ambaji. She admitted in her cross examination that her husband was drinking liquor during intervals. Though she admitted in her cross examination that Sonali Patil and Suvarna Patil were with her when she had gone to the feld, non-examination of Sonali Patil or Suvarna Patil by the prosecution would not be sufcient to discard the testimony of P.W.7 if otherwise the evidence of P.W.7 is found to be trustworthy. The prosecution had by pursis dated 19th December 2015 stated that Suvarna Patil and Sonali Patil are not supporting the case of the prosecution and hence they may be discharged. It is the choice of the prosecution, which witnesses are to be examined and which not from the list of witnesses. This by itself is not sufcient to discard the testimony of P.W.7 as we find that the testimony of P.W.7 is consistent with the testimony of P.W.1, P.W.5 that appellant was seen in company of deceased.Upon analyzing the evidence of P.W.5, it is not possible for us to accept the contention of learned Counsel for the appellant that the theory of last seen together by prosecution would fail in view of the deposition of P.W.5 that he had seen the appellant parting company with the deceased Ganapati. The evidence of P.W.1 and P.W.7 finds corroboration from the evidence of P.W.5 as to the factum of the appellant and deceased seen together in each others company. It is not possible for us to believe P.W.5 when he says that he saw the appellant and deceased parting company. P.W.5 says that when he went to the house of accused in the afternoon at around 2.10 p.m., the appellant and accused were drinking liquor. Further P.W5 was in the house of the appellant for 5-10 minutes. P.W.5 was confronted by the prosecution with the statement which was recorded under section 164 of Cr.P.C. We do not find this version of P.W.5 believable as the appellant has not ofered any explanation as to how and when he parted company. On the contrary, the appellant has raised the plea of alibi. The appellant has not ofered any explanation as to when and how he parted the company of deceased Ganapati. The appellant has also failed to ofer any explanation about the dead body of Ganapati which is found in his house. We therefore have no hesitation in holding that the appellant has not discharged the onus cast upon him by section 106 of the Evidence Act.19. We would now consider the evidence of P.W.8 – Bajirao. P.W.8 says that the appellant Ambaji came to his shop on 17th September 2014 at 4.30 p.m.. Ambaji was wearing white banian and pant. Ambaji told him that Ganapati had fallen down in his house and requested P.W.8 to come with him. The banian of Ambaji was stained. P.W.8 then went to the house of Ambaji. He further says that from the gap of the door, he came to know that Ganapati was lying in the pool of blood. He then made a phone call to P.W.1 - Kiran Maskar and to the police station. P.W.8 admitted that he made a phone call to Kiran at 4.30 p.m.. He deposed that he made the frst call to Kiran at 4.30 p.m. He further stated that when Ambaji came to his shop that time his clothes were blood-stained. He further stated that he noticed that the wooden batten was lying on the foor. We find that nothing is elicited by the defence in the cross examination of P.W.8 to discredit his testimony. Thus, the version of P.W.1 that he received a phone call from P.W8 that deceased Ganapati was lying in the injured condition in the house of appellant – accused stands corroborated. Further it is seen from the deposition of P.W.8 that the appellant had visited the shop of P.W.8 having blood stained clothes.In this context, we may refer to the document placed on record at Exhibit 70 which is the House Assessment extract of the house where dead body was lying. This extract shows that Sheetal Ambaji Patil- the wife of the appellant is the owner of the property and in occupation. Even the evidence of P.W.5 clearly reveals that when Ambaji spoke to him on phone, Ambaji asked him to come to his house for some work, P.W.5 then went to the place of incident which is this very house. There is thus sufcient material on record to indicate that the house belongs to Ambaji and that he was in possession and in occupation of the said house.21. Having regard to the consistent testimony of P.W.5, P.W.1 and P.W.7 the circumstance of deceased last seen in the company of appellant is established by the prosecution. The evidence on record indicates that till 2.20 p.m., the deceased was in the company of accused. The blood samples of accused were sent for chemical analysis and at Exhibit 82 is the Alcohol Examination Certifcate indicating result of the analysis. The result indicates that blood contained 0.060 (sixty mgs) per cent W/V of Ethyl Alcohol. The evidence of P.W.5 that accused was drinking liquor in company of deceased finds corroboration from this report.23. P.W.11 – Dr.Pravin Ganpatrao Naik, who performed the post- mortem of the dead body deposed that the injuries on the person of deceased are in the ordinary course of nature sufcient to cause death. He further deposed that such injuries are possible by muddemal article 4 i.e. wooden batten. The post-mortem report is at Exhibit 52 and the probable cause of death is mentioned as head injury. Even the wooden batten seized from the scene of the ofence is found to be stained with human blood.24. The forensic report indicated that human blood is found on the clothes of the accused. The result of the analysis of the forensic laboratory is at Exhibit 79. The medical evidence is consistent with the prosecution case. P.W.11 – Dr. Pravin Ganpatrao Naik deposed that the injuries on the person deceased in the ordinary course of nature are sufcient to cause death. He further deposed that such type of injuries are possible by the said muddemal article No.4 wooden batten which is shown to him. The evidence of P.W.11 inspires confdence and there is nothing material elicited in his cross examination to discredit the testimony of the witness P.W.11.25. From the evidence on record, the prosecution has succeeded in establishing that dead body was found in the house of the appellant. The death occurred around 4.30 p.m. P.W.8 does not bear any animosity towards the appellant. P.W.5 deposed that he had seen Ambaji and deceased drinking liquor at 2.20 p.m. It has come in the evidence of P.W8 that the appellant Ambaji had come to his shop at around 4.30 p.m. asking him to accompany Ambaji as Ganapati has fallen down in his house. Thus, the time gap between point of time when the accused and deceased were last seen alive and deceased is found dead is so small that possibility of any person other than accused being the author of the crime is completely ruled out. A stray admission of P.W.5 that a rickshaw parked with two persons standing beside it near the porch of house of Ambaji cannot enure to the appellants advantage, in the light of the attendant circumstances indicated hereinbefore which only point to the guilt of the Appellant.26. The Apex Court has held in the case ofAIR 2006 SC 1656 Ram Reddy Rajesh Khanna Reddy Vs. State of Andhra Pradesh & in the case of(2007)12 SCC 471 Hatti Singh Vs. State of Haryana that last seen theory comes into play when the time gap between the point of time when the accused and deceased were last seen alive and the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. It is held that even in such cases the Court should look for some corroboration.27. In the present case, there is clinching evidence on record that the appellant was last seen in the company of deceased at 2.20 p.m. P.W.8 - Bajirao deposed that at 4.30 p.m. the appellant informed him that the deceased was lying with injuries in his house. P.W.8 noticed blood stained clothes of the person of appellant. The forensic report reveals that blood found on the clothes of the appellant is human. That the dead body of Ganpati found in a pool of blood in the house of the appellant is an incriminating circumstance. The evidence of P.W.1 – Kiran is consistent with the version of P.W.8 – Barjirao. P.W.5 Dr. Mansing Jadhav deposed that the appellant and the deceased were drinking liquor at around 2.10 p.m. on the date of the incident. Ganapati died around 4.30 p.m. The time gap between the point of time when the accused and deceased were last seen alive and the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. The dead body of the deceased Ganpati was found in the house of appellant – Ambaji. The appellant has failed to ofer an explanation as to how and when the appellant parted company with Ganpati. The prosecution has convincingly proved that the deceased was last seen in the company of the accused before his death and thereafter nobody saw him. Further the prosecution proved that the dead body of the accused was found in the house of accused. Therefore, the appellant – accused was legally obliged to discharge the onus shifted upon him to explain how the dead body was found in his house and under what circumstances deceased died homicital death. It was open for the accused to discharge the said onus by preponderance of probabilities, however instead of doing it, the accused took a false plea of alibi, which he failed to prove.28. In this view of the matter, though the case rests on the circumstantial evidence, we have no hesitation in holding that the circumstances on which the prosecution relies is consistent with the sole hypothesis of the guilt of the accused. Even medical evidence on record is consistent with the prosecution case. The evidence of P.W.1 and P.W.7 stands corroborated with the evidence of P.W.5 and P.W. 8 on material aspects. P.W.5 and P.W.8 are independent witnesses. Merely because P.W.1 and P.W.7 are closely related to the deceased Ganapati is no ground to discard their testimony as we find that their evidence is otherwise trustworthy and credible and findcorroboration from the testimony of P.W.5 and P.W.8.We are not persuaded by this submission of learned counsel. The Apex Court in the case ofAIR 1992 SC 1175 Mulakh Raj Etc Vs.Satish Kumar and others in paragraph 17 has held that undoubtedly in cases of circumstantial evidence motive bears important signifcance. Motive always locks up in the mind of the accused and some time it is difcult to unlock. People do not act wholly without motive. The failure to discover the motive of an ofence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case. This proposition of law is reiterated by the Apex Court in the case of2013 AIR SCW 3208Rohtash vs State Of Haryana & Another. A proftable reference can also be made to the decision of theAIR 1955 SC 807 Atley vs State Of Uttar Pradesh in which case Their Lordships held that where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this efect, only that the other evidence bearing on the guilt of the accused has to be very closely examined.30. Let us now advert to the plea of alibi raised by the appellant. The burden of proving alibi undoubtedly lies on the accused for setting up the defence. Nonetheless, the law is well settled by the dictum of the Apex Court inAIR 1956 SC 460 Gurucharan Singh V/s. State of Punjab that even if the accused sets up the plea of alibi in his defence, the burden of proving the case against the accused is on the prosecution irrespective whether or not the accused has made out a plausible defence. It is equally well settled that the standard of proof which is required with regard to the plea of alibi must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard. This position is illuminatingly stated by Their Lordships in the case of 7Mohinder Singh Vs. The State. We are equally conscious that the weakness or falsity of an alibi is not sufcient ground for holding that the case of the prosecution is thereby improved. We find that no evidence whatsoever has been adduced in support of the plea of alibi taken up by the appellant. We therefore have no hesitation in coming to the conclusion that the appellant – accused has failed to establish the plea of alibi.31. We, therefore, are of the opinion that the prosecution has discharged its burden in proving that the accused was present at the scene and participated in the crime in view of the following circumstances which we summarise in brief :(i) From the evidence of P.W.5 – Dr.Jadhav, it is established that the appellant was last seen in the company of the accused till 2.20 p.m. on 17th September 2014.(ii) The evidence that P.W.5 was in the company of deceased is corroborated by the evidence of P.W.1 – Kiran and P.W.7 – Sharada.(iii) P.W.8 deposed about the appellant coming to his shop at 4.30 p.m. informing him that Ganapati was lying injured in his house.(iv) P.W8 noticed the clothes of the appellant having blood stains. The forensic evidence reveals that the blood on the clothes of the appellant is human blood.(v) The appellant has not ofered any explanation much less probable and satisfactory explanation as to when he parted company with the deceased. He had raised a defence of alibi which appellant could not establish.(vi) The dead body of Ganapati is found in a pool of blood in the appellants house. The appellant has failed to ofer any explanation much less probable and satisfactory explanation as regards the presence of dead body of Ganapati in his house.(vii) The time gap between the point of time when the accused and deceased last seen alive and deceased is found dead is so small that possibility of any person other than the accused being the author of the crime is impossible.(viii) The Medical Ofcer has deposed that injuries on the person of the deceased are possible by the wooden batten which was seized from the house of the appellant. The wooden batten was stained with blood. The forensic report established that the blood on the wooden batten is human.(ix) No explanation has been ofered by the appellant when he was examined under section 313 of Cr.P.C. with respect to the incriminating circumstances appearing against him.	0	6,297	3,220	### 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: case rests on the circumstantial evidence, we have no hesitation in holding that the circumstances on which the prosecution relies is consistent with the sole hypothesis of the guilt of the accused. Even medical evidence on record is consistent with the prosecution case. The evidence of P.W.1 and P.W.7 stands corroborated with the evidence of P.W.5 and P.W. 8 on material aspects. P.W.5 and P.W.8 are independent witnesses. Merely because P.W.1 and P.W.7 are closely related to the deceased Ganapati is no ground to discard their testimony as we find that their evidence is otherwise trustworthy and credible and find corroboration from the testimony of P.W.5 and P.W.8. 29. Learned counsel for the appellant argued that the prosecution has failed to establish the motive and therefore, it is fatal to the prosecution case. It is his submission that the present case being completely based on the circumstantial evidence, failure to prove the motive breaks the link in the chain of the circumstances connecting the appellant with the crime. We are not persuaded by this submission of learned counsel. The Apex Court in the case of AIR 1992 SC 1175 Mulakh Raj Etc Vs.Satish Kumar and others in paragraph 17 has held that undoubtedly in cases of circumstantial evidence motive bears important signifcance. Motive always locks up in the mind of the accused and some time it is difcult to unlock. People do not act wholly without motive. The failure to discover the motive of an ofence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case. This proposition of law is reiterated by the Apex Court in the case of 2013 AIR SCW 3208Rohtash vs State Of Haryana & Another. A proftable reference can also be made to the decision of the AIR 1955 SC 807 Atley vs State Of Uttar Pradesh in which case Their Lordships held that where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this efect, only that the other evidence bearing on the guilt of the accused has to be very closely examined. 30. Let us now advert to the plea of alibi raised by the appellant. The burden of proving alibi undoubtedly lies on the accused for setting up the defence. Nonetheless, the law is well settled by the dictum of the Apex Court in AIR 1956 SC 460 Gurucharan Singh V/s. State of Punjab that even if the accused sets up the plea of alibi in his defence, the burden of proving the case against the accused is on the prosecution irrespective whether or not the accused has made out a plausible defence. It is equally well settled that the standard of proof which is required with regard to the plea of alibi must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard. This position is illuminatingly stated by Their Lordships in the case of 7Mohinder Singh Vs. The State. We are equally conscious that the weakness or falsity of an alibi is not sufcient ground for holding that the case of the prosecution is thereby improved. We find that no evidence whatsoever has been adduced in support of the plea of alibi taken up by the appellant. We therefore have no hesitation in coming to the conclusion that the appellant – accused has failed to establish the plea of alibi. 31. We, therefore, are of the opinion that the prosecution has discharged its burden in proving that the accused was present at the scene and participated in the crime in view of the following circumstances which we summarise in brief : (i) From the evidence of P.W.5 – Dr.Jadhav, it is established that the appellant was last seen in the company of the accused till 2.20 p.m. on 17th September 2014. (ii) The evidence that P.W.5 was in the company of deceased is corroborated by the evidence of P.W.1 – Kiran and P.W.7 – Sharada. (iii) P.W.8 deposed about the appellant coming to his shop at 4.30 p.m. informing him that Ganapati was lying injured in his house. (iv) P.W8 noticed the clothes of the appellant having blood stains. The forensic evidence reveals that the blood on the clothes of the appellant is human blood. (v) The appellant has not ofered any explanation much less probable and satisfactory explanation as to when he parted company with the deceased. He had raised a defence of alibi which appellant could not establish. (vi) The dead body of Ganapati is found in a pool of blood in the appellants house. The appellant has failed to ofer any explanation much less probable and satisfactory explanation as regards the presence of dead body of Ganapati in his house. (vii) The time gap between the point of time when the accused and deceased last seen alive and deceased is found dead is so small that possibility of any person other than the accused being the author of the crime is impossible. (viii) The Medical Ofcer has deposed that injuries on the person of the deceased are possible by the wooden batten which was seized from the house of the appellant. The wooden batten was stained with blood. The forensic report established that the blood on the wooden batten is human. (ix) No explanation has been ofered by the appellant when he was examined under section 313 of Cr.P.C. with respect to the incriminating circumstances appearing against him. ### Response: 0 ### Explanation: appellant – accused was legally obliged to discharge the onus shifted upon him to explain how the dead body was found in his house and under what circumstances deceased died homicital death. It was open for the accused to discharge the said onus by preponderance of probabilities, however instead of doing it, the accused took a false plea of alibi, which he failed to prove.28. In this view of the matter, though the case rests on the circumstantial evidence, we have no hesitation in holding that the circumstances on which the prosecution relies is consistent with the sole hypothesis of the guilt of the accused. Even medical evidence on record is consistent with the prosecution case. The evidence of P.W.1 and P.W.7 stands corroborated with the evidence of P.W.5 and P.W. 8 on material aspects. P.W.5 and P.W.8 are independent witnesses. Merely because P.W.1 and P.W.7 are closely related to the deceased Ganapati is no ground to discard their testimony as we find that their evidence is otherwise trustworthy and credible and findcorroboration from the testimony of P.W.5 and P.W.8.We are not persuaded by this submission of learned counsel. The Apex Court in the case ofAIR 1992 SC 1175 Mulakh Raj Etc Vs.Satish Kumar and others in paragraph 17 has held that undoubtedly in cases of circumstantial evidence motive bears important signifcance. Motive always locks up in the mind of the accused and some time it is difcult to unlock. People do not act wholly without motive. The failure to discover the motive of an ofence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case. This proposition of law is reiterated by the Apex Court in the case of2013 AIR SCW 3208Rohtash vs State Of Haryana & Another. A proftable reference can also be made to the decision of theAIR 1955 SC 807 Atley vs State Of Uttar Pradesh in which case Their Lordships held that where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. The absence of proof of motive has this efect, only that the other evidence bearing on the guilt of the accused has to be very closely examined.30. Let us now advert to the plea of alibi raised by the appellant. The burden of proving alibi undoubtedly lies on the accused for setting up the defence. Nonetheless, the law is well settled by the dictum of the Apex Court inAIR 1956 SC 460 Gurucharan Singh V/s. State of Punjab that even if the accused sets up the plea of alibi in his defence, the burden of proving the case against the accused is on the prosecution irrespective whether or not the accused has made out a plausible defence. It is equally well settled that the standard of proof which is required with regard to the plea of alibi must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard. This position is illuminatingly stated by Their Lordships in the case of 7Mohinder Singh Vs. The State. We are equally conscious that the weakness or falsity of an alibi is not sufcient ground for holding that the case of the prosecution is thereby improved. We find that no evidence whatsoever has been adduced in support of the plea of alibi taken up by the appellant. We therefore have no hesitation in coming to the conclusion that the appellant – accused has failed to establish the plea of alibi.31. We, therefore, are of the opinion that the prosecution has discharged its burden in proving that the accused was present at the scene and participated in the crime in view of the following circumstances which we summarise in brief :(i) From the evidence of P.W.5 – Dr.Jadhav, it is established that the appellant was last seen in the company of the accused till 2.20 p.m. on 17th September 2014.(ii) The evidence that P.W.5 was in the company of deceased is corroborated by the evidence of P.W.1 – Kiran and P.W.7 – Sharada.(iii) P.W.8 deposed about the appellant coming to his shop at 4.30 p.m. informing him that Ganapati was lying injured in his house.(iv) P.W8 noticed the clothes of the appellant having blood stains. The forensic evidence reveals that the blood on the clothes of the appellant is human blood.(v) The appellant has not ofered any explanation much less probable and satisfactory explanation as to when he parted company with the deceased. He had raised a defence of alibi which appellant could not establish.(vi) The dead body of Ganapati is found in a pool of blood in the appellants house. The appellant has failed to ofer any explanation much less probable and satisfactory explanation as regards the presence of dead body of Ganapati in his house.(vii) The time gap between the point of time when the accused and deceased last seen alive and deceased is found dead is so small that possibility of any person other than the accused being the author of the crime is impossible.(viii) The Medical Ofcer has deposed that injuries on the person of the deceased are possible by the wooden batten which was seized from the house of the appellant. The wooden batten was stained with blood. The forensic report established that the blood on the wooden batten is human.(ix) No explanation has been ofered by the appellant when he was examined under section 313 of Cr.P.C. with respect to the incriminating circumstances appearing against him.
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. & ANR Vs. THE STATE OF MADHYA PRADESH	show that the loss incurred was covered within the terms of the policy and that on a balance of probabilities there existed a proximate cause between the loss incurred and the helicopter being in transit. The respondent has adduced no evidence to supports its case. 37. After the respondent informed the appellant on 23 November 2005 that upon inspection, the tail boom of the helicopter was found to be damaged, the appellant promptly appointed a surveyor, who in its report dated 14 March 2006 observed: During our re-visit along with Insureds engineer we observed that the Tail boom was badly dented (apart from the crack in the glass of pilot side window initially surveyed by us) at the point where it joins the main frame. The frame was also affected and bulged inside. It appeared from the nature of damage that some hard and/or sharp object hit the frame whilst it was parked at hanger... (Emphasis supplied) Based on the above, the surveyor concluded thus: The damage to the tail boom had occurred at Hangar #3, Bay 15/33 IGI Airport Delhi after substantial assembly but prior to test flight and not during transit and hence would not fall under the purview of marine insurance policy as issued to the insured. On the basis of the surveyors report, the appellant rejected the claim of the respondent on 10 April 2006. By a letter dated 11 April 2006, the Directorate of Aviation, Government of Madhya Pradesh responded to the above letter on behalf of the respondent stating: It is very important to mention here that the investigation by your surveyors and their interviews with technical representatives of Acro Helipro, scrutiny of customs documents, physical inspection of helicopter at Palam airport etc. confirms that this damage to the helicopter was caused in Nov? 05 whereas this helicopter was cleared from customs on 13 th Oct? 05. ... Though your findings of damage to helicopter in Nov? 05 i.e. after a month after receipt of helicopter from customs are based on facts but here we wish to inform you that our policy for transit is up to Bhopal and therefore damage to the helicopter after a month from receipt of the customs i.e. in the month of Nov? 05 is also covered under transit. (Emphasis supplied) 38. It is evident from the contents of the above letter written by the the Directorate of Aviation, Government of Madhya Pradesh that the respondent did not challenge the surveyors report. Instead it accepted the finding of the surveyor that the damage to the helicopter took place only in November 2005, after the helicopter had been cleared through customs on 13 October 2005. Accepting the report of the surveyor, the Directorate of Civil Aviation of the Government of Madhya Pradesh sought to contend that the ordinary course of transit extended until Bhopal. This admission is contrary to the stance taken by the respondent before this Court that the damage to the helicopter occurred during the course of transit before the cargo was cleared from customs at Delhi. The learned counsel for the respondent has in his written submissions before this Court argued that since the procurement and supply of the new window was taking considerable time, the helicopter was kept in storage in the meantime in the hangar was covered with a bubble sheet and packing material. The respondent has on the balance of probabilities failed discharge its burden that the damage to the helicopter incurred during the course of transit. No proximate cause has been shown between the damage to the helicopter and the helicopter being in a state of transit. Hence, it is difficult for this Court to come to the conclusion that the damage to the helicopter incurred during the course of transit. 39. The NCDRC has in the impugned judgment proceeded on the understanding that since customs clearance is essentially at New Delhi, it has to be construed and interpreted in the right spirit that the commencement of the transit is at Langley and ordinary course of transit includes the staying at Delhi for customs clearances and for assembling . The NCDRC has further noted that there existed no ambiguity regarding the commencement of the risk at Langley and ending at the final destination i.e. Bhopal. According to the NCDRC, the expiry of thirty days after completion of discharge at the final port of discharge should be essentially interpreted as thirty days after reaching Bhopal and not thirty days during the course of transit which included the halt at New Delhi. The line of approach adopted by the NCDRC is evidently incorrect. While construing a contract of insurance, it is not permissible for a court to substitute the terms of the contract. The court should always interpret the words used in a contract in a manner that will best express the intention of the parties. The NCDRC has incorrectly proceeded on the path that the ordinary course of transit would include assembling of the helicopter at New Delhi and the policy covered all risks till the time the helicopter did not reach Bhopal. The risks associated with the assembled helicopter were not covered within the purview of the policy, as the subject-matter which had been insured was a helicopter being transported in a packaged knocked down condition. The act of assembling the helicopter with a view to having it flown under its own power, instead of transporting the packaged knocked down helicopter further to Bhopal by road, would not constitute as storage in the ordinary course of transit. The interpretation adopted by the NCDRC strikes fundamentally at the purpose of the policy and is not in accordance with sound commercial principles. The interpretation altered the character of the risk insured beyond the scope of the policy as agreed between the parties. 40. We are hence of the view that the interpretation placed on the terms of the insurance policy was manifestly incorrect and that the impugned orders of the NCDRC and SCDRC are unsustainable.	1[ds]12. The dispute before this Court is with respect to the damage to the tail boom of the helicopter and not as regards the damage to the windscreen glass. By a letter dated 10 April 2006, the appellant informed the assured that the total cost of replacement of the windscreen glass was within the policy deductible of 0.5% of the sum insured and as such no liability arose under the policy. The assured has not challenged that before this Court13. The insurance policy issued by the insurer to the insured represents a contract between the parties. The insurer undertakes to compensate the insured for the losses covered under the insurance cover subject to the terms and conditions of the policy. The appellant issued a policy to the respondent on 22 July 2005. Under the policy schedule, the cargo was to be transported from Langley to Bhopal. The policy schedule prescribed that the appellant company agrees to insure against loss, damage, liability or expenses subject to the limit of indemnity and the clauses, endorsements, exclusions, conditions and warranties in the schedule to the policy. The extent of the policy cover was governed by and subject to various clauses mentioned in the policy schedule which included the ICC. The ICC, inter alia, prescribed the risks covered, exclusions, duration and duties of the insurer and the insured14. The dispute in the present case is on the interpretation of the termination clause of the ICCThe insurance cover in the present case is expressed in terms of the voyage itself. The above clause provides that the duration of the policy attached and commenced from the time the insured cargo left the warehouse, premises or place of storage at the place named in the policy and continued during the ordinary course of transit18. The expression in the ordinary course of transit mentioned in Clause 5 of the ICC cannot be divorced from the context and must be read along with the other conditions which appear in the policy document26. The appellant issued a policy cover to the respondent providing coverage for the transport of the helicopter from Langley to Bhopal. The helicopter was transported in a knocked down state by air through Cathay Pacific Airlines and reached New Delhi on 5 October 2005. It cleared customs on 13 October 2005 and on the same day, the respondent after taking possession of the cargo shifted it to the hangar at New Delhi. It is undisputed that at the time of customs clearance, no damage was reported. It was when the helicopter was inspected by the representative of the manufacturer during a routine inspection on 21 October 2005 that damage was reported to the window of the crew door of the helicopter. In a communication dated 21 October 2005 addressed by the representative of the manufacturer for placing an order for a crew door window, it was stated that further unpacking of the Fuselage Assembly was carried out and no other damage was evident27. The contents of the above letter negate the submission of the learned counsel for the respondent that the helicopter was shifted to the hangar for the purposes of assembling and preparing it for further transportation by road to Bhopal. It is evident from the above letter that the intention of the respondent was to assemble the helicopter at New Delhi and to fly it to Bhopal. The helicopter was transported from Langley in a knocked down state. The specific act of unpacking the cargo at New Delhi in furtherance of the purpose of assembling it for the flight to Bhopal indicated that the transportation of the cargo in a knocked down state had come to an end. The act of unpacking the helicopter for the purpose of assembling it for undertaking the flight to Bhopal was unrelated to the usual or ordinary method of pursuing the transportation of the cargo insured. The policy covered only those risks that were associated with the transportation of the helicopter and did not cover the risks associated with the flight or operation of the helicopter29. In the present case, the transit policy only covered such risks that may have arisen by the venture or operation being carried out in the usual or ordinary manner and did not include risks that were out of the scope of the policy. Change in the character of the helicopter from a knocked down state to a ready to fly state exposed the appellant to risks not contemplated by the parties under the policy. The effect of the alteration of the subject-matter insured is outside the scope of the agreed cover and brings an end to the policy. Once the nature of the subject- matter was altered, the cargo cannot be said to be in transit and the appellant is absolved from any liability arising out of any subsequent damage to the consignment. Exposure to risks associated with the flight substantially and unnecessarily added to the risks of the journey that were not covered by the policy. Accordingly, the submission of the learned counsel for the respondent that the cover against risks would be provided till the time the helicopter was not delivered at the final destination of Bhopal is unsustainable. Once the respondent intended to alter the subject-matter it becomes irrelevant to determine whether the hangar at New Delhi was a transit store or the final destination of deliveryClause 5.1.2 of the ICC provides that the policy may terminate upon the assured choosing to use an alternate place of delivery, prior to the destination named therein for one of two purposes, either for storage other than in the ordinary course of transit or for allocation or distribution of the cargo. The purpose of a transit policy is to cover the carriage of goods to the final destination. In the present case, storage of the helicopter in the hangar at New Delhi awaiting replacement of the spare window cannot be said to be incidental or in furtherance of the carriage of the goods to the ultimate destination. It would be unreasonable to suggest that the transit policy intended to cover indefinite storage of the helicopter at the hangar in New Delhi not brought about by the requirements of transport but determined by commercial convenience of the respondent. The degree of deviation of storing the helicopter at the hangar awaiting replacement of the spare window is at variance with the ordinary course of transit. Ordinary course of transit is the period when the cargo is in the course of transportation, and not in the immediate control of the buyer or seller. After the goods cleared customs, the helicopter was in possession of the respondent and it took a voluntary decision of retaining the helicopter in New Delhi on the basis of commercial convenience. As found in the earlier part of the judgment, the intention of the respondent was not to prepare the helicopter for transportation by road to Bhopal but to assemble the helicopter in New Delhi and fly it to Bhopal. Once the respondent decided to leave the goods in the hangar at New Delhi for its commercial convenience not associated with or in furtherance of the requirements of their carriage to Bhopal, the transit insurance endedIn the present case, the insured voluntarily decided to store the helicopter in the hangar at New Delhi out of commercial convenience and not in furtherance of the transit. In addition, the insured by assembling the knocked down helicopter for the purposes of flying it to Bhopal changed the nature of the consignment and exposed the appellant to operational risks beyond the scope of the policyIn the present case, if the respondent decided to retain the helicopter in New Delhi awaiting the arrival of the replacement window from USA, it could have issued a notice to the underwriters to continue the cover of carriage till the time the repairs were carried out. However, the respondent did not issue any notice seeking extension of the insurance cover under Clause 636. For the respondent to prove its case, a mere assertion that the loss incurred during the course of transit is not sufficient. The burden of proof lies on the respondent to show that the loss incurred was covered within the terms of the policy and that on a balance of probabilities there existed a proximate cause between the loss incurred and the helicopter being in transit. The respondent has adduced no evidence to supports its case38. It is evident from the contents of the above letter written by the the Directorate of Aviation, Government of Madhya Pradesh that the respondent did not challenge the surveyors report. Instead it accepted the finding of the surveyor that the damage to the helicopter took place only in November 2005, after the helicopter had been cleared through customs on 13 October 2005. Accepting the report of the surveyor, the Directorate of Civil Aviation of the Government of Madhya Pradesh sought to contend that the ordinary course of transit extended until Bhopal. This admission is contrary to the stance taken by the respondent before this Court that the damage to the helicopter occurred during the course of transit before the cargo was cleared from customs at Delhi. The learned counsel for the respondent has in his written submissions before this Court argued that since the procurement and supply of the new window was taking considerable time, the helicopter was kept in storage in the meantime in the hangar was covered with a bubble sheet and packing material. The respondent has on the balance of probabilities failed discharge its burden that the damage to the helicopter incurred during the course of transit. No proximate cause has been shown between the damage to the helicopter and the helicopter being in a state of transit. Hence, it is difficult for this Court to come to the conclusion that the damage to the helicopter incurred during the course of transit39. The NCDRC has in the impugned judgment proceeded on the understanding that since customs clearance is essentially at New Delhi, it has to be construed and interpreted in the right spirit that the commencement of the transit is at Langley and ordinary course of transit includes the staying at Delhi for customs clearances and for assembling . The NCDRC has further noted that there existed no ambiguity regarding the commencement of the risk at Langley and ending at the final destination i.e. Bhopal. According to the NCDRC, the expiry of thirty days after completion of discharge at the final port of discharge should be essentially interpreted as thirty days after reaching Bhopal and not thirty days during the course of transit which included the halt at New Delhi. The line of approach adopted by the NCDRC is evidently incorrect. While construing a contract of insurance, it is not permissible for a court to substitute the terms of the contract. The court should always interpret the words used in a contract in a manner that will best express the intention of the parties. The NCDRC has incorrectly proceeded on the path that the ordinary course of transit would include assembling of the helicopter at New Delhi and the policy covered all risks till the time the helicopter did not reach Bhopal. The risks associated with the assembled helicopter were not covered within the purview of the policy, as the subject-matter which had been insured was a helicopter being transported in a packaged knocked down condition. The act of assembling the helicopter with a view to having it flown under its own power, instead of transporting the packaged knocked down helicopter further to Bhopal by road, would not constitute as storage in the ordinary course of transit. The interpretation adopted by the NCDRC strikes fundamentally at the purpose of the policy and is not in accordance with sound commercial principles. The interpretation altered the character of the risk insured beyond the scope of the policy as agreed between the parties.40. We are hence of the view that the interpretation placed on the terms of the insurance policy was manifestly incorrect and that the impugned orders of the NCDRC and SCDRC are unsustainable.	1	10,450	2,139	### 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: show that the loss incurred was covered within the terms of the policy and that on a balance of probabilities there existed a proximate cause between the loss incurred and the helicopter being in transit. The respondent has adduced no evidence to supports its case. 37. After the respondent informed the appellant on 23 November 2005 that upon inspection, the tail boom of the helicopter was found to be damaged, the appellant promptly appointed a surveyor, who in its report dated 14 March 2006 observed: During our re-visit along with Insureds engineer we observed that the Tail boom was badly dented (apart from the crack in the glass of pilot side window initially surveyed by us) at the point where it joins the main frame. The frame was also affected and bulged inside. It appeared from the nature of damage that some hard and/or sharp object hit the frame whilst it was parked at hanger... (Emphasis supplied) Based on the above, the surveyor concluded thus: The damage to the tail boom had occurred at Hangar #3, Bay 15/33 IGI Airport Delhi after substantial assembly but prior to test flight and not during transit and hence would not fall under the purview of marine insurance policy as issued to the insured. On the basis of the surveyors report, the appellant rejected the claim of the respondent on 10 April 2006. By a letter dated 11 April 2006, the Directorate of Aviation, Government of Madhya Pradesh responded to the above letter on behalf of the respondent stating: It is very important to mention here that the investigation by your surveyors and their interviews with technical representatives of Acro Helipro, scrutiny of customs documents, physical inspection of helicopter at Palam airport etc. confirms that this damage to the helicopter was caused in Nov? 05 whereas this helicopter was cleared from customs on 13 th Oct? 05. ... Though your findings of damage to helicopter in Nov? 05 i.e. after a month after receipt of helicopter from customs are based on facts but here we wish to inform you that our policy for transit is up to Bhopal and therefore damage to the helicopter after a month from receipt of the customs i.e. in the month of Nov? 05 is also covered under transit. (Emphasis supplied) 38. It is evident from the contents of the above letter written by the the Directorate of Aviation, Government of Madhya Pradesh that the respondent did not challenge the surveyors report. Instead it accepted the finding of the surveyor that the damage to the helicopter took place only in November 2005, after the helicopter had been cleared through customs on 13 October 2005. Accepting the report of the surveyor, the Directorate of Civil Aviation of the Government of Madhya Pradesh sought to contend that the ordinary course of transit extended until Bhopal. This admission is contrary to the stance taken by the respondent before this Court that the damage to the helicopter occurred during the course of transit before the cargo was cleared from customs at Delhi. The learned counsel for the respondent has in his written submissions before this Court argued that since the procurement and supply of the new window was taking considerable time, the helicopter was kept in storage in the meantime in the hangar was covered with a bubble sheet and packing material. The respondent has on the balance of probabilities failed discharge its burden that the damage to the helicopter incurred during the course of transit. No proximate cause has been shown between the damage to the helicopter and the helicopter being in a state of transit. Hence, it is difficult for this Court to come to the conclusion that the damage to the helicopter incurred during the course of transit. 39. The NCDRC has in the impugned judgment proceeded on the understanding that since customs clearance is essentially at New Delhi, it has to be construed and interpreted in the right spirit that the commencement of the transit is at Langley and ordinary course of transit includes the staying at Delhi for customs clearances and for assembling . The NCDRC has further noted that there existed no ambiguity regarding the commencement of the risk at Langley and ending at the final destination i.e. Bhopal. According to the NCDRC, the expiry of thirty days after completion of discharge at the final port of discharge should be essentially interpreted as thirty days after reaching Bhopal and not thirty days during the course of transit which included the halt at New Delhi. The line of approach adopted by the NCDRC is evidently incorrect. While construing a contract of insurance, it is not permissible for a court to substitute the terms of the contract. The court should always interpret the words used in a contract in a manner that will best express the intention of the parties. The NCDRC has incorrectly proceeded on the path that the ordinary course of transit would include assembling of the helicopter at New Delhi and the policy covered all risks till the time the helicopter did not reach Bhopal. The risks associated with the assembled helicopter were not covered within the purview of the policy, as the subject-matter which had been insured was a helicopter being transported in a packaged knocked down condition. The act of assembling the helicopter with a view to having it flown under its own power, instead of transporting the packaged knocked down helicopter further to Bhopal by road, would not constitute as storage in the ordinary course of transit. The interpretation adopted by the NCDRC strikes fundamentally at the purpose of the policy and is not in accordance with sound commercial principles. The interpretation altered the character of the risk insured beyond the scope of the policy as agreed between the parties. 40. We are hence of the view that the interpretation placed on the terms of the insurance policy was manifestly incorrect and that the impugned orders of the NCDRC and SCDRC are unsustainable. ### Response: 1 ### Explanation: the hangar in New Delhi not brought about by the requirements of transport but determined by commercial convenience of the respondent. The degree of deviation of storing the helicopter at the hangar awaiting replacement of the spare window is at variance with the ordinary course of transit. Ordinary course of transit is the period when the cargo is in the course of transportation, and not in the immediate control of the buyer or seller. After the goods cleared customs, the helicopter was in possession of the respondent and it took a voluntary decision of retaining the helicopter in New Delhi on the basis of commercial convenience. As found in the earlier part of the judgment, the intention of the respondent was not to prepare the helicopter for transportation by road to Bhopal but to assemble the helicopter in New Delhi and fly it to Bhopal. Once the respondent decided to leave the goods in the hangar at New Delhi for its commercial convenience not associated with or in furtherance of the requirements of their carriage to Bhopal, the transit insurance endedIn the present case, the insured voluntarily decided to store the helicopter in the hangar at New Delhi out of commercial convenience and not in furtherance of the transit. In addition, the insured by assembling the knocked down helicopter for the purposes of flying it to Bhopal changed the nature of the consignment and exposed the appellant to operational risks beyond the scope of the policyIn the present case, if the respondent decided to retain the helicopter in New Delhi awaiting the arrival of the replacement window from USA, it could have issued a notice to the underwriters to continue the cover of carriage till the time the repairs were carried out. However, the respondent did not issue any notice seeking extension of the insurance cover under Clause 636. For the respondent to prove its case, a mere assertion that the loss incurred during the course of transit is not sufficient. The burden of proof lies on the respondent to show that the loss incurred was covered within the terms of the policy and that on a balance of probabilities there existed a proximate cause between the loss incurred and the helicopter being in transit. The respondent has adduced no evidence to supports its case38. It is evident from the contents of the above letter written by the the Directorate of Aviation, Government of Madhya Pradesh that the respondent did not challenge the surveyors report. Instead it accepted the finding of the surveyor that the damage to the helicopter took place only in November 2005, after the helicopter had been cleared through customs on 13 October 2005. Accepting the report of the surveyor, the Directorate of Civil Aviation of the Government of Madhya Pradesh sought to contend that the ordinary course of transit extended until Bhopal. This admission is contrary to the stance taken by the respondent before this Court that the damage to the helicopter occurred during the course of transit before the cargo was cleared from customs at Delhi. The learned counsel for the respondent has in his written submissions before this Court argued that since the procurement and supply of the new window was taking considerable time, the helicopter was kept in storage in the meantime in the hangar was covered with a bubble sheet and packing material. The respondent has on the balance of probabilities failed discharge its burden that the damage to the helicopter incurred during the course of transit. No proximate cause has been shown between the damage to the helicopter and the helicopter being in a state of transit. Hence, it is difficult for this Court to come to the conclusion that the damage to the helicopter incurred during the course of transit39. The NCDRC has in the impugned judgment proceeded on the understanding that since customs clearance is essentially at New Delhi, it has to be construed and interpreted in the right spirit that the commencement of the transit is at Langley and ordinary course of transit includes the staying at Delhi for customs clearances and for assembling . The NCDRC has further noted that there existed no ambiguity regarding the commencement of the risk at Langley and ending at the final destination i.e. Bhopal. According to the NCDRC, the expiry of thirty days after completion of discharge at the final port of discharge should be essentially interpreted as thirty days after reaching Bhopal and not thirty days during the course of transit which included the halt at New Delhi. The line of approach adopted by the NCDRC is evidently incorrect. While construing a contract of insurance, it is not permissible for a court to substitute the terms of the contract. The court should always interpret the words used in a contract in a manner that will best express the intention of the parties. The NCDRC has incorrectly proceeded on the path that the ordinary course of transit would include assembling of the helicopter at New Delhi and the policy covered all risks till the time the helicopter did not reach Bhopal. The risks associated with the assembled helicopter were not covered within the purview of the policy, as the subject-matter which had been insured was a helicopter being transported in a packaged knocked down condition. The act of assembling the helicopter with a view to having it flown under its own power, instead of transporting the packaged knocked down helicopter further to Bhopal by road, would not constitute as storage in the ordinary course of transit. The interpretation adopted by the NCDRC strikes fundamentally at the purpose of the policy and is not in accordance with sound commercial principles. The interpretation altered the character of the risk insured beyond the scope of the policy as agreed between the parties.40. We are hence of the view that the interpretation placed on the terms of the insurance policy was manifestly incorrect and that the impugned orders of the NCDRC and SCDRC are unsustainable.
Jarnail Singh and Ors Vs. Bhagwanti (D) thr. L.Rs. and Ors	of the said Will nor was he on visiting terms with him. It was admitted that the only relationship that existed between the parties was that of co-villagers. It was also admitted that Jagan Nath was illiterate. DW-3 vaguely put forth the date of execution to be somewhere 11 years ago. 16. The law regarding proof of valid Will is well settled by this Court in catena of judgments. Section 63 of the Indian Succession Act 1925 mandates that the Will shall be attested by two or more witnesses. As per Section 68 of the Evidence Act if only one attesting witness is alive the execution of the Will can be proved by only one attesting witness subject to the process of the Court and capable of giving evidence. In this case the only attesting witness DW-3 Sadhu Singhs evidence does not inspire confidence in the mind of the Court and more so it creates suspicion in the mind of the Court with regard to execution and genuineness of the Will. Coupled with this the evidence of Defendant Jarnail Singh created all the more cloud on the execution of Will. Jarnail Singh deposed that in lieu of services rendered by him Jagan Nath executed the Will. But the cross examination of Jarnail Singh reveals that he was in Army from the year 1960-1979, whereas the Will was executed in the year 1970. In view of the same it appears highly improbable that Jarnail Singh had an opportunity to render any service to Jagan Nath. Apart from Jarnail Singh none of the other family members entered into the witness box and gave statement in support of services rendered by them. Moreover evidence reveals that Jagan Nath was a Sarpanch of the village and owned 12 Killas of land. Hence, it is highly unbelievable that he depended on Defendants who are neither related to Jagan Nath nor even belongs to the same community. 17. This Court in the case of Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria and Ors. (2008) 15 SCC 365 , held that: It is trite law that execution of a Will must be held to have been proved not only when the statutory requirements for proving the will are satisfied but the will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record, the Court may take aid of the presumptive evidences also. 18. The evidence of the Defendants and their conduct create number of suspicious circumstances around the Will which are detailed in the judgment of Trial Court & first appellate court. The Defendants could not prove the due execution of the Will either as mandated under the Indian Succession Act or as per the provisions of Indian Evidence Act. 19. In the pending appeal before us the Appellants wanted to mark certain additional documents in support of the execution of the Will. We are not inclined to look into those documents as this Court generally will not interfere with the concurrent findings of facts of three courts unless there are special circumstances warranting interference of this Court. The Appellants were not able to convince this Court that the findings of the Courts below are perverse, contrary to settled legal position or grave injustice has been done in view of non-consideration of important piece of evidence. We are in total agreement with the Courts below that the Defendants failed to prove the execution and genuineness of the Will and such a finding does not call for any interference from this Court. This issue is answered against the Appellants/Defendants. 20. In response to Issue No. 2, on this aspect, the Trial Court has held that the Plaintiffs could prove the relationship with Jagan Nath and they are entitled for possession of the suit Schedule property. But the 1st appellate Court has arrived at a different finding that the Plaintiffs were not able to prove that they are granddaughters of Kirpo and whether Kirpo was real sister of Mangal who was father of Jagan Nath. On the contrary, High Court has observed that Jagan Nath was undisputedly owner of the suit property and when the Will in favour of Defendants is not proved, then Plaintiffs as cognates, inherited the suit property from Jagan Nath and became owner thereof and are therefore entitled to seek possession of the suit property from the Defendants. Whereas, admittedly Defendants have no relationship with Jagan Nath. It was contended on behalf of the Appellants that the High Court erred in reversing the finding of fact by the appellate court which the High Court ought not have interfered with. We are unable to appreciate the argument advanced on this aspect as the conclusion of the Trial Court as well as the Appellate Court is not only based on the admission made by the Defendants with regard to the relationship of Plaintiffs with Jagan Nath, but also taking into consideration the independent Will dated 17.04.1953 executed by Khusi Ram - cousin brother of Jagan Nath in favour of Plaintiff No. 1 and 3, the relationship between the Plaintiffs and other family members was clearly mentioned and the subsequent mutations carried out pursuant to the Will strengthen the case of the Defendants. The pedigree table also reveals that Khusi Ram and Jagan Nath have died issueless which is an admitted fact thereby leaving Kirpo as the only existing branch of the family. But since Kirpo and her son Janti Ram have predeceased Jagan Nath, the Respondents/plaintiffs are the nearest cognates of Jagan Nath who had no surviving agnate. The High Court was perfectly right in interfering with this question of fact more so when the opinion of the 1st appellate court was perverse and contrary to material available on record. Issue is accordingly answered against Appellants/Defendants. 21. In the light of the above findings on issues 1 and 2 we are of the considered opinion that the judgment and decree of the High Court requires no interference from this Court.	0[ds]16. The law regarding proof of valid Will is well settled by this Court in catena of judgments. Section 63 of the Indian Succession Act 1925 mandates that the Will shall be attested by two or more witnesses. As per Section 68 of the Evidence Act if only one attesting witness is alive the execution of the Will can be proved by only one attesting witness subject to the process of the Court and capable of giving evidence. In this case the only attesting witness DW-3 Sadhu Singhs evidence does not inspire confidence in the mind of the Court and more so it creates suspicion in the mind of the Court with regard to execution and genuineness of the Will. Coupled with this the evidence of Defendant Jarnail Singh created all the more cloud on the execution of Will. Jarnail Singh deposed that in lieu of services rendered by him Jagan Nath executed the Will. But the cross examination of Jarnail Singh reveals that he was in Army from the year 1960-1979, whereas the Will was executed in the year 1970. In view of the same it appears highly improbable that Jarnail Singh had an opportunity to render any service to Jagan Nath. Apart from Jarnail Singh none of the other family members entered into the witness box and gave statement in support of services rendered by them. Moreover evidence reveals that Jagan Nath was a Sarpanch of the village and owned 12 Killas of land. Hence, it is highly unbelievable that he depended on Defendants who are neither related to Jagan Nath nor even belongs to the same community.18. The evidence of the Defendants and their conduct create number of suspicious circumstances around the Will which are detailed in the judgment of Trial Court & first appellate court. The Defendants could not prove the due execution of the Will either as mandated under the Indian Succession Act or as per the provisions of Indian Evidence Act.19. In the pending appeal before us the Appellants wanted to mark certain additional documents in support of the execution of the Will. We are not inclined to look into those documents as this Court generally will not interfere with the concurrent findings of facts of three courts unless there are special circumstances warranting interference of this Court. The Appellants were not able to convince this Court that the findings of the Courts below are perverse, contrary to settled legal position or grave injustice has been done in view of non-consideration of important piece of evidence. We are in total agreement with the Courts below that the Defendants failed to prove the execution and genuineness of the Will and such a finding does not call for any interference from this Court. This issue is answered against the Appellants/Defendants.20. In response to Issue No. 2, on this aspect, the Trial Court has held that the Plaintiffs could prove the relationship with Jagan Nath and they are entitled for possession of the suit Schedule property. But the 1st appellate Court has arrived at a different finding that the Plaintiffs were not able to prove that they are granddaughters of Kirpo and whether Kirpo was real sister of Mangal who was father of Jagan Nath. On the contrary, High Court has observed that Jagan Nath was undisputedly owner of the suit property and when the Will in favour of Defendants is not proved, then Plaintiffs as cognates, inherited the suit property from Jagan Nath and became owner thereof and are therefore entitled to seek possession of the suit property from the Defendants. Whereas, admittedly Defendants have no relationship with Jagan Nath. It was contended on behalf of the Appellants that the High Court erred in reversing the finding of fact by the appellate court which the High Court ought not have interfered with. We are unable to appreciate the argument advanced on this aspect as the conclusion of the Trial Court as well as the Appellate Court is not only based on the admission made by the Defendants with regard to the relationship of Plaintiffs with Jagan Nath, but also taking into consideration the independent Will dated 17.04.1953 executed by Khusi Ram - cousin brother of Jagan Nath in favour of Plaintiff No. 1 and 3, the relationship between the Plaintiffs and other family members was clearly mentioned and the subsequent mutations carried out pursuant to the Will strengthen the case of the Defendants. The pedigree table also reveals that Khusi Ram and Jagan Nath have died issueless which is an admitted fact thereby leaving Kirpo as the only existing branch of the family. But since Kirpo and her son Janti Ram have predeceased Jagan Nath, the Respondents/plaintiffs are the nearest cognates of Jagan Nath who had no surviving agnate. The High Court was perfectly right in interfering with this question of fact more so when the opinion of the 1st appellate court was perverse and contrary to material available on record. Issue is accordingly answered against Appellants/Defendants.21. In the light of the above findings on issues 1 and 2 we are of the considered opinion that the judgment and decree of the High Court requires no interference from this Court	0	2,777	911	### 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 said Will nor was he on visiting terms with him. It was admitted that the only relationship that existed between the parties was that of co-villagers. It was also admitted that Jagan Nath was illiterate. DW-3 vaguely put forth the date of execution to be somewhere 11 years ago. 16. The law regarding proof of valid Will is well settled by this Court in catena of judgments. Section 63 of the Indian Succession Act 1925 mandates that the Will shall be attested by two or more witnesses. As per Section 68 of the Evidence Act if only one attesting witness is alive the execution of the Will can be proved by only one attesting witness subject to the process of the Court and capable of giving evidence. In this case the only attesting witness DW-3 Sadhu Singhs evidence does not inspire confidence in the mind of the Court and more so it creates suspicion in the mind of the Court with regard to execution and genuineness of the Will. Coupled with this the evidence of Defendant Jarnail Singh created all the more cloud on the execution of Will. Jarnail Singh deposed that in lieu of services rendered by him Jagan Nath executed the Will. But the cross examination of Jarnail Singh reveals that he was in Army from the year 1960-1979, whereas the Will was executed in the year 1970. In view of the same it appears highly improbable that Jarnail Singh had an opportunity to render any service to Jagan Nath. Apart from Jarnail Singh none of the other family members entered into the witness box and gave statement in support of services rendered by them. Moreover evidence reveals that Jagan Nath was a Sarpanch of the village and owned 12 Killas of land. Hence, it is highly unbelievable that he depended on Defendants who are neither related to Jagan Nath nor even belongs to the same community. 17. This Court in the case of Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria and Ors. (2008) 15 SCC 365 , held that: It is trite law that execution of a Will must be held to have been proved not only when the statutory requirements for proving the will are satisfied but the will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record, the Court may take aid of the presumptive evidences also. 18. The evidence of the Defendants and their conduct create number of suspicious circumstances around the Will which are detailed in the judgment of Trial Court & first appellate court. The Defendants could not prove the due execution of the Will either as mandated under the Indian Succession Act or as per the provisions of Indian Evidence Act. 19. In the pending appeal before us the Appellants wanted to mark certain additional documents in support of the execution of the Will. We are not inclined to look into those documents as this Court generally will not interfere with the concurrent findings of facts of three courts unless there are special circumstances warranting interference of this Court. The Appellants were not able to convince this Court that the findings of the Courts below are perverse, contrary to settled legal position or grave injustice has been done in view of non-consideration of important piece of evidence. We are in total agreement with the Courts below that the Defendants failed to prove the execution and genuineness of the Will and such a finding does not call for any interference from this Court. This issue is answered against the Appellants/Defendants. 20. In response to Issue No. 2, on this aspect, the Trial Court has held that the Plaintiffs could prove the relationship with Jagan Nath and they are entitled for possession of the suit Schedule property. But the 1st appellate Court has arrived at a different finding that the Plaintiffs were not able to prove that they are granddaughters of Kirpo and whether Kirpo was real sister of Mangal who was father of Jagan Nath. On the contrary, High Court has observed that Jagan Nath was undisputedly owner of the suit property and when the Will in favour of Defendants is not proved, then Plaintiffs as cognates, inherited the suit property from Jagan Nath and became owner thereof and are therefore entitled to seek possession of the suit property from the Defendants. Whereas, admittedly Defendants have no relationship with Jagan Nath. It was contended on behalf of the Appellants that the High Court erred in reversing the finding of fact by the appellate court which the High Court ought not have interfered with. We are unable to appreciate the argument advanced on this aspect as the conclusion of the Trial Court as well as the Appellate Court is not only based on the admission made by the Defendants with regard to the relationship of Plaintiffs with Jagan Nath, but also taking into consideration the independent Will dated 17.04.1953 executed by Khusi Ram - cousin brother of Jagan Nath in favour of Plaintiff No. 1 and 3, the relationship between the Plaintiffs and other family members was clearly mentioned and the subsequent mutations carried out pursuant to the Will strengthen the case of the Defendants. The pedigree table also reveals that Khusi Ram and Jagan Nath have died issueless which is an admitted fact thereby leaving Kirpo as the only existing branch of the family. But since Kirpo and her son Janti Ram have predeceased Jagan Nath, the Respondents/plaintiffs are the nearest cognates of Jagan Nath who had no surviving agnate. The High Court was perfectly right in interfering with this question of fact more so when the opinion of the 1st appellate court was perverse and contrary to material available on record. Issue is accordingly answered against Appellants/Defendants. 21. In the light of the above findings on issues 1 and 2 we are of the considered opinion that the judgment and decree of the High Court requires no interference from this Court. ### Response: 0 ### Explanation: 16. The law regarding proof of valid Will is well settled by this Court in catena of judgments. Section 63 of the Indian Succession Act 1925 mandates that the Will shall be attested by two or more witnesses. As per Section 68 of the Evidence Act if only one attesting witness is alive the execution of the Will can be proved by only one attesting witness subject to the process of the Court and capable of giving evidence. In this case the only attesting witness DW-3 Sadhu Singhs evidence does not inspire confidence in the mind of the Court and more so it creates suspicion in the mind of the Court with regard to execution and genuineness of the Will. Coupled with this the evidence of Defendant Jarnail Singh created all the more cloud on the execution of Will. Jarnail Singh deposed that in lieu of services rendered by him Jagan Nath executed the Will. But the cross examination of Jarnail Singh reveals that he was in Army from the year 1960-1979, whereas the Will was executed in the year 1970. In view of the same it appears highly improbable that Jarnail Singh had an opportunity to render any service to Jagan Nath. Apart from Jarnail Singh none of the other family members entered into the witness box and gave statement in support of services rendered by them. Moreover evidence reveals that Jagan Nath was a Sarpanch of the village and owned 12 Killas of land. Hence, it is highly unbelievable that he depended on Defendants who are neither related to Jagan Nath nor even belongs to the same community.18. The evidence of the Defendants and their conduct create number of suspicious circumstances around the Will which are detailed in the judgment of Trial Court & first appellate court. The Defendants could not prove the due execution of the Will either as mandated under the Indian Succession Act or as per the provisions of Indian Evidence Act.19. In the pending appeal before us the Appellants wanted to mark certain additional documents in support of the execution of the Will. We are not inclined to look into those documents as this Court generally will not interfere with the concurrent findings of facts of three courts unless there are special circumstances warranting interference of this Court. The Appellants were not able to convince this Court that the findings of the Courts below are perverse, contrary to settled legal position or grave injustice has been done in view of non-consideration of important piece of evidence. We are in total agreement with the Courts below that the Defendants failed to prove the execution and genuineness of the Will and such a finding does not call for any interference from this Court. This issue is answered against the Appellants/Defendants.20. In response to Issue No. 2, on this aspect, the Trial Court has held that the Plaintiffs could prove the relationship with Jagan Nath and they are entitled for possession of the suit Schedule property. But the 1st appellate Court has arrived at a different finding that the Plaintiffs were not able to prove that they are granddaughters of Kirpo and whether Kirpo was real sister of Mangal who was father of Jagan Nath. On the contrary, High Court has observed that Jagan Nath was undisputedly owner of the suit property and when the Will in favour of Defendants is not proved, then Plaintiffs as cognates, inherited the suit property from Jagan Nath and became owner thereof and are therefore entitled to seek possession of the suit property from the Defendants. Whereas, admittedly Defendants have no relationship with Jagan Nath. It was contended on behalf of the Appellants that the High Court erred in reversing the finding of fact by the appellate court which the High Court ought not have interfered with. We are unable to appreciate the argument advanced on this aspect as the conclusion of the Trial Court as well as the Appellate Court is not only based on the admission made by the Defendants with regard to the relationship of Plaintiffs with Jagan Nath, but also taking into consideration the independent Will dated 17.04.1953 executed by Khusi Ram - cousin brother of Jagan Nath in favour of Plaintiff No. 1 and 3, the relationship between the Plaintiffs and other family members was clearly mentioned and the subsequent mutations carried out pursuant to the Will strengthen the case of the Defendants. The pedigree table also reveals that Khusi Ram and Jagan Nath have died issueless which is an admitted fact thereby leaving Kirpo as the only existing branch of the family. But since Kirpo and her son Janti Ram have predeceased Jagan Nath, the Respondents/plaintiffs are the nearest cognates of Jagan Nath who had no surviving agnate. The High Court was perfectly right in interfering with this question of fact more so when the opinion of the 1st appellate court was perverse and contrary to material available on record. Issue is accordingly answered against Appellants/Defendants.21. In the light of the above findings on issues 1 and 2 we are of the considered opinion that the judgment and decree of the High Court requires no interference from this Court
Controller Of Estate Duty Vs. Kamlavati And Shri Jai Gopal Mehra	other facts and circumstances of the case, other than those of the factum of gift, then it cannot be said that the donee had not retained the possession and enjoyment of the property to the entire exclusion of the donor, or, to the entire exclusion of the donor in any benefit to him by contract or otherwise. It makes no difference whether the donee is a partner in the firm from before or is taken as such at the time of the gift or he becomes a creditor of the partnership firm by allowing it to make use of the gifted property for the purposes of the partnership. It should be remembered as pointed out by Lindley on Partnership, twelfth edn., at page 178:" If a firm borrows money so as to be itself liable for it to the lender, the capital of the firm is no more increased than is the capital of an ordinary individual increased by his getting into debt. "8. Although as pointed out at page 357 " the capital of a partnership is not therefore the same as its property " even treating it as the partnership property, the partnership does not belong to a co-partner in the sense of his being a co-owner. The partnership firm is not a legal entity in the sense of having a legal personality of its own different from that of the partners. But no partner can claim a share in the partnership property according to his share in the partnership. A creditor of the partnership is entitled to get back the whole of his property on dissolution of the firm or otherwise, while a partner is entitled to get a share in the net assets of the property realized on the winding up of the partnership9. Mr. Desai heavily relied upon the decision of the Gujarat High Court in the case of Sakarlal Chunilal v. CED [1975] 98 ITR 610. A distinction was drawn after distinguishing the decision of this court in Gounders case [1973] 88 ITR 448 between the gifts of Rs. 2, 00, 000, each in favour of the two donees, and the gifts of the sum of Rs. 1, 20, 000 and the sum of Rs. 1, 99, 500 gifted to the other donees on the ground that the former was not an absolute gift but was subject to the right of the partnership firm while the latter assumed the character of first there being an absolute gift and thereafter parting with a portion of the enjoyment and benefit in the gifted property in favour of the donor by investing the money in the partnership. In the enunciation of the principle of law there is no appreciable, as there could not be any, difference between what was said in Gounders case by this court and what has been said by the learned Chief Justice in the Gujarat case ([1975] 98 ITR 610 ). But in the application of the principle to the facts of the two aggregate sums of money, it was possible to take a different view. In relation to the gifts of Rs. 1, 20, 000 it was possible to take a view that it was a part and parcel of the same transaction, namely, the receipt of the money by the donees by gift and their investing the same in the partnership firm. So was it possible in regard to the sum of Rs. 1, 99, 500. However, a different view was taken by the High Court. But in the instant case it is clear that the ratio of the decisions of this court referred to above is squarely applicable and the Tribunal as well as the High Court was right in holding that no estate duty could be charged in respect of the two sums of money, viz., Rs. 1, 00, 000 and Rs. 50, 000Similarly in the application of the ratio some difference of opinion will appear to have been expressed by the High Courts in the case of CED v. Chaman Lal Bery [1977] 106 ITR 865 (All) , CED v. S. V. Kapadia [1977] 108 ITR 1008 (Cal), CED v. S. A. Rahman Beevi [1978] 111 ITR 422 (Mad) and CED v. V. S. Suryanarayanan [1978] 114 ITR 599 (Mad). It is not necessary for us to enter into the fine distinction drawn by the High Courts in each of the cases referred to above. But we want to emphasise that the principles of law laid down by this court in several decisions which we have reviewed in this judgment with some further clarification and elucidation should be carefully and broadly applied to the facts of each case without doing too much of dichotomy and hair splitting of facts so as not to easily apply or not to apply the provision of law contained in s. 10 of the Act10. The facts of Civil Appeal 2528 of 1972 are that in April or May, 1958, Jaishi Ram, the deceased, made gifts of Rs. 20, 000 each in favour of his son, Jagdish Chand, and his four daughters-in-law. The donees invested the entire sum of Rs. 1, 00, 000 gifted to them in the firm in which Jaishi Ram was a partner. Jaishi Ram died on October 23, 1961. It appears these donees were not partners in the firm nor were they taken as such after the gifts were made in their favour. Yet, applying the same principle of law, the Tribunal as well as the High Court has held that the accountable person is not liable to pay estate duty on the sum of Rs. 1, 00, 000. Here the donees remained creditors and the sums gifted were already being utilised by the firm. The same remained being utilised. Squarely Munros ratio [1934] AC 61 ; 2 EDC 462 (PC) is applicable. In our opinion, this case is on a stronger footing than that of Civil Appeal 2527, as was rightly conceded by Mr. S. T. Desai also.	0[ds]To avoid the conflict in the application of the ratio of the various Supreme Court cases as seems to have been done by some of the High Courts, we would like to clarify and elucidate some of the aspects and facets of the matter a bit further. When a property is gifted by a donor the possession and enjoyment of which is allowed to a partnership firm in which the donor is a partner, then the mere fact of the donor sharing the enjoyment or the benefit in the property is not sufficient for the application of s. 10 of the Act until and unless such enjoyment or benefit is clearly referable to the gift, i.e , to the parting with such enjoyment or benefit by the donee or permitting the donor to share them out of the bundle of rights gifted in the property. If the possession, enjoyment or benefit of the donor in the property is consistent with the other facts and circumstances of the case, other than those of the factum of gift, then it cannot be said that the donee had not retained the possession and enjoyment of the property to the entire exclusion of the donor, or, to the entire exclusion of the donor in any benefit to him by contract or otherwise. It makes no difference whether the donee is a partner in the firm from before or is taken as such at the time of the gift or he becomes a creditor of the partnership firm by allowing it to make use of the gifted property for the purposes of thein the instant case it is clear that the ratio of the decisions of this court referred to above is squarely applicable and the Tribunal as well as the High Court was right in holding that no estate duty could be charged in respect of the two sums of money, viz., Rs. 1, 00, 000 and Rs. 50,is not necessary for us to enter into the fine distinction drawn by the High Courts in each of the cases referred to above. But we want to emphasise that the principles of law laid down by this court in several decisions which we have reviewed in this judgment with some further clarification and elucidation should be carefully and broadly applied to the facts of each case without doing too much of dichotomy and hair splitting of facts so as not to easily apply or not to apply the provision of law contained in s. 10 of thefacts of Civil Appeal 2528 of 1972 are that in April or May, 1958, Jaishi Ram, the deceased, made gifts of Rs. 20, 000 each in favour of his son, Jagdish Chand, and his four daughters-in-law. The donees invested the entire sum of Rs. 1, 00, 000 gifted to them in the firm in which Jaishi Ram was a partner. Jaishi Ram died on October 23, 1961. It appears these donees were not partners in the firm nor were they taken as such after the gifts were made in their favour. Yet, applying the same principle of law, the Tribunal as well as the High Court has held that the accountable person is not liable to pay estate duty on the sum of Rs. 1, 00, 000. Here the donees remained creditors and the sums gifted were already being utilised by the firm. The same remained being utilised. Squarely Munros ratio [1934] AC 61 ; 2 EDC 462 (PC) is applicable. In our opinion, this case is on a stronger footing than that of Civil Appeal 2527, as was rightly conceded by Mr. S. T. Desai also.	0	4,420	665	### 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: other facts and circumstances of the case, other than those of the factum of gift, then it cannot be said that the donee had not retained the possession and enjoyment of the property to the entire exclusion of the donor, or, to the entire exclusion of the donor in any benefit to him by contract or otherwise. It makes no difference whether the donee is a partner in the firm from before or is taken as such at the time of the gift or he becomes a creditor of the partnership firm by allowing it to make use of the gifted property for the purposes of the partnership. It should be remembered as pointed out by Lindley on Partnership, twelfth edn., at page 178:" If a firm borrows money so as to be itself liable for it to the lender, the capital of the firm is no more increased than is the capital of an ordinary individual increased by his getting into debt. "8. Although as pointed out at page 357 " the capital of a partnership is not therefore the same as its property " even treating it as the partnership property, the partnership does not belong to a co-partner in the sense of his being a co-owner. The partnership firm is not a legal entity in the sense of having a legal personality of its own different from that of the partners. But no partner can claim a share in the partnership property according to his share in the partnership. A creditor of the partnership is entitled to get back the whole of his property on dissolution of the firm or otherwise, while a partner is entitled to get a share in the net assets of the property realized on the winding up of the partnership9. Mr. Desai heavily relied upon the decision of the Gujarat High Court in the case of Sakarlal Chunilal v. CED [1975] 98 ITR 610. A distinction was drawn after distinguishing the decision of this court in Gounders case [1973] 88 ITR 448 between the gifts of Rs. 2, 00, 000, each in favour of the two donees, and the gifts of the sum of Rs. 1, 20, 000 and the sum of Rs. 1, 99, 500 gifted to the other donees on the ground that the former was not an absolute gift but was subject to the right of the partnership firm while the latter assumed the character of first there being an absolute gift and thereafter parting with a portion of the enjoyment and benefit in the gifted property in favour of the donor by investing the money in the partnership. In the enunciation of the principle of law there is no appreciable, as there could not be any, difference between what was said in Gounders case by this court and what has been said by the learned Chief Justice in the Gujarat case ([1975] 98 ITR 610 ). But in the application of the principle to the facts of the two aggregate sums of money, it was possible to take a different view. In relation to the gifts of Rs. 1, 20, 000 it was possible to take a view that it was a part and parcel of the same transaction, namely, the receipt of the money by the donees by gift and their investing the same in the partnership firm. So was it possible in regard to the sum of Rs. 1, 99, 500. However, a different view was taken by the High Court. But in the instant case it is clear that the ratio of the decisions of this court referred to above is squarely applicable and the Tribunal as well as the High Court was right in holding that no estate duty could be charged in respect of the two sums of money, viz., Rs. 1, 00, 000 and Rs. 50, 000Similarly in the application of the ratio some difference of opinion will appear to have been expressed by the High Courts in the case of CED v. Chaman Lal Bery [1977] 106 ITR 865 (All) , CED v. S. V. Kapadia [1977] 108 ITR 1008 (Cal), CED v. S. A. Rahman Beevi [1978] 111 ITR 422 (Mad) and CED v. V. S. Suryanarayanan [1978] 114 ITR 599 (Mad). It is not necessary for us to enter into the fine distinction drawn by the High Courts in each of the cases referred to above. But we want to emphasise that the principles of law laid down by this court in several decisions which we have reviewed in this judgment with some further clarification and elucidation should be carefully and broadly applied to the facts of each case without doing too much of dichotomy and hair splitting of facts so as not to easily apply or not to apply the provision of law contained in s. 10 of the Act10. The facts of Civil Appeal 2528 of 1972 are that in April or May, 1958, Jaishi Ram, the deceased, made gifts of Rs. 20, 000 each in favour of his son, Jagdish Chand, and his four daughters-in-law. The donees invested the entire sum of Rs. 1, 00, 000 gifted to them in the firm in which Jaishi Ram was a partner. Jaishi Ram died on October 23, 1961. It appears these donees were not partners in the firm nor were they taken as such after the gifts were made in their favour. Yet, applying the same principle of law, the Tribunal as well as the High Court has held that the accountable person is not liable to pay estate duty on the sum of Rs. 1, 00, 000. Here the donees remained creditors and the sums gifted were already being utilised by the firm. The same remained being utilised. Squarely Munros ratio [1934] AC 61 ; 2 EDC 462 (PC) is applicable. In our opinion, this case is on a stronger footing than that of Civil Appeal 2527, as was rightly conceded by Mr. S. T. Desai also. ### Response: 0 ### Explanation: To avoid the conflict in the application of the ratio of the various Supreme Court cases as seems to have been done by some of the High Courts, we would like to clarify and elucidate some of the aspects and facets of the matter a bit further. When a property is gifted by a donor the possession and enjoyment of which is allowed to a partnership firm in which the donor is a partner, then the mere fact of the donor sharing the enjoyment or the benefit in the property is not sufficient for the application of s. 10 of the Act until and unless such enjoyment or benefit is clearly referable to the gift, i.e , to the parting with such enjoyment or benefit by the donee or permitting the donor to share them out of the bundle of rights gifted in the property. If the possession, enjoyment or benefit of the donor in the property is consistent with the other facts and circumstances of the case, other than those of the factum of gift, then it cannot be said that the donee had not retained the possession and enjoyment of the property to the entire exclusion of the donor, or, to the entire exclusion of the donor in any benefit to him by contract or otherwise. It makes no difference whether the donee is a partner in the firm from before or is taken as such at the time of the gift or he becomes a creditor of the partnership firm by allowing it to make use of the gifted property for the purposes of thein the instant case it is clear that the ratio of the decisions of this court referred to above is squarely applicable and the Tribunal as well as the High Court was right in holding that no estate duty could be charged in respect of the two sums of money, viz., Rs. 1, 00, 000 and Rs. 50,is not necessary for us to enter into the fine distinction drawn by the High Courts in each of the cases referred to above. But we want to emphasise that the principles of law laid down by this court in several decisions which we have reviewed in this judgment with some further clarification and elucidation should be carefully and broadly applied to the facts of each case without doing too much of dichotomy and hair splitting of facts so as not to easily apply or not to apply the provision of law contained in s. 10 of thefacts of Civil Appeal 2528 of 1972 are that in April or May, 1958, Jaishi Ram, the deceased, made gifts of Rs. 20, 000 each in favour of his son, Jagdish Chand, and his four daughters-in-law. The donees invested the entire sum of Rs. 1, 00, 000 gifted to them in the firm in which Jaishi Ram was a partner. Jaishi Ram died on October 23, 1961. It appears these donees were not partners in the firm nor were they taken as such after the gifts were made in their favour. Yet, applying the same principle of law, the Tribunal as well as the High Court has held that the accountable person is not liable to pay estate duty on the sum of Rs. 1, 00, 000. Here the donees remained creditors and the sums gifted were already being utilised by the firm. The same remained being utilised. Squarely Munros ratio [1934] AC 61 ; 2 EDC 462 (PC) is applicable. In our opinion, this case is on a stronger footing than that of Civil Appeal 2527, as was rightly conceded by Mr. S. T. Desai also.
National Insurance Co Vs. M/S Sajjan Kumar Aggarwalla	Dr. Arijit Pasayat, J. 1. Leave granted.2. Challenge in this appeal is to the order passed by the National Consumer Dispute Redressal Commission, New Delhi (in short the `National Commission). Challenge before the National Commission was to the order dated 25.7.2006 passed by State Consumer Dispute Redressal Commission, Orissa at Cuttack (in short the `State Commission). The appeal before the State Commission was directed against the order passed by District Consumer Dispute Redressal Forum, Angul (in short the `District Forum). 3. The controversy lies within a very narrow compass. The respondent filed a complaint alleging that his claim for compensation was repudiated without any valid reason. His case was that he is owner of Maruti Car No.QR-6/D/0121. The vehicle was the subject matter of insurance with the appellant. On 23.2.2001 the vehicle met with an accident in the State of Chattisgarh and it was badly damaged. On being informed, appellant deputed a Surveyor to conduct spot survey. According to the claimant there was an agreement that the claimant would be paid Rs.1,95,000/- for the damage of the vehicle. But the appellant repudiated the claim on the ground that the driver who was driving the vehicle did not have an effective driving license at the time of accident. Before the District Forum a copy of the driving license bearing No.1149 dated 22.7.1999 issued by the licensing authority, Dhenkanal was filed by respondent. It was stated that he was issued with light motor vehicle license on 22.10.1998 corresponding to learning license No.2081. On 1.8.2000 he was issued with learning license and was authorized to drive heavy goods vehicle and passenger vehicle. Requisition fees has been paid and, therefore, the driver had a valid driving license. This plea was accepted by the District Forum.The State Commission did not accept the appeal of the appellant on the ground that in view of the records produced by the respondent, there is no basis for repudiating the claim. The National Commission by the impugned order held that in view of the finding recorded by the State Commission which had verified the driving license of the driver Sachidananda Nayak, there was no scope for any interference. 4. It is pointed out by learned counsel for the appellant that a specific investigation was carried out by the Investigator i.e. one Mahesh Kumar Sahu who was appointed to verify the license in question. The investigator found that it was in the name of somebody else. Therefore, the District Forum as well as the State Commission and the National Commission should not have granted relief to the respondent. 5. Learned counsel for the respondent on the other hand submitted that the details supplied by the insured clearly indicated that driver had a valid driving license. 6. The controversy lies, as noted above, within a very narrow compass as to the person to whom D.L. No.1149 was issued. According to respondent it was issued to Sachidananda Nayak. But according to the information supplied by investigator of the appellant-company the license in question was issued to one Santosh Kumar Maharana.	1[ds]6. The controversy lies, as noted above, within a very narrow compass as to the person to whom D.L. No.1149 was issued. According to respondent it was issued to Sachidananda Nayak. But according to the information supplied by investigator of the appellant-company the license in question was issued to one Santosh Kumar Maharana.	1	563	64	### 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. Challenge in this appeal is to the order passed by the National Consumer Dispute Redressal Commission, New Delhi (in short the `National Commission). Challenge before the National Commission was to the order dated 25.7.2006 passed by State Consumer Dispute Redressal Commission, Orissa at Cuttack (in short the `State Commission). The appeal before the State Commission was directed against the order passed by District Consumer Dispute Redressal Forum, Angul (in short the `District Forum). 3. The controversy lies within a very narrow compass. The respondent filed a complaint alleging that his claim for compensation was repudiated without any valid reason. His case was that he is owner of Maruti Car No.QR-6/D/0121. The vehicle was the subject matter of insurance with the appellant. On 23.2.2001 the vehicle met with an accident in the State of Chattisgarh and it was badly damaged. On being informed, appellant deputed a Surveyor to conduct spot survey. According to the claimant there was an agreement that the claimant would be paid Rs.1,95,000/- for the damage of the vehicle. But the appellant repudiated the claim on the ground that the driver who was driving the vehicle did not have an effective driving license at the time of accident. Before the District Forum a copy of the driving license bearing No.1149 dated 22.7.1999 issued by the licensing authority, Dhenkanal was filed by respondent. It was stated that he was issued with light motor vehicle license on 22.10.1998 corresponding to learning license No.2081. On 1.8.2000 he was issued with learning license and was authorized to drive heavy goods vehicle and passenger vehicle. Requisition fees has been paid and, therefore, the driver had a valid driving license. This plea was accepted by the District Forum.The State Commission did not accept the appeal of the appellant on the ground that in view of the records produced by the respondent, there is no basis for repudiating the claim. The National Commission by the impugned order held that in view of the finding recorded by the State Commission which had verified the driving license of the driver Sachidananda Nayak, there was no scope for any interference. 4. It is pointed out by learned counsel for the appellant that a specific investigation was carried out by the Investigator i.e. one Mahesh Kumar Sahu who was appointed to verify the license in question. The investigator found that it was in the name of somebody else. Therefore, the District Forum as well as the State Commission and the National Commission should not have granted relief to the respondent. 5. Learned counsel for the respondent on the other hand submitted that the details supplied by the insured clearly indicated that driver had a valid driving license. 6. The controversy lies, as noted above, within a very narrow compass as to the person to whom D.L. No.1149 was issued. According to respondent it was issued to Sachidananda Nayak. But according to the information supplied by investigator of the appellant-company the license in question was issued to one Santosh Kumar Maharana. ### Response: 1 ### Explanation: 6. The controversy lies, as noted above, within a very narrow compass as to the person to whom D.L. No.1149 was issued. According to respondent it was issued to Sachidananda Nayak. But according to the information supplied by investigator of the appellant-company the license in question was issued to one Santosh Kumar Maharana.
Bhanushali Hsg. Coop. Society Ltd Vs. Mangilal	Schedule, and that the sale must be in quantity of 100 mds. or more at any one time. It would be noticed that the requirement is not that the person should merely sell, purchase or store the foodgrains in question, but that he must be carrying on the business of such purchase, sale, or storage; and the concept of business in the context must necessarily postulate continuity of transactions. It is not a single, casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It is only where it is shown that there is a sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied. If this element of the definition is ignored, it would be rendering the use of the word “business” redundant and meaningless. It has been fairly conceded before us by Mr. Khanna that the requirement that the transaction must be of 100 mds. Or more at any one time governs all classes of dealings with the commodities specified in the definition. Whether it is a purchase or sale or storage at any one time it must be of 100 mds. or more. In other words, there is no dispute before us that retail transactions of less than 100 mds. Of the prescribed commodities are outside the purview of the definition of a dealer.” 20. Reference may also be made to the decision of this Court in Barendra Prasad Ray and Ors. vs. Income Tax Officer ‘A’ Ward, Foreign Section and Ors. (1981) 2 SCC 693 where this Court interpreted the word “business” and held that the same was an expression of wide import and means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning profit. In B.R. Enterprises etc. vs. State of U.P. and Ors. etc. (1999) 9 SCC 700 this Court held that business is a term wider than trade. It includes almost anything which is an occupation as distinguished from pleasure. The term must, however, be construed according to its context. To the same effect are the decisions of this Court in Mahesh Chandra vs. Regional Manager U.P. Financial Corporation and Ors. (1993) 2 SCC 279 , and S. Mohan Lal vs. R. Kondiah (1979) 2 SCC 616. 21. Suffice it to say that while the expression “business” is of a very wide import and means any activity that is continuous and systematic, perceptions about what would constitute business may vary from public to private sector or from industrial financing to commercial banking sectors. What is certain is that any activity in order to constitute business must be systematic and continuous. A single transaction in the circumstances like the one in the case at hand would not constitute business for both the parties to the transaction. At any rate, the legislature having used the expression “business transactions” has left no manner of doubt that it is not just a solitary transaction between a society, on the one hand, and a third party, on the other, which would bring any dispute arising out of any such transaction within the purview of Section 64(1)(c). The dispute must be between parties who have had a series of transactions, each one constituting a business transaction in order that the provisions of Section 64 are attracted and a dispute arising out of any such transaction brought within its purview. 22. The argument that the plural used in the expression “business transactions” must include the singular in view of the provisions of Section 5(b) of the M.P. General Clauses Act has not impressed us. We say so because Section 5 of the M.P. General Clauses Act, 1957 like Section 13 of the Central General Clauses Act postulates singular to include the plural and vice-versa only if no different intention appears from the context. That intention, in the case at hand, appears to be evident not only from the scheme of the Act but also from the context in which the expression “business transactions” has been used. The purpose and the intent underlying the provision appears to be to bring only such disputes under the purview of Section 64 as are disputes arising out of what is business for both the sides and comprise multiple transactions. Decisions of this Court in Newspapers Ltd. vs. State Industrial Tribunal, U.P. and Ors. (AIR 1957 SC 532 ) and M/s. Dhandhania Kedia & Co. vs. The Commissioner of Income Tax (AIR 1959 SC 219 ) have settled the legal position and declared that the principle underlying Section 13 of the General Clauses Act regarding singular including the plural and vice versa does not have universal application and that the principle can apply only when no contrary intention is deducible from the scheme or the language used in the statute. 23. In the case at hand, that there was a single transaction whereunder the respondents-sellers had agreed to sell to the appellant-society a parcel of land to the society, for use by the society in terms of the objects for which it is established. It may, in that sense, be a transaction that touches the business of the appellant-society but it is common ground that the respondents were not in the business of selling land as a commercial or business activity for it is nobody’s case that the respondents were property dealers or had a land bank and were, as a systematic activity, selling land to make money. If the respondents were agriculturists who had agreed to sell agricultural land to the appellant-company, the transaction was, from their point of view, not a “business transaction”. For ought we know that transaction may have been prompted by family necessity, poverty or some such other compulsion. Such a transaction without any business element in the same could not constitute a “business transaction” leave alone “business transactions” within the meaning of Section 64(1)(c).	0[ds]In this case, the society is a co-operative bank and ordinarily a co-operative bank cannot be said to be engaged in business when it lets out properties owned by it. Therefore, it seems to us that the present dispute between a tenant and a member of the bank in a building, which has subsequently been acquired by the bank cannot be said to be a dispute touchingthe business of thebank, and the appeal should fail on this short ground.On the facts of the case before it, this Court incase (supra) held that the act of initiating proceedings for removing an act of trespass by a stranger from a flat allotted to one of its members could not but be a part of its business. This Court held that it was as much the concern of the society formed with the object of providing residential accommodation to its members, which was normally its business, as it was of the members to ensure that the flats are in occupation of its members in accordance with the bye laws framed by it, rather than the occupation of a person who had no subsisting reason to be in such occupation. The decision in Deccancase (supra) was on facts held to be distinguishable and resort to proceedings under Section 64 of the Act, held legally permissible.Purchase of land for being used in the manner set out in the objects extracted above is, therefore, one of the facets of the business that the society undertakes. Such purchase is directly linked to the object of developing the acquired land for allotment of house sites to the members of the society. There is, therefore, a clear and discernible nexus between acquisition/purchase of land and the object of providing house sites to the members which under the circumstances happens to be the main business of the society. It is not a case where the facts giving rise to the dispute are not relatable to the objects of the society or where the connect between the facts constituting the dispute and the objects of the society is remote or their interplay remarkably tenuous or peripheral, as was the position in Co-operative Central Bankcase (supra) involving alteration of the conditions of service of the employees of the society. We have in that view no hesitation in holding that the dispute arising out of the purchase of the land owned by the respondents was, in the instant case, a dispute touchingthe business of theappellant-society. Question No.1 is answered accordingly.In the case at hand, that there was a single transaction whereunder the respondents-sellers had agreed to sell to the appellant-society a parcel of land to the society, for use by the society in terms of the objects for which it is established. It may, in that sense, be a transaction that touchesthe business of theappellant-society but it is common ground that the respondents were not in the business of selling land as a commercial or business activity for it iscase that the respondents were property dealers or had a land bank and were, as a systematic activity, selling land to make money. If the respondents were agriculturists who had agreed to sell agricultural land to the appellant-company, the transaction was, from their point of view, not a. For ought we know that transaction may have been prompted by family necessity, poverty or some such other compulsion. Such a transaction without any business element in the same could not constitute ave alonein the meaning of Section	0	5,540	632	### 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: Schedule, and that the sale must be in quantity of 100 mds. or more at any one time. It would be noticed that the requirement is not that the person should merely sell, purchase or store the foodgrains in question, but that he must be carrying on the business of such purchase, sale, or storage; and the concept of business in the context must necessarily postulate continuity of transactions. It is not a single, casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It is only where it is shown that there is a sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied. If this element of the definition is ignored, it would be rendering the use of the word “business” redundant and meaningless. It has been fairly conceded before us by Mr. Khanna that the requirement that the transaction must be of 100 mds. Or more at any one time governs all classes of dealings with the commodities specified in the definition. Whether it is a purchase or sale or storage at any one time it must be of 100 mds. or more. In other words, there is no dispute before us that retail transactions of less than 100 mds. Of the prescribed commodities are outside the purview of the definition of a dealer.” 20. Reference may also be made to the decision of this Court in Barendra Prasad Ray and Ors. vs. Income Tax Officer ‘A’ Ward, Foreign Section and Ors. (1981) 2 SCC 693 where this Court interpreted the word “business” and held that the same was an expression of wide import and means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning profit. In B.R. Enterprises etc. vs. State of U.P. and Ors. etc. (1999) 9 SCC 700 this Court held that business is a term wider than trade. It includes almost anything which is an occupation as distinguished from pleasure. The term must, however, be construed according to its context. To the same effect are the decisions of this Court in Mahesh Chandra vs. Regional Manager U.P. Financial Corporation and Ors. (1993) 2 SCC 279 , and S. Mohan Lal vs. R. Kondiah (1979) 2 SCC 616. 21. Suffice it to say that while the expression “business” is of a very wide import and means any activity that is continuous and systematic, perceptions about what would constitute business may vary from public to private sector or from industrial financing to commercial banking sectors. What is certain is that any activity in order to constitute business must be systematic and continuous. A single transaction in the circumstances like the one in the case at hand would not constitute business for both the parties to the transaction. At any rate, the legislature having used the expression “business transactions” has left no manner of doubt that it is not just a solitary transaction between a society, on the one hand, and a third party, on the other, which would bring any dispute arising out of any such transaction within the purview of Section 64(1)(c). The dispute must be between parties who have had a series of transactions, each one constituting a business transaction in order that the provisions of Section 64 are attracted and a dispute arising out of any such transaction brought within its purview. 22. The argument that the plural used in the expression “business transactions” must include the singular in view of the provisions of Section 5(b) of the M.P. General Clauses Act has not impressed us. We say so because Section 5 of the M.P. General Clauses Act, 1957 like Section 13 of the Central General Clauses Act postulates singular to include the plural and vice-versa only if no different intention appears from the context. That intention, in the case at hand, appears to be evident not only from the scheme of the Act but also from the context in which the expression “business transactions” has been used. The purpose and the intent underlying the provision appears to be to bring only such disputes under the purview of Section 64 as are disputes arising out of what is business for both the sides and comprise multiple transactions. Decisions of this Court in Newspapers Ltd. vs. State Industrial Tribunal, U.P. and Ors. (AIR 1957 SC 532 ) and M/s. Dhandhania Kedia & Co. vs. The Commissioner of Income Tax (AIR 1959 SC 219 ) have settled the legal position and declared that the principle underlying Section 13 of the General Clauses Act regarding singular including the plural and vice versa does not have universal application and that the principle can apply only when no contrary intention is deducible from the scheme or the language used in the statute. 23. In the case at hand, that there was a single transaction whereunder the respondents-sellers had agreed to sell to the appellant-society a parcel of land to the society, for use by the society in terms of the objects for which it is established. It may, in that sense, be a transaction that touches the business of the appellant-society but it is common ground that the respondents were not in the business of selling land as a commercial or business activity for it is nobody’s case that the respondents were property dealers or had a land bank and were, as a systematic activity, selling land to make money. If the respondents were agriculturists who had agreed to sell agricultural land to the appellant-company, the transaction was, from their point of view, not a “business transaction”. For ought we know that transaction may have been prompted by family necessity, poverty or some such other compulsion. Such a transaction without any business element in the same could not constitute a “business transaction” leave alone “business transactions” within the meaning of Section 64(1)(c). ### Response: 0 ### Explanation: In this case, the society is a co-operative bank and ordinarily a co-operative bank cannot be said to be engaged in business when it lets out properties owned by it. Therefore, it seems to us that the present dispute between a tenant and a member of the bank in a building, which has subsequently been acquired by the bank cannot be said to be a dispute touchingthe business of thebank, and the appeal should fail on this short ground.On the facts of the case before it, this Court incase (supra) held that the act of initiating proceedings for removing an act of trespass by a stranger from a flat allotted to one of its members could not but be a part of its business. This Court held that it was as much the concern of the society formed with the object of providing residential accommodation to its members, which was normally its business, as it was of the members to ensure that the flats are in occupation of its members in accordance with the bye laws framed by it, rather than the occupation of a person who had no subsisting reason to be in such occupation. The decision in Deccancase (supra) was on facts held to be distinguishable and resort to proceedings under Section 64 of the Act, held legally permissible.Purchase of land for being used in the manner set out in the objects extracted above is, therefore, one of the facets of the business that the society undertakes. Such purchase is directly linked to the object of developing the acquired land for allotment of house sites to the members of the society. There is, therefore, a clear and discernible nexus between acquisition/purchase of land and the object of providing house sites to the members which under the circumstances happens to be the main business of the society. It is not a case where the facts giving rise to the dispute are not relatable to the objects of the society or where the connect between the facts constituting the dispute and the objects of the society is remote or their interplay remarkably tenuous or peripheral, as was the position in Co-operative Central Bankcase (supra) involving alteration of the conditions of service of the employees of the society. We have in that view no hesitation in holding that the dispute arising out of the purchase of the land owned by the respondents was, in the instant case, a dispute touchingthe business of theappellant-society. Question No.1 is answered accordingly.In the case at hand, that there was a single transaction whereunder the respondents-sellers had agreed to sell to the appellant-society a parcel of land to the society, for use by the society in terms of the objects for which it is established. It may, in that sense, be a transaction that touchesthe business of theappellant-society but it is common ground that the respondents were not in the business of selling land as a commercial or business activity for it iscase that the respondents were property dealers or had a land bank and were, as a systematic activity, selling land to make money. If the respondents were agriculturists who had agreed to sell agricultural land to the appellant-company, the transaction was, from their point of view, not a. For ought we know that transaction may have been prompted by family necessity, poverty or some such other compulsion. Such a transaction without any business element in the same could not constitute ave alonein the meaning of Section
State Of A.P Vs. National Thermal Power Corpn. Ltd	or otherwise. The, majority has clearly opined that the State where the goods are delivered in the transaction of inter-State sale, cannot levy a tax on the basis that one of the events in the chain has taken place with the State; so also where the goods are in existence and available for the transfer of right to use, there also that State cannot exercise power to tax merely because the goods are located in that State. Then it was observed that in case where goods are not in existence or where there is an oral or implied transfer of the right to use the goods, such transactions may be effected by the delivery of the goods in which case the taxable event would be on the delivery of goods. However, we are dealing with the case of electricity as goods, the property whereof, as we have already noted, is that the production (generation), transmission, delivery and consumption are simultaneous, almost instantaneous. Electricity as goods comes into existence and is consumed simultaneously, the event of sale in the sense of transferring property in the goods merely intervenes as a step between generation and consumption. In such a case when the generation takes place in one State wherefrom it is supplied and it is received in another State where it is consumed, the entire transaction is one and can be nothing else excepting an inter-State sale on account of instantaneous movement of goods from one State to another occasioned by the sale or purchase of goods, squarely covered by Section 3 of C.S.T. Act.Sale of electricity by NTPCL 28. In both the cases before us, contracts have been entered into between parties to the transaction, that is, the sellers and the buyers (in other States), prior to the generation of electricity. The NTPCL generates electricity and pursuant to these contracts supplies the same from its power stations situated in the State of A.P. or M.P. to the buyers in other States where it is received and consumed. There is no hiatus between generation, sale, supply, transmission, delivery and consumption. The inter-State movement of electricity is pursuant to contracts of sale. Such sales can be held only as inter-State sales. 29. Though it may be permissible to fix the situs of sale either by appropriate State legislation or by Judge made law as held by the majority opinion in 20th Century Finance Corporation case, we would like to clarify that none of the two can artificially appoint a situs of sale so as to create territorial nexus attracting applicability of tax legislation enacted by an State Legislature and tax an inter-State sale in breach of Section 3 of the CST Act read with Articles 286(2) and 269(1) and (3) of the Constitution. No State legislation, nor any stipulation in any contract, can fix the situs of sale within the State or artificially define the completion of sale in such a way as to convert an inter-State sale into an intra-State sale or create a territorial nexus to tax an inter-State sale unless permitted by an appropriate central legislation. But this is exactly what the definition of consumer in Clause 2(a) of the M.P. Electricity Duty Act, 1949 has done. The definition of consumer has been artificially extended to include any person who receives electrical energy (without regard to its consumption) and also to include a person who, receiving the electrical energy in bulk, forwards it onwards it onwards for distribution, (without regard to the fact whether it transmitted outside the State and whether the electricity is or is not consumed within the State). The same definition has been adopted in M.P. Upkar Adhiniyam, 1981. This definition of consumer shall have to be read down as including within it only such persons who receive the electricity for consumption or distribution for consumption within the State. Without such reading down, the definition of consumer would be rendered ultra vires of Articles 286 and 269 of the Constitution read with Section 3 of the Central Sales Tax Act, 1956.Consequence on free flow of trade 30. Yet another reason why we cannot accept the line of reasoning advanced on behalf of the States of Andhra Pradesh and Madhya Pradesh is that the same runs counter to the scheme of constitutional provisions and specially the Sixth Amendment. As has been found by the Division Bench of Andhra Pradesh High Court in its impugned judgment, if the reasoning suggested on behalf of the State of A.P. was accepted, the State where the dealer supplying the electricity is located and the electricity originates for sale, as also the States in which the purchaser of electricity is located and it is delivered, shall both subject the electrical energy to taxation, by relying on the theory of territorial nexus. Such a situation would be the one which was obtaining in the country with respect to sales tax prior to coming into force of the Constitution and which led to complications and difficulties in administration of sales tax legislation and therefore, was taken care of by the Sixth Amendment. Such multiple taxation would result in hampering free movement of electricity between the States, and therefore, would be prejudicial to freedom of trade, commerce and intercourse throughout the territory of India, and for the unity and integrity of the country. That would give rise to the same situation which was sought to be remedied by the Constitution and the Sixth Amendment. 31. On behalf of the States of A.P. and M.P., it was submitted that subject of electricity has been specifically dealt with by Articles 287 and 288 of the Constitution and by implication the Articles, other than 287 and 288, should be read as not dealing with electricity. This submission is stated only to be rejected. These articles make some provisions for electricity and water or electricity in the special context dealt with by those articles and not exclude applicability of other articles where electricity has been dealt with as goods. 32.	0[ds]let us first state what electricity is, as understood in law, and what are its relevant characteristics. It is settled with the pronouncement of this Court in Commissioner of Sales Tax, Madhya Pradesh, Indore vs. Madhya Pradesh Electricity Board, Jabalpur - 1969 (2) SCR 939 that electricity is goods. The definition of goods as given in Article 366 (12) of the Constitution was considered by this Court and it was held that the definition in terms is very wide according to which "goods" means all kinds of moveable property. The term "moveable property" when considered with reference to "goods" as defined for the purpose of sales-tax cannot be taken in a narrow sense and merely because electrical energy is not tangible or cannot be moved or touched like, for instance, a piece of wood or a book it cannot cease to be moveable property when it has all the attributes of such property. It is capable of abstraction, consumption and use which if done dishonestly is punishable under Section 39 of the Indian Electricity Act, 1910. If there can be sale and purchase of electrical energy like any other moveable object, this Court held that there was no difficulty in holding that electric energy was intended to be covered by the definition of "goods". However, A.N. Grover, J., speaking for three-Judge Bench of this Court went on to observe that electric energy "can be transmitted, transferred, delivered, stored, possessed etc. in the same way as any other moveable property". In this observation we agree with Grover, J., on all other characteristics of electric energy except that it can be â€˜storedâ€™ and to the extent that electric energy can be â€˜storedâ€™, the observation must be held to be erroneous or by oversight. The science and technology till this day have not been able to evolve any methodology by which electric energy can be preserved or stored.Another significant characteristic of electric energy is that its generation or production coincides almost instantaneously with its consumption. To quote from Aiyars Law Lexicon (Second Edition, 2000) - Electricity in physics is "the name given to the cause of a series of phenomena exhibited by various substances, and also to the phenomena themselves". Its true nature is not understood. Imperial Dict. (quoted in Spensley vs. Lanchashire Ins. Co., 54 Wis. 433, 442, 11 NW 894, where the court quoting from the same authority, said, "We are totally ignorant of the nature of this cause whether it be a material agent or merely a property of matter. But as some hypothesis is necessary for explaining the phenomena observed, it has been assumed to be a highly subtle, imponderable fluid, identical with lightning, which pervades the pores of all bodies, and is capable of motion from one body to another. This characteristic quality of electric energy was judicially noticed in Indian Aluminium Co. etc. etc. vs. State of Kerala & Ors. - (1996) 7 SCC 637. Vide para 25 this Court has noted, "Continuity of supply and consumption starts from the moment the electrical energy passes through the meters and sale simultaneously takes place as soon as meter reading is recorded. All the three steps or phases (i.e. sale, supply and consumption) take place without any hiatus. It is true that from the place of generating electricity, the electricity is supplied to the sub-station installed at the units of the consumers through electrical higher-tension transformers and from there electricity is supplied to the meter. But the moment electricity is supplied through the meter, consumption and sale simultaneously take place." ...... "as soon as the electrical energy is supplied to the consumers and is transmitted through the meter, consumption takes place simultaneously with the supply. There is no hiatus in its operation. Simultaneously sale also takes place". These properties of electricity as goods are of immense relevance as we would state hereafter.List II, Entries 53 and 54, how to beWe now come to the question on the interpretation of Entry 53 in List II of Seventh Schedule. It provides for taxes on the consumption or sale or electricity. The word sale as occurring in Entry 52 came up for the consideration of this Court in Burmah Shell Oil Storage & Distributing Co. India Ltd. vs. The Belgaum Borough Municipality 1963 Supp. (2) SCR 216. It was held that the act of sale is merely the means for putting the goods in the way of use or consumption. It is an earlier stage, the ultimate destination of the goods being "use or consumption". We feel that the same meaning should be assigned to the word sale in Entry 53. This is for a fortiorari reason in the context of electricity as there can be no sale of electricity excepting by its consumption, for it can neither be preserved nor stored. It is this property of electricity which persuaded this Court in Indian Aluminium Co. Ltd. etcs case (supra) to hold that in the context of electricity, the word supply should be interpreted to include sale or consumption of electricity. Entry 53 should therefore be read as taxes on the consumption or sale for consumption of electricity.With these two things in mind, namely, that electricity is goods, and that sale or electricity has to be construed and read as sale for consumption within the meaning of Entry 53, the conflict, if any, between Entry 53 and Entry 54 ceases to exist and the two can be harmonized and read together. Because electricity is goods it is covered in Entry 54 also. It is not disputed that duty on electricity is tax. Tax on the sale or purchase of goods including electricity but excluding newspapers shall fall within Entry 54 and shall be subject to provisions of Entry 92A of List I. Taxes on the consumption or sale for consumption of electricity within the meaning of Entry 53 must be consumption within the State and not beyond the territory of the State. Any other sale or electricity shall continue to be subject to the limits provided by Entry 54. Even purchase of electricity would be available for taxation which it would not be if electricity was not includible in the meaning of term "goods". A piece of legislation need not necessarily fall within the scope of one entry alone; more than one entry may overlap to cover the subject-matter of a single piece of legislation. A bare consumption of electric energy even by one who generates the same may be liable to be taxed by reference to Entry 53 and if the State Legislature may choose to impose tax on consumption of electricity by the one who generates it such, tax would not be deemed to be a tax necessarily or manufacture or production or a duty of excise, as held by Constitution Bench in Jiyajeerao Cotton Mills Ltd., Birlanagar, Gwalior vs. State of Madhya Pradesh - 1962 Supp. (1) SCR 282. A mere consumption of goods (other than electricity), not accompanied by purchase or sale would not be taxable under Entry 54 because it does not provide for taxes on the consumption and Entry 53 does not speak of goods other than electricity. Thus in substance Entries 53 and 54 can be and must be read together and to the extent of sale of electricity for consumption outside the State, the electricity being goods, shall also be subject to provisions of Entry 92A of List I.This, in our opinion, is the best way of reading the two entries. In C.P. Motor Spirit Act re. AIR 1939 FC 131 it was held that two entries in the lists may overlap and sometimes may also appear to be in direct conflict with each other. It is then the duty of this Court to reconcile the entries and bring about harmony between them. The Court should strive at searching for reasonable and practical construction to seek reconciliation and give effect to all of them. If reconciliation proves impossible the overriding power of Union Legislature operates and prevails. Gwyer, C.J. observed - "A grant of the power in general terms, standing by itself, would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by the implication of the context, and even by considerations arising out of what appears to be the general scheme of the Act". And again he said, "... an endeavour must be made to solve it, as the Judicial Committee have said, by having recourse to the context and scheme of the Act, and a reconciliation attempted between two apparently conflicting jurisdictions by reading to two entries together and by interpreting, and, where necessary modifying the language of the one by that of the other. If needed such a reconciliation should prove impossible, then and only then, will the non-obstante clause operate and the federal power prevail." In Calcutta Gas Co. Ltd. vs. The State of West Bengal & Ors., 1962 Supp (3) SCR 1, the Constitution Bench has held that the same rules of construction apply for the purpose of harmonizing an apparent conflict between two entries in the same list.e now come to the question on the interpretation of Entry 53 in List II of Seventh Schedule. It provides for taxes on the consumption or sale or electricity. The word sale as occurring in Entry 52 came up for the consideration of this Court in Burmah Shell Oil Storage & Distributing Co. India Ltd. vs. The Belgaum Borough Municipality 1963 Supp. (2) SCR 216. It was held that the act of sale is merely the means for putting the goods in the way of use or consumption. It is an earlier stage, the ultimate destination of the goods being "use or consumption". We feel that the same meaning should be assigned to the word sale in Entry 53. This is for a fortiorari reason in the context of electricity as there can be no sale of electricity excepting by its consumption, for it can neither be preserved nor stored. It is this property of electricity which persuaded this Court in Indian Aluminium Co. Ltd. etcs case (supra) to hold that in the context of electricity, the word supply should be interpreted to include sale or consumption of electricity. Entry 53 should therefore be read as taxes on the consumption or sale for consumption of electricity.h these two things in mind, namely, that electricity is goods, and that sale or electricity has to be construed and read as sale for consumption within the meaning of Entry 53, the conflict, if any, between Entry 53 and Entry 54 ceases to exist and the two can be harmonized and read together. Because electricity is goods it is covered in Entry 54 also. It is not disputed that duty on electricity is tax. Tax on the sale or purchase of goods including electricity but excluding newspapers shall fall within Entry 54 and shall be subject to provisions of Entry 92A of List I. Taxes on the consumption or sale for consumption of electricity within the meaning of Entry 53 must be consumption within the State and not beyond the territory of the State. Any other sale or electricity shall continue to be subject to the limits provided by Entry 54. Even purchase of electricity would be available for taxation which it would not be if electricity was not includible in the meaning of term "goods". A piece of legislation need not necessarily fall within the scope of one entry alone; more than one entry may overlap to cover the subject-matter of a single piece of legislation. A bare consumption of electric energy even by one who generates the same may be liable to be taxed by reference to Entry 53 and if the State Legislature may choose to impose tax on consumption of electricity by the one who generates it such, tax would not be deemed to be a tax necessarily or manufacture or production or a duty of excise, as held by Constitution Bench in Jiyajeerao Cotton Mills Ltd., Birlanagar, Gwalior vs. State of Madhya Pradesh - 1962 Supp. (1) SCR 282. A mere consumption of goods (other than electricity), not accompanied by purchase or sale would not be taxable under Entry 54 because it does not provide for taxes on the consumption and Entry 53 does not speak of goods other than electricity. Thus in substance Entries 53 and 54 can be and must be read together and to the extent of sale of electricity for consumption outside the State, the electricity being goods, shall also be subject to provisions of Entry 92A of List I.This, in our opinion, is the best way of reading the two entries. In C.P. Motor Spirit Act re. AIR 1939 FC 131 it was held that two entries in the lists may overlap and sometimes may also appear to be in direct conflict with each other. It is then the duty of this Court to reconcile the entries and bring about harmony between them. The Court should strive at searching for reasonable and practical construction to seek reconciliation and give effect to all of them. If reconciliation proves impossible the overriding power of Union Legislature operates and prevails. Gwyer, C.J. observed - "A grant of the power in general terms, standing by itself, would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by the implication of the context, and even by considerations arising out of what appears to be the general scheme of the Act". And again he said, "... an endeavour must be made to solve it, as the Judicial Committee have said, by having recourse to the context and scheme of the Act, and a reconciliation attempted between two apparently conflicting jurisdictions by reading to two entries together and by interpreting, and, where necessary modifying the language of the one by that of the other. If needed such a reconciliation should prove impossible, then and only then, will the non-obstante clause operate and the federal power prevail." In Calcutta Gas Co. Ltd. vs. The State of West Bengal & Ors., 1962 Supp (3) SCR 1, the Constitution Bench has held that the same rules of construction apply for the purpose of harmonizing an apparent conflict between two entries in the sameIt is well settled by a catena of decisions of this Court that a sale in the course of inter-State trade has three essential ingredients: (i) there must be a contract of sale, incorporating a stipulation, express or implied, regarding inter-State movement of goods; (ii) the goods must actually move from one State to another, pursuant to such contract of sale; the sale being the proximate cause of movement; and (iii) such movement of goods much be from one State to another State where the sale concludes. It follows as a necessary corollary of these principles that a movement of goods which takes places independent of a contract of sale would not fall within the meaning of inter-State sale. In other words, if there is no contract of sale preceding the movement of goods, obviously the movement cannot be attributed to the contract of sale. Similarly, if the transaction of sale stands completed within the State and the movement of goods takes place thereafter, it would obviously be independently of the contract of sale and necessarily by or on behalf of the purchaser alone and, therefore, the transaction would not be having an inter-State element. Precedents are legion; we may briefly refer to some of them. In English Electric Company of India Ltd. vs. Deputy Commercial Tax Officer, 1977(1) SCR 631, this Court held that when the movement of the goods from one State to another is an incident of the contract it is a sale in the course of inter-State sale and it does not matter which is the State in which the property passes. What is decisive is whether the sale is one which occasions the movement of goods from one State to another. In Union of India vs. K.G. Khosla and Co. Ltd., (1979) 2 SCC 242 , it was observed that a sale would be an inter-State sale even if the contract of sale does not itself provide for the movement of goods from one State to another provided, however, that such movement was the result of a covenant in the contract of sale or was an incident of the contract. Similar view was expressed in M/s. Sahney Steel and Press Works Ltd. and Anr. vs. Commercial Tax Officer and Others (1985) 4 SCC 173. In Manganese Ore (India) Ltd. vs. The Regional Assistant Commissioner of Sales-Tax, Jabalpur, 1976(4) SCC 124, after referring to Balabhagas Hulaschand vs. State of Orissa, (1976) 2 SCC 44 , it is was observed that so far as Section 3(a) of the C.S.T. Act is concerned there is no distinction between unascertained or future goods and goods which are already in existence, if at the time when the sale takes place these goods have come into actual existence.Having seen the properties of electricity as goods and what is inter-State sale, let us examine the effect of Entry 53, List II, having been left unamended by Sixth Amendment from another angle. Sixth Amendment did not touch Entry 53 in List-II and so the contents of Entry 53 were not expressly made subject to the provisions of Entry 92A of List I and arguments were advanced, with emphasis, on behalf of the States of Andhra Pradesh and Madhya Pradesh contending that such omission was deliberate and therefore the restriction which has been placed only in Entry 54 by making it subject to the provisions of Entry 92A of List I should not be read in Entry 53. It was submitted that so far as sale of electricity is concerned even if such sale takes place in the course of inter-State trade or commerce the State can legislate to tax such sale if the sale can be held to have taken place within the territory of that State or if adequate territorial nexus is established between the transaction and State legislation. For the several reasons stated hereinafter such a plea cannot be countenanced.The prohibition which is imposed by Article 286(1) of the Constitution is independent of the legislative entries in Seventh Schedule. After the decision of larger Bench in Bengal Immunity Company Limited (supra) and Constitution Bench decision in Ram Narain Sons Ltd. & Ors. vs. Asst. Commissioner of Sales Tax & Ors. 1955 (2) SCR 483 , there is no manner of doubt that the bans imposed by Articles 286 and 269 on the taxation powers of the State are independent and separate and must be got over before a State legislature can impose tax on transactions of sale or purchase of goods. Needless to say, such ban would operate by its own force and irrespective of the language in which an Entry in List-II of Seventh Schedule has been couched. The dimension given to field of legislation by the language of an Entry in List-II Seventh Schedule shall always remain subject to the limits of constitutional empowerment to legislate and can never afford to spill over the barriers created by the Constitution. The power of State legislature to enact law to levy tax by reference to List II of the Seventh Schedule has two limitations: one, arising out of the entry itself; and the other, flowing from the restriction embodied in the Constitution. It was held in Tara Iron and Steel Co. Ltd. Bombay vs. S.R. Sarkar and Ors. -1961 (1) SCR 379 ( at pages 387 and 388) that field of taxation on sale or purchase taking place in the course of inter-State trade or commerce has been excluded from the competence of the State Legislature. In 20th Century Finance Corporation Limited (supra) the Constitution Bench (majority) made it clear that the situs of the sale or purchase is wholly immaterial as regards the inter-State trade or commerce. In view of Section 3 of the Central Sales Tax, 1956 all that has to be seen is whether the sale or purchase (a) occasions the movement of goods from one State to another; or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another. If the transaction of sale satisfies any one of the two requirements is shall be deemed to be a sale or purchase of goods in the course of inter-State trade or commerce and by virtue of Articles 269 and 286 of the Constitution the same shall be beyond the legislative competence competence of a State to tax without regard to the fact whether such a prohibition is spelled out by the description of a legislative entry in Seventh Schedule or not.It is well settled, and hardly needs any authority to support the proposition, that several entries in the three lists of Seventh Schedule are legislative heads or fields of legislation and not the source of legislative empowerment. (To wit, see The Calcutta Gas Co. Ltd. vs. The State of West Bengal & Ors. (supra). Competence to legislate has to be traced to the Constitution. The division of powers between Parliament and the State Legislatures to legislate by reference to territorial limits is defined by Article 245. The subject-matters with respect to which those powers can be exercised are enumerated in the several entries divided into three groups as there Lists of Seventh Schedule. Residuary powers of legislation are also vested by Article 248 in the Parliament with respect to any matter not enumerated in any of the list in Seventh Schedule. This residuary power finds reflected in Entry 97 of List I. If an Entry does not spell out an exclusion from held of legislation discernible on its apparent reading, the absence of exclusion cannot be read as enabling power to legislate in the field not specifically excluded, more so, when there is available a specific provision in the Constitution prohibiting such legislation.It is by reference to the ambit or limits of territory by which the legislative powers vested in Parliament and the State Legislatures are divided in Article 245. Generally speaking, a legislation having extra territorial operation can be enacted only by Parliament and not by any State Legislature; possibly the only exception being one where extra territorial operation of a State legislation is sustainable on the ground of territorial nexus. Such territorial nexus, when pleaded, must be sufficient and real and not illusory. In Burmah Shell Oil Storage & Distributing Co. Ltd. (supra), which we have noticed, it was held that sale for use or consumption would mean the goods being brought inside the area for sale to an ultimate consumer, i.e. the one who consumes. In Entry 53, sale for consumption (the meaning which we have placed on the word sale) would mean a sale for consumption within the State so as to bring a State Legislation within the field of Entry 53. If sale and consumption were to take place in different States, territorial nexus for the State, where the sale takes place, would be lost. We have already noticed that in case of electricity the events of sale and consumption are inseparable. Any State legislation levying duty on sale of electricity, by artificially or fictionally assuming that the events of sale and consumption have taken place in two States, would be vitiated because of extra territorial operation of State legislation.In 20th Century Finance Corporations case, the Constitution Bench by reference to the definition of "tax on the sale or purchase of goods" (which too has been inserted as clause (29-A) in Article 366 by Sixth Amendment) opined that the situs of sale can be fixed either by the appropriate legislature or by Judge made law and no settled principles of determining situs of sale can be laid down. Further, the State legislature cannot by law, treat sales outside the State and sales in the course of import as "sales within the State" by fixing the situs of sales within its State in the definition of sale, as it is within the exclusive domain of the appropriate legislature, i.e. Parliament to fix the location of sale by creating legal fiction or otherwise. The, majority has clearly opined that the State where the goods are delivered in the transaction of inter-State sale, cannot levy a tax on the basis that one of the events in the chain has taken place with the State; so also where the goods are in existence and available for the transfer of right to use, there also that State cannot exercise power to tax merely because the goods are located in that State. Then it was observed that in case where goods are not in existence or where there is an oral or implied transfer of the right to use the goods, such transactions may be effected by the delivery of the goods in which case the taxable event would be on the delivery of goods. However, we are dealing with the case of electricity as goods, the property whereof, as we have already noted, is that the production (generation), transmission, delivery and consumption are simultaneous, almost instantaneous. Electricity as goods comes into existence and is consumed simultaneously, the event of sale in the sense of transferring property in the goods merely intervenes as a step between generation and consumption. In such a case when the generation takes place in one State wherefrom it is supplied and it is received in another State where it is consumed, the entire transaction is one and can be nothing else excepting an inter-State sale on account of instantaneous movement of goods from one State to another occasioned by the sale or purchase of goods, squarely covered by Section 3 of C.S.T. Act.Sale of electricity byIn both the cases before us, contracts have been entered into between parties to the transaction, that is, the sellers and the buyers (in other States), prior to the generation of electricity. The NTPCL generates electricity and pursuant to these contracts supplies the same from its power stations situated in the State of A.P. or M.P. to the buyers in other States where it is received and consumed. There is no hiatus between generation, sale, supply, transmission, delivery and consumption. The inter-State movement of electricity is pursuant to contracts of sale. Such sales can be held only as inter-State sales.Though it may be permissible to fix the situs of sale either by appropriate State legislation or by Judge made law as held by the majority opinion in 20th Century Finance Corporation case, we would like to clarify that none of the two can artificially appoint a situs of sale so as to create territorial nexus attracting applicability of tax legislation enacted by an State Legislature and tax an inter-State sale in breach of Section 3 of the CST Act read with Articles 286(2) and 269(1) and (3) of the Constitution. No State legislation, nor any stipulation in any contract, can fix the situs of sale within the State or artificially define the completion of sale in such a way as to convert an inter-State sale into an intra-State sale or create a territorial nexus to tax an inter-State sale unless permitted by an appropriate central legislation. But this is exactly what the definition of consumer in Clause 2(a) of the M.P. Electricity Duty Act, 1949 has done. The definition of consumer has been artificially extended to include any person who receives electrical energy (without regard to its consumption) and also to include a person who, receiving the electrical energy in bulk, forwards it onwards it onwards for distribution, (without regard to the fact whether it transmitted outside the State and whether the electricity is or is not consumed within the State). The same definition has been adopted in M.P. Upkar Adhiniyam, 1981. This definition of consumer shall have to be read down as including within it only such persons who receive the electricity for consumption or distribution for consumption within the State. Without such reading down, the definition of consumer would be rendered ultra vires of Articles 286 and 269 of the Constitution read with Section 3 of the Central Sales Tax Act, 1956.Consequence on free flow ofYet another reason why we cannot accept the line of reasoning advanced on behalf of the States of Andhra Pradesh and Madhya Pradesh is that the same runs counter to the scheme of constitutional provisions and specially the Sixth Amendment. As has been found by the Division Bench of Andhra Pradesh High Court in its impugned judgment, if the reasoning suggested on behalf of the State of A.P. was accepted, the State where the dealer supplying the electricity is located and the electricity originates for sale, as also the States in which the purchaser of electricity is located and it is delivered, shall both subject the electrical energy to taxation, by relying on the theory of territorial nexus. Such a situation would be the one which was obtaining in the country with respect to sales tax prior to coming into force of the Constitution and which led to complications and difficulties in administration of sales tax legislation and therefore, was taken care of by the Sixth Amendment. Such multiple taxation would result in hampering free movement of electricity between the States, and therefore, would be prejudicial to freedom of trade, commerce and intercourse throughout the territory of India, and for the unity and integrity of the country. That would give rise to the same situation which was sought to be remedied by the Constitution and the Sixth	0	8,768	5,483	### 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: or otherwise. The, majority has clearly opined that the State where the goods are delivered in the transaction of inter-State sale, cannot levy a tax on the basis that one of the events in the chain has taken place with the State; so also where the goods are in existence and available for the transfer of right to use, there also that State cannot exercise power to tax merely because the goods are located in that State. Then it was observed that in case where goods are not in existence or where there is an oral or implied transfer of the right to use the goods, such transactions may be effected by the delivery of the goods in which case the taxable event would be on the delivery of goods. However, we are dealing with the case of electricity as goods, the property whereof, as we have already noted, is that the production (generation), transmission, delivery and consumption are simultaneous, almost instantaneous. Electricity as goods comes into existence and is consumed simultaneously, the event of sale in the sense of transferring property in the goods merely intervenes as a step between generation and consumption. In such a case when the generation takes place in one State wherefrom it is supplied and it is received in another State where it is consumed, the entire transaction is one and can be nothing else excepting an inter-State sale on account of instantaneous movement of goods from one State to another occasioned by the sale or purchase of goods, squarely covered by Section 3 of C.S.T. Act.Sale of electricity by NTPCL 28. In both the cases before us, contracts have been entered into between parties to the transaction, that is, the sellers and the buyers (in other States), prior to the generation of electricity. The NTPCL generates electricity and pursuant to these contracts supplies the same from its power stations situated in the State of A.P. or M.P. to the buyers in other States where it is received and consumed. There is no hiatus between generation, sale, supply, transmission, delivery and consumption. The inter-State movement of electricity is pursuant to contracts of sale. Such sales can be held only as inter-State sales. 29. Though it may be permissible to fix the situs of sale either by appropriate State legislation or by Judge made law as held by the majority opinion in 20th Century Finance Corporation case, we would like to clarify that none of the two can artificially appoint a situs of sale so as to create territorial nexus attracting applicability of tax legislation enacted by an State Legislature and tax an inter-State sale in breach of Section 3 of the CST Act read with Articles 286(2) and 269(1) and (3) of the Constitution. No State legislation, nor any stipulation in any contract, can fix the situs of sale within the State or artificially define the completion of sale in such a way as to convert an inter-State sale into an intra-State sale or create a territorial nexus to tax an inter-State sale unless permitted by an appropriate central legislation. But this is exactly what the definition of consumer in Clause 2(a) of the M.P. Electricity Duty Act, 1949 has done. The definition of consumer has been artificially extended to include any person who receives electrical energy (without regard to its consumption) and also to include a person who, receiving the electrical energy in bulk, forwards it onwards it onwards for distribution, (without regard to the fact whether it transmitted outside the State and whether the electricity is or is not consumed within the State). The same definition has been adopted in M.P. Upkar Adhiniyam, 1981. This definition of consumer shall have to be read down as including within it only such persons who receive the electricity for consumption or distribution for consumption within the State. Without such reading down, the definition of consumer would be rendered ultra vires of Articles 286 and 269 of the Constitution read with Section 3 of the Central Sales Tax Act, 1956.Consequence on free flow of trade 30. Yet another reason why we cannot accept the line of reasoning advanced on behalf of the States of Andhra Pradesh and Madhya Pradesh is that the same runs counter to the scheme of constitutional provisions and specially the Sixth Amendment. As has been found by the Division Bench of Andhra Pradesh High Court in its impugned judgment, if the reasoning suggested on behalf of the State of A.P. was accepted, the State where the dealer supplying the electricity is located and the electricity originates for sale, as also the States in which the purchaser of electricity is located and it is delivered, shall both subject the electrical energy to taxation, by relying on the theory of territorial nexus. Such a situation would be the one which was obtaining in the country with respect to sales tax prior to coming into force of the Constitution and which led to complications and difficulties in administration of sales tax legislation and therefore, was taken care of by the Sixth Amendment. Such multiple taxation would result in hampering free movement of electricity between the States, and therefore, would be prejudicial to freedom of trade, commerce and intercourse throughout the territory of India, and for the unity and integrity of the country. That would give rise to the same situation which was sought to be remedied by the Constitution and the Sixth Amendment. 31. On behalf of the States of A.P. and M.P., it was submitted that subject of electricity has been specifically dealt with by Articles 287 and 288 of the Constitution and by implication the Articles, other than 287 and 288, should be read as not dealing with electricity. This submission is stated only to be rejected. These articles make some provisions for electricity and water or electricity in the special context dealt with by those articles and not exclude applicability of other articles where electricity has been dealt with as goods. 32. ### Response: 0 ### Explanation: clause (29-A) in Article 366 by Sixth Amendment) opined that the situs of sale can be fixed either by the appropriate legislature or by Judge made law and no settled principles of determining situs of sale can be laid down. Further, the State legislature cannot by law, treat sales outside the State and sales in the course of import as "sales within the State" by fixing the situs of sales within its State in the definition of sale, as it is within the exclusive domain of the appropriate legislature, i.e. Parliament to fix the location of sale by creating legal fiction or otherwise. The, majority has clearly opined that the State where the goods are delivered in the transaction of inter-State sale, cannot levy a tax on the basis that one of the events in the chain has taken place with the State; so also where the goods are in existence and available for the transfer of right to use, there also that State cannot exercise power to tax merely because the goods are located in that State. Then it was observed that in case where goods are not in existence or where there is an oral or implied transfer of the right to use the goods, such transactions may be effected by the delivery of the goods in which case the taxable event would be on the delivery of goods. However, we are dealing with the case of electricity as goods, the property whereof, as we have already noted, is that the production (generation), transmission, delivery and consumption are simultaneous, almost instantaneous. Electricity as goods comes into existence and is consumed simultaneously, the event of sale in the sense of transferring property in the goods merely intervenes as a step between generation and consumption. In such a case when the generation takes place in one State wherefrom it is supplied and it is received in another State where it is consumed, the entire transaction is one and can be nothing else excepting an inter-State sale on account of instantaneous movement of goods from one State to another occasioned by the sale or purchase of goods, squarely covered by Section 3 of C.S.T. Act.Sale of electricity byIn both the cases before us, contracts have been entered into between parties to the transaction, that is, the sellers and the buyers (in other States), prior to the generation of electricity. The NTPCL generates electricity and pursuant to these contracts supplies the same from its power stations situated in the State of A.P. or M.P. to the buyers in other States where it is received and consumed. There is no hiatus between generation, sale, supply, transmission, delivery and consumption. The inter-State movement of electricity is pursuant to contracts of sale. Such sales can be held only as inter-State sales.Though it may be permissible to fix the situs of sale either by appropriate State legislation or by Judge made law as held by the majority opinion in 20th Century Finance Corporation case, we would like to clarify that none of the two can artificially appoint a situs of sale so as to create territorial nexus attracting applicability of tax legislation enacted by an State Legislature and tax an inter-State sale in breach of Section 3 of the CST Act read with Articles 286(2) and 269(1) and (3) of the Constitution. No State legislation, nor any stipulation in any contract, can fix the situs of sale within the State or artificially define the completion of sale in such a way as to convert an inter-State sale into an intra-State sale or create a territorial nexus to tax an inter-State sale unless permitted by an appropriate central legislation. But this is exactly what the definition of consumer in Clause 2(a) of the M.P. Electricity Duty Act, 1949 has done. The definition of consumer has been artificially extended to include any person who receives electrical energy (without regard to its consumption) and also to include a person who, receiving the electrical energy in bulk, forwards it onwards it onwards for distribution, (without regard to the fact whether it transmitted outside the State and whether the electricity is or is not consumed within the State). The same definition has been adopted in M.P. Upkar Adhiniyam, 1981. This definition of consumer shall have to be read down as including within it only such persons who receive the electricity for consumption or distribution for consumption within the State. Without such reading down, the definition of consumer would be rendered ultra vires of Articles 286 and 269 of the Constitution read with Section 3 of the Central Sales Tax Act, 1956.Consequence on free flow ofYet another reason why we cannot accept the line of reasoning advanced on behalf of the States of Andhra Pradesh and Madhya Pradesh is that the same runs counter to the scheme of constitutional provisions and specially the Sixth Amendment. As has been found by the Division Bench of Andhra Pradesh High Court in its impugned judgment, if the reasoning suggested on behalf of the State of A.P. was accepted, the State where the dealer supplying the electricity is located and the electricity originates for sale, as also the States in which the purchaser of electricity is located and it is delivered, shall both subject the electrical energy to taxation, by relying on the theory of territorial nexus. Such a situation would be the one which was obtaining in the country with respect to sales tax prior to coming into force of the Constitution and which led to complications and difficulties in administration of sales tax legislation and therefore, was taken care of by the Sixth Amendment. Such multiple taxation would result in hampering free movement of electricity between the States, and therefore, would be prejudicial to freedom of trade, commerce and intercourse throughout the territory of India, and for the unity and integrity of the country. That would give rise to the same situation which was sought to be remedied by the Constitution and the Sixth
Lalsai Khunte Vs. Nirmal Sinha	Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical." 10. Therefore, this Court in recent decisions held that the appellate Court has power to stay the execution of the conviction and if appellate Court has stayed the conviction then in that case, this will not operate as a disqualification. But simply order of suspension of the sentence will not operate as staying the conviction. It was specifically mentioned that the stay of order of the conviction will mean it is temporarily non-operative. As already mentioned above, in the present case it is clearly transpired that the appellate Court suspended the order of the trial court dt. 9th May, 2002 and granted the bail to the accused appellant. The suspension does not mean the stay of the conviction. We have ourselves seen the application for suspension of sentence. The said application is a routine application under Section 389 whereby the appellant sought for the suspension of sentence. There is nothing in that application to suggest that the applicant therein had sought the stay of conviction in contra-distinction to the suspension of sentence. In Ravi Kant Patels case cited supra, it will be seen that an application for stay of conviction was specifically filed specifying the consequences if the conviction was not stayed. This Court had taken that fact into consideration while holding that in that case the conviction was specifically stayed. Such is not the case here. If the incumbent had been vigilant enough, he could have moved the court even later on after obtaining the stay of conviction particularly in view of the fact that he wanted to contest the election but that was not done. 11. In the case of Rama Narang Vs. Ramesh Narang and Ors. reported in {1995) 2 SCC 513 their Lordships were examining the effect of conviction under the Companies Act, 1956, that what is the effect of the conviction of Managing Director for an offence involving moral turpitude as disqualification and suspension of that conviction by the appellate court. This Court after examining the question took the view that Section 389(1) of the CR.P.C. confers the power on appellate Court to stay the operation of the order of the conviction. If the order of conviction is to result to some disqualification of the type mentioned in Section 267 of the Companies act, a narrow meaning should not be given to Section 389(1) of the Code to bar the Court from granting an order staying operation of order of conviction in a fit case. Therefore, their Lordships were very clear that Section 389(1) of the Code empowers the appellate court to stay the conviction also. But suspension will not amount to staying the conviction. It was held as under: 12. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of (sic or) suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company. 13. As already pointed out above that on 31st May, 2002, the appellate Court while granting him the bail only suspended the impugned order dated 9th May, 2002. Thus suspension does not amount to temporarily washing out the conviction. The conviction still remains, only the operation of the order and the sentence remain suspended that does not amount to temporary stay of the conviction. A specific order staying conviction has to be sought. Hence, the view taken by the learned Single Judge of the Chhattisgarh High Court is correct and there is no ground to interfere.	0[ds]The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no otherhe Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; thed by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay ofsuspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.	0	2,901	365	### 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: Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical." 10. Therefore, this Court in recent decisions held that the appellate Court has power to stay the execution of the conviction and if appellate Court has stayed the conviction then in that case, this will not operate as a disqualification. But simply order of suspension of the sentence will not operate as staying the conviction. It was specifically mentioned that the stay of order of the conviction will mean it is temporarily non-operative. As already mentioned above, in the present case it is clearly transpired that the appellate Court suspended the order of the trial court dt. 9th May, 2002 and granted the bail to the accused appellant. The suspension does not mean the stay of the conviction. We have ourselves seen the application for suspension of sentence. The said application is a routine application under Section 389 whereby the appellant sought for the suspension of sentence. There is nothing in that application to suggest that the applicant therein had sought the stay of conviction in contra-distinction to the suspension of sentence. In Ravi Kant Patels case cited supra, it will be seen that an application for stay of conviction was specifically filed specifying the consequences if the conviction was not stayed. This Court had taken that fact into consideration while holding that in that case the conviction was specifically stayed. Such is not the case here. If the incumbent had been vigilant enough, he could have moved the court even later on after obtaining the stay of conviction particularly in view of the fact that he wanted to contest the election but that was not done. 11. In the case of Rama Narang Vs. Ramesh Narang and Ors. reported in {1995) 2 SCC 513 their Lordships were examining the effect of conviction under the Companies Act, 1956, that what is the effect of the conviction of Managing Director for an offence involving moral turpitude as disqualification and suspension of that conviction by the appellate court. This Court after examining the question took the view that Section 389(1) of the CR.P.C. confers the power on appellate Court to stay the operation of the order of the conviction. If the order of conviction is to result to some disqualification of the type mentioned in Section 267 of the Companies act, a narrow meaning should not be given to Section 389(1) of the Code to bar the Court from granting an order staying operation of order of conviction in a fit case. Therefore, their Lordships were very clear that Section 389(1) of the Code empowers the appellate court to stay the conviction also. But suspension will not amount to staying the conviction. It was held as under: 12. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of (sic or) suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company. 13. As already pointed out above that on 31st May, 2002, the appellate Court while granting him the bail only suspended the impugned order dated 9th May, 2002. Thus suspension does not amount to temporarily washing out the conviction. The conviction still remains, only the operation of the order and the sentence remain suspended that does not amount to temporary stay of the conviction. A specific order staying conviction has to be sought. Hence, the view taken by the learned Single Judge of the Chhattisgarh High Court is correct and there is no ground to interfere. ### Response: 0 ### Explanation: The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no otherhe Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; thed by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay ofsuspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.
Mulraj Vs. Murti Raghonathji Maharaj	by reason of the fact that the court to which the stay order is addressed must have knowledge of it before it takes effect for it can always be proved that the court to which the stay order was addressed had knowledge of it and that is not a matter which should really create any difficulty or uncertainty. Once it is clear that a stay order is in the nature of a prohibitory order, knowledge of it by the court which is prohibited is essential before the court is deprived of the power to carry on the proceedings. As was pointed out in Bassesswari Chowdhuranys case. (1896-97) 1 Cal WN 226:"the appellate court has nothing to do with the execution of the decree, the execution proceeds under the direction of the court which made the decree and it has full authority to execute it. An order of stay does not undo anything which has been done: its utmost effect is to stop further action in the direction of execution, but it would only have that effect when it reached the Court or person whose duty it was to obey it."10. As we have already indicated, an order of stay is as much a prohibitory order as an injunction order and unless the court to which it is addressed has knowledge of it, it cannot deprive that court of the jurisdiction to proceed with the execution before it. But there is one difference between an order of injunction and an order of stay arising out of the fact that an injunction order is usually passed against a party while a stay order is addressed to the court. As the stay order is addressed to the court, as soon as the court has knowledge of; it must stay its hand if it does not do so, it acts illegally. Therefore in the case of stay order as opposed to an order of injunction, as soon as the court has knowledge of it, it must stay its hand and further proceedings are illegal, but so long as the court has no knowledge of the stay order it does not lose the jurisdiction to clear with the execution which it has under the Code of Civil Procedure.11. Though the court which is carrying an execution is not deprived of the jurisdiction the moment a stay order is passed, even though it has no knowledge of it, this does not mean that when the court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the court has knowledge of the stay order. We are of opinion that S. 151 of the Code of Civil Procedure would always be available to the court executing the decree, for in such a case, when the stay order is brought to its notice, it can always act under S. 151, and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so. Though therefore the courts executing the decree cannot in our opinion be deprived of its jurisdiction to carry on execution till it has knowledge of the stay order, the court has the power in our view to set- aside the proceeding taken between the time when the stay order was passed and the time when it was brought to its notice if it is asked to do so and it considers that it is necessary in the interests of justice that the interim proceedings should be set aside. But that can only be done by the court which has taken the interim proceedings in the interest of justice under S. I51 of the Code of Civil Procedure provided the order is brought to its knowledge and a prayer is made to set aside this interim proceedings within a reasonable time. Otherwise the interim proceedings in our opinion are not a nullity and the absence of such exercise of power by the court executing the decree under S. 151, they remain good for all purposes.12. What we have said about execution proceedings applies with greater force to stay orders passed in transfer applications, as in the present case. In the case of execution proceedings at any rate there is an appeal in which a stay order is passed : the transfer proceedings are collateral proceedings and even though the superior authority only have the power to say, it cannot deprive the inferior authority having jurisdiction of that jurisdiction unless the inferior authority is apprised of the order by the superior authority. In the present case the order of stay never came to the knowledge of the Magistrate concerned till he gave the permission on October 4, 1961. Later on the District Magistrate himself dismissed the transfer petition. The order was not brought to the knowledge of the Magistrate concerned by the appellant at any time. Nor did he ever apply to the Magistrate to set aside the permission passed in ignorance in the interest of justice. In these circumstances, the appellant cannot challenge the permission as a nullity in the suit which has been brought on the basis of that permission.13. We may however add that what we have said above refers only to proceedings being carried on by courts or authorities after the stay order has been passed and before they have knowledge of it. But this may not apply in a case where stay is made for ministerial officers, as for example in the case of a court asking a bailiff not to sell and the bailiff selling without knowledge of the order of the court prohibiting it to carry on the sale. The position in such a case may be different, but as to that we express no final opinion in the present appeal.	0[ds]3. As we have already indicated, the facts on the question raised before us are not inAllahabad High Court seems to have taken an intermediate view and has held that where rights of third parties like a stranger auction-purchaser have intervened the fact that the executing court had no knowledge would protect third parties.We are of opinion that the view taken in Bessesswari Chowdhuranys case (1896-97) 1 Cal WN 226 is the correct one.An order of stay in an execution matter is in our opinion in the nature of a prohibitory order and is addressed to the court that is carrying out execution. It is not of the same nature as an order allowing an appeal and quashing execution proceedings. That kind of order takes effect immediately it is passed, for such an order takes away the very jurisdiction of the court executing the decree as there is nothing left to execute thereafter. But a mere order of stay of execution does not take away the jurisdiction of the court. All that it does is to prohibit the court from proceeding with the execution further, and the court unless it knows of the order cannot be expected to carry it out. Therefore, till the order comes to the knowledge of the court its jurisdiction to carry on execution is not affected by a stay order which must in the very nature of things be treated to be a prohibitory order directing the executing court which continues to have jurisdiction to stay its hand till further orders. It is clear that as soon as a stay order is withdrawn, the executing court is entitled to carry on execution and there is no question of fresh conferment of jurisdiction by the fact that the stay order has been withdrawn. The jurisdiction of the court is there all along. The only effect of the stay order is to prohibit the executing court from proceeding further and that can only take effect when the executing court has knowledge of the order. The executing court may have knowledge of the order on the order being communicated to it by the court passing the stay order or the executing court may be informed of the order by one party or the other with an affidavit in support of the information or in any other way. As soon therefore as the executing court has come to know of the order either by communication from the court passing the stay order or by an affidavit from one party or the other or in any other way the executing court cannot proceed further and if it does so it acts illegally. There can be no doubt that no action for contempt can be taken against an executing court, if it carries on execution in ignorance of the order of stay and this shows the necessity of the knowledge of the executing court before its jurisdiction can be affected by the order. In effect therefore a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it. Further it is equally well settled that the injunction order not being addressed to the Court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts legally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between an order of injunction to a party and an order of stay to a court. In both cases knowledge of the party concerned or of the court is necessary before the prohibition takes effect. Take the case where a stay order has been passed but it is never brought to the notice of the court, and the court carries on proceedings in ignorance thereof. It can hardly be said that the court has lost jurisdiction because of some order of which it has no knowledge. This to our mind clearly follows from the words of O. XLI, R. 5 of theCode of Civil Procedure which clearly lays down that mere filing of the appeal does not operate as stay of proceeding in execution, but the appellate court has the power to stay the execution. Obviously when the appellate court orders stay of execution the order can have effect only when, it is made known to the executing court. We cannot agree that an order staying execution is similar to an order allowing an appeal and quashing execution proceedings. In the case where the execution proceeding is quashed, the order takes effect immediately and there is nothing left to execute. But where a stay order is passed, execution still stands and can go on unless the court executing the decree has knowledge of the stay order. It is only when the executing court has knowledge of the stay order that the court must stay its hands and anything it does thereafter would be a nullity so long as the stay order is inis in our opinion question of uncertainty, even if we hold that the stay order must come to the knowledge of the court to which it is addressed before it takes effect. The court may receive knowledge either on receipt of an order of stay from the court that passed it or through one party or the other supported by an affidavit or in any other way. There is in our opinion no uncertainty by reason of the fact that the court to which the stay order is addressed must have knowledge of it before it takes effect for it can always be proved that the court to which the stay order was addressed had knowledge of it and that is not a matter which should really create any difficulty or uncertainty. Once it is clear that a stay order is in the nature of a prohibitory order, knowledge of it by the court which is prohibited is essential before the court is deprived of the power to carry on the proceedings.As we have already indicated, an order of stay is as much a prohibitory order as an injunction order and unless the court to which it is addressed has knowledge of it, it cannot deprive that court of the jurisdiction to proceed with the execution before it. But there is one difference between an order of injunction and an order of stay arising out of the fact that an injunction order is usually passed against a party while a stay order is addressed to the court. As the stay order is addressed to the court, as soon as the court has knowledge of; it must stay its hand if it does not do so, it acts illegally. Therefore in the case of stay order as opposed to an order of injunction, as soon as the court has knowledge of it, it must stay its hand and further proceedings are illegal, but so long as the court has no knowledge of the stay order it does not lose the jurisdiction to clear with the execution which it has under theCode of Civil Procedure.11. Though the court which is carrying an execution is not deprived of the jurisdiction the moment a stay order is passed, even though it has no knowledge of it, this does not mean that when the court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the court has knowledge of the stay order. We are of opinion that S. 151 of theCode of Civil Procedure would always be available to the court executing the decree, for in such a case, when the stay order is brought to its notice, it can always act under S. 151, and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so. Though therefore the courts executing the decree cannot in our opinion be deprived of its jurisdiction to carry on execution till it has knowledge of the stay order, the court has the power in our view to set- aside the proceeding taken between the time when the stay order was passed and the time when it was brought to its notice if it is asked to do so and it considers that it is necessary in the interests of justice that the interim proceedings should be set aside. But that can only be done by the court which has taken the interim proceedings in the interest of justice under S. I51 of theCode of Civil Procedure provided the order is brought to its knowledge and a prayer is made to set aside this interim proceedings within a reasonable time. Otherwise the interim proceedings in our opinion are not a nullity and the absence of such exercise of power by the court executing the decree under S. 151, they remain good for all purposes.12. What we have said about execution proceedings applies with greater force to stay orders passed in transfer applications, as in the present case. In the case of execution proceedings at any rate there is an appeal in which a stay order is passed : the transfer proceedings are collateral proceedings and even though the superior authority only have the power to say, it cannot deprive the inferior authority having jurisdiction of that jurisdiction unless the inferior authority is apprised of the order by the superior authority. In the present case the order of stay never came to the knowledge of the Magistrate concerned till he gave the permission on October 4, 1961. Later on the District Magistrate himself dismissed the transfer petition. The order was not brought to the knowledge of the Magistrate concerned by the appellant at any time. Nor did he ever apply to the Magistrate to set aside the permission passed in ignorance in the interest of justice. In these circumstances, the appellant cannot challenge the permission as a nullity in the suit which has been brought on the basis of that permission.13. We may however add that what we have said above refers only to proceedings being carried on by courts or authorities after the stay order has been passed and before they have knowledge of it. But this may not apply in a case where stay is made for ministerial officers, as for example in the case of a court asking a bailiff not to sell and the bailiff selling without knowledge of the order of the court prohibiting it to carry on the sale. The position in such a case may be different, but as to that we express no final opinion in the present appeal.	0	3,459	2,002	### 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: by reason of the fact that the court to which the stay order is addressed must have knowledge of it before it takes effect for it can always be proved that the court to which the stay order was addressed had knowledge of it and that is not a matter which should really create any difficulty or uncertainty. Once it is clear that a stay order is in the nature of a prohibitory order, knowledge of it by the court which is prohibited is essential before the court is deprived of the power to carry on the proceedings. As was pointed out in Bassesswari Chowdhuranys case. (1896-97) 1 Cal WN 226:"the appellate court has nothing to do with the execution of the decree, the execution proceeds under the direction of the court which made the decree and it has full authority to execute it. An order of stay does not undo anything which has been done: its utmost effect is to stop further action in the direction of execution, but it would only have that effect when it reached the Court or person whose duty it was to obey it."10. As we have already indicated, an order of stay is as much a prohibitory order as an injunction order and unless the court to which it is addressed has knowledge of it, it cannot deprive that court of the jurisdiction to proceed with the execution before it. But there is one difference between an order of injunction and an order of stay arising out of the fact that an injunction order is usually passed against a party while a stay order is addressed to the court. As the stay order is addressed to the court, as soon as the court has knowledge of; it must stay its hand if it does not do so, it acts illegally. Therefore in the case of stay order as opposed to an order of injunction, as soon as the court has knowledge of it, it must stay its hand and further proceedings are illegal, but so long as the court has no knowledge of the stay order it does not lose the jurisdiction to clear with the execution which it has under the Code of Civil Procedure.11. Though the court which is carrying an execution is not deprived of the jurisdiction the moment a stay order is passed, even though it has no knowledge of it, this does not mean that when the court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the court has knowledge of the stay order. We are of opinion that S. 151 of the Code of Civil Procedure would always be available to the court executing the decree, for in such a case, when the stay order is brought to its notice, it can always act under S. 151, and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so. Though therefore the courts executing the decree cannot in our opinion be deprived of its jurisdiction to carry on execution till it has knowledge of the stay order, the court has the power in our view to set- aside the proceeding taken between the time when the stay order was passed and the time when it was brought to its notice if it is asked to do so and it considers that it is necessary in the interests of justice that the interim proceedings should be set aside. But that can only be done by the court which has taken the interim proceedings in the interest of justice under S. I51 of the Code of Civil Procedure provided the order is brought to its knowledge and a prayer is made to set aside this interim proceedings within a reasonable time. Otherwise the interim proceedings in our opinion are not a nullity and the absence of such exercise of power by the court executing the decree under S. 151, they remain good for all purposes.12. What we have said about execution proceedings applies with greater force to stay orders passed in transfer applications, as in the present case. In the case of execution proceedings at any rate there is an appeal in which a stay order is passed : the transfer proceedings are collateral proceedings and even though the superior authority only have the power to say, it cannot deprive the inferior authority having jurisdiction of that jurisdiction unless the inferior authority is apprised of the order by the superior authority. In the present case the order of stay never came to the knowledge of the Magistrate concerned till he gave the permission on October 4, 1961. Later on the District Magistrate himself dismissed the transfer petition. The order was not brought to the knowledge of the Magistrate concerned by the appellant at any time. Nor did he ever apply to the Magistrate to set aside the permission passed in ignorance in the interest of justice. In these circumstances, the appellant cannot challenge the permission as a nullity in the suit which has been brought on the basis of that permission.13. We may however add that what we have said above refers only to proceedings being carried on by courts or authorities after the stay order has been passed and before they have knowledge of it. But this may not apply in a case where stay is made for ministerial officers, as for example in the case of a court asking a bailiff not to sell and the bailiff selling without knowledge of the order of the court prohibiting it to carry on the sale. The position in such a case may be different, but as to that we express no final opinion in the present appeal. ### Response: 0 ### Explanation: the court must stay its hands and anything it does thereafter would be a nullity so long as the stay order is inis in our opinion question of uncertainty, even if we hold that the stay order must come to the knowledge of the court to which it is addressed before it takes effect. The court may receive knowledge either on receipt of an order of stay from the court that passed it or through one party or the other supported by an affidavit or in any other way. There is in our opinion no uncertainty by reason of the fact that the court to which the stay order is addressed must have knowledge of it before it takes effect for it can always be proved that the court to which the stay order was addressed had knowledge of it and that is not a matter which should really create any difficulty or uncertainty. Once it is clear that a stay order is in the nature of a prohibitory order, knowledge of it by the court which is prohibited is essential before the court is deprived of the power to carry on the proceedings.As we have already indicated, an order of stay is as much a prohibitory order as an injunction order and unless the court to which it is addressed has knowledge of it, it cannot deprive that court of the jurisdiction to proceed with the execution before it. But there is one difference between an order of injunction and an order of stay arising out of the fact that an injunction order is usually passed against a party while a stay order is addressed to the court. As the stay order is addressed to the court, as soon as the court has knowledge of; it must stay its hand if it does not do so, it acts illegally. Therefore in the case of stay order as opposed to an order of injunction, as soon as the court has knowledge of it, it must stay its hand and further proceedings are illegal, but so long as the court has no knowledge of the stay order it does not lose the jurisdiction to clear with the execution which it has under theCode of Civil Procedure.11. Though the court which is carrying an execution is not deprived of the jurisdiction the moment a stay order is passed, even though it has no knowledge of it, this does not mean that when the court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the court has knowledge of the stay order. We are of opinion that S. 151 of theCode of Civil Procedure would always be available to the court executing the decree, for in such a case, when the stay order is brought to its notice, it can always act under S. 151, and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so. Though therefore the courts executing the decree cannot in our opinion be deprived of its jurisdiction to carry on execution till it has knowledge of the stay order, the court has the power in our view to set- aside the proceeding taken between the time when the stay order was passed and the time when it was brought to its notice if it is asked to do so and it considers that it is necessary in the interests of justice that the interim proceedings should be set aside. But that can only be done by the court which has taken the interim proceedings in the interest of justice under S. I51 of theCode of Civil Procedure provided the order is brought to its knowledge and a prayer is made to set aside this interim proceedings within a reasonable time. Otherwise the interim proceedings in our opinion are not a nullity and the absence of such exercise of power by the court executing the decree under S. 151, they remain good for all purposes.12. What we have said about execution proceedings applies with greater force to stay orders passed in transfer applications, as in the present case. In the case of execution proceedings at any rate there is an appeal in which a stay order is passed : the transfer proceedings are collateral proceedings and even though the superior authority only have the power to say, it cannot deprive the inferior authority having jurisdiction of that jurisdiction unless the inferior authority is apprised of the order by the superior authority. In the present case the order of stay never came to the knowledge of the Magistrate concerned till he gave the permission on October 4, 1961. Later on the District Magistrate himself dismissed the transfer petition. The order was not brought to the knowledge of the Magistrate concerned by the appellant at any time. Nor did he ever apply to the Magistrate to set aside the permission passed in ignorance in the interest of justice. In these circumstances, the appellant cannot challenge the permission as a nullity in the suit which has been brought on the basis of that permission.13. We may however add that what we have said above refers only to proceedings being carried on by courts or authorities after the stay order has been passed and before they have knowledge of it. But this may not apply in a case where stay is made for ministerial officers, as for example in the case of a court asking a bailiff not to sell and the bailiff selling without knowledge of the order of the court prohibiting it to carry on the sale. The position in such a case may be different, but as to that we express no final opinion in the present appeal.
O.A.P. Andiappan Vs. Commissioner of Income Tax, Madras & Others	assessee would have been liable to pay in this country a tax of Rs. 10,282,62 p. in the assessment year 1959-60 and Rs. 9,521.35 p. in the assessment year 1960-61. 5. In order to consider the correctness of the contentions advanced by Mr. Ramachandran, we will now turn to the relevant provisions of the Agreement. That Agreement was notified in Notification SRO 456 dt. the 6th February, 1957. The portion of the notification which is relevant for our present purposes is contained in Article 3 and column 8 of the Schedule to that agreement. Article 3 reads : Each country shall make assessment in the ordinary way under its own laws; and where either country under the operation of its laws charges any income from the sources or categories of transactions specified in column 1 of the Schedule to this Agreement (hereinafter referred to as the Schedule) in excess of the amount calculated according to the percentages specified in columns II and III thereof, that country shall allow an abatement equal to the lower of the amounts of tax attributable to such excess in either country. TABLE 8. Any income derived from a source or category of transactions not mentioned in any of the foregoing items of the Schedule.100 per cent by the country in which the income actually accrues or arises. Nil by the other. 6. The first portion of article 3 says that each country shall make an assessment in the ordinary way under its own laws. This means to begin with both India and Ceylon were required to assess the assessee in accordance with law prevailing in each of these countries. Thus far it is plain. From this it is clear that first contention advanced on behalf of the assessee has no basis. Hence it must fail. Now we come to the second part of that article to the extent necessary for determining the second contention. It reads : and where either country under the operation of its laws charges any income from the sources or categories of transaction specified in column I of the schedule to this Agreement.... in excess of the amount calculated according to the percentages specified in columns II and III thereof, that country shall allow an abatement equal to the lower of the amounts of tax attributable to such excess in either country. The language employed in this part of the article is quite confusing. That part of the article has to be read with the schedule. On a proper reading of that provision along with the schedule which means in the present case, item 8 of the schedule, it appears to us that what it says is :- From out of the amount ascertained under the first part of the Article deduct the tax payable by the assessee in the other country in respect of the whole or any portion of the amount brought to tax under the first part of the article. The word attributable in that Article merely means payable. Applying the principles mentioned above to the facts of the present case, the following result is reached. The tax payable under the Indian law as seen earlier was Rs. 10,282.62 p. in the assessment year 1959-60. The tax payable under the Ceylonese law in that year was Rs. 5,919. That has to be deducted from the tax computed under the Indian law. The balance alone is leviable. Similarly in the assessment year 1960-61 the tax computed under the Indian Law is Rs. 9,521,35 p. and the tax levied under the Ceylonese is being Rs. 6,036/-. In levying tax in this country the tax payable in Ceylon has to be deducted. It was urged by Mr. Ramachandran that what we have to take into consideration is not the actual tax levied in Ceylon but the tax leviable in Ceylon on a non-resident. He says that the deduction given under section 45 (2) of the Ordinance promulgated in Ceylon is only an allowance. Hence the same does not form part of the actual taxation. We are unable to accede to that contention. In considering what taxes are attributable to the tax laws of a particular country, one has to take into consideration all the provisions of the statutes levying tax. In other words for determining the tax due from an assessee, we have not merely to look to the charging section but also to the provisions providing exemptions and allowances. If so read, it is quite clear that the amount of tax attributable to the Ceylonese law is that which was ultimately levied on the assessee. 7. The agreement that was entered into between India and Pakistan is similar in terms with the agreement, with which we are concerned n these appeals, except that in article 4 therein which corresponds to article 3 in the agreement before us in the place of the word attributable the word payable is used. But this change does not make any difference in substance. Interpreting that agreement this court in, Ramesh R. Saraiva v. Commr. of Income Tax, Bombay City-I, 55 ITR 699 = (AIR 1965 SC 1263 ) held that Article IV of the Indo-Pakistan Agreement for the avoidance of Double Taxation clearly shows that each Dominion can make an assessment in the ordinary way regardless of the agreement. The restriction which is imposed on each Dominion under the agreement is not on the power of assessment but on the liberty to retain the tax assessed. Nor does the Schedule to the Agreement limit the power of each Dominion to assess in the normal way all the income that is liable to taxation under its laws. The Schedule has been appended only for the purpose of calculating the abatement to be allowed by each Dominion. The ratio of this decision, in our opinion, governs the facts of this case. 8. We also do not see any reason, for treating the appellant in a manner different from other assessees, who are resident in this country.	0[ds]6. The first portion of article 3 says that each country shall make an assessment in the ordinary way under its own laws. This means to begin with both India and Ceylon were required to assess the assessee in accordance with law prevailing in each of these countries. Thus far it is plain. From this it is clear that first contention advanced on behalf of the assessee has no basis. Hence it must fail. Now we come to the second part of that article to the extent necessary for determining the second contentionThe language employed in this part of the article is quite confusing. That part of the article has to be read with the schedule. On a proper reading of that provision along with the schedule which means in the present case, item 8 of the schedule, it appears to us that what it says is :-7. The agreement that was entered into between India and Pakistan is similar in terms with the agreement, with which we are concerned n these appeals, except that in article 4 therein which corresponds to article 3 in the agreement before us in the place of the word attributable the word payable is used. But this change does not make any difference in substance8. We also do not see any reason, for treating the appellant in a manner different from other assessees, who are resident in this country.	0	1,652	258	### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: assessee would have been liable to pay in this country a tax of Rs. 10,282,62 p. in the assessment year 1959-60 and Rs. 9,521.35 p. in the assessment year 1960-61. 5. In order to consider the correctness of the contentions advanced by Mr. Ramachandran, we will now turn to the relevant provisions of the Agreement. That Agreement was notified in Notification SRO 456 dt. the 6th February, 1957. The portion of the notification which is relevant for our present purposes is contained in Article 3 and column 8 of the Schedule to that agreement. Article 3 reads : Each country shall make assessment in the ordinary way under its own laws; and where either country under the operation of its laws charges any income from the sources or categories of transactions specified in column 1 of the Schedule to this Agreement (hereinafter referred to as the Schedule) in excess of the amount calculated according to the percentages specified in columns II and III thereof, that country shall allow an abatement equal to the lower of the amounts of tax attributable to such excess in either country. TABLE 8. Any income derived from a source or category of transactions not mentioned in any of the foregoing items of the Schedule.100 per cent by the country in which the income actually accrues or arises. Nil by the other. 6. The first portion of article 3 says that each country shall make an assessment in the ordinary way under its own laws. This means to begin with both India and Ceylon were required to assess the assessee in accordance with law prevailing in each of these countries. Thus far it is plain. From this it is clear that first contention advanced on behalf of the assessee has no basis. Hence it must fail. Now we come to the second part of that article to the extent necessary for determining the second contention. It reads : and where either country under the operation of its laws charges any income from the sources or categories of transaction specified in column I of the schedule to this Agreement.... in excess of the amount calculated according to the percentages specified in columns II and III thereof, that country shall allow an abatement equal to the lower of the amounts of tax attributable to such excess in either country. The language employed in this part of the article is quite confusing. That part of the article has to be read with the schedule. On a proper reading of that provision along with the schedule which means in the present case, item 8 of the schedule, it appears to us that what it says is :- From out of the amount ascertained under the first part of the Article deduct the tax payable by the assessee in the other country in respect of the whole or any portion of the amount brought to tax under the first part of the article. The word attributable in that Article merely means payable. Applying the principles mentioned above to the facts of the present case, the following result is reached. The tax payable under the Indian law as seen earlier was Rs. 10,282.62 p. in the assessment year 1959-60. The tax payable under the Ceylonese law in that year was Rs. 5,919. That has to be deducted from the tax computed under the Indian law. The balance alone is leviable. Similarly in the assessment year 1960-61 the tax computed under the Indian Law is Rs. 9,521,35 p. and the tax levied under the Ceylonese is being Rs. 6,036/-. In levying tax in this country the tax payable in Ceylon has to be deducted. It was urged by Mr. Ramachandran that what we have to take into consideration is not the actual tax levied in Ceylon but the tax leviable in Ceylon on a non-resident. He says that the deduction given under section 45 (2) of the Ordinance promulgated in Ceylon is only an allowance. Hence the same does not form part of the actual taxation. We are unable to accede to that contention. In considering what taxes are attributable to the tax laws of a particular country, one has to take into consideration all the provisions of the statutes levying tax. In other words for determining the tax due from an assessee, we have not merely to look to the charging section but also to the provisions providing exemptions and allowances. If so read, it is quite clear that the amount of tax attributable to the Ceylonese law is that which was ultimately levied on the assessee. 7. The agreement that was entered into between India and Pakistan is similar in terms with the agreement, with which we are concerned n these appeals, except that in article 4 therein which corresponds to article 3 in the agreement before us in the place of the word attributable the word payable is used. But this change does not make any difference in substance. Interpreting that agreement this court in, Ramesh R. Saraiva v. Commr. of Income Tax, Bombay City-I, 55 ITR 699 = (AIR 1965 SC 1263 ) held that Article IV of the Indo-Pakistan Agreement for the avoidance of Double Taxation clearly shows that each Dominion can make an assessment in the ordinary way regardless of the agreement. The restriction which is imposed on each Dominion under the agreement is not on the power of assessment but on the liberty to retain the tax assessed. Nor does the Schedule to the Agreement limit the power of each Dominion to assess in the normal way all the income that is liable to taxation under its laws. The Schedule has been appended only for the purpose of calculating the abatement to be allowed by each Dominion. The ratio of this decision, in our opinion, governs the facts of this case. 8. We also do not see any reason, for treating the appellant in a manner different from other assessees, who are resident in this country. ### Response: 0 ### Explanation: 6. The first portion of article 3 says that each country shall make an assessment in the ordinary way under its own laws. This means to begin with both India and Ceylon were required to assess the assessee in accordance with law prevailing in each of these countries. Thus far it is plain. From this it is clear that first contention advanced on behalf of the assessee has no basis. Hence it must fail. Now we come to the second part of that article to the extent necessary for determining the second contentionThe language employed in this part of the article is quite confusing. That part of the article has to be read with the schedule. On a proper reading of that provision along with the schedule which means in the present case, item 8 of the schedule, it appears to us that what it says is :-7. The agreement that was entered into between India and Pakistan is similar in terms with the agreement, with which we are concerned n these appeals, except that in article 4 therein which corresponds to article 3 in the agreement before us in the place of the word attributable the word payable is used. But this change does not make any difference in substance8. We also do not see any reason, for treating the appellant in a manner different from other assessees, who are resident in this country.
BHARAT PETROLEUM CORP.LTD Vs. R.CHANDRAMOULEESWARAN AND ORS	he is in possession of the property but not afterwards, meaning thereby the ownership of the building is with the lessee and not with the lessor. At the same time, nothing prevents the lessee from contracting to hand over the building or the structure erected on the land constructed by him without receiving compensation. 18. In P. Ananthakrishnan Nair and Another v. Dr G. Ramakrishnan and Another, (1987) 2 SCC 429 a Division Bench of this Court interpreting Section 2(4) and Section 9 of the Act had held that as per the mandate of Sections 3, 4 and 5, post the 1972 and 1973 amendments, it is mandatory for the court to first decide the minimum extent of land which may be necessary for the convenient enjoyment by the tenant . The words in italics were emphasised by the Division Bench to observe that the court may, on facts of a particular case, come to a conclusion that the tenant may not require any portion of the land and in that event it may reject the application and decree the suit for ejectment and direct the landlord to pay compensation to the tenant. Section 9 confers a privilege on the tenant and not a vested right, but the privilege granted by the statute is equitable in nature. Elucidating further, it was observed: 11. […]The enquiry presupposes that the tenant making the application has been in the occupation of the land and the superstructure wherein he may be either residing or carrying on business, and on his eviction he would be adversely affected. The policy underlying Section 9 of the Act, is directed to safeguard the eviction of those tenants who may have constructed superstructure on the demised land, so that they may continue to occupy the same for the purposes of their residence or business. In the said case, an eviction decree was passed observing that the tenant had in the small portion of the land kept account books of the business and rest of the land and structure standing thereon had been in occupation of sub-tenants since 1964. 19. In S.R. Radhakrishnan and Others v. Neelamegam (2003) 10 SCC 705 , this Court had again interpreted Section 2(4) and 9 of the Act after referring to the dictum in P. Ananthakrishnan (supra) elucidating that the policy underlying Section 9 is to safeguard eviction of those tenants who may have constructed superstructure on the demised land, so that they may continue to occupy the same for the purpose of residence or business. Thus, the tenant not in actual possession of most of the demised premises in P.Ananthakrishnan (supra) had suffered a decree for eviction. Therefore, it was held in P. Ananthakrishnan (supra) that it will be unreasonable to direct the landlord to sell the land to the tenant. In the said case, application under Section 9 filed by the legal heir of the tenant was dismissed observing that admittedly he was not in possession of the demised premises and had ceased to be a tenant. 20. The counsel for the appellant had made a valiant attempt to distinguish the said decisions as P. Ananthakrishnan (supra) was a case of sub-letting and in S.R. Radhakrishnan (supra), the court had relied upon the reply of the defendant No.1 stating that he had nothing to do with the property as defendant Nos. 2 and 3 were in possession thereof. It is correct that P. Ananthakrishnan (supra) was a case of sub-letting which means parting of possession by the tenant to the sub-tenant. However, the said case records observations as to the object and purpose behind Section 9 and the tenants whose interests were sought to be protected. In S.R. Radhakrishnan (supra), the land had been given on lease to the father of the defendant No. 1 who had thereafter in terms of lease made constructions for setting up and running a printing press, in which business he had taken his younger brothers, defendant Nos. 2 and 3, possibly as partners. Thereafter, he had executed a deed in favour of defendant Nos. 2 and 3 relinquishing his business of the printing press. For the same reasons, we would hold that the observations made relating to the interpretation of Sections 2(4) and 9 are relevant even if we hold that the ratios are not applicable as the facts are not identical. 21. In view of the aforesaid discussion, we hold as under: (I) Sub-clauses (i) and (ii)(a) to clause (4) of Section 2 of the Act apply to all tenants who had entered into oral or unregistered written agreements or registered written agreements without any stipulation with regard to erection of buildings for taking land on lease, and had subsequently constructed buildings. Such tenants would be entitled to protection of the Act provided the tenant satisfies the conditions mentioned in sub-clauses (i) or (ii)(a) to clause (4) of Section 2 of the Act. (II) Paragraph 1 of sub-clause (ii)(b) to clause (4) of Section 2 of the Act applies to tenants who are not entitled to the rights under the Act by reason of the proviso to Section 12 which stood deleted vide the Amendment Act, 1972. Paragraph 2 of the said sub-clause applies to cases where a decree of declaration or decree or an order of possession or similar relief has been passed against a tenant on the ground that the proviso to Section 12, which was omitted by the Amendment Act, 1972, disentitles the tenant from claiming rights under the Act. Accordingly, sub-clause (b) to Section 2(4)(ii) would apply only to tenancies which were earlier excluded from the protection under the Act vide the proviso to Section 12 which stands deleted with retrospective effect vide the Amending Act, 1972. (III) Sub-clause (ii)(c) to clause (4) of Section 2 states that heirs of a tenant referred to in sub-clause (i) or sub-clauses (ii)(a) or (ii)(b) would be entitled to benefit of the Act. However, it expressly excludes a sub-tenant or heirs of the sub-tenant.	0[ds]Thus, while interpreting sub-clause (b) to Section 2(4)(ii), this Court has held that the expression actual physical possession of land and building would mean and require the tenant to be in actual possession and the sub-clause(b) would not apply if the tenant has sub-let the building or has given the premises on leave and licence basis. The aforesaid decision would operate as res judicata in the case of the appellant and the landlords who were parties to the decision. In other cases, it would operate as a binding precedent under Article 141 of the Constitution13. Before we go on to examine the challenge raised by the appellant, it is apparent that the Act essentially protects the rights of three categories of tenants as enlisted under Section 2(4) of the Act, viz., those covered under sub-clauses (i) and (ii)(a) who have always been protected under the provisions of the Act; and by addition of clause (b) with retrospective effect the tenants who were originally disallowed the benefits on account of the proviso to Section 12 of the Act; and lastly as per sub-clause (c), heirs of the tenants covered under the aforesaid categories, but not sub- tenants and heirs of sub-tenants. By excluding sub-tenants and their heirs, the legislature has made it clear that sub-tenants would not be entitled to benefits and rights conferred under the Act including right to purchase the land under Section 9 or compensation payable for the construction etc. under Sections 3 and 4 of the Act. Sub-tenants or the heirs of sub-tenants are not15. The amendments and modifications made by the Amendment Acts of 1972 and 1973 whereby sub-clause (b) to Section 2(4)(ii) was added with retrospective effect, the proviso to Section 12 was deleted with retrospective effect and the amendments to Section 9 were made with retrospective effect, have to be read holistically and in entirety, for it is a well-known canon of construction that every section of a statute is to be construed with reference to the context and other sections of the statute, so as, as far as possible, to make a consistent enactment of the whole statute. Raghbir Singh Gill v. Gurcharan Singh Tohra and Others 1980 SCR (3)1302 quoting R v. Board of Trade, [1965] 1 Q.B. 603. By these amendments, the tenants excluded from the benefit/privilege of the Act vide the proviso to Section 12 were brought within the ambit of the protection and rights given under the Act but with different conditions and stipulations. In other words, sub-clause (ii) (b) to section 2(4) is restricted and applies to only those tenants who were covered by the proviso to Section 12 and not those tenants who were already entitled to protection and rights under the Act. This is clear from the latter portion of sub-clause (ii)(b) to Section 2(4) of the Act which refers to the proviso to Section 12 and also a decree for declaration or possession or similar relief passed against the person on the ground that proviso to Section 12 had disentitled such persons from claiming rights under the Act. The amendment made by adding sub-clause (b) to Section 2(4)(ii) vide the Amendment Act, 1973 was not to dilute or impose new conditions on the tenants who were otherwise entitled to protection as tenants under Section 2(4)(i) or to Section 2(4)(ii)(a) of the Act read with Sections 3, 4 and 9 of the Act. This also flows from the legislature using the word continues in possession in sub-clause (ii)(a) to Section 2(4), whereas the words used in sub- clause (ii)(b) are continues in actual physical possession. The legislature deliberately has used different words in sub-clauses (ii) (a) and (ii)(b). The enactment of sub-clause (ii)(b) has to be read with other amendments made vide the Amendment Acts of 1972 and 1973 would accordingly apply to those tenants who were brought under the umbrella and protection of the Act by deleting the proviso to Section 12. Therefore, sub-clause (ii)(b) to Section 2(4) would apply to tenants who were covered by the deleted proviso to Section 12, whereas sub-clause (ii)(a) to Section 2(4) would apply to tenants who had taken land on lease without any written registered instrument relating to the erection of buildings16. No doubt, sub-clause (ii)(a) to Section 2(4) refers to land, and the words land and building have been separately defined vide clauses (2) and (1) to Section 2 respectively, with the postulate that land does not include building, however we are not inclined to hold that the distinction between sub-clauses (ii)(a) and (ii)(b) to Section 2(4) is based upon whether a tenant had constructed a building in which case sub-clause (ii)(b) would apply and not sub- clause (ii)(a). In other words, we are not in agreement with the contention that where the tenant of a land has not constructed building, sub-clause (ii)(a) would apply and where a tenant of land has constructed a building, sub-clause (ii)(b) would apply. The reason is obvious. The Act as per the objects and purposes was enacted and enforced to grant certain rights to tenants who had acquired leases of land and had thereupon constructed a building with the implied understanding that they would not be evicted as long as they paid the fair rent. The tenants covered by sub-clause (ii)(a) were protected under the Act even before the enactment of sub-clause (b) to section 2(4)(ii) of the Act vide the Amendment Act, 1973. The Act as originally enacted with Section 2(4) defining the term tenant before its amendment vide the Amendment Act, 1973 would apply to all the tenants who had acquired leasehold land and thereafter constructed a building, except the tenants who had entered into written registered contracts with terms relating to erection of buildings who were covered by the deleted proviso to Section 1217. Decision of the Constitution Bench of six judges in Swami Motor Transports (P) Ltd. And Another v. Sri Sankaraswamigal Mutt and Another 1963 Supp (1) SCR 282 on which reliance was placed by the counsel for the appellant, though relating to the Act, relates to the challenge to the Amendment Act, 1960 by which non-residential buildings constructed on the leasehold land in the municipal towns of19. In S.R. Radhakrishnan and Others v. Neelamegam (2003) 10 SCC 705 , this Court had again interpreted Section 2(4) and 9 of the Act after referring to the dictum in P. Ananthakrishnan (supra) elucidating that the policy underlying Section 9 is to safeguard eviction of those tenants who may have constructed superstructure on the demised land, so that they may continue to occupy the same for the purpose of residence or business. Thus, the tenant not in actual possession of most of the demised premises in P.Ananthakrishnan (supra) had suffered a decree for eviction. Therefore, it was held in P. Ananthakrishnan (supra) that it will beunreasonable to direct the landlord to sell the land to the tenant. In the said case, application under Section 9 filed by the legal heir of the tenant was dismissed observing that admittedly he was not in possession of the demised premises and had ceased to be a tenant20. The counsel for the appellant had made a valiant attempt to distinguish the said decisions as P. Ananthakrishnan (supra) was a case of sub-letting and in S.R. Radhakrishnan (supra), the court had relied upon the reply of the defendant No.1 stating that he had nothing to do with the property as defendant Nos. 2 and 3 were in possession thereof. It is correct that P. Ananthakrishnan (supra) was a case of sub-letting which means parting of possession by the tenant to the sub-tenant. However, the said case records observations as to the object and purpose behind Section 9 and the tenants whose interests were sought to be protected. In S.R. Radhakrishnan (supra), the land had been given on lease to the father of the defendant No. 1 who had thereafter in terms of lease made constructions for setting up and running a printing press, in which business he had taken his younger brothers, defendant Nos. 2 and 3, possibly as partners. Thereafter, he had executed a deed in favour of defendant Nos. 2 and 3 relinquishing his business of the printing press. For the same reasons, we would hold that the observations made relating to the interpretation of Sections 2(4) and 9 are relevant even if we hold that the ratios are not applicable as the facts are not identical21. In view of the aforesaid discussion, we hold as(I) Sub-clauses (i) and (ii)(a) to clause (4) of Section 2 of the Act apply to all tenants who had entered into oral or unregistered written agreements or registered written agreements without any stipulation with regard to erection of buildings for taking land on lease, and had subsequently constructed buildings. Such tenants would be entitled to protection of the Act provided the tenant satisfies the conditions mentioned in sub-clauses (i) or (ii)(a) to clause (4) of Section 2 of the Act(II) Paragraph 1 of sub-clause (ii)(b) to clause (4) of Section 2 of the Act applies to tenants who are not entitled to the rights under the Act by reason of the proviso to Section 12 which stood deleted vide the Amendment Act, 1972. Paragraph 2 of the said sub-clause applies to cases where a decree of declaration or decree or an order of possession or similar relief has been passed against a tenant on the ground that the proviso to Section 12, which was omitted by the Amendment Act, 1972, disentitles the tenant from claiming rights under the Act. Accordingly, sub-clause (b) to Section 2(4)(ii) would apply only to tenancies which were earlier excluded from the protection under the Act vide the proviso to Section 12 which stands deleted with retrospective effect vide the Amending Act, 1972(III) Sub-clause (ii)(c) to clause (4) of Section 2 states that heirs of a tenant referred to in sub-clause (i) or sub-clauses (ii)(a) or (ii)(b) would be entitled to benefit of the Act. However, it expressly excludes a sub-tenant or heirs of the sub-tenant12. A Division Bench of this Court vide order dated 3 rd December 2009 in C.A. No. 5903 of 2006 titled Bharat Petroleum Corporation Ltd. v. Nirmala and Another and other connected matters while interpreting sub-clause (b) to Section 2(4)(ii) has held that the expression actual physical possession of land and building would mean and require the tenant to be in actual physical possession. The provisions would not be applicable if the tenant is not in actual physical possession and has given the premises on lease or licence basis to a third party. The Court, however, did not give any finding on the question whether such benefit is available to the appellant under Section 2(4)(i) or Section 2(4)(ii)(a).	0	7,891	2,199	### Instruction: Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case. ### Input: he is in possession of the property but not afterwards, meaning thereby the ownership of the building is with the lessee and not with the lessor. At the same time, nothing prevents the lessee from contracting to hand over the building or the structure erected on the land constructed by him without receiving compensation. 18. In P. Ananthakrishnan Nair and Another v. Dr G. Ramakrishnan and Another, (1987) 2 SCC 429 a Division Bench of this Court interpreting Section 2(4) and Section 9 of the Act had held that as per the mandate of Sections 3, 4 and 5, post the 1972 and 1973 amendments, it is mandatory for the court to first decide the minimum extent of land which may be necessary for the convenient enjoyment by the tenant . The words in italics were emphasised by the Division Bench to observe that the court may, on facts of a particular case, come to a conclusion that the tenant may not require any portion of the land and in that event it may reject the application and decree the suit for ejectment and direct the landlord to pay compensation to the tenant. Section 9 confers a privilege on the tenant and not a vested right, but the privilege granted by the statute is equitable in nature. Elucidating further, it was observed: 11. […]The enquiry presupposes that the tenant making the application has been in the occupation of the land and the superstructure wherein he may be either residing or carrying on business, and on his eviction he would be adversely affected. The policy underlying Section 9 of the Act, is directed to safeguard the eviction of those tenants who may have constructed superstructure on the demised land, so that they may continue to occupy the same for the purposes of their residence or business. In the said case, an eviction decree was passed observing that the tenant had in the small portion of the land kept account books of the business and rest of the land and structure standing thereon had been in occupation of sub-tenants since 1964. 19. In S.R. Radhakrishnan and Others v. Neelamegam (2003) 10 SCC 705 , this Court had again interpreted Section 2(4) and 9 of the Act after referring to the dictum in P. Ananthakrishnan (supra) elucidating that the policy underlying Section 9 is to safeguard eviction of those tenants who may have constructed superstructure on the demised land, so that they may continue to occupy the same for the purpose of residence or business. Thus, the tenant not in actual possession of most of the demised premises in P.Ananthakrishnan (supra) had suffered a decree for eviction. Therefore, it was held in P. Ananthakrishnan (supra) that it will be unreasonable to direct the landlord to sell the land to the tenant. In the said case, application under Section 9 filed by the legal heir of the tenant was dismissed observing that admittedly he was not in possession of the demised premises and had ceased to be a tenant. 20. The counsel for the appellant had made a valiant attempt to distinguish the said decisions as P. Ananthakrishnan (supra) was a case of sub-letting and in S.R. Radhakrishnan (supra), the court had relied upon the reply of the defendant No.1 stating that he had nothing to do with the property as defendant Nos. 2 and 3 were in possession thereof. It is correct that P. Ananthakrishnan (supra) was a case of sub-letting which means parting of possession by the tenant to the sub-tenant. However, the said case records observations as to the object and purpose behind Section 9 and the tenants whose interests were sought to be protected. In S.R. Radhakrishnan (supra), the land had been given on lease to the father of the defendant No. 1 who had thereafter in terms of lease made constructions for setting up and running a printing press, in which business he had taken his younger brothers, defendant Nos. 2 and 3, possibly as partners. Thereafter, he had executed a deed in favour of defendant Nos. 2 and 3 relinquishing his business of the printing press. For the same reasons, we would hold that the observations made relating to the interpretation of Sections 2(4) and 9 are relevant even if we hold that the ratios are not applicable as the facts are not identical. 21. In view of the aforesaid discussion, we hold as under: (I) Sub-clauses (i) and (ii)(a) to clause (4) of Section 2 of the Act apply to all tenants who had entered into oral or unregistered written agreements or registered written agreements without any stipulation with regard to erection of buildings for taking land on lease, and had subsequently constructed buildings. Such tenants would be entitled to protection of the Act provided the tenant satisfies the conditions mentioned in sub-clauses (i) or (ii)(a) to clause (4) of Section 2 of the Act. (II) Paragraph 1 of sub-clause (ii)(b) to clause (4) of Section 2 of the Act applies to tenants who are not entitled to the rights under the Act by reason of the proviso to Section 12 which stood deleted vide the Amendment Act, 1972. Paragraph 2 of the said sub-clause applies to cases where a decree of declaration or decree or an order of possession or similar relief has been passed against a tenant on the ground that the proviso to Section 12, which was omitted by the Amendment Act, 1972, disentitles the tenant from claiming rights under the Act. Accordingly, sub-clause (b) to Section 2(4)(ii) would apply only to tenancies which were earlier excluded from the protection under the Act vide the proviso to Section 12 which stands deleted with retrospective effect vide the Amending Act, 1972. (III) Sub-clause (ii)(c) to clause (4) of Section 2 states that heirs of a tenant referred to in sub-clause (i) or sub-clauses (ii)(a) or (ii)(b) would be entitled to benefit of the Act. However, it expressly excludes a sub-tenant or heirs of the sub-tenant. ### Response: 0 ### Explanation: that where the tenant of a land has not constructed building, sub-clause (ii)(a) would apply and where a tenant of land has constructed a building, sub-clause (ii)(b) would apply. The reason is obvious. The Act as per the objects and purposes was enacted and enforced to grant certain rights to tenants who had acquired leases of land and had thereupon constructed a building with the implied understanding that they would not be evicted as long as they paid the fair rent. The tenants covered by sub-clause (ii)(a) were protected under the Act even before the enactment of sub-clause (b) to section 2(4)(ii) of the Act vide the Amendment Act, 1973. The Act as originally enacted with Section 2(4) defining the term tenant before its amendment vide the Amendment Act, 1973 would apply to all the tenants who had acquired leasehold land and thereafter constructed a building, except the tenants who had entered into written registered contracts with terms relating to erection of buildings who were covered by the deleted proviso to Section 1217. Decision of the Constitution Bench of six judges in Swami Motor Transports (P) Ltd. And Another v. Sri Sankaraswamigal Mutt and Another 1963 Supp (1) SCR 282 on which reliance was placed by the counsel for the appellant, though relating to the Act, relates to the challenge to the Amendment Act, 1960 by which non-residential buildings constructed on the leasehold land in the municipal towns of19. In S.R. Radhakrishnan and Others v. Neelamegam (2003) 10 SCC 705 , this Court had again interpreted Section 2(4) and 9 of the Act after referring to the dictum in P. Ananthakrishnan (supra) elucidating that the policy underlying Section 9 is to safeguard eviction of those tenants who may have constructed superstructure on the demised land, so that they may continue to occupy the same for the purpose of residence or business. Thus, the tenant not in actual possession of most of the demised premises in P.Ananthakrishnan (supra) had suffered a decree for eviction. Therefore, it was held in P. Ananthakrishnan (supra) that it will beunreasonable to direct the landlord to sell the land to the tenant. In the said case, application under Section 9 filed by the legal heir of the tenant was dismissed observing that admittedly he was not in possession of the demised premises and had ceased to be a tenant20. The counsel for the appellant had made a valiant attempt to distinguish the said decisions as P. Ananthakrishnan (supra) was a case of sub-letting and in S.R. Radhakrishnan (supra), the court had relied upon the reply of the defendant No.1 stating that he had nothing to do with the property as defendant Nos. 2 and 3 were in possession thereof. It is correct that P. Ananthakrishnan (supra) was a case of sub-letting which means parting of possession by the tenant to the sub-tenant. However, the said case records observations as to the object and purpose behind Section 9 and the tenants whose interests were sought to be protected. In S.R. Radhakrishnan (supra), the land had been given on lease to the father of the defendant No. 1 who had thereafter in terms of lease made constructions for setting up and running a printing press, in which business he had taken his younger brothers, defendant Nos. 2 and 3, possibly as partners. Thereafter, he had executed a deed in favour of defendant Nos. 2 and 3 relinquishing his business of the printing press. For the same reasons, we would hold that the observations made relating to the interpretation of Sections 2(4) and 9 are relevant even if we hold that the ratios are not applicable as the facts are not identical21. In view of the aforesaid discussion, we hold as(I) Sub-clauses (i) and (ii)(a) to clause (4) of Section 2 of the Act apply to all tenants who had entered into oral or unregistered written agreements or registered written agreements without any stipulation with regard to erection of buildings for taking land on lease, and had subsequently constructed buildings. Such tenants would be entitled to protection of the Act provided the tenant satisfies the conditions mentioned in sub-clauses (i) or (ii)(a) to clause (4) of Section 2 of the Act(II) Paragraph 1 of sub-clause (ii)(b) to clause (4) of Section 2 of the Act applies to tenants who are not entitled to the rights under the Act by reason of the proviso to Section 12 which stood deleted vide the Amendment Act, 1972. Paragraph 2 of the said sub-clause applies to cases where a decree of declaration or decree or an order of possession or similar relief has been passed against a tenant on the ground that the proviso to Section 12, which was omitted by the Amendment Act, 1972, disentitles the tenant from claiming rights under the Act. Accordingly, sub-clause (b) to Section 2(4)(ii) would apply only to tenancies which were earlier excluded from the protection under the Act vide the proviso to Section 12 which stands deleted with retrospective effect vide the Amending Act, 1972(III) Sub-clause (ii)(c) to clause (4) of Section 2 states that heirs of a tenant referred to in sub-clause (i) or sub-clauses (ii)(a) or (ii)(b) would be entitled to benefit of the Act. However, it expressly excludes a sub-tenant or heirs of the sub-tenant12. A Division Bench of this Court vide order dated 3 rd December 2009 in C.A. No. 5903 of 2006 titled Bharat Petroleum Corporation Ltd. v. Nirmala and Another and other connected matters while interpreting sub-clause (b) to Section 2(4)(ii) has held that the expression actual physical possession of land and building would mean and require the tenant to be in actual physical possession. The provisions would not be applicable if the tenant is not in actual physical possession and has given the premises on lease or licence basis to a third party. The Court, however, did not give any finding on the question whether such benefit is available to the appellant under Section 2(4)(i) or Section 2(4)(ii)(a).
Roshan-Di-Hatti Vs. Commissioner Of Income Tax	for taking additional evidence before the Tribunal and if the Members of the Tribunal wanted to examine Roshan Lal on any aspect of the case, they should have followed this procedure. But, unfortunately, the Members of the Tribunal, disregarding the prescribed procedure, put questions to Roshan Lal in an informal manner unauthorised by the rules. The answers given by Roshan Lal could not in the circumstances form part of the record and the Tribunal was not entitled to rely upon the same in arriving at its findings of fact. It may be noted that the High Court also took the view that the procedure adopted by the Tribunal was irregular and the answers given by Roshan Lal should be left out of accountOne other circumstance on which the Tribunal relied was that notwithstanding the Press Note issued by the Government of India in January, 1952, the assessee did not declare that it had brought assets of the value of Rs. 3, 33, 414 from Pakistan and this circumstance, according to the Tribunal, cast considerable doubt on the version put forward by the assessee. Now, the Press Note of the Government of India was not produced before us but we will assume that it did promise a certain concession to the evacuees who declared the assets brought by them from Pakistan. Even so, we fail to see how it could be utilised as a circumstance militating against the explanation of the assessee. Both according to the Appellate Assistant Commissioner as well as the Tribunal, the assessee did bring assets worth Rs. 1, 00, 000 from Lahore in June, 1947, and these assets were admittedly not disclosed by the assessee despite the Press Note issued by the Government of India. Then, how, could any inference be drawn from the non-disclosure of the assets by the assessee that the assessee must not have brought assets representing the balance of Rs. 2, 33, 414 ? Whether the assets brought by the assessee were Rs. 1, 00, 000 or Rs. 3, 33, 414, the fact remains that they were not disclosed by the assessee despite the Press Note of the Government of India and hence no adverse inference could be drawn from-the fact of non-disclosure of the assets by the assessee. 6. It will, therefore, be seen that there was no material on the basis of which the Tribunal could come to the conclusion that though the assessee had a fairly large business in Lahore and had brought its entire ornaments, jewellery and cash from Lahore and deposited the same in a sealed trunk with the Amritsar branch of the Imperial Bank of India, these ornaments, jewellery and cash, were worth not more than Rs. 1, 00, 000. One may also ask the question that if the assessee did not bring assets worth more than Rs. 1, 00, 000 from Lahore, where and how did it get the remaining assets of the value of Rs. 2, 33, 414 ? Roshan Lal had come away from Lahore as a refugee and conditions in post-partition India were also highly unsettled and the clear and undoubted evidence was that neither Roshan Lal nor the assessee had any business or other means of income in India until 30th March, 1948. In this situation, it is impossible to believe that the assessee could have earned such a huge amount of profit of Rs. 2, 33, 414 within a few months, even if it be assumed that some business was started by it in October, 1947, when Roshan Lal came down to Delhi. The utter improbability, amounting almost to impossibility, of the assessee having earned such a large amount of Rs. 2, 33, 414 as profit within a few months in the disturbed conditions which then prevailed in India was a circumstance which ought to have been taken into account by the Tribunal but which the Tribunal unfortunately failed to do. It may be pointed out that it was not the case of the revenue that the books of account of the business were subsequently written up and the entry crediting the capital of Rs. 3, 33, 414 on 30th March, 1948, was not a genuine entry and the undisclosed profits of the subsequent years were sought to be concealed by showing a bogus entry of Rs. 3, 33, 414 as capital contribution on 30th March, 1948. If such had been the case, the present argument as to the improbability of the assessee having earned such a huge amount of Rs. 2, 33, 414 within a few months, would not have been available to the assessee. But the revenue did not dispute the correctness of the entry and accepted that assets worth Rs. 3, 33, 414 were introduced in the business on 30th March, 1948, and sought to include the amount of Rs. 3, 33, 414 representing the value of these assets as undisclosed income of the assessee for the assessment year 1948-49. The only question could, therefore, be whether these assets were brought by the assessee from Lahore in June, 1947, or they represented the concealed income earned by the assessee during the period June, 1947, to 30th March, 1948. The impossibility of the assessee having earned such a huge amount of profit within a few months immediately after migration to India in the disturbed and unsettled conditions which then prevailed must, therefore, necessarily support the inference that the assessee must have brought these assets from LahoreWe are, therefore, of the view that in reaching the conclusion that out of the capital of Rs. 3, 33, 414 credited in the books of the assessee on 30th March, 1948, assets of the value of Rs. 2, 33, 414 represented undisclosed income of the assessee for the assessment year 1948-49, the Tribunal acted without any material or, in any event, the finding of fact reached by the Tribunal was unreasonable or such that no person acting judicially and properly instructed as to the relevant law would come to such a finding. 7.	1[ds]It is true that the assessee was not paying any income-tax in Lahore but, as pointed out by the Appellate Assistant Commissioner in his order, a number of letters and receipts regarding business transactions in Lahore were filed by the assessee which showed that the business in Lahore was not small and there were documents and papers which referred to dealings involving Rs. 10, 000 or more at a time and there were also several vouchers produced by the assessee relating to advertising charges paid at Lahore. The business carried on by the assessee at Lahore was, therefore, a reasonably large business though its extent could not be verified by any reliable material produced by the assessee. The assessee undoubtedly filed affidavits of Mulk Ram, Billa Mal, Dalal, Wazir Chand, Devidas Mehra and Panna Lal, but, as commented upon by the Tribunal, these affidavits were vague and could not be regarded as having much evidentiary value. Still they did go to show that the Lahore business of the assessee was a fairly large business. The Tribunal was no doubt right in commenting that primary evidence with regard to the extent of the Lahore business of the assessee was not forthcoming, but it must be remembered that the assessee was being called upon to prove the extent of its business in a territory from which the members of the Hindu undivided family had to flee for their lives and from where it was totally impossible to produce any primary evidence. Be that as it may, it was found as a fact by the Appellate Assistant Commissioner and this finding was not disturbed by the Tribunal, that the assessee "was doing fairly well in the business in Lahore". Roshan Lal, in anticipation of the partition of the country, which was soon to follow, decided to move out of Lahore in June, 1947, at a time when massacre and holocaust had not yet started and he was in a position to remove his belongings. He migrated from Lahore with all his belongings and came over to Amritsar and he brought with him a trunk which he wanted to keep in a locker in safe deposit vault of the Imperial Bank of India. He could not obtain a locker and hence he deposited the sealed trunk with the Amritsar branch of the State Bank of India instead of carrying it with him to Mussoorie. There is no documentary evidence to show as to what were the contents of the sealed trunk but, as pointed out by the Appellate Assistant Commissioner and not dissented from by the Tribunal, " it is reasonable to presume that there must have been something quite valuable in the box as otherwise the assessee would not have kept it in the custody of a bank like the State Bank of India ". There can be no doubt, as observed by the Appellate Assistant Commissioner, and not disputed by the Tribunal, that the assessee " must have had with " him quite a substantial amount either in the form of jewellery, etc., or cash, or otherwise he would not have taken the precaution of either depositing the sealed box with the State Bank of India, Amritsar, or opening a locker in a New Delhi bank ". The clear finding of the Appellate Assistant Commissioner, affirmed by the Tribunal, therefore, was that Roshan Lal did bring ornaments, jewellery and cash with him when he migrated from Lahore in June, 1947, and kept the same in a sealed trunk with the Amritsar branch of the State Bank of India. If that be so, then on what material could it be said that the ornaments, jewellery and cash brought by the assessee and kept in the sealed trunk were of the value of only Rs. 1, 00, 000 and no more. What were the materials on the basis of which the claim of the assessee that Roshan Lal had brought gold, ornaments and cash of the value of Rs. 3, 33, 414 could be rejected ?The only material relied upon by the Tribunal was that the assessee had never filed any income-tax return nor ever paid any tax on the income of its business in Lahore and the presumption must, therefore, be that the assessee did not earn any assessable income before migration from Lahore. Now, it is true that where an assessee has not paid income-tax, the presumption ordinarily must be that the assessee had no assessable income, but here the fact remains that the assessee transferred no less than an aggregate sum of Rs. 31, 094 from Lahore to New Delhi and also brought de substantial amount either in the form of jewellery, etc., or cash " and deposited the same in a sealed trunk with the Imperial Bank of India, Amritsar branch, in June, 1947. This obviously the assessee could not have done unless it had a reasonably large business in Lahore and, therefore, the fact that the assessee did not pay income-tax in Lahore cannot have much evidentiary value. All that it would show is that, as pointed out by the Tribunal, " the assessee has not been very straightforward in his dealings with the income-tax department "The Tribunal also relied upon certain answers given by Roshan Lal when he was questioned by the Members of the Tribunal at the hearing of the appeal. It must be pointed out straightaway that these answers given by Roshan Lal could not be relied upon by the Tribunal for the purpose of coming to any conclusion adverse to the assessee, because there is a procedure prescribed in rules 29, 30 and 31 of the Income-tax Appellate Tribunal rules for taking additional evidence before the Tribunal and if the Members of the Tribunal wanted to examine Roshan Lal on any aspect of the case, they should have followed this procedure. But, unfortunately, the Members of the Tribunal, disregarding the prescribed procedure, put questions to Roshan Lal in an informal manner unauthorised by the rules. The answers given by Roshan Lal could not in the circumstances form part of the record and the Tribunal was not entitled to rely upon the same in arriving at its findings of fact. It may be noted that the High Court also took the view that the procedure adopted by the Tribunal was irregular and the answers given by Roshan Lal should be left out of accountOne other circumstance on which the Tribunal relied was that notwithstanding the Press Note issued by the Government of India in January, 1952, the assessee did not declare that it had brought assets of the value of Rs. 3, 33, 414 from Pakistan and this circumstance, according to the Tribunal, cast considerable doubt on the version put forward by the assessee. Now, the Press Note of the Government of India was not produced before us but we will assume that it did promise a certain concession to the evacuees who declared the assets brought by them from Pakistan. Even so, we fail to see how it could be utilised as a circumstance militating against the explanation of the assessee. Both according to the Appellate Assistant Commissioner as well as the Tribunal, the assessee did bring assets worth Rs. 1, 00, 000 from Lahore in June, 1947, and these assets were admittedly not disclosed by the assessee despite the Press Note issued by the Government of India. Then, how, could any inference be drawn from the non-disclosure of the assets by the assessee that the assessee must not have brought assets representing the balance of Rs. 2, 33, 414 ? Whether the assets brought by the assessee were Rs. 1, 00, 000 or Rs. 3, 33, 414, the fact remains that they were not disclosed by the assessee despite the Press Note of the Government of India and hence no adverse inference could be drawn from-the fact of non-disclosure of the assets by the assesseeIt will, therefore, be seen that there was no material on the basis of which the Tribunal could come to the conclusion that though the assessee had a fairly large business in Lahore and had brought its entire ornaments, jewellery and cash from Lahore and deposited the same in a sealed trunk with the Amritsar branch of the Imperial Bank of India, these ornaments, jewellery and cash, were worth not more than Rs. 1, 00, 000. One may also ask the question that if the assessee did not bring assets worth more than Rs. 1, 00, 000 from Lahore, where and how did it get the remaining assets of the value of Rs. 2, 33, 414 ? Roshan Lal had come away from Lahore as a refugee and conditions in post-partition India were also highly unsettled and the clear and undoubted evidence was that neither Roshan Lal nor the assessee had any business or other means of income in India until 30th March, 1948. In this situation, it is impossible to believe that the assessee could have earned such a huge amount of profit of Rs. 2, 33, 414 within a few months, even if it be assumed that some business was started by it in October, 1947, when Roshan Lal came down to Delhi. The utter improbability, amounting almost to impossibility, of the assessee having earned such a large amount of Rs. 2, 33, 414 as profit within a few months in the disturbed conditions which then prevailed in India was a circumstance which ought to have been taken into account by the Tribunal but which the Tribunal unfortunately failed to do. It may be pointed out that it was not the case of the revenue that the books of account of the business were subsequently written up and the entry crediting the capital of Rs. 3, 33, 414 on 30th March, 1948, was not a genuine entry and the undisclosed profits of the subsequent years were sought to be concealed by showing a bogus entry of Rs. 3, 33, 414 as capital contribution on 30th March, 1948. If such had been the case, the present argument as to the improbability of the assessee having earned such a huge amount of Rs. 2, 33, 414 within a few months, would not have been available to the assessee. But the revenue did not dispute the correctness of the entry and accepted that assets worth Rs. 3, 33, 414 were introduced in the business on 30th March, 1948, and sought to include the amount of Rs. 3, 33, 414 representing the value of these assets as undisclosed income of the assessee for the assessment year 1948-49. The only question could, therefore, be whether these assets were brought by the assessee from Lahore in June, 1947, or they represented the concealed income earned by the assessee during the period June, 1947, to 30th March, 1948. The impossibility of the assessee having earned such a huge amount of profit within a few months immediately after migration to India in the disturbed and unsettled conditions which then prevailed must, therefore, necessarily support the inference that the assessee must have brought these assets from LahoreWe are, therefore, of the view that in reaching the conclusion that out of the capital of Rs. 3, 33, 414 credited in the books of the assessee on 30th March, 1948, assets of the value of Rs. 2, 33, 414 represented undisclosed income of the assessee for the assessment year 1948-49, the Tribunal acted without any material or, in any event, the finding of fact reached by the Tribunal was unreasonable or such that no person acting judicially and properly instructed as to the relevant law would come to such a finding.	1	5,891	2,153	### Instruction: Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding. ### Input: for taking additional evidence before the Tribunal and if the Members of the Tribunal wanted to examine Roshan Lal on any aspect of the case, they should have followed this procedure. But, unfortunately, the Members of the Tribunal, disregarding the prescribed procedure, put questions to Roshan Lal in an informal manner unauthorised by the rules. The answers given by Roshan Lal could not in the circumstances form part of the record and the Tribunal was not entitled to rely upon the same in arriving at its findings of fact. It may be noted that the High Court also took the view that the procedure adopted by the Tribunal was irregular and the answers given by Roshan Lal should be left out of accountOne other circumstance on which the Tribunal relied was that notwithstanding the Press Note issued by the Government of India in January, 1952, the assessee did not declare that it had brought assets of the value of Rs. 3, 33, 414 from Pakistan and this circumstance, according to the Tribunal, cast considerable doubt on the version put forward by the assessee. Now, the Press Note of the Government of India was not produced before us but we will assume that it did promise a certain concession to the evacuees who declared the assets brought by them from Pakistan. Even so, we fail to see how it could be utilised as a circumstance militating against the explanation of the assessee. Both according to the Appellate Assistant Commissioner as well as the Tribunal, the assessee did bring assets worth Rs. 1, 00, 000 from Lahore in June, 1947, and these assets were admittedly not disclosed by the assessee despite the Press Note issued by the Government of India. Then, how, could any inference be drawn from the non-disclosure of the assets by the assessee that the assessee must not have brought assets representing the balance of Rs. 2, 33, 414 ? Whether the assets brought by the assessee were Rs. 1, 00, 000 or Rs. 3, 33, 414, the fact remains that they were not disclosed by the assessee despite the Press Note of the Government of India and hence no adverse inference could be drawn from-the fact of non-disclosure of the assets by the assessee. 6. It will, therefore, be seen that there was no material on the basis of which the Tribunal could come to the conclusion that though the assessee had a fairly large business in Lahore and had brought its entire ornaments, jewellery and cash from Lahore and deposited the same in a sealed trunk with the Amritsar branch of the Imperial Bank of India, these ornaments, jewellery and cash, were worth not more than Rs. 1, 00, 000. One may also ask the question that if the assessee did not bring assets worth more than Rs. 1, 00, 000 from Lahore, where and how did it get the remaining assets of the value of Rs. 2, 33, 414 ? Roshan Lal had come away from Lahore as a refugee and conditions in post-partition India were also highly unsettled and the clear and undoubted evidence was that neither Roshan Lal nor the assessee had any business or other means of income in India until 30th March, 1948. In this situation, it is impossible to believe that the assessee could have earned such a huge amount of profit of Rs. 2, 33, 414 within a few months, even if it be assumed that some business was started by it in October, 1947, when Roshan Lal came down to Delhi. The utter improbability, amounting almost to impossibility, of the assessee having earned such a large amount of Rs. 2, 33, 414 as profit within a few months in the disturbed conditions which then prevailed in India was a circumstance which ought to have been taken into account by the Tribunal but which the Tribunal unfortunately failed to do. It may be pointed out that it was not the case of the revenue that the books of account of the business were subsequently written up and the entry crediting the capital of Rs. 3, 33, 414 on 30th March, 1948, was not a genuine entry and the undisclosed profits of the subsequent years were sought to be concealed by showing a bogus entry of Rs. 3, 33, 414 as capital contribution on 30th March, 1948. If such had been the case, the present argument as to the improbability of the assessee having earned such a huge amount of Rs. 2, 33, 414 within a few months, would not have been available to the assessee. But the revenue did not dispute the correctness of the entry and accepted that assets worth Rs. 3, 33, 414 were introduced in the business on 30th March, 1948, and sought to include the amount of Rs. 3, 33, 414 representing the value of these assets as undisclosed income of the assessee for the assessment year 1948-49. The only question could, therefore, be whether these assets were brought by the assessee from Lahore in June, 1947, or they represented the concealed income earned by the assessee during the period June, 1947, to 30th March, 1948. The impossibility of the assessee having earned such a huge amount of profit within a few months immediately after migration to India in the disturbed and unsettled conditions which then prevailed must, therefore, necessarily support the inference that the assessee must have brought these assets from LahoreWe are, therefore, of the view that in reaching the conclusion that out of the capital of Rs. 3, 33, 414 credited in the books of the assessee on 30th March, 1948, assets of the value of Rs. 2, 33, 414 represented undisclosed income of the assessee for the assessment year 1948-49, the Tribunal acted without any material or, in any event, the finding of fact reached by the Tribunal was unreasonable or such that no person acting judicially and properly instructed as to the relevant law would come to such a finding. 7. ### Response: 1 ### Explanation: Appellate Tribunal rules for taking additional evidence before the Tribunal and if the Members of the Tribunal wanted to examine Roshan Lal on any aspect of the case, they should have followed this procedure. But, unfortunately, the Members of the Tribunal, disregarding the prescribed procedure, put questions to Roshan Lal in an informal manner unauthorised by the rules. The answers given by Roshan Lal could not in the circumstances form part of the record and the Tribunal was not entitled to rely upon the same in arriving at its findings of fact. It may be noted that the High Court also took the view that the procedure adopted by the Tribunal was irregular and the answers given by Roshan Lal should be left out of accountOne other circumstance on which the Tribunal relied was that notwithstanding the Press Note issued by the Government of India in January, 1952, the assessee did not declare that it had brought assets of the value of Rs. 3, 33, 414 from Pakistan and this circumstance, according to the Tribunal, cast considerable doubt on the version put forward by the assessee. Now, the Press Note of the Government of India was not produced before us but we will assume that it did promise a certain concession to the evacuees who declared the assets brought by them from Pakistan. Even so, we fail to see how it could be utilised as a circumstance militating against the explanation of the assessee. Both according to the Appellate Assistant Commissioner as well as the Tribunal, the assessee did bring assets worth Rs. 1, 00, 000 from Lahore in June, 1947, and these assets were admittedly not disclosed by the assessee despite the Press Note issued by the Government of India. Then, how, could any inference be drawn from the non-disclosure of the assets by the assessee that the assessee must not have brought assets representing the balance of Rs. 2, 33, 414 ? Whether the assets brought by the assessee were Rs. 1, 00, 000 or Rs. 3, 33, 414, the fact remains that they were not disclosed by the assessee despite the Press Note of the Government of India and hence no adverse inference could be drawn from-the fact of non-disclosure of the assets by the assesseeIt will, therefore, be seen that there was no material on the basis of which the Tribunal could come to the conclusion that though the assessee had a fairly large business in Lahore and had brought its entire ornaments, jewellery and cash from Lahore and deposited the same in a sealed trunk with the Amritsar branch of the Imperial Bank of India, these ornaments, jewellery and cash, were worth not more than Rs. 1, 00, 000. One may also ask the question that if the assessee did not bring assets worth more than Rs. 1, 00, 000 from Lahore, where and how did it get the remaining assets of the value of Rs. 2, 33, 414 ? Roshan Lal had come away from Lahore as a refugee and conditions in post-partition India were also highly unsettled and the clear and undoubted evidence was that neither Roshan Lal nor the assessee had any business or other means of income in India until 30th March, 1948. In this situation, it is impossible to believe that the assessee could have earned such a huge amount of profit of Rs. 2, 33, 414 within a few months, even if it be assumed that some business was started by it in October, 1947, when Roshan Lal came down to Delhi. The utter improbability, amounting almost to impossibility, of the assessee having earned such a large amount of Rs. 2, 33, 414 as profit within a few months in the disturbed conditions which then prevailed in India was a circumstance which ought to have been taken into account by the Tribunal but which the Tribunal unfortunately failed to do. It may be pointed out that it was not the case of the revenue that the books of account of the business were subsequently written up and the entry crediting the capital of Rs. 3, 33, 414 on 30th March, 1948, was not a genuine entry and the undisclosed profits of the subsequent years were sought to be concealed by showing a bogus entry of Rs. 3, 33, 414 as capital contribution on 30th March, 1948. If such had been the case, the present argument as to the improbability of the assessee having earned such a huge amount of Rs. 2, 33, 414 within a few months, would not have been available to the assessee. But the revenue did not dispute the correctness of the entry and accepted that assets worth Rs. 3, 33, 414 were introduced in the business on 30th March, 1948, and sought to include the amount of Rs. 3, 33, 414 representing the value of these assets as undisclosed income of the assessee for the assessment year 1948-49. The only question could, therefore, be whether these assets were brought by the assessee from Lahore in June, 1947, or they represented the concealed income earned by the assessee during the period June, 1947, to 30th March, 1948. The impossibility of the assessee having earned such a huge amount of profit within a few months immediately after migration to India in the disturbed and unsettled conditions which then prevailed must, therefore, necessarily support the inference that the assessee must have brought these assets from LahoreWe are, therefore, of the view that in reaching the conclusion that out of the capital of Rs. 3, 33, 414 credited in the books of the assessee on 30th March, 1948, assets of the value of Rs. 2, 33, 414 represented undisclosed income of the assessee for the assessment year 1948-49, the Tribunal acted without any material or, in any event, the finding of fact reached by the Tribunal was unreasonable or such that no person acting judicially and properly instructed as to the relevant law would come to such a finding.
Mohd. Raza Dabstani Vs. State Of Bombay And Ors	his arrival in India the appellant was put in a school but before he attained majority he took up the job of a cashier in a restaurant in Bombay. He attained majority sometime in 1943. Prior to that he was not entitled under the law to change his domicile. He has to establish the change in domicile by proving that after 1943 and before November 21, 1949 he had formed the intention of making India his home. There is very little during this short period from which one can draw an inference that he had intended to change his domicile. He was then quite young. During this period he left India on an Iranian passport declaring himself to be an Iranian national. On his return he was registered as an Iranian national on March 23, 1946. These facts do not support the appellant. It is said that he had done all these because under the law then obtaining he had no option. It has, however, to be pointed out that it was open to him then, if he wished to change his nationality, to get himself naturalised as a British Indian subject under the Naturalisation Act of 1926. The only other facts which happened between 1943 and 1949 to which our attention was drawn was that in 1947 he took over a restaurant business on royalty basis for a period of three years. From this fact alone it is impossible to hold that the appellant had decided to make India his home. We do not even know whether during this period he was economically independent or had his own residential establishment. 5. The conduct of the appellant subsequent to 1949 does not help to establish that he had earlier formed the intention to live in India for good. As we have already stated, he obtained a residential permit and from time to time applied for its extension. In these applications he described himself as an Iranian national. It was contended that this description does not militate against his claim to an Indian domicile. It was said that a person may be a national of one country and have his domicile in another country. Here, however, the question of domicile arises because on the basis of it the appellant clams citizenship of India. We are not aware that it is possible to be a citizen of India and a national of another country. The decision of this Court in the State Trading Corporation of India Ltd. v. Commercial Tax Officer, AIR (1963) SC 1811 , would indicate that that cannot be done. It was there said at p. 1818, All citizens are nationals of a particular State but all nationals may not be citizens of the State. It would follow from that that an Indian citizen cannot be a national of another State. Therefore, when the appellant described himself as an Iranian national in his applications for a residential permit and for extensions thereof after 1950, he was saying that he was not an Indian citizen. If he was not an Indian citizen, he did not have an Indian domicile, for if he had such a domicile, he would have been a citizen of India. These applications, therefore, furnish evidence that even after 1950 he was not of Indian domicile. We may also mention that after 1950 he obtained a duplicate of his registration certificate under the Foreigners Rules as the original had been lost and in the application for it he described himself as an Iranian national. Then we find that is one of the applications for extension of residential permit he had stated that he was desirous of staying in India for business and so, not for making it his home. As late as March 30, 1957 he described himself as an Iranian national in the application that he made for naturalisation as an Indian citizen which was refused. He could have all along claimed Indian citizenship on the basis of Indian domicile if he had one. Instead of making such a claim or any effort in that regard he continued proceedings on the basis that he was an Iranian national. 6. It appears that in 1950 he first entered into a partnership to run a restaurant of which he became the sole proprietor in March 1953. This by itself is not enough to establish the necessary intention. In any case it cannot show that prior to November 1949 he had acquired Indian domicile. It has to be remembered that notwithstanding the commencement of a business of his own, the appellant went on describing himself as an Iranian national indicating thereby that he had not acquired an Indian domicile though he was carrying on a business in this country. We may also point out that his father had carried on a similar business in Indian for thirty years and had gone back with the money earned here and settled down in his village Yezd in Iran. Then we find that the appellant had on more than one occasion asked his father to come over to India to look after his business and that he was keeping contact with his mother and sisters in Iran and had taken steps to go over to meet them. Further, he made an application to a Magistrate at Bombay for grant of a domicile certificate to him on October 13, 1954 which was refused. It appears from a letter that the appellant wrote to the police on September 24, 1955 in connection with a permit for extension of stay in India which he had omitted to obtain in due time that as he had applied for the certificate of domicile he was under the impression that extensions of permits were no longer necessary for him. This would indicate that the appellants real object of applying for domicile was to avoid the botheration of having to apply constantly for extension of the residential permit and not that he had intended to make India his home.	0[ds]3. When the appellant arrived in India he was a minor. His domicile was, therefore, that of his father which was Iranian. This is not disputed. The appellant contends that he had changed his Iranian domicile into an Indian domicile prior to November 21, 1949.The onus of proving the change of domicile is, of course, entirely on the appellants. Such change can be proved if it is established that the appellant had made up his mind to make India his home, that is to say, remain in India permanently.The facts established are that since 1938 excepting for a visit to Iraq lasting about a year he has all alone been a resident of Bombay,It is well established that residence alone is insufficient evidence to establish acquisition of a new domicile; there has also to be proof that the residence in a country was with the intention of making it the persons homeThe evidence shows that after his arrival in India the appellant was put in a school but before he attained majority he took up the job of a cashier in a restaurant in Bombay. He attained majority sometime in 1943. Prior to that he was not entitled under the law to change his domicile. He has to establish the change in domicile by proving that after 1943 and before November 21, 1949 he had formed the intention of making India his home. There is very little during this short period from which one can draw an inference that he had intended to change his domicile. He was then quite young. During this period he left India on an Iranian passport declaring himself to be an Iranian national. On his return he was registered as an Iranian national on March 23, 1946. These facts do not support the appellant. It is said that he had done all these because under the law then obtaining he had no option. It has, however, to be pointed out that it was open to him then, if he wished to change his nationality, to get himself naturalised as a British Indian subject under the Naturalisation Act of 1926. The only other facts which happened between 1943 and 1949 to which our attention was drawn was that in 1947 he took over a restaurant business on royalty basis for a period of three years. From this fact alone it is impossible to hold that the appellant had decided to make India his home. We do not even know whether during this period he was economically independent or had his own residential establishment5. The conduct of the appellant subsequent to 1949 does not help to establish that he had earlier formed the intention to live in India for good. As we have already stated, he obtained a residential permit and from time to time applied for its extension. In these applications he described himself as an Iranian national. It was contended that this description does not militate against his claim to an Indian domicile. It was said that a person may be a national of one country and have his domicile in another country. Here, however, the question of domicile arises because on the basis of it the appellant clams citizenship of India. We are not aware that it is possible to be a citizen of India and a national of another country. The decision of this Court in the State Trading Corporation of India Ltd. v. Commercial Tax Officer, AIR (1963) SC 1811 , would indicate that that cannot be done. It was there said at p. 1818, All citizens are nationals of a particular State but all nationals may not be citizens of the State. It would follow from that that an Indian citizen cannot be a national of another State. Therefore, when the appellant described himself as an Iranian national in his applications for a residential permit and for extensions thereof after 1950, he was saying that he was not an Indian citizen. If he was not an Indian citizen, he did not have an Indian domicile, for if he had such a domicile, he would have been a citizen of India. These applications, therefore, furnish evidence that even after 1950 he was not of Indian domicile. We may also mention that after 1950 he obtained a duplicate of his registration certificate under the Foreigners Rules as the original had been lost and in the application for it he described himself as an Iranian national. Then we find that is one of the applications for extension of residential permit he had stated that he was desirous of staying in India for business and so, not for making it his home. As late as March 30, 1957 he described himself as an Iranian national in the application that he made for naturalisation as an Indian citizen which was refused. He could have all along claimed Indian citizenship on the basis of Indian domicile if he had one. Instead of making such a claim or any effort in that regard he continued proceedings on the basis that he was an Iranian national6. It appears that in 1950 he first entered into a partnership to run a restaurant of which he became the sole proprietor in March 1953. This by itself is not enough to establish the necessary intention. In any case it cannot show that prior to November 1949 he had acquired Indian domicile. It has to be remembered that notwithstanding the commencement of a business of his own, the appellant went on describing himself as an Iranian national indicating thereby that he had not acquired an Indian domicile though he was carrying on a business in this country. We may also point out that his father had carried on a similar business in Indian for thirty years and had gone back with the money earned here and settled down in his village Yezd in Iran. Then we find that the appellant had on more than one occasion asked his father to come over to India to look after his business and that he was keeping contact with his mother and sisters in Iran and had taken steps to go over to meet them. Further, he made an application to a Magistrate at Bombay for grant of a domicile certificate to him on October 13, 1954 which was refused. It appears from a letter that the appellant wrote to the police on September 24, 1955 in connection with a permit for extension of stay in India which he had omitted to obtain in due time that as he had applied for the certificate of domicile he was under the impression that extensions of permits were no longer necessary for him. This would indicate that the appellants real object of applying for domicile was to avoid the botheration of having to apply constantly for extension of the residential permit and not that he had intended to make India his home4. Now on the question of intention of the appellant to make India his home, there is very little evidence.	0	1,665	1,264	### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: his arrival in India the appellant was put in a school but before he attained majority he took up the job of a cashier in a restaurant in Bombay. He attained majority sometime in 1943. Prior to that he was not entitled under the law to change his domicile. He has to establish the change in domicile by proving that after 1943 and before November 21, 1949 he had formed the intention of making India his home. There is very little during this short period from which one can draw an inference that he had intended to change his domicile. He was then quite young. During this period he left India on an Iranian passport declaring himself to be an Iranian national. On his return he was registered as an Iranian national on March 23, 1946. These facts do not support the appellant. It is said that he had done all these because under the law then obtaining he had no option. It has, however, to be pointed out that it was open to him then, if he wished to change his nationality, to get himself naturalised as a British Indian subject under the Naturalisation Act of 1926. The only other facts which happened between 1943 and 1949 to which our attention was drawn was that in 1947 he took over a restaurant business on royalty basis for a period of three years. From this fact alone it is impossible to hold that the appellant had decided to make India his home. We do not even know whether during this period he was economically independent or had his own residential establishment. 5. The conduct of the appellant subsequent to 1949 does not help to establish that he had earlier formed the intention to live in India for good. As we have already stated, he obtained a residential permit and from time to time applied for its extension. In these applications he described himself as an Iranian national. It was contended that this description does not militate against his claim to an Indian domicile. It was said that a person may be a national of one country and have his domicile in another country. Here, however, the question of domicile arises because on the basis of it the appellant clams citizenship of India. We are not aware that it is possible to be a citizen of India and a national of another country. The decision of this Court in the State Trading Corporation of India Ltd. v. Commercial Tax Officer, AIR (1963) SC 1811 , would indicate that that cannot be done. It was there said at p. 1818, All citizens are nationals of a particular State but all nationals may not be citizens of the State. It would follow from that that an Indian citizen cannot be a national of another State. Therefore, when the appellant described himself as an Iranian national in his applications for a residential permit and for extensions thereof after 1950, he was saying that he was not an Indian citizen. If he was not an Indian citizen, he did not have an Indian domicile, for if he had such a domicile, he would have been a citizen of India. These applications, therefore, furnish evidence that even after 1950 he was not of Indian domicile. We may also mention that after 1950 he obtained a duplicate of his registration certificate under the Foreigners Rules as the original had been lost and in the application for it he described himself as an Iranian national. Then we find that is one of the applications for extension of residential permit he had stated that he was desirous of staying in India for business and so, not for making it his home. As late as March 30, 1957 he described himself as an Iranian national in the application that he made for naturalisation as an Indian citizen which was refused. He could have all along claimed Indian citizenship on the basis of Indian domicile if he had one. Instead of making such a claim or any effort in that regard he continued proceedings on the basis that he was an Iranian national. 6. It appears that in 1950 he first entered into a partnership to run a restaurant of which he became the sole proprietor in March 1953. This by itself is not enough to establish the necessary intention. In any case it cannot show that prior to November 1949 he had acquired Indian domicile. It has to be remembered that notwithstanding the commencement of a business of his own, the appellant went on describing himself as an Iranian national indicating thereby that he had not acquired an Indian domicile though he was carrying on a business in this country. We may also point out that his father had carried on a similar business in Indian for thirty years and had gone back with the money earned here and settled down in his village Yezd in Iran. Then we find that the appellant had on more than one occasion asked his father to come over to India to look after his business and that he was keeping contact with his mother and sisters in Iran and had taken steps to go over to meet them. Further, he made an application to a Magistrate at Bombay for grant of a domicile certificate to him on October 13, 1954 which was refused. It appears from a letter that the appellant wrote to the police on September 24, 1955 in connection with a permit for extension of stay in India which he had omitted to obtain in due time that as he had applied for the certificate of domicile he was under the impression that extensions of permits were no longer necessary for him. This would indicate that the appellants real object of applying for domicile was to avoid the botheration of having to apply constantly for extension of the residential permit and not that he had intended to make India his home. ### Response: 0 ### Explanation: took up the job of a cashier in a restaurant in Bombay. He attained majority sometime in 1943. Prior to that he was not entitled under the law to change his domicile. He has to establish the change in domicile by proving that after 1943 and before November 21, 1949 he had formed the intention of making India his home. There is very little during this short period from which one can draw an inference that he had intended to change his domicile. He was then quite young. During this period he left India on an Iranian passport declaring himself to be an Iranian national. On his return he was registered as an Iranian national on March 23, 1946. These facts do not support the appellant. It is said that he had done all these because under the law then obtaining he had no option. It has, however, to be pointed out that it was open to him then, if he wished to change his nationality, to get himself naturalised as a British Indian subject under the Naturalisation Act of 1926. The only other facts which happened between 1943 and 1949 to which our attention was drawn was that in 1947 he took over a restaurant business on royalty basis for a period of three years. From this fact alone it is impossible to hold that the appellant had decided to make India his home. We do not even know whether during this period he was economically independent or had his own residential establishment5. The conduct of the appellant subsequent to 1949 does not help to establish that he had earlier formed the intention to live in India for good. As we have already stated, he obtained a residential permit and from time to time applied for its extension. In these applications he described himself as an Iranian national. It was contended that this description does not militate against his claim to an Indian domicile. It was said that a person may be a national of one country and have his domicile in another country. Here, however, the question of domicile arises because on the basis of it the appellant clams citizenship of India. We are not aware that it is possible to be a citizen of India and a national of another country. The decision of this Court in the State Trading Corporation of India Ltd. v. Commercial Tax Officer, AIR (1963) SC 1811 , would indicate that that cannot be done. It was there said at p. 1818, All citizens are nationals of a particular State but all nationals may not be citizens of the State. It would follow from that that an Indian citizen cannot be a national of another State. Therefore, when the appellant described himself as an Iranian national in his applications for a residential permit and for extensions thereof after 1950, he was saying that he was not an Indian citizen. If he was not an Indian citizen, he did not have an Indian domicile, for if he had such a domicile, he would have been a citizen of India. These applications, therefore, furnish evidence that even after 1950 he was not of Indian domicile. We may also mention that after 1950 he obtained a duplicate of his registration certificate under the Foreigners Rules as the original had been lost and in the application for it he described himself as an Iranian national. Then we find that is one of the applications for extension of residential permit he had stated that he was desirous of staying in India for business and so, not for making it his home. As late as March 30, 1957 he described himself as an Iranian national in the application that he made for naturalisation as an Indian citizen which was refused. He could have all along claimed Indian citizenship on the basis of Indian domicile if he had one. Instead of making such a claim or any effort in that regard he continued proceedings on the basis that he was an Iranian national6. It appears that in 1950 he first entered into a partnership to run a restaurant of which he became the sole proprietor in March 1953. This by itself is not enough to establish the necessary intention. In any case it cannot show that prior to November 1949 he had acquired Indian domicile. It has to be remembered that notwithstanding the commencement of a business of his own, the appellant went on describing himself as an Iranian national indicating thereby that he had not acquired an Indian domicile though he was carrying on a business in this country. We may also point out that his father had carried on a similar business in Indian for thirty years and had gone back with the money earned here and settled down in his village Yezd in Iran. Then we find that the appellant had on more than one occasion asked his father to come over to India to look after his business and that he was keeping contact with his mother and sisters in Iran and had taken steps to go over to meet them. Further, he made an application to a Magistrate at Bombay for grant of a domicile certificate to him on October 13, 1954 which was refused. It appears from a letter that the appellant wrote to the police on September 24, 1955 in connection with a permit for extension of stay in India which he had omitted to obtain in due time that as he had applied for the certificate of domicile he was under the impression that extensions of permits were no longer necessary for him. This would indicate that the appellants real object of applying for domicile was to avoid the botheration of having to apply constantly for extension of the residential permit and not that he had intended to make India his home4. Now on the question of intention of the appellant to make India his home, there is very little evidence.
Bimal Chandra Dutta Vs. State of West Bengal	Maintenance of Internal Security Act "with a view to preventing him from acting in any manner prejudicial to the maintenance or public order". 2. In pursuance of that order, the petitioner was arrested on December 4, 1971 and was served with the order of detention as well as the ground of detention together with vernacular translation thereof. The petitioner thereafter approached this Court through jail under Article 32, of the Constitution for issuing a writ of habeas corpus. When the petition came up for hearing before us on July 28, 1972, we directed that for reasons to be given later, the petitioner should be set at liberty. We now set out those reasons. 3. The order of detention of the petitioner was approved by the State Government on October 21, 1971. On December 15, 1971 the State Government in its Home Department, Special Section, received a representation from the petitioner. The said representative was rejected by the Government on February 4, 1972. In the meanwhile on December 31, 1971, the case of the petitioner was placed before the Advisory Board. The representation of the petitioner after being rejected, too was sent to the Advisory Board. The Advisory Board, after considering the material placed before it and after hearing the petitioner in person, submitted its report to the State Government on February 9, 1972. Opinion was expressed by the Board that there was sufficient cause for the detention of the petitioner. On February 23, 1972 the State Government confirmed the order for the detention of the petitioner. 4. The petition was opposed by the State Government and the affidavit of Shri Sukumar Sen, Deputy Secretary, Home (Special) Department, Government of West Bengal was filed in opposition to the petition. 5. Mr. Varshneya who argued the case amicus curiae on behalf of the petitioner, contended before us that there was inordinate delay on the part of the State Government in disposing of the representation of the petitioner and this fact would invalidate his detention. This contention, in our opinion, is well-founded. As mentioned earlier, the representation of the petitioner against his detention was received by the State Government on December 15, 1971 and was rejected on February 4, 1972. There thus elapsed a period of about 51 days between the receipt of representation and its disposal by the State Government. The Government has tried to explain the delay on the ground that a go-slow movement had been launched by the State Government employees sometime back and that movement resulted in dislocation of office work and there was also increase of office work. There is, however, nothing on record to show that there was any go-slow movement during the days when the representation of the petitioner was received. Any such movement at a time prior to the receipt of representation would not, in our opinion, justify the delay in the disposal of the petitioners representation. In the case of Binode Hem Bram v. State of West Bengal (WP No. 189 of 1972, decided on July 29, 1972) an attempt was made by the State Government to justify the delay on a similar ground. The representation in that case had been received on January 10, 1972 and had been rejected on February 19, 1972. There was a delay of 40 days in the disposal of the detenus representation in that case. It was held by the Court that the go-slow movement at a time prior to the receipt of representation would not justify the delay in the disposal of representation. 6. According to clause (5) of Article 22 of the Constitution, when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the ground on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The fact that the earliest opportunity has to be afforded to the detenu for making a representation against the detention order necessarily implies that as and when the representation is made, it should be dealt with promptly. While dealing with the above provisions, it was observed by this Court in the case of Abdus Sukkur v. State of West Bengal (W.P. No. 85 of 1972, decided on May 30, 1972) ((1972) 2 SCC 547 ) :"Undue delay on the part of the detaining authority in disposing of the detenus representation would run counter to the underlying object of clause (5) of Article 22. The requirements about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if the authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity. It is, therefore, essential that there should be no undue or unexplained delay on the part of the detaining authority in disposing of the representation made by the detenu against the detention order. In case the authority concerned is guilty of such delay the detention would be liable to be assailed on the ground of infraction of Article 22(5) of the Constitution. This is as it should be, because the matter related to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law. The authority concerned has, therefore, to proceed strictly in accordance with law and any deviation from compliance with legal requirement cannot be countenanced. It has accordingly been laid down in a string of authorities that undue or unexplained delay in the disposal of the representation of the detenu against the detention order would introduce a serious infirmity in the detention." The petition for the issue of a writ habeas corpus in that case was accepted because there has been an unexplained delay of 27 days in disposing of the detenus representation.	1[ds]5. Mr. Varshneya who argued the case amicus curiae on behalf of the petitioner, contended before us that there was inordinate delay on the part of the State Government in disposing of the representation of the petitioner and this fact would invalidate his detention.This contention, in our opinion, is. As mentioned earlier, the representation of the petitioner against his detention was received by the State Government on December 15, 1971 and was rejected on February 4, 1972. There thus elapsed a period of about 51 days between the receipt of representation and its disposal by the State Government. The Government has tried to explain the delay on the ground that aw movement had been launched by the State Government employees sometime back and that movement resulted in dislocation of office work and there was also increase of office work. There is, however, nothing on record to show that there was anyw movement during the days when the representation of the petitioner was received. Any such movement at a time prior to the receipt of representation would not, in our opinion, justify the delay in the disposal of the petitioners representation. In the case of Binode Hem Bram v. State of West Bengal (WP No. 189 of 1972, decided on July 29, 1972) an attempt was made by the State Government to justify the delay on a similar ground. The representation in that case had been received on January 10, 1972 and had been rejected on February 19, 1972. There was a delay of 40 days in the disposal of the detenus representation in that case. It was held by the Court that thew movement at a time prior to the receipt of representation would not justify the delay in the disposal of representation6. According to clause (5) of Article 22 of the Constitution, when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the ground on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The fact that the earliest opportunity has to be afforded to the detenu for making a representation against the detention order necessarily implies that as and when the representation is made, it should be dealt with promptly. While dealing with the above provisions, it was observed by this Court in the case of Abdus Sukkur v. State of West Bengal (W.P. No. 85 of 1972, decided on May 30, 1972) ((1972) 2 SCC 547 ) :"Undue delay on the part of the detaining authority in disposing of the detenus representation would run counter to the underlying object of clause (5) of Article 22. The requirements about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if the authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity. It is, therefore, essential that there should be no undue or unexplained delay on the part of the detaining authority in disposing of the representation made by the detenu against the detention order. In case the authority concerned is guilty of such delay the detention would be liable to be assailed on the ground of infraction of Article 22(5) of the Constitution. This is as it should be, because the matter related to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law. The authority concerned has, therefore, to proceed strictly in accordance with law and any deviation from compliance with legal requirement cannot be countenanced. It has accordingly been laid down in a string of authorities that undue or unexplained delay in the disposal of the representation of the detenu against the detention order would introduce a serious infirmity in the detention."The petition for the issue of a writ habeas corpus in that case was accepted because there has been an unexplained delay of 27 days in disposing of the detenus representation.	1	1,146	779	### 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: Maintenance of Internal Security Act "with a view to preventing him from acting in any manner prejudicial to the maintenance or public order". 2. In pursuance of that order, the petitioner was arrested on December 4, 1971 and was served with the order of detention as well as the ground of detention together with vernacular translation thereof. The petitioner thereafter approached this Court through jail under Article 32, of the Constitution for issuing a writ of habeas corpus. When the petition came up for hearing before us on July 28, 1972, we directed that for reasons to be given later, the petitioner should be set at liberty. We now set out those reasons. 3. The order of detention of the petitioner was approved by the State Government on October 21, 1971. On December 15, 1971 the State Government in its Home Department, Special Section, received a representation from the petitioner. The said representative was rejected by the Government on February 4, 1972. In the meanwhile on December 31, 1971, the case of the petitioner was placed before the Advisory Board. The representation of the petitioner after being rejected, too was sent to the Advisory Board. The Advisory Board, after considering the material placed before it and after hearing the petitioner in person, submitted its report to the State Government on February 9, 1972. Opinion was expressed by the Board that there was sufficient cause for the detention of the petitioner. On February 23, 1972 the State Government confirmed the order for the detention of the petitioner. 4. The petition was opposed by the State Government and the affidavit of Shri Sukumar Sen, Deputy Secretary, Home (Special) Department, Government of West Bengal was filed in opposition to the petition. 5. Mr. Varshneya who argued the case amicus curiae on behalf of the petitioner, contended before us that there was inordinate delay on the part of the State Government in disposing of the representation of the petitioner and this fact would invalidate his detention. This contention, in our opinion, is well-founded. As mentioned earlier, the representation of the petitioner against his detention was received by the State Government on December 15, 1971 and was rejected on February 4, 1972. There thus elapsed a period of about 51 days between the receipt of representation and its disposal by the State Government. The Government has tried to explain the delay on the ground that a go-slow movement had been launched by the State Government employees sometime back and that movement resulted in dislocation of office work and there was also increase of office work. There is, however, nothing on record to show that there was any go-slow movement during the days when the representation of the petitioner was received. Any such movement at a time prior to the receipt of representation would not, in our opinion, justify the delay in the disposal of the petitioners representation. In the case of Binode Hem Bram v. State of West Bengal (WP No. 189 of 1972, decided on July 29, 1972) an attempt was made by the State Government to justify the delay on a similar ground. The representation in that case had been received on January 10, 1972 and had been rejected on February 19, 1972. There was a delay of 40 days in the disposal of the detenus representation in that case. It was held by the Court that the go-slow movement at a time prior to the receipt of representation would not justify the delay in the disposal of representation. 6. According to clause (5) of Article 22 of the Constitution, when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the ground on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The fact that the earliest opportunity has to be afforded to the detenu for making a representation against the detention order necessarily implies that as and when the representation is made, it should be dealt with promptly. While dealing with the above provisions, it was observed by this Court in the case of Abdus Sukkur v. State of West Bengal (W.P. No. 85 of 1972, decided on May 30, 1972) ((1972) 2 SCC 547 ) :"Undue delay on the part of the detaining authority in disposing of the detenus representation would run counter to the underlying object of clause (5) of Article 22. The requirements about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if the authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity. It is, therefore, essential that there should be no undue or unexplained delay on the part of the detaining authority in disposing of the representation made by the detenu against the detention order. In case the authority concerned is guilty of such delay the detention would be liable to be assailed on the ground of infraction of Article 22(5) of the Constitution. This is as it should be, because the matter related to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law. The authority concerned has, therefore, to proceed strictly in accordance with law and any deviation from compliance with legal requirement cannot be countenanced. It has accordingly been laid down in a string of authorities that undue or unexplained delay in the disposal of the representation of the detenu against the detention order would introduce a serious infirmity in the detention." The petition for the issue of a writ habeas corpus in that case was accepted because there has been an unexplained delay of 27 days in disposing of the detenus representation. ### Response: 1 ### Explanation: 5. Mr. Varshneya who argued the case amicus curiae on behalf of the petitioner, contended before us that there was inordinate delay on the part of the State Government in disposing of the representation of the petitioner and this fact would invalidate his detention.This contention, in our opinion, is. As mentioned earlier, the representation of the petitioner against his detention was received by the State Government on December 15, 1971 and was rejected on February 4, 1972. There thus elapsed a period of about 51 days between the receipt of representation and its disposal by the State Government. The Government has tried to explain the delay on the ground that aw movement had been launched by the State Government employees sometime back and that movement resulted in dislocation of office work and there was also increase of office work. There is, however, nothing on record to show that there was anyw movement during the days when the representation of the petitioner was received. Any such movement at a time prior to the receipt of representation would not, in our opinion, justify the delay in the disposal of the petitioners representation. In the case of Binode Hem Bram v. State of West Bengal (WP No. 189 of 1972, decided on July 29, 1972) an attempt was made by the State Government to justify the delay on a similar ground. The representation in that case had been received on January 10, 1972 and had been rejected on February 19, 1972. There was a delay of 40 days in the disposal of the detenus representation in that case. It was held by the Court that thew movement at a time prior to the receipt of representation would not justify the delay in the disposal of representation6. According to clause (5) of Article 22 of the Constitution, when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the ground on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The fact that the earliest opportunity has to be afforded to the detenu for making a representation against the detention order necessarily implies that as and when the representation is made, it should be dealt with promptly. While dealing with the above provisions, it was observed by this Court in the case of Abdus Sukkur v. State of West Bengal (W.P. No. 85 of 1972, decided on May 30, 1972) ((1972) 2 SCC 547 ) :"Undue delay on the part of the detaining authority in disposing of the detenus representation would run counter to the underlying object of clause (5) of Article 22. The requirements about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if the authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity. It is, therefore, essential that there should be no undue or unexplained delay on the part of the detaining authority in disposing of the representation made by the detenu against the detention order. In case the authority concerned is guilty of such delay the detention would be liable to be assailed on the ground of infraction of Article 22(5) of the Constitution. This is as it should be, because the matter related to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law. The authority concerned has, therefore, to proceed strictly in accordance with law and any deviation from compliance with legal requirement cannot be countenanced. It has accordingly been laid down in a string of authorities that undue or unexplained delay in the disposal of the representation of the detenu against the detention order would introduce a serious infirmity in the detention."The petition for the issue of a writ habeas corpus in that case was accepted because there has been an unexplained delay of 27 days in disposing of the detenus representation.
Director of Enforcement Vs. P.V. Prabhakar Rao	was later discovered that the siphoning of such a huge foreign exchange was the result of a well orchestrated conspiracy hatched by some individuals in and out of India. The Turkish company in return paid a substantial amount to "middlemen" as "kickbacks". The recipients of such kickbacks included those in India and abroad. 3. When the print media highlighted the large dimension of the fraud Central Bureau of Investigation was authorised to investigate into it. It was revealed that kickbacks were received by some middlemen in India in violation of the provisions of the Foreign Exchange Regulation Act, 1973 (for short "FERA"). It was then that the Enforcement Directorate also came into the picture and started investigation into offences involving FERA. Some persons were already arrested including one Sambasiva Rao, who was Director of M/s Sai Krishna Impex Ltd., Hyderabad. During investigation it appeared to the Enforcement Directorate that the respondent is also involved in this fraud and hence efforts were made to question him but the respondent avoided such interrogation by the officials of the Directorate, on more than one occasion. In the meanwhile the respondent, on his own approached the High Court with a petition for an order under Section 438 of the Code. 4. Learned Single Judge, who granted the order to the respondent, pointed out that interim order was passed on 16.3.1996 on medical grounds. In the final order also learned Single Judge gave much leverage to the physical condition of the respondent. We may mention here that the physical impairment of the respondent which was pointed out was "soonoylitis". Learned counsel for the respondent has fairly admitted that, by now, lapse of time and medical care have helped the respondent to get rid of the ailment considerably. So we need not vex our mind whether that was a germane ground to be considered for granting anticipatory bail. 5. Learned counsel for the Enforcement Director forcefully attacked the reasoning of the learned Single Judge of the High Court and contended that the discretion under Section 438 of the Code was very improperly exercised in this case. Learned counsel for the respondent on the contrary defended the impugned order. Excerpts from Gurbaksh Singh v. State of Punjab, 1980(2) SCC 565 have been quoted in support of it. 6. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurbaksh Singh (supra) which has settled the position well neigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a court of sessions, after exercising its judicial discretion wisely. The Constitution Bench in Gurbaksh Singh said thus : "A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use is the hallmark of the prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail." 7. After hearing both sides and after perusing the case records (which was submitted to us in a sealed cover by the Enforcement Director, on our request) we have no doubt that the learned Single Judge of the High Court went wrong in exercising his discretion by granting anticipatory bail to the respondent in this case. Learned Single Judge has coserved : "I have examined the material in order to satisfy myself whether the apprehension of the petitioner is well-founded or not. Suffice it say that the files which are made available by the Enforcement Directorate would disclose an accusing finger against the petitioner. Be it noted that this is not the stage when this Court can apply any test for its acceptability and hence a superficial examination is done. It is also not necessary to see whether this material is sufficient to file a complaint against the petitioner or not. 8. When we perused the records we felt that learned Single Judge has euphemistically stated that the files disclosed "an accusing finger" against the respondent. We, however, refrain from saying anything more at this stage. 9. Learned Single Judge has taken into account the fact that all other accused arrested in connection with this case have been released on bail. But they were released on bail only on the failure of the investigating agency to complete the investigation within the time prescribed in the proviso to section 167(2) of the Code. How could this respondent take advantage of that fact ? We cannot overlock that the respondent too has contributed to the non-completion of the investigation. Completion of investigation could be achieved only by interrogating all the persons involved as well as acquainted with the matter and after collecting all material evidence procuracle. So learned Single Judge should never have counted this point in favour of granting anticipatory bail to the respondent. 10. The most glaring feature which even the respondent did not repudiate is the magnitude of the criminal conspiracy hatched, the ingenuity with which the cabal was orchestrated and the meticulousness with which it was implemented and the colossal amount of foreign exchange siphoned off from the country. It is not disputed that whomsoever perpetrated this grave economic offence deserves to be dealt with sternly under law. 11. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.	1[ds]9. Learned Single Judge has taken into account the fact that all other accused arrested in connection with this case have been released on bail. But they were released on bail only on the failure of the investigating agency to complete the investigation within the time prescribed in the proviso to section 167(2) of the Code. How could this respondent take advantage of that fact ? We cannot overlock that the respondent too has contributed to theof the investigation. Completion of investigation could be achieved only by interrogating all the persons involved as well as acquainted with the matter and after collecting all material evidence procuracle. So learned Single Judge should never have counted this point in favour of granting anticipatory bail to the respondent.The most glaring feature which even the respondent did not repudiate is the magnitude of the criminal conspiracy hatched, the ingenuity with which the cabal was orchestrated and the meticulousness with which it was implemented and the colossal amount of foreign exchange siphoned off from the country. It is not disputed that whomsoever perpetrated this grave economic offence deserves to be dealt with sternly under law.When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.	1	1,302	263	### 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: was later discovered that the siphoning of such a huge foreign exchange was the result of a well orchestrated conspiracy hatched by some individuals in and out of India. The Turkish company in return paid a substantial amount to "middlemen" as "kickbacks". The recipients of such kickbacks included those in India and abroad. 3. When the print media highlighted the large dimension of the fraud Central Bureau of Investigation was authorised to investigate into it. It was revealed that kickbacks were received by some middlemen in India in violation of the provisions of the Foreign Exchange Regulation Act, 1973 (for short "FERA"). It was then that the Enforcement Directorate also came into the picture and started investigation into offences involving FERA. Some persons were already arrested including one Sambasiva Rao, who was Director of M/s Sai Krishna Impex Ltd., Hyderabad. During investigation it appeared to the Enforcement Directorate that the respondent is also involved in this fraud and hence efforts were made to question him but the respondent avoided such interrogation by the officials of the Directorate, on more than one occasion. In the meanwhile the respondent, on his own approached the High Court with a petition for an order under Section 438 of the Code. 4. Learned Single Judge, who granted the order to the respondent, pointed out that interim order was passed on 16.3.1996 on medical grounds. In the final order also learned Single Judge gave much leverage to the physical condition of the respondent. We may mention here that the physical impairment of the respondent which was pointed out was "soonoylitis". Learned counsel for the respondent has fairly admitted that, by now, lapse of time and medical care have helped the respondent to get rid of the ailment considerably. So we need not vex our mind whether that was a germane ground to be considered for granting anticipatory bail. 5. Learned counsel for the Enforcement Director forcefully attacked the reasoning of the learned Single Judge of the High Court and contended that the discretion under Section 438 of the Code was very improperly exercised in this case. Learned counsel for the respondent on the contrary defended the impugned order. Excerpts from Gurbaksh Singh v. State of Punjab, 1980(2) SCC 565 have been quoted in support of it. 6. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurbaksh Singh (supra) which has settled the position well neigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a court of sessions, after exercising its judicial discretion wisely. The Constitution Bench in Gurbaksh Singh said thus : "A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use is the hallmark of the prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail." 7. After hearing both sides and after perusing the case records (which was submitted to us in a sealed cover by the Enforcement Director, on our request) we have no doubt that the learned Single Judge of the High Court went wrong in exercising his discretion by granting anticipatory bail to the respondent in this case. Learned Single Judge has coserved : "I have examined the material in order to satisfy myself whether the apprehension of the petitioner is well-founded or not. Suffice it say that the files which are made available by the Enforcement Directorate would disclose an accusing finger against the petitioner. Be it noted that this is not the stage when this Court can apply any test for its acceptability and hence a superficial examination is done. It is also not necessary to see whether this material is sufficient to file a complaint against the petitioner or not. 8. When we perused the records we felt that learned Single Judge has euphemistically stated that the files disclosed "an accusing finger" against the respondent. We, however, refrain from saying anything more at this stage. 9. Learned Single Judge has taken into account the fact that all other accused arrested in connection with this case have been released on bail. But they were released on bail only on the failure of the investigating agency to complete the investigation within the time prescribed in the proviso to section 167(2) of the Code. How could this respondent take advantage of that fact ? We cannot overlock that the respondent too has contributed to the non-completion of the investigation. Completion of investigation could be achieved only by interrogating all the persons involved as well as acquainted with the matter and after collecting all material evidence procuracle. So learned Single Judge should never have counted this point in favour of granting anticipatory bail to the respondent. 10. The most glaring feature which even the respondent did not repudiate is the magnitude of the criminal conspiracy hatched, the ingenuity with which the cabal was orchestrated and the meticulousness with which it was implemented and the colossal amount of foreign exchange siphoned off from the country. It is not disputed that whomsoever perpetrated this grave economic offence deserves to be dealt with sternly under law. 11. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code. ### Response: 1 ### Explanation: 9. Learned Single Judge has taken into account the fact that all other accused arrested in connection with this case have been released on bail. But they were released on bail only on the failure of the investigating agency to complete the investigation within the time prescribed in the proviso to section 167(2) of the Code. How could this respondent take advantage of that fact ? We cannot overlock that the respondent too has contributed to theof the investigation. Completion of investigation could be achieved only by interrogating all the persons involved as well as acquainted with the matter and after collecting all material evidence procuracle. So learned Single Judge should never have counted this point in favour of granting anticipatory bail to the respondent.The most glaring feature which even the respondent did not repudiate is the magnitude of the criminal conspiracy hatched, the ingenuity with which the cabal was orchestrated and the meticulousness with which it was implemented and the colossal amount of foreign exchange siphoned off from the country. It is not disputed that whomsoever perpetrated this grave economic offence deserves to be dealt with sternly under law.When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.
Firestone Tyre And Rubber Company Of India Private Limited Vs. The Workmen Employed Represented By Firestone Tyreemployees	workmen were straightaway ordered to be reinstated. The Tribunal having found that the inquiries held against the workmen had not been proper noted that it was well settled that in such a situation the employer should be given an opportunity to adduce evidence before the Tribunal in support of the action taken by them, but proceeded to hold that in view of the other finding tha t the 12 workmen had been unfairly discriminated against, they were entitled to reinstatement and therefore no useful purpose would be served by permitting the management to adduce evidence seeking to justify the dismissal of the workmen on the ground of misconduct. It was contended on behalf of the appellant that the Tribunal had no jurisdiction to address itself to the question of discrimination. Section 10 (4) of the Industrial Disputes Act lays down:"Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or Tribunal or National Tribunal as the case may be, shall confine its adjudication to those points and matters incidental thereto".9. In this case the points of dispute were specified in the schedule to the order of reference, and the Tribunal was therefore required to confine its adjudication to those points and matters that were incidental to them. From a reading of demands 1(A) and 1(B) as a whole it is clear that the demand for reinstatement in respect of both groups of workmen as made arises on the alleged invalidity of the action taken by the management in dismissing these workmen. The issue of unfair labour practice or discrimination by reason of subsequent reinstatement on a permanent basis of some and not all the 25 workmen was not a matter referred to the Tribunal for adjudication, nor it can be said to be in any way connected with or incidental to the right of reinstatement claimed by the 101 workmen from the date of their dismissal. The fairness of subsequent absorption of some workmen is a matter quite irrelevant for judging the validity of the earlier dismissal of these workmen along with others; it is an entirely separate and independent question. The Tribunal also did not frame an issue on the alleged discrimination. That being so, we think the Tribunal travelled outside its jurisdiction in recording a finding of unfair labour practice and discrimination.10. We find no reason to disturb the finding that the inquiry held was not proper. The Tribunal has found that the chargesheets issued were vague as they did not disclose the relevant material on which the charges were based. It was contended on behalf of the Union on the basis of this finding that no useful purpose would be served by remitting the case to the Tribunal. It is settled law now that when no inquiry has been held or the inquiry held has not been proper, the Tribunal has jurisdiction to allow the management to lead evidence to justify the action taken. The contention is that the charge-sheets being vague, the Tribunal would not be in a position to decide what evidence to let in, and, therefore, sending the matter back to the Tribunal would only be an idle formality. It is not possible to accept this contention. Normally an inquiry by the management starts by issuing a charge-sheet to the workmen proposed to be discharged or dismissed. In a case where the chargesheet is vague, it must be held that there has been no proper inquiry. In M/s. Bharat Sugar Mills Ltd. v. Shri Jai Singh and others, (1) this Court held:"But the mere fact that no inquiry has been held or that the inquiry has not been properly conducted cannot absolve the Tribunal of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out. The proper way for performing this duty where there has not been a proper inquiry by the management is for the Tribunal to take evidence of both sides in respect of the alleged misconduct".11. Whether in a case, as the one before us, where it is found that proper charge-sheets had not been served on the workmen, the Tribunal can ask the parties to lead evidence to enable the Tribunal to decide the dispute between them is directly covered by an authority of this Court. In Management of Ritz Theatre (P) Ltd. v. Its Workmen, (2) Gajendragadkar J. (as he then was) speaking for the Court said:"....... if it appears that the departmental enquiry held by the employer is not fair in the sense that proper charge had not been served on the employee or proper or full opportunity had not been given to the employee to meet the charge, or the enquiry has been affected by other grave irregularities vitiating it, then the position would be that the Tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee for itself. The same result follows if no enquiry has been held at all. In other words, where the Tribunal is dealing with a dispute relating to the dismissal of an industrial employee, if it is satisfied that no enquiry has been held or the enquiry which has been held is not proper or fair or that the findings recorded by the Enquiry Officer are perverse, the whole issue is at large before the Tribunal. This position also is well settled".12. In view of the well-settled legal position, the order directing reinstatement of the 12 workmen without a consideration of the merits of the case cannot be sustained. We therefore remit the case to the Industrial Tribunal to decide the dispute concerning the demand specified in paragraph 1(A) of the Schedule to the order of Reference after giving the parties concerned an opportunity to lead evidence in support of their respective cases.	1[ds]During the pendency of the reference all the 76 workmen covered by paragraph 1 (B) of the Schedule who had been taken back on temporary basis were made permanent as a result of settlements reached between these workmen and the management. On behalf of 33 out of 76 of these workmen, the union entered into a settlement with the management, the remaining workmen of this group individually entered into settlement s with the management. The period during which the workmen were absent from duty was treated as leave without pay and continuity of their service wasthis case the points of dispute were specified in the schedule to the order of reference, and the Tribunal was therefore required to confine its adjudication to those points and matters that were incidental to them. From a reading of demands 1(A) and 1(B) as a whole it is clear that the demand for reinstatement in respect of both groups of workmen as made arises on the alleged invalidity of the action taken by the management in dismissing these workmen. The issue of unfair labour practice or discrimination by reason of subsequent reinstatement on a permanent basis of some and not all the 25 workmen was not a matter referred to the Tribunal for adjudication, nor it can be said to be in any way connected with or incidental to the right of reinstatement claimed by the 101 workmen from the date of their dismissal. The fairness of subsequent absorption of some workmen is a matter quite irrelevant for judging the validity of the earlier dismissal of these workmen along with others; it is an entirely separate and independent question. The Tribunal also did not frame an issue on the alleged discrimination. That being so, we think the Tribunal travelled outside its jurisdiction in recording a finding of unfair labour practice andfind no reason to disturb the finding that the inquiry held was not proper. The Tribunal has found that the chargesheets issued were vague as they did not disclose the relevant material on which the charges were based. It was contended on behalf of the Union on the basis of this finding that no useful purpose would be served by remitting the case to the Tribunal. It is settled law now that when no inquiry has been held or the inquiry held has not been proper, the Tribunal has jurisdiction to allow the management to lead evidence to justify the action taken. The contention is that the charge-sheets being vague, the Tribunal would not be in a position to decide what evidence to let in, and, therefore, sending the matter back to the Tribunal would only be an idle formality. It is not possible to accept this contention. Normally an inquiry by the management starts by issuing a charge-sheet to the workmen proposed to be discharged or dismissed. In a case where the chargesheet is vague, it must be held that there has been no properview of the well-settled legal position, the order directing reinstatement of the 12 workmen without a consideration of the merits of the case cannot be sustained. We therefore remit the case to the Industrial Tribunal to decide the dispute concerning the demand specified in paragraph 1(A) of the Schedule to the order of Reference after giving the parties concerned an opportunity to lead evidence in support of their respective cases.	1	2,558	606	### 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: workmen were straightaway ordered to be reinstated. The Tribunal having found that the inquiries held against the workmen had not been proper noted that it was well settled that in such a situation the employer should be given an opportunity to adduce evidence before the Tribunal in support of the action taken by them, but proceeded to hold that in view of the other finding tha t the 12 workmen had been unfairly discriminated against, they were entitled to reinstatement and therefore no useful purpose would be served by permitting the management to adduce evidence seeking to justify the dismissal of the workmen on the ground of misconduct. It was contended on behalf of the appellant that the Tribunal had no jurisdiction to address itself to the question of discrimination. Section 10 (4) of the Industrial Disputes Act lays down:"Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or Tribunal or National Tribunal as the case may be, shall confine its adjudication to those points and matters incidental thereto".9. In this case the points of dispute were specified in the schedule to the order of reference, and the Tribunal was therefore required to confine its adjudication to those points and matters that were incidental to them. From a reading of demands 1(A) and 1(B) as a whole it is clear that the demand for reinstatement in respect of both groups of workmen as made arises on the alleged invalidity of the action taken by the management in dismissing these workmen. The issue of unfair labour practice or discrimination by reason of subsequent reinstatement on a permanent basis of some and not all the 25 workmen was not a matter referred to the Tribunal for adjudication, nor it can be said to be in any way connected with or incidental to the right of reinstatement claimed by the 101 workmen from the date of their dismissal. The fairness of subsequent absorption of some workmen is a matter quite irrelevant for judging the validity of the earlier dismissal of these workmen along with others; it is an entirely separate and independent question. The Tribunal also did not frame an issue on the alleged discrimination. That being so, we think the Tribunal travelled outside its jurisdiction in recording a finding of unfair labour practice and discrimination.10. We find no reason to disturb the finding that the inquiry held was not proper. The Tribunal has found that the chargesheets issued were vague as they did not disclose the relevant material on which the charges were based. It was contended on behalf of the Union on the basis of this finding that no useful purpose would be served by remitting the case to the Tribunal. It is settled law now that when no inquiry has been held or the inquiry held has not been proper, the Tribunal has jurisdiction to allow the management to lead evidence to justify the action taken. The contention is that the charge-sheets being vague, the Tribunal would not be in a position to decide what evidence to let in, and, therefore, sending the matter back to the Tribunal would only be an idle formality. It is not possible to accept this contention. Normally an inquiry by the management starts by issuing a charge-sheet to the workmen proposed to be discharged or dismissed. In a case where the chargesheet is vague, it must be held that there has been no proper inquiry. In M/s. Bharat Sugar Mills Ltd. v. Shri Jai Singh and others, (1) this Court held:"But the mere fact that no inquiry has been held or that the inquiry has not been properly conducted cannot absolve the Tribunal of its duty to decide whether the case that the workman has been guilty of the alleged misconduct has been made out. The proper way for performing this duty where there has not been a proper inquiry by the management is for the Tribunal to take evidence of both sides in respect of the alleged misconduct".11. Whether in a case, as the one before us, where it is found that proper charge-sheets had not been served on the workmen, the Tribunal can ask the parties to lead evidence to enable the Tribunal to decide the dispute between them is directly covered by an authority of this Court. In Management of Ritz Theatre (P) Ltd. v. Its Workmen, (2) Gajendragadkar J. (as he then was) speaking for the Court said:"....... if it appears that the departmental enquiry held by the employer is not fair in the sense that proper charge had not been served on the employee or proper or full opportunity had not been given to the employee to meet the charge, or the enquiry has been affected by other grave irregularities vitiating it, then the position would be that the Tribunal would be entitled to deal with the merits of the dispute as to the dismissal of the employee for itself. The same result follows if no enquiry has been held at all. In other words, where the Tribunal is dealing with a dispute relating to the dismissal of an industrial employee, if it is satisfied that no enquiry has been held or the enquiry which has been held is not proper or fair or that the findings recorded by the Enquiry Officer are perverse, the whole issue is at large before the Tribunal. This position also is well settled".12. In view of the well-settled legal position, the order directing reinstatement of the 12 workmen without a consideration of the merits of the case cannot be sustained. We therefore remit the case to the Industrial Tribunal to decide the dispute concerning the demand specified in paragraph 1(A) of the Schedule to the order of Reference after giving the parties concerned an opportunity to lead evidence in support of their respective cases. ### Response: 1 ### Explanation: During the pendency of the reference all the 76 workmen covered by paragraph 1 (B) of the Schedule who had been taken back on temporary basis were made permanent as a result of settlements reached between these workmen and the management. On behalf of 33 out of 76 of these workmen, the union entered into a settlement with the management, the remaining workmen of this group individually entered into settlement s with the management. The period during which the workmen were absent from duty was treated as leave without pay and continuity of their service wasthis case the points of dispute were specified in the schedule to the order of reference, and the Tribunal was therefore required to confine its adjudication to those points and matters that were incidental to them. From a reading of demands 1(A) and 1(B) as a whole it is clear that the demand for reinstatement in respect of both groups of workmen as made arises on the alleged invalidity of the action taken by the management in dismissing these workmen. The issue of unfair labour practice or discrimination by reason of subsequent reinstatement on a permanent basis of some and not all the 25 workmen was not a matter referred to the Tribunal for adjudication, nor it can be said to be in any way connected with or incidental to the right of reinstatement claimed by the 101 workmen from the date of their dismissal. The fairness of subsequent absorption of some workmen is a matter quite irrelevant for judging the validity of the earlier dismissal of these workmen along with others; it is an entirely separate and independent question. The Tribunal also did not frame an issue on the alleged discrimination. That being so, we think the Tribunal travelled outside its jurisdiction in recording a finding of unfair labour practice andfind no reason to disturb the finding that the inquiry held was not proper. The Tribunal has found that the chargesheets issued were vague as they did not disclose the relevant material on which the charges were based. It was contended on behalf of the Union on the basis of this finding that no useful purpose would be served by remitting the case to the Tribunal. It is settled law now that when no inquiry has been held or the inquiry held has not been proper, the Tribunal has jurisdiction to allow the management to lead evidence to justify the action taken. The contention is that the charge-sheets being vague, the Tribunal would not be in a position to decide what evidence to let in, and, therefore, sending the matter back to the Tribunal would only be an idle formality. It is not possible to accept this contention. Normally an inquiry by the management starts by issuing a charge-sheet to the workmen proposed to be discharged or dismissed. In a case where the chargesheet is vague, it must be held that there has been no properview of the well-settled legal position, the order directing reinstatement of the 12 workmen without a consideration of the merits of the case cannot be sustained. We therefore remit the case to the Industrial Tribunal to decide the dispute concerning the demand specified in paragraph 1(A) of the Schedule to the order of Reference after giving the parties concerned an opportunity to lead evidence in support of their respective cases.
Faridabad Complex Administration Vs. M/S. Iron Master India (P) Ltd	the years 1991-92, 1992-93 and 1993-94 from the respondent on their properties. The appellant also sought a declaration that a demand notice dated 20.11.1993 raised by the appellant calling upon the respondent to pay Rs. 48,599.40 towards the House Tax on their properties is illegal.5. The appellant filed written statement and defended the aforementioned demands on various grounds. The appellant also raised an objection about the maintainability of the Suit.6. The Trial Court framed issues. Parties adduced evidence. Vide judgment and decree dated 20.09.2002 in Case No. 1483 of 1995, the Trial Court dismissed the Suit. Felt aggrieved, the respondent filed appeal being Civil Appeal No. 166 of 2002 before the Additional District Judge, Faridabad. By order dated 22.10.2003, the Additional District Judge allowed the appeal, set aside the judgment and decree of the Trial Court and decreed the respondents suit against the appellant.7. Felt aggrieved, the appellant(defendant) filed second appeal before the High Court wherein the appellant had proposed several substantial questions of law arising in the case. The High Court, however, dismissed the second appeal in limine by impugned judgment/order holding that the second appeal does not involve any substantial question of law. It is against this judgment, the appellant(defendant) has filed this appeal by way of special leave petition before this Court.8. It is unfortunate that no one appeared for the appellant to argue the appeal before this Court when the case was called on for hearing twice. We, however, refrained ourselves from dismissing the appeal in default and instead perused the record with the assistance of Mr. A.K. Singla, learned senior counsel for the respondent with a view to decide the appeal on merits.9. Having heard learned senior counsel for the respondent and on perusal of the record of the case, we are inclined to allow the appeal and remand the case to the High Court for deciding the second appeal afresh on merits in accordance with law.10. The question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the second appeal of the appellant(defendant) in limine holding that it does not involve any substantial question of law?11. The learned Single Judge while dismissing the appeal passed the following order:"This Regular Second Appeal has been filed by the defendant against the judgment and decree dated 22.10.2003, passed by the Additional District Judge, whereby the appeal filed by the plaintiff was accepted, the judgment and decree passed by the trial Court were set aside and the suit of the plaintiff was decreed.While decreeing the suit of the plaintiff, it was found by the learned Additional District Judge that before fixing the annual value and imposing the house tax, the defendant had failed to decide the objections filed by the plaintiff against the proposed amendment of the assessment list. It was found that in fact the case of the defendant was that no objections were filed. However, when a copy of the objections and the notice for personal hearing were shown to DW1 (produced by the defendant), he had to admit that those documents were issued by the defendant. It was found that from those documents, it was clear that the plaintiff had filed objections against the proposed amendment of the assessment list and there is nothing on the record to show that the objections were decided before the annual value was fixed and the house tax was imposed. This finding of the learned Additional District Judge, in my opinion, is a finding of fact based on the evidence led by the parties, especially when there is nothing on the record to show that there is any misreading of evidence or that any material evidence had been ignored by the learned Additional District Judge while giving this finding. Once it is found that the defendant had failed to follow the procedure laid down under the Act while imposing the house tax, in my opinion, the civil Court certainly had the jurisdiction to entertain the present suit and the finding of the learned Additional District Judge in this regard also has to be affirmed.In this view of the matter, in my opinion, there is no scope for interference in the present appeal, especially when no question of law much less substantial question of law arises for determination in this appeal.Hence, the present appeal is dismissed."12. As observed supra, we do not agree with the reasoning and the conclusion arrived at by the High Court in the impugned order. In our considered view, the appeal did involve the substantial question of law and, therefore, the High Court should have admitted the appeal by first framing proper substantial questions of law arising in the case, issued notice to the respondent for its final hearing as provided under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") and disposed it of on merits.13. As a matter of fact, having regard to the nature of controversy involved in the suit and the issues arising in the case, the questions raised in the second appeal did constitute substantial questions of law within the meaning of Section 100 of the Code.14. Indeed, in our considered view, the questions, viz., whether the suit seeking a declaration that the demand of House Tax raised under the Act is maintainable, whether such suit is barred and, if so, by virtue of which provision of the Act, whether plaintiff has any alternative statutory remedy available under the Act for adjudication of his grievance and, if so, which is that remedy, and lastly, whether the plaintiff has properly valued the suit and, if so, whether they have paid the proper Court fees on the reliefs claimed in the suit were legal questions arising in the appeal and involved jurisdictional issues requiring adjudication on merits in accordance with law. The High Court unfortunately did not examine any of these issues much less in its proper perspective in the light of relevant provisions of the Act governing the controversy.	0[ds]8. It is unfortunate that no one appeared for the appellant to argue the appeal before this Court when the case was called on for hearing twice. We, however, refrained ourselves from dismissing the appeal in default and instead perused the record with the assistance of Mr. A.K. Singla, learned senior counsel for the respondent with a view to decide the appeal on merits.9. Having heard learned senior counsel for the respondent and on perusal of the record of the case, we are inclined to allow the appeal and remand the case to the High Court for deciding the second appeal afresh on merits in accordance with law.As observed supra, we do not agree with the reasoning and the conclusion arrived at by the High Court in the impugned order. In our considered view, the appeal did involve the substantial question of law and, therefore, the High Court should have admitted the appeal by first framing proper substantial questions of law arising in the case, issued notice to the respondent for its final hearing as provided under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") and disposed it of on merits.13. As a matter of fact, having regard to the nature of controversy involved in the suit and the issues arising in the case, the questions raised in the second appeal did constitute substantial questions of law within the meaning of Section 100 of the Code.14. Indeed, in our considered view, the questions, viz., whether the suit seeking a declaration that the demand of House Tax raised under the Act is maintainable, whether such suit is barred and, if so, by virtue of which provision of the Act, whether plaintiff has any alternative statutory remedy available under the Act for adjudication of his grievance and, if so, which is that remedy, and lastly, whether the plaintiff has properly valued the suit and, if so, whether they have paid the proper Court fees on the reliefs claimed in the suit were legal questions arising in the appeal and involved jurisdictional issues requiring adjudication on merits in accordance with law. The High Court unfortunately did not examine any of these issues much less in its proper perspective in the light of relevant provisions of the Act governing the controversy.Before parting, we consider it proper to mention here that we have not expressed any opinion on merits of the controversy and confined our inquiry only to examine whetherthe second appeal involved any substantial question of law within the meaning of Section 100 of theSince none appeared for the appellant(defendant) in this Court, the High Court would issue notice to the appellant before it is finally heard.	0	1,331	498	### Instruction: Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding. ### Input: the years 1991-92, 1992-93 and 1993-94 from the respondent on their properties. The appellant also sought a declaration that a demand notice dated 20.11.1993 raised by the appellant calling upon the respondent to pay Rs. 48,599.40 towards the House Tax on their properties is illegal.5. The appellant filed written statement and defended the aforementioned demands on various grounds. The appellant also raised an objection about the maintainability of the Suit.6. The Trial Court framed issues. Parties adduced evidence. Vide judgment and decree dated 20.09.2002 in Case No. 1483 of 1995, the Trial Court dismissed the Suit. Felt aggrieved, the respondent filed appeal being Civil Appeal No. 166 of 2002 before the Additional District Judge, Faridabad. By order dated 22.10.2003, the Additional District Judge allowed the appeal, set aside the judgment and decree of the Trial Court and decreed the respondents suit against the appellant.7. Felt aggrieved, the appellant(defendant) filed second appeal before the High Court wherein the appellant had proposed several substantial questions of law arising in the case. The High Court, however, dismissed the second appeal in limine by impugned judgment/order holding that the second appeal does not involve any substantial question of law. It is against this judgment, the appellant(defendant) has filed this appeal by way of special leave petition before this Court.8. It is unfortunate that no one appeared for the appellant to argue the appeal before this Court when the case was called on for hearing twice. We, however, refrained ourselves from dismissing the appeal in default and instead perused the record with the assistance of Mr. A.K. Singla, learned senior counsel for the respondent with a view to decide the appeal on merits.9. Having heard learned senior counsel for the respondent and on perusal of the record of the case, we are inclined to allow the appeal and remand the case to the High Court for deciding the second appeal afresh on merits in accordance with law.10. The question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing the second appeal of the appellant(defendant) in limine holding that it does not involve any substantial question of law?11. The learned Single Judge while dismissing the appeal passed the following order:"This Regular Second Appeal has been filed by the defendant against the judgment and decree dated 22.10.2003, passed by the Additional District Judge, whereby the appeal filed by the plaintiff was accepted, the judgment and decree passed by the trial Court were set aside and the suit of the plaintiff was decreed.While decreeing the suit of the plaintiff, it was found by the learned Additional District Judge that before fixing the annual value and imposing the house tax, the defendant had failed to decide the objections filed by the plaintiff against the proposed amendment of the assessment list. It was found that in fact the case of the defendant was that no objections were filed. However, when a copy of the objections and the notice for personal hearing were shown to DW1 (produced by the defendant), he had to admit that those documents were issued by the defendant. It was found that from those documents, it was clear that the plaintiff had filed objections against the proposed amendment of the assessment list and there is nothing on the record to show that the objections were decided before the annual value was fixed and the house tax was imposed. This finding of the learned Additional District Judge, in my opinion, is a finding of fact based on the evidence led by the parties, especially when there is nothing on the record to show that there is any misreading of evidence or that any material evidence had been ignored by the learned Additional District Judge while giving this finding. Once it is found that the defendant had failed to follow the procedure laid down under the Act while imposing the house tax, in my opinion, the civil Court certainly had the jurisdiction to entertain the present suit and the finding of the learned Additional District Judge in this regard also has to be affirmed.In this view of the matter, in my opinion, there is no scope for interference in the present appeal, especially when no question of law much less substantial question of law arises for determination in this appeal.Hence, the present appeal is dismissed."12. As observed supra, we do not agree with the reasoning and the conclusion arrived at by the High Court in the impugned order. In our considered view, the appeal did involve the substantial question of law and, therefore, the High Court should have admitted the appeal by first framing proper substantial questions of law arising in the case, issued notice to the respondent for its final hearing as provided under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") and disposed it of on merits.13. As a matter of fact, having regard to the nature of controversy involved in the suit and the issues arising in the case, the questions raised in the second appeal did constitute substantial questions of law within the meaning of Section 100 of the Code.14. Indeed, in our considered view, the questions, viz., whether the suit seeking a declaration that the demand of House Tax raised under the Act is maintainable, whether such suit is barred and, if so, by virtue of which provision of the Act, whether plaintiff has any alternative statutory remedy available under the Act for adjudication of his grievance and, if so, which is that remedy, and lastly, whether the plaintiff has properly valued the suit and, if so, whether they have paid the proper Court fees on the reliefs claimed in the suit were legal questions arising in the appeal and involved jurisdictional issues requiring adjudication on merits in accordance with law. The High Court unfortunately did not examine any of these issues much less in its proper perspective in the light of relevant provisions of the Act governing the controversy. ### Response: 0 ### Explanation: 8. It is unfortunate that no one appeared for the appellant to argue the appeal before this Court when the case was called on for hearing twice. We, however, refrained ourselves from dismissing the appeal in default and instead perused the record with the assistance of Mr. A.K. Singla, learned senior counsel for the respondent with a view to decide the appeal on merits.9. Having heard learned senior counsel for the respondent and on perusal of the record of the case, we are inclined to allow the appeal and remand the case to the High Court for deciding the second appeal afresh on merits in accordance with law.As observed supra, we do not agree with the reasoning and the conclusion arrived at by the High Court in the impugned order. In our considered view, the appeal did involve the substantial question of law and, therefore, the High Court should have admitted the appeal by first framing proper substantial questions of law arising in the case, issued notice to the respondent for its final hearing as provided under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") and disposed it of on merits.13. As a matter of fact, having regard to the nature of controversy involved in the suit and the issues arising in the case, the questions raised in the second appeal did constitute substantial questions of law within the meaning of Section 100 of the Code.14. Indeed, in our considered view, the questions, viz., whether the suit seeking a declaration that the demand of House Tax raised under the Act is maintainable, whether such suit is barred and, if so, by virtue of which provision of the Act, whether plaintiff has any alternative statutory remedy available under the Act for adjudication of his grievance and, if so, which is that remedy, and lastly, whether the plaintiff has properly valued the suit and, if so, whether they have paid the proper Court fees on the reliefs claimed in the suit were legal questions arising in the appeal and involved jurisdictional issues requiring adjudication on merits in accordance with law. The High Court unfortunately did not examine any of these issues much less in its proper perspective in the light of relevant provisions of the Act governing the controversy.Before parting, we consider it proper to mention here that we have not expressed any opinion on merits of the controversy and confined our inquiry only to examine whetherthe second appeal involved any substantial question of law within the meaning of Section 100 of theSince none appeared for the appellant(defendant) in this Court, the High Court would issue notice to the appellant before it is finally heard.
Chief Manager, Punjab National Bank & Anr Vs. Anit Kumar Das	such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the High Court was justified in reversing the judgment [Zahoor Ahmad Rather v. State of J&K, 2017 SCC OnLine J&K 936] of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the Division Bench. That thereafter it is observed in para 27 as under: 27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned. 7.3 Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts. In the present case, prescribing the eligibility criteria/educational qualification that a graduate candidate shall not be eligible and the candidate must have passed 12th standard is justified and as observed hereinabove, it is a conscious decision taken by the Bank which is in force since 2008. Therefore, the High Court has clearly erred in directing the appellant Bank to allow the respondent-original writ petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement. 8. Even on the ground that respondent – original writ petitioner deliberately, wilfully and intentionally suppressed the fact that he was a graduate, the High Court has erred in directing the appellant Bank to allow the respondent – original writ petitioner to discharge his duties as a Peon. In the application/bio-data, the respondentoriginal writ petitioner did not mention that he was a graduate. Very cleverly he suppressed the material fact and declared his qualification as H.S.C., whereas as a matter of fact, he was holding a degree in the Bachelor in Arts. Had it been known to the bank that he was a graduate, he would not have at all been considered for selection as a Peon in the bank. That thereafter when scrutiny of the documents was going on and when the respondent – original writ petitioner produced a graduation certificate, at that time, the bank came to know that he was a graduate and therefore not eligible and therefore the bank rightly cancelled his candidature and he was not allowed to join the bank in the subordinate cadre. Therefore, on the aforesaid ground alone, the High Court ought not to have allowed the writ petition when it was a clear case of suppression of material fact by the original writ petitioner. An employee is expected to give a correct information as to his qualification. The original writ petitioner failed to do so. He was in fact over-qualified and therefore ineligible to apply for the job. In fact, by such conduct on the part of the respondent –original writ petitioner, one another righteous candidate has suffered for his mischievous act. As held by this Court in the case of Ram Ratan Yadav (supra), suppression of material information and making a false statement has a clear bearing on the character and antecedents of the employee in relation to his continuance in service. A candidate having suppressed the material information and/or giving false information cannot claim right to continuance in service. Thus, on the ground of suppression of material information and the facts and as the respondent – original writ petitioner even otherwise was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement which was as per Circular letter No. 25 of 2008 dated 06.11.2008, the bank rightly cancelled his candidature and rightly did not permit him to resume his duty. 9. On reading the judgment and order passed by the learned single Judge it appears that the learned single Judge has not at all considered the aforesaid aspect of suppression of material fact and information. So far as the impugned order passed by the Division Bench of the High Court, as such it is a non-speaking and unreasoned order, without even stating any facts.	1[ds]5. We have heard learned counsel appearing on behalf of the respective parties at length. The appellant Bank invited the applications for the post Peon by giving an advertisement in the local newspaper. In the advertisement itself, it was specifically mentioned that a candidate should have passed 12th class or its equivalent with basic reading/writing knowledge of English and should not be a graduate as on 01.01.2016. Thus, as per the eligibility criteria mentioned in the advertisement, a candidate who was having qualification of graduate was not eligible even to apply. From the counter filed on behalf of the Bank before the High Court, it appears that the educational qualification mentioned in the advertisement was as per Circular letter No. 25 of 2008 dated 06.11.2008 issued by the HRD Division of the bank.5.2 It is not in dispute that pursuant to the said advertisement, respondent herein – original writ petitioner applied for the post of Peon. However, in the application/bio-data, he did not disclose that he is a graduate from 2014. He only mentioned his qualification as 12th pass. On the basis of the information provided by him in his application, his application was entertained and he was selected on the basis of the marks obtained in 10th class and 12th class. Therefore, the respondent – original writ petitioner deliberately, wilfully and intentionally suppressed the fact that he was a graduate. Had it been known to the bank that he was a graduate, he would not have at all been considered for selection as a Peon in the bank. That thereafter and before the original writ petitioner was permitted to resume his duty pursuant to the appointment order dated 03.10.2016, the bank came to know that he was a graduate. That thereafter when scrutiny of the document was going on, the original writ petitioner produced the graduate certification showing that he was a graduate since 2014, the bank found that he was not eligible as he did not fulfill the criteria mentioned in the advertisement, and that he suppressed the material fact that he was a graduate, his candidature came to be cancelled and he was not allowed to join the bank in the subordinate cadre/Peon.5.3 The learned Single Judge of the High Court by the judgment and order allowed the writ petition preferred by the respondent and directed the appellant Bank to allow the original writ petitioner to discharge his duties as a Peon as per appointment order dated 03.10.2016 on the ground that as held by the Allahabad High Court in the case of Pankaj Kumar Dubey (supra), in which the decision of this Court in the case of Mohd. Riazul Usman Gani (supra) was relied upon, the higher qualification cannot be the qualification for the post of Peon. Decision of the learned Single Judge has been continuing by the Division Bench by impugned non-speaking and unreasoned order.6. It is required to be noted that the eligibility criteria/educational qualification mentioned in the advertisement inviting the applications was as per Circular letter No. 25 of 2008 dated 06.11.2008, the relevant portion of which is reproduced hereinabove. As stated in the counter to the writ petition, a conscious decision was taken by the bank providing eligibility criteria/educational qualification that a graduate candidate shall not be eligible for the post of Peon/subordinate staff. The said decision was taken consciously looking to the nature of the post. At this stage, it is required to be noted that the original writ petitioner never challenged the eligibility criteria/educational qualification mentioned in the advertisement. He participated in the recruitment process on the basis of the advertisement, without challenging the eligibility criteria/educational qualification mentioned in the advertisement. Therefore, once having participated in the recruitment process as per the advertisement, thereafter it is not open for him to contend that acquisition of higher qualification cannot be a disqualification and that too when he never challenged the eligibility criteria/educational qualification mentioned in the advertisement.7. Even otherwise, prescribing the eligibility criteria/educational qualification that a graduate shall not be eligible to apply was a conscious decision taken by the Bank and the same was as per the Circular letter No. 25 of 2008 dated 06.11.2008. In the case of J. Rangaswamy (supra), it is observed and held by this Court that it is not for the court to consider the relevance of qualifications prescribed for various posts.7.2 In a recent decision of this Court in the case of Zahoor Ahmad Rather (supra), this Court has distinguished another decision of this Court in the case of Jyoti K.K. v. Kerala Public Service Commission (2010) 15 SCC 596 taking the view that in a case where lower qualification is prescribed, if a person has acquired higher qualifications, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In the said decision, this Court also took note of another decision of this Court in the case of State of Punjab v. Anita (2015) 2 SCC 170 , in which case, this Court on facts distinguished the decision in the case of Jyoti K.K. (supra). While distinguishing the decision in the case of Jyoti K.K. (supra), it is observed in paras 25 and 26 as under:25. The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] has been considered in a judgment of two learned Judges in State of Punjab v. Anita [State of Punjab v. Anita, (2015) 2 SCC 170 : (2015) 1 SCC (L&S) 329] . In that case, applications were invited for JBT/ETT qualified teachers. Under the rules, the prescribed qualification for a JBT teacher included a Matric with a two years course in JBT training and knowledge of Punjabi and Hindi of the Matriculation standard or its equivalent. This Court held that none of the respondents held the prescribed qualification and an MA, MSc or MCom could not be treated as a higher qualification. Adverting to the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] , this Court noted that Rule 10(a)(ii) in that case clearly stipulated that the possession of a higher qualification can presuppose the acquisition of a lower qualification prescribed for the post. In the absence of such a stipulation, it was held that such a hypothesis could not be deduced: (Anita case [State of Punjab v. Anita, (2015) 2 SCC 170 : (2015) 1 SCC (L&S) 329] , SCC p. 177, para 15)15. It was sought to be asserted on the basis of the aforesaid observations, that since the private respondents possess higher qualifications, then the qualification of JBT/ETT, they should be treated as having fulfilled the qualification stipulated for the posts of JBT/ETT Teachers. It is not possible for us to accept the aforesaid submission of the learned counsel for the private respondents, because the statutory rules which were taken into consideration by this Court while recording the aforesaid observations inJyoti K.K. case [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] , permitted the aforesaid course. The statutory rule, in the decision relied on by the learned counsel for the private respondents, is extracted hereunder: (SCC p. 598, para 6)6. Rule 10(a)(ii) reads as follows:10. (a)(ii) Notwithstanding anything contained in these Rules or in the Special Rules, the qualifications recognised by executive orders or Standing Orders of Government as equivalent to a qualification specified for a post in the Special Rules [Ed.: The matter between two asterisks has been emphasised in original.] and such of those higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post.A perusal of the Rule clearly reveals that the possession of higher qualification would presuppose the acquisition of the lower qualification prescribed for the posts. Insofar as the present controversy is concerned, there is no similar statutory provision authorising the appointment of persons with higher qualifications.26. We are in respectful agreement with the interpretation which has been placed on the judgment in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] in the subsequent decision in Anita [State of Punjab v. Anita, (2015) 2 SCC 170 : (2015) 1 SCC (L&S) 329] . The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on the provisions of Rule 10(a)(ii). Absent such a rule, it would not be permissible to draw an inference that a higher qualification necessarily presupposes the acquisition of another, albeit lower, qualification. The prescription of qualifications for a post is a matter of recruitment policy. The State as the employer is entitled to prescribe the qualifications as a condition of eligibility. It is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter for the State, as the recruiting authority, to determine. The decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on a specific statutory rule under which the holding of a higher qualification could presuppose the acquisition of a lower qualification. The absence of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the High Court was justified in reversing the judgment [Zahoor Ahmad Rather v. State of J&K, 2017 SCC OnLine J&K 936] of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the Division Bench.That thereafter it is observed in para 27 as under:27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned.7.3 Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts. In the present case, prescribing the eligibility criteria/educational qualification that a graduate candidate shall not be eligible and the candidate must have passed 12th standard is justified and as observed hereinabove, it is a conscious decision taken by the Bank which is in force since 2008. Therefore, the High Court has clearly erred in directing the appellant Bank to allow the respondent-original writ petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement.8. Even on the ground that respondent – original writ petitioner deliberately, wilfully and intentionally suppressed the fact that he was a graduate, the High Court has erred in directing the appellant Bank to allow the respondent – original writ petitioner to discharge his duties as a Peon. In the application/bio-data, the respondentoriginal writ petitioner did not mention that he was a graduate. Very cleverly he suppressed the material fact and declared his qualification as H.S.C., whereas as a matter of fact, he was holding a degree in the Bachelor in Arts. Had it been known to the bank that he was a graduate, he would not have at all been considered for selection as a Peon in the bank. That thereafter when scrutiny of the documents was going on and when the respondent – original writ petitioner produced a graduation certificate, at that time, the bank came to know that he was a graduate and therefore not eligible and therefore the bank rightly cancelled his candidature and he was not allowed to join the bank in the subordinate cadre. Therefore, on the aforesaid ground alone, the High Court ought not to have allowed the writ petition when it was a clear case of suppression of material fact by the original writ petitioner. An employee is expected to give a correct information as to his qualification. The original writ petitioner failed to do so. He was in fact over-qualified and therefore ineligible to apply for the job. In fact, by such conduct on the part of the respondent –original writ petitioner, one another righteous candidate has suffered for his mischievous act. As held by this Court in the case of Ram Ratan Yadav (supra), suppression of material information and making a false statement has a clear bearing on the character and antecedents of the employee in relation to his continuance in service. A candidate having suppressed the material information and/or giving false information cannot claim right to continuance in service. Thus, on the ground of suppression of material information and the facts and as the respondent – original writ petitioner even otherwise was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement which was as per Circular letter No. 25 of 2008 dated 06.11.2008, the bank rightly cancelled his candidature and rightly did not permit him to resume his duty.9. On reading the judgment and order passed by the learned single Judge it appears that the learned single Judge has not at all considered the aforesaid aspect of suppression of material fact and information. So far as the impugned order passed by the Division Bench of the High Court, as such it is a non-speaking and unreasoned order, without even stating any facts.	1	5,544	2,985	### 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: such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the High Court was justified in reversing the judgment [Zahoor Ahmad Rather v. State of J&K, 2017 SCC OnLine J&K 936] of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the Division Bench. That thereafter it is observed in para 27 as under: 27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned. 7.3 Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts. In the present case, prescribing the eligibility criteria/educational qualification that a graduate candidate shall not be eligible and the candidate must have passed 12th standard is justified and as observed hereinabove, it is a conscious decision taken by the Bank which is in force since 2008. Therefore, the High Court has clearly erred in directing the appellant Bank to allow the respondent-original writ petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement. 8. Even on the ground that respondent – original writ petitioner deliberately, wilfully and intentionally suppressed the fact that he was a graduate, the High Court has erred in directing the appellant Bank to allow the respondent – original writ petitioner to discharge his duties as a Peon. In the application/bio-data, the respondentoriginal writ petitioner did not mention that he was a graduate. Very cleverly he suppressed the material fact and declared his qualification as H.S.C., whereas as a matter of fact, he was holding a degree in the Bachelor in Arts. Had it been known to the bank that he was a graduate, he would not have at all been considered for selection as a Peon in the bank. That thereafter when scrutiny of the documents was going on and when the respondent – original writ petitioner produced a graduation certificate, at that time, the bank came to know that he was a graduate and therefore not eligible and therefore the bank rightly cancelled his candidature and he was not allowed to join the bank in the subordinate cadre. Therefore, on the aforesaid ground alone, the High Court ought not to have allowed the writ petition when it was a clear case of suppression of material fact by the original writ petitioner. An employee is expected to give a correct information as to his qualification. The original writ petitioner failed to do so. He was in fact over-qualified and therefore ineligible to apply for the job. In fact, by such conduct on the part of the respondent –original writ petitioner, one another righteous candidate has suffered for his mischievous act. As held by this Court in the case of Ram Ratan Yadav (supra), suppression of material information and making a false statement has a clear bearing on the character and antecedents of the employee in relation to his continuance in service. A candidate having suppressed the material information and/or giving false information cannot claim right to continuance in service. Thus, on the ground of suppression of material information and the facts and as the respondent – original writ petitioner even otherwise was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement which was as per Circular letter No. 25 of 2008 dated 06.11.2008, the bank rightly cancelled his candidature and rightly did not permit him to resume his duty. 9. On reading the judgment and order passed by the learned single Judge it appears that the learned single Judge has not at all considered the aforesaid aspect of suppression of material fact and information. So far as the impugned order passed by the Division Bench of the High Court, as such it is a non-speaking and unreasoned order, without even stating any facts. ### Response: 1 ### Explanation: of such a rule in the present case makes a crucial difference to the ultimate outcome. In this view of the matter, the Division Bench [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the High Court was justified in reversing the judgment [Zahoor Ahmad Rather v. State of J&K, 2017 SCC OnLine J&K 936] of the learned Single Judge and in coming to the conclusion that the appellants did not meet the prescribed qualifications. We find no error in the decision [Imtiyaz Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of the Division Bench.That thereafter it is observed in para 27 as under:27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596 : (2013) 3 SCC (L&S) 664] turned.7.3 Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the Courts to consider and assess. A greater latitude is permitted by the Courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an Institution or an Industry or an establishment as the case may be. The Courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts. In the present case, prescribing the eligibility criteria/educational qualification that a graduate candidate shall not be eligible and the candidate must have passed 12th standard is justified and as observed hereinabove, it is a conscious decision taken by the Bank which is in force since 2008. Therefore, the High Court has clearly erred in directing the appellant Bank to allow the respondent-original writ petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement.8. Even on the ground that respondent – original writ petitioner deliberately, wilfully and intentionally suppressed the fact that he was a graduate, the High Court has erred in directing the appellant Bank to allow the respondent – original writ petitioner to discharge his duties as a Peon. In the application/bio-data, the respondentoriginal writ petitioner did not mention that he was a graduate. Very cleverly he suppressed the material fact and declared his qualification as H.S.C., whereas as a matter of fact, he was holding a degree in the Bachelor in Arts. Had it been known to the bank that he was a graduate, he would not have at all been considered for selection as a Peon in the bank. That thereafter when scrutiny of the documents was going on and when the respondent – original writ petitioner produced a graduation certificate, at that time, the bank came to know that he was a graduate and therefore not eligible and therefore the bank rightly cancelled his candidature and he was not allowed to join the bank in the subordinate cadre. Therefore, on the aforesaid ground alone, the High Court ought not to have allowed the writ petition when it was a clear case of suppression of material fact by the original writ petitioner. An employee is expected to give a correct information as to his qualification. The original writ petitioner failed to do so. He was in fact over-qualified and therefore ineligible to apply for the job. In fact, by such conduct on the part of the respondent –original writ petitioner, one another righteous candidate has suffered for his mischievous act. As held by this Court in the case of Ram Ratan Yadav (supra), suppression of material information and making a false statement has a clear bearing on the character and antecedents of the employee in relation to his continuance in service. A candidate having suppressed the material information and/or giving false information cannot claim right to continuance in service. Thus, on the ground of suppression of material information and the facts and as the respondent – original writ petitioner even otherwise was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement which was as per Circular letter No. 25 of 2008 dated 06.11.2008, the bank rightly cancelled his candidature and rightly did not permit him to resume his duty.9. On reading the judgment and order passed by the learned single Judge it appears that the learned single Judge has not at all considered the aforesaid aspect of suppression of material fact and information. So far as the impugned order passed by the Division Bench of the High Court, as such it is a non-speaking and unreasoned order, without even stating any facts.
Kali Prasad Singh Vs. Ram Prasad Singh & Others	registered gift deed in favour of the appellant, Ex. A-7 dated January 25, 1950. Later on, a decree for partition of the C schedule properties was passed and the half share of Debi Prasad was allotted to him which is set out in the plaint as F schedule properties. Thus, it is apparent that Debi Prasad had 1/6th share in the B schedule properties which was transformed into 1/2 share in C schedule properties or full ownership in F schedule properties, through the process of two litigations. At the time of the gift, Ex. A-7, although a decree allotting the C schedule properties to the donor, Debi Prasad, and his brother. Lal Bahadur, the second defendant, had been passed it would appear that in the revenue records this change had not been notified and, going by those records, all the B schedule properties were still shown as belonging jointly to the co-owners including Debi Prasad, the donor. (The learned District Judge has mentioned this fact in his judgment). The gift deed, Ex. A-7 relates to the share of Debi Prasad in the B schedule properties, and the question that falls for decision is as to whether the entire 1/6the share in the B schedule properties owned by Debi Prasad, and later concretised into the F schedule properties, were covered by the gift and transferred to the first defendant. the donee or whether only a 1/6th share of the F schedule properties was conveyed by the gift. To complete the story, it has to be mentioned that after the execution of Ex. A-7 Debi Prasad purported to convey his 5/6th share in the F schedule properties to the plaintiff and the 7th defendant who brought a suit for recovery of possession is the Munsifs court in 1956, three years after the death of the vendor, Debi Prasad. The learned Munsif granted a decree to the extent of 5/6th of the F schedule properties on a certain construction of Ex. A-7, while in appeal the learned District Judge dismissed the suit on the ground that Ex. A-7 was a gift of the entire F schedule properties. Fortunes fluctuated in the second appeal where the learned Munsifs decree was restored, and if we may anticipate our conclusion at this stage, we are inclined to uphold the dismissal of the suit agreeing with the views of the learned District Judge. 3. The plaintiff, in the trial court, put forward the extreme plea that the gift was a nominal document but that plea, faintly revived by learned counsel here, need not detain us as there is no merit in it and three courts have negatived it. 4. The only serious contention urged by the appellant and controverted by the respondent is as to the true meaning of Ex. A-7 in regard to the properties conveyed by it. Debi Prasad, the donor, recites in the deed of gift how he and the first defendant had been living together and the latter had been serving him "with all his heart and soul". He has recorded his grateful affection for his brother, the first defendant, and proceeded, to state: "Therefore I have the wish to give my property to Kali Prasad for his love and affection showed by him during my lifetime." It is obvious from this recital that what the donor intended to give was the whole property and not a fraction thereof. Indeed, the concluding recital which contains the words of conveyance only confirms this inference of intention, as we will presently show. The learned Single Judge himself observed emphatically: "I have no doubt that what Devi Prasad intended was to gift whatever interest he had in the family property". However, he thought that the operative portion of Ex. A-7 cut back on the quantum of the property transferred by Ex. A-7.We have studied carefully the recitals relied upon by the learned Judge to reach this conclusion and find it impossible to support the inference that has appealed to him. 5. Exhibit A-7 sets out all the items of property in the B schedule and gives its extent as 18-89 acres. The donor proceeds to state that this is the total extent of the properties continues by mentioning that he has a 1/6th share (ak chattai hissa).To put matters beyond doubt, he added that this 1/6th share is his and is given in gift (Yani 1/6 hissa ham musir ka hai voh hiba kiya). The meaning is unmistakable that the donor states that he has 1/6th share in all the properties set out at the foot of the gift deed (which are items of the B schedule to the plaint) and proceeds to convey this 1/6th share of his by way of hiba to the donee, his brother. It is conceivable, in the face of this language to hold that what was conveyed by Ex. A-7 was 1/6th of 1/6th of the items set out in the gift deed. 6. The only point of obscurity is as to why when there had already been a partition of the B schedule properties and the donor and Lal Bahadur, the second defendant, had been allotted the C schedule properties out of the B schedule properties there should have been no reference to the latter C schedule properties in the gift deed.The explanation apparently is that since in the revenue records the mutation of names indicating the partition and allotment of C schedule properties had not been carried out, the gift deed was drafted on the footing that Debi Prasad was owner of 1/6th of the B schedule properties and that entire share was being gifted away to the first defendant. There is no dispute between the parties that the 1/6th share of the donor in the B schedule properties was converted into half share in the C schedule properties and full ownership of the F schedule properties. It thus follows that Ex. A-7 is a gift in favour of the first defendant of the entire F schedule properties.	1[ds]sets out all the items of property in the B schedule and gives its extent as9 acres. The donor proceeds to state that this is the total extent of the properties continues by mentioning that he has a 1/6th share (ak chattai hissa).To put matters beyond doubt, he added that this 1/6th share is his and is given in gift (Yani 1/6 hissa ham musir ka hai voh hiba kiya). The meaning is unmistakable that the donor states that he has 1/6th share in all the properties set out at the foot of the gift deed (which are items of the B schedule to the plaint) and proceeds to convey this 1/6th share of his by way of hiba to the donee, his brother. It is conceivable, in the face of this language to hold that what was conveyed by Ex.7 was 1/6th of 1/6th of the items set out in the gift deed6. The only point of obscurity is as to why when there had already been a partition of the B schedule properties and the donor and Lal Bahadur, the second defendant, had been allotted the C schedule properties out of the B schedule properties there should have been no reference to the latter C schedule properties in the gift deed.The explanation apparently is that since in the revenue records the mutation of names indicating the partition and allotment of C schedule properties had not been carried out, the gift deed was drafted on the footing that Debi Prasad was owner of 1/6th of the B schedule properties and that entire share was being gifted away to the first defendant. There is no dispute between the parties that the 1/6th share of the donor in the B schedule properties was converted into half share in the C schedule properties and full ownership of the F schedule properties. It thus follows that Ex.7 is a gift in favour of the first defendant of the entire F schedule properties.	1	1,363	353	### 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: registered gift deed in favour of the appellant, Ex. A-7 dated January 25, 1950. Later on, a decree for partition of the C schedule properties was passed and the half share of Debi Prasad was allotted to him which is set out in the plaint as F schedule properties. Thus, it is apparent that Debi Prasad had 1/6th share in the B schedule properties which was transformed into 1/2 share in C schedule properties or full ownership in F schedule properties, through the process of two litigations. At the time of the gift, Ex. A-7, although a decree allotting the C schedule properties to the donor, Debi Prasad, and his brother. Lal Bahadur, the second defendant, had been passed it would appear that in the revenue records this change had not been notified and, going by those records, all the B schedule properties were still shown as belonging jointly to the co-owners including Debi Prasad, the donor. (The learned District Judge has mentioned this fact in his judgment). The gift deed, Ex. A-7 relates to the share of Debi Prasad in the B schedule properties, and the question that falls for decision is as to whether the entire 1/6the share in the B schedule properties owned by Debi Prasad, and later concretised into the F schedule properties, were covered by the gift and transferred to the first defendant. the donee or whether only a 1/6th share of the F schedule properties was conveyed by the gift. To complete the story, it has to be mentioned that after the execution of Ex. A-7 Debi Prasad purported to convey his 5/6th share in the F schedule properties to the plaintiff and the 7th defendant who brought a suit for recovery of possession is the Munsifs court in 1956, three years after the death of the vendor, Debi Prasad. The learned Munsif granted a decree to the extent of 5/6th of the F schedule properties on a certain construction of Ex. A-7, while in appeal the learned District Judge dismissed the suit on the ground that Ex. A-7 was a gift of the entire F schedule properties. Fortunes fluctuated in the second appeal where the learned Munsifs decree was restored, and if we may anticipate our conclusion at this stage, we are inclined to uphold the dismissal of the suit agreeing with the views of the learned District Judge. 3. The plaintiff, in the trial court, put forward the extreme plea that the gift was a nominal document but that plea, faintly revived by learned counsel here, need not detain us as there is no merit in it and three courts have negatived it. 4. The only serious contention urged by the appellant and controverted by the respondent is as to the true meaning of Ex. A-7 in regard to the properties conveyed by it. Debi Prasad, the donor, recites in the deed of gift how he and the first defendant had been living together and the latter had been serving him "with all his heart and soul". He has recorded his grateful affection for his brother, the first defendant, and proceeded, to state: "Therefore I have the wish to give my property to Kali Prasad for his love and affection showed by him during my lifetime." It is obvious from this recital that what the donor intended to give was the whole property and not a fraction thereof. Indeed, the concluding recital which contains the words of conveyance only confirms this inference of intention, as we will presently show. The learned Single Judge himself observed emphatically: "I have no doubt that what Devi Prasad intended was to gift whatever interest he had in the family property". However, he thought that the operative portion of Ex. A-7 cut back on the quantum of the property transferred by Ex. A-7.We have studied carefully the recitals relied upon by the learned Judge to reach this conclusion and find it impossible to support the inference that has appealed to him. 5. Exhibit A-7 sets out all the items of property in the B schedule and gives its extent as 18-89 acres. The donor proceeds to state that this is the total extent of the properties continues by mentioning that he has a 1/6th share (ak chattai hissa).To put matters beyond doubt, he added that this 1/6th share is his and is given in gift (Yani 1/6 hissa ham musir ka hai voh hiba kiya). The meaning is unmistakable that the donor states that he has 1/6th share in all the properties set out at the foot of the gift deed (which are items of the B schedule to the plaint) and proceeds to convey this 1/6th share of his by way of hiba to the donee, his brother. It is conceivable, in the face of this language to hold that what was conveyed by Ex. A-7 was 1/6th of 1/6th of the items set out in the gift deed. 6. The only point of obscurity is as to why when there had already been a partition of the B schedule properties and the donor and Lal Bahadur, the second defendant, had been allotted the C schedule properties out of the B schedule properties there should have been no reference to the latter C schedule properties in the gift deed.The explanation apparently is that since in the revenue records the mutation of names indicating the partition and allotment of C schedule properties had not been carried out, the gift deed was drafted on the footing that Debi Prasad was owner of 1/6th of the B schedule properties and that entire share was being gifted away to the first defendant. There is no dispute between the parties that the 1/6th share of the donor in the B schedule properties was converted into half share in the C schedule properties and full ownership of the F schedule properties. It thus follows that Ex. A-7 is a gift in favour of the first defendant of the entire F schedule properties. ### Response: 1 ### Explanation: sets out all the items of property in the B schedule and gives its extent as9 acres. The donor proceeds to state that this is the total extent of the properties continues by mentioning that he has a 1/6th share (ak chattai hissa).To put matters beyond doubt, he added that this 1/6th share is his and is given in gift (Yani 1/6 hissa ham musir ka hai voh hiba kiya). The meaning is unmistakable that the donor states that he has 1/6th share in all the properties set out at the foot of the gift deed (which are items of the B schedule to the plaint) and proceeds to convey this 1/6th share of his by way of hiba to the donee, his brother. It is conceivable, in the face of this language to hold that what was conveyed by Ex.7 was 1/6th of 1/6th of the items set out in the gift deed6. The only point of obscurity is as to why when there had already been a partition of the B schedule properties and the donor and Lal Bahadur, the second defendant, had been allotted the C schedule properties out of the B schedule properties there should have been no reference to the latter C schedule properties in the gift deed.The explanation apparently is that since in the revenue records the mutation of names indicating the partition and allotment of C schedule properties had not been carried out, the gift deed was drafted on the footing that Debi Prasad was owner of 1/6th of the B schedule properties and that entire share was being gifted away to the first defendant. There is no dispute between the parties that the 1/6th share of the donor in the B schedule properties was converted into half share in the C schedule properties and full ownership of the F schedule properties. It thus follows that Ex.7 is a gift in favour of the first defendant of the entire F schedule properties.
Beni Madhab Shaw Alias Benia Vs. State of West Bengal	dated May 10, 1972. He was arrested on the same day.3. The grounds of detention were also served on the petitioner on that very day at the time of his arrest. Those grounds read :"1. That on 24-3-72 at about 2.25 hours, you along with your associates committed theft of 4 bags of rice, of breaking open wagon No. 40765 of running goods train No. 733 UP between Naihati R/S and Baroda Bridge, being challenged by duty RPF patrol party you escaped leaving one bag of rice. Your action affected supplies and services then and there.You have thus acted in a manner prejudicial to the maintenance of supplies and services essential to the community.2. That on 26-4-72 at about 05-30 hours you along with other 12/14 associates attacked and broke open wagon No. NR-84506 of running food-grain special train No. 731 UP on the Naihati Station Yard in between Naihati R/S. and Baroda Bridge, The R.P.F. Train escort parties challenged you and your associates when you attacked the R.P.F. party with ballasts and pelted stones and in self defence R.P.F. party fired back. You and your associates then fled away. The train services was disrupted then and there and one bag of wheat was recovered from the spot.Your actions affected supplies and services there. You have thus acted in a manner prejudicial to the maintenance of supplies essential to the community."4. The petitioner was duly informed that he could make a representation to the State Government against the detention order and that such representation should be addressed to the Assistant Secretary Home {Special) Department, Government of West Bengal and forwarded through the Superintendent of the Jail in which the petitioner had been detained. All other formalities required for valid detention appear to have been duly complied with.5. The petitioners learned counsel, Mrs. Urmila Sirur, contended that in the counter-affidavit filed on behalf of the respondent, the State of West Bengal, it is stated`, that from the records it appears that, after receiving reliable information relating to the illegal, anti-social and ,prejudicial activities of the petitioner relating to the maintenance of supplies and services essential to the community, the impugned order of detention had been passed against him under the provisions of the Maintenance of Internal Security, Act, 1971.The counsel complained that the details of these activities had not been disclosed to the petitioner and this has seriously prejudiced him in making his representation to the Government.6. The submission appears to us to be misconceived. This assertion in the counter affidavit, in answer to the present petition, merely suggests that the two grounds on the basis of which the impugned order was made and which were duly supplied to the petitioner, were founded on reliable information received by the authorities concerned. It has not been shown on behalf of the petitioner that it was necessary under the law to disclose the sources of the information or the exact words of the information so long as the activities which formed the foundation of the impugned order were actually disclosed to the petitioner. Under S. 8 of the aforesaid Act only grounds of order of detention are required to be disclosed to the persons affected by such order. Those grounds in the present case were actually disclosed. They are neither vague nor ambiguous. They furnish adequate information for enabling the petitioner to make effective representation against his detention. It was not contended and indeed it could not be contended that those grounds are not germane to the purpose of detention under the aforesaid Act.7. The learned counsel drew our attention to Mintu Bhakta v. The State of West Bengal, AIR 1972 SC 2132 , but that decision is of no assistance in the present case. In Mintu Bhaktas case (supra), the detenu had in his representation to the Government and again in the writ petition, contended that on the date of the incident, upon which the detaining authority had reached his subjective satisfaction as to the necessity of detained the detenu, he was actually in police custody, and the only answer to such a specific defence of the detenu, was a bare denial of the facts and allegations stated by the detenu with an equally bare assertion that the detention order was bona fide. Such a vague answer was considered by this Court to be neither cogent, nor proper nor, adequate to disprove the specific allegations made twice by the detenu. One of the grounds for detention being factually baseless the whole order was held in that case to be liable to fail because it could not be predicated upon which of the grounds the detaining authority had reached its satisfaction or whether it had reached satisfaction irrespective of or without the ground which failed. It is obvious that the problem facing us in the present case is in no way similar in nature to the problem which arose in Mintu Bhaktas case (supra). There is no analogy between the two cases.8. It was also suggested that the petitioner could have been prosecuted for the alleged activities on the basis of which he has been detained and that the order of detention must, for this reason, be considered to be mala fide. This contention is also without substance. As held in Mohd. Subrati v. State of West Bengal, AIR 1973 SC 207 non-prosecution for past activities which amount to an offence does not operate in law as a bar to the order of detention on the basis of these activities. The two jurisdictions, one for punishing a person after a regular trial for the commission of an offence and the other for detaining him to prevent repetition of objectionable activities, are different. Non exercise of one does not by itself bar the exercise of the other.9. There being no other point raised on behalf of the petitioner and there being no other infirmity discovered by us on the present records we have no option but to dismiss the petition which we hereby do.	0[ds]6. The submission appears to us to be misconceived. This assertion in the counter affidavit, in answer to the present petition, merely suggests that the two grounds on the basis of which the impugned order was made and which were duly supplied to the petitioner, were founded on reliable information received by the authorities concerned. It has not been shown on behalf of the petitioner that it was necessary under the law to disclose the sources of the information or the exact words of the information so long as the activities which formed the foundation of the impugned order were actually disclosed to the petitioner. Under S. 8 of the aforesaid Act only grounds of order of detention are required to be disclosed to the persons affected by such order. Those grounds in the present case were actually disclosed. They are neither vague nor ambiguous. They furnish adequate information for enabling the petitioner to make effective representation against his detention. It was not contended and indeed it could not be contended that those grounds are not germane to the purpose of detention under the aforesaidof the grounds for detention being factually baseless the whole order was held in that case to be liable to fail because it could not be predicated upon which of the grounds the detaining authority had reached its satisfaction or whether it had reached satisfaction irrespective of or without the ground which failed. It is obvious that the problem facing us in the present case is in no way similar in nature to the problem which arose in Mintu Bhaktas case (supra). There is no analogy between the two cases.8. It was also suggested that the petitioner could have been prosecuted for the alleged activities on the basis of which he has been detained and that the order of detention must, for this reason, be considered to be mala fide. This contention is also without substance. As held in Mohd. Subrati v. State of West Bengal, AIR 1973 SC 207 for past activities which amount to an offence does not operate in law as a bar to the order of detention on the basis of these activities. The two jurisdictions, one for punishing a person after a regular trial for the commission of an offence and the other for detaining him to prevent repetition of objectionable activities, are different. Non exercise of one does not by itself bar the exercise of the other.9. There being no other point raised on behalf of the petitioner and there being no other infirmity discovered by us on the present records we have no option but to dismiss the petition which we hereby do.	0	1,155	476	### 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: dated May 10, 1972. He was arrested on the same day.3. The grounds of detention were also served on the petitioner on that very day at the time of his arrest. Those grounds read :"1. That on 24-3-72 at about 2.25 hours, you along with your associates committed theft of 4 bags of rice, of breaking open wagon No. 40765 of running goods train No. 733 UP between Naihati R/S and Baroda Bridge, being challenged by duty RPF patrol party you escaped leaving one bag of rice. Your action affected supplies and services then and there.You have thus acted in a manner prejudicial to the maintenance of supplies and services essential to the community.2. That on 26-4-72 at about 05-30 hours you along with other 12/14 associates attacked and broke open wagon No. NR-84506 of running food-grain special train No. 731 UP on the Naihati Station Yard in between Naihati R/S. and Baroda Bridge, The R.P.F. Train escort parties challenged you and your associates when you attacked the R.P.F. party with ballasts and pelted stones and in self defence R.P.F. party fired back. You and your associates then fled away. The train services was disrupted then and there and one bag of wheat was recovered from the spot.Your actions affected supplies and services there. You have thus acted in a manner prejudicial to the maintenance of supplies essential to the community."4. The petitioner was duly informed that he could make a representation to the State Government against the detention order and that such representation should be addressed to the Assistant Secretary Home {Special) Department, Government of West Bengal and forwarded through the Superintendent of the Jail in which the petitioner had been detained. All other formalities required for valid detention appear to have been duly complied with.5. The petitioners learned counsel, Mrs. Urmila Sirur, contended that in the counter-affidavit filed on behalf of the respondent, the State of West Bengal, it is stated`, that from the records it appears that, after receiving reliable information relating to the illegal, anti-social and ,prejudicial activities of the petitioner relating to the maintenance of supplies and services essential to the community, the impugned order of detention had been passed against him under the provisions of the Maintenance of Internal Security, Act, 1971.The counsel complained that the details of these activities had not been disclosed to the petitioner and this has seriously prejudiced him in making his representation to the Government.6. The submission appears to us to be misconceived. This assertion in the counter affidavit, in answer to the present petition, merely suggests that the two grounds on the basis of which the impugned order was made and which were duly supplied to the petitioner, were founded on reliable information received by the authorities concerned. It has not been shown on behalf of the petitioner that it was necessary under the law to disclose the sources of the information or the exact words of the information so long as the activities which formed the foundation of the impugned order were actually disclosed to the petitioner. Under S. 8 of the aforesaid Act only grounds of order of detention are required to be disclosed to the persons affected by such order. Those grounds in the present case were actually disclosed. They are neither vague nor ambiguous. They furnish adequate information for enabling the petitioner to make effective representation against his detention. It was not contended and indeed it could not be contended that those grounds are not germane to the purpose of detention under the aforesaid Act.7. The learned counsel drew our attention to Mintu Bhakta v. The State of West Bengal, AIR 1972 SC 2132 , but that decision is of no assistance in the present case. In Mintu Bhaktas case (supra), the detenu had in his representation to the Government and again in the writ petition, contended that on the date of the incident, upon which the detaining authority had reached his subjective satisfaction as to the necessity of detained the detenu, he was actually in police custody, and the only answer to such a specific defence of the detenu, was a bare denial of the facts and allegations stated by the detenu with an equally bare assertion that the detention order was bona fide. Such a vague answer was considered by this Court to be neither cogent, nor proper nor, adequate to disprove the specific allegations made twice by the detenu. One of the grounds for detention being factually baseless the whole order was held in that case to be liable to fail because it could not be predicated upon which of the grounds the detaining authority had reached its satisfaction or whether it had reached satisfaction irrespective of or without the ground which failed. It is obvious that the problem facing us in the present case is in no way similar in nature to the problem which arose in Mintu Bhaktas case (supra). There is no analogy between the two cases.8. It was also suggested that the petitioner could have been prosecuted for the alleged activities on the basis of which he has been detained and that the order of detention must, for this reason, be considered to be mala fide. This contention is also without substance. As held in Mohd. Subrati v. State of West Bengal, AIR 1973 SC 207 non-prosecution for past activities which amount to an offence does not operate in law as a bar to the order of detention on the basis of these activities. The two jurisdictions, one for punishing a person after a regular trial for the commission of an offence and the other for detaining him to prevent repetition of objectionable activities, are different. Non exercise of one does not by itself bar the exercise of the other.9. There being no other point raised on behalf of the petitioner and there being no other infirmity discovered by us on the present records we have no option but to dismiss the petition which we hereby do. ### Response: 0 ### Explanation: 6. The submission appears to us to be misconceived. This assertion in the counter affidavit, in answer to the present petition, merely suggests that the two grounds on the basis of which the impugned order was made and which were duly supplied to the petitioner, were founded on reliable information received by the authorities concerned. It has not been shown on behalf of the petitioner that it was necessary under the law to disclose the sources of the information or the exact words of the information so long as the activities which formed the foundation of the impugned order were actually disclosed to the petitioner. Under S. 8 of the aforesaid Act only grounds of order of detention are required to be disclosed to the persons affected by such order. Those grounds in the present case were actually disclosed. They are neither vague nor ambiguous. They furnish adequate information for enabling the petitioner to make effective representation against his detention. It was not contended and indeed it could not be contended that those grounds are not germane to the purpose of detention under the aforesaidof the grounds for detention being factually baseless the whole order was held in that case to be liable to fail because it could not be predicated upon which of the grounds the detaining authority had reached its satisfaction or whether it had reached satisfaction irrespective of or without the ground which failed. It is obvious that the problem facing us in the present case is in no way similar in nature to the problem which arose in Mintu Bhaktas case (supra). There is no analogy between the two cases.8. It was also suggested that the petitioner could have been prosecuted for the alleged activities on the basis of which he has been detained and that the order of detention must, for this reason, be considered to be mala fide. This contention is also without substance. As held in Mohd. Subrati v. State of West Bengal, AIR 1973 SC 207 for past activities which amount to an offence does not operate in law as a bar to the order of detention on the basis of these activities. The two jurisdictions, one for punishing a person after a regular trial for the commission of an offence and the other for detaining him to prevent repetition of objectionable activities, are different. Non exercise of one does not by itself bar the exercise of the other.9. There being no other point raised on behalf of the petitioner and there being no other infirmity discovered by us on the present records we have no option but to dismiss the petition which we hereby do.
K. V. Narayanaswami Iyer Vs. K. V. Ramakrishna Iyer And Ors	account for the period of his management. It is true that at the trial Mahadeva tried to explain away this assertion in the written statement by saying that this was based on information given to him by the defendant No. 1. In the very next sentence, however, he again said that this view that the plaintiff was exclusively managing for certain years was his conclusion. It is important to notice in this connection that at the bottom (of) Ex. B190 dated the l3th March 1941 which Mahadeva received from Ramakrishna, Mahadeva made in his own hand an entry in red ink to the following effect :-"1939 Kuruvai (paddy) sold by Nana1939 - Samba Mudal (harvests) by Nana, sold in 1940."27. It is true that there are some letters which indicate that even during 1941 and thereafter Ramakrishna was issuing some instructions to the Karisthan. But, considering the facts mentioned above along with the letters Exhibits B177 and B72 in which detailed instructions about the cultivation were being given by the plaintiff to the Karisthan, we have come to the conclusion that from about 1940, till the mothers death early in 1945 the plaintiff displaced the first defendant from the management of the family lands and took away all the family lands in Kumarakashi and took away all the income from them.28. The only income from joint family properties that appears to have come into the hands of the first defendant during this period was that from D Schedule lands. The yield from these lands may roughly be estimated at about 300 kalams for each year. The price per kalam in 1941 appears from Ex. 100 to have been Rs. 2/5/-. The net income, after payment of the kist and debiting the expenses of cultivation etc, may be placed therefore at about Rs. 500/-. It is undoubtedly a very rough estimate. But in the absence of anything more specific on the record we think it proper to accept this as a reasonable basis for ascertaining the nucleus available in the first defendants hands from the B Schedule property. On this calculation the first defendant appears to have had in his hands about Rs.1,500/- during the years 1940 to 1942. There was already however a deficit of more than this amount on his management of the properties during the previous period 1931 to 1939. It is reasonable therefore to think that there was no nucleus from the joint family properties which the first defendant could have possibly used in making the acquisitions during 1941 and 1942. The conclusion of the High Court that these properties did not belong to the joint family and are therefore not liable to partition cannot therefore be disturbed.29. Some of the properties mentioned in Schedule B2 to the plaint were purchased in 1945 and 1946 by Exs. B 127 and B 128 in the name of the third defendant, Venkatarama. At the time of these acquisitions the third defendant had been karnam of Vepatthur for over 15 years. It is not unlikely that he would have saved some portion of his own earnings during this period so as to be able to pay for these purchases out of his own earnings. It cannot therefore be said reasonably that these purchases were made from funds advanced by the first defendant. Apart from this it appears that the plaintiff has not been able to show that at the time of these acquisitions the first defendant had with him sufficient income out of the joint family properties for purchasing all these lands. We have already found that the first defendant resumed management of the joint family properties on his mothers death in 1945. On the question about the income and expenses during this period there is hardly any evidence worth the name on the record. On a consideration of all these circumstances, we are of opinion that the High Courts conclusion as regards these properties also that they did not form part of the joint family property is correct.30. This brings us to Mr. Rajagopal Sastris second argument. While admitting the legal position that in the absence of any evidence of fraud or misappropriation the Karta cannot be called upon to account for the past transactions, learned Counsel stresses the responsibility of the Karta to establish what are the assets available for partition. In support of this, the learned Counsel drew our attention to the decision in Parmeshwar Dube v. Gobind Dube, ILR 43 Cal 459 : (AIR 1916 Cal 500(2)). That case laid down the rule that in absence of fraud or other improper conduct the only account the Karta of a joint family is liable for is as to the existing state of the property divisible; but that this did not mean that the parties were bound to accept the statement of the Karta as to what the property consisted of and an enquiry should be directed by the Court in a manner usually adopted to discover what in fact the property consisted of at the date of the partition. About the correctness of this proposition there is no dispute. In what manner this principle can be applied depends however on the acts and circumstances of each case. Where, as in the present case, the evidence already adduced before the court shows prima facie that the Karta could not reasonably be expected to have in his hands at the date of the suit any accumulation worth the name in addition to the immovable properties found on evidence to have been acquired for the family, there can be no justification for calling the Karta to account for his past dealings with the joint family property and its income. In the circumstances of this case therefore the order of the High Court that there was no liability on the first defendant as managing member to render any account of any kind prior to the 12th December 1946, on which notice demanding partition was issued, does not call for any modification.	0[ds]15. The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. Vide Amritalal v. Surath Lal, AIR 1942 Cal 553 Appalaswami v. Suryanarayanamurthy, ILR (1948) Mad 440 : (AIR 1947 PC 189 ).16. In the case before us, it is not disputed that the acquisitions in the name of the first defendants wife were made with funds advanced by him. As regards the acquisitions in the name of the third defendant and his minor son the sixth defendant also we find it reasonable to hold from the evidence, as regards the earnings of the third defendant and other circumstances, that for these acquisitions also money was paid by the first defendant. The question whether the joint family had at the time of each of these acquisitions sufficient nucleus from which the acquisition could have been made is therefore of great importance.17. On a consideration of the evidence, as discussed below, we have come to the conclusion that it does not appear that the joint family had at the date of the acquisition made in the names of the first defendants wife, his son, and his grandson sufficient nucleus from which these properties could be acquired. In coming to this conclusion we have taken into consideration the fact that family funds were spent in purchasing 14 acres of land mentioned in the name of the 5th defendant.18. The period during which acquisitions admittedly for the joint family were made came to an end in about 1931. At that time the first defendant had, according to his own evidence, about Rs. 15,000 /in his hand. His case is that this entire amount was what he had accumulated out of his own earnings. The Subordinate Judge held that a little more than Rs. 14,000/out of this amount was the savings from the family funds. We agree with the High Court this conclusion is not justified by the evidence on the record. As rightly pointed out by the High Court properties worth about Rs. 20,000 /had been purchased out of the family income during this period. During part of this period at least monies had to be spent for other requirements of the family including the expenses on the education of the third brother Mahadeva. The several documents produced in the case show that at the time of more than one purchase the first defendant had to borrow money on promissory notes to pay the consideration mentioned in the documents. It is worth mentioning that even the plaintiff was not prepared to say that the family income was sufficient to pay for theseother words, the plaintiff himself seems to concede that only Rs. 10,000/of the family income was available during this period for purchase of lands. The claim made here that he also contributed to the purchase is clearly inconsistent with his own written statement and with other parts of his evidence and cannot be accepted.19. The learned Subordinate Judge appears to have been convinced that Ramakrishnas personal earnings were very little. He thought also that what little Ramakrishna earned was required for the expenses of his own branch of the family. The learned Judge concluded that he could not have saved out of these earnings. This view appears to have been mainly responsible for this conclusion that almost the whole of Rs. 15,000/which the defendant No. 1 admitted to have with him in about 1931 came out of the family funds. In our opinion, the materials on the record do not justify the Trial Courts view that Ramakrishna could not have accumulated a sum of Rs. 15,000/out of his own income. The mamools which he received as Karnam of Narasingampettai and later on of the bigger village of Vepatthur amounted to a considerable quantity of paddy and must have fetched him a goodly income. There was apart from this, his income from the banana plantations which he had at Narasingampettai. One of the lease deeds shows a receipt of Rs. 450 /for one season. Taking good years with bad, it would not be unreasonable to think that this also brought him a few thousands of rupees. We are convinced also on a consideration of his evidence, taken with the entries in the account book of Appaswamy Iyer (Ex. B.101) that he received a sum of Rs. 2,500/as reward for successfully maintaining the litigation on Appalaswamys behalf. There can be little doubt that he received a good sum also as fees for writing documents. One of his witnesses, Nariyanaswami Reddiar, DW 7, has given evidence that he paid the defendant Rs.1000/as fees for the documents written for him. Even if this be considered an exaggeration, it is quite celar from the evidence of this witness that Ramakrishna who, it may be noted, was a man of some education, did a flourishing side business as a writer of documents, saved two or three thousand rupees, earned by him by this work during the entire period he served as a Karnam. It is more than probable that he had other sources of income which he did not think it prudent to mention in the witness box.20. On a consideration of the circumstances we are convinced that his story that he had Rs.15,000/in his hands in about 1931 as accumulated out of his own earnings is substantially true.21. Mr. Rajagopala Sastri has however rightly pointed out that a finding that in 1931 very little remained out of the family income would not be sufficient to show that there was no sufficient nucleus for the acquisition of the different properties in the name of the defendants wife, his son and his grandson after 1931. For a proper decision of this question it is necessary to consider roughly the income and expenditure out of the admittedly family properties during thisdifferences in the estimates seems to be mainly due to the fact that while, according to the respondent, the family was in possession of only six acres of mortgaged land in addition to the 35 acres, the appellants case was that an additional area of six acres of mortgaged land was also in the familys possession during these years. Mr. Rajagopala Sastri was not however able to point out anything on the record in support of this claim. We think it reasonable therefore to accept as substantially correct the estimate of paddy yield as mentioned before us on behalf of the respondent for these year. For the year 1939 the yield may be taken as 1153 kalams roughly as in that year the D Schedule lands now found to be the property of the joint family had also been acquired.23. On an examination of the evidence on the record we accept the price for each kalam of paddy to be Rs. 2.50 nP. for each of the years 1931 and 1932 and 1.19, 1.25, 1.37, 1.50, 1.50, 1.56 and 1.62 for the years 1933 to 1939 respectively, as contended before us on behalf of the respondent. The total income received from paddy in these nine years thus appears to be about Rs.To this has to be added the receipts from the dry crops like black grams and green grams grown on some of the lands. We accept the evidence given by the defendant that dry crops were not grown in every year and also not on all the lands. The sale proceeds of black grams and green grams amounted to Rs. 72/for the year 1935 according to the account book Ex.Taking this to be the average receipt per year from the dry crops the receipt from these crops during the nine years under consideration amounted to about Rs.The total income from the crops grown on the joint family lands during the years 1931 to 1939 thus works out approximately to be about Rs.. adding to this the sum of Rs. 1,100/It is now necessary to have some idea of the expenditure incurred during these years. The claim of expenditure of Rs. 5,172/during these years made before us on behalf of the respondent is not disputed by the appellant. We think also that the respondents claim that Rs. 1,100/advanced on the mortgage bond (Ex. 187) was paid from family funds, should be accepted. We have next to add the sum of Rs. 6,500/that was paid for the purchase of the D Schedule lands, Rs. 4,030/paid as kists and Rs. 2,000/as cultivation expenses including Kariasthans pay. The total expenditure during the nine years1931 to 1939Proceeding therefore in the basis on which there is no longer any dispute, that D Schedule lands were acquired out of the family funds, it appears clear that the joint family did not possess sufficient nucleus for making any of the other purchases made during this period, viz., the properties mentioned in Schedules B and Bl purchased by the document Ex.125, the properties mentioned in Schedule Cl purchased by the document Ex. B 124, the properties mentioned in Schedule C purchased by Ex.129, the properties mentioned in the Schedule to the written statement of the second defendant purchased by documents Exhibits B 134 and B 135. The High Courts conclusion as regards these properties that they did not form part of the joint family properties and are not liable to partition in the present suit is therefore clearlyconsidering the facts mentioned above along with the letters Exhibits B177 and B72 in which detailed instructions about the cultivation were being given by the plaintiff to the Karisthan, we have come to the conclusion that from about 1940, till the mothers death early in 1945 the plaintiff displaced the first defendant from the management of the family lands and took away all the family lands in Kumarakashi and took away all the income from them.28. The only income from joint family properties that appears to have come into the hands of the first defendant during this period was that from D Schedule lands. The yield from these lands may roughly be estimated at about 300 kalams for each year. The price per kalam in 1941 appears from Ex. 100 to have been Rs.The net income, after payment of the kist and debiting the expenses of cultivation etc, may be placed therefore at about Rs.It is undoubtedly a very rough estimate. But in the absence of anything more specific on the record we think it proper to accept this as a reasonable basis for ascertaining the nucleus available in the first defendants hands from the B Schedule property. On this calculation the first defendant appears to have had in his hands about Rs.1,500/during the years 1940 to 1942. There was already however a deficit of more than this amount on his management of the properties during the previous periodIt is reasonable therefore to think that there was no nucleus from the joint family properties which the first defendant could have possibly used in making the acquisitions during 1941 and 1942. The conclusion of the High Court that these properties did not belong to the joint family and are therefore not liable to partition cannot therefore be disturbed.29. Some of the properties mentioned in Schedule B2 to the plaint were purchased in 1945 and 1946 by Exs. B 127 and B 128 in the name of the third defendant, Venkatarama. At the time of these acquisitions the third defendant had been karnam of Vepatthur for over 15 years. It is not unlikely that he would have saved some portion of his own earnings during this period so as to be able to pay for these purchases out of his own earnings. It cannot therefore be said reasonably that these purchases were made from funds advanced by the first defendant. Apart from this it appears that the plaintiff has not been able to show that at the time of these acquisitions the first defendant had with him sufficient income out of the joint family properties for purchasing all these lands. We have already found that the first defendant resumed management of the joint family properties on his mothers death in 1945. On the question about the income and expenses during this period there is hardly any evidence worth the name on the record. On a consideration of all these circumstances, we are of opinion that the High Courts conclusion as regards these properties also that they did not form part of the joint family property isthe correctness of this proposition there is no dispute. In what manner this principle can be applied depends however on the acts and circumstances of each case. Where, as in the present case, the evidence already adduced before the court shows prima facie that the Karta could not reasonably be expected to have in his hands at the date of the suit any accumulation worth the name in addition to the immovable properties found on evidence to have been acquired for the family, there can be no justification for calling the Karta to account for his past dealings with the joint family property and its income. In the circumstances of this case therefore the order of the High Court that there was no liability on the first defendant as managing member to render any account of any kind prior to the 12th December 1946, on which notice demanding partition was issued, does not call for any modification.	0	5,963	2,426	### 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: account for the period of his management. It is true that at the trial Mahadeva tried to explain away this assertion in the written statement by saying that this was based on information given to him by the defendant No. 1. In the very next sentence, however, he again said that this view that the plaintiff was exclusively managing for certain years was his conclusion. It is important to notice in this connection that at the bottom (of) Ex. B190 dated the l3th March 1941 which Mahadeva received from Ramakrishna, Mahadeva made in his own hand an entry in red ink to the following effect :-"1939 Kuruvai (paddy) sold by Nana1939 - Samba Mudal (harvests) by Nana, sold in 1940."27. It is true that there are some letters which indicate that even during 1941 and thereafter Ramakrishna was issuing some instructions to the Karisthan. But, considering the facts mentioned above along with the letters Exhibits B177 and B72 in which detailed instructions about the cultivation were being given by the plaintiff to the Karisthan, we have come to the conclusion that from about 1940, till the mothers death early in 1945 the plaintiff displaced the first defendant from the management of the family lands and took away all the family lands in Kumarakashi and took away all the income from them.28. The only income from joint family properties that appears to have come into the hands of the first defendant during this period was that from D Schedule lands. The yield from these lands may roughly be estimated at about 300 kalams for each year. The price per kalam in 1941 appears from Ex. 100 to have been Rs. 2/5/-. The net income, after payment of the kist and debiting the expenses of cultivation etc, may be placed therefore at about Rs. 500/-. It is undoubtedly a very rough estimate. But in the absence of anything more specific on the record we think it proper to accept this as a reasonable basis for ascertaining the nucleus available in the first defendants hands from the B Schedule property. On this calculation the first defendant appears to have had in his hands about Rs.1,500/- during the years 1940 to 1942. There was already however a deficit of more than this amount on his management of the properties during the previous period 1931 to 1939. It is reasonable therefore to think that there was no nucleus from the joint family properties which the first defendant could have possibly used in making the acquisitions during 1941 and 1942. The conclusion of the High Court that these properties did not belong to the joint family and are therefore not liable to partition cannot therefore be disturbed.29. Some of the properties mentioned in Schedule B2 to the plaint were purchased in 1945 and 1946 by Exs. B 127 and B 128 in the name of the third defendant, Venkatarama. At the time of these acquisitions the third defendant had been karnam of Vepatthur for over 15 years. It is not unlikely that he would have saved some portion of his own earnings during this period so as to be able to pay for these purchases out of his own earnings. It cannot therefore be said reasonably that these purchases were made from funds advanced by the first defendant. Apart from this it appears that the plaintiff has not been able to show that at the time of these acquisitions the first defendant had with him sufficient income out of the joint family properties for purchasing all these lands. We have already found that the first defendant resumed management of the joint family properties on his mothers death in 1945. On the question about the income and expenses during this period there is hardly any evidence worth the name on the record. On a consideration of all these circumstances, we are of opinion that the High Courts conclusion as regards these properties also that they did not form part of the joint family property is correct.30. This brings us to Mr. Rajagopal Sastris second argument. While admitting the legal position that in the absence of any evidence of fraud or misappropriation the Karta cannot be called upon to account for the past transactions, learned Counsel stresses the responsibility of the Karta to establish what are the assets available for partition. In support of this, the learned Counsel drew our attention to the decision in Parmeshwar Dube v. Gobind Dube, ILR 43 Cal 459 : (AIR 1916 Cal 500(2)). That case laid down the rule that in absence of fraud or other improper conduct the only account the Karta of a joint family is liable for is as to the existing state of the property divisible; but that this did not mean that the parties were bound to accept the statement of the Karta as to what the property consisted of and an enquiry should be directed by the Court in a manner usually adopted to discover what in fact the property consisted of at the date of the partition. About the correctness of this proposition there is no dispute. In what manner this principle can be applied depends however on the acts and circumstances of each case. Where, as in the present case, the evidence already adduced before the court shows prima facie that the Karta could not reasonably be expected to have in his hands at the date of the suit any accumulation worth the name in addition to the immovable properties found on evidence to have been acquired for the family, there can be no justification for calling the Karta to account for his past dealings with the joint family property and its income. In the circumstances of this case therefore the order of the High Court that there was no liability on the first defendant as managing member to render any account of any kind prior to the 12th December 1946, on which notice demanding partition was issued, does not call for any modification. ### Response: 0 ### Explanation: in every year and also not on all the lands. The sale proceeds of black grams and green grams amounted to Rs. 72/for the year 1935 according to the account book Ex.Taking this to be the average receipt per year from the dry crops the receipt from these crops during the nine years under consideration amounted to about Rs.The total income from the crops grown on the joint family lands during the years 1931 to 1939 thus works out approximately to be about Rs.. adding to this the sum of Rs. 1,100/It is now necessary to have some idea of the expenditure incurred during these years. The claim of expenditure of Rs. 5,172/during these years made before us on behalf of the respondent is not disputed by the appellant. We think also that the respondents claim that Rs. 1,100/advanced on the mortgage bond (Ex. 187) was paid from family funds, should be accepted. We have next to add the sum of Rs. 6,500/that was paid for the purchase of the D Schedule lands, Rs. 4,030/paid as kists and Rs. 2,000/as cultivation expenses including Kariasthans pay. The total expenditure during the nine years1931 to 1939Proceeding therefore in the basis on which there is no longer any dispute, that D Schedule lands were acquired out of the family funds, it appears clear that the joint family did not possess sufficient nucleus for making any of the other purchases made during this period, viz., the properties mentioned in Schedules B and Bl purchased by the document Ex.125, the properties mentioned in Schedule Cl purchased by the document Ex. B 124, the properties mentioned in Schedule C purchased by Ex.129, the properties mentioned in the Schedule to the written statement of the second defendant purchased by documents Exhibits B 134 and B 135. The High Courts conclusion as regards these properties that they did not form part of the joint family properties and are not liable to partition in the present suit is therefore clearlyconsidering the facts mentioned above along with the letters Exhibits B177 and B72 in which detailed instructions about the cultivation were being given by the plaintiff to the Karisthan, we have come to the conclusion that from about 1940, till the mothers death early in 1945 the plaintiff displaced the first defendant from the management of the family lands and took away all the family lands in Kumarakashi and took away all the income from them.28. The only income from joint family properties that appears to have come into the hands of the first defendant during this period was that from D Schedule lands. The yield from these lands may roughly be estimated at about 300 kalams for each year. The price per kalam in 1941 appears from Ex. 100 to have been Rs.The net income, after payment of the kist and debiting the expenses of cultivation etc, may be placed therefore at about Rs.It is undoubtedly a very rough estimate. But in the absence of anything more specific on the record we think it proper to accept this as a reasonable basis for ascertaining the nucleus available in the first defendants hands from the B Schedule property. On this calculation the first defendant appears to have had in his hands about Rs.1,500/during the years 1940 to 1942. There was already however a deficit of more than this amount on his management of the properties during the previous periodIt is reasonable therefore to think that there was no nucleus from the joint family properties which the first defendant could have possibly used in making the acquisitions during 1941 and 1942. The conclusion of the High Court that these properties did not belong to the joint family and are therefore not liable to partition cannot therefore be disturbed.29. Some of the properties mentioned in Schedule B2 to the plaint were purchased in 1945 and 1946 by Exs. B 127 and B 128 in the name of the third defendant, Venkatarama. At the time of these acquisitions the third defendant had been karnam of Vepatthur for over 15 years. It is not unlikely that he would have saved some portion of his own earnings during this period so as to be able to pay for these purchases out of his own earnings. It cannot therefore be said reasonably that these purchases were made from funds advanced by the first defendant. Apart from this it appears that the plaintiff has not been able to show that at the time of these acquisitions the first defendant had with him sufficient income out of the joint family properties for purchasing all these lands. We have already found that the first defendant resumed management of the joint family properties on his mothers death in 1945. On the question about the income and expenses during this period there is hardly any evidence worth the name on the record. On a consideration of all these circumstances, we are of opinion that the High Courts conclusion as regards these properties also that they did not form part of the joint family property isthe correctness of this proposition there is no dispute. In what manner this principle can be applied depends however on the acts and circumstances of each case. Where, as in the present case, the evidence already adduced before the court shows prima facie that the Karta could not reasonably be expected to have in his hands at the date of the suit any accumulation worth the name in addition to the immovable properties found on evidence to have been acquired for the family, there can be no justification for calling the Karta to account for his past dealings with the joint family property and its income. In the circumstances of this case therefore the order of the High Court that there was no liability on the first defendant as managing member to render any account of any kind prior to the 12th December 1946, on which notice demanding partition was issued, does not call for any modification.
SUMER SINGH JAT AND ORS. Vs. STATE OF RAJASTHAN AND ORS.	Abhay Manohar Sapre, J.1. Leave granted. 2. These appeals are directed against the final judgments and orders passed by the High Court of Judicature for Rajasthan Bench at Jaipur in D.B. Special Appeal Writ Nos. 794/2017 dated 20.09.2017, 908/2017 dated 06.10.2017, 792/2017, 801/2017 & 815/2017 dated 25.10.2017, 826/2017 dated 27.10.2017, 816/2017 dated 01.11.2017, judgments and orders passed by the High Court of Judicature for Rajasthan Bench at Jodhpur in D.B. Special Appeal Writ Nos. 969/2017 dated 29.11.2017, 948/2017 dated 29.11.2017, 947/2017 dated 29.11.2017, 1069/2017 dated 06.12.2017, judgment and order passed by the High Court of Judicature for Rajasthan, Bench at Jaipur in D.B. Special Appeal Writ No. 1999/2017 dated 03.01.2018, judgments and orders passed by the High Court of Judicature for Rajasthan Bench at Jodhpur in D.B. Special Appeal Writ Nos. 202/2018 dated 22.01.2018, 196/2018 dated 22.01.2018 and 207/2018 dated 22.01.2018 whereby the High Court dismissed the appeals filed by the appellants herein. 3. Few facts need to be mentioned infra for disposal of these appeals. 4. Appellant No. 1 and several others filed intra court appeals before the Division Bench of the High Court for Rajasthan Bench at Jaipur and Jodhpur against the order dated 09.02.2017 & other similar orders passed by Single Judge in the writ petitions. 5. By impugned judgments/orders, the Division Bench affirmed the orders of the Single Judge and dismissed the appeals filed by the appellants herein, which have given rise to filing of the present appeals by way of special leave in this Court. 6. The short question, which arises for consideration in these appeals, is whether the impugned orders are sustainable in law. 7. Heard Ms. Aishwarya Bhati, learned counsel for the appellants and Mr. Shiv Mangal Sharma, learned AAG for the respondents. 8. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and remand the case to the Division Bench of the High Court for deciding the appeals afresh on merits. 9. The need to remand the case has been occasioned as the Division Bench has not assigned any reason for dismissal of the appeals. 10. In our opinion, in the absence of any discussion on the issues which have arisen in these cases and in the absence of any finding on the submissions urged by the parties, it is not possible to affirm the order. Indeed, none of the submissions urged by the appellants are mentioned much less dealt with either way on the merits of the case.	1[ds]8. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and remand the case to the Division Bench of the High Court for deciding the appeals afresh on merits9. The need to remand the case has been occasioned as the Division Bench has not assigned any reason for dismissal of the appeals10. In our opinion, in the absence of any discussion on the issues which have arisen in these cases and in the absence of any finding on the submissions urged by the parties, it is not possible to affirm the order. Indeed, none of the submissions urged by the appellants are mentioned much less dealt with either way on the merits of the case.	1	476	143	### 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: Abhay Manohar Sapre, J.1. Leave granted. 2. These appeals are directed against the final judgments and orders passed by the High Court of Judicature for Rajasthan Bench at Jaipur in D.B. Special Appeal Writ Nos. 794/2017 dated 20.09.2017, 908/2017 dated 06.10.2017, 792/2017, 801/2017 & 815/2017 dated 25.10.2017, 826/2017 dated 27.10.2017, 816/2017 dated 01.11.2017, judgments and orders passed by the High Court of Judicature for Rajasthan Bench at Jodhpur in D.B. Special Appeal Writ Nos. 969/2017 dated 29.11.2017, 948/2017 dated 29.11.2017, 947/2017 dated 29.11.2017, 1069/2017 dated 06.12.2017, judgment and order passed by the High Court of Judicature for Rajasthan, Bench at Jaipur in D.B. Special Appeal Writ No. 1999/2017 dated 03.01.2018, judgments and orders passed by the High Court of Judicature for Rajasthan Bench at Jodhpur in D.B. Special Appeal Writ Nos. 202/2018 dated 22.01.2018, 196/2018 dated 22.01.2018 and 207/2018 dated 22.01.2018 whereby the High Court dismissed the appeals filed by the appellants herein. 3. Few facts need to be mentioned infra for disposal of these appeals. 4. Appellant No. 1 and several others filed intra court appeals before the Division Bench of the High Court for Rajasthan Bench at Jaipur and Jodhpur against the order dated 09.02.2017 & other similar orders passed by Single Judge in the writ petitions. 5. By impugned judgments/orders, the Division Bench affirmed the orders of the Single Judge and dismissed the appeals filed by the appellants herein, which have given rise to filing of the present appeals by way of special leave in this Court. 6. The short question, which arises for consideration in these appeals, is whether the impugned orders are sustainable in law. 7. Heard Ms. Aishwarya Bhati, learned counsel for the appellants and Mr. Shiv Mangal Sharma, learned AAG for the respondents. 8. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and remand the case to the Division Bench of the High Court for deciding the appeals afresh on merits. 9. The need to remand the case has been occasioned as the Division Bench has not assigned any reason for dismissal of the appeals. 10. In our opinion, in the absence of any discussion on the issues which have arisen in these cases and in the absence of any finding on the submissions urged by the parties, it is not possible to affirm the order. Indeed, none of the submissions urged by the appellants are mentioned much less dealt with either way on the merits of the case. ### Response: 1 ### Explanation: 8. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal and remand the case to the Division Bench of the High Court for deciding the appeals afresh on merits9. The need to remand the case has been occasioned as the Division Bench has not assigned any reason for dismissal of the appeals10. In our opinion, in the absence of any discussion on the issues which have arisen in these cases and in the absence of any finding on the submissions urged by the parties, it is not possible to affirm the order. Indeed, none of the submissions urged by the appellants are mentioned much less dealt with either way on the merits of the case.
State Of West Bengal Vs. M/S. B. K. Mondal And Sons	Pat 324 ) (FB) ). Mr. Sen pressed into service the analogy of the minor and contends that the result of S. 175 (3) of the Act is to make the appellant incompetent to enter into a contract unless the contract is made as required by S. 175 (3). In our opinion, this argument is not well founded. Section 175 (1) provides for and recognises the power of the Province to purchase or acquire property for the purposes there specified and to make contracts. No doubt S. 175 (3) provides for the making of contracts in the specified manner. We are not satisfied that on reading S. 175 as a whole it would be possible to entertain the argument that the appellant is in the position of a minor for the purpose of S. 70 of the Contract Act, incidentally, the minor is excluded from the operation of S. 70 for the reason that his case has been specifically provided for by S. 68.What S. 70 prevents is unjust enrichment and it applies as much to individuals as to corporations and Government. Therefore, we do not think it would be possible to accept the very broad argument that the State Government is outside the purview of S. 70.Besides, in the case of a minor, even the voluntary acceptance of the benefit of work done or thing delivered which is the foundation of the claim under S. 70 would not be present, and so, on principle S. 70 cannot be invoked against a minor. 22. The question about the scope and effect of S. 70 and its applicability to cases of invalid contracts made by the Provincial Government or by corporations has been the subject-matter of several judicial decisions in this country; and it may be stated broadly that the preponderance of opinion is in favour of the view which we are inclined to take (Vide : Mathura Mohan v. Ram Kumar, ILR 43 Cal 790 : (AIR 1916 Cal 136); Abaji Sitaram v. Trimbak Municipality, ILR 28 Bom 66; Pallonjee Eduljee and Sons, Bombay v. Lonavala City Municipality, ILR 1937 Bom 782 : (AIR 1937 Bom 417 ); Municipal Committee, Gujranwala v. Fazal Din, ILR 11 Lah 121: (AIR 1929 Lah 742) also Secy. of State v. G. T. Sarin and Co., ILR 11 Lah 375 at P. 387: (AIR 1930 Lah 364 at p. 369); Ram Nagin Singh v. Governor-General in Council, AIR 1952 Cal 306 ; Union of India v. Ramnagina Singh, 89 Cal LJ 342, Union of India v. New Marine Coal Co. (Bengal) Ltd., 65 Cal WN 441; Damodara Mudaliar v. Secretary of State, ILR 18 Mad 88; Corporation of Madras v. M. Kothandapani Naidu, (S) AIR 1955 Mad 82 ; Yogambal Boyee Ammani Ammal v. Naina Pillai Markayar, ILR 33 Mad 15 and Ram Das v. Ram Babu, AIR 1936 Pat 194 . Sometimes a note of dissent from this view has no doubt been struck (Vide : ILR 11 All 234, Radha Krishna Das v. Municipal Board of Benaras, ILR 27 All 592; Anath Bandhu Deb v. Dominion of India, (S) AIR 1955 Cal 626 ; Punjabhai v. Bhagwandas Kisandas, ILR 53 Bom 309 : (AIR 1929 Bom 89 ) and Gobind Ram v. Ram Kishore, ILR 31 Pat 303 : (AIR 1953 Pat 145 ) ). The certified copy gives the reference as "ILR 11 Lah 121, 325, 387". As we have found. 325 to be an obvious mistake, we have corrected the reference as above -Ed. 23. Before we part with this point we think it would be useful to refer to the observations made by Jenkins, C. J., in dealing with the scope of the provisions of S. 70 in Suchand Ghosal v. Balaram Mardana, ILR 38 Cal 1 . "The terms of S. 70", said Jenkins, C. J.,"are unquestionably wide, but applied with discretion they enable the Courts to do substantial justice in cases where it would be difficult to impute to the persons concerned relations actually created by contract. It is, however, especially incumbent on final Courts of fact to be guarded and circumspect in their conclusions and not to countenance acts or payments that are really officious". 24. Turning to the facts of this case it is clear that both the Courts have found that the acts done by the respondent were done in fact in pursuance of the requests invalidly made by the relevant officers of the appellant, and so they must be deemed to have been done without a contract. It was not disputed in the Courts below that the acts done by the respondent have been accepted by the appellant and the buildings constructed have been used by it. In fact, both the learned judges of the Appellate Court have expressly pointed out that the appellant did not contest this part of the respondents case. "I should mention", says S. R. Das Gupta, J., "that the appellant did not contest before us the quantum decreed in favour of the plaintiff"; and Bachawat, J., has observed that"the materials from the record also show that the Government urgently needed the work which was done by the respondent and that the Government accepted it as soon as it was done and used it for its benefit". In fact the learned judge adds that "the learned Advocate-General frankly confessed that this is a case where "the Province of Bengal was under a moral obligation to pay the respondent, and has further added his comment that"an obligation of this kind which is apart from the provisions of S. 70 of the Indian Contract Act a moral and natural obligation is by the provisions of that Section converted into a legal obligation". Therefore, once we reach the conclusion that S. 70 can be invoked by the respondent against the appellant, on the findings there is no doubt that the requisite conditions of the said Section have been satisfied. That being so, the Courts below were right in decreeing the respondents claim.	0[ds]In our opinion, there can be no doubt that failure to comply with the mandatory provisions of the said Section makes the contracts invalid. The question as to whether mandatory provisions contained in statutes should be considered merely as directory or obligatory has often been considered in judicial decisions. In dealing with the question no general or inflexible rule can be laid down. It is always a matter of trying to determine the real intention of the Legislature in using the imperative or mandatory words, and such intention can be gathered by a careful examination of the whole scope of the statute and the object intended to be achieved by the particular provision containing the mandatory clause. If it is held that the mandatory clause is obligatory it inevitably follows that contravention of the said clause implies the nullification of the contract. There can be no doubt that in enacting the provisions of S. 175(3) the Parliament intended that the State should not be burdened with liability based on unauthorised contracts and the plain object of the provision, therefore, is to save the State from spurious claims made on the strength of such unauthorised contracts. Thus the provision is made in the public interest and so there can be no difficulty in holding that the word shall" used in making the provision is intended to make the provision itself obligatory and not directory. This is the view taken by this Court in Bhikraj Jaipuria v. Union of India, Civil Appeal No. 86 of 1959, D/- 24-7-1961: (AIR 1962 SC 113 ), and, with respect, we are in entire agreement with that viewThe contract which is void may not be capable of ratification, but, since according to the Court the contract in question could have been ratified it was not void in that technical sense. That is all that was intended by the observation in question. We are not prepared to read the said observation or the final decision in the case of Chatturbhuj, 1954 SCR 817 : (AIR 1954 SC 236 ) as supporting the proposition that notwithstanding the failure of the parties to comply with Art. 299(1) the contract would not be invalid. Indeed, Bose, J., has expressly stated that such a contract cannot be enforced against the Govt., and is not binding on it. Therefore, we do not think that Mr. Chatterjee can successfully challenge the finding of the Courts below that the contracts in question were invalidThe question which the appellant has raised for our decision falls to be considered in the light of the provisions of S. 70 and has to be answered on a fair and reasonable construction of the relevant terms of the said Section. In such a case, where we are dealing with the problem of construing a specific statutory provision it would be unreasonable to invoke the assistance of English decisions dealing with the statutory provisions contained in English law. As Lord Sinha has observed in delivering the judgment of the Privy Council in Ramanandi Kuer v. Kalawati Kuer, 55 Ind App 18. ; ILR 7 Pat 221 : (AIR 1928 PC 2 ) " it has often been pointed out by this Board that where there is a positive enactment of the Indian Legislature the proper course is to examine the language of that statute and to ascertain its proper meaning uninfluenced by any consideration derived from the previous state of the law or of the English law upon which it may be founded". If the words used in the Indian statute are obscure or ambiguous perhaps it may be permissible in interpreting them to examine the background of the law or to derive assistance from English decisions bearing on the point; but where the words are clear and unambiguous it would be unreasonable to interpret them in the light of the alleged background of the statute and to attempt to see that their interpretation conforms to the said background. That is why, in dealing with the point raised before us we must primarily look to the law as embodied in S. 70 and see to put upon it a fair and reasonable constructionTaking the facts in the case before us, after the respondent constructed the warehouse, for instance, it was open to the, appellant to refuse to accept the said warehouse, and to have the benefit of it. It could have called upon the respondent to demolish the said warehouse and take away the materials used by it in constructing it; but, if the appellant accepted the said warehouse and used it and enjoyed its benefit then different considerations come into play and S. 70 can be invoked. Section 70 occurs in Chapter V which deals with certain relations resembling those created by contract. In other words, this chapter does not deal with the rights or liabilities accruing from the contract. It deals with the rights and liabilities accruing from relations which resemble those created by contract. That being so, reverting to the facts of the present case once again, after the respondent constructed the warehouse it would not be open to the respondent to compel the appellant to accept it because what the respondent has done is not in pursuance of the norms of any valid contract and the respondent in making the construction took the risk of the rejection of the work by the appellant. Therefore, in cases falling under S. 70 the person doing something for another or delivering something to another cannot sue for the specific performance of the contract nor ask for damages for the breach of the contract for the simple reason that there is no contract between him and the other person for whom he does something or to whom he delivers something. All that Section 70 provides is that if the goods delivered are accepted or the work done is voluntarily enjoyed then the liability to pay compensation for the enjoyment of the said goods or the acceptance of the said work arises. Thus, where a claim for compensation is made by one person against another under S. 70, it is not on the basis of any subsisting contract between the parties, it is on the basis of the fact that something was done by the party for another and the said work so done has been voluntarily accepted by the other party. That broadly stated is the effect of the conditions prescribed by S. 70In our opinion, this argument is not well-founded. It is true that the provisions of S, 175(3) are mandatory and if any contract is made in contravention of the said provisions the said contract would be invalid; but it must be remembered that the cause of action for the alternative claim of the respondent is not the breach of any contract by the appellant; in fact, the alternative claim is based on the assumption that the contract in pursuance of which the respondent made the constructions in question was ineffective and as such amounted to no contract at all. The respondent says that it has done some work which has been accepted and enjoyed by the appellant and it is the voluntary acceptance and enjoyment of the said work which is the cause of action for the alternative claim. Can it be said that when the respondent built the warehouse, for instance, without a valid contract between it and the appellant it was doing something contrary to S. 175 (3)? As we have already made it clear even if the respondent built the warehouse he could not have forced the appellant to accept it and the appellant may well have asked it to demolish the warehouse and take away the materials. Therefore, the mere act of constructing the warehouse on the part of the respondent cannot be said to contravene the provisions of S. 175(3). In this connection it may be relevant ,to consider illustration (a) to S. 70. The said illustration shows that if A a tradesman leaves goods at Bs house by mistake, and B treats the goods as his own he is bound to pay A for them. Now, if we assume that B stands for the State Government, can it be said that A was contravening the provisions of S. 175(3) when by mistake he left the goods at the house of B? The answer to this question is obviously in the negative. Therefore, if goods are delivered by A to the State Government by mistake and the State Government accepts the goods and enjoys them a claim for compensation can be made by A against the State Government, and in entertaining the said claim the Court could not be upholding the contravention of S. 175(3) at all either directly or indirectly. Once it is realised that the cause of action for a claim for compensation under S. 70 is based not upon the delivery of the goods or the doing of any work as such but upon the acceptance and enjoyment of the said goods or the said work it would not be difficult to hold that S. 70 does not treat as valid the contravention of S. 175(3) of the Act. That being so, the principal argument urged by Mr. Sen that the respondents construction of S. 70 nullifies the effect of S. 175(3) of the Act cannot be acceptedTherefore, in our opinion, all that the word "lawfully" in the context indicates is that after something is delivered or something is done by one person for another and that thing is accepted and enjoyed by the latter, a lawful relationship is born between the two which under the provisions of S. 70 gives rise to a claim for compensation20. It is well-known that in the functioning of the vast organisation represented by a modern State government officers have invariably to enter into a variety of contracts which are often of a petty nature. Sometimes they may have to act in emergency, and on many occasions, in the pursuit of the welfare policy of the State government officers may have to enter into contract orally or through correspondence without strictly complying with the provisions of S. 175 (3) of the Act. If, in all these cases, what is done in pursuance of the contracts is for the benefit of the Government and for their use and enjoyment and is otherwise legitimate and proper S. 70 would step in and support a claim for compensation made by the contracting parties notwithstanding the fact that the contracts had not been made as required by S. 175 (3).If it was held that S. 70 was inapplicable in regard to such dealings by government officers it would lead to extremely unreasonable consequences and may even hamper, if not wholly bring to a standstill the efficient working of the Government from day to day. We are referring to this aspect of the matter not with a view to detract from the binding character of the provisions of S. 175 (3) of the Act but to point out that like ordinary citizens even the State Government is subject to the provisions of S. 70, and if it has accepted the things delivered to it or enjoyed the work done for it, such acceptance and enjoyment would afford a valid basis for claims of compensation against it. Claims based on a contract validly made under S. 175 (3) must, therefore, be distinguished from claims for compensation made under S. 70, and if that distinction is borne in mind there would be no difficulty in rejecting the argument that S. 70 treats as valid the contravention of S. 175 (3) of the Act. In a sense it may be said that S. 70 should be read as supplementing the provisions of S. 175 (3) of the Act24. Turning to the facts of this case it is clear that both the Courts have found that the acts done by the respondent were done in fact in pursuance of the requests invalidly made by the relevant officers of the appellant, and so they must be deemed to have been done without a contract. It was not disputed in the Courts below that the acts done by the respondent have been accepted by the appellant and the buildings constructed have been used by it. In fact, both the learned judges of the Appellate Court have expressly pointed out that the appellant did not contest this part of the respondents caseTherefore, once we reach the conclusion that S. 70 can be invoked by the respondent against the appellant, on the findings there is no doubt that the requisite conditions of the said Section have been satisfied. That being so, the Courts below were right in decreeing the respondents claimMr. Sen pressed into service the analogy of the minor and contends that the result of S. 175 (3) of the Act is to make the appellant incompetent to enter into a contract unless the contract is made as required by S. 175 (3). In our opinion, this argument is not well founded. Section 175 (1) provides for and recognises the power of the Province to purchase or acquire property for the purposes there specified and to make contracts. No doubt S. 175 (3) provides for the making of contracts in the specified manner. We are not satisfied that on reading S. 175 as a whole it would be possible to entertain the argument that the appellant is in the position of a minor for the purpose of S. 70 of the Contract Act, incidentally, the minor is excluded from the operation of S. 70 for the reason that his case has been specifically provided for by S. 68.What S. 70 prevents is unjust enrichment and it applies as much to individuals as to corporations and Government. Therefore, we do not think it would be possible to accept the very broad argument that the State Government is outside the purview of S. 70.Besides, in the case of a minor, even the voluntary acceptance of the benefit of work done or thing delivered which is the foundation of the claim under S. 70 would not be present, and so, on principle S. 70 cannot be invoked against a minor35. We are not, therefore, called upon in the present case to pronounce upon the question whether compensation under S. 70 of the Contract Act can be awarded where goods are delivered to, or work done for, the Government under a contract with it which is invalid for the reason that it had not been made in the terms prescribed by S. 175(3) of the Government of India Act and we do not do so36. Now, if the work was done at the request of the officers of the Government who had no authority to make the request for the Government and the respondent was aware of this, it would follow that the work had been done at the request made by the officers in their personal capacity. In such a case it seems to us that if the request resulted in a contract between the officers and the respondent under which the officers were personally bound to pay the respondent reasonable remuneration for the work, then it would be a very debatable question whether the respondent would have any claim against the Government under S. 70. We say debatable because we have grave doubts if the Section was intended to give a person in the position of the respondent who had a remedy against the officers personally under a contract with them, a remedy against the Government for the same thing in addition to the remedy under the contract.	0	9,013	2,823	### 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: Pat 324 ) (FB) ). Mr. Sen pressed into service the analogy of the minor and contends that the result of S. 175 (3) of the Act is to make the appellant incompetent to enter into a contract unless the contract is made as required by S. 175 (3). In our opinion, this argument is not well founded. Section 175 (1) provides for and recognises the power of the Province to purchase or acquire property for the purposes there specified and to make contracts. No doubt S. 175 (3) provides for the making of contracts in the specified manner. We are not satisfied that on reading S. 175 as a whole it would be possible to entertain the argument that the appellant is in the position of a minor for the purpose of S. 70 of the Contract Act, incidentally, the minor is excluded from the operation of S. 70 for the reason that his case has been specifically provided for by S. 68.What S. 70 prevents is unjust enrichment and it applies as much to individuals as to corporations and Government. Therefore, we do not think it would be possible to accept the very broad argument that the State Government is outside the purview of S. 70.Besides, in the case of a minor, even the voluntary acceptance of the benefit of work done or thing delivered which is the foundation of the claim under S. 70 would not be present, and so, on principle S. 70 cannot be invoked against a minor. 22. The question about the scope and effect of S. 70 and its applicability to cases of invalid contracts made by the Provincial Government or by corporations has been the subject-matter of several judicial decisions in this country; and it may be stated broadly that the preponderance of opinion is in favour of the view which we are inclined to take (Vide : Mathura Mohan v. Ram Kumar, ILR 43 Cal 790 : (AIR 1916 Cal 136); Abaji Sitaram v. Trimbak Municipality, ILR 28 Bom 66; Pallonjee Eduljee and Sons, Bombay v. Lonavala City Municipality, ILR 1937 Bom 782 : (AIR 1937 Bom 417 ); Municipal Committee, Gujranwala v. Fazal Din, ILR 11 Lah 121: (AIR 1929 Lah 742) also Secy. of State v. G. T. Sarin and Co., ILR 11 Lah 375 at P. 387: (AIR 1930 Lah 364 at p. 369); Ram Nagin Singh v. Governor-General in Council, AIR 1952 Cal 306 ; Union of India v. Ramnagina Singh, 89 Cal LJ 342, Union of India v. New Marine Coal Co. (Bengal) Ltd., 65 Cal WN 441; Damodara Mudaliar v. Secretary of State, ILR 18 Mad 88; Corporation of Madras v. M. Kothandapani Naidu, (S) AIR 1955 Mad 82 ; Yogambal Boyee Ammani Ammal v. Naina Pillai Markayar, ILR 33 Mad 15 and Ram Das v. Ram Babu, AIR 1936 Pat 194 . Sometimes a note of dissent from this view has no doubt been struck (Vide : ILR 11 All 234, Radha Krishna Das v. Municipal Board of Benaras, ILR 27 All 592; Anath Bandhu Deb v. Dominion of India, (S) AIR 1955 Cal 626 ; Punjabhai v. Bhagwandas Kisandas, ILR 53 Bom 309 : (AIR 1929 Bom 89 ) and Gobind Ram v. Ram Kishore, ILR 31 Pat 303 : (AIR 1953 Pat 145 ) ). The certified copy gives the reference as "ILR 11 Lah 121, 325, 387". As we have found. 325 to be an obvious mistake, we have corrected the reference as above -Ed. 23. Before we part with this point we think it would be useful to refer to the observations made by Jenkins, C. J., in dealing with the scope of the provisions of S. 70 in Suchand Ghosal v. Balaram Mardana, ILR 38 Cal 1 . "The terms of S. 70", said Jenkins, C. J.,"are unquestionably wide, but applied with discretion they enable the Courts to do substantial justice in cases where it would be difficult to impute to the persons concerned relations actually created by contract. It is, however, especially incumbent on final Courts of fact to be guarded and circumspect in their conclusions and not to countenance acts or payments that are really officious". 24. Turning to the facts of this case it is clear that both the Courts have found that the acts done by the respondent were done in fact in pursuance of the requests invalidly made by the relevant officers of the appellant, and so they must be deemed to have been done without a contract. It was not disputed in the Courts below that the acts done by the respondent have been accepted by the appellant and the buildings constructed have been used by it. In fact, both the learned judges of the Appellate Court have expressly pointed out that the appellant did not contest this part of the respondents case. "I should mention", says S. R. Das Gupta, J., "that the appellant did not contest before us the quantum decreed in favour of the plaintiff"; and Bachawat, J., has observed that"the materials from the record also show that the Government urgently needed the work which was done by the respondent and that the Government accepted it as soon as it was done and used it for its benefit". In fact the learned judge adds that "the learned Advocate-General frankly confessed that this is a case where "the Province of Bengal was under a moral obligation to pay the respondent, and has further added his comment that"an obligation of this kind which is apart from the provisions of S. 70 of the Indian Contract Act a moral and natural obligation is by the provisions of that Section converted into a legal obligation". Therefore, once we reach the conclusion that S. 70 can be invoked by the respondent against the appellant, on the findings there is no doubt that the requisite conditions of the said Section have been satisfied. That being so, the Courts below were right in decreeing the respondents claim. ### Response: 0 ### Explanation: gives rise to a claim for compensation20. It is well-known that in the functioning of the vast organisation represented by a modern State government officers have invariably to enter into a variety of contracts which are often of a petty nature. Sometimes they may have to act in emergency, and on many occasions, in the pursuit of the welfare policy of the State government officers may have to enter into contract orally or through correspondence without strictly complying with the provisions of S. 175 (3) of the Act. If, in all these cases, what is done in pursuance of the contracts is for the benefit of the Government and for their use and enjoyment and is otherwise legitimate and proper S. 70 would step in and support a claim for compensation made by the contracting parties notwithstanding the fact that the contracts had not been made as required by S. 175 (3).If it was held that S. 70 was inapplicable in regard to such dealings by government officers it would lead to extremely unreasonable consequences and may even hamper, if not wholly bring to a standstill the efficient working of the Government from day to day. We are referring to this aspect of the matter not with a view to detract from the binding character of the provisions of S. 175 (3) of the Act but to point out that like ordinary citizens even the State Government is subject to the provisions of S. 70, and if it has accepted the things delivered to it or enjoyed the work done for it, such acceptance and enjoyment would afford a valid basis for claims of compensation against it. Claims based on a contract validly made under S. 175 (3) must, therefore, be distinguished from claims for compensation made under S. 70, and if that distinction is borne in mind there would be no difficulty in rejecting the argument that S. 70 treats as valid the contravention of S. 175 (3) of the Act. In a sense it may be said that S. 70 should be read as supplementing the provisions of S. 175 (3) of the Act24. Turning to the facts of this case it is clear that both the Courts have found that the acts done by the respondent were done in fact in pursuance of the requests invalidly made by the relevant officers of the appellant, and so they must be deemed to have been done without a contract. It was not disputed in the Courts below that the acts done by the respondent have been accepted by the appellant and the buildings constructed have been used by it. In fact, both the learned judges of the Appellate Court have expressly pointed out that the appellant did not contest this part of the respondents caseTherefore, once we reach the conclusion that S. 70 can be invoked by the respondent against the appellant, on the findings there is no doubt that the requisite conditions of the said Section have been satisfied. That being so, the Courts below were right in decreeing the respondents claimMr. Sen pressed into service the analogy of the minor and contends that the result of S. 175 (3) of the Act is to make the appellant incompetent to enter into a contract unless the contract is made as required by S. 175 (3). In our opinion, this argument is not well founded. Section 175 (1) provides for and recognises the power of the Province to purchase or acquire property for the purposes there specified and to make contracts. No doubt S. 175 (3) provides for the making of contracts in the specified manner. We are not satisfied that on reading S. 175 as a whole it would be possible to entertain the argument that the appellant is in the position of a minor for the purpose of S. 70 of the Contract Act, incidentally, the minor is excluded from the operation of S. 70 for the reason that his case has been specifically provided for by S. 68.What S. 70 prevents is unjust enrichment and it applies as much to individuals as to corporations and Government. Therefore, we do not think it would be possible to accept the very broad argument that the State Government is outside the purview of S. 70.Besides, in the case of a minor, even the voluntary acceptance of the benefit of work done or thing delivered which is the foundation of the claim under S. 70 would not be present, and so, on principle S. 70 cannot be invoked against a minor35. We are not, therefore, called upon in the present case to pronounce upon the question whether compensation under S. 70 of the Contract Act can be awarded where goods are delivered to, or work done for, the Government under a contract with it which is invalid for the reason that it had not been made in the terms prescribed by S. 175(3) of the Government of India Act and we do not do so36. Now, if the work was done at the request of the officers of the Government who had no authority to make the request for the Government and the respondent was aware of this, it would follow that the work had been done at the request made by the officers in their personal capacity. In such a case it seems to us that if the request resulted in a contract between the officers and the respondent under which the officers were personally bound to pay the respondent reasonable remuneration for the work, then it would be a very debatable question whether the respondent would have any claim against the Government under S. 70. We say debatable because we have grave doubts if the Section was intended to give a person in the position of the respondent who had a remedy against the officers personally under a contract with them, a remedy against the Government for the same thing in addition to the remedy under the contract.
Union of India (UOI) and Ors Vs. Udai Bhan Singh	of the principles of natural justice. The submission found favour with the High Court in the impugned judgment. The question as to whether there was a failure of natural justice was dealt with by the disciplinary authority. Thereafter, the issue was considered by the appellate authority. The Tribunal, while dealing with the submission, came to the conclusion that the Respondent was attempting to take undue advantage of the non availability of cash receipts but the payment could be verified from other records and documents which were maintained in the Head Post Office, In other words, according to the Tribunal, the non availability of a particular document on the record did not make any difference to the charge of misconduct which was established by other materials which were available on the record. The High Court merely observed that the Respondent was not provided the documents which were relied upon and that there was an error apparent on the face of the record in the order of the Tribunal. The High Court did not consider which documents were not supplied, the relevance of those documents to the charge of misconduct and the prejudice, if any, that resulted to the Respondent by the non availability of the relevant documents. In fact, in the pleadings of the Respondent, the plea that there was a failure to supply documents was vague and there was no reference to which specific document ought to have been made available. Without analyzing this aspect of the case, the High Court interfered with the disciplinary jurisdiction of the Appellant on a vague plea that documents were not supplied. The High Court ought to have enquired into the question of prejudice. There is also substance in the submission which has been urged by Ms. Suri, learned Senior Counsel with regard to the erroneous reference to Rule 27 of the Central Administrative Tribunal Rules. Rule 27 has no bearing at all on the controversy in the present case. Section 27 of the Administrative Tribunals Act 1985 deals with execution of the orders of the Tribunal.14. The aspect of delay must be considered in the context of the admitted facts. The inquiry had been concluded by the inquiry officer. Evidence was recorded during the course of the inquiry. The order of the disciplinary authority holding that all the three charges had been proved was without issuing a notice to the Respondent on the reasons for disagreement with the report of the inquiry officer. The appellate authority enhanced the punishment without indicating adequate reasons. The Tribunal restored the proceedings back to the disciplinary authority to enable the Appellants to issue a fresh notice to show cause to the Respondent and to arrive at a conclusion on the nature of the misconduct, if any, after furnishing an opportunity to the Respondent of making a representation. Neither was the inquiry required to be held afresh nor was fresh evidence to be recorded. After the order of the tribunal, a notice to show cause was issued to the Respondent after eight years. But it must equally be noted that the Respondent had been reinstated following the order of the tribunal setting aside the disciplinary action, pending the conclusion of the process by the disciplinary authority. Hence, the delay on the part of the disciplinary authority in issuing a show cause notice in the first instance and in passing a final order thereafter is not a matter of any prejudice to the Respondent.15. Now, it is well settled that the aspect of delay has to be dealt with on the facts of each case. In the decision of this Court in State of Madhya Pradesh v. Bani Singh and Anr. 1990 (Supp) SCC 738, the irregularities, which were the subject matter of an inquiry related to 1975-1977. Hence this Court held that it was not reasonable that the department had taken more than twelve years to initiate a disciplinary proceeding despite being aware of the irregularities. That was a case where there was an unexplained delay in the initiation of disciplinary proceedings, Subsequently, the position of law has been clarified by the decisions of this Court in State of Punjab and Ors. v. Chaman Lal Goyal (1995) 2 SCC 570 , State of A.P. v. N. Radhakishan (1998) 4 SCC 154 and Secretary, Forest Department and Ors. v. Abdur Rasul Chowdhury (2009) 7 SCC 305. In Government of Andhra Pradesh and Ors. v. V. Appala Swamy (2007) 14 SCC 49 , this Court after referring to the earlier decisions held thus:12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast Rule can be laid down therefor. Each case roust be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:(1) where by reason of the delay, the employer condoned the lapses on the part of the employee:(2) where the delay caused prejudice to the employee.Such a case of prejudice, however, is to be made out by the employee before the inquiry officer.13. This aspect of the matter is now squarely covered by the decisions of this Court in Secy. to Govt., Prohibition & Excise Deptt. v. L. Srinivisan (1996) 3 SCC 157 ; P.D. Agrawal v. State Bank of India (2006) 8 SCC 776 ; Registrar, Coop. Societies v. Sachindra Nath Pandey (1995) 3 SCC 134. 16. In the present case, the Appellants have not condoned the lapse on the part of the Respondent. The delay was not a matter of prejudice.17. For the above reasons, we have come to the conclusion that the High Court was in error in interfering with the exercise of the disciplinary jurisdiction of the Appellants. The misconduct was proved. The penalty which has been imposed cannot be held to be disproportionate or arbitrary. The High Court was in error in setting aside the punishment and ordering reinstatement with back wages and continuity of service.	1[ds]The question as to whether there was a failure of natural justice was dealt with by the disciplinary authority. Thereafter, the issue was considered by the appellate authority. The Tribunal, while dealing with the submission, came to the conclusion that the Respondent was attempting to take undue advantage of the non availability of cash receipts but the payment could be verified from other records and documents which were maintained in the Head Post Office, In other words, according to the Tribunal, the non availability of a particular document on the record did not make any difference to the charge of misconduct which was established by other materials which were available on the record. The High Court merely observed that the Respondent was not provided the documents which were relied upon and that there was an error apparent on the face of the record in the order of the Tribunal. The High Court did not consider which documents were not supplied, the relevance of those documents to the charge of misconduct and the prejudice, if any, that resulted to the Respondent by the non availability of the relevant documents. In fact, in the pleadings of the Respondent, the plea that there was a failure to supply documents was vague and there was no reference to which specific document ought to have been made available. Without analyzing this aspect of the case, the High Court interfered with the disciplinary jurisdiction of the Appellant on a vague plea that documents were not supplied. The High Court ought to have enquired into the question of prejudice. There is also substance in the submission which has been urged by Ms. Suri, learned Senior Counsel with regard to the erroneous reference to Rule 27 of the Central Administrative Tribunal Rules. Rule 27 has no bearing at all on the controversy in the present case. Section 27 of the Administrative Tribunals Act 1985 deals with execution of the orders of the Tribunal.The aspect of delay must be considered in the context of the admitted facts. The inquiry had been concluded by the inquiry officer. Evidence was recorded during the course of the inquiry. The order of the disciplinary authority holding that all the three charges had been proved was without issuing a notice to the Respondent on the reasons for disagreement with the report of the inquiry officer. The appellate authority enhanced the punishment without indicating adequate reasons. The Tribunal restored the proceedings back to the disciplinary authority to enable the Appellants to issue a fresh notice to show cause to the Respondent and to arrive at a conclusion on the nature of the misconduct, if any, after furnishing an opportunity to the Respondent of making a representation. Neither was the inquiry required to be held afresh nor was fresh evidence to be recorded. After the order of the tribunal, a notice to show cause was issued to the Respondent after eight years. But it must equally be noted that the Respondent had been reinstated following the order of the tribunal setting aside the disciplinary action, pending the conclusion of the process by the disciplinary authority. Hence, the delay on the part of the disciplinary authority in issuing a show cause notice in the first instance and in passing a final order thereafter is not a matter of any prejudice to the Respondent.Now, it is well settled that the aspect of delay has to be dealt with on the facts of each case.In the present case, the Appellants have not condoned the lapse on the part of the Respondent. The delay was not a matter of prejudice.For the above reasons, we have come to the conclusion that the High Court was in error in interfering with the exercise of the disciplinary jurisdiction of the Appellants. The misconduct was proved. The penalty which has been imposed cannot be held to be disproportionate or arbitrary. The High Court was in error in setting aside the punishment and ordering reinstatement with back wages and continuity of service.	1	3,474	717	### 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 the principles of natural justice. The submission found favour with the High Court in the impugned judgment. The question as to whether there was a failure of natural justice was dealt with by the disciplinary authority. Thereafter, the issue was considered by the appellate authority. The Tribunal, while dealing with the submission, came to the conclusion that the Respondent was attempting to take undue advantage of the non availability of cash receipts but the payment could be verified from other records and documents which were maintained in the Head Post Office, In other words, according to the Tribunal, the non availability of a particular document on the record did not make any difference to the charge of misconduct which was established by other materials which were available on the record. The High Court merely observed that the Respondent was not provided the documents which were relied upon and that there was an error apparent on the face of the record in the order of the Tribunal. The High Court did not consider which documents were not supplied, the relevance of those documents to the charge of misconduct and the prejudice, if any, that resulted to the Respondent by the non availability of the relevant documents. In fact, in the pleadings of the Respondent, the plea that there was a failure to supply documents was vague and there was no reference to which specific document ought to have been made available. Without analyzing this aspect of the case, the High Court interfered with the disciplinary jurisdiction of the Appellant on a vague plea that documents were not supplied. The High Court ought to have enquired into the question of prejudice. There is also substance in the submission which has been urged by Ms. Suri, learned Senior Counsel with regard to the erroneous reference to Rule 27 of the Central Administrative Tribunal Rules. Rule 27 has no bearing at all on the controversy in the present case. Section 27 of the Administrative Tribunals Act 1985 deals with execution of the orders of the Tribunal.14. The aspect of delay must be considered in the context of the admitted facts. The inquiry had been concluded by the inquiry officer. Evidence was recorded during the course of the inquiry. The order of the disciplinary authority holding that all the three charges had been proved was without issuing a notice to the Respondent on the reasons for disagreement with the report of the inquiry officer. The appellate authority enhanced the punishment without indicating adequate reasons. The Tribunal restored the proceedings back to the disciplinary authority to enable the Appellants to issue a fresh notice to show cause to the Respondent and to arrive at a conclusion on the nature of the misconduct, if any, after furnishing an opportunity to the Respondent of making a representation. Neither was the inquiry required to be held afresh nor was fresh evidence to be recorded. After the order of the tribunal, a notice to show cause was issued to the Respondent after eight years. But it must equally be noted that the Respondent had been reinstated following the order of the tribunal setting aside the disciplinary action, pending the conclusion of the process by the disciplinary authority. Hence, the delay on the part of the disciplinary authority in issuing a show cause notice in the first instance and in passing a final order thereafter is not a matter of any prejudice to the Respondent.15. Now, it is well settled that the aspect of delay has to be dealt with on the facts of each case. In the decision of this Court in State of Madhya Pradesh v. Bani Singh and Anr. 1990 (Supp) SCC 738, the irregularities, which were the subject matter of an inquiry related to 1975-1977. Hence this Court held that it was not reasonable that the department had taken more than twelve years to initiate a disciplinary proceeding despite being aware of the irregularities. That was a case where there was an unexplained delay in the initiation of disciplinary proceedings, Subsequently, the position of law has been clarified by the decisions of this Court in State of Punjab and Ors. v. Chaman Lal Goyal (1995) 2 SCC 570 , State of A.P. v. N. Radhakishan (1998) 4 SCC 154 and Secretary, Forest Department and Ors. v. Abdur Rasul Chowdhury (2009) 7 SCC 305. In Government of Andhra Pradesh and Ors. v. V. Appala Swamy (2007) 14 SCC 49 , this Court after referring to the earlier decisions held thus:12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast Rule can be laid down therefor. Each case roust be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:(1) where by reason of the delay, the employer condoned the lapses on the part of the employee:(2) where the delay caused prejudice to the employee.Such a case of prejudice, however, is to be made out by the employee before the inquiry officer.13. This aspect of the matter is now squarely covered by the decisions of this Court in Secy. to Govt., Prohibition & Excise Deptt. v. L. Srinivisan (1996) 3 SCC 157 ; P.D. Agrawal v. State Bank of India (2006) 8 SCC 776 ; Registrar, Coop. Societies v. Sachindra Nath Pandey (1995) 3 SCC 134. 16. In the present case, the Appellants have not condoned the lapse on the part of the Respondent. The delay was not a matter of prejudice.17. For the above reasons, we have come to the conclusion that the High Court was in error in interfering with the exercise of the disciplinary jurisdiction of the Appellants. The misconduct was proved. The penalty which has been imposed cannot be held to be disproportionate or arbitrary. The High Court was in error in setting aside the punishment and ordering reinstatement with back wages and continuity of service. ### Response: 1 ### Explanation: The question as to whether there was a failure of natural justice was dealt with by the disciplinary authority. Thereafter, the issue was considered by the appellate authority. The Tribunal, while dealing with the submission, came to the conclusion that the Respondent was attempting to take undue advantage of the non availability of cash receipts but the payment could be verified from other records and documents which were maintained in the Head Post Office, In other words, according to the Tribunal, the non availability of a particular document on the record did not make any difference to the charge of misconduct which was established by other materials which were available on the record. The High Court merely observed that the Respondent was not provided the documents which were relied upon and that there was an error apparent on the face of the record in the order of the Tribunal. The High Court did not consider which documents were not supplied, the relevance of those documents to the charge of misconduct and the prejudice, if any, that resulted to the Respondent by the non availability of the relevant documents. In fact, in the pleadings of the Respondent, the plea that there was a failure to supply documents was vague and there was no reference to which specific document ought to have been made available. Without analyzing this aspect of the case, the High Court interfered with the disciplinary jurisdiction of the Appellant on a vague plea that documents were not supplied. The High Court ought to have enquired into the question of prejudice. There is also substance in the submission which has been urged by Ms. Suri, learned Senior Counsel with regard to the erroneous reference to Rule 27 of the Central Administrative Tribunal Rules. Rule 27 has no bearing at all on the controversy in the present case. Section 27 of the Administrative Tribunals Act 1985 deals with execution of the orders of the Tribunal.The aspect of delay must be considered in the context of the admitted facts. The inquiry had been concluded by the inquiry officer. Evidence was recorded during the course of the inquiry. The order of the disciplinary authority holding that all the three charges had been proved was without issuing a notice to the Respondent on the reasons for disagreement with the report of the inquiry officer. The appellate authority enhanced the punishment without indicating adequate reasons. The Tribunal restored the proceedings back to the disciplinary authority to enable the Appellants to issue a fresh notice to show cause to the Respondent and to arrive at a conclusion on the nature of the misconduct, if any, after furnishing an opportunity to the Respondent of making a representation. Neither was the inquiry required to be held afresh nor was fresh evidence to be recorded. After the order of the tribunal, a notice to show cause was issued to the Respondent after eight years. But it must equally be noted that the Respondent had been reinstated following the order of the tribunal setting aside the disciplinary action, pending the conclusion of the process by the disciplinary authority. Hence, the delay on the part of the disciplinary authority in issuing a show cause notice in the first instance and in passing a final order thereafter is not a matter of any prejudice to the Respondent.Now, it is well settled that the aspect of delay has to be dealt with on the facts of each case.In the present case, the Appellants have not condoned the lapse on the part of the Respondent. The delay was not a matter of prejudice.For the above reasons, we have come to the conclusion that the High Court was in error in interfering with the exercise of the disciplinary jurisdiction of the Appellants. The misconduct was proved. The penalty which has been imposed cannot be held to be disproportionate or arbitrary. The High Court was in error in setting aside the punishment and ordering reinstatement with back wages and continuity of service.
M/s. Century Textiles Industries Ltd Vs. Deepak Jain & Another	and Ravinder Kaur Vs. Ashok Kumar & Anr. (2003) 8 SCC 289. 11. Per contra, Mr. Shiv Sagar Tiwari, learned counsel appearing on behalf of the respondents, supported the impugned judgment and submitted that the Executing Court had misread the evidence while coming to the conclusion that Deepak Jain and D.K. Jain are one and the same person and proprietor of M/s. Surya Trading Company. Learned counsel submitted that the High Court was justified in holding that the Executing Court could not go behind the decree and that the only remedy available to the appellant herein was to seek rectification of the decree by moving proper application under Section 152 of the CPC. 12. Having bestowed our anxious consideration to the background facts obtaining in the present case, in particular, the order passed by the High Court on 21st August, 2002, in the first round of litigation in execution proceedings, subject matter of Civil Revision No. 379 of 2002, in our opinion, the impugned judgment is unsustainable. 13. There is no quarrel with the general principle of law and indeed, it is unexceptionable that a court executing a decree cannot go behind the decree; it must take the decree according to its tenor; has no jurisdiction to widen its scope and is required to execute the decree as made. However, the question which falls for consideration in the present case is that when a specific issue regarding the identity of the judgment-debtor had been raised and entertained by the High Court in the first Civil Revision Petition, decided on 21st August, 2002, and the Court having remitted the matter to the Executing Court, the enquiry conducted by the Executing Court in furtherance of the said direction, could its order be said to be without jurisdiction? 14. In our opinion, on facts in hand, the Executing Court had no option but to determine the question of identity of the judgment-debtor because of the direction of the High Court and the issues raised before it. Indeed, no objection to the jurisdiction of the Executing Court to determine the issue could or was raised. It is also manifest that the said direction by the High Court was keeping in view the provisions of Section 47 of the CPC. 15. Section 47 of the CPC contemplates that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of decree, have got to be determined by the court executing the decree and not by a separate suit. In the instant case, the controversy before the High Court, in the first instance, was whether the decree against M/s Surya Trading, Proprietor, D.K. Jain could be executed against Deepak Jain, who according to the decree holder, was no one else but D.K. Jain. It is true that Deepak Jain, as such, was not a party to the suit but the fact remains that M/s Surya Trading Company, Proprietor, D.K. Jain was Deepak Jain himself and, therefore, the question referred to the Executing Court by the High Court for determination was whether D.K. Jain and Deepak Jain were two different entities. We have no hesitation in holding that in the peculiar situation arising in the case, the said issue could be adjudicated under Section 47 of the CPC, notwithstanding the fact that Deepak Jain was not a party in the suit, wherein the decree in question was passed. 16. Moreover, it is evident from the order of the Executing Court that no plea regarding the applicability of Section 47 of the CPC was raised on behalf of the judgment-debtor before that Court. We are unable to persuade ourselves to agree with the High Court that the only course available to the decree holder was to seek amendment of the decree under Section 152 of the CPC, as was canvassed before us by learned counsel for the respondents. A bare reading of Section 152 CPC makes it clear that the power of the Court under the said provision is limited to rectification of clerical and arithmetical errors arising from any accidental slip or omission. There cannot be re-consideration of the merits of the matter and the sole object of the provision is based on the maxim actus curiae neminem gravabit i.e., an act of court shall prejudice no man. In our judgment, the issue requiring adjudication by the Executing Court did not call for and was clearly beyond the scope of Section 152 CPC. 17. We are also constrained to observe that while dealing with the second Revision Petition, the High Court failed to take into consideration the order passed by a learned Single Judge on 21st August, 2002, whereby the Executing Court was directed to conduct inquiry in regard to the status of the objector to the execution proceedings. Time and again it has been emphasised that judicial propriety and decorum requires that if a Single Judge, hearing a matter, feels that earlier decision of a Single Judge needs re-consideration, he should not embark upon that enquiry, sitting as a Single Judge, but should refer the matter to a larger Bench. Regrettably, in the present case, the learned Single Judge departed from the said healthy principle and chose to re-examine the same question himself. 18. Before parting, we note with some anguish that this case is a classic example of how a judicial process can be misused by unscrupulous litigants, more so, when the person concerned himself happens to be an advocate. In the first instance, neither D.K. Jain nor Deepak Jain, actually one and the same person, challenged the ex-parte decree dated 10th March, 1997 and it was only when execution proceedings were initiated against Deepak Jain, that to obstruct execution, he raised a frivolous plea of the identification of the judgment-debtor, with the result that although over a decade has gone by yet the decree holder has not been able to enjoy the fruits of the money decree so far.	1[ds]14. In our opinion, on facts in hand, the Executing Court had no option but to determine the question of identity of the judgment-debtor because of the direction of the High Court and the issues raised before it. Indeed, no objection to the jurisdiction of the Executing Court to determine the issue could or was raised. It is also manifest that the said direction by the High Court was keeping in view the provisions of Section 47 of the CPC15. Section 47 of the CPC contemplates that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of decree, have got to be determined by the court executing the decree and not by a separate suit. In the instant case, the controversy before the High Court, in the first instance, was whether the decree against M/s Surya Trading, Proprietor, D.K. Jain could be executed against Deepak Jain, who according to the decree holder, was no one else but D.K. Jain. It is true that Deepak Jain, as such, was not a party to the suit but the fact remains that M/s Surya Trading Company, Proprietor, D.K. Jain was Deepak Jain himself and, therefore, the question referred to the Executing Court by the High Court for determination was whether D.K. Jain and Deepak Jain were two different entities. We have no hesitation in holding that in the peculiar situation arising in the case, the said issue could be adjudicated under Section 47 of the CPC, notwithstanding the fact that Deepak Jain was not a party in the suit, wherein the decree in question was passed16. Moreover, it is evident from the order of the Executing Court that no plea regarding the applicability of Section 47 of the CPC was raised on behalf of the judgment-debtor before that Court. We are unable to persuade ourselves to agree with the High Court that the only course available to the decree holder was to seek amendment of the decree under Section 152 of the CPC, as was canvassed before us by learned counsel for the respondents. A bare reading of Section 152 CPC makes it clear that the power of the Court under the said provision is limited to rectification of clerical and arithmetical errors arising from any accidental slip or omission. There cannot be re-consideration of the merits of the matter and the sole object of the provision is based on the maxim actus curiae neminem gravabit i.e., an act of court shall prejudice no man. In our judgment, the issue requiring adjudication by the Executing Court did not call for and was clearly beyond the scope of Section 152 CPC17. We are also constrained to observe that while dealing with the second Revision Petition, the High Court failed to take into consideration the order passed by a learned Single Judge on 21st August, 2002, whereby the Executing Court was directed to conduct inquiry in regard to the status of the objector to the execution proceedings. Time and again it has been emphasised that judicial propriety and decorum requires that if a Single Judge, hearing a matter, feels that earlier decision of a Single Judge needs re-consideration, he should not embark upon that enquiry, sitting as a Single Judge, but should refer the matter to a larger Bench. Regrettably, in the present case, the learned Single Judge departed from the said healthy principle and chose to re-examine the same question himself18. Before parting, we note with some anguish that this case is a classic example of how a judicial process can be misused by unscrupulous litigants, more so, when the person concerned himself happens to be an advocate. In the first instance, neither D.K. Jain nor Deepak Jain, actually one and the same person, challenged the ex-parte decree dated 10th March, 1997 and it was only when execution proceedings were initiated against Deepak Jain, that to obstruct execution, he raised a frivolous plea of the identification of the judgment-debtor, with the result that although over a decade has gone by yet the decree holder has not been able to enjoy the fruits of the money decree so far.	1	2,678	776	### 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: and Ravinder Kaur Vs. Ashok Kumar & Anr. (2003) 8 SCC 289. 11. Per contra, Mr. Shiv Sagar Tiwari, learned counsel appearing on behalf of the respondents, supported the impugned judgment and submitted that the Executing Court had misread the evidence while coming to the conclusion that Deepak Jain and D.K. Jain are one and the same person and proprietor of M/s. Surya Trading Company. Learned counsel submitted that the High Court was justified in holding that the Executing Court could not go behind the decree and that the only remedy available to the appellant herein was to seek rectification of the decree by moving proper application under Section 152 of the CPC. 12. Having bestowed our anxious consideration to the background facts obtaining in the present case, in particular, the order passed by the High Court on 21st August, 2002, in the first round of litigation in execution proceedings, subject matter of Civil Revision No. 379 of 2002, in our opinion, the impugned judgment is unsustainable. 13. There is no quarrel with the general principle of law and indeed, it is unexceptionable that a court executing a decree cannot go behind the decree; it must take the decree according to its tenor; has no jurisdiction to widen its scope and is required to execute the decree as made. However, the question which falls for consideration in the present case is that when a specific issue regarding the identity of the judgment-debtor had been raised and entertained by the High Court in the first Civil Revision Petition, decided on 21st August, 2002, and the Court having remitted the matter to the Executing Court, the enquiry conducted by the Executing Court in furtherance of the said direction, could its order be said to be without jurisdiction? 14. In our opinion, on facts in hand, the Executing Court had no option but to determine the question of identity of the judgment-debtor because of the direction of the High Court and the issues raised before it. Indeed, no objection to the jurisdiction of the Executing Court to determine the issue could or was raised. It is also manifest that the said direction by the High Court was keeping in view the provisions of Section 47 of the CPC. 15. Section 47 of the CPC contemplates that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of decree, have got to be determined by the court executing the decree and not by a separate suit. In the instant case, the controversy before the High Court, in the first instance, was whether the decree against M/s Surya Trading, Proprietor, D.K. Jain could be executed against Deepak Jain, who according to the decree holder, was no one else but D.K. Jain. It is true that Deepak Jain, as such, was not a party to the suit but the fact remains that M/s Surya Trading Company, Proprietor, D.K. Jain was Deepak Jain himself and, therefore, the question referred to the Executing Court by the High Court for determination was whether D.K. Jain and Deepak Jain were two different entities. We have no hesitation in holding that in the peculiar situation arising in the case, the said issue could be adjudicated under Section 47 of the CPC, notwithstanding the fact that Deepak Jain was not a party in the suit, wherein the decree in question was passed. 16. Moreover, it is evident from the order of the Executing Court that no plea regarding the applicability of Section 47 of the CPC was raised on behalf of the judgment-debtor before that Court. We are unable to persuade ourselves to agree with the High Court that the only course available to the decree holder was to seek amendment of the decree under Section 152 of the CPC, as was canvassed before us by learned counsel for the respondents. A bare reading of Section 152 CPC makes it clear that the power of the Court under the said provision is limited to rectification of clerical and arithmetical errors arising from any accidental slip or omission. There cannot be re-consideration of the merits of the matter and the sole object of the provision is based on the maxim actus curiae neminem gravabit i.e., an act of court shall prejudice no man. In our judgment, the issue requiring adjudication by the Executing Court did not call for and was clearly beyond the scope of Section 152 CPC. 17. We are also constrained to observe that while dealing with the second Revision Petition, the High Court failed to take into consideration the order passed by a learned Single Judge on 21st August, 2002, whereby the Executing Court was directed to conduct inquiry in regard to the status of the objector to the execution proceedings. Time and again it has been emphasised that judicial propriety and decorum requires that if a Single Judge, hearing a matter, feels that earlier decision of a Single Judge needs re-consideration, he should not embark upon that enquiry, sitting as a Single Judge, but should refer the matter to a larger Bench. Regrettably, in the present case, the learned Single Judge departed from the said healthy principle and chose to re-examine the same question himself. 18. Before parting, we note with some anguish that this case is a classic example of how a judicial process can be misused by unscrupulous litigants, more so, when the person concerned himself happens to be an advocate. In the first instance, neither D.K. Jain nor Deepak Jain, actually one and the same person, challenged the ex-parte decree dated 10th March, 1997 and it was only when execution proceedings were initiated against Deepak Jain, that to obstruct execution, he raised a frivolous plea of the identification of the judgment-debtor, with the result that although over a decade has gone by yet the decree holder has not been able to enjoy the fruits of the money decree so far. ### Response: 1 ### Explanation: 14. In our opinion, on facts in hand, the Executing Court had no option but to determine the question of identity of the judgment-debtor because of the direction of the High Court and the issues raised before it. Indeed, no objection to the jurisdiction of the Executing Court to determine the issue could or was raised. It is also manifest that the said direction by the High Court was keeping in view the provisions of Section 47 of the CPC15. Section 47 of the CPC contemplates that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of decree, have got to be determined by the court executing the decree and not by a separate suit. In the instant case, the controversy before the High Court, in the first instance, was whether the decree against M/s Surya Trading, Proprietor, D.K. Jain could be executed against Deepak Jain, who according to the decree holder, was no one else but D.K. Jain. It is true that Deepak Jain, as such, was not a party to the suit but the fact remains that M/s Surya Trading Company, Proprietor, D.K. Jain was Deepak Jain himself and, therefore, the question referred to the Executing Court by the High Court for determination was whether D.K. Jain and Deepak Jain were two different entities. We have no hesitation in holding that in the peculiar situation arising in the case, the said issue could be adjudicated under Section 47 of the CPC, notwithstanding the fact that Deepak Jain was not a party in the suit, wherein the decree in question was passed16. Moreover, it is evident from the order of the Executing Court that no plea regarding the applicability of Section 47 of the CPC was raised on behalf of the judgment-debtor before that Court. We are unable to persuade ourselves to agree with the High Court that the only course available to the decree holder was to seek amendment of the decree under Section 152 of the CPC, as was canvassed before us by learned counsel for the respondents. A bare reading of Section 152 CPC makes it clear that the power of the Court under the said provision is limited to rectification of clerical and arithmetical errors arising from any accidental slip or omission. There cannot be re-consideration of the merits of the matter and the sole object of the provision is based on the maxim actus curiae neminem gravabit i.e., an act of court shall prejudice no man. In our judgment, the issue requiring adjudication by the Executing Court did not call for and was clearly beyond the scope of Section 152 CPC17. We are also constrained to observe that while dealing with the second Revision Petition, the High Court failed to take into consideration the order passed by a learned Single Judge on 21st August, 2002, whereby the Executing Court was directed to conduct inquiry in regard to the status of the objector to the execution proceedings. Time and again it has been emphasised that judicial propriety and decorum requires that if a Single Judge, hearing a matter, feels that earlier decision of a Single Judge needs re-consideration, he should not embark upon that enquiry, sitting as a Single Judge, but should refer the matter to a larger Bench. Regrettably, in the present case, the learned Single Judge departed from the said healthy principle and chose to re-examine the same question himself18. Before parting, we note with some anguish that this case is a classic example of how a judicial process can be misused by unscrupulous litigants, more so, when the person concerned himself happens to be an advocate. In the first instance, neither D.K. Jain nor Deepak Jain, actually one and the same person, challenged the ex-parte decree dated 10th March, 1997 and it was only when execution proceedings were initiated against Deepak Jain, that to obstruct execution, he raised a frivolous plea of the identification of the judgment-debtor, with the result that although over a decade has gone by yet the decree holder has not been able to enjoy the fruits of the money decree so far.
Mahant Narayangiri Guru Mahant Someshwarigiri Vs. State of Maharashtra and Another	KHANNA, J. 1. This is an appeal by special leave by Mahant Narayangiri against the judgment and decree of the Bombay High Court affirming on appeal the decision of the trial Court. Whereby the suit filed by the plaintiff-appellant, had been dismissed. At the time leave was granted, it was restricted to the question as to whether the appellant was the successor to the deceased mahant as chela and whether the High Court was right in refusing to go into this question. 2. The appeal arises out of a suit brought by the appellant for a declaration that the property in dispute was the private property of his guru Mahant Someshwarigiri deceased and as such he was entitled to own and maintain his possession over that property. Declaration was further sought that defendant was not authorised to register the said property to be endowment property. Prayer was also made that the defendant-State be restrained from interfering with the appellants possession of the property. The trial Court held that the property in dispute was public endowment property and not the private property of the deceased mahant. In view of that, the trial Court considered it not necessary to decide the question as to whether the plaintiff-appellant was duly installed chela of the deceased mahant. All the same, as the parties had led evidence, the trial Court recorded a finding that the plaintiff-appellant had not been proved to be duly appointed chela of the deceased mahant. 3. When the matter came up in appeal before the High Court, the High Court affirmed the finding of the trial Court on the point that the property in dispute belonged to a public institution of a religious and charitable nature. It was also observed that the property in dispute had been rightly entered in the Endowment Register maintained under the Hyderabad Endowment Regulations as endowment property. In view of this finding, the plaintiff-appellants suit was held to have been rightly dismissed by the trial Court. While dismissing the appeal, the High Court made it clear that it had not dealt with the other question as to whether the plaintiff-appellant was the properly appointed chela of the deceased mahant. 4. We have heard Mr. Desai on behalf of the appellant and are of the opinion that in view of the finding of the High Court that the property in dispute belongs to a public institution of a religious and charitable nature and has been rightly entered in the Endowment Register maintained under the Hyderabad Endowment Regulations as endowment property, it is not necessary to go into the question as to whether the plaintiff-appellant is or is not the duly appointed chela of the deceased mahant. The plaintiffs suit, as would appear from the plaint, was a suit for declaration of his title to the property in dispute. In order to succeed in the suit, the plaintiff sought to establish not only that the property in dispute was the private property of the deceased mahant but also that he was the duly appointed chela of the deceased mahant. Once a finding is arrived at that the property in dispute was endowment property and was not the private property of the deceased mahant and that finding is no longer open to challenge, the question of going into the other aspect as to whether the plaintiff-appellant is or is not the duly appointed chela of the deceased mahant, would not survive for decision. It was in the circumstances hardly necessary to go into and record a finding on that aspect of the matter. The question as to whether the plaintiff-appellant is or is not a duly appointed chela of the deceased mahant remains open and we express no opinion about that.	0[ds]4. We have heard Mr. Desai on behalf of the appellant and are of the opinion that in view of the finding of the High Court that the property in dispute belongs to a public institution of a religious and charitable nature and has been rightly entered in the Endowment Register maintained under the Hyderabad Endowment Regulations as endowment property, it is not necessary to go into the question as to whether thet is or is not the duly appointed chela of the deceased mahant. The plaintiffs suit, as would appear from the plaint, was a suit for declaration of his title to the property in dispute. In order to succeed in the suit, the plaintiff sought to establish not only that the property in dispute was the private property of the deceased mahant but also that he was the duly appointed chela of the deceased mahant. Once a finding is arrived at that the property in dispute was endowment property and was not the private property of the deceased mahant and that finding is no longer open to challenge, the question of going into the other aspect as to whether thet is or is not the duly appointed chela of the deceased mahant, would not survive for decision. It was in the circumstances hardly necessary to go into and record a finding on that aspect of the matter. The question as to whether thet is or is not a duly appointed chela of the deceased mahant remains open and we express no opinion about that.	0	661	273	### Instruction: Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document. ### Input: KHANNA, J. 1. This is an appeal by special leave by Mahant Narayangiri against the judgment and decree of the Bombay High Court affirming on appeal the decision of the trial Court. Whereby the suit filed by the plaintiff-appellant, had been dismissed. At the time leave was granted, it was restricted to the question as to whether the appellant was the successor to the deceased mahant as chela and whether the High Court was right in refusing to go into this question. 2. The appeal arises out of a suit brought by the appellant for a declaration that the property in dispute was the private property of his guru Mahant Someshwarigiri deceased and as such he was entitled to own and maintain his possession over that property. Declaration was further sought that defendant was not authorised to register the said property to be endowment property. Prayer was also made that the defendant-State be restrained from interfering with the appellants possession of the property. The trial Court held that the property in dispute was public endowment property and not the private property of the deceased mahant. In view of that, the trial Court considered it not necessary to decide the question as to whether the plaintiff-appellant was duly installed chela of the deceased mahant. All the same, as the parties had led evidence, the trial Court recorded a finding that the plaintiff-appellant had not been proved to be duly appointed chela of the deceased mahant. 3. When the matter came up in appeal before the High Court, the High Court affirmed the finding of the trial Court on the point that the property in dispute belonged to a public institution of a religious and charitable nature. It was also observed that the property in dispute had been rightly entered in the Endowment Register maintained under the Hyderabad Endowment Regulations as endowment property. In view of this finding, the plaintiff-appellants suit was held to have been rightly dismissed by the trial Court. While dismissing the appeal, the High Court made it clear that it had not dealt with the other question as to whether the plaintiff-appellant was the properly appointed chela of the deceased mahant. 4. We have heard Mr. Desai on behalf of the appellant and are of the opinion that in view of the finding of the High Court that the property in dispute belongs to a public institution of a religious and charitable nature and has been rightly entered in the Endowment Register maintained under the Hyderabad Endowment Regulations as endowment property, it is not necessary to go into the question as to whether the plaintiff-appellant is or is not the duly appointed chela of the deceased mahant. The plaintiffs suit, as would appear from the plaint, was a suit for declaration of his title to the property in dispute. In order to succeed in the suit, the plaintiff sought to establish not only that the property in dispute was the private property of the deceased mahant but also that he was the duly appointed chela of the deceased mahant. Once a finding is arrived at that the property in dispute was endowment property and was not the private property of the deceased mahant and that finding is no longer open to challenge, the question of going into the other aspect as to whether the plaintiff-appellant is or is not the duly appointed chela of the deceased mahant, would not survive for decision. It was in the circumstances hardly necessary to go into and record a finding on that aspect of the matter. The question as to whether the plaintiff-appellant is or is not a duly appointed chela of the deceased mahant remains open and we express no opinion about that. ### Response: 0 ### Explanation: 4. We have heard Mr. Desai on behalf of the appellant and are of the opinion that in view of the finding of the High Court that the property in dispute belongs to a public institution of a religious and charitable nature and has been rightly entered in the Endowment Register maintained under the Hyderabad Endowment Regulations as endowment property, it is not necessary to go into the question as to whether thet is or is not the duly appointed chela of the deceased mahant. The plaintiffs suit, as would appear from the plaint, was a suit for declaration of his title to the property in dispute. In order to succeed in the suit, the plaintiff sought to establish not only that the property in dispute was the private property of the deceased mahant but also that he was the duly appointed chela of the deceased mahant. Once a finding is arrived at that the property in dispute was endowment property and was not the private property of the deceased mahant and that finding is no longer open to challenge, the question of going into the other aspect as to whether thet is or is not the duly appointed chela of the deceased mahant, would not survive for decision. It was in the circumstances hardly necessary to go into and record a finding on that aspect of the matter. The question as to whether thet is or is not a duly appointed chela of the deceased mahant remains open and we express no opinion about that.
Commissioner of Income Tax, Delhi (Central -I) Vs. Continental Construction Ltd	in this connection, refer to the earlier judgments of the Gujarat High Court which have been discussed at length in the impugned judgment. After the decision of this Court in the case of Commr. of Income Tax v. Indian Engineering and Commercial Corporation, (1993 AIR SCW 1515) (supra), the Gujarat High Court has now, in the case of Commr. of Income Tax v. Synpol Products Pvt. Ltd. (1996) 217 ITR 154, held that in the case of Directors who are also employees, both the provisions will be attracted. The higher of the two ceilings will have to be applied.13. We have now to consider in this light whether the provisions of S.40A(5) (b) will apply for the purpose of calculating the expenditure so covered when the expenditure is incurred in connection with a Director who is also an employee. Under S.40A(5)(b) (i) nothing in Clause (a) which deals with expenditure on salaries and perquisites of an employee shall apply, inter alia , to any expenditure in relation to an employee in respect of any period of his employment outside India. Therefore, for example, in calculating the expenditure on the salary of an employee, the salary paid in respect of his employment outside India will not be taken into account for the purposes of calculating the ceiling. This expenditure is outside the expenditure which is subject to a ceiling limit. Under S.40A(5)(b)(ii) and (iii), similarly certain other expenditures in connection with an employee are also excluded from the ceiling limit. The question is whether such expenditure will be excluded from the ceiling limit of a Director - employee. If for the purpose of ceiling on expenditure, both S.40(c) and 40A(5) are to be applied to employee - Directors, there is no reason why for the purpose of deciding what is to be excluded from the expenditure subject to such ceiling, both the sections cannot be taken into account. Both sections constitute a composite scheme. In the case of employee - Directors, both will operate. After all, the purpose of prescribing a ceiling on expenditure in connection with Directors and employees under S.40(c) and S.40A(5), is to discourage a company or an organisation from paying excessive salaries, remuneration, perquisites etc. to its employees and/or Directors. If it does so, the organisation will not be able to claim the entire expenditure as deduction, but only expenditure up to the ceiling limit. However, from this ceiling limit, certain kinds of expenditure on employees have been excluded - presumably because this kind of an expenditure was considered as reasonable and permissible. One such category of expenditure is expenditure on an employee in respect of his period of employment outside India. Presumably the organisation may have to pay to an employee posted outside India amounts which may be much higher than what he may be entitled to in India in view of the exigencies of the situation, his requirements at the place of posting and the fact that the amount may have to be paid in a foreign country. This expenditure is, therefore, not subject to a ceiling. The same considerations would apply to a Director - employee also who is posted outside the country in the course of his work. A Director - employee does not cease to be an employee nor are his requirements less than those of an employee. Therefore, in his case also what the Act itself has viewed as reasonable allowable expenditure, should be allowed. We do not see any reason to hold that S.40A(5)(b) will not apply to employee - Directors when this Court, in the case of employee - Directors has held, both S.40(c) and 40A(5) as applicable. For determining the ceiling, the higher ceiling has to be taken into account. Similarly, for determining permissible expenditure which is outside the ceiling limit also, both the sections will have to be applied. Therefore, expenditure under S.40A(5)(b) which is excluded from the expenditure on which a ceiling is placed under S.40A(5)(a), will have to be excluded in the case of an employee - Director also. Under the proviso to S.40A(5)(a), in the case of an employee - Director, for the purposes of ceiling, expenditure which has to be taken into account is both under S.40A(5)(a) as well as under S.40(c). For calculating the expenditure and allowances under S.40A(5)(a), one has to exclude the expenditure and allowances referred to in S.40A(5)(b). Therefore, in the case of a Director - employee also while calculating the expenditure and allowances spent on a Director - employee under S.40A(5)(a) and S.40(c), expenditure of the kind referred to in S.40A(5)(b) has to be necessarily excluded.14. A similar view has been taken by the Madras High Court in the case of Commr. of Income Tax v. Lucas TVS Ltd., (1997) 226 ITR 281. The Madras High Court was concerned with foreign technicians working under a contract in India and falling under S.10(6) (vii-a). Under S.40A(5)(ii) expenditure incurred in relation to such an employee is to be excluded from the expenditure for which a ceiling is prescribed under S.40A(5)(a). The Madras High Court held that in the case of a Director cum employee also, if he is covered by S.10(6)(vii-a), such expenditure would be excluded from the ceiling limit prescribed under S.40(c) as well as S.40A(5)(a). The Madras High Court has rightly observed (page 291) that there is nothing to suggest that the remuneration which is excluded from the scope of consideration in S.40A(5)(a) of the Act by virtue of S.40A(5)(b) of the Act, should be taken into consideration for the purpose of S.40(c) of the Act. Both S.40(c) and 40A(5) have to be read together in determining the ceiling prescribed under S.40A(5) of the Act which includes ceiling prescribed for Director - employees. Also if certain items go out of reckoning in S.40A(5) of the Act, then on the principle of harmonious construction, the same will have to go out of reckoning in calculating a common ceiling prescribed for Director - employees both under S.40(c) and 40A(5)(a) proviso.	0[ds]9. The question of interpreting the provisions of S.40(c) and 40A(5) in connection with persons who are both employees and Directors of the company has come up for consideration in a number of cases before the High Court and before this Court. In the impugned judgment before us (which is reported in 185 ITR 178 : (1990 Tax LR 729), the Delhi High Court has looked at the legislative history of these two provisions with a view to examining their effect. S.40(c) as it originally stood and the amendments made in S.40(c) have been set out in the High Courts judgment. Originally, S.40(c) itself contained sub-clause (iii) dealing with expenditure which results directly or indirectly in the provision of any remuneration or benefit or amenity to an employee. The ceiling prescribed was Rs. 5,000/- per month for any period of employment after 28th day of February, 1963. The expenditure on perquisites with a ceiling of 1/5th of the amount of the salary payable to the employee was subsequently also added. The expenditure on employees is now removed from S.40(c) and incorporated in S.40A(5).10. The two S.40(c) and 40A(5) are, however, not mutually exclusive. In S.40(c), the proviso, for example, refers to a case where the Director (or a person who had a substantial interest in the company or a relative of the Director or of such person) is also an employee of the company for any period prescribed in the previous year. In that situation, expenditure of the nature referred to in Clauses (i), (ii), (iii) and (iv) of the second proviso to Clause (a) of S.40A(5) shall not be taken into account for the purpose of calculating the ceiling under S.40(c). These excluded items are items such as the value of any travel concession, passage money, payment referred to in S.36(1)(iv) and (v) and expenditure referred to in S.36(1)(ix). These items in S.36 deal with contribution towards provident fund, approved gratuity fund and promotion of family planning. Similarly S.40A(5) does not deal only with employees. It also deals with employee - Directors in the first proviso to sub-s.(5)(a). In the case of employee - Directors both these sections are applicable.11. There have been a number of cases in the various High Court as well as this Court which have dealt with the question: which ceiling applies when a person holds the positions both of a Director and an employee. S.40(c) prescribes an overall ceiling of Rs. 72,000/- on expenditure covered in S.40(c). Under S.40A(5) there is a ceiling of Rs. 60,000/- on expenditure in respect of salary and Rs. 12,000/- in respect of perquisites totalling Rs. 72,000/-. This Court considered this question in the case of Commr. of Income Tax v. Indian Engineering and Commercial Corporation Pvt. Ltd., (1993 AIR SCW 1515). This Court has held (page 728) (of ITR) : (at p. 1619 of AIR) that in the case of Directors who are also employees both these sections will be attracted and the higher of the two ceiling has to be applied. The same view had earlier been taken by the Andhra Pradesh High Court in the case of Commr. of Income Tax v. D. B. R. Mills, (1988 Tax LR 1724), and by the Bombay High Court in the case of Commr. of Income Tax v. Hico Products Pvt. Ltd., (1994 Tax LR 219), where the Bombay High Court emphasised the first proviso to S.40A(5)(a) where an express provision is made that if an employee is also a Director or a person specified in S.40(c) the aggregate of expenditure and allowances specified in S.40(c), sub-clauses (i) and (ii) as well as expenditure and allowances specified in S.40A(5)(a)(i) and (ii) shall not exceed Rs. 72,000/-. In other words, the total emoluments and perquisites of Directors who are also employees will be allowed up to the limit of Rs. 72,000/- as a deductible expenditure. In such cases, therefore, though the Directors are also employees, the separate ceilings prescribed of Rs. 60,000/- and Rs. 12,000/- under S.40A(5)(c) will not apply. The contrary view taken by the Kerala High Court in Travancore Rayons Ltd. v. Commr. of Income-tax, (1986 Tax LR 1151), is, therefore, no longer good law.12. We need not, in this connection, refer to the earlier judgments of the Gujarat High Court which have been discussed at length in the impugned judgment. After the decision of this Court in the case of Commr. of Income Tax v. Indian Engineering and Commercial Corporation, (1993 AIR SCW 1515) (supra), the Gujarat High Court has now, in the case of Commr. of Income Tax v. Synpol Products Pvt. Ltd. (1996) 217 ITR 154, held that in the case of Directors who are also employees, both the provisions will be attracted. The higher of the two ceilings will have to be applied.13. We have now to consider in this light whether the provisions of S.40A(5) (b) will apply for the purpose of calculating the expenditure so covered when the expenditure is incurred in connection with a Director who is also an employee. Under S.40A(5)(b) (i) nothing in Clause (a) which deals with expenditure on salaries and perquisites of an employee shall apply, inter alia , to any expenditure in relation to an employee in respect of any period of his employment outside India. Therefore, for example, in calculating the expenditure on the salary of an employee, the salary paid in respect of his employment outside India will not be taken into account for the purposes of calculating the ceiling. This expenditure is outside the expenditure which is subject to a ceiling limit. Under S.40A(5)(b)(ii) and (iii), similarly certain other expenditures in connection with an employee are also excluded from the ceiling limit. The question is whether such expenditure will be excluded from the ceiling limit of a Director - employee. If for the purpose of ceiling on expenditure, both S.40(c) and 40A(5) are to be applied to employee - Directors, there is no reason why for the purpose of deciding what is to be excluded from the expenditure subject to such ceiling, both the sections cannot be taken into account. Both sections constitute a composite scheme. In the case of employee - Directors, both will operate. After all, the purpose of prescribing a ceiling on expenditure in connection with Directors and employees under S.40(c) and S.40A(5), is to discourage a company or an organisation from paying excessive salaries, remuneration, perquisites etc. to its employees and/or Directors. If it does so, the organisation will not be able to claim the entire expenditure as deduction, but only expenditure up to the ceiling limit. However, from this ceiling limit, certain kinds of expenditure on employees have been excluded - presumably because this kind of an expenditure was considered as reasonable and permissible. One such category of expenditure is expenditure on an employee in respect of his period of employment outside India. Presumably the organisation may have to pay to an employee posted outside India amounts which may be much higher than what he may be entitled to in India in view of the exigencies of the situation, his requirements at the place of posting and the fact that the amount may have to be paid in a foreign country. This expenditure is, therefore, not subject to a ceiling. The same considerations would apply to a Director - employee also who is posted outside the country in the course of his work. A Director - employee does not cease to be an employee nor are his requirements less than those of an employee. Therefore, in his case also what the Act itself has viewed as reasonable allowable expenditure, should be allowed. We do not see any reason to hold that S.40A(5)(b) will not apply to employee - Directors when this Court, in the case of employee - Directors has held, both S.40(c) and 40A(5) as applicable. For determining the ceiling, the higher ceiling has to be taken into account. Similarly, for determining permissible expenditure which is outside the ceiling limit also, both the sections will have to be applied. Therefore, expenditure under S.40A(5)(b) which is excluded from the expenditure on which a ceiling is placed under S.40A(5)(a), will have to be excluded in the case of an employee - Director also. Under the proviso to S.40A(5)(a), in the case of an employee - Director, for the purposes of ceiling, expenditure which has to be taken into account is both under S.40A(5)(a) as well as under S.40(c). For calculating the expenditure and allowances under S.40A(5)(a), one has to exclude the expenditure and allowances referred to in S.40A(5)(b). Therefore, in the case of a Director - employee also while calculating the expenditure and allowances spent on a Director - employee under S.40A(5)(a) and S.40(c), expenditure of the kind referred to in S.40A(5)(b) has to be necessarily excluded.14. A similar view has been taken by the Madras High Court in the case of Commr. of Income Tax v. Lucas TVS Ltd., (1997) 226 ITR 281. The Madras High Court was concerned with foreign technicians working under a contract in India and falling under S.10(6) (vii-a). Under S.40A(5)(ii) expenditure incurred in relation to such an employee is to be excluded from the expenditure for which a ceiling is prescribed under S.40A(5)(a). The Madras High Court held that in the case of a Director cum employee also, if he is covered by S.10(6)(vii-a), such expenditure would be excluded from the ceiling limit prescribed under S.40(c) as well as S.40A(5)(a). The Madras High Court has rightly observed (page 291) that there is nothing to suggest that the remuneration which is excluded from the scope of consideration in S.40A(5)(a) of the Act by virtue of S.40A(5)(b) of the Act, should be taken into consideration for the purpose of S.40(c) of the Act. Both S.40(c) and 40A(5) have to be read together in determining the ceiling prescribed under S.40A(5) of the Act which includes ceiling prescribed for Director - employees. Also if certain items go out of reckoning in S.40A(5) of the Act, then on the principle of harmonious construction, the same will have to go out of reckoning in calculating a common ceiling prescribed for Director - employees both under S.40(c) and 40A(5)(a) proviso.	0	4,378	2,177	### Instruction: Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case. ### Input: in this connection, refer to the earlier judgments of the Gujarat High Court which have been discussed at length in the impugned judgment. After the decision of this Court in the case of Commr. of Income Tax v. Indian Engineering and Commercial Corporation, (1993 AIR SCW 1515) (supra), the Gujarat High Court has now, in the case of Commr. of Income Tax v. Synpol Products Pvt. Ltd. (1996) 217 ITR 154, held that in the case of Directors who are also employees, both the provisions will be attracted. The higher of the two ceilings will have to be applied.13. We have now to consider in this light whether the provisions of S.40A(5) (b) will apply for the purpose of calculating the expenditure so covered when the expenditure is incurred in connection with a Director who is also an employee. Under S.40A(5)(b) (i) nothing in Clause (a) which deals with expenditure on salaries and perquisites of an employee shall apply, inter alia , to any expenditure in relation to an employee in respect of any period of his employment outside India. Therefore, for example, in calculating the expenditure on the salary of an employee, the salary paid in respect of his employment outside India will not be taken into account for the purposes of calculating the ceiling. This expenditure is outside the expenditure which is subject to a ceiling limit. Under S.40A(5)(b)(ii) and (iii), similarly certain other expenditures in connection with an employee are also excluded from the ceiling limit. The question is whether such expenditure will be excluded from the ceiling limit of a Director - employee. If for the purpose of ceiling on expenditure, both S.40(c) and 40A(5) are to be applied to employee - Directors, there is no reason why for the purpose of deciding what is to be excluded from the expenditure subject to such ceiling, both the sections cannot be taken into account. Both sections constitute a composite scheme. In the case of employee - Directors, both will operate. After all, the purpose of prescribing a ceiling on expenditure in connection with Directors and employees under S.40(c) and S.40A(5), is to discourage a company or an organisation from paying excessive salaries, remuneration, perquisites etc. to its employees and/or Directors. If it does so, the organisation will not be able to claim the entire expenditure as deduction, but only expenditure up to the ceiling limit. However, from this ceiling limit, certain kinds of expenditure on employees have been excluded - presumably because this kind of an expenditure was considered as reasonable and permissible. One such category of expenditure is expenditure on an employee in respect of his period of employment outside India. Presumably the organisation may have to pay to an employee posted outside India amounts which may be much higher than what he may be entitled to in India in view of the exigencies of the situation, his requirements at the place of posting and the fact that the amount may have to be paid in a foreign country. This expenditure is, therefore, not subject to a ceiling. The same considerations would apply to a Director - employee also who is posted outside the country in the course of his work. A Director - employee does not cease to be an employee nor are his requirements less than those of an employee. Therefore, in his case also what the Act itself has viewed as reasonable allowable expenditure, should be allowed. We do not see any reason to hold that S.40A(5)(b) will not apply to employee - Directors when this Court, in the case of employee - Directors has held, both S.40(c) and 40A(5) as applicable. For determining the ceiling, the higher ceiling has to be taken into account. Similarly, for determining permissible expenditure which is outside the ceiling limit also, both the sections will have to be applied. Therefore, expenditure under S.40A(5)(b) which is excluded from the expenditure on which a ceiling is placed under S.40A(5)(a), will have to be excluded in the case of an employee - Director also. Under the proviso to S.40A(5)(a), in the case of an employee - Director, for the purposes of ceiling, expenditure which has to be taken into account is both under S.40A(5)(a) as well as under S.40(c). For calculating the expenditure and allowances under S.40A(5)(a), one has to exclude the expenditure and allowances referred to in S.40A(5)(b). Therefore, in the case of a Director - employee also while calculating the expenditure and allowances spent on a Director - employee under S.40A(5)(a) and S.40(c), expenditure of the kind referred to in S.40A(5)(b) has to be necessarily excluded.14. A similar view has been taken by the Madras High Court in the case of Commr. of Income Tax v. Lucas TVS Ltd., (1997) 226 ITR 281. The Madras High Court was concerned with foreign technicians working under a contract in India and falling under S.10(6) (vii-a). Under S.40A(5)(ii) expenditure incurred in relation to such an employee is to be excluded from the expenditure for which a ceiling is prescribed under S.40A(5)(a). The Madras High Court held that in the case of a Director cum employee also, if he is covered by S.10(6)(vii-a), such expenditure would be excluded from the ceiling limit prescribed under S.40(c) as well as S.40A(5)(a). The Madras High Court has rightly observed (page 291) that there is nothing to suggest that the remuneration which is excluded from the scope of consideration in S.40A(5)(a) of the Act by virtue of S.40A(5)(b) of the Act, should be taken into consideration for the purpose of S.40(c) of the Act. Both S.40(c) and 40A(5) have to be read together in determining the ceiling prescribed under S.40A(5) of the Act which includes ceiling prescribed for Director - employees. Also if certain items go out of reckoning in S.40A(5) of the Act, then on the principle of harmonious construction, the same will have to go out of reckoning in calculating a common ceiling prescribed for Director - employees both under S.40(c) and 40A(5)(a) proviso. ### Response: 0 ### Explanation: in this connection, refer to the earlier judgments of the Gujarat High Court which have been discussed at length in the impugned judgment. After the decision of this Court in the case of Commr. of Income Tax v. Indian Engineering and Commercial Corporation, (1993 AIR SCW 1515) (supra), the Gujarat High Court has now, in the case of Commr. of Income Tax v. Synpol Products Pvt. Ltd. (1996) 217 ITR 154, held that in the case of Directors who are also employees, both the provisions will be attracted. The higher of the two ceilings will have to be applied.13. We have now to consider in this light whether the provisions of S.40A(5) (b) will apply for the purpose of calculating the expenditure so covered when the expenditure is incurred in connection with a Director who is also an employee. Under S.40A(5)(b) (i) nothing in Clause (a) which deals with expenditure on salaries and perquisites of an employee shall apply, inter alia , to any expenditure in relation to an employee in respect of any period of his employment outside India. Therefore, for example, in calculating the expenditure on the salary of an employee, the salary paid in respect of his employment outside India will not be taken into account for the purposes of calculating the ceiling. This expenditure is outside the expenditure which is subject to a ceiling limit. Under S.40A(5)(b)(ii) and (iii), similarly certain other expenditures in connection with an employee are also excluded from the ceiling limit. The question is whether such expenditure will be excluded from the ceiling limit of a Director - employee. If for the purpose of ceiling on expenditure, both S.40(c) and 40A(5) are to be applied to employee - Directors, there is no reason why for the purpose of deciding what is to be excluded from the expenditure subject to such ceiling, both the sections cannot be taken into account. Both sections constitute a composite scheme. In the case of employee - Directors, both will operate. After all, the purpose of prescribing a ceiling on expenditure in connection with Directors and employees under S.40(c) and S.40A(5), is to discourage a company or an organisation from paying excessive salaries, remuneration, perquisites etc. to its employees and/or Directors. If it does so, the organisation will not be able to claim the entire expenditure as deduction, but only expenditure up to the ceiling limit. However, from this ceiling limit, certain kinds of expenditure on employees have been excluded - presumably because this kind of an expenditure was considered as reasonable and permissible. One such category of expenditure is expenditure on an employee in respect of his period of employment outside India. Presumably the organisation may have to pay to an employee posted outside India amounts which may be much higher than what he may be entitled to in India in view of the exigencies of the situation, his requirements at the place of posting and the fact that the amount may have to be paid in a foreign country. This expenditure is, therefore, not subject to a ceiling. The same considerations would apply to a Director - employee also who is posted outside the country in the course of his work. A Director - employee does not cease to be an employee nor are his requirements less than those of an employee. Therefore, in his case also what the Act itself has viewed as reasonable allowable expenditure, should be allowed. We do not see any reason to hold that S.40A(5)(b) will not apply to employee - Directors when this Court, in the case of employee - Directors has held, both S.40(c) and 40A(5) as applicable. For determining the ceiling, the higher ceiling has to be taken into account. Similarly, for determining permissible expenditure which is outside the ceiling limit also, both the sections will have to be applied. Therefore, expenditure under S.40A(5)(b) which is excluded from the expenditure on which a ceiling is placed under S.40A(5)(a), will have to be excluded in the case of an employee - Director also. Under the proviso to S.40A(5)(a), in the case of an employee - Director, for the purposes of ceiling, expenditure which has to be taken into account is both under S.40A(5)(a) as well as under S.40(c). For calculating the expenditure and allowances under S.40A(5)(a), one has to exclude the expenditure and allowances referred to in S.40A(5)(b). Therefore, in the case of a Director - employee also while calculating the expenditure and allowances spent on a Director - employee under S.40A(5)(a) and S.40(c), expenditure of the kind referred to in S.40A(5)(b) has to be necessarily excluded.14. A similar view has been taken by the Madras High Court in the case of Commr. of Income Tax v. Lucas TVS Ltd., (1997) 226 ITR 281. The Madras High Court was concerned with foreign technicians working under a contract in India and falling under S.10(6) (vii-a). Under S.40A(5)(ii) expenditure incurred in relation to such an employee is to be excluded from the expenditure for which a ceiling is prescribed under S.40A(5)(a). The Madras High Court held that in the case of a Director cum employee also, if he is covered by S.10(6)(vii-a), such expenditure would be excluded from the ceiling limit prescribed under S.40(c) as well as S.40A(5)(a). The Madras High Court has rightly observed (page 291) that there is nothing to suggest that the remuneration which is excluded from the scope of consideration in S.40A(5)(a) of the Act by virtue of S.40A(5)(b) of the Act, should be taken into consideration for the purpose of S.40(c) of the Act. Both S.40(c) and 40A(5) have to be read together in determining the ceiling prescribed under S.40A(5) of the Act which includes ceiling prescribed for Director - employees. Also if certain items go out of reckoning in S.40A(5) of the Act, then on the principle of harmonious construction, the same will have to go out of reckoning in calculating a common ceiling prescribed for Director - employees both under S.40(c) and 40A(5)(a) proviso.
PIONEER URBAN LAND AND INFRASTRUCTURE LTD Vs. GOVINDAN RAGHAVAN	in Clause 11.5, then he shall not be entitled to terminate the Agreement thereafter, and shall be bound by the provisions of the Agreement. 6.6. Section 2 (r) of the Consumer Protection Act, 1986 defines ‘unfair trade practices? in the following words : ?‘unfair trade practice? means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice …?, and includes any of the practices enumerated therein. The provision is illustrative, and not exhaustive. In Central Inland Water Transport Corporation Limited and Ors. v. Brojo Nath Ganguly and Ors., (1986) 3 SCC 156 this Court held that : ?89. … Our judges are bound by their oath to ‘uphold the Constitution and the laws?. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and equal protection of the laws. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not. apply where both parties are businessmen and the contract is a commercial transaction. … … These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.? (emphasis supplied) 6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder. 7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer?s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms. 8. We also reject the submission made by the Appellant – Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was in operation. In Bangalore Development Authority v. Syndicate Bank, (2007) 6 SCC 711 a Coordinate Bench of this Court held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till the date of refund. 8.1. In the present case, the National Commission has passed an equitable Order. The Commission has not awarded any Interest for the period during which the Order of stay of cancellation of the allotment was in operation on the request of the Respondent – Flat Purchaser. The National Commission has rightly awarded Interest @10.7% S.I. p.a. by applying Rule 15 of the Haryana Real. Estate (Regulation And Development) Rules, 2017 from the date of each installment till 05.02.2017 i.e. till the date after which the Order of stay of cancellation of the allotment was passed; and thereafter, from the date of the Commission?s final Order till the date on which the amount is refunded with Interest. 9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.	0[ds]7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer?s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms.We also reject the submission made by the Appellant – Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was inIn the present case, the National Commission has passed an equitable Order. The Commission has not awarded any Interest for the period during which the Order of stay of cancellation of the allotment was in operation on the request of the Respondent – FlatNational Commission has rightly awarded Interest @10.7% S.I. p.a. by applying Rule 15 of the Haryana Real. Estate (Regulation And Development) Rules, 2017 from the date of each installment till 05.02.2017 i.e. till the date after which the Order of stay of cancellation of the allotment was passed; and thereafter, from the date of the Commission?s final Order till the date on which the amount is refunded with Interest.We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.	0	4,585	420	### Instruction: Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction. ### Input: in Clause 11.5, then he shall not be entitled to terminate the Agreement thereafter, and shall be bound by the provisions of the Agreement. 6.6. Section 2 (r) of the Consumer Protection Act, 1986 defines ‘unfair trade practices? in the following words : ?‘unfair trade practice? means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice …?, and includes any of the practices enumerated therein. The provision is illustrative, and not exhaustive. In Central Inland Water Transport Corporation Limited and Ors. v. Brojo Nath Ganguly and Ors., (1986) 3 SCC 156 this Court held that : ?89. … Our judges are bound by their oath to ‘uphold the Constitution and the laws?. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and equal protection of the laws. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not. apply where both parties are businessmen and the contract is a commercial transaction. … … These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.? (emphasis supplied) 6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder. 7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer?s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms. 8. We also reject the submission made by the Appellant – Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was in operation. In Bangalore Development Authority v. Syndicate Bank, (2007) 6 SCC 711 a Coordinate Bench of this Court held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interest thereon from the date of payment till the date of refund. 8.1. In the present case, the National Commission has passed an equitable Order. The Commission has not awarded any Interest for the period during which the Order of stay of cancellation of the allotment was in operation on the request of the Respondent – Flat Purchaser. The National Commission has rightly awarded Interest @10.7% S.I. p.a. by applying Rule 15 of the Haryana Real. Estate (Regulation And Development) Rules, 2017 from the date of each installment till 05.02.2017 i.e. till the date after which the Order of stay of cancellation of the allotment was passed; and thereafter, from the date of the Commission?s final Order till the date on which the amount is refunded with Interest. 9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest. ### Response: 0 ### Explanation: 7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer?s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms.We also reject the submission made by the Appellant – Builder that the National Commission was not justified in awarding Interest @10.7% S.I. p.a. for the period commencing from the date of payment of each installment, till the date on which the amount was paid, excluding only the period during which the stay of cancellation of the allotment was inIn the present case, the National Commission has passed an equitable Order. The Commission has not awarded any Interest for the period during which the Order of stay of cancellation of the allotment was in operation on the request of the Respondent – FlatNational Commission has rightly awarded Interest @10.7% S.I. p.a. by applying Rule 15 of the Haryana Real. Estate (Regulation And Development) Rules, 2017 from the date of each installment till 05.02.2017 i.e. till the date after which the Order of stay of cancellation of the allotment was passed; and thereafter, from the date of the Commission?s final Order till the date on which the amount is refunded with Interest.We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.
Harpal Singh Chauhan and Othersv. State of Uttar Pradesh,. Sarvesh Sharma and Others Vs. State of Uttar Pradesh	the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel. The expressions panel of names of persons, do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion over such names. The statutory mandate ought to have been complied with by the District Magistrate and the Sessions Judge in its true spirit. In the facts of the present case, no such panel appears to have been prepared by the District Magistrate in terms of sub-section (4) of Section 24. As Section 24 of the Code does not speak about extension or renewal of the term of the person as appointed, the same procedure, as provided under sub-section (4) of Section 24 of the Code, has to be followed. In the present case the District Magistrate, instead of having a effective and real consultation with the District and Sessions Judge, Simply made some vague and general comments against the appellants, which cannot be held to be the compliance of the requirement of sub-section (4) of Section 24 15. In the case of Kumari Shrilekha Vidyarthi (supra), this Court was not concerned with the question regarding the extension/renewal of the terms of the Government Counsel. The primary question which was examined by this Court in that case, was as to whether it was open to the State Government by the impugned circular dated February 6, 1990, to terminate appointments of all the Government Counsel in the different districts of the State, by an omnibus order, even though, those appointment were all individual, It was held that any such exercise of power by the State Government cannot satisfy the test of Article 14 of the Constitution and, as such, was unreasonable and arbitrary. In that connection reference was made to the manual aforesaid and it was pointed out that the said Manual has laid down detailed procedure for appointment, termination and renewal of the tenure of the District Government Counsel. It was pointed out, that different paragraphs of the Manual require, first to consider the existing incumbents for extension and renewal of their tenure and to take steps for fresh appointment in their place, if the existing incumbents were not found suitable in comparison to more suitable persons available for appointment at the time of the renewal 16. As already mentioned above, S. 24 of the Code does not speak about the extension or renewal of the term of the Public Prosecutor or Additional Public Prosecutor. But after the expiry of the term of the appointment of persons concerned, it requires the same statutory exercise, in which either new persons are appointed or those who have been working as Public Prosecutor or Additional Public Prosecutor, are again appointed by the State Government, for a fresh term. The procedure prescribed in the Manual - to the extent - it is not in conflict with the provisions of Section 24, shall be deemed to be supplementing the statutory provisions. But merely because there is a provision for extension or renewal of the term, the same cannot be claimed as a matter of right 17. It is true that none of the appellants can claim, as a matter of right, that their terms should have been extended or that they should be appointed against the existing vacancies, but, certainly, they can make a grievance that either they have not received the fair treatment by the appointing authority or that the procedure prescribed in the Code and in the Manual aforesaid, have not been followed. While exercising the power of judicial review even in respect of appointment of members of the legal profession as District Government Counsel, the Court can examine whether there was any infirmity in the decision making process. Of course while doing so, the Court cannot substitute its own judgment over the final decision taken in respect of selection of persons for those posts. It was said in the case of Chief constable of the North Wales Police v. Evans, 1982 3 All The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court. * 18. In the facts of the present case, the procedure prescribed by Section 24 of the Code have not been followed by the District Magistrate. There is nothing on the records of the case to show that any panel, as required by sub-section (4) of Section 24, was prepared by the District Magistrate in consultation with the District & Sessions Judge. The District Magistrate simply made some general comment in respect of the appellants, when the District & Sessions Judge had put them in List A of his recommendation. According to us, this shall not amount to either the compliance of sub-section (4) of Section 24 of the Code or Para 7.06 (2) of the Manual. It appears there has been no effective or real consultation between the Sessions Judge and the District Magistrate for preparation of the panel, as contemplated by sub-section (4) of Section 24 of the Code 19. The members of the legal profession are required to maintain high standard of legal ethics and dignity of profession. They are not supposed to solicit work or seek mandamus from courts in matters of professional engagements. We have been persuaded to interfere in these matters to a limited extend, as we are satisfied that there is patent infraction of the statutory provisions of the Code. As we are of the view that the District Magistrate has not performed his statutory duty as enjoined by law, the appeals of the appellants have to be allowed	1[ds]10. In the present case, it appears to be an admitted position that appointments of the appellants as Assistant District Government Counsel (Criminal) is governed by Section 24 of the Code, as well as different paragraphs of Chapter VII of the Manual. It was not disputed on behalf of the State, that appellants shall be deemed to be Additional Public Prosecutors within the meaning of Section 24 of the Code, although in the order of appointment they have been designated as Assistant District Government Counsel (Criminal). The procedure prescribed in the Manual can be observed and followed as supplemental to the provisions of Section 24 of the Code. Needless to say that, if there is any conflict, then Section 24 of the Code being statutory in nature will override the procedure prescribed in the manual. The relevant part of Section 24 is as such :-(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the districtProvided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor as the case may be for another district(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutor for the district(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears on the panel of names prepared by the District Magistrate under sub-section (4)11. The Code prescribes the procedure for appointment of Public Prosecutor and Additional Public Prosecutor, for the High Court and the District Courts by the State Government. The framers of the Code, were conscious of the fact, that the Public Prosecutor and the Additional Public Prosecutor have an important role, while prosecuting, on behalf of the State, accused persons, who are alleged to have committed one or the other offence. Because of that, provisions have been made for their selection in the Code. It is for the Sessions Judge to assess the merit and professional conduct of the persons recommended for such appointments and the District Magistrate to express his opinion on the suitability of persons so recommended, from the administrative point to view. Sub-section (5) of Section 24 provides that no person shall be appointed by the State Government as the Public Prosecutor or as an Additional Public Prosecutor unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). The aforesaid section requires an effective and real consultation between the Sessions Judge and the District Magistrate, about the merit and suitability of person to be appointed as Public Prosecutor or as an Additional Public Prosecutor. That is why it requires, a panel of names of person, to be prepared by the District Magistrate in consultation with the Sessions Judge. The same is the position so far the Manual is concerned. It enumerates in detail, how for purpose of initial appointment, extension or renewal, the District Judge who is also the Sessions Judge, is to give his estimate of the quality of the work of the Counsel from the judicial stand-point and the District Officer i.e. the District Magistrate is to report about the suitability, of such person, from administrative point of view13. In the present case the District and Sessions Judge strongly recommended extension for the appellants, saying that so far their work and conduct were concerned, the same had been approved. But the District Magistrate, simply said that on the inquiry at his level reputation, professional work, behavior and conduct of the appellants as Government counsel was not found in accordance with the public interest. The quality of the Counsels work has to be judged and assessed by the District & Sessions Judge. The District Magistrate is required to consider the suitability of such person, from the administrative point of view. According to us, in view of the strong recommendation about the quality of the appellants, professional work, the District Magistrate should have applied his mind in consultation with the Sessions Judge, in respect of each individual case, instead of making a general and identical comment against all the appellants14. Apart from the mandate of sub-section (4) of Section 24 is that the District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons. Sub-section (5) of Section 24 prescribes a statutory bar that no person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the District unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). When sub-section (4) and sub-section (5) of Section 24 of the Code, speak about preparation of a panel, out of which appointments against the posts of Prosecutor or Additional Public Prosecutor have to be made, then the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel. The expressions panel of names of persons, do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion over such names. The statutory mandate ought to have been complied with by the District Magistrate and the Sessions Judge in its true spirit. In the facts of the present case, no such panel appears to have been prepared by the District Magistrate in terms of sub-section (4) of Section 24. As Section 24 of the Code does not speak about extension or renewal of the term of the person as appointed, the same procedure, as provided under sub-section (4) of Section 24 of the Code, has to be followed. In the present case the District Magistrate, instead of having a effective and real consultation with the District and Sessions Judge, Simply made some vague and general comments against the appellants, which cannot be held to be the compliance of the requirement of sub-section (4) of Section 2415. In the case of Kumari Shrilekha Vidyarthi (supra), this Court was not concerned with the question regarding the extension/renewal of the terms of the Government Counsel. The primary question which was examined by this Court in that case, was as to whether it was open to the State Government by the impugned circular dated February 6, 1990, to terminate appointments of all the Government Counsel in the different districts of the State, by an omnibus order, even though, those appointment were all individual, It was held that any such exercise of power by the State Government cannot satisfy the test of Article 14 of the Constitution and, as such, was unreasonable and arbitrary. In that connection reference was made to the manual aforesaid and it was pointed out that the said Manual has laid down detailed procedure for appointment, termination and renewal of the tenure of the District Government Counsel. It was pointed out, that different paragraphs of the Manual require, first to consider the existing incumbents for extension and renewal of their tenure and to take steps for fresh appointment in their place, if the existing incumbents were not found suitable in comparison to more suitable persons available for appointment at the time of the renewal16. As already mentioned above, S. 24 of the Code does not speak about the extension or renewal of the term of the Public Prosecutor or Additional Public Prosecutor. But after the expiry of the term of the appointment of persons concerned, it requires the same statutory exercise, in which either new persons are appointed or those who have been working as Public Prosecutor or Additional Public Prosecutor, are again appointed by the State Government, for a fresh term. The procedure prescribed in the Manual - to the extent - it is not in conflict with the provisions of Section 24, shall be deemed to be supplementing the statutory provisions. But merely because there is a provision for extension or renewal of the term, the same cannot be claimed as a matter of right17. It is true that none of the appellants can claim, as a matter of right, that their terms should have been extended or that they should be appointed against the existing vacancies, but, certainly, they can make a grievance that either they have not received the fair treatment by the appointing authority or that the procedure prescribed in the Code and in the Manual aforesaid, have not been followed. While exercising the power of judicial review even in respect of appointment of members of the legal profession as District Government Counsel, the Court can examine whether there was any infirmity in the decision making process. Of course while doing so, the Court cannot substitute its own judgment over the final decision taken in respect of selection of persons for those posts. It was said in the case of Chief constable of theNorth Wales Police v. Evans, 1982 3 AllThe purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court. *18. In the facts of the present case, the procedure prescribed by Section 24 of the Code have not been followed by the District Magistrate. There is nothing on the records of the case to show that any panel, as required by sub-section (4) of Section 24, was prepared by the District Magistrate in consultation with the District & Sessions Judge. The District Magistrate simply made some general comment in respect of the appellants, when the District & Sessions Judge had put them in List A of his recommendation. According to us, this shall not amount to either the compliance of sub-section (4) of Section 24 of the Code or Para 7.06 (2) of the Manual. It appears there has been no effective or real consultation between the Sessions Judge and the District Magistrate for preparation of the panel, as contemplated by sub-section (4) of Section 24 of the Code	1	4,484	1,931	### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel. The expressions panel of names of persons, do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion over such names. The statutory mandate ought to have been complied with by the District Magistrate and the Sessions Judge in its true spirit. In the facts of the present case, no such panel appears to have been prepared by the District Magistrate in terms of sub-section (4) of Section 24. As Section 24 of the Code does not speak about extension or renewal of the term of the person as appointed, the same procedure, as provided under sub-section (4) of Section 24 of the Code, has to be followed. In the present case the District Magistrate, instead of having a effective and real consultation with the District and Sessions Judge, Simply made some vague and general comments against the appellants, which cannot be held to be the compliance of the requirement of sub-section (4) of Section 24 15. In the case of Kumari Shrilekha Vidyarthi (supra), this Court was not concerned with the question regarding the extension/renewal of the terms of the Government Counsel. The primary question which was examined by this Court in that case, was as to whether it was open to the State Government by the impugned circular dated February 6, 1990, to terminate appointments of all the Government Counsel in the different districts of the State, by an omnibus order, even though, those appointment were all individual, It was held that any such exercise of power by the State Government cannot satisfy the test of Article 14 of the Constitution and, as such, was unreasonable and arbitrary. In that connection reference was made to the manual aforesaid and it was pointed out that the said Manual has laid down detailed procedure for appointment, termination and renewal of the tenure of the District Government Counsel. It was pointed out, that different paragraphs of the Manual require, first to consider the existing incumbents for extension and renewal of their tenure and to take steps for fresh appointment in their place, if the existing incumbents were not found suitable in comparison to more suitable persons available for appointment at the time of the renewal 16. As already mentioned above, S. 24 of the Code does not speak about the extension or renewal of the term of the Public Prosecutor or Additional Public Prosecutor. But after the expiry of the term of the appointment of persons concerned, it requires the same statutory exercise, in which either new persons are appointed or those who have been working as Public Prosecutor or Additional Public Prosecutor, are again appointed by the State Government, for a fresh term. The procedure prescribed in the Manual - to the extent - it is not in conflict with the provisions of Section 24, shall be deemed to be supplementing the statutory provisions. But merely because there is a provision for extension or renewal of the term, the same cannot be claimed as a matter of right 17. It is true that none of the appellants can claim, as a matter of right, that their terms should have been extended or that they should be appointed against the existing vacancies, but, certainly, they can make a grievance that either they have not received the fair treatment by the appointing authority or that the procedure prescribed in the Code and in the Manual aforesaid, have not been followed. While exercising the power of judicial review even in respect of appointment of members of the legal profession as District Government Counsel, the Court can examine whether there was any infirmity in the decision making process. Of course while doing so, the Court cannot substitute its own judgment over the final decision taken in respect of selection of persons for those posts. It was said in the case of Chief constable of the North Wales Police v. Evans, 1982 3 All The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court. * 18. In the facts of the present case, the procedure prescribed by Section 24 of the Code have not been followed by the District Magistrate. There is nothing on the records of the case to show that any panel, as required by sub-section (4) of Section 24, was prepared by the District Magistrate in consultation with the District & Sessions Judge. The District Magistrate simply made some general comment in respect of the appellants, when the District & Sessions Judge had put them in List A of his recommendation. According to us, this shall not amount to either the compliance of sub-section (4) of Section 24 of the Code or Para 7.06 (2) of the Manual. It appears there has been no effective or real consultation between the Sessions Judge and the District Magistrate for preparation of the panel, as contemplated by sub-section (4) of Section 24 of the Code 19. The members of the legal profession are required to maintain high standard of legal ethics and dignity of profession. They are not supposed to solicit work or seek mandamus from courts in matters of professional engagements. We have been persuaded to interfere in these matters to a limited extend, as we are satisfied that there is patent infraction of the statutory provisions of the Code. As we are of the view that the District Magistrate has not performed his statutory duty as enjoined by law, the appeals of the appellants have to be allowed ### Response: 1 ### Explanation: shall, in consultation with the Sessions Judge, prepare a panel of names of persons. Sub-section (5) of Section 24 prescribes a statutory bar that no person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the District unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). When sub-section (4) and sub-section (5) of Section 24 of the Code, speak about preparation of a panel, out of which appointments against the posts of Prosecutor or Additional Public Prosecutor have to be made, then the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel. The expressions panel of names of persons, do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion over such names. The statutory mandate ought to have been complied with by the District Magistrate and the Sessions Judge in its true spirit. In the facts of the present case, no such panel appears to have been prepared by the District Magistrate in terms of sub-section (4) of Section 24. As Section 24 of the Code does not speak about extension or renewal of the term of the person as appointed, the same procedure, as provided under sub-section (4) of Section 24 of the Code, has to be followed. In the present case the District Magistrate, instead of having a effective and real consultation with the District and Sessions Judge, Simply made some vague and general comments against the appellants, which cannot be held to be the compliance of the requirement of sub-section (4) of Section 2415. In the case of Kumari Shrilekha Vidyarthi (supra), this Court was not concerned with the question regarding the extension/renewal of the terms of the Government Counsel. The primary question which was examined by this Court in that case, was as to whether it was open to the State Government by the impugned circular dated February 6, 1990, to terminate appointments of all the Government Counsel in the different districts of the State, by an omnibus order, even though, those appointment were all individual, It was held that any such exercise of power by the State Government cannot satisfy the test of Article 14 of the Constitution and, as such, was unreasonable and arbitrary. In that connection reference was made to the manual aforesaid and it was pointed out that the said Manual has laid down detailed procedure for appointment, termination and renewal of the tenure of the District Government Counsel. It was pointed out, that different paragraphs of the Manual require, first to consider the existing incumbents for extension and renewal of their tenure and to take steps for fresh appointment in their place, if the existing incumbents were not found suitable in comparison to more suitable persons available for appointment at the time of the renewal16. As already mentioned above, S. 24 of the Code does not speak about the extension or renewal of the term of the Public Prosecutor or Additional Public Prosecutor. But after the expiry of the term of the appointment of persons concerned, it requires the same statutory exercise, in which either new persons are appointed or those who have been working as Public Prosecutor or Additional Public Prosecutor, are again appointed by the State Government, for a fresh term. The procedure prescribed in the Manual - to the extent - it is not in conflict with the provisions of Section 24, shall be deemed to be supplementing the statutory provisions. But merely because there is a provision for extension or renewal of the term, the same cannot be claimed as a matter of right17. It is true that none of the appellants can claim, as a matter of right, that their terms should have been extended or that they should be appointed against the existing vacancies, but, certainly, they can make a grievance that either they have not received the fair treatment by the appointing authority or that the procedure prescribed in the Code and in the Manual aforesaid, have not been followed. While exercising the power of judicial review even in respect of appointment of members of the legal profession as District Government Counsel, the Court can examine whether there was any infirmity in the decision making process. Of course while doing so, the Court cannot substitute its own judgment over the final decision taken in respect of selection of persons for those posts. It was said in the case of Chief constable of theNorth Wales Police v. Evans, 1982 3 AllThe purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court. *18. In the facts of the present case, the procedure prescribed by Section 24 of the Code have not been followed by the District Magistrate. There is nothing on the records of the case to show that any panel, as required by sub-section (4) of Section 24, was prepared by the District Magistrate in consultation with the District & Sessions Judge. The District Magistrate simply made some general comment in respect of the appellants, when the District & Sessions Judge had put them in List A of his recommendation. According to us, this shall not amount to either the compliance of sub-section (4) of Section 24 of the Code or Para 7.06 (2) of the Manual. It appears there has been no effective or real consultation between the Sessions Judge and the District Magistrate for preparation of the panel, as contemplated by sub-section (4) of Section 24 of the Code
Bokaro & Ramgur Ltd Vs. State of Bihar & Another	of 99 years. On April 7,1949 the Raja settled his reversionary interest in the property for the benefit of a Trust under a registered deed of settlement. The estate of Ramgarh was notified under S. 3(1) of the Bihar Land Reforms Act (Act 1 of 1950) for being taken over by the Government of Bihar and in consequence the estate statutorily vested in the State on and from November 3 1951. Section 4(h) of the Bihar Land Reforms Act enacts:"The Collector shall have power to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or the transfer of any kind of interest in any building used primarily as office or kutchery for the collection of rent of such estate or tenure or part thereof made at any time after the first day of January 1946 and if he is satisfied that such transfer was made with the object of defeating any provisions of this Act or causing loss, to the State or obtaining higher compensation thereunder the Collector may, after giving reasonable notice to the parties concerned to appear and be heard and with the previous sanction of the State Government, annul such transfer dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable."It will be noticed that the lease in favour of the Rajas younger brother was dated January 16, 1948 and therefore was well within the period specified in the provision. It was the contention of the State that the buildings on the property which were the subject of the lease dated January 16, 1948 were being used by the Raj primarily as an office or kutcheri for the collection of rent - a fact which however was disputed and is a subject of contest in the proceedings now sought to be quashed. On November 27, 1955 a notice was issued to Basant Narain to show cause why the lease executed in his favour on January 16, 1948 should not be set aside under the power conferred upon the Collector by S.4(h). Basant Narain submitted his objections and stated that the leased properties were not covered by S.4(h). Before however this enquiry was completed Basant Narain surrendered his lease- hold interest to the assignee of the reversion, viz, the Trust, by a registered deed dated January 1, 1957. Subsequently on June 1, 1959 the Trust which thus became entitled to the entire interest in the property, in its turn leased the property to one Bansidhar and about a month later, on July 3, 1959 Bansidhar assigned his leasehold interest in the property to the petitioner company and that is how the petitioner came upon the scene.3. On November 13, 1959 the Collector passed an order cancelling the lease. The petitioner who laid claim to a title to the property under the assignment in its favour dated July 3, 1959, applied to the Collector to set aside his order bath on the merits and also on the ground that the order of November 13, 1959 had been passed to its prejudice without giving it an opportunity to make its objections even though by that date it had obtained title to the property and therefore a locus standi to be heard. We are not now concerned with the correctness or otherwise of the contention raised by the petitioner, because the State of Bihar set aside the order of the Collector and directed a re-enquiry and in this re-enquiry the petitioner filed a petition before the Collector on August 9, 1960 setting out its case.4. It was during the progress of this last enquiry that the petitioner moved this Court by the present petition for the reliefs which we have already set out. Pausing here it is necessary to add that the constitutional validity of S. 4(h) is not challenged and the case therefore turns on whether the property satisfies the conditions on which the section is attracted. The relief sought in this petition is based on two allegations:(1) that the land on which the buildings stand is raiyati land and therefore could not be taken possession of by the State under the Bihar Land Reforms Act, and (2) that the buildings standing thereon were previously used for the residential purpose of the Raja and his family and not as a kutcheri. The enquiry has been proceeding before the Collector in regard to these two points and it may be mentioned that when the petitioner applied to this Court for a stay of proceedings before the Collector, this Court passed an order permitting the enquiry to continue, though it stayed the passing of any order by the State Government. It will thus be seen that if the contention of the State is correct as regards the tenure of the property and as regards the purpose for which the buildings were used, the title of the State to the property would be made out and the petitioner could have no legitimate grievance. If on the other hand, the petitioner establishes in the enquiry the case that it has put forward in the petition it is bound to succeed. Thus the question whether the petitioner has any right to the property which it claims depends wholly on questions of fact which are plainly within the jurisdiction of the authorities constituted under the Bihar Land Reforms Act. Before a party can complain of an infringement of his fundamental right to hold property he must establish that he has title to that property and if his title itself is in dispute and is the subject of adjudication in proceedings legally constituted, he cannot obviously put forward any claim based on his title until as a result of that enquiry he is able to establish his title. It is only thereafter that the question whether his rights in or to that property have been improperly or illegally infringed could arise.	0[ds]Before a party can complain of an infringement of his fundamental right to hold property he must establish that he has title to that property and if his title itself is in dispute and is the subject of adjudication in proceedings legally constituted, he cannot obviously put forward any claim based on his title until as a result of that enquiry he is able to establish his title. It is only thereafter that the question whether his rights in or to that property have been improperly or illegally infringed could arise.	0	1,296	99	### 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: of 99 years. On April 7,1949 the Raja settled his reversionary interest in the property for the benefit of a Trust under a registered deed of settlement. The estate of Ramgarh was notified under S. 3(1) of the Bihar Land Reforms Act (Act 1 of 1950) for being taken over by the Government of Bihar and in consequence the estate statutorily vested in the State on and from November 3 1951. Section 4(h) of the Bihar Land Reforms Act enacts:"The Collector shall have power to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or the transfer of any kind of interest in any building used primarily as office or kutchery for the collection of rent of such estate or tenure or part thereof made at any time after the first day of January 1946 and if he is satisfied that such transfer was made with the object of defeating any provisions of this Act or causing loss, to the State or obtaining higher compensation thereunder the Collector may, after giving reasonable notice to the parties concerned to appear and be heard and with the previous sanction of the State Government, annul such transfer dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable."It will be noticed that the lease in favour of the Rajas younger brother was dated January 16, 1948 and therefore was well within the period specified in the provision. It was the contention of the State that the buildings on the property which were the subject of the lease dated January 16, 1948 were being used by the Raj primarily as an office or kutcheri for the collection of rent - a fact which however was disputed and is a subject of contest in the proceedings now sought to be quashed. On November 27, 1955 a notice was issued to Basant Narain to show cause why the lease executed in his favour on January 16, 1948 should not be set aside under the power conferred upon the Collector by S.4(h). Basant Narain submitted his objections and stated that the leased properties were not covered by S.4(h). Before however this enquiry was completed Basant Narain surrendered his lease- hold interest to the assignee of the reversion, viz, the Trust, by a registered deed dated January 1, 1957. Subsequently on June 1, 1959 the Trust which thus became entitled to the entire interest in the property, in its turn leased the property to one Bansidhar and about a month later, on July 3, 1959 Bansidhar assigned his leasehold interest in the property to the petitioner company and that is how the petitioner came upon the scene.3. On November 13, 1959 the Collector passed an order cancelling the lease. The petitioner who laid claim to a title to the property under the assignment in its favour dated July 3, 1959, applied to the Collector to set aside his order bath on the merits and also on the ground that the order of November 13, 1959 had been passed to its prejudice without giving it an opportunity to make its objections even though by that date it had obtained title to the property and therefore a locus standi to be heard. We are not now concerned with the correctness or otherwise of the contention raised by the petitioner, because the State of Bihar set aside the order of the Collector and directed a re-enquiry and in this re-enquiry the petitioner filed a petition before the Collector on August 9, 1960 setting out its case.4. It was during the progress of this last enquiry that the petitioner moved this Court by the present petition for the reliefs which we have already set out. Pausing here it is necessary to add that the constitutional validity of S. 4(h) is not challenged and the case therefore turns on whether the property satisfies the conditions on which the section is attracted. The relief sought in this petition is based on two allegations:(1) that the land on which the buildings stand is raiyati land and therefore could not be taken possession of by the State under the Bihar Land Reforms Act, and (2) that the buildings standing thereon were previously used for the residential purpose of the Raja and his family and not as a kutcheri. The enquiry has been proceeding before the Collector in regard to these two points and it may be mentioned that when the petitioner applied to this Court for a stay of proceedings before the Collector, this Court passed an order permitting the enquiry to continue, though it stayed the passing of any order by the State Government. It will thus be seen that if the contention of the State is correct as regards the tenure of the property and as regards the purpose for which the buildings were used, the title of the State to the property would be made out and the petitioner could have no legitimate grievance. If on the other hand, the petitioner establishes in the enquiry the case that it has put forward in the petition it is bound to succeed. Thus the question whether the petitioner has any right to the property which it claims depends wholly on questions of fact which are plainly within the jurisdiction of the authorities constituted under the Bihar Land Reforms Act. Before a party can complain of an infringement of his fundamental right to hold property he must establish that he has title to that property and if his title itself is in dispute and is the subject of adjudication in proceedings legally constituted, he cannot obviously put forward any claim based on his title until as a result of that enquiry he is able to establish his title. It is only thereafter that the question whether his rights in or to that property have been improperly or illegally infringed could arise. ### Response: 0 ### Explanation: Before a party can complain of an infringement of his fundamental right to hold property he must establish that he has title to that property and if his title itself is in dispute and is the subject of adjudication in proceedings legally constituted, he cannot obviously put forward any claim based on his title until as a result of that enquiry he is able to establish his title. It is only thereafter that the question whether his rights in or to that property have been improperly or illegally infringed could arise.
Boloma Tea Estate and Others Vs. Assistant Commissioner of Taxes, Assam and Others	HEGDE, J.1. The question of law arising for decision in this case is fully covered by the decision of this court in State of Assam v. Deva Prasad Barua The appellants in the cases are the owners of a tea estate. The assessment with which we are concerned herein is of the assessment year 1955-56. In that year the assessees did not file their return in response to the general notice under section 19(1) of the Assam Agricultural Income-tax Act, 1939 (hereinafter referred to as "the Act"). Thereafter, in the year 1961, the Agricultural Income-tax Officer asked the assessee to submit its return for the assessment years 1955-56 to 1961-62. But, the assessees did not submit any return. It appears that in February, 1962, the Income-tax Officer again called upon the assessee to submit their returns for the assessment years in question. In response to that demand the assessees submitted their return for the assessment year 1955-56 on March 5, 1962. The Income-tax Officer assessed the income of the assessees on the basis of the said return. The assessees challenged the validity of that assessment on the ground that the same was barred by limitation. Their contention was not upheld either by the Income-tax Officer or by the appellate authority. Thereafter, the assessees challenged the impugned order of assessment before the High Court of Assam and Nagaland, but the High Court dismissed their petition. Against the decision of the High Court this appeal has been brought by special leave2. Only point urged by Mr. Gopalakrishnan, learned counsel for the assessees, is that the return submitted by them is not a voluntary return. Therefore, the case is governed by the decision of this court in State of Assam v. D. C. Choudhuri. If the contention taken by the learned counsel for the appellants that the return submitted by them is not a voluntary return is correct, the matter would have required further consideration. But, we have to see whether that contention is factually correct. In other words, we have to see whether the return submitted by the assessees on March 5, 1962, was a voluntary return or notIn the writ petition filed by the appellants it was alleged that the return in question was submitted under protest. But, that allegation was denied by the department in their counter-affidavit. The appellants have not adduced any evidence to show that the return in question was submitted under protest. We have gone through the return submitted by the appellants. There is no mention in that return that it was made under the protest. There is no other evidence to show that the return in question was made under protest. The contention that the return was made under protest does not appear to have been taken before the appellate authority. Therefore, there appears to be no merit in the plea taken by the appellants. If the said return was not made under protest, then it is a return submitted in response to the general notice under section 19(1) of the Act. That being so, the assessment made is a valid assessment as held by this court in Deva Prasad Baruas case, referred to earlier3.	0[ds]But, that allegation was denied by the department in theirThe appellants have not adduced any evidence to show that the return in question was submitted under protest. We have gone through the return submitted by the appellants. There is no mention in that return that it was made under the protest. There is no other evidence to show that the return in question was made under protest. The contention that the return was made under protest does not appear to have been taken before the appellate authority. Therefore, there appears to be no merit in the plea taken by the appellants. If the said return was not made under protest, then it is a return submitted in response to the general notice under section 19(1) of the Act. That being so, the assessment made is a valid assessment as held by this court in Deva Prasad Baruas case, referred to earlier	0	589	170	### 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: HEGDE, J.1. The question of law arising for decision in this case is fully covered by the decision of this court in State of Assam v. Deva Prasad Barua The appellants in the cases are the owners of a tea estate. The assessment with which we are concerned herein is of the assessment year 1955-56. In that year the assessees did not file their return in response to the general notice under section 19(1) of the Assam Agricultural Income-tax Act, 1939 (hereinafter referred to as "the Act"). Thereafter, in the year 1961, the Agricultural Income-tax Officer asked the assessee to submit its return for the assessment years 1955-56 to 1961-62. But, the assessees did not submit any return. It appears that in February, 1962, the Income-tax Officer again called upon the assessee to submit their returns for the assessment years in question. In response to that demand the assessees submitted their return for the assessment year 1955-56 on March 5, 1962. The Income-tax Officer assessed the income of the assessees on the basis of the said return. The assessees challenged the validity of that assessment on the ground that the same was barred by limitation. Their contention was not upheld either by the Income-tax Officer or by the appellate authority. Thereafter, the assessees challenged the impugned order of assessment before the High Court of Assam and Nagaland, but the High Court dismissed their petition. Against the decision of the High Court this appeal has been brought by special leave2. Only point urged by Mr. Gopalakrishnan, learned counsel for the assessees, is that the return submitted by them is not a voluntary return. Therefore, the case is governed by the decision of this court in State of Assam v. D. C. Choudhuri. If the contention taken by the learned counsel for the appellants that the return submitted by them is not a voluntary return is correct, the matter would have required further consideration. But, we have to see whether that contention is factually correct. In other words, we have to see whether the return submitted by the assessees on March 5, 1962, was a voluntary return or notIn the writ petition filed by the appellants it was alleged that the return in question was submitted under protest. But, that allegation was denied by the department in their counter-affidavit. The appellants have not adduced any evidence to show that the return in question was submitted under protest. We have gone through the return submitted by the appellants. There is no mention in that return that it was made under the protest. There is no other evidence to show that the return in question was made under protest. The contention that the return was made under protest does not appear to have been taken before the appellate authority. Therefore, there appears to be no merit in the plea taken by the appellants. If the said return was not made under protest, then it is a return submitted in response to the general notice under section 19(1) of the Act. That being so, the assessment made is a valid assessment as held by this court in Deva Prasad Baruas case, referred to earlier3. ### Response: 0 ### Explanation: But, that allegation was denied by the department in theirThe appellants have not adduced any evidence to show that the return in question was submitted under protest. We have gone through the return submitted by the appellants. There is no mention in that return that it was made under the protest. There is no other evidence to show that the return in question was made under protest. The contention that the return was made under protest does not appear to have been taken before the appellate authority. Therefore, there appears to be no merit in the plea taken by the appellants. If the said return was not made under protest, then it is a return submitted in response to the general notice under section 19(1) of the Act. That being so, the assessment made is a valid assessment as held by this court in Deva Prasad Baruas case, referred to earlier
Dr. A. Selvaraj Vs. C.B. M. College and Ors	SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 26.10.2021 passed by the High Court of Judicature at Madras in Writ Appeal No.704 of 2020 by which the High Court has disposed of the said appeal without granting any relief which was claimed, the original appellant has preferred the present appeal. 2. That the appellant herein is a retired Associate Professor of Chemistry. He retired from the respondent No.1 – C.B.M. College, Coimbatore w.e.f. 30.06.2011. That the institution in which he was serving is an aided college. There was a delay in paying the retirement/pensionary benefits, which was not paid despite various correspondences and the representations. Ultimately, the appellant was constrained to file the writ petition before the High Court by way of Writ Petition No.3224 of 2013. At the time of hearing of the aforesaid writ petition, it was submitted that during the pendency of the writ petition the entire terminal benefits have been settled. Therefore, the only issue remained was in respect of the interest on the delayed payment of pensionary benefits. Therefore, it was requested on behalf of the appellant before the learned Single Judge of the High Court that the action be taken against the erring officers for the delay caused in settling his dues and that he be paid interest on the delay in payment of retiral benefits. The learned Single Judge disposed of the writ petition by order dated 15.07.2020 relegating the petitioner – the appellant to make a representation to the Director of Collegiate Education to take appropriate action against the erring officers who had delayed in settlement of the payment in time. The Director of Collegiate Education was directed to consider the same and pass appropriate order in accordance with law after hearing the aggrieved persons as expeditiously as possible. However, as no order was passed in respect of the interest on the delayed payment of the retirement benefits, the original writ petitioner preferred the appeal before the Division Bench by way of Writ Appeal No.704 of 2020. The Division Bench passed the following interim order on 09.08.2021:- The third respondent herein/The Regional Joint Director of Collegiate Education, Coimbatore, is directed to go to the first respondent/C.B.M College, Coimbatore and verify the records, in the light of the counter affidavits filed by the respondents 1 to 3, the third respondent is also directed to verify as to whether the writ petitioner is paid with all his retiral benefits and if so, whether they are disbursed immediately or with the delay. If there is any delay, the third respondent is further directed to report before this Court as to the person who is responsible for the said delay and who is liable to pay the interest for the belated payment to the writ petitioner/appellant. 2.1 That thereafter when the appeal was taken up for further hearing on 26.10.2021, it was reported that the Government has conducted an enquiry and fastened the liability on the College and observed that one Shri C.M. Ramaraj, the former Secretary of the College was responsible for the delay in disbursement of terminal benefits to the original writ petitioner. However, it was pointed out that the former Secretary, Shri C.M. Ramaraj was unwell and therefore he could not file objections to the enquiry report. Thereafter the Division Bench of the High Court has disposed of the said appeal by observing that it is ultimately for the Government to take an appropriate decision based on the enquiry report. However, the Division Bench of the High Court also observed that though the appellant – original writ petitioner shall be entitled to the interest on the delayed payment, however, the Government is yet to take a call on who was responsible for the delay and the Division Bench of the High Court has not passed any further order. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court in not passing any order in respect of the interest on the delayed payment of retirement benefits, the original appellant – original writ petitioner has preferred the present appeal. 3. We have heard the learned counsel appearing on behalf of the appellant, the learned counsel appearing on behalf of the Management/Trust and Shri P. Wilson, learned Senior Advocate appearing on behalf of the respondent No.1. 4. Having heard learned counsel for the respective parties, we are of the opinion that as there was a delay in making the payment of retirement benefits and settling the dues for which the appellant employee is not at all responsible, he is entitled to the interest on the delayed payment. Even the Division Bench of the High Court has also observed in the impugned judgment and order that the appellant is entitled to the interest on the delayed payment. However, there is an inter se dispute between the Secretary, Management and the Government as to who is responsible for the delay in making the payment to the appellant and therefore, he has been denied the interest on delayed payment though entitled to. It is to be noted that as such pursuant to the interim order dated 09.08.2021, the Government did conduct an enquiry and fastened the liability on the college and observed that the former Secretary, Shri C.M. Ramaraj was responsible for the delay in disbursal of the terminal benefits to the original writ petitioner. In that view of the matter, subject to the further final order that may be passed by the Government, the College/Management is first liable to pay the interest on the delayed payment of retirement dues subject to the final decision, which may be taken by the Government, after hearing the Management and the former Secretary. However, because of the inter se dispute between the Management, Secretary and the Government on who is responsible for the delay in making the payment and/or settling the dues, the retired employee should not be made to suffer for no fault of his.	1[ds]4. Having heard learned counsel for the respective parties, we are of the opinion that as there was a delay in making the payment of retirement benefits and settling the dues for which the appellant employee is not at all responsible, he is entitled to the interest on the delayed payment. Even the Division Bench of the High Court has also observed in the impugned judgment and order that the appellant is entitled to the interest on the delayed payment. However, there is an inter se dispute between the Secretary, Management and the Government as to who is responsible for the delay in making the payment to the appellant and therefore, he has been denied the interest on delayed payment though entitled to. It is to be noted that as such pursuant to the interim order dated 09.08.2021, the Government did conduct an enquiry and fastened the liability on the college and observed that the former Secretary, Shri C.M. Ramaraj was responsible for the delay in disbursal of the terminal benefits to the original writ petitioner. In that view of the matter, subject to the further final order that may be passed by the Government, the College/Management is first liable to pay the interest on the delayed payment of retirement dues subject to the final decision, which may be taken by the Government, after hearing the Management and the former Secretary. However, because of the inter se dispute between the Management, Secretary and the Government on who is responsible for the delay in making the payment and/or settling the dues, the retired employee should not be made to suffer for no fault of his.	1	1,081	300	### 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: SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 26.10.2021 passed by the High Court of Judicature at Madras in Writ Appeal No.704 of 2020 by which the High Court has disposed of the said appeal without granting any relief which was claimed, the original appellant has preferred the present appeal. 2. That the appellant herein is a retired Associate Professor of Chemistry. He retired from the respondent No.1 – C.B.M. College, Coimbatore w.e.f. 30.06.2011. That the institution in which he was serving is an aided college. There was a delay in paying the retirement/pensionary benefits, which was not paid despite various correspondences and the representations. Ultimately, the appellant was constrained to file the writ petition before the High Court by way of Writ Petition No.3224 of 2013. At the time of hearing of the aforesaid writ petition, it was submitted that during the pendency of the writ petition the entire terminal benefits have been settled. Therefore, the only issue remained was in respect of the interest on the delayed payment of pensionary benefits. Therefore, it was requested on behalf of the appellant before the learned Single Judge of the High Court that the action be taken against the erring officers for the delay caused in settling his dues and that he be paid interest on the delay in payment of retiral benefits. The learned Single Judge disposed of the writ petition by order dated 15.07.2020 relegating the petitioner – the appellant to make a representation to the Director of Collegiate Education to take appropriate action against the erring officers who had delayed in settlement of the payment in time. The Director of Collegiate Education was directed to consider the same and pass appropriate order in accordance with law after hearing the aggrieved persons as expeditiously as possible. However, as no order was passed in respect of the interest on the delayed payment of the retirement benefits, the original writ petitioner preferred the appeal before the Division Bench by way of Writ Appeal No.704 of 2020. The Division Bench passed the following interim order on 09.08.2021:- The third respondent herein/The Regional Joint Director of Collegiate Education, Coimbatore, is directed to go to the first respondent/C.B.M College, Coimbatore and verify the records, in the light of the counter affidavits filed by the respondents 1 to 3, the third respondent is also directed to verify as to whether the writ petitioner is paid with all his retiral benefits and if so, whether they are disbursed immediately or with the delay. If there is any delay, the third respondent is further directed to report before this Court as to the person who is responsible for the said delay and who is liable to pay the interest for the belated payment to the writ petitioner/appellant. 2.1 That thereafter when the appeal was taken up for further hearing on 26.10.2021, it was reported that the Government has conducted an enquiry and fastened the liability on the College and observed that one Shri C.M. Ramaraj, the former Secretary of the College was responsible for the delay in disbursement of terminal benefits to the original writ petitioner. However, it was pointed out that the former Secretary, Shri C.M. Ramaraj was unwell and therefore he could not file objections to the enquiry report. Thereafter the Division Bench of the High Court has disposed of the said appeal by observing that it is ultimately for the Government to take an appropriate decision based on the enquiry report. However, the Division Bench of the High Court also observed that though the appellant – original writ petitioner shall be entitled to the interest on the delayed payment, however, the Government is yet to take a call on who was responsible for the delay and the Division Bench of the High Court has not passed any further order. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court in not passing any order in respect of the interest on the delayed payment of retirement benefits, the original appellant – original writ petitioner has preferred the present appeal. 3. We have heard the learned counsel appearing on behalf of the appellant, the learned counsel appearing on behalf of the Management/Trust and Shri P. Wilson, learned Senior Advocate appearing on behalf of the respondent No.1. 4. Having heard learned counsel for the respective parties, we are of the opinion that as there was a delay in making the payment of retirement benefits and settling the dues for which the appellant employee is not at all responsible, he is entitled to the interest on the delayed payment. Even the Division Bench of the High Court has also observed in the impugned judgment and order that the appellant is entitled to the interest on the delayed payment. However, there is an inter se dispute between the Secretary, Management and the Government as to who is responsible for the delay in making the payment to the appellant and therefore, he has been denied the interest on delayed payment though entitled to. It is to be noted that as such pursuant to the interim order dated 09.08.2021, the Government did conduct an enquiry and fastened the liability on the college and observed that the former Secretary, Shri C.M. Ramaraj was responsible for the delay in disbursal of the terminal benefits to the original writ petitioner. In that view of the matter, subject to the further final order that may be passed by the Government, the College/Management is first liable to pay the interest on the delayed payment of retirement dues subject to the final decision, which may be taken by the Government, after hearing the Management and the former Secretary. However, because of the inter se dispute between the Management, Secretary and the Government on who is responsible for the delay in making the payment and/or settling the dues, the retired employee should not be made to suffer for no fault of his. ### Response: 1 ### Explanation: 4. Having heard learned counsel for the respective parties, we are of the opinion that as there was a delay in making the payment of retirement benefits and settling the dues for which the appellant employee is not at all responsible, he is entitled to the interest on the delayed payment. Even the Division Bench of the High Court has also observed in the impugned judgment and order that the appellant is entitled to the interest on the delayed payment. However, there is an inter se dispute between the Secretary, Management and the Government as to who is responsible for the delay in making the payment to the appellant and therefore, he has been denied the interest on delayed payment though entitled to. It is to be noted that as such pursuant to the interim order dated 09.08.2021, the Government did conduct an enquiry and fastened the liability on the college and observed that the former Secretary, Shri C.M. Ramaraj was responsible for the delay in disbursal of the terminal benefits to the original writ petitioner. In that view of the matter, subject to the further final order that may be passed by the Government, the College/Management is first liable to pay the interest on the delayed payment of retirement dues subject to the final decision, which may be taken by the Government, after hearing the Management and the former Secretary. However, because of the inter se dispute between the Management, Secretary and the Government on who is responsible for the delay in making the payment and/or settling the dues, the retired employee should not be made to suffer for no fault of his.
Union Of India & Ors Vs. Seth R. Dalmia	is necessary" it could not possibly mean that approval of the Central Government was unnecessary, and we have no doubt that it meant that no formal order conveying the approval was necessary. Regarding the statements in the affidavits of Shri J. P. Singh and Shri P. G. Gandhi that all work relating to the reopening of assessments was assigned to Shri Narayana Row with the approval of the Central Government, Dr. Singhvi pointed out that these statements had been verified by Shri J. P. Singh as true to his knowledge "derived from records in the possession of the Central Board of Direct Taxes" and by Shri P. G. Gandhi as "based on the information derived from record in possession of the Board". It was argued that as the records did not disclose any order of approval by the Central Government, the said statements were of no value. It seems to us that the verification of the statements in Shri J. P. Singhs affidavit clearly suggests that the facts stated therein were true to his knowledge which the records also bear out. As stated already, the High Court did not question the truth of the facts stated in Shri Singhs affidavit nor do we find any reason to do so. We have no doubt that the office note made by Shri J. P. Singh on June 18. 1964 supports the statements made in his affidavit.7. The next question is whether the approval should have been formally expressed in the shape of an order. On this question Dr. Singhvi referred to the decision of this Court in Fonseca (P) Ltd. v. L. C. Gupta, (l973) 1 SCC 480 = (AIR 1973 SC 563 ). In that case an order made by the Deputy Secretary to the Government of India, Ministry of Works and Housing, who was not empowered to make such an order under the Rules of Business, was held to be illegal ineffective and void. We do not think this decision has any relevance. The authority of Mr. V. T. Dehejia, Secretary, Ministry of Finance (Department of Revenue and Expenditure) to approve the proposal for the Central Government was never questioned, nor the power of the Chairman to distribute the business of the Board between himself and the other Member with the previous approval of the Central Government. We have already held that upon the material on record such approval appears to have been given. Fonsecas case, (supra) is hardly of any assistance on the question whether in this case the approval of the Central Government should have been recorded in a formal order. Dr. Singhvi characterised the distribution of the business of the Board by the Chairman as sub-delegated legislation and referred to a number of authorities to show that the law required publication of such sub-delegated legislation which implied that it must be expressed in a formal document. It was submitted that this was necessary to enable the persons affected by such sub-delegated legislation to ascertain what the legislation was. We do not think that the distribution of work by the Chairman of the Board can be equated with legislation. The allocation of business and the approval are matters of internal arrangement not affecting anyones rights. Initially the Board consisting of the Chairman and the member had the jurisdiction to deal with the matter in question. Thereafter, in exercise of the power conferred by Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 the Chairman with the approval of the Central Government distributed the business of the Board between himself and the member, keeping all assessment work of income-tax to himself. Then, again with the approval of the Central Government, he assigned this work to the member. Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 does not prescribe any special or particular manner in which the approval is to be recorded. The approval given at that stage does not touch the rights of the assessees. The fact that approval was given must of course be proved and in our view, that has been done in this case; no question of publication of the order of allocation and the approval accorded to it by the Central Government can therefore arise. The office file does not also disclose any formal order approving the original distribution of work as between the Chairman and the member of the Board. It appears from the office note of January 1, 1964 that a draft showing the allocation of work was signed by Shri J. P. Singh and Shri V. T. Dehejia, Secretary of the Ministry of Finance (Department of Revenue and Expenditure) appended his signature below Shri Singhs. This shows clearly that a formal expression of the approval was not considered necessary. If there is no reason to doubt the truth of the statements made in Shri J. P. Singhs affidavit, and we think there is none, then the legality of the impugned notices under Section 148 of the Act cannot be challenged on the ground that they were issued upon the satisfaction of Shri Narayana Row.8. On behalf of the appellants our attention was also drawn to the Central Board of Direct Taxes (Validation of Proceedings) Act 1971 (No. 37 of 1971) which provides inter alia, that no action taken by the Chairman and other members of the Board, either singly or jointly, without having been validly entrusted with the powers or duties in that behalf in accordance with the provisions of the Central Board of Revenue Act, 1963 or the rules made thereunder shall be deemed to be invalid or ever to have been invalid on that ground. As in our opinion the impugned notices were issued in due compliance with the requirements of R. 4 of Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964, we do not find it necessary to consider the provisions of this Act for the purpose of these appeals.	1[ds]It is not quite clear whetherthe High Court was not satisfied that Shri J. P. Singhs proposal for a change in the allocation of work was at all approved by the Government or that in the absence of a formal order to that effect the approval was of no consequence.The High Court does not appear to have taken any note of the affidavit of Shri P. G. Gandhi in paragraph 5 in which it is stated that all assessment work of Income-tax was assigned to Shri Narayana Row with the approval of the Central Government. From the affidavit of Shri J. P. Singh, the-then Chairman of the Central Board of Direct Taxes, part of which we have extracted above, it appears that Shri Singh had referred to the Secretary, Ministry of Finance (Department of Revenue and Expenditure) the proposal for transfer of work relating to sanction under Section 151 (1) of the Act from the Chairman to the Member of the Board; that Shri Singh personally discussed the matter with Shri V. T. Dehejia who was then the Secretary, Ministry of Finance, and that Shri Dehejia approved the proposal. Shri J. P. Singhs affidavit adds that the note he made in the office file on June 18, 1964 - "Discussed with Secy. (R and E). It is just a minor internal arrangement. No formal order is necessary." - refers to these facts. In the face of the statements appearing in the affidavits of Shri J. P. Singh and Shri P. G. Gandhi that the work relating to the reopening of assessments was assigned to Shri Row with the previous approval of the Central Government, it is difficult to see how it can be said that the office notes were not in line with the averments in the affidavits. The High Court did not disbelieve the statement of Shri J. P. Singh that he had discussed the proposal with Shri V. T. Dehejia, who approved the proposal. Possibly, the absence of a formal order expressing the approval led to the observation that Shri Singhs affidavit was not in line with the office notes and also the ultimate finding that the notices issued upon the satisfaction of the member of the Board was "without jurisdiction andit seems to us, when the note said "no formal order is necessary" it could not possibly mean that approval of the Central Government was unnecessary, and we have no doubt that it meant that no formal order conveying the approval was necessary. Regarding the statements in the affidavits of Shri J. P. Singh and Shri P. G. Gandhi that all work relating to the reopening of assessments was assigned to Shri Narayana Row with the approval of the Centralstated already, the High Court did not question the truth of the facts stated in Shri Singhs affidavit nor do we find any reason to do so. We have no doubt that the office note made by Shri J. P. Singh on June 18. 1964 supports the statements made in hishave already held that upon the material on record such approval appears to have been given. Fonsecas case, (supra) is hardly of any assistance on the question whether in this case the approval of the Central Government should have been recorded in a formaldo not think that the distribution of work by the Chairman of the Board can be equated with legislation. The allocation of business and the approval are matters of internal arrangement not affecting anyones rights. Initially the Board consisting of the Chairman and the member had the jurisdiction to deal with the matter in question. Thereafter, in exercise of the power conferred by Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 the Chairman with the approval of the Central Government distributed the business of the Board between himself and the member, keeping all assessment work of income-tax to himself. Then, again with the approval of the Central Government, he assigned this work to the member. Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 does not prescribe any special or particular manner in which the approval is to be recorded. The approval given at that stage does not touch the rights of the assessees. The fact that approval was given must of course be proved and in our view, that has been done in this case; no question of publication of the order of allocation and the approval accorded to it by the Central Government can therefore arise. The office file does not also disclose any formal order approving the original distribution of work as between the Chairman and the member of the Board. It appears from the office note of January 1, 1964 that a draft showing the allocation of work was signed by Shri J. P. Singh and Shri V. T. Dehejia, Secretary of the Ministry of Finance (Department of Revenue and Expenditure) appended his signature below Shri Singhs. This shows clearly that a formal expression of the approval was not considered necessary. If there is no reason to doubt the truth of the statements made in Shri J. P. Singhs affidavit, and we think there is none, then the legality of the impugned notices under Section 148 of the Act cannot be challenged on the ground that they were issued upon the satisfaction of Shri Narayanain our opinion the impugned notices were issued in due compliance with the requirements of R. 4 of Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964, we do not find it necessary to consider the provisions of this Act for the purpose of these appeals.	1	3,534	1,027	### 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: is necessary" it could not possibly mean that approval of the Central Government was unnecessary, and we have no doubt that it meant that no formal order conveying the approval was necessary. Regarding the statements in the affidavits of Shri J. P. Singh and Shri P. G. Gandhi that all work relating to the reopening of assessments was assigned to Shri Narayana Row with the approval of the Central Government, Dr. Singhvi pointed out that these statements had been verified by Shri J. P. Singh as true to his knowledge "derived from records in the possession of the Central Board of Direct Taxes" and by Shri P. G. Gandhi as "based on the information derived from record in possession of the Board". It was argued that as the records did not disclose any order of approval by the Central Government, the said statements were of no value. It seems to us that the verification of the statements in Shri J. P. Singhs affidavit clearly suggests that the facts stated therein were true to his knowledge which the records also bear out. As stated already, the High Court did not question the truth of the facts stated in Shri Singhs affidavit nor do we find any reason to do so. We have no doubt that the office note made by Shri J. P. Singh on June 18. 1964 supports the statements made in his affidavit.7. The next question is whether the approval should have been formally expressed in the shape of an order. On this question Dr. Singhvi referred to the decision of this Court in Fonseca (P) Ltd. v. L. C. Gupta, (l973) 1 SCC 480 = (AIR 1973 SC 563 ). In that case an order made by the Deputy Secretary to the Government of India, Ministry of Works and Housing, who was not empowered to make such an order under the Rules of Business, was held to be illegal ineffective and void. We do not think this decision has any relevance. The authority of Mr. V. T. Dehejia, Secretary, Ministry of Finance (Department of Revenue and Expenditure) to approve the proposal for the Central Government was never questioned, nor the power of the Chairman to distribute the business of the Board between himself and the other Member with the previous approval of the Central Government. We have already held that upon the material on record such approval appears to have been given. Fonsecas case, (supra) is hardly of any assistance on the question whether in this case the approval of the Central Government should have been recorded in a formal order. Dr. Singhvi characterised the distribution of the business of the Board by the Chairman as sub-delegated legislation and referred to a number of authorities to show that the law required publication of such sub-delegated legislation which implied that it must be expressed in a formal document. It was submitted that this was necessary to enable the persons affected by such sub-delegated legislation to ascertain what the legislation was. We do not think that the distribution of work by the Chairman of the Board can be equated with legislation. The allocation of business and the approval are matters of internal arrangement not affecting anyones rights. Initially the Board consisting of the Chairman and the member had the jurisdiction to deal with the matter in question. Thereafter, in exercise of the power conferred by Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 the Chairman with the approval of the Central Government distributed the business of the Board between himself and the member, keeping all assessment work of income-tax to himself. Then, again with the approval of the Central Government, he assigned this work to the member. Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 does not prescribe any special or particular manner in which the approval is to be recorded. The approval given at that stage does not touch the rights of the assessees. The fact that approval was given must of course be proved and in our view, that has been done in this case; no question of publication of the order of allocation and the approval accorded to it by the Central Government can therefore arise. The office file does not also disclose any formal order approving the original distribution of work as between the Chairman and the member of the Board. It appears from the office note of January 1, 1964 that a draft showing the allocation of work was signed by Shri J. P. Singh and Shri V. T. Dehejia, Secretary of the Ministry of Finance (Department of Revenue and Expenditure) appended his signature below Shri Singhs. This shows clearly that a formal expression of the approval was not considered necessary. If there is no reason to doubt the truth of the statements made in Shri J. P. Singhs affidavit, and we think there is none, then the legality of the impugned notices under Section 148 of the Act cannot be challenged on the ground that they were issued upon the satisfaction of Shri Narayana Row.8. On behalf of the appellants our attention was also drawn to the Central Board of Direct Taxes (Validation of Proceedings) Act 1971 (No. 37 of 1971) which provides inter alia, that no action taken by the Chairman and other members of the Board, either singly or jointly, without having been validly entrusted with the powers or duties in that behalf in accordance with the provisions of the Central Board of Revenue Act, 1963 or the rules made thereunder shall be deemed to be invalid or ever to have been invalid on that ground. As in our opinion the impugned notices were issued in due compliance with the requirements of R. 4 of Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964, we do not find it necessary to consider the provisions of this Act for the purpose of these appeals. ### Response: 1 ### Explanation: It is not quite clear whetherthe High Court was not satisfied that Shri J. P. Singhs proposal for a change in the allocation of work was at all approved by the Government or that in the absence of a formal order to that effect the approval was of no consequence.The High Court does not appear to have taken any note of the affidavit of Shri P. G. Gandhi in paragraph 5 in which it is stated that all assessment work of Income-tax was assigned to Shri Narayana Row with the approval of the Central Government. From the affidavit of Shri J. P. Singh, the-then Chairman of the Central Board of Direct Taxes, part of which we have extracted above, it appears that Shri Singh had referred to the Secretary, Ministry of Finance (Department of Revenue and Expenditure) the proposal for transfer of work relating to sanction under Section 151 (1) of the Act from the Chairman to the Member of the Board; that Shri Singh personally discussed the matter with Shri V. T. Dehejia who was then the Secretary, Ministry of Finance, and that Shri Dehejia approved the proposal. Shri J. P. Singhs affidavit adds that the note he made in the office file on June 18, 1964 - "Discussed with Secy. (R and E). It is just a minor internal arrangement. No formal order is necessary." - refers to these facts. In the face of the statements appearing in the affidavits of Shri J. P. Singh and Shri P. G. Gandhi that the work relating to the reopening of assessments was assigned to Shri Row with the previous approval of the Central Government, it is difficult to see how it can be said that the office notes were not in line with the averments in the affidavits. The High Court did not disbelieve the statement of Shri J. P. Singh that he had discussed the proposal with Shri V. T. Dehejia, who approved the proposal. Possibly, the absence of a formal order expressing the approval led to the observation that Shri Singhs affidavit was not in line with the office notes and also the ultimate finding that the notices issued upon the satisfaction of the member of the Board was "without jurisdiction andit seems to us, when the note said "no formal order is necessary" it could not possibly mean that approval of the Central Government was unnecessary, and we have no doubt that it meant that no formal order conveying the approval was necessary. Regarding the statements in the affidavits of Shri J. P. Singh and Shri P. G. Gandhi that all work relating to the reopening of assessments was assigned to Shri Narayana Row with the approval of the Centralstated already, the High Court did not question the truth of the facts stated in Shri Singhs affidavit nor do we find any reason to do so. We have no doubt that the office note made by Shri J. P. Singh on June 18. 1964 supports the statements made in hishave already held that upon the material on record such approval appears to have been given. Fonsecas case, (supra) is hardly of any assistance on the question whether in this case the approval of the Central Government should have been recorded in a formaldo not think that the distribution of work by the Chairman of the Board can be equated with legislation. The allocation of business and the approval are matters of internal arrangement not affecting anyones rights. Initially the Board consisting of the Chairman and the member had the jurisdiction to deal with the matter in question. Thereafter, in exercise of the power conferred by Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 the Chairman with the approval of the Central Government distributed the business of the Board between himself and the member, keeping all assessment work of income-tax to himself. Then, again with the approval of the Central Government, he assigned this work to the member. Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 does not prescribe any special or particular manner in which the approval is to be recorded. The approval given at that stage does not touch the rights of the assessees. The fact that approval was given must of course be proved and in our view, that has been done in this case; no question of publication of the order of allocation and the approval accorded to it by the Central Government can therefore arise. The office file does not also disclose any formal order approving the original distribution of work as between the Chairman and the member of the Board. It appears from the office note of January 1, 1964 that a draft showing the allocation of work was signed by Shri J. P. Singh and Shri V. T. Dehejia, Secretary of the Ministry of Finance (Department of Revenue and Expenditure) appended his signature below Shri Singhs. This shows clearly that a formal expression of the approval was not considered necessary. If there is no reason to doubt the truth of the statements made in Shri J. P. Singhs affidavit, and we think there is none, then the legality of the impugned notices under Section 148 of the Act cannot be challenged on the ground that they were issued upon the satisfaction of Shri Narayanain our opinion the impugned notices were issued in due compliance with the requirements of R. 4 of Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964, we do not find it necessary to consider the provisions of this Act for the purpose of these appeals.
Jayakantham Vs. Abaykumar	appellate court.”(iv) These principles were followed by this Court in A.C. Arulappan v. Smt. Ahalya Naik (2001) 6 SCC 600 ), with the following observations :“…..7. The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the court would desist from granting a decree to the plaintiff.”……..“…..15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court…..”(v) A Bench of three Judges of this Court considered the position in Nirmala Anand Vs. Advent Corporation (P) Ltd. and Ors. (2002) 8 SCC 146 ), and held thus :“…..6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.”10. In the present case, the material on the record contains several aspects which will have to weigh in the balance. There is no dispute about the fact that the father of the respondent who entered into an agreement on his behalf (and deposed in evidence) carried on moneylending business. The consistent case of the appellants in reply to the legal notice, in the written statement as well as in the course of evidence was that there was a transaction of a loan with the father of the respondent. The evidence of DW2 was to the following effect :“The defendant was having a relationship with plaintiff’s father, Babu Dhanaraj in respect of loan transaction. Already the Defendant No. 2 has taken loan from Babu Dhanapathy Raj and bought a lorry and was driving it. In this case, in order to return the loan of Rs. 1,00,000/- as per the instruction of Babu Dhanapathy Raj only on the basis of trust, the Exhibit P1 agreement to sell was executed. In the said document, I have put my signature as a witness.”During the course of the evidence, the appellants produced material (Exhibit D3) indicating that the value of the property was six lakhs thirty thousand on 20 November 2006. The agreed consideration between the parties was rupees one lakh sixty thousand of which an amount of rupees sixty thousand was paid at the time of the execution of the agreement. The sale transaction was to be completed within three years against the payment of the balance of rupees one lakh. The appellants also relied upon Exhibit D2 which indicated that the value of the property as on 1 April 1999. These aspects were adverted to in the judgment of the trial court and the first appellate court while setting out the evidence, but have evidently not been borne in mind in determining as to whether a decree for specific performance could judiciously have been passed.11. In our view the material which has been placed on record indicates that the terms of the contract, the conduct of parties at the time of entering into the agreement and circumstances under which the contract was entered into gave the plaintiff an unfair advantage over the defendants. These circumstances make it inequitable to enforce specific performance.12. For the above reasons a decree for the payment of compensation in lieu of specific performance would meet the ends of justice. As we have noted earlier the father of the respondent paid an amount of rupees sixty thousand to the appellants in June 1999 of the total agreed consideration of Rs. 1.60 lakhs. The appellants have voluntarily offered to pay an amount of rupees ten lakhs, as just compensation in lieu of specific performance.	1[ds]8. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but isto beThe exercise of discretion is capable of being corrected by a court of appeal in the hierarchy of appellate courts.In the present case, the material on the record contains several aspects which will have to weigh in the balance. There is no dispute about the fact that the father of the respondent who entered into an agreement on his behalf (and deposed in evidence) carried on moneylending business. The consistent case of the appellants in reply to the legal notice, in the written statement as well as in the course of evidence was that there was a transaction of a loan with the father of the respondent.11. In our view the material which has been placed on record indicates that the terms of the contract, the conduct of parties at the time of entering into the agreement and circumstances under which the contract was entered into gave the plaintiff an unfair advantage over the defendants. These circumstances make it inequitable to enforce specific performance.12. For the above reasons a decree for the payment of compensation in lieu of specific performance would meet the ends of justice. As we have noted earlier the father of the respondent paid an amount of rupees sixty thousand to the appellants in June 1999 of the total agreed consideration of Rs. 1.60 lakhs. The appellants have voluntarily offered to pay an amount of rupees ten lakhs, as just compensation in lieu of specific performance.	1	2,768	345	### 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: appellate court.”(iv) These principles were followed by this Court in A.C. Arulappan v. Smt. Ahalya Naik (2001) 6 SCC 600 ), with the following observations :“…..7. The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the court would desist from granting a decree to the plaintiff.”……..“…..15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court…..”(v) A Bench of three Judges of this Court considered the position in Nirmala Anand Vs. Advent Corporation (P) Ltd. and Ors. (2002) 8 SCC 146 ), and held thus :“…..6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.”10. In the present case, the material on the record contains several aspects which will have to weigh in the balance. There is no dispute about the fact that the father of the respondent who entered into an agreement on his behalf (and deposed in evidence) carried on moneylending business. The consistent case of the appellants in reply to the legal notice, in the written statement as well as in the course of evidence was that there was a transaction of a loan with the father of the respondent. The evidence of DW2 was to the following effect :“The defendant was having a relationship with plaintiff’s father, Babu Dhanaraj in respect of loan transaction. Already the Defendant No. 2 has taken loan from Babu Dhanapathy Raj and bought a lorry and was driving it. In this case, in order to return the loan of Rs. 1,00,000/- as per the instruction of Babu Dhanapathy Raj only on the basis of trust, the Exhibit P1 agreement to sell was executed. In the said document, I have put my signature as a witness.”During the course of the evidence, the appellants produced material (Exhibit D3) indicating that the value of the property was six lakhs thirty thousand on 20 November 2006. The agreed consideration between the parties was rupees one lakh sixty thousand of which an amount of rupees sixty thousand was paid at the time of the execution of the agreement. The sale transaction was to be completed within three years against the payment of the balance of rupees one lakh. The appellants also relied upon Exhibit D2 which indicated that the value of the property as on 1 April 1999. These aspects were adverted to in the judgment of the trial court and the first appellate court while setting out the evidence, but have evidently not been borne in mind in determining as to whether a decree for specific performance could judiciously have been passed.11. In our view the material which has been placed on record indicates that the terms of the contract, the conduct of parties at the time of entering into the agreement and circumstances under which the contract was entered into gave the plaintiff an unfair advantage over the defendants. These circumstances make it inequitable to enforce specific performance.12. For the above reasons a decree for the payment of compensation in lieu of specific performance would meet the ends of justice. As we have noted earlier the father of the respondent paid an amount of rupees sixty thousand to the appellants in June 1999 of the total agreed consideration of Rs. 1.60 lakhs. The appellants have voluntarily offered to pay an amount of rupees ten lakhs, as just compensation in lieu of specific performance. ### Response: 1 ### Explanation: 8. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but isto beThe exercise of discretion is capable of being corrected by a court of appeal in the hierarchy of appellate courts.In the present case, the material on the record contains several aspects which will have to weigh in the balance. There is no dispute about the fact that the father of the respondent who entered into an agreement on his behalf (and deposed in evidence) carried on moneylending business. The consistent case of the appellants in reply to the legal notice, in the written statement as well as in the course of evidence was that there was a transaction of a loan with the father of the respondent.11. In our view the material which has been placed on record indicates that the terms of the contract, the conduct of parties at the time of entering into the agreement and circumstances under which the contract was entered into gave the plaintiff an unfair advantage over the defendants. These circumstances make it inequitable to enforce specific performance.12. For the above reasons a decree for the payment of compensation in lieu of specific performance would meet the ends of justice. As we have noted earlier the father of the respondent paid an amount of rupees sixty thousand to the appellants in June 1999 of the total agreed consideration of Rs. 1.60 lakhs. The appellants have voluntarily offered to pay an amount of rupees ten lakhs, as just compensation in lieu of specific performance.
D.D. Suri Vs. Union of India and Another	an officer might be good enough to be a Divisional Commissioner and might not be good enough to be the Joint Secretary to the Government of India, hits at the very root of the system of Administration which we have adopted in this Country. It further expressed that the fact that most of the States have got Divisional Commissioners while some States do not have these posts, has no relevance. It, therefore, proposed that officers belonging to the Indian Administrative Service should be given pro forma promotion to the super-time scale by the State Government under the Next Below Rule so that the service rendered by such officer from the date of such promotion, will count for the purpose of fixation of initial pay, on reversion to the present cadre, and also for the purpose of increments, and the benefit should be allowed on one for one basis. It was also suggested in the alternative, that if the benefit of the Next Below Rule could not be extended to such officer and if he is detained by the Government in a lower post at the Centre against his wishes and in public interest, he should be given the higher pay on personal basis, i.e., as a measure personal to him within the frame-work of the policy quoted above. When the matter was referred to the Ministry of Finance, it did not agree to either proposal, and the Ministry of Law rightly pointed out:"It is not appropriate to raise the scale of ex- cadre post to that of super-time scale merely because the incumbent has become due for promotion to the super-time scale. The pay attached to a post is with regard to the nature of the duties and responsibilities and not with reference to the entitlement of the incumbents."25. As regards, the scope of the protection of pay envisaged by the proviso to sub-rule (2) of Rule 6 of the Indian Administrative Service (Cadre) Rules, the Law Ministry advised that:"The concept of the basic pay which the officer would have drawn but for his deputation is limited to the basic pay of the post to which he would have been promoted in the natural course of things but not to a post like a super-time scale to which appointment is not only on the basis of seniority but also merit and suitability."Thus the present position is that the benefit of the Next Below Rule is available at the first stage of se lection i.e. at the time of appointment in the selection grade but not at the second stage, namely, at the time of promotion to the super-time scale.26. It is, therefore, abundantly clear that the appellant cannot claim as a right the super-time scale merely on the basis of his seniority among the members of the Indian Administrative Service belonging to the Orissa cadre. The process of appointment to the super-time scale is by selection. When the element of selection comes in, this promotion must be subject only to the claims of exceptional merit and suitability, and is not a matter of right: Union of India v. M.L. (Capoor(1). Promotion to the super-time scale is, therefore, not a matter of course. The officer must stand the test of suitability and his integrity must be beyond doubt. For this purpose, there is a Senior Selection Committee which prepares a select list of suitable officers which must be approved by the Union Public Service Commission. The Senior Selection Committee has to prepare a panel of names for each grade and submit the same for approval to the Union Public Service Commission as well as to the Government of India, Ministry of Home Affairs. The select list has to be reviewed and revised every year, and the Senior Selection Committee meets annually. The essence of holding Selection Committee meeting annually is that each annual proceeding is independent of the other. That is why as soon as the proceedings of the new Selection Committee are approved by the Union Public Service Commission, the proceedings of the earlier Selection Committee become inoperative. No manner of continuity can, therefore, be imputed to the proceedings of the various Selection Committees. It is not the petitioners case that his name was ever brought into the select list by the Senior Selection Committee and approved by the Government of India, Ministry of Home Affairs, for appointment in the selection grade. If the petitioner was consciously passed over by the Senior Selection Committee or the Government of India, Ministry of Home Affairs, then there is no question of the applicability of the Next Below Rule.Much stress was, however, la id on the letter of Sri R.N. Mohanti, Joint Secretary to the Government of Orissa, Political &Services Department, dated May 7, 1963, addressed to the petitioner in reply to his letter dated March 15, 1963 for the submission, that had remained in his parent cadre, he would have been promoted and drawn pay in the super-time scale. It was urged that the petitioner should have been given pro forma promotion and the higher scale of pay in the super-time grade under the Next Below Rule because his junior in his parent cadre had been promoted to such scale of pay or granted higher pay, on personal basis to compensate for the financial loss suffered by him due to his retention in a lower post at the Centre. We are afraid, the contention must be rejected. The aforementioned letter only stated that his case would have been considered in the normal course for appointment to the selection grade as well as to a super-time scale post, had he continued under the State Government. It did not at all mention nor could it be construed to mean that he was entitled for appointment to a post in super-time scale on account of his seniority on the basis of the Next Below Rule. In any event, the letter, we are afraid, cannot take the place of the recommendation of the Senior Selection Committee.27.	0[ds]At the very outset, we tried to impress on the petitioner that his main relief, i.e. with respect to fixation of the year of allotment according to the N formula, had become infructuous, as he had already retired from service and only the subsidiary relief i.e., for giving necessary benefits to him in the fixation of his pay remains which is nothing but a monetary claim, for the enforcement of which the remedy lay elsewhere. But the petitioner who appeared in person persisted in arguing all the points raised particularly the one regarding fixation of the year of allotment saying that he was doing it for the benefit of others. We have, therefore, no alternative but to deal with the appeal onfail to comprehend what relief the petitioner can be granted in this appeal. In his application for grant of special leave to this Court under Article 136 of the Constitution, the petitioner has categorically stated that he was no longer interested in the relief for determination of the year of allotment, according to the N formula, since he was on the verge of retirement, and that the arguments advanced on his behalf in the High Court were, therefore, only confined to his entitlement to additional pay under F.R. 49, irrespective or the fact whether he was given the benefit under the Next Below rule orare afraid, none of the contentions can prevail.It is common ground that as regards Emergency Recruits from the Open Market, the year of allotment was to be determined according to the Open Market Emergency Recruitment Scheme, embodied in the instructions of the Government of India for the preparation of a common gradation list for the officers of the Indian Civil Service cadre in each State issued on July 7,that be s o, the High Court quite properly declined to exercise its extra-ordinary jurisdiction under Article 226 of the Constitution inasmuch as no writ or direction could be issued, in a matter which was essentially in the discretion of the Government , to re-fix his seniority by giving credit for 9 years instead of 8 years as provided for, as admittedly the relevant instructions require completed years of actualthe decision of the Government of India assigning a year of allotment to a particular officer under Rule 3 of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, or in accordance with orders and instructions issued by the Central Government in that behalf before the commencement of these Rules, is final and cannot be interfered by the Courts under Article 226 of the Constitution unless such decision was capricious or arbitrary or in breach of the said Rules. The same principle should apply to the assignment of a year of allotment under the Nthese circumstances, the decision taken from the beginning was that allowances would not be included in computing the pay and as long as this decision is applied uniformly, without exception, the appellant can have no grievance in this regard to seniority specifically as allowances would have to be added uniformly to all other persons in the seniority list. Thus, the definition of pay in F.R. 9(21)(b) is applicable only for the fixation of pay of a Government servant who had been recruited from the armed Forces. In such a case, the total salary including such allowances as falling within the definition, is taken note of. The petitioner admittedly was given an initial pay of Rs 1, 000/- i.e. much higher than officers appointed to the Indian Administrative Service on the result of the competitive examinations. Here we are not concerned with the fixation of pay of the petitioner but with regard to the Rules relating to the fixation of his seniority which would take note of the period prior to his recruitment to the Indian Administrative Service and for that purpose the basic pay alone was relevant. The concept of pay under F.R. 9(21) (b) cannot, therefore, be introduced for purposes of regulating the year of allotment under N formula, as it relates to fixation of seniority and not of pay. The matter falls to be regulated by the interpretation placed by the Government of India, Ministry of Home Affairs in their letter dated July 18, 1949.If the definition of pay in F.R. 9(21) (b) was to be taken note of, then Calcutta compensatory allowance and marriage allowance would also be included. Obviously, a rule which makes seniority dependent upon marriage allowance and, therefore, on whether the officer was married or not will be violative of Article 14 of thecannot see that the appellant is on a better footing as regards lodging allowance, which is usually given to Army Officers in lieu of rent-free quarters. They become at once disentitled to such allowance the moment they are allotted quarters. Lodging allowance is, therefore, essentially compensatory in nature. The inclusion of pay as defined in F.R. 9(21) (b) in the N formula to include the Lodging allowance, is not permissible as the appellant would have to claim the application of the definition of pay in its full rigour or not at all. Any other construction will lead to manifest injustice as it would result in discrimination between persons similarly situated, i.e., between an Army Officer in receipt of lodging allowance in lieu of rent-free quarters and one in occupation of such rent-free quart es, in the matter of seniority in the Indian Administrative Service. The inevitable conclusion, therefore, is that the definition of pay in F.R. 9(21) (b) was not applicable for purposes of fixation of seniority of thethe present position is that the benefit of the Next Below Rule is available at the first stage of se lection i.e. at the time of appointment in the selection grade but not at the second stage, namely, at the time of promotion to the super-timeis, therefore, abundantly clear that the appellant cannot claim as a right the super-time scale merely on the basis of his seniority among the members of the Indian Administrative Service belonging to the Orissa cadre. The process of appointment to the super-time scale is by selection. When the element of selection comes in, this promotion must be subject only to the claims of exceptional merit and suitability, and is not a matter of right: Union of India v. M.L. (Capoor(1). Promotion to the super-time scale is, therefore, not a matter of course. The officer must stand the test of suitability and his integrity must be beyond doubt. For this purpose, there is a Senior Selection Committee which prepares a select list of suitable officers which must be approved by the Union Public Service Commission. The Senior Selection Committee has to prepare a panel of names for each grade and submit the same for approval to the Union Public Service Commission as well as to the Government of India, Ministry of Home Affairs. The select list has to be reviewed and revised every year, and the Senior Selection Committee meets annually. The essence of holding Selection Committee meeting annually is that each annual proceeding is independent of the other. That is why as soon as the proceedings of the new Selection Committee are approved by the Union Public Service Commission, the proceedings of the earlier Selection Committee become inoperative. No manner of continuity can, therefore, be imputed to the proceedings of the various Selection Committees. It is not the petitioners case that his name was ever brought into the select list by the Senior Selection Committee and approved by the Government of India, Ministry of Home Affairs, for appointment in the selection grade. If the petitioner was consciously passed over by the Senior Selection Committee or the Government of India, Ministry of Home Affairs, then there is no question of the applicability of the Next Beloware afraid, the contention must be rejected. The aforementioned letter only stated that his case would have been considered in the normal course for appointment to the selection grade as well as to a super-time scale post, had he continued under the State Government. It did not at all mention nor could it be construed to mean that he was entitled for appointment to a post in super-time scale on account of his seniority on the basis of the Next Below Rule. In any event, the letter, we are afraid, cannot take the place of the recommendation of the Senior Selection Committee.	0	9,690	1,551	### 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: an officer might be good enough to be a Divisional Commissioner and might not be good enough to be the Joint Secretary to the Government of India, hits at the very root of the system of Administration which we have adopted in this Country. It further expressed that the fact that most of the States have got Divisional Commissioners while some States do not have these posts, has no relevance. It, therefore, proposed that officers belonging to the Indian Administrative Service should be given pro forma promotion to the super-time scale by the State Government under the Next Below Rule so that the service rendered by such officer from the date of such promotion, will count for the purpose of fixation of initial pay, on reversion to the present cadre, and also for the purpose of increments, and the benefit should be allowed on one for one basis. It was also suggested in the alternative, that if the benefit of the Next Below Rule could not be extended to such officer and if he is detained by the Government in a lower post at the Centre against his wishes and in public interest, he should be given the higher pay on personal basis, i.e., as a measure personal to him within the frame-work of the policy quoted above. When the matter was referred to the Ministry of Finance, it did not agree to either proposal, and the Ministry of Law rightly pointed out:"It is not appropriate to raise the scale of ex- cadre post to that of super-time scale merely because the incumbent has become due for promotion to the super-time scale. The pay attached to a post is with regard to the nature of the duties and responsibilities and not with reference to the entitlement of the incumbents."25. As regards, the scope of the protection of pay envisaged by the proviso to sub-rule (2) of Rule 6 of the Indian Administrative Service (Cadre) Rules, the Law Ministry advised that:"The concept of the basic pay which the officer would have drawn but for his deputation is limited to the basic pay of the post to which he would have been promoted in the natural course of things but not to a post like a super-time scale to which appointment is not only on the basis of seniority but also merit and suitability."Thus the present position is that the benefit of the Next Below Rule is available at the first stage of se lection i.e. at the time of appointment in the selection grade but not at the second stage, namely, at the time of promotion to the super-time scale.26. It is, therefore, abundantly clear that the appellant cannot claim as a right the super-time scale merely on the basis of his seniority among the members of the Indian Administrative Service belonging to the Orissa cadre. The process of appointment to the super-time scale is by selection. When the element of selection comes in, this promotion must be subject only to the claims of exceptional merit and suitability, and is not a matter of right: Union of India v. M.L. (Capoor(1). Promotion to the super-time scale is, therefore, not a matter of course. The officer must stand the test of suitability and his integrity must be beyond doubt. For this purpose, there is a Senior Selection Committee which prepares a select list of suitable officers which must be approved by the Union Public Service Commission. The Senior Selection Committee has to prepare a panel of names for each grade and submit the same for approval to the Union Public Service Commission as well as to the Government of India, Ministry of Home Affairs. The select list has to be reviewed and revised every year, and the Senior Selection Committee meets annually. The essence of holding Selection Committee meeting annually is that each annual proceeding is independent of the other. That is why as soon as the proceedings of the new Selection Committee are approved by the Union Public Service Commission, the proceedings of the earlier Selection Committee become inoperative. No manner of continuity can, therefore, be imputed to the proceedings of the various Selection Committees. It is not the petitioners case that his name was ever brought into the select list by the Senior Selection Committee and approved by the Government of India, Ministry of Home Affairs, for appointment in the selection grade. If the petitioner was consciously passed over by the Senior Selection Committee or the Government of India, Ministry of Home Affairs, then there is no question of the applicability of the Next Below Rule.Much stress was, however, la id on the letter of Sri R.N. Mohanti, Joint Secretary to the Government of Orissa, Political &Services Department, dated May 7, 1963, addressed to the petitioner in reply to his letter dated March 15, 1963 for the submission, that had remained in his parent cadre, he would have been promoted and drawn pay in the super-time scale. It was urged that the petitioner should have been given pro forma promotion and the higher scale of pay in the super-time grade under the Next Below Rule because his junior in his parent cadre had been promoted to such scale of pay or granted higher pay, on personal basis to compensate for the financial loss suffered by him due to his retention in a lower post at the Centre. We are afraid, the contention must be rejected. The aforementioned letter only stated that his case would have been considered in the normal course for appointment to the selection grade as well as to a super-time scale post, had he continued under the State Government. It did not at all mention nor could it be construed to mean that he was entitled for appointment to a post in super-time scale on account of his seniority on the basis of the Next Below Rule. In any event, the letter, we are afraid, cannot take the place of the recommendation of the Senior Selection Committee.27. ### Response: 0 ### Explanation: with orders and instructions issued by the Central Government in that behalf before the commencement of these Rules, is final and cannot be interfered by the Courts under Article 226 of the Constitution unless such decision was capricious or arbitrary or in breach of the said Rules. The same principle should apply to the assignment of a year of allotment under the Nthese circumstances, the decision taken from the beginning was that allowances would not be included in computing the pay and as long as this decision is applied uniformly, without exception, the appellant can have no grievance in this regard to seniority specifically as allowances would have to be added uniformly to all other persons in the seniority list. Thus, the definition of pay in F.R. 9(21)(b) is applicable only for the fixation of pay of a Government servant who had been recruited from the armed Forces. In such a case, the total salary including such allowances as falling within the definition, is taken note of. The petitioner admittedly was given an initial pay of Rs 1, 000/- i.e. much higher than officers appointed to the Indian Administrative Service on the result of the competitive examinations. Here we are not concerned with the fixation of pay of the petitioner but with regard to the Rules relating to the fixation of his seniority which would take note of the period prior to his recruitment to the Indian Administrative Service and for that purpose the basic pay alone was relevant. The concept of pay under F.R. 9(21) (b) cannot, therefore, be introduced for purposes of regulating the year of allotment under N formula, as it relates to fixation of seniority and not of pay. The matter falls to be regulated by the interpretation placed by the Government of India, Ministry of Home Affairs in their letter dated July 18, 1949.If the definition of pay in F.R. 9(21) (b) was to be taken note of, then Calcutta compensatory allowance and marriage allowance would also be included. Obviously, a rule which makes seniority dependent upon marriage allowance and, therefore, on whether the officer was married or not will be violative of Article 14 of thecannot see that the appellant is on a better footing as regards lodging allowance, which is usually given to Army Officers in lieu of rent-free quarters. They become at once disentitled to such allowance the moment they are allotted quarters. Lodging allowance is, therefore, essentially compensatory in nature. The inclusion of pay as defined in F.R. 9(21) (b) in the N formula to include the Lodging allowance, is not permissible as the appellant would have to claim the application of the definition of pay in its full rigour or not at all. Any other construction will lead to manifest injustice as it would result in discrimination between persons similarly situated, i.e., between an Army Officer in receipt of lodging allowance in lieu of rent-free quarters and one in occupation of such rent-free quart es, in the matter of seniority in the Indian Administrative Service. The inevitable conclusion, therefore, is that the definition of pay in F.R. 9(21) (b) was not applicable for purposes of fixation of seniority of thethe present position is that the benefit of the Next Below Rule is available at the first stage of se lection i.e. at the time of appointment in the selection grade but not at the second stage, namely, at the time of promotion to the super-timeis, therefore, abundantly clear that the appellant cannot claim as a right the super-time scale merely on the basis of his seniority among the members of the Indian Administrative Service belonging to the Orissa cadre. The process of appointment to the super-time scale is by selection. When the element of selection comes in, this promotion must be subject only to the claims of exceptional merit and suitability, and is not a matter of right: Union of India v. M.L. (Capoor(1). Promotion to the super-time scale is, therefore, not a matter of course. The officer must stand the test of suitability and his integrity must be beyond doubt. For this purpose, there is a Senior Selection Committee which prepares a select list of suitable officers which must be approved by the Union Public Service Commission. The Senior Selection Committee has to prepare a panel of names for each grade and submit the same for approval to the Union Public Service Commission as well as to the Government of India, Ministry of Home Affairs. The select list has to be reviewed and revised every year, and the Senior Selection Committee meets annually. The essence of holding Selection Committee meeting annually is that each annual proceeding is independent of the other. That is why as soon as the proceedings of the new Selection Committee are approved by the Union Public Service Commission, the proceedings of the earlier Selection Committee become inoperative. No manner of continuity can, therefore, be imputed to the proceedings of the various Selection Committees. It is not the petitioners case that his name was ever brought into the select list by the Senior Selection Committee and approved by the Government of India, Ministry of Home Affairs, for appointment in the selection grade. If the petitioner was consciously passed over by the Senior Selection Committee or the Government of India, Ministry of Home Affairs, then there is no question of the applicability of the Next Beloware afraid, the contention must be rejected. The aforementioned letter only stated that his case would have been considered in the normal course for appointment to the selection grade as well as to a super-time scale post, had he continued under the State Government. It did not at all mention nor could it be construed to mean that he was entitled for appointment to a post in super-time scale on account of his seniority on the basis of the Next Below Rule. In any event, the letter, we are afraid, cannot take the place of the recommendation of the Senior Selection Committee.
Zuari Industries Ltd Vs. Commnr. Of Central Excise & Customs	(supra), this Court held that essentiality certificate must be treated as a proof of fulfillment of the eligibility conditions by the importer for obtaining the benefit of the exemption notification. We may add that, the essentiality certificate is also a proof that an item like Captive Power Plant in a given case could be treated as a capital goods for the fertilizer project. It would depend upon the facts of each case. It a project is to be installed in an area where there is shortage of electricity supply and if the project needs continuous flow of electricity and if that project is approved by the sponsoring Ministry saying that such supply is needed then the Revenue cannot go behind such certificate and deny the benefit of exemption from payment of duty or deny nil rate of duty. To the said effect is the judgment of the Calcutta High Court in the case of Asiatic Oxygen Ltd. (supra) in which it was held that the object behind the specific Heading 98.01 in Customs Tariff Act, 1975 was to promote industrialization and, therefore, the heading was required to be interpreted liberally. It was further held that, once an essentiality certificate was issued by the sponsoring authority, it was mandatory for the Revenue to register the contract.11. Secondly, before us, it has been vehemently urged that although the essentiality certificate stood issued by the sponsoring Ministry, there is non-application of mind by that Ministry with regard to the list of items appended to the certificate. According to the Department the said list has not been countersigned by the competent authority in the sponsoring Ministry. We do not find any merit in the said contention. The list consists of 14 items. The Department has accepted 13 out of 14 items as capital goods required for the fertilizer project, therefore, it cannot be said that the sponsoring Ministry had not applied its mind to the list appended to the essentiality certificate. This point needs further clarification. The power plant in the conceptual sense or in the technical sense is certainly different from the fertilizer plant. However, when we come to Heading 98.01 of the Customs Tariff Act, 1975, the assessment is for the Project. As stated above, Heading 98.01 is the specific entry applicable in the case of the Project Imports. An item like a power plant could be in a given case in independent Plant. Generally, it is a stand-alone equipment. However, when it becomes a part of the entire Project/System, the same power plant can also become one of the items of capital goods. The essentiality certificate given by the sponsoring Ministry has treated Captive Power Plant, in this case, as "capital goods" along with 13 other items. The assessee has also treated the Captive Power Plant as one of the capital goods required for the expansion of the fertilizer project. In the above circumstances, all the items in the list annexed to the certificate have been certified and recommended by the sponsoring Ministry as the entire capital goods required for the substantial expansion of the fertilizer project. Therefore, in our view, the assessee is right in its contention that, in this case, 6 MW Captive Power Plant is one of the items out of 14 items constituting capital goods required for the substantial expansion of the fertilizer project, and, therefore, it fell under serial no. 226(i) as goods required for the fertilizer project entitled to the benefit of nil rate of duty.12. Before concluding, we may point out that, on behalf of the Department, a large number of authorities were cited on interpretation of entries in the Customs Tariff Act, 1975. It is not necessary to examine those authorities on interpretation. Suffice it to state that, Heading 98.01 is a specific entry. It is not a general entry. It is not a residuary entry. It needs to be liberally interpreted as it deals with industrialization. It has to be read in the context of the above Notification No. 11/97.13. In the case of Appraiser, Madras Customs vs. Tamil Nadu Newsprint Papers Ltd. reported in 1988 (36) ELT 272 it has been held that Heading 84.66 (now 98.01) is not a residuary heading or a general heading relating to any class of goods. It is the specific entry introduced with a purpose and it relates to goods imported for initial setting up of a unit or a substantial expansion of an existing unit. It was held that when an importer registers a contract under the specific entry no. 84.66 (now 98.01), all the goods imported by him under that contract will be subjected to duty only as per that entry and it will not be open for the Revenue to pick out some of the goods imported under that contract and impose a different heading. If the conditions prescribed under Heading 84.66 are satisfied, the duty shall be imposed on the goods under the said Heading 84.66 as if the said goods formed the composite unit. In that case there was another Heading 84.31 which referred also to `paper making machinery. The Department contended that duty was payable on the said item under Heading 84.31. It was held by Madras High Court that even if the rate of duty under Heading 84.31 was different from the rate of duty under Heading 84.66, still the rate applicable to the paper making machinery imported for producing papers under the PIR has to fall under specific Heading 84.66 (now 98.01) and not under Heading 84.31, even if paper making machinery came under both the headings. This is because once an item is imported under Project Imports then that items will fall under the specific entry because that item is imported as a part of composite unit (see para 10). In our view, the said judgment of the Madras High Court on interpretation of Heading 98.01 is squarely applicable to the present case, particularly on the interpretation of the entries in the Customs Tariff Act, 1975.	1[ds]9. We find merit in this civil appeal filed by the assessee for the following reasons.10. Firstly, on the facts we find that the assessee had given to the sponsoring Ministry its entire Project Report. In that report they had indicated that for the expansion of the fertilizer project they needed an extra item of capital goods, namely, 6MW Captive Power Plant. In their application, the assessee had made it clear that the fertilizer project was dependent on continuous flow of electricity, which could be provided by such Captive Power Plant. Therefore, it was not open to the Revenue to reject the assessees case for nil rate of duty on the said item, particularly when the certificate says so. In the judgment of this Court in the case of Tullow India Operations Ltd. (supra), this Court held that essentiality certificate must be treated as a proof of fulfillment of the eligibility conditions by the importer for obtaining the benefit of the exemption notification. We may add that, the essentiality certificate is also a proof that an item like Captive Power Plant in a given case could be treated as a capital goods for the fertilizer project. It would depend upon the facts of each case. It a project is to be installed in an area where there is shortage of electricity supply and if the project needs continuous flow of electricity and if that project is approved by the sponsoring Ministry saying that such supply is needed then the Revenue cannot go behind such certificate and deny the benefit of exemption from payment of duty or deny nil rate of duty. To the said effect is the judgment of the Calcutta High Court in the case of Asiatic Oxygen Ltd. (supra) in which it was held that the object behind the specific Heading 98.01 in Customs Tariff Act, 1975 was to promote industrialization and, therefore, the heading was required to be interpreted liberally. It was further held that, once an essentiality certificate was issued by the sponsoring authority, it was mandatory for the Revenue to register the contract.11. Secondly, before us, it has been vehemently urged that although the essentiality certificate stood issued by the sponsoring Ministry, there isof mind by that Ministry with regard to the list of items appended to the certificate. According to the Department the said list has not been countersigned by the competent authority in the sponsoring Ministry. We do not find any merit in the said contention. The list consists of 14 items. The Department has accepted 13 out of 14 items as capital goods required for the fertilizer project, therefore, it cannot be said that the sponsoring Ministry had not applied its mind to the list appended to the essentiality certificate. This point needs further clarification. The power plant in the conceptual sense or in the technical sense is certainly different from the fertilizer plant. However, when we come to Heading 98.01 of the Customs Tariff Act, 1975, the assessment is for the Project.As stated above,Heading 98.01 is the specific entry applicable in the case of the Project Imports. An item like a power plant could be in a given case in independent Plant. Generally, it is aequipment. However, when it becomes a part of the entire Project/System, the same power plant can also become one of the items of capital goods. The essentiality certificate given by the sponsoring Ministry has treated Captive Power Plant, in this case, as "capital goods" along with 13 other items. The assessee has also treated the Captive Power Plant as one of the capital goods required for the expansion of the fertilizer project. In the above circumstances, all the items in the list annexed to the certificate have been certified and recommended by the sponsoring Ministry as the entire capital goods required for the substantial expansion of the fertilizer project. Therefore, in our view, the assessee is right in its contention that, in this case, 6 MW Captive Power Plant is one of the items out of 14 items constituting capital goods required for the substantial expansion of the fertilizer project, and, therefore, it fell under serial no. 226(i) as goods required for the fertilizer project entitled to the benefit of nil rate of duty.12. Before concluding, we may point out that, on behalf of the Department, a large number of authorities were cited on interpretation of entries in the Customs Tariff Act, 1975. It is not necessary to examine those authorities on interpretation. Suffice it to state that, Heading 98.01 is a specific entry. It is not a general entry. It is not a residuary entry. It needs to be liberally interpreted as it deals with industrialization. It has to be read in the context of the above Notification No. 11/97.13. In the case of Appraiser, Madras Customs vs. Tamil Nadu Newsprint Papers Ltd. reported in 1988 (36) ELT 272 it has been held that Heading 84.66 (now 98.01) is not a residuary heading or a general heading relating to any class of goods. It is the specific entry introduced with a purpose and it relates to goods imported for initial setting up of a unit or a substantial expansion of an existing unit. It was held that when an importer registers a contract under the specific entry no. 84.66 (now 98.01), all the goods imported by him under that contract will be subjected to duty only as per that entry and it will not be open for the Revenue to pick out some of the goods imported under that contract and impose a different heading. If the conditions prescribed under Heading 84.66 are satisfied, the duty shall be imposed on the goods under the said Heading 84.66 as if the said goods formed the composite unit. In that case there was another Heading 84.31 which referred also to `paper making machinery. The Department contended that duty was payable on the said item under Heading 84.31. It was held by Madras High Court that even if the rate of duty under Heading 84.31 was different from the rate of duty under Heading 84.66, still the rate applicable to the paper making machinery imported for producing papers under the PIR has to fall under specific Heading 84.66 (now 98.01) and not under Heading 84.31, even if paper making machinery came under both the headings. This is because once an item is imported under Project Imports then that items will fall under the specific entry because that item is imported as a part of composite unit (see para 10). In our view, the said judgment of the Madras High Court on interpretation of Heading 98.01 is squarely applicable to the present case, particularly on the interpretation of the entries in the Customs Tariff Act, 1975.	1	3,795	1,249	### 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: (supra), this Court held that essentiality certificate must be treated as a proof of fulfillment of the eligibility conditions by the importer for obtaining the benefit of the exemption notification. We may add that, the essentiality certificate is also a proof that an item like Captive Power Plant in a given case could be treated as a capital goods for the fertilizer project. It would depend upon the facts of each case. It a project is to be installed in an area where there is shortage of electricity supply and if the project needs continuous flow of electricity and if that project is approved by the sponsoring Ministry saying that such supply is needed then the Revenue cannot go behind such certificate and deny the benefit of exemption from payment of duty or deny nil rate of duty. To the said effect is the judgment of the Calcutta High Court in the case of Asiatic Oxygen Ltd. (supra) in which it was held that the object behind the specific Heading 98.01 in Customs Tariff Act, 1975 was to promote industrialization and, therefore, the heading was required to be interpreted liberally. It was further held that, once an essentiality certificate was issued by the sponsoring authority, it was mandatory for the Revenue to register the contract.11. Secondly, before us, it has been vehemently urged that although the essentiality certificate stood issued by the sponsoring Ministry, there is non-application of mind by that Ministry with regard to the list of items appended to the certificate. According to the Department the said list has not been countersigned by the competent authority in the sponsoring Ministry. We do not find any merit in the said contention. The list consists of 14 items. The Department has accepted 13 out of 14 items as capital goods required for the fertilizer project, therefore, it cannot be said that the sponsoring Ministry had not applied its mind to the list appended to the essentiality certificate. This point needs further clarification. The power plant in the conceptual sense or in the technical sense is certainly different from the fertilizer plant. However, when we come to Heading 98.01 of the Customs Tariff Act, 1975, the assessment is for the Project. As stated above, Heading 98.01 is the specific entry applicable in the case of the Project Imports. An item like a power plant could be in a given case in independent Plant. Generally, it is a stand-alone equipment. However, when it becomes a part of the entire Project/System, the same power plant can also become one of the items of capital goods. The essentiality certificate given by the sponsoring Ministry has treated Captive Power Plant, in this case, as "capital goods" along with 13 other items. The assessee has also treated the Captive Power Plant as one of the capital goods required for the expansion of the fertilizer project. In the above circumstances, all the items in the list annexed to the certificate have been certified and recommended by the sponsoring Ministry as the entire capital goods required for the substantial expansion of the fertilizer project. Therefore, in our view, the assessee is right in its contention that, in this case, 6 MW Captive Power Plant is one of the items out of 14 items constituting capital goods required for the substantial expansion of the fertilizer project, and, therefore, it fell under serial no. 226(i) as goods required for the fertilizer project entitled to the benefit of nil rate of duty.12. Before concluding, we may point out that, on behalf of the Department, a large number of authorities were cited on interpretation of entries in the Customs Tariff Act, 1975. It is not necessary to examine those authorities on interpretation. Suffice it to state that, Heading 98.01 is a specific entry. It is not a general entry. It is not a residuary entry. It needs to be liberally interpreted as it deals with industrialization. It has to be read in the context of the above Notification No. 11/97.13. In the case of Appraiser, Madras Customs vs. Tamil Nadu Newsprint Papers Ltd. reported in 1988 (36) ELT 272 it has been held that Heading 84.66 (now 98.01) is not a residuary heading or a general heading relating to any class of goods. It is the specific entry introduced with a purpose and it relates to goods imported for initial setting up of a unit or a substantial expansion of an existing unit. It was held that when an importer registers a contract under the specific entry no. 84.66 (now 98.01), all the goods imported by him under that contract will be subjected to duty only as per that entry and it will not be open for the Revenue to pick out some of the goods imported under that contract and impose a different heading. If the conditions prescribed under Heading 84.66 are satisfied, the duty shall be imposed on the goods under the said Heading 84.66 as if the said goods formed the composite unit. In that case there was another Heading 84.31 which referred also to `paper making machinery. The Department contended that duty was payable on the said item under Heading 84.31. It was held by Madras High Court that even if the rate of duty under Heading 84.31 was different from the rate of duty under Heading 84.66, still the rate applicable to the paper making machinery imported for producing papers under the PIR has to fall under specific Heading 84.66 (now 98.01) and not under Heading 84.31, even if paper making machinery came under both the headings. This is because once an item is imported under Project Imports then that items will fall under the specific entry because that item is imported as a part of composite unit (see para 10). In our view, the said judgment of the Madras High Court on interpretation of Heading 98.01 is squarely applicable to the present case, particularly on the interpretation of the entries in the Customs Tariff Act, 1975. ### Response: 1 ### Explanation: of Tullow India Operations Ltd. (supra), this Court held that essentiality certificate must be treated as a proof of fulfillment of the eligibility conditions by the importer for obtaining the benefit of the exemption notification. We may add that, the essentiality certificate is also a proof that an item like Captive Power Plant in a given case could be treated as a capital goods for the fertilizer project. It would depend upon the facts of each case. It a project is to be installed in an area where there is shortage of electricity supply and if the project needs continuous flow of electricity and if that project is approved by the sponsoring Ministry saying that such supply is needed then the Revenue cannot go behind such certificate and deny the benefit of exemption from payment of duty or deny nil rate of duty. To the said effect is the judgment of the Calcutta High Court in the case of Asiatic Oxygen Ltd. (supra) in which it was held that the object behind the specific Heading 98.01 in Customs Tariff Act, 1975 was to promote industrialization and, therefore, the heading was required to be interpreted liberally. It was further held that, once an essentiality certificate was issued by the sponsoring authority, it was mandatory for the Revenue to register the contract.11. Secondly, before us, it has been vehemently urged that although the essentiality certificate stood issued by the sponsoring Ministry, there isof mind by that Ministry with regard to the list of items appended to the certificate. According to the Department the said list has not been countersigned by the competent authority in the sponsoring Ministry. We do not find any merit in the said contention. The list consists of 14 items. The Department has accepted 13 out of 14 items as capital goods required for the fertilizer project, therefore, it cannot be said that the sponsoring Ministry had not applied its mind to the list appended to the essentiality certificate. This point needs further clarification. The power plant in the conceptual sense or in the technical sense is certainly different from the fertilizer plant. However, when we come to Heading 98.01 of the Customs Tariff Act, 1975, the assessment is for the Project.As stated above,Heading 98.01 is the specific entry applicable in the case of the Project Imports. An item like a power plant could be in a given case in independent Plant. Generally, it is aequipment. However, when it becomes a part of the entire Project/System, the same power plant can also become one of the items of capital goods. The essentiality certificate given by the sponsoring Ministry has treated Captive Power Plant, in this case, as "capital goods" along with 13 other items. The assessee has also treated the Captive Power Plant as one of the capital goods required for the expansion of the fertilizer project. In the above circumstances, all the items in the list annexed to the certificate have been certified and recommended by the sponsoring Ministry as the entire capital goods required for the substantial expansion of the fertilizer project. Therefore, in our view, the assessee is right in its contention that, in this case, 6 MW Captive Power Plant is one of the items out of 14 items constituting capital goods required for the substantial expansion of the fertilizer project, and, therefore, it fell under serial no. 226(i) as goods required for the fertilizer project entitled to the benefit of nil rate of duty.12. Before concluding, we may point out that, on behalf of the Department, a large number of authorities were cited on interpretation of entries in the Customs Tariff Act, 1975. It is not necessary to examine those authorities on interpretation. Suffice it to state that, Heading 98.01 is a specific entry. It is not a general entry. It is not a residuary entry. It needs to be liberally interpreted as it deals with industrialization. It has to be read in the context of the above Notification No. 11/97.13. In the case of Appraiser, Madras Customs vs. Tamil Nadu Newsprint Papers Ltd. reported in 1988 (36) ELT 272 it has been held that Heading 84.66 (now 98.01) is not a residuary heading or a general heading relating to any class of goods. It is the specific entry introduced with a purpose and it relates to goods imported for initial setting up of a unit or a substantial expansion of an existing unit. It was held that when an importer registers a contract under the specific entry no. 84.66 (now 98.01), all the goods imported by him under that contract will be subjected to duty only as per that entry and it will not be open for the Revenue to pick out some of the goods imported under that contract and impose a different heading. If the conditions prescribed under Heading 84.66 are satisfied, the duty shall be imposed on the goods under the said Heading 84.66 as if the said goods formed the composite unit. In that case there was another Heading 84.31 which referred also to `paper making machinery. The Department contended that duty was payable on the said item under Heading 84.31. It was held by Madras High Court that even if the rate of duty under Heading 84.31 was different from the rate of duty under Heading 84.66, still the rate applicable to the paper making machinery imported for producing papers under the PIR has to fall under specific Heading 84.66 (now 98.01) and not under Heading 84.31, even if paper making machinery came under both the headings. This is because once an item is imported under Project Imports then that items will fall under the specific entry because that item is imported as a part of composite unit (see para 10). In our view, the said judgment of the Madras High Court on interpretation of Heading 98.01 is squarely applicable to the present case, particularly on the interpretation of the entries in the Customs Tariff Act, 1975.
Sitaram Ramcharan & Others Vs. M.N. Nagrashna	compensation sent to the workmans employer. In other words, according to that decision, the limitation of six months prescribed by S. 2(1) applies to the notice of claim which a workman has to give to his employer; it had no reference to the proceedings which a workman would institute before the tribunal claiming to recover the said compensation. The notice of claim had to be served on the employer within six months after the date of the accident, and after serving such notice proceedings had to be initiated before the tribunal claiming compensation. The effect of the two English decisions, therefore, is that if a workman shows sufficient cause for the delay made by him in serving the notice of claim on the employer there was no question of calling upon him to explain any further delay made by him in instituting the proceedings before the tribunal for the recovery of compensation. In fact, for the institution of such proceedings there was no statutory limitation at all.18. Let us now turn to S. 10 of our Workmens Compensation Act. Section 10(1) as it originally stood prescribed a period of six months for the making of the claim for compensation. It also required that notice of the accident had to be given as soon as practicable after the happening thereof and before the workman had voluntarily left the employment in which he was injured. The second proviso to S. 10 (1) lays down that the Commissioner may admit and decide any claim to compensation notwithstanding that the notice had not been given or the claim had not been instituted in due time as provided by the sub-section if he is satisfied that the failure so to give notice or to institute the claim as the case may be was due to sufficient cause. It appears that in construing the material terms of this proviso it was thought that the position under the proviso was similar to the position under the proviso (b) of S. 2 (1) of the English Act. It is open to argument whether that is really so; but, in any case, after S. 10 was amended in 1938 the position is clearly different and distinguishable from the position of the English section. The relevant proviso under the amended section lays down that a Commissioner may entertain and decide any claim for compensation in any case notwithstanding that notice has not been given, or the claim has not been preferred before it in due time as provided by S. 10, sub-s. (1) if he is satisfied that the failure so to give the notice or prefer the claim as the case may be was due to sufficient cause. It is significant that S. 10 (1) requires the notice of accident to be given as soon as practicable and the claim to be preferred before the Commissioner within six months. This period has subsequently been enlarged to a period of one year; but that is another matter. Thus the position under S. 10 as amended clearly is that the six months limitation has been prescribed for preferring the application for compensation before the Commissioner; and so there can be no anology between the limitation thus prescribed and the limitation prescribed by S. 2 (1) of the English Act. With respect, we may add that in the case of Kamarhatti Co., Ltd. 1952-1 Lab LJ 490: (AIR 1953 Cal 74 ) (supra), where the learned judges held that the decision in Lingleys case 1921-1 KB 655 (supra), was applicable to the case before them, their attention was not drawn to the material change made by the amendment of S. 10 of the Indian Act. But the view expressed by the court in that case on the point of law is clearly obiter. The actual decision was that no sufficient cause had been shown by the claimant even on the liberal construction of the proviso, and so the order directing the employer to pay compensation to his workmen was set aside. Thus it would be clear that the decisions on which Mr. Phadke founds his argument were concerned with a statutory provision as to limitation which is essentially different from the provision made by the proviso with which we are concerned.19. The proviso with which we are concerned has prescribed the limitation of six months for the institution of the application itself, and so the principle laid down in Lingleys case 1921-1 KB 655 (supra), can have no application to the question which we have to decide. Indeed, the present proviso is in substance similar to the provision in S. 5 of the Limitation Act, and Mr. Phadke has fairly conceded that there is consensus of judicial opinion on the question of the construction of S. 5.It cannot be disputed that in dealing with the question of condoning delay under S. 5 of the Limitation Act the party has to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay (Vide Ram Narain Joshi v. Parmeswar Narain Mahta, ILR 30 Cal 309 (PC).Therefore the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction between 2-5-1952, and the respective dates on which they filed their present applications is fatal to their claim. That is why we think it unnecessary to consider the larger question of law which Mr. Phadke sought to raise before us.20. We would like to add that the learned Attorney-General had raised a preliminary objection against the validity of the certificate granted by the High Court in the present appeals. He wanted to urge that the High Court was in error in considering the total value of the consolidated appeals for the purpose of granting certificate under Art. 133. We have, however, not thought it necessary to consider this argument.	0[ds]It is clear that this award proceeded on the assumption that the relevant provisions of the Factories Act did not apply to the appellants. On May 2, 1952, the appellate decision delivered by the Chief Judge of the Court of Small Causes in the case of Ruby Mills; vide Bombay Labour Gazette dated January 1953. Vol. 32, No. 5, p. 521, however, construed S. 70 of the Bombay Shops and Establishments Act and held that the employees falling under the provisions of the said section were entitled to claim overtime wages under S. 59 of the Factories Act. In other words, this decision for the first time properly construed S. 70 of the Bombay Act and held that the said section in substance extended the provisions of S. 59 of the Factories Act to the employees covered by S.do not propose to deal with this argument because, as we will presently point out, we have come to the conclusion that the appellants would fail even if we were to uphold Mr. Phadkes presentlatter conclusion is a finding on a question of fact and its propriety or validity could not have been challenged before the High Court and cannot be questioned before us in the present appeals.Now in order to appreciate the effect of the decision in the case of Lingley,KB 655 (supra), it would be relevant to emphasise that in that case the Court of Appeal was really giving effect to an earlier decision of the House of Lords in Powellv. Main Colliery Co. Ltd. 1900 AC 366,and, as the judgments of all the learned judges indicate, they were following the said decision with some reluctance. In the case of Powell, 1900 AC 366 (supra), the House of Lords had held that the claim for compensation specified in S. 2 (1) of the English Act does not mean initiation of the proceedings before the tribunal by which compensation is to be assessed, but a notice of claim of compensation sent to the workmans employer. In other words, according to that decision, the limitation of six months prescribed by S. 2(1) applies to the notice of claim which a workman has to give to his employer; it had no reference to the proceedings which a workman would institute before the tribunal claiming to recover the said compensation. The notice of claim had to be served on the employer within six months after the date of the accident, and after serving such notice proceedings had to be initiated before the tribunal claiming compensation. The effect of the two English decisions, therefore, is that if a workman shows sufficient cause for the delay made by him in serving the notice of claim on the employer there was no question of calling upon him to explain any further delay made by him in instituting the proceedings before the tribunal for the recovery of compensation. In fact, for the institution of such proceedings there was no statutory limitation at all.18. Let us now turn to S. 10 of our Workmens Compensation Act. Section 10(1) as it originally stood prescribed a period of six months for the making of the claim for compensation. It also required that notice of the accident had to be given as soon as practicable after the happening thereof and before the workman had voluntarily left the employment in which he was injured. The second proviso to S. 10 (1) lays down that the Commissioner may admit and decide any claim to compensation notwithstanding that the notice had not been given or the claim had not been instituted in due time as provided by theif he is satisfied that the failure so to give notice or to institute the claim as the case may be was due to sufficient cause. It appears that in construing the material terms of this proviso it was thought that the position under the proviso was similar to the position under the proviso (b) of S. 2 (1) of the English Act. It is open to argument whether that is really so; but, in any case, after S. 10 was amended in 1938 the position is clearly different and distinguishable from the position of the English section. The relevant proviso under the amended section lays down that a Commissioner may entertain and decide any claim for compensation in any case notwithstanding that notice has not been given, or the claim has not been preferred before it in due time as provided by S. 10,(1) if he is satisfied that the failure so to give the notice or prefer the claim as the case may be was due to sufficient cause. It is significant that S. 10 (1) requires the notice of accident to be given as soon as practicable and the claim to be preferred before the Commissioner within six months. This period has subsequently been enlarged to a period of one year; but that is another matter. Thus the position under S. 10 as amended clearly is that the six months limitation has been prescribed for preferring the application for compensation before the Commissioner; and so there can be no anology between the limitation thus prescribed and the limitation prescribed by S. 2 (1) of the English Act. With respect, we may add that in the case of Kamarhatti Co., Ltd.Lab LJ 490: (AIR 1953 Cal 74 ) (supra), where the learned judges held that the decision in Lingleys caseKB 655 (supra), was applicable to the case before them, their attention was not drawn to the material change made by the amendment of S. 10 of the Indian Act. But the view expressed by the court in that case on the point of law is clearly obiter. The actual decision was that no sufficient cause had been shown by the claimant even on the liberal construction of the proviso, and so the order directing the employer to pay compensation to his workmen was set aside. Thus it would be clear that the decisions on which Mr. Phadke founds his argument were concerned with a statutory provision as to limitation which is essentially different from the provision made by the proviso with which we are concerned.19. The proviso with which we are concerned has prescribed the limitation of six months for the institution of the application itself, and so the principle laid down in Lingleys caseKB 655 (supra), can have no application to the question which we have to decide. Indeed, the present proviso is in substance similar to the provision in S. 5 of the Limitation Act, and Mr. Phadke has fairly conceded that there is consensus of judicial opinion on the question of the construction of S. 5.It cannot be disputed that in dealing with the question of condoning delay under S. 5 of the Limitation Act the party has to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay (Vide Ram Narain Joshi v. Parmeswar Narain Mahta, ILR 30 Cal 309 (PC).Therefore the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction betweenand the respective dates on which they filed their present applications is fatal to their claim. That is why we think it unnecessary to consider the larger question of law which Mr. Phadke sought to raise before us.20. We would like to add that the learnedhad raised a preliminary objection against the validity of the certificate granted by the High Court in the present appeals. He wanted to urge that the High Court was in error in considering the total value of the consolidated appeals for the purpose of granting certificate under Art. 133. We have, however, not thought it necessary to consider this argument.	0	5,253	1,438	### 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: compensation sent to the workmans employer. In other words, according to that decision, the limitation of six months prescribed by S. 2(1) applies to the notice of claim which a workman has to give to his employer; it had no reference to the proceedings which a workman would institute before the tribunal claiming to recover the said compensation. The notice of claim had to be served on the employer within six months after the date of the accident, and after serving such notice proceedings had to be initiated before the tribunal claiming compensation. The effect of the two English decisions, therefore, is that if a workman shows sufficient cause for the delay made by him in serving the notice of claim on the employer there was no question of calling upon him to explain any further delay made by him in instituting the proceedings before the tribunal for the recovery of compensation. In fact, for the institution of such proceedings there was no statutory limitation at all.18. Let us now turn to S. 10 of our Workmens Compensation Act. Section 10(1) as it originally stood prescribed a period of six months for the making of the claim for compensation. It also required that notice of the accident had to be given as soon as practicable after the happening thereof and before the workman had voluntarily left the employment in which he was injured. The second proviso to S. 10 (1) lays down that the Commissioner may admit and decide any claim to compensation notwithstanding that the notice had not been given or the claim had not been instituted in due time as provided by the sub-section if he is satisfied that the failure so to give notice or to institute the claim as the case may be was due to sufficient cause. It appears that in construing the material terms of this proviso it was thought that the position under the proviso was similar to the position under the proviso (b) of S. 2 (1) of the English Act. It is open to argument whether that is really so; but, in any case, after S. 10 was amended in 1938 the position is clearly different and distinguishable from the position of the English section. The relevant proviso under the amended section lays down that a Commissioner may entertain and decide any claim for compensation in any case notwithstanding that notice has not been given, or the claim has not been preferred before it in due time as provided by S. 10, sub-s. (1) if he is satisfied that the failure so to give the notice or prefer the claim as the case may be was due to sufficient cause. It is significant that S. 10 (1) requires the notice of accident to be given as soon as practicable and the claim to be preferred before the Commissioner within six months. This period has subsequently been enlarged to a period of one year; but that is another matter. Thus the position under S. 10 as amended clearly is that the six months limitation has been prescribed for preferring the application for compensation before the Commissioner; and so there can be no anology between the limitation thus prescribed and the limitation prescribed by S. 2 (1) of the English Act. With respect, we may add that in the case of Kamarhatti Co., Ltd. 1952-1 Lab LJ 490: (AIR 1953 Cal 74 ) (supra), where the learned judges held that the decision in Lingleys case 1921-1 KB 655 (supra), was applicable to the case before them, their attention was not drawn to the material change made by the amendment of S. 10 of the Indian Act. But the view expressed by the court in that case on the point of law is clearly obiter. The actual decision was that no sufficient cause had been shown by the claimant even on the liberal construction of the proviso, and so the order directing the employer to pay compensation to his workmen was set aside. Thus it would be clear that the decisions on which Mr. Phadke founds his argument were concerned with a statutory provision as to limitation which is essentially different from the provision made by the proviso with which we are concerned.19. The proviso with which we are concerned has prescribed the limitation of six months for the institution of the application itself, and so the principle laid down in Lingleys case 1921-1 KB 655 (supra), can have no application to the question which we have to decide. Indeed, the present proviso is in substance similar to the provision in S. 5 of the Limitation Act, and Mr. Phadke has fairly conceded that there is consensus of judicial opinion on the question of the construction of S. 5.It cannot be disputed that in dealing with the question of condoning delay under S. 5 of the Limitation Act the party has to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay (Vide Ram Narain Joshi v. Parmeswar Narain Mahta, ILR 30 Cal 309 (PC).Therefore the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction between 2-5-1952, and the respective dates on which they filed their present applications is fatal to their claim. That is why we think it unnecessary to consider the larger question of law which Mr. Phadke sought to raise before us.20. We would like to add that the learned Attorney-General had raised a preliminary objection against the validity of the certificate granted by the High Court in the present appeals. He wanted to urge that the High Court was in error in considering the total value of the consolidated appeals for the purpose of granting certificate under Art. 133. We have, however, not thought it necessary to consider this argument. ### Response: 0 ### Explanation: by which compensation is to be assessed, but a notice of claim of compensation sent to the workmans employer. In other words, according to that decision, the limitation of six months prescribed by S. 2(1) applies to the notice of claim which a workman has to give to his employer; it had no reference to the proceedings which a workman would institute before the tribunal claiming to recover the said compensation. The notice of claim had to be served on the employer within six months after the date of the accident, and after serving such notice proceedings had to be initiated before the tribunal claiming compensation. The effect of the two English decisions, therefore, is that if a workman shows sufficient cause for the delay made by him in serving the notice of claim on the employer there was no question of calling upon him to explain any further delay made by him in instituting the proceedings before the tribunal for the recovery of compensation. In fact, for the institution of such proceedings there was no statutory limitation at all.18. Let us now turn to S. 10 of our Workmens Compensation Act. Section 10(1) as it originally stood prescribed a period of six months for the making of the claim for compensation. It also required that notice of the accident had to be given as soon as practicable after the happening thereof and before the workman had voluntarily left the employment in which he was injured. The second proviso to S. 10 (1) lays down that the Commissioner may admit and decide any claim to compensation notwithstanding that the notice had not been given or the claim had not been instituted in due time as provided by theif he is satisfied that the failure so to give notice or to institute the claim as the case may be was due to sufficient cause. It appears that in construing the material terms of this proviso it was thought that the position under the proviso was similar to the position under the proviso (b) of S. 2 (1) of the English Act. It is open to argument whether that is really so; but, in any case, after S. 10 was amended in 1938 the position is clearly different and distinguishable from the position of the English section. The relevant proviso under the amended section lays down that a Commissioner may entertain and decide any claim for compensation in any case notwithstanding that notice has not been given, or the claim has not been preferred before it in due time as provided by S. 10,(1) if he is satisfied that the failure so to give the notice or prefer the claim as the case may be was due to sufficient cause. It is significant that S. 10 (1) requires the notice of accident to be given as soon as practicable and the claim to be preferred before the Commissioner within six months. This period has subsequently been enlarged to a period of one year; but that is another matter. Thus the position under S. 10 as amended clearly is that the six months limitation has been prescribed for preferring the application for compensation before the Commissioner; and so there can be no anology between the limitation thus prescribed and the limitation prescribed by S. 2 (1) of the English Act. With respect, we may add that in the case of Kamarhatti Co., Ltd.Lab LJ 490: (AIR 1953 Cal 74 ) (supra), where the learned judges held that the decision in Lingleys caseKB 655 (supra), was applicable to the case before them, their attention was not drawn to the material change made by the amendment of S. 10 of the Indian Act. But the view expressed by the court in that case on the point of law is clearly obiter. The actual decision was that no sufficient cause had been shown by the claimant even on the liberal construction of the proviso, and so the order directing the employer to pay compensation to his workmen was set aside. Thus it would be clear that the decisions on which Mr. Phadke founds his argument were concerned with a statutory provision as to limitation which is essentially different from the provision made by the proviso with which we are concerned.19. The proviso with which we are concerned has prescribed the limitation of six months for the institution of the application itself, and so the principle laid down in Lingleys caseKB 655 (supra), can have no application to the question which we have to decide. Indeed, the present proviso is in substance similar to the provision in S. 5 of the Limitation Act, and Mr. Phadke has fairly conceded that there is consensus of judicial opinion on the question of the construction of S. 5.It cannot be disputed that in dealing with the question of condoning delay under S. 5 of the Limitation Act the party has to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay (Vide Ram Narain Joshi v. Parmeswar Narain Mahta, ILR 30 Cal 309 (PC).Therefore the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction betweenand the respective dates on which they filed their present applications is fatal to their claim. That is why we think it unnecessary to consider the larger question of law which Mr. Phadke sought to raise before us.20. We would like to add that the learnedhad raised a preliminary objection against the validity of the certificate granted by the High Court in the present appeals. He wanted to urge that the High Court was in error in considering the total value of the consolidated appeals for the purpose of granting certificate under Art. 133. We have, however, not thought it necessary to consider this argument.
Achutyanand Singh & Another Vs. State of Bihar & Others	helpful to reproduce R. 39: "39. Compulsory amalgamation of societies: (1) If the Registrar is satisfied, after taking into consideration the financial position of two or more societies and such other matters relating to the societies as may be proper, that it is in the interest of those societies to be amalgamated into a new society, he may, by order in writing, require the managing committees of the societies concerned to convene general meetings of the share-holders and creditors thereof within six weeks from the date of the order, for the purpose of considering a proposal to amalgamate the societies into a new society. (2) If the managing committees fail to call any such meeting for the purpose, or if the decision in any such meeting is against the proposed amalgamation, or no decision is taken at any such meeting, the Registrar may, on the expiry of six weeks from the date of his order and after satisfying himself that the interest of the creditors has been adequately safeguarded, direct that the said societies shall be amalgamated into a new society with effect from a date to be specified in the direction. (3) The Registrar shall, with effect from the said date, register the new society and on such registration the assets and liabilities of the amalgamated societies shall vest in the new society. (4) An appeal against an order passed under sub-rule (1) shall lie, within one month from the date of such order,- (i) if the order has been passed by any officer exercising the powers of Registrar, to the Registrar; (ii) if the order has been passed by the Registrar, to the State Government. (5) No action under sub-rule (2) shall be taken until the disposal of the appeal under sub-rule (4)." The last contention attacked the impugned order dated January 22, 1968, on the ground that along with the registration of the new amalgamated society the bye-laws of the petitioner society wire also altered and this according to the petitioners submission further violates vested rights of the petitioner society. Under Section 26 of the Bihar and Orissa Cooperative Societies Act the Registrar can amend the bye-laws only if it is necessary or desirable to do so in the interest of such society. In the instant case it was argued there is no question of amending the bye-laws in the interest of the society which has been compulsorily amalgamated with other societies. 4. Shri D. P. Singh, the learned counsel for the respondents, in reply placed reliance on a notification (No. 1186) dated November 16, 1965, by means of which the power of Registrar, inter alia, under R. 39 of the Bihar and Orissa Co-operative Societies Rules was conferred on the Assistant Registrar. This notification was not relied upon in the counter-affidavit. It was published in the Bihar Gazette (Extraordinary) dated May 1, 1968, and a copy of the Gazette Notification was actually produced at the time of hearing in this Court. The question arises if this notification was operative, and the Assistant Registrar could lawfully claim to take action under the delegated authority, on November 25, 1967, and January 22, 1968. 5. Before considering the merits of this contention, we consider it proper to refer to tome of the statutory provisions. The Bihar and Orissa Co-operative Societies Act (No. VI of 1935) was enacted in May 1935 to consolidate and amend the law relating to Co-operative Societies in the State of Bihar and Orissa. Under S. 6 (1) the State Government is empowered to appoint a person to be a Registrar of Co-operative Societies for the State or any portion of it, and also to appoint persons to assist such Registrar. Under sub-s. (2): "The State Government may, by general or special order published in the Official Gazette, confer, - (a) on any person appointed under sub-section (1), to assist the Registrar, all or any of the powers of the Registrar under this Act except the powers under section 26, and (b) x x x x " It is obvious that the powers of a Registrar can be conferred on a person appointed under S. 6 (1) by means of a general or special order published in the Official Gazette. As the notification in the present case was published in the Official Gazette on May 1, 1968, the order conferring the Registrars power on the Assistant Registrar mentioned therein could not be operative before that date and no valid order under R. 39 could be made by any such Assistant Registrar prior to that date. 6. The next relevant statutory provision is R: 39 of the Bihar Co-operative Societies Rules, 1959 made under S. 66 of the Act. This rule has already been set out. It is clear that so long as the appeal remains pending with the Registrar or the State Government, as the case may be, no order can made under sub-rule (2).It is not disputed before us that the petitioner society had appealed from the order of the Assistant Registrar dated November, 25, 1967 to the Registrar and that on January 22, 1968 that appeal was pending. Indeed it is still pending awaiting disposal. In view of the fact that on January 22, 1968, when the order under R. 39 (2) was made by the Assistant Registrar, the appeal against the order dated November 25, 1967, was pending with the Registrar, the order dated January 22, 1968, must be held to be contrary to law and therefore void. Once this order is struck down the challenge to the order dated November 25, 1967 will have to be decided by the Registrar before whom the appeal from that order is pending and we do not consider it either necessary or proper to express any opinion on that point. 7. The third contention also stands accepted because the new bye-laws were enforced by means of the order dated January 22, 1968, and if that order is struck down the new bye-laws would fall with it.	1[ds]5. Before considering the merits of this contention, we consider it proper to refer to tome of the statutory provisions. The Bihar and OrissaCooperativeSocieties Act (No. VI of 1935) was enacted in May 1935 to consolidate and amend the law relating toCooperativeSocieties in the State of Bihar and Orissa. Under S. 6 (1) the State Government is empowered to appoint a person to be a Registrar ofCooperativeSocieties for the State or any portion of it, and also to appoint persons to assist such Registrar. Under"The State Government may, by general or special order published in the Official Gazette, confer,(a) on any person appointed undern (1), to assist the Registrar, all or any of the powers of the Registrar under this Act except the powers under section 26, and(b) x x x x "It is obvious that the powers of a Registrar can be conferred on a person appointed under S. 6 (1) by means of a general or special order published in the Official Gazette. As the notification in the present case was published in the Official Gazette on May 1, 1968, the order conferring the Registrars power on the Assistant Registrar mentioned therein could not be operative before that date and no valid order under R. 39 could be made by any such Assistant Registrar prior to that date6. The next relevant statutory provision is R: 39 of the BiharCooperativeSocieties Rules, 1959 made under S. 66 of the Act. This rule has already been set out. It is clear that so long as the appeal remains pending with the Registrar or the State Government, as the case may be, no order can made undere (2).It is not disputed before us that the petitioner society had appealed from the order of the Assistant Registrar dated November, 25, 1967 to the Registrar and that on January 22, 1968 that appeal was pending. Indeed it is still pending awaiting disposal. In view of the fact that on January 22, 1968, when the order under R. 39 (2) was made by the Assistant Registrar, the appeal against the order dated November 25, 1967, was pending with the Registrar, the order dated January 22, 1968, must be held to be contrary to law and therefore void. Once this order is struck down the challenge to the order dated November 25, 1967 will have to be decided by the Registrar before whom the appeal from that order is pending and we do not consider it either necessary or proper to express any opinion on that point7. The third contention also stands accepted because the news were enforced by means of the order dated January 22, 1968, and if that order is struck down the news would fall with it.	1	1,889	522	### 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: helpful to reproduce R. 39: "39. Compulsory amalgamation of societies: (1) If the Registrar is satisfied, after taking into consideration the financial position of two or more societies and such other matters relating to the societies as may be proper, that it is in the interest of those societies to be amalgamated into a new society, he may, by order in writing, require the managing committees of the societies concerned to convene general meetings of the share-holders and creditors thereof within six weeks from the date of the order, for the purpose of considering a proposal to amalgamate the societies into a new society. (2) If the managing committees fail to call any such meeting for the purpose, or if the decision in any such meeting is against the proposed amalgamation, or no decision is taken at any such meeting, the Registrar may, on the expiry of six weeks from the date of his order and after satisfying himself that the interest of the creditors has been adequately safeguarded, direct that the said societies shall be amalgamated into a new society with effect from a date to be specified in the direction. (3) The Registrar shall, with effect from the said date, register the new society and on such registration the assets and liabilities of the amalgamated societies shall vest in the new society. (4) An appeal against an order passed under sub-rule (1) shall lie, within one month from the date of such order,- (i) if the order has been passed by any officer exercising the powers of Registrar, to the Registrar; (ii) if the order has been passed by the Registrar, to the State Government. (5) No action under sub-rule (2) shall be taken until the disposal of the appeal under sub-rule (4)." The last contention attacked the impugned order dated January 22, 1968, on the ground that along with the registration of the new amalgamated society the bye-laws of the petitioner society wire also altered and this according to the petitioners submission further violates vested rights of the petitioner society. Under Section 26 of the Bihar and Orissa Cooperative Societies Act the Registrar can amend the bye-laws only if it is necessary or desirable to do so in the interest of such society. In the instant case it was argued there is no question of amending the bye-laws in the interest of the society which has been compulsorily amalgamated with other societies. 4. Shri D. P. Singh, the learned counsel for the respondents, in reply placed reliance on a notification (No. 1186) dated November 16, 1965, by means of which the power of Registrar, inter alia, under R. 39 of the Bihar and Orissa Co-operative Societies Rules was conferred on the Assistant Registrar. This notification was not relied upon in the counter-affidavit. It was published in the Bihar Gazette (Extraordinary) dated May 1, 1968, and a copy of the Gazette Notification was actually produced at the time of hearing in this Court. The question arises if this notification was operative, and the Assistant Registrar could lawfully claim to take action under the delegated authority, on November 25, 1967, and January 22, 1968. 5. Before considering the merits of this contention, we consider it proper to refer to tome of the statutory provisions. The Bihar and Orissa Co-operative Societies Act (No. VI of 1935) was enacted in May 1935 to consolidate and amend the law relating to Co-operative Societies in the State of Bihar and Orissa. Under S. 6 (1) the State Government is empowered to appoint a person to be a Registrar of Co-operative Societies for the State or any portion of it, and also to appoint persons to assist such Registrar. Under sub-s. (2): "The State Government may, by general or special order published in the Official Gazette, confer, - (a) on any person appointed under sub-section (1), to assist the Registrar, all or any of the powers of the Registrar under this Act except the powers under section 26, and (b) x x x x " It is obvious that the powers of a Registrar can be conferred on a person appointed under S. 6 (1) by means of a general or special order published in the Official Gazette. As the notification in the present case was published in the Official Gazette on May 1, 1968, the order conferring the Registrars power on the Assistant Registrar mentioned therein could not be operative before that date and no valid order under R. 39 could be made by any such Assistant Registrar prior to that date. 6. The next relevant statutory provision is R: 39 of the Bihar Co-operative Societies Rules, 1959 made under S. 66 of the Act. This rule has already been set out. It is clear that so long as the appeal remains pending with the Registrar or the State Government, as the case may be, no order can made under sub-rule (2).It is not disputed before us that the petitioner society had appealed from the order of the Assistant Registrar dated November, 25, 1967 to the Registrar and that on January 22, 1968 that appeal was pending. Indeed it is still pending awaiting disposal. In view of the fact that on January 22, 1968, when the order under R. 39 (2) was made by the Assistant Registrar, the appeal against the order dated November 25, 1967, was pending with the Registrar, the order dated January 22, 1968, must be held to be contrary to law and therefore void. Once this order is struck down the challenge to the order dated November 25, 1967 will have to be decided by the Registrar before whom the appeal from that order is pending and we do not consider it either necessary or proper to express any opinion on that point. 7. The third contention also stands accepted because the new bye-laws were enforced by means of the order dated January 22, 1968, and if that order is struck down the new bye-laws would fall with it. ### Response: 1 ### Explanation: 5. Before considering the merits of this contention, we consider it proper to refer to tome of the statutory provisions. The Bihar and OrissaCooperativeSocieties Act (No. VI of 1935) was enacted in May 1935 to consolidate and amend the law relating toCooperativeSocieties in the State of Bihar and Orissa. Under S. 6 (1) the State Government is empowered to appoint a person to be a Registrar ofCooperativeSocieties for the State or any portion of it, and also to appoint persons to assist such Registrar. Under"The State Government may, by general or special order published in the Official Gazette, confer,(a) on any person appointed undern (1), to assist the Registrar, all or any of the powers of the Registrar under this Act except the powers under section 26, and(b) x x x x "It is obvious that the powers of a Registrar can be conferred on a person appointed under S. 6 (1) by means of a general or special order published in the Official Gazette. As the notification in the present case was published in the Official Gazette on May 1, 1968, the order conferring the Registrars power on the Assistant Registrar mentioned therein could not be operative before that date and no valid order under R. 39 could be made by any such Assistant Registrar prior to that date6. The next relevant statutory provision is R: 39 of the BiharCooperativeSocieties Rules, 1959 made under S. 66 of the Act. This rule has already been set out. It is clear that so long as the appeal remains pending with the Registrar or the State Government, as the case may be, no order can made undere (2).It is not disputed before us that the petitioner society had appealed from the order of the Assistant Registrar dated November, 25, 1967 to the Registrar and that on January 22, 1968 that appeal was pending. Indeed it is still pending awaiting disposal. In view of the fact that on January 22, 1968, when the order under R. 39 (2) was made by the Assistant Registrar, the appeal against the order dated November 25, 1967, was pending with the Registrar, the order dated January 22, 1968, must be held to be contrary to law and therefore void. Once this order is struck down the challenge to the order dated November 25, 1967 will have to be decided by the Registrar before whom the appeal from that order is pending and we do not consider it either necessary or proper to express any opinion on that point7. The third contention also stands accepted because the news were enforced by means of the order dated January 22, 1968, and if that order is struck down the news would fall with it.
A.C. Muthiah Vs. Board of Control for Cricket in India and Ors	have asserted that these payments were reflected in the Balance Sheet of BCCI for the financial year ending March 2009. The payments were first sanctioned by the then Chairman of the Governing Council of IPL and later on ratified by all the Governing Council Members and the same was approved by General Body of BCCI. Thus, the first document does not indicate any conflict of interest so far as Respondent No. 2 is concerned. 47. The next document sought to be relied upon is Minutes of Meeting of the Governing Council of the IPL dated August 11, 2009. This document reflects the deliberations between the various members of the Governing Council on the issue of transfer of players from one IPL franchise to the other at the end of three years. Nine members including eminent cricketers who are members of the Governing Council participated in the meeting and the Respondent No. 2 had also expressed his views on the issue of transfer of players. The record shows that ultimately, the views expressed by the Respondent No. 2 were not accepted. This document proves that the Governing Council is not influenced by the views of one person and the Respondent No. 2 is not in a position to exercise undue influence over the other members of the Governing Council, as alleged. 48. As noticed earlier the learned Single Judge of the High Court before whom the suits were instituted as well as the Division Bench of the High Court have refused to grant equitable relief of injunction claimed by the Appellant. This Court is of the opinion that grant of interim relief as prayed for can amount to decreeing the suit without adjudicating the claims raised in the pleadings of the parties. Such a course is not permissible at all. This Court has deprecated the practice of grant of interim relief, which amounts to decreeing the suit in several reported decisions. The averments made in the plaints would show that the final reliefs claimed are almost the same as claimed by way of interim reliefs. Whether the Appellant is entitled to equitable relief of injunction or not, will have to be decided after several questions raised in the plaints are decided on the basis of evidence, which may be adduced by the parties. The questions of law sought to be raised by the Appellant are at the best mixed questions of law and facts. As observed earlier the Appellant has failed to disclose certain material facts nor the Appellant has been able to prima facie establish that his legal rights have been violated as required under Sections 34 and 41(j) of the Specific Relief Act, 1963. The Appellant is not justified in seeking a permanent injunction restraining the Respondent No. 1 from permitting the Respondent No. 2 to contest election for an Office Bearers post. I.A. No. 1041 of 2008 in CS No. 930 of 2008 was dismissed by the High Court. The said order was never challenged before higher forum by the Appellant and has thus attained finality. No material is placed by the Appellant on the record of the case on the basis of which a reasonable finding can be recorded that if interim relief as sought for by the Appellant is not granted, the Appellant would suffer irreparable loss or that great prejudice would be caused to his case as pleaded in the plaints of the suits. Though this Court has prima facie come to the conclusion that the suits are not maintainable on the basis of the plaint allegations themselves, several allegations made would require evidence to be let in by the Appellant so as to entitle him to any interim relief. On this ground also the interim reliefs claimed cannot be granted. 49. The Appellant has filed application seeking permission of this Court for filing additional documents. Normally, additional documents would be permitted to be produced before this Court when they are brought on the record of the case. Here, in this case, the documents sought to be brought on record by the Interlocutory Application are not on the record of the trial court. The Interlocutory Application filed by the Appellant is absolutely vague and not in terms of Order XVI Rule 4(1)(d)(ii) of the Supreme Court Rules because it does not give particulars of (a) how the Appellant came to be in possession of those documents, (b) at what point of time he acquired possession of documents, (c) the source from which the documents were secured and (d) what prevented the Appellant from placing the documents on record of the trial court. Though the Appellant has filed quite lengthy rejoinder, these questions have not been addressed by him in the rejoinder. The contention that the Respondents have failed to respond to the merits of the Interlocutory Application and, therefore, those documents should be considered, cannot be accepted, more particularly, when no ground is made out for granting permission to the Appellant to produce the documents sought to be produced along with the said Interlocutory Application. 50. The upshot of the above discussion is that the learned Single Judge and Division Bench of the High Court were justified in not granting the temporary injunction claimed by the Appellant. It is difficult to hold that either the learned Single Judge or the learned Judges of the Division Bench of the High Court had failed to exercise jurisdiction vested in them or had exercised jurisdiction not vested in them or had exceeded the jurisdiction vested in them by law. A reasonable reading of the judgment impugned in the instant case would indicate that a just approach has been adopted by the learned Single Judge and Division Bench of the High Court in not granting interim prayers claimed by the Appellant. No ground is made out by the Appellant either to interfere with the decision of the learned Single Judge or with that of the Division Bench of the High Court. Therefore, the appeals, which lack merits, deserve dismissal.	0[ds]Admittedly, the Appellant is not a member, as defined in Clause 1(b) of the Regulations of the Respondent No. 1. It is not his case that either he is a Full Member or an Association member or an Affiliate Member of the Respondent No. 1 within the meaning of Clause 3 of the Regulations. Though the term Administrator includes a past president, the same would be applicable to a past president only in so far as he is connected with the administration of BCCI in representing as a nominated member of the subcommittee of the BCCI.This becomes evident from the definition itself that it speaks of any person being nominated to any of the subcommittees of the BCCI. A past president may be nominated on any of the sub-committees of BCCI and only then he would be deemed to be an administrator and not otherwise. Having regard to the well settled principles of interpretation, this Court is of the opinion that purposive interpretation of the term Administrator will have to be adopted and only such an interpretation would lead to a harmonious construction of various clauses of the Regulations. In terms of Clause 32(v), any administrator found guilty can be expelled by the Board and in future such an administrator would not be entitled to hold any position or office or be entitled to be admitted in any committee or would be entitled to be a member or an associate member or affiliate member of the Board. A bare reading of Clause 32(v) of the Regulations makes it more than clear that it includes only those past office bearers who are included in any committees or sub-committees of the Board. Regulation 6.2.1 provides for debarring a guilty administrator for a period of one year but such debarment would be possible only if the administrator is holding any office or is part of any sub-committee in the present. It is worth noting that in the entire Regulations, the word administrator is found only in Clause 32. A conjoint and meaningful reading of Clauses 32(i), (iv) and (v) makes it more than clear that an administrator including a past president can be appointed on a committee. Admittedly, the Appellant is not appointed as a member of any committee formed by the BCCI. Therefore, merely because he was associated in past, with the administration of the BCCI, that fact by itself will not clothe him with any legal right to maintain an action in law against the BCCI. Also, the Appellant does not claim to be a member of the registered society, namely, the BCCI.15. In the light of discussion made above the Appellant will have to be considered as an outsider and it will have to be held that he is not entitled to maintain two suits against the BCCI claiming that he is an administrator. In fact, the Appellant has no where claimed in the plaints of the two suits that he seeks to maintain the suits as an administrator. Thus the finding recorded by the learned Single Judge of the High Court which is confirmed by the Division Bench of the High Court that the Appellant does not claim or seek to maintain the suits as an administrator, will have to be upheld by this Court and is hereby accordingly upheld.16. Further, the Appellant has sought declaratory decrees in both the suits. However, the declarations sought can be granted only in terms of Section 34 of the Specific Relief Act, 1963. A bare reading of Section 34 of the Specific Relief Act would indicate that the Plaintiff in order to be entitled to a legal character or to any right will have to seek declaratory relief. The averments made in the plaints of the two suits do not indicate that the Appellant is claiming that he is entitled to declaration relating to a legal character or he is claiming any legal character. The only exception to Section 34 of the Specific Relief Act can be found in the Copyright Act and the Patents Act, wherein suits can be filed notwithstanding the provisions of Section 34 of the Specific Relief Act to declare that any threat of infringement of copyright or patent is groundless. Further, Section 41(J) of the Specific Relief Act provides that an injunction claimed should be refused when the Plaintiff has no personal interest in the matter. Averments made in paragraph 18 of the rejoinder do not make the provisions of the Specific Relief Act applicable to the facts pleaded by Appellant in the two suits.17. An attempt was made to argue that the Appellant is entitled to maintain the two suits because what is claimed by the Appellant is that he is the past president of BCCI and, therefore, both the suits instituted to declare that the Respondent No. 2, i.e., Mr. Srinivasan has no right to hold any position in BCCI due to conflict of interest relates to right to property. However, on going through the averments made in the plaints, this Court finds that no right is claimed under Section 34 of the Specific Relief Act. The record does not indicate that any personal right of the Appellant is infringed. Prima facie the Appellant, who is claiming declaratory decrees against the Respondents, would not be entitled to the same because no personal right of the Appellant is infringed.18. The averments made in the two plaints would show that the Appellant is not claiming any legal character in the BCCI nor is he claiming any right to any of the properties of the BCCI. Therefore, it is clear that the Appellant has not instituted the two suits under Section 34 of the Specific Relief Act.The record of the case doe not indicate that the Appellant had filed any application seeking permission of the court under Order I Rule 8 Sub-rule (1) Code of Civil Procedure nor the averments made in the plaints of two suits indicate that the suits are purportedly filed in a representative capacity. A careful scrutiny of the averments made in the plaints of the two suits prima facie indicates that the Appellant has filed the suits in his individual capacity. All that the Appellant has stated in the plaints is that he is the past President of BCCI and, therefore, he is interested in the promotion of the game of cricket in India and in maintaining the purity of administration of BCCI. The paragraph which deals with cause of action inter alia mentions that the Appellant has filed the suits in the capacity of an Administrator. The averments made in the plaints prima facie indicate that what is asserted by the Appellant is that that he had questioned the conduct of Mr. N. Srinivasan by sending two complaints dated September 5, 2008 and September 19, 2008 to BCCI and that no action was taken by BCCI against Mr. N. Srinivasan. The two complaints have been produced on the record of the appeals. A glance at those two complaints does not indicate that it is mentioned by the Appellant therein that he is making the complaint in the capacity of past President.21. With regard to public interest involved in the suit it is relevant to notice that a public interest suit is not unknown to law. As such a public interest suit can be filed by invoking the provisions of Section 91 Code of Civil Procedure for removal of public nuisance or other wrongful act affecting or likely to affect the public at large. However, to maintain a suit under Section 91, the Plaintiff has to obtain the leave of the court before institution of the suit and two or more persons must join as Plaintiffs in filing the suit. Admittedly, the present suits have not been filed by the Appellant invoking the provisions of Section 91 of Code of Civil Procedure. Except Section 91, the Code of Civil Procedure does not contemplate filing of suit for removal of public nuisance and/or other wrongful act affecting or likely to affect the public. Though on running page 586 of the SLP, which is part of rejoinder filed by the Appellant, he has asserted that he has not filed the suits in his personal capacity but has filed the suits in public interest, it is not claimed by him that he has followed the requirements of Section 91 Code of Civil Procedure. At this stage, it may be mentioned that the Appellant could have filed a Public Interest Litigation in the form of writ petition. However, the fact remains that the Public Interest Litigation / Writ Petition was not filed by the Appellant. The reason as suggested by the Respondents is that the Appellant would have been required to disclose the fact that he had lost the election to the answering Respondent No. 2 by huge margin and the disclosure of the said fact would have robbed of the public interest element of the writ petition. Another reason suggested by the Respondents, which induced the Appellant not to file writ petition of Public Interest Litigation nature, is that the court would have been required to determine numerous disputed questions of facts and the court, having regard to the law declared by this Court relating to a petition filed under Article 226 of the Constitution involving determination of disputed questions of facts, would have dismissed the writ petition summarily. The reasons as to why the Appellant did not file writ petition of Public Interest Litigation nature, can be stated only by him but it is not in dispute that such a writ petition was not filed by the Appellant.22. The result of above discussion may be summarized as follows:The Appellant is not a member of the Respondent No. 1 society. It is not his case that he is either full member of associate member or an affiliate member of the Respondent No. 1 society. His claim that he is an administrator of the BCCI and has filed two suits in that capacity is rightly not accepted by the High Court. The suits claiming declarations are neither filed under Section 34 of the Specific Relief Act nor the suits are filed in a representative capacity under Order I Rule 8 nor the Appellant has filed public interest suits as contemplated by Section 91 of Code of Civil Procedure.There is no manner of doubt that BCCI is a private autonomous Society registered under the Tamil Nadu Societies Registration Act, 1975. Therefore, its actions have to be judged only like any other similar society or body and cannot be judged like an instrumentality of State or other authority exercising public functions. The BCCI like any other private body is entitled to make its own memorandum, rules and byelaws to govern the activities of its members. The memorandum, rules and bye-laws framed by the BCCI were found to be in conformity with the object of the Act and, therefore, it was registered as a Society under the Tamil Nadu Societies Registration Act, 1975. It is an admitted case between the parties that no amendment has been made to the registered memorandum, rules and regulations or bye-laws. Regulation 6.2.4 is only a subsidiary regulation introduced by the working committee of the BCCI. The amendments that are challenged by the Appellant in his second suit are those made to the subsidiary regulation. The validity of said amendment will have to be tested only in the light of the interest of the society and its members and not vis-à-vis the interest of non members/strangers. The rule that the public policy of a society must be in consonance with the statute under which it is registered or is being governed and not public policy as indicated in the constitution has been laid down by this Court in the Zoroastrian Cooperative Housing Society Ltd. v. District Registrar, Cooperative Societies (Urban) (2005) 5 SCC 632. As per the decision in Zoroastrian Cooperative Housing Society Ltd. case neither the member nor the aspirant to membership has the competence to challenge the validity of the bye-laws of the society. On the basis of the principles laid down in the said case it will have to be held that the Appellant, who is not even a member of the society, cannot challenge validity of the bye-laws of the society, which have been validly passed by the General Body of the society. As is evident from the record of the case the amendments in the subsidiary regulation were made by the General Body unanimously and, therefore, the second suit will also have to be regarded as not maintainable.In view of above noted categorical observations made by the Constitution Bench, this Court is of the firm opinion that the observations made in paras 80 and 81 of Netaji Cricket Club case (supra) are no longer good law. The contention that the judgment in Netaji Cricket Club case still holds the field and is a good law cannot be accepted. What is relevant to notice is that one of the learned Judges of the two Judge Bench, which decided Netaji Cricket Club case, was also one of the learned Judges of the Constitution Bench, which decided the Zee Telefilms case. In fact the decision in Zee Telefilms case was delivered by the Constitution Bench of this Court, about three weeks after the judgment was delivered by two Judge Bench in Netaji Cricket Club case. The judgment delivered by the Constitution Bench makes it clear that the judgment of the two Judge Bench, delivered in case of Netaji Cricket Club, was specifically cited before the Constitution Bench and was considered by the Constitution Bench. Further, the judgment in Zee Telefilms case was first prepared by the learned Judges, who had written the judgment in Netaji Cricket Club case and this is evident from the fact that the learned Judges, who had delivered majority judgment in Zee Telefilms case, have recorded that they had read the opinion of the learned Judge but did not agree with the conclusions recorded therein. In view of the healthy traditions established by the legendary Judges of this Court, the learned Judges, who constituted majority in Zee Telefilms case, have refrained from using the expression that law laid down in Netaji Cricket Club case is not a good law or that the decision in Netaji Cricket Club case stands overruled because the learned Judge, who had written judgment in Netaji Cricket Club case, was also one of the learned members of the Constitution Bench. However, there is no manner of doubt that judgment in Netaji Cricket Club case cannot be regarded as good law in view of firm pronouncement of legal principles by the Constitution Bench of this Court in the case of Zee Telefilms.28. In view of the above mentioned principles emerging from the judgment of this Court in Zee Telefilms case, the BCCI cannot be regarded as an instrumentality of State and it will have to be held that the two suits filed by the Appellant are not maintainable.29. As this Court has held that two suits filed by the Appellant are not maintainable, the question of grant of mandatory and/or temporary injunctions as prayed for does not arise at all and the appeals must fail.33. Even if it is assumed for the sake of argument that the two suits filed by the Appellant are maintainable, on examination of Rules and Regulations of BCCI this Court finds that players regulations promulgated on September 29, 2000 had not contemplated nor covered the events like IPL, Champions League T20, etc., because they were unknown and never existed. This becomes clear if one notices the definitions of (a) Test Match, (b) ODI Match, (c) Twenty 20, (d) Tour, (e) Tour Match and (f) Domestic Matches, as given in the Regulations for Players, Team Officials, Managers, Umpires and Administrators.To argue that purposive interpretation of unamended Players Regulations would include events like ODI Match, Twenty 20, etc. is to ignore the hard ground realities and completely brush aside the definitions of those terms mentioned earlier.35. The expression matches or events in the unamended Clause 6.2.4 of the Rules and Regulations cannot be construed to include the events like T20 cricket as those events were introduced after the year 2000. Therefore, the contention of the Appellant that the Respondent No. 2 violated the unamended Players Regulations and injunctions as prayed for should have been granted, cannot be accepted and is hereby rejected.37. The argument that Clause 6.2.4 of the Players Regulations was not properly amended and, therefore, the same should be regarded as illegal is devoid of substance. All the rules relating to agenda of notice were properly followed. The amendment in Clause 6.2.4 can be traced back to the working committee meeting, which took place on June 22, 2008. The record would show that in the said meeting it was observed by one of the participants that the Players Regulations needed to be amended to address the changes in the ICC Code of Conduct particularly those relating to the penalties for Anti Racism, Anti Doping, Use of foul language, etc. The use of the words particularly and etc. indicate that the Working Committee did not limit its suggestions only to the issues of Anti Doping, Anti Racism or Use of foul language. Pursuant to the suggestion made by the Working Committee, the President of BCCI formed a two man committee to recommend suitable changes. The two-men committee met on September 12, 2008, i.e., well before the first suit, i.e. Civil Suit No. 930 of 2008 which was instituted by the Appellant in the Madras High Court and recommended three amendments, two of which were with reference to Twenty 20 cricket and the third amendment related to Clause 6.2.4 of the Regulations. The members of the Respondent No. 1 BCCI unanimously approved the two-men committees recommendations in the 79th Annual General Meeting. The record would indicate that what was placed for the consideration of the members at the 79th Annual General Meeting was the report of the Working Committee as well as the recommendations of the two-man committee. The notice of all the items of business conducted at the 79th Annual General Meeting was validly given to the members. Although Rule 16(M)(iv) of the Rules and Regulations requires the Secretary to forward the agenda at least 21 days prior to holding of the Annual General Meeting, Rule 16(M)(i) also provides that the attending members may consider any other business which the President may consider necessary to be included in the agenda. The notice of 79th Annual General Meeting specifically stated about consideration of the motion given by a member, 21 days before the Annual General Meeting, and consideration of any other business which the President might consider necessary in the agenda. The contention of the Appellant that 21 days notice is needed even for those items to be considered under any other business is based on a misconception of the ordinary principles governing the meetings. One of the essentials of a valid notice is that the time between the service of notice and the date of the meeting should be at least 21 days and that it is absurd to suggest that this notice must also contain the particulars of items which would be taken up by the members under the heading any other business. It is implicit in the concept of special business to be taken up for discussion at the behest of the Chairman that no particular mention is required of other business which is to be conducted at the meeting. When a member gets his notice, he is deemed to have knowledge of the Regulations of the body concerned and, therefore, of the agenda items. In any event only members could have objected to the process for amending the Players Regulations. The record shows that not a single member objected to the proposed amendment. On the contrary the record unerringly shows that the resolution relating to the impugned amendment was passed unanimously by the members. The Rules and Regulations, which are the organic and constitutional documents of the association, are framed under the Tamil Nadu Societies Registration Act, 1975. A plain reading of Section 12 of the said Act makes it very clear that it is only if a bye-law or the objects of association mentioned in the Memorandum is intended to be amended that such amendment is required to be registered. This provision has no application to amendments of the Players Regulations, which have been framed by the Respondent No. 1s working committee. Even if a member has limited rights against the body/institution of which he is a member, a member must show that the impugned act is ultra vires the constitution or the Memorandum of Association or the bye-laws of the society and that the act complained of constitutes a fraud on the member or that the impugned action is illegal. The Appellant is admittedly not even a member of the Respondent No. 1 BCCI and is, therefore, not entitled prima facie to challenge the process of amendment. The amendments carried out in Clause 6.2.4 are perfectly legal and valid.38. The contention relating to conflict of interest is thoroughly misconceived and proceeds on certain presumptions which have no factual basis. As far as BCCI is concerned, all decisions relating to management and administration are taken by its Managing Committee. It has come on the record of the case that the Managing Committee consists of nine members of whom Respondent No. 2 is one of the members. The byelaws of BCCI unerringly indicate that all the decisions, which may be taken by the Managing Committee of the BCCI, have got to be approved by General Body. Though the Appellant has claimed that there is factual and palpable conflict of interest, the Appellant could not explain to the Court as to what was the factual conflict of interest and how BCCI was put to financial loss because of participation by the Respondent No. 2 in bidding process for the IPL team. The Appellant having claimed that there was factual and palpable conflict of interest between BCCI and India Cement Limited, should have attempted to make the same good by necessary and specific averments.39. Further, the argument of the Appellant with regard to the alleged conflict of interest and duty proceeds on a complete misconception of what T20 matches are all about. A brief history of T20 cricket is important to understand the context in which this new form of the game was introduced. Cricket as a game was fast losing spectator support. Attendance at the test matches was found thin and decreasing day by day. Even ODI matches were not attracting huge crowds. As against this, football was found to be a fast paced, action packed game and it did not last for more than two hours. Therefore, it was considered necessary to have a new format, which was not conducted on lines of international cricket, but was conducted purely on commercial lines. If maximum boost was to be given to the cricket, it was through organizing T20 matches on a commercial basis. Thus it stands to reason that any person who is interested in the game should be able to participate in the commercial aspect of T20. For this purpose, a tender process had to be used. The attempt was to maximize interest and participation in T20 by way of acquisition and funding of teams. This could be done if there was a widest possible participation both by franchisees and stakeholders including the spectators. The process of bidding by the franchisees for the various participating teams establishes the commercial nature of IPL and Champions League T20 cricket. Therefore, it is difficult to uphold the contention of the Appellant regarding conflict of interest in an IPL since the purpose of this new model of cricket was to maximize outreach of the game and exploit its commercial potential as well. The record does not indicate that any franchisee or any other member of the Respondent No. 1 BCCI has complained of any alleged conflict of interest. It is nobodys case that the team was purchased by the Respondent for a smug and that he had prevented others who wanted to offer more price for purchase of the team and thereby caused financial loss to the BCCI. Thus, the plea of conflict of interest is substance less and is hereby rejected.40. The plea that the amendment made in Clause 6.2.4 of the Regulations is mala fide and, therefore, reliefs prayed for by the Appellant cannot be accepted. As is rightly pointed out by the learned Counsel for the Respondent No. 2 that India Cement Limited is a Company incorporated under the provisions of the Companies Act, 1956. It is a Public Limited Company and is being managed by Board of Directors. Naturally it being a Public Limited company, it has several share holders. The assertion made by the Respondent No. 2 that he holds only 0.05% of shares in India Cement Limited, cannot be demonstrated to be untrue. Therefore, it would be wrong to contend that the Respondent No. 2 personally takes decisions without approval of the Board of Directors of the Company.41. As observed earlier the second Respondent personally cannot take any decision relating to the India Cement Limited without the approval of the Board of Directors of the Company. So far as his role as Office Bearer of the BCCI is concerned, it is to be noted that all decisions regarding management and administration of the BCCI are taken by its Managing Committee subject to the approval by General Body consisting of all the members, associate members and affiliated members. In the present case the necessity to amend the Players Regulations was recommended by all members of the Working Committee. The two-man Committee made recommendation to amend Clause 6.2.4. That recommendation was approved by the Managing Committee and unanimously adopted by the General Body of the BCCI. If the Appellant was to allege bias on the part of the Respondent No. 2 in amending Clause 6.2.4 of the Players Regulations, the same will have to be against all other members who were part of the subcommittee, the Managing Committee and also members of the General Body. However, there is absolutely no allegation against any of the persons who are part of the various committees of BCCI. There is no specific allegation against any of the members of the General Body being actuated by mala fides in favour of the Respondent No. 2. Prima facie it appears that in the absence of any specific allegation of mala fides in the plaints of both the suits, the Appellant, who is Plaintiff in the suits, would not be entitled to any of the main reliefs claimed in the two suits and reliefs claimed in interlocutory applications. The assertion made by the Appellant that the amendment in Clause 6.2.4 of the Rules and Regulations was carried out at the behest of the Respondent No. 2 would in turn suggest that the Respondent No. 2 exercised undue influence over the other members of the Managing Committee and General Body of BCCI and the various other persons constituting various committees. When such allegations of undue influence are pleaded by any party to a suit, it is the requirement under Order VI Rule 4 Code of Civil Procedure that particulars must be given in detail. However, the pleadings do not even remotely satisfy the requirements of Order VI Rule 4 Code of Civil Procedure. There are no specific allegations in the plaints of both the suits. A reading of the plaint in CS No. 1167 of 2008 discloses that there are no particulars or specific allegations of mala fides against the sub-committee, Managing Committee or General Body of BCCI. The amendment in Clause 6.2.4 was introduced after it had passed scrutiny of the three different committees. In the absence of necessary pleadings it would be difficult for the Appellant to get any relief in the two suits. Therefore, the plea based on malafides in amending Clause 6.2.4 cannot be accepted.42. What is important to notice is that the present appeals are directed against the orders of the learned Single Judge and the Division Bench, refusing to grant mandatory temporary injunction/temporary injunctions as claimed by the Appellant.43. The Appellant has failed to establish strong prima facie case in his favour for the grant of mandatory temporary injunctions. On analysis of the averments made in the plaints of the two suits, this Court has come to the conclusion that the suits are not maintainable. Therefore, the Appellant is not entitled to any interim relief. The amendment impugned is not found to be contrary to the provisions of the Tamil Nadu Societies Registration Act, 1975. Similarly, the Appellant has failed to establish that because of so called conflict of interest, the Respondent No. 2 has caused financial loss to the BCCI. Further irreparable injury is likely to be suffered by the Respondent No. 2, if the interim reliefs as claimed by the Appellant are granted. The Respondent No. 2 has explained in his pleadings that, in terms of the Memorandum and Regulations of BCCI, he will not be able to contest election for the post of President for the next twelve years if he is restrained from contesting for the post of President this year.44. The Memorandum and Regulations indicate that the office of President is by Zonal rotation. For the purpose of election of the President, the BCCI is divided into five zones, i.e., South, Central, North, West and East and, therefore, the turn of the President from South zone would come once in 12 years only. This position is not disputed by the Appellant. Therefore, there is no manner of doubt that prejudice would be caused to the Respondent No. 2 if the injunctions as prayed for by the Appellant are granted. Further, the balance of convenience is also in favour of the Respondent No. 2 because even if the suits are decreed, no personal relief would accrue for the benefit of the Appellant. As noticed earlier, the Appellant had lost to the Respondent No. 2 in the elections of the Tamil Nadu Cricket Association. Moreover, the two suits were filed in the year 2008 and no interim relief/reliefs has/have been granted by the learned Single Judge of the High Court as well as by the Division Bench of the High Court. This Court is of the opinion that after passage of over two years, it would not be in the fitness of things to grant mandatory temporary injunction as prayed for. What is relevant to notice is that if the injunctions as prayed for are granted the suits would stand decreed without adjudicating the claims raised by the Respondents, on merits. Such a relief is not called for in the facts of the case. Therefore, the Appellant is not entitled to the injunctions claimed by him in different interlocutory applications which were filed before the High Court.45. The Appellant has filed an application seeking permission of the Court to permit him to produce additional documents in the present appeals. It is an admitted position that the additional documents sought to be produced before this Court were not part of the records before the learned Single Judge or the Division Bench of the High Court. As such no reasons are stated as to why these two documents, though in existence, were not placed before the High Court. Therefore, no case is made out by the Appellant to permit him to produce certain additional documents in the present appeals.46. Even if those two documents are taken into consideration this Court finds that the two documents do not indicate in any manner, any conflict of interest as is sought to be made out on behalf of the Appellant. The first document is an extract from the accounts of the BCCI. This document is relied on to show that payments were made to Rajasthan Royals and Chennai Super Kings to compensate for the losses caused to those teams due to cancellation of the Champions League Twenty-20 tournament in December 2008. The record shows that the Champions League Twenty-20 tournament is played between the champion teams from various countries who had won their local T-20 tournaments. In the year 2008 Rajasthan Royals and the team owned by The India Cements Limited i.e. Chennai Super Kings were the winners and runners-up respectively. Therefore, only these two teams were eligible to play the Champions League Twenty-20 which was to be played in Mumbai in December, 2008. Unfortunately, due to the infamous Mumbai Terror Attacks in November, 2008 the tournament had to be cancelled in the last hours due to security reasons as players were to come from around the world. The teams eligible to participate had made all the arrangements by making payments for the players and officials to participate in the Champions League Twenty-20. Because of the sudden cancellation of the tournament, the expenses incurred by the teams and the loss of potential earnings were decided to be compensated by the Governing Council of Champions League Twenty-20. And, therefore, the payments were made not only to the two Indian teams eligible to participate but also to the Cricket Boards of South Africa and Australia, who had jointly organized the Champions League Twenty-20. The Respondents have asserted that these payments were reflected in the Balance Sheet of BCCI for the financial year ending March 2009. The payments were first sanctioned by the then Chairman of the Governing Council of IPL and later on ratified by all the Governing Council Members and the same was approved by General Body of BCCI. Thus, the first document does not indicate any conflict of interest so far as Respondent No. 2 is concerned.47. The next document sought to be relied upon is Minutes of Meeting of the Governing Council of the IPL dated August 11, 2009. This document reflects the deliberations between the various members of the Governing Council on the issue of transfer of players from one IPL franchise to the other at the end of three years. Nine members including eminent cricketers who are members of the Governing Council participated in the meeting and the Respondent No. 2 had also expressed his views on the issue of transfer of players. The record shows that ultimately, the views expressed by the Respondent No. 2 were not accepted. This document proves that the Governing Council is not influenced by the views of one person and the Respondent No. 2 is not in a position to exercise undue influence over the other members of the Governing Council, as alleged.48. As noticed earlier the learned Single Judge of the High Court before whom the suits were instituted as well as the Division Bench of the High Court have refused to grant equitable relief of injunction claimed by the Appellant. This Court is of the opinion that grant of interim relief as prayed for can amount to decreeing the suit without adjudicating the claims raised in the pleadings of the parties. Such a course is not permissible at all. This Court has deprecated the practice of grant of interim relief, which amounts to decreeing the suit in several reported decisions. The averments made in the plaints would show that the final reliefs claimed are almost the same as claimed by way of interim reliefs. Whether the Appellant is entitled to equitable relief of injunction or not, will have to be decided after several questions raised in the plaints are decided on the basis of evidence, which may be adduced by the parties. The questions of law sought to be raised by the Appellant are at the best mixed questions of law and facts. As observed earlier the Appellant has failed to disclose certain material facts nor the Appellant has been able to prima facie establish that his legal rights have been violated as required under Sections 34 and 41(j) of the Specific Relief Act, 1963. The Appellant is not justified in seeking a permanent injunction restraining the Respondent No. 1 from permitting the Respondent No. 2 to contest election for an Office Bearers post. I.A. No. 1041 of 2008 in CS No. 930 of 2008 was dismissed by the High Court. The said order was never challenged before higher forum by the Appellant and has thus attained finality. No material is placed by the Appellant on the record of the case on the basis of which a reasonable finding can be recorded that if interim relief as sought for by the Appellant is not granted, the Appellant would suffer irreparable loss or that great prejudice would be caused to his case as pleaded in the plaints of the suits. Though this Court has prima facie come to the conclusion that the suits are not maintainable on the basis of the plaint allegations themselves, several allegations made would require evidence to be let in by the Appellant so as to entitle him to any interim relief. On this ground also the interim reliefs claimed cannot be granted.49. The Appellant has filed application seeking permission of this Court for filing additional documents. Normally, additional documents would be permitted to be produced before this Court when they are brought on the record of the case. Here, in this case, the documents sought to be brought on record by the Interlocutory Application are not on the record of the trial court. The Interlocutory Application filed by the Appellant is absolutely vague and not in terms of Order XVI Rule 4(1)(d)(ii) of the Supreme Court Rules because it does not give particulars of (a) how the Appellant came to be in possession of those documents, (b) at what point of time he acquired possession of documents, (c) the source from which the documents were secured and (d) what prevented the Appellant from placing the documents on record of the trial court. Though the Appellant has filed quite lengthy rejoinder, these questions have not been addressed by him in the rejoinder. The contention that the Respondents have failed to respond to the merits of the Interlocutory Application and, therefore, those documents should be considered, cannot be accepted, more particularly, when no ground is made out for granting permission to the Appellant to produce the documents sought to be produced along with the said Interlocutory Application.50. The upshot of the above discussion is that the learned Single Judge and Division Bench of the High Court were justified in not granting the temporary injunction claimed by the Appellant. It is difficult to hold that either the learned Single Judge or the learned Judges of the Division Bench of the High Court had failed to exercise jurisdiction vested in them or had exercised jurisdiction not vested in them or had exceeded the jurisdiction vested in them by law. A reasonable reading of the judgment impugned in the instant case would indicate that a just approach has been adopted by the learned Single Judge and Division Bench of the High Court in not granting interim prayers claimed by the Appellant. No ground is made out by the Appellant either to interfere with the decision of the learned Single Judge or with that of the Division Bench of the High Court. Therefore, the appeals, which lack merits, deserve dismissal.	0	16,669	7,119	### 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: have asserted that these payments were reflected in the Balance Sheet of BCCI for the financial year ending March 2009. The payments were first sanctioned by the then Chairman of the Governing Council of IPL and later on ratified by all the Governing Council Members and the same was approved by General Body of BCCI. Thus, the first document does not indicate any conflict of interest so far as Respondent No. 2 is concerned. 47. The next document sought to be relied upon is Minutes of Meeting of the Governing Council of the IPL dated August 11, 2009. This document reflects the deliberations between the various members of the Governing Council on the issue of transfer of players from one IPL franchise to the other at the end of three years. Nine members including eminent cricketers who are members of the Governing Council participated in the meeting and the Respondent No. 2 had also expressed his views on the issue of transfer of players. The record shows that ultimately, the views expressed by the Respondent No. 2 were not accepted. This document proves that the Governing Council is not influenced by the views of one person and the Respondent No. 2 is not in a position to exercise undue influence over the other members of the Governing Council, as alleged. 48. As noticed earlier the learned Single Judge of the High Court before whom the suits were instituted as well as the Division Bench of the High Court have refused to grant equitable relief of injunction claimed by the Appellant. This Court is of the opinion that grant of interim relief as prayed for can amount to decreeing the suit without adjudicating the claims raised in the pleadings of the parties. Such a course is not permissible at all. This Court has deprecated the practice of grant of interim relief, which amounts to decreeing the suit in several reported decisions. The averments made in the plaints would show that the final reliefs claimed are almost the same as claimed by way of interim reliefs. Whether the Appellant is entitled to equitable relief of injunction or not, will have to be decided after several questions raised in the plaints are decided on the basis of evidence, which may be adduced by the parties. The questions of law sought to be raised by the Appellant are at the best mixed questions of law and facts. As observed earlier the Appellant has failed to disclose certain material facts nor the Appellant has been able to prima facie establish that his legal rights have been violated as required under Sections 34 and 41(j) of the Specific Relief Act, 1963. The Appellant is not justified in seeking a permanent injunction restraining the Respondent No. 1 from permitting the Respondent No. 2 to contest election for an Office Bearers post. I.A. No. 1041 of 2008 in CS No. 930 of 2008 was dismissed by the High Court. The said order was never challenged before higher forum by the Appellant and has thus attained finality. No material is placed by the Appellant on the record of the case on the basis of which a reasonable finding can be recorded that if interim relief as sought for by the Appellant is not granted, the Appellant would suffer irreparable loss or that great prejudice would be caused to his case as pleaded in the plaints of the suits. Though this Court has prima facie come to the conclusion that the suits are not maintainable on the basis of the plaint allegations themselves, several allegations made would require evidence to be let in by the Appellant so as to entitle him to any interim relief. On this ground also the interim reliefs claimed cannot be granted. 49. The Appellant has filed application seeking permission of this Court for filing additional documents. Normally, additional documents would be permitted to be produced before this Court when they are brought on the record of the case. Here, in this case, the documents sought to be brought on record by the Interlocutory Application are not on the record of the trial court. The Interlocutory Application filed by the Appellant is absolutely vague and not in terms of Order XVI Rule 4(1)(d)(ii) of the Supreme Court Rules because it does not give particulars of (a) how the Appellant came to be in possession of those documents, (b) at what point of time he acquired possession of documents, (c) the source from which the documents were secured and (d) what prevented the Appellant from placing the documents on record of the trial court. Though the Appellant has filed quite lengthy rejoinder, these questions have not been addressed by him in the rejoinder. The contention that the Respondents have failed to respond to the merits of the Interlocutory Application and, therefore, those documents should be considered, cannot be accepted, more particularly, when no ground is made out for granting permission to the Appellant to produce the documents sought to be produced along with the said Interlocutory Application. 50. The upshot of the above discussion is that the learned Single Judge and Division Bench of the High Court were justified in not granting the temporary injunction claimed by the Appellant. It is difficult to hold that either the learned Single Judge or the learned Judges of the Division Bench of the High Court had failed to exercise jurisdiction vested in them or had exercised jurisdiction not vested in them or had exceeded the jurisdiction vested in them by law. A reasonable reading of the judgment impugned in the instant case would indicate that a just approach has been adopted by the learned Single Judge and Division Bench of the High Court in not granting interim prayers claimed by the Appellant. No ground is made out by the Appellant either to interfere with the decision of the learned Single Judge or with that of the Division Bench of the High Court. Therefore, the appeals, which lack merits, deserve dismissal. ### Response: 0 ### Explanation: League Twenty-20. The Respondents have asserted that these payments were reflected in the Balance Sheet of BCCI for the financial year ending March 2009. The payments were first sanctioned by the then Chairman of the Governing Council of IPL and later on ratified by all the Governing Council Members and the same was approved by General Body of BCCI. Thus, the first document does not indicate any conflict of interest so far as Respondent No. 2 is concerned.47. The next document sought to be relied upon is Minutes of Meeting of the Governing Council of the IPL dated August 11, 2009. This document reflects the deliberations between the various members of the Governing Council on the issue of transfer of players from one IPL franchise to the other at the end of three years. Nine members including eminent cricketers who are members of the Governing Council participated in the meeting and the Respondent No. 2 had also expressed his views on the issue of transfer of players. The record shows that ultimately, the views expressed by the Respondent No. 2 were not accepted. This document proves that the Governing Council is not influenced by the views of one person and the Respondent No. 2 is not in a position to exercise undue influence over the other members of the Governing Council, as alleged.48. As noticed earlier the learned Single Judge of the High Court before whom the suits were instituted as well as the Division Bench of the High Court have refused to grant equitable relief of injunction claimed by the Appellant. This Court is of the opinion that grant of interim relief as prayed for can amount to decreeing the suit without adjudicating the claims raised in the pleadings of the parties. Such a course is not permissible at all. This Court has deprecated the practice of grant of interim relief, which amounts to decreeing the suit in several reported decisions. The averments made in the plaints would show that the final reliefs claimed are almost the same as claimed by way of interim reliefs. Whether the Appellant is entitled to equitable relief of injunction or not, will have to be decided after several questions raised in the plaints are decided on the basis of evidence, which may be adduced by the parties. The questions of law sought to be raised by the Appellant are at the best mixed questions of law and facts. As observed earlier the Appellant has failed to disclose certain material facts nor the Appellant has been able to prima facie establish that his legal rights have been violated as required under Sections 34 and 41(j) of the Specific Relief Act, 1963. The Appellant is not justified in seeking a permanent injunction restraining the Respondent No. 1 from permitting the Respondent No. 2 to contest election for an Office Bearers post. I.A. No. 1041 of 2008 in CS No. 930 of 2008 was dismissed by the High Court. The said order was never challenged before higher forum by the Appellant and has thus attained finality. No material is placed by the Appellant on the record of the case on the basis of which a reasonable finding can be recorded that if interim relief as sought for by the Appellant is not granted, the Appellant would suffer irreparable loss or that great prejudice would be caused to his case as pleaded in the plaints of the suits. Though this Court has prima facie come to the conclusion that the suits are not maintainable on the basis of the plaint allegations themselves, several allegations made would require evidence to be let in by the Appellant so as to entitle him to any interim relief. On this ground also the interim reliefs claimed cannot be granted.49. The Appellant has filed application seeking permission of this Court for filing additional documents. Normally, additional documents would be permitted to be produced before this Court when they are brought on the record of the case. Here, in this case, the documents sought to be brought on record by the Interlocutory Application are not on the record of the trial court. The Interlocutory Application filed by the Appellant is absolutely vague and not in terms of Order XVI Rule 4(1)(d)(ii) of the Supreme Court Rules because it does not give particulars of (a) how the Appellant came to be in possession of those documents, (b) at what point of time he acquired possession of documents, (c) the source from which the documents were secured and (d) what prevented the Appellant from placing the documents on record of the trial court. Though the Appellant has filed quite lengthy rejoinder, these questions have not been addressed by him in the rejoinder. The contention that the Respondents have failed to respond to the merits of the Interlocutory Application and, therefore, those documents should be considered, cannot be accepted, more particularly, when no ground is made out for granting permission to the Appellant to produce the documents sought to be produced along with the said Interlocutory Application.50. The upshot of the above discussion is that the learned Single Judge and Division Bench of the High Court were justified in not granting the temporary injunction claimed by the Appellant. It is difficult to hold that either the learned Single Judge or the learned Judges of the Division Bench of the High Court had failed to exercise jurisdiction vested in them or had exercised jurisdiction not vested in them or had exceeded the jurisdiction vested in them by law. A reasonable reading of the judgment impugned in the instant case would indicate that a just approach has been adopted by the learned Single Judge and Division Bench of the High Court in not granting interim prayers claimed by the Appellant. No ground is made out by the Appellant either to interfere with the decision of the learned Single Judge or with that of the Division Bench of the High Court. Therefore, the appeals, which lack merits, deserve dismissal.
Commnr.,Central Excise, Madras Vs. M/S. Adison & Co. Ltd	Rules are so framed as to make it highly difficult for any consumer organisation to get the grant. There is no provision in the Act, Shri Nariman submitted, to locate the person really entitled to refund and to make over the money to him. “We expect a sensitive Government not to bluff but to hand back the amounts to those entitled thereto”, intoned Shri Nariman. It is a colourable device — declaimed Shri Sorabjee — “a dirty trick” and “a shabby thing”. The reply of Shri Parasaran to this criticism runs thus: It ill-becomes the manufacturers/Assessees to espouse the cause of consumers, when all the while they had been making a killing at their expense. No consumers organisation had come forward to voice any grievance against the said provisions. Clause (e) of the proviso to sub-section (2) of Section 11-B does provide for the buyer of the goods, to whom the burden of duty has been passed on, to apply for refund of duty to him, provided that he has not in his turn passed on the duty to others. It is, therefore, not correct to suggest that the Act does not provide for refund of duty to the person who has actually borne the burden. There is no vice in the relevant provisions of the Act. Rules cannot be relied upon to impugn the validity of an enactment, which must stand or fall on its own strength. The defect in the Rules, assuming that there is any, can always be corrected if the experience warrants it. The Court too may indicate the modifications needed in the Rules. The Government is always prepared to make the appropriate changes in the Rules since it views the process as a “trial and error” method — says Shri Parasaran”. 20. There was a further submission which was considered in the said judgment about the convenience/difficulty for the ultimate consumer to make applications for refund. In that connection it was held as follows:- “99. We agree with Shri Parasaran that so far as the provisions of the Act go, they are unexceptionable. Section 12-C which creates the Consumer Welfare Fund and Section 12-D which provides for making the Rules specifying the manner in which the money credited to the Fund shall be utilised cannot be faulted on any ground. Now, coming to the Rules, it is true that these Rules by themselves do not contemplate refund of any amount credited to the Fund to the consumers who may have borne the burden; the Rules only provide for “grants” being made in favour of consumer organisations for being spent on welfare of consumers. But, this is perhaps for the reason that clause (e) of the proviso to sub-section (2) of Section 11-B does provide for the purchaser of goods applying for and obtaining the refund where he can satisfy that the burden of the duty has been borne by him alone. Such a person can apply within six months of his purchase as provided in clause (e) of Explanation B appended to Section 11-B. It is, therefore, not correct to contend that the impugned provisions do not provide for refunding the tax collected contrary to law to the person really entitled thereto. A practical difficulty is pointed out in this behalf by the learned counsel for appellants-petitioners: It is pointed out that the manufacturer would have paid the duty at the place of “removal” or “clearance” of the said goods but the sale may have taken place elsewhere; if the purchaser wants to apply for refund — it is submitted — he has to go to the place where the duty has been paid by the manufacturer and apply there. It is also pointed out that purchasers may be spread all over India and it is not convenient or practicable for all of them to go to the place of “removal” of goods and apply for refund. True it is that there is this practical inconvenience but it must also be remembered that such claims will be filed only by purchasers of high-priced goods where the duty component is large and not by all and sundry/small purchasers. This practical inconvenience or hardship, as it is called, cannot be a ground for holding that the provisions introduced by the 1991 (Amendment) Act are a “device” or a “ruse” to retain the taxes collected illegally and to invalidate them on that ground — assuming that such an argument is permissible in the case of a taxing enactment made by Parliament. (See R.K. Garg [(1981) 4 SCC 675 : 1982 SCC (Tax) 30 : AIR 1981 SC 2138 ] and other decisions cited in paras 87 and 88.)” 21. That a consumer can make an application for refund is clear from paras 98 and 99 of the judgment of this Court in Mafatlal Industries (supra). We are bound by the said findings of a Larger Bench of this Court. The word ‘buyer’ in Clause (e) to proviso to Section 11-B (2) of the Act cannot be restricted to the first buyer from the manufacturer. Another submission which remains to be considered is the requirement of verification to be done for the purpose of finding out who ultimately bore the burden of excise duty. It might be difficult to identify who had actually borne the burden but such verification would definitely assist the Revenue in finding out whether the manufacturer or buyer who makes an application for refund are being unjustly enriched. If it is not possible to identify the person/persons who have borne the duty, the amount of excise duty collected in excess will remain in the fund which will be utilized for the benefit of the consumers as provided in Section 12-D. 22. The High Court proceeded on an erroneous assumption of fact as well. It was held by the High Court that there is no unjust enrichment as the burden has not been passed on. The High Court’s interpretation of Section 11-B is also not correct.	1[ds]This Court approved the normal practice under which discounts are given and held that the discount is known to the dealer at the time of purchase. The Additional Solicitor General submitted that any credit note that was raised post clearance will not be taken into account for the purpose of a refund by the Department. We do not agree with the said submission as it was held by this Court in Union of India Vs Bombay Tyre International (supra) that trade discounts shall not be disallowed only because they are not payable at the time of each invoice or deducted from the invoice price. It is the submission of the Assessee that the turnover discount is known to the dealer even at the time of clearance which has also been upheld by this Court. It is clear from the above that the Assessee is entitled for filing a claim for refund on the basis of credit notes raised by him towards turnover discount.In the instant case, the Assessee has admitted that the incidence of duty was originally passed on to the buyer. There is no material brought on record to show that the buyer to whom the incidence of duty was passed on by the Assessee did not pass it on to any other person. There is a statutory presumption under Sectionof the Act that the duty has been passed on to the ultimate consumer. It is clear from the facts of the instant case that the duty which was originally paid by the Assessee was passed on. The refund claimed by the Assessee is for an amount which is part of the excise duty paid earlier and passed on. The Assessee who did not bear the burden of the duty, though entitled to claim deduction, is not entitled for a refund as he would be unjustly enriched.The sine qua non for a claim for refund as contemplated in Sectionof the Act is that the claimant has to establish that the amount of duty of excise in relation to which such refund is claimed was paid by him and that the incidence of such duty has not been passed on by him to any other person. Section(2) provides that, in case it is found that a part of duty of excise paid is refundable, the amount shall be credited to the fund. Section 2 (ee) defines Fund to mean the Consumer Welfare Fund established under SectionThere is a proviso to Section(2) which postulates that the amount of excise duty which is refundable may be paid to the applicant instead of being credited to the fund, if such amount is relatable to the duty of excise paid by the manufacturer and he had not passed on the incidence of such duty to any other person. Clause (e) to proviso of Section(2) also enables the buyer to receive the refund if he had borne the duty of excise, provided he did not pass on the incidence of such duty to any other person. There is a third category of a class of applicants who may be specified by the Central Government by a notification in the official gazette who are also entitled for refund of the duty of excise. A plain reading of Clauses (d), (e) and (f) of the proviso to Section(2) shows that refund to be made to an applicant should be relatable only to the duty of excise paid by the three categories of persons mentioned therein i.e. the manufacturer, the buyer and a class of applicants notified by the Central Government. Clause (e) refers to the buyer which is not restricted to the first buyer from the manufacturer. The buyer mentioned in the above Clause can be a buyer downstream as well.That a consumer can make an application for refund is clear from paras 98 and 99 of the judgment of this Court in Mafatlal Industries (supra). We are bound by the said findings of a Larger Bench of this Court. The wordin Clause (e) to proviso to SectionThe High Court proceeded on an erroneous assumption of fact as well. It was held by the High Court that there is no unjust enrichment as the burden has not been passed on. The Highinterpretation of Sectionis also notissues involved in the above Civil Appeals are similar to that of Civil Appeal No. 7906 of 2002.Except for a factual dispute about the genuineness of the certificate issued by the Chartered Accountant and the credit notes raised by the Assessee regarding the return of the excess duty paid by the Assessee, there is no dispute in this case of the duty being passed on to any other person by the buyer. As it is clear that the Assessee has borne the burden of duty, it cannot be said that it is not entitled for the refund of the excess duty paid. In view of the facts of this case being different from Civil Appeal No.7906 of 2002, the appeal preferred by the Revenue is dismissed.	1	7,003	906	### 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: Rules are so framed as to make it highly difficult for any consumer organisation to get the grant. There is no provision in the Act, Shri Nariman submitted, to locate the person really entitled to refund and to make over the money to him. “We expect a sensitive Government not to bluff but to hand back the amounts to those entitled thereto”, intoned Shri Nariman. It is a colourable device — declaimed Shri Sorabjee — “a dirty trick” and “a shabby thing”. The reply of Shri Parasaran to this criticism runs thus: It ill-becomes the manufacturers/Assessees to espouse the cause of consumers, when all the while they had been making a killing at their expense. No consumers organisation had come forward to voice any grievance against the said provisions. Clause (e) of the proviso to sub-section (2) of Section 11-B does provide for the buyer of the goods, to whom the burden of duty has been passed on, to apply for refund of duty to him, provided that he has not in his turn passed on the duty to others. It is, therefore, not correct to suggest that the Act does not provide for refund of duty to the person who has actually borne the burden. There is no vice in the relevant provisions of the Act. Rules cannot be relied upon to impugn the validity of an enactment, which must stand or fall on its own strength. The defect in the Rules, assuming that there is any, can always be corrected if the experience warrants it. The Court too may indicate the modifications needed in the Rules. The Government is always prepared to make the appropriate changes in the Rules since it views the process as a “trial and error” method — says Shri Parasaran”. 20. There was a further submission which was considered in the said judgment about the convenience/difficulty for the ultimate consumer to make applications for refund. In that connection it was held as follows:- “99. We agree with Shri Parasaran that so far as the provisions of the Act go, they are unexceptionable. Section 12-C which creates the Consumer Welfare Fund and Section 12-D which provides for making the Rules specifying the manner in which the money credited to the Fund shall be utilised cannot be faulted on any ground. Now, coming to the Rules, it is true that these Rules by themselves do not contemplate refund of any amount credited to the Fund to the consumers who may have borne the burden; the Rules only provide for “grants” being made in favour of consumer organisations for being spent on welfare of consumers. But, this is perhaps for the reason that clause (e) of the proviso to sub-section (2) of Section 11-B does provide for the purchaser of goods applying for and obtaining the refund where he can satisfy that the burden of the duty has been borne by him alone. Such a person can apply within six months of his purchase as provided in clause (e) of Explanation B appended to Section 11-B. It is, therefore, not correct to contend that the impugned provisions do not provide for refunding the tax collected contrary to law to the person really entitled thereto. A practical difficulty is pointed out in this behalf by the learned counsel for appellants-petitioners: It is pointed out that the manufacturer would have paid the duty at the place of “removal” or “clearance” of the said goods but the sale may have taken place elsewhere; if the purchaser wants to apply for refund — it is submitted — he has to go to the place where the duty has been paid by the manufacturer and apply there. It is also pointed out that purchasers may be spread all over India and it is not convenient or practicable for all of them to go to the place of “removal” of goods and apply for refund. True it is that there is this practical inconvenience but it must also be remembered that such claims will be filed only by purchasers of high-priced goods where the duty component is large and not by all and sundry/small purchasers. This practical inconvenience or hardship, as it is called, cannot be a ground for holding that the provisions introduced by the 1991 (Amendment) Act are a “device” or a “ruse” to retain the taxes collected illegally and to invalidate them on that ground — assuming that such an argument is permissible in the case of a taxing enactment made by Parliament. (See R.K. Garg [(1981) 4 SCC 675 : 1982 SCC (Tax) 30 : AIR 1981 SC 2138 ] and other decisions cited in paras 87 and 88.)” 21. That a consumer can make an application for refund is clear from paras 98 and 99 of the judgment of this Court in Mafatlal Industries (supra). We are bound by the said findings of a Larger Bench of this Court. The word ‘buyer’ in Clause (e) to proviso to Section 11-B (2) of the Act cannot be restricted to the first buyer from the manufacturer. Another submission which remains to be considered is the requirement of verification to be done for the purpose of finding out who ultimately bore the burden of excise duty. It might be difficult to identify who had actually borne the burden but such verification would definitely assist the Revenue in finding out whether the manufacturer or buyer who makes an application for refund are being unjustly enriched. If it is not possible to identify the person/persons who have borne the duty, the amount of excise duty collected in excess will remain in the fund which will be utilized for the benefit of the consumers as provided in Section 12-D. 22. The High Court proceeded on an erroneous assumption of fact as well. It was held by the High Court that there is no unjust enrichment as the burden has not been passed on. The High Court’s interpretation of Section 11-B is also not correct. ### Response: 1 ### Explanation: This Court approved the normal practice under which discounts are given and held that the discount is known to the dealer at the time of purchase. The Additional Solicitor General submitted that any credit note that was raised post clearance will not be taken into account for the purpose of a refund by the Department. We do not agree with the said submission as it was held by this Court in Union of India Vs Bombay Tyre International (supra) that trade discounts shall not be disallowed only because they are not payable at the time of each invoice or deducted from the invoice price. It is the submission of the Assessee that the turnover discount is known to the dealer even at the time of clearance which has also been upheld by this Court. It is clear from the above that the Assessee is entitled for filing a claim for refund on the basis of credit notes raised by him towards turnover discount.In the instant case, the Assessee has admitted that the incidence of duty was originally passed on to the buyer. There is no material brought on record to show that the buyer to whom the incidence of duty was passed on by the Assessee did not pass it on to any other person. There is a statutory presumption under Sectionof the Act that the duty has been passed on to the ultimate consumer. It is clear from the facts of the instant case that the duty which was originally paid by the Assessee was passed on. The refund claimed by the Assessee is for an amount which is part of the excise duty paid earlier and passed on. The Assessee who did not bear the burden of the duty, though entitled to claim deduction, is not entitled for a refund as he would be unjustly enriched.The sine qua non for a claim for refund as contemplated in Sectionof the Act is that the claimant has to establish that the amount of duty of excise in relation to which such refund is claimed was paid by him and that the incidence of such duty has not been passed on by him to any other person. Section(2) provides that, in case it is found that a part of duty of excise paid is refundable, the amount shall be credited to the fund. Section 2 (ee) defines Fund to mean the Consumer Welfare Fund established under SectionThere is a proviso to Section(2) which postulates that the amount of excise duty which is refundable may be paid to the applicant instead of being credited to the fund, if such amount is relatable to the duty of excise paid by the manufacturer and he had not passed on the incidence of such duty to any other person. Clause (e) to proviso of Section(2) also enables the buyer to receive the refund if he had borne the duty of excise, provided he did not pass on the incidence of such duty to any other person. There is a third category of a class of applicants who may be specified by the Central Government by a notification in the official gazette who are also entitled for refund of the duty of excise. A plain reading of Clauses (d), (e) and (f) of the proviso to Section(2) shows that refund to be made to an applicant should be relatable only to the duty of excise paid by the three categories of persons mentioned therein i.e. the manufacturer, the buyer and a class of applicants notified by the Central Government. Clause (e) refers to the buyer which is not restricted to the first buyer from the manufacturer. The buyer mentioned in the above Clause can be a buyer downstream as well.That a consumer can make an application for refund is clear from paras 98 and 99 of the judgment of this Court in Mafatlal Industries (supra). We are bound by the said findings of a Larger Bench of this Court. The wordin Clause (e) to proviso to SectionThe High Court proceeded on an erroneous assumption of fact as well. It was held by the High Court that there is no unjust enrichment as the burden has not been passed on. The Highinterpretation of Sectionis also notissues involved in the above Civil Appeals are similar to that of Civil Appeal No. 7906 of 2002.Except for a factual dispute about the genuineness of the certificate issued by the Chartered Accountant and the credit notes raised by the Assessee regarding the return of the excess duty paid by the Assessee, there is no dispute in this case of the duty being passed on to any other person by the buyer. As it is clear that the Assessee has borne the burden of duty, it cannot be said that it is not entitled for the refund of the excess duty paid. In view of the facts of this case being different from Civil Appeal No.7906 of 2002, the appeal preferred by the Revenue is dismissed.
Smt. Manshan and Others Vs. Tej Ram and Others	appeal is covered by the ratio of the decision in Giasi Ram v. Ramji Lal ((1969) 3 SCR 944 : (1969) 1 SCC 813 ), which case was cited before the High Court but since the full report of the judgment was not available to it, it could not correctly apply the principle and decided the case against the appellants by taking an erroneous view of the law. Hence this appeal by special leave. 2. On Nritya Chaudhary indisputably governed by the general Punjab custom was the last male holder of certain agricultural land abadi and a house. On August 9, 1946 he gifted his property to his two daughters, Manshan and Janki, Manshan is appellant 1 and the heirs of Janki are the other appellants in this appeal. On December 17, 1974 a suit was filed by one Bhagat Ram, father of respondents 1 to 3, a collateral of Chaudhary for a declaration that the properties were ancestral in the hands of Chaudhary and the gift made by him favour of his daughter could not enure beyond his lifetime. A declaratory decree to that effect was sought for. On March 7, 1950 a compromise decree was made in that suit declaring that 27/39th share of the land in dispute would go to the next reversioner of Chaudhary and the remaining 12/39th the share of the land, the abadi and the house were left out of the declaratory decree. In respect of the latter property the suit was dismissed by compromise. The Hindu Succession Act, 1956, hereinafter called the Act, came into force on and from June 17, 1956. Chaudhary died on October 18, 1957. Bhagat Rams heirs thereafter filed the present suit giving rise to this appeal for claiming the land of Chaudhary in respect of which a declaratory decree had been made in favour of Bhagat Ram. The stand taken on behalf of the appellants was that after coming into force of the Hindu Succession Act the daughters the supersession of the custom prevalent in Punjab became the preferential heirs of Chaudhary and hence on his death they became entitled to the property in question. They succeeded before the trial Court as also before the first appellate Court. They however lost in the High Court. The High Court allowed the second appeal and it is not quite clear from the judgment of the Division Bench as to on what basis the appeal was allowed. 3. The argument put forward on behalf of the respondents in the High Court with reference to Section 14 of the Hindu Succession Act was wholly misplaced. There was no question of applying either sub section (1) or sub section (2) of Section 14 of the said Act. Here the simple question which had to be answered was as to who was the heir of Chaudhary under Hindu Succession Act on the date of his death. The property will revert to him or her. Reading Section 4 and 8 of the Act together it is clear to us that on the date of death of Chaudhary in supersession of the prevalent custom, his daughters became the preferential heir and were entitled to inherit his property. Chaudhary might have remained a life owner according to the custom. But the portion of the custom which prevented the daughters from inheriting got superseded by the provisions of the Act and hence Bhagat Rams heirs were no longer entitled to succeed to the property of Chaudhary in the year 1957. The effect of the declaratory decree passed in the year 1950, it is plain, was merely to declare that whosoever would be the next reversioner to the estate of Chaudhary at the time of his death would get the property in respect of which the declaratory decree was made and not necessarily in person in whose favour the declaratory decree was passed. 4. The High Court also seems to have been influenced by the expression dying intestate occurring in Section 8 of the Act, and appears to have taken the view that since Chaudhary had no power to bequeath his ancestral property by a will, Section 8 would not apply and the daughters would not be entitled to claim the property as his reversioners under Section 8. In our opinion this is an entirely erroneous view of the law. Section 8 would apply where a male Hindu dies intestate either not having made any will or having made an invalid will. It squarely covered the case of the respondents. 5. In Giasi Ram case ((1969) 3 SCR 944 : (1969) 1 SCC 813 ), it was pointed out at page 947 : (SCC p. 816, para 6) The effect of the declaratory decree in Suit No. 75 of 1920, was merely to declare that by the sale interest conveyed in favour of the aliens was to enure during the lifetime of the alienor. The conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala at the point of his death and all person who would, but for the alienation, have taken the estate will be entitled to inherited the same. If Jwala had died before the Hindu Succession Act, 1956, was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved, by the virtue of Sections 2 and 4(1) of the Hindu Succession Act, 1956, upon the three sons, the widow and the two daughters. We are unable to agree with the High Court that because in the year 1920, the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the Hindu Succession Act, inherit his estate when succession opened after that Act came into force. As we have said above the present appeal is squarely covered by the view of this Court expressed in the passage extracted above.	1[ds]In our opinion this appeal is covered by the ratio of the decision in Giasi Ram v. Ramji Lal ((1969) 3 SCR 944 : (1969) 1 SCC 813 ), which case was cited before the High Court but since the full report of the judgment was not available to it, it could not correctly apply the principle and decided the case against the appellants by taking an erroneous view of the lawThe effect of the declaratory decree in Suit No. 75 of 1920, was merely to declare that by the sale interest conveyed in favour of the aliens was to enure during the lifetime of the alienor. The conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala at the point of his death and all person who would, but for the alienation, have taken the estate will be entitled to inherited the same. If Jwala had died before the Hindu Succession Act, 1956, was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved, by the virtue of Sections 2 and 4(1) of the Hindu Succession Act, 1956, upon the three sons, the widow and the two daughters. We are unable to agree with the High Court that because in the year 1920, the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the Hindu Succession Act, inherit his estate when succession opened after that Act came into forceAs we have said above the present appeal is squarely covered by the view of this Court expressed in the passage extracted above.	1	1,100	324	### 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: appeal is covered by the ratio of the decision in Giasi Ram v. Ramji Lal ((1969) 3 SCR 944 : (1969) 1 SCC 813 ), which case was cited before the High Court but since the full report of the judgment was not available to it, it could not correctly apply the principle and decided the case against the appellants by taking an erroneous view of the law. Hence this appeal by special leave. 2. On Nritya Chaudhary indisputably governed by the general Punjab custom was the last male holder of certain agricultural land abadi and a house. On August 9, 1946 he gifted his property to his two daughters, Manshan and Janki, Manshan is appellant 1 and the heirs of Janki are the other appellants in this appeal. On December 17, 1974 a suit was filed by one Bhagat Ram, father of respondents 1 to 3, a collateral of Chaudhary for a declaration that the properties were ancestral in the hands of Chaudhary and the gift made by him favour of his daughter could not enure beyond his lifetime. A declaratory decree to that effect was sought for. On March 7, 1950 a compromise decree was made in that suit declaring that 27/39th share of the land in dispute would go to the next reversioner of Chaudhary and the remaining 12/39th the share of the land, the abadi and the house were left out of the declaratory decree. In respect of the latter property the suit was dismissed by compromise. The Hindu Succession Act, 1956, hereinafter called the Act, came into force on and from June 17, 1956. Chaudhary died on October 18, 1957. Bhagat Rams heirs thereafter filed the present suit giving rise to this appeal for claiming the land of Chaudhary in respect of which a declaratory decree had been made in favour of Bhagat Ram. The stand taken on behalf of the appellants was that after coming into force of the Hindu Succession Act the daughters the supersession of the custom prevalent in Punjab became the preferential heirs of Chaudhary and hence on his death they became entitled to the property in question. They succeeded before the trial Court as also before the first appellate Court. They however lost in the High Court. The High Court allowed the second appeal and it is not quite clear from the judgment of the Division Bench as to on what basis the appeal was allowed. 3. The argument put forward on behalf of the respondents in the High Court with reference to Section 14 of the Hindu Succession Act was wholly misplaced. There was no question of applying either sub section (1) or sub section (2) of Section 14 of the said Act. Here the simple question which had to be answered was as to who was the heir of Chaudhary under Hindu Succession Act on the date of his death. The property will revert to him or her. Reading Section 4 and 8 of the Act together it is clear to us that on the date of death of Chaudhary in supersession of the prevalent custom, his daughters became the preferential heir and were entitled to inherit his property. Chaudhary might have remained a life owner according to the custom. But the portion of the custom which prevented the daughters from inheriting got superseded by the provisions of the Act and hence Bhagat Rams heirs were no longer entitled to succeed to the property of Chaudhary in the year 1957. The effect of the declaratory decree passed in the year 1950, it is plain, was merely to declare that whosoever would be the next reversioner to the estate of Chaudhary at the time of his death would get the property in respect of which the declaratory decree was made and not necessarily in person in whose favour the declaratory decree was passed. 4. The High Court also seems to have been influenced by the expression dying intestate occurring in Section 8 of the Act, and appears to have taken the view that since Chaudhary had no power to bequeath his ancestral property by a will, Section 8 would not apply and the daughters would not be entitled to claim the property as his reversioners under Section 8. In our opinion this is an entirely erroneous view of the law. Section 8 would apply where a male Hindu dies intestate either not having made any will or having made an invalid will. It squarely covered the case of the respondents. 5. In Giasi Ram case ((1969) 3 SCR 944 : (1969) 1 SCC 813 ), it was pointed out at page 947 : (SCC p. 816, para 6) The effect of the declaratory decree in Suit No. 75 of 1920, was merely to declare that by the sale interest conveyed in favour of the aliens was to enure during the lifetime of the alienor. The conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala at the point of his death and all person who would, but for the alienation, have taken the estate will be entitled to inherited the same. If Jwala had died before the Hindu Succession Act, 1956, was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved, by the virtue of Sections 2 and 4(1) of the Hindu Succession Act, 1956, upon the three sons, the widow and the two daughters. We are unable to agree with the High Court that because in the year 1920, the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the Hindu Succession Act, inherit his estate when succession opened after that Act came into force. As we have said above the present appeal is squarely covered by the view of this Court expressed in the passage extracted above. ### Response: 1 ### Explanation: In our opinion this appeal is covered by the ratio of the decision in Giasi Ram v. Ramji Lal ((1969) 3 SCR 944 : (1969) 1 SCC 813 ), which case was cited before the High Court but since the full report of the judgment was not available to it, it could not correctly apply the principle and decided the case against the appellants by taking an erroneous view of the lawThe effect of the declaratory decree in Suit No. 75 of 1920, was merely to declare that by the sale interest conveyed in favour of the aliens was to enure during the lifetime of the alienor. The conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala at the point of his death and all person who would, but for the alienation, have taken the estate will be entitled to inherited the same. If Jwala had died before the Hindu Succession Act, 1956, was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved, by the virtue of Sections 2 and 4(1) of the Hindu Succession Act, 1956, upon the three sons, the widow and the two daughters. We are unable to agree with the High Court that because in the year 1920, the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the Hindu Succession Act, inherit his estate when succession opened after that Act came into forceAs we have said above the present appeal is squarely covered by the view of this Court expressed in the passage extracted above.
THE STATE OF BIHAR Vs. THE BIHAR SECONDARY TEACHERS STRUGGLE COMMITTEE MUNGER	parity that is claimed is by the larger group with the lesser group as stated above which itself is a dying or a vanishing cadre. d) The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers as stated above. 77. If a pay structure is normally to be evolved keeping in mind factors such as method of recruitment and employers capacity to pay and if the limitations or qualifications to the applicability of the doctrine of equal pay for equal work admit inter alia the distinction on the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. Going by the facts indicated above and the statistics presented by the State Government, it was an enormous task of having the spread and reach of education in the remotest corners. Furthermore, the literacy rate of the State which was lagging far behind the national average was also a matter which required attention. The advancesmade by the State on these fronts are quite evident. All this was possible through rational use of resources. How best to use or utilise the resources and what emphasis be given to which factors are all policy matters and in our considered view the State had not faltered on any count. As laid down by this Court in the decisions in Joginder Singh 1963 Suppl. 2 SCR 169 and Zabar Singh (1972) 2 SCC 275 , the State was justified in having two different streams or cadres. The attempt in making over the process of selection to Panchayati Raj Institutions and letting the cadre of State Teachers to be a dying or vanishing cadre were part of the same mechanics of achieving the spread of education. These issues were all part of an integrated policy and if by process of judicial intervention any directions are issued to make available same salaries and emoluments to Niyojit Teachers, it could create tremendous imbalance and cause great strain on budgetary resources. 78. It is true that the budgetary constraints or financial implications can never be a ground if there is violation of Fundamental Rights of a citizen. Similarly, while construing the provisions of the RTE Act and the Rules framed thereunder, that interpretation ought to be accepted which would make the Right available under Article 21A a reality. As the text of the Article shows the provision is essentially child-centric. There cannot be two views as regards the point that Free and Compulsory Education ought to be quality education. However, such premise cannot lead to the further conclusion that in order to have quality education, Niyojit Teachers ought to be paid emoluments at the same level as are applicable to the State Teachers. The modalities in which expert teachers can be found, whether by giving them better scales and/or by insisting on threshold ability which could be tested through examinations such as TET Examination are for the Executive to consider. 79. In our considered view, there has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. We do not find that the efforts on part of the State Government could be labelled as unfair or discriminatory. Consequently, the submissions as to how the funds could and ought to be generated and what would be the burden on the State Government and the Central Government, do not arise for consideration. In our view, great strides have been made by the State in the last decade. It has galvanised itself into action and not only achieved the objectives of having schools in every neighbourhood but has also succeeded in increasing the literacy rate. It has also succeeded in having more girl children in the stream of education and consequently the TFR, as indicated above, has also improved to a great extent. If these are the benefits or rewards which the society stands to gain and achieve, the State ought to be given appropriate free play. The tabular charts placed on record by the State also show continuous improvements made by the State in the packages made available to the Niyojit Teachers. Said attempts also show that the State is moving in the right direction and the gap which is presently existing between the Government Teachers and the Niyojit Teachers would progressively get diminished. Considering the large number of Niyojit Teachers as against the Government Teachers, the steps taken by the State as evident from various tabular charts presented by it are in the right direction. At this juncture, any directions as have been passed by the High Court, may break even tempo which the State has consistently been able to achieve. 80. At the same time, the submission that at the initial stage the Niyojit Teachers are given such emoluments which are lesser than peons and clerks in the same school is a matter which requires attention. It is true that after having put in two years of service, the emoluments made available to Niyojit Teachers show some improvements but the disparity at the initial stage is more than evident. The State may certainly be entitled to devise a pay structure for Niyojit Teachers and the courts may not interfere in policy matters but, if there is an imbalance of the nature as presented before this Court, the matter raises concern. The teachers must be entitled to decent emoluments. In the chart referred to in para 32(c) above, after two years of service with proposed enhancement as per recommendations of the three member Committee the scales payable to Niyojit Teachers would show some increase as against those in respect of peons and clerks. The State may consider raising the scales of Niyojit Teachers at least to the level suggested by the Committee, without insisting on any test or examination advised by the Committee. Those who clear such test or examination, may be given even better scales. This is only a suggestion which may be considered by the State.	1[ds]56. At the outset we must note that though the 86 th Constitution Amendment Act was passed in the year 2002, the Article was brought into force on 1.4.2010 i.e. at least after eight years. It is also a matter of record that the RTE Act which was, all the while in contemplation, was enacted in the year 2009 and was also brought into force on 1.4.2010. The developments in that behalf including the historical background leading to the introduction of Article 21A and the enactment of the RTE Act were dealt with in extenso in paragraphs 441 to 461 in the opinion of Bhandari, J in Ashoka Kumar Thakur vs. Union of India (2008) 6 SCC 1. We, therefore, have to see how the State had conducted itself and whether the steps taken by the State were in order to discharge its obligationsIn the year 2002 itself, Scheme known as Sarva Shiksha Abhiyan was introduced at the Central level. In terms of the Scheme, the facilities of education and infrastructure were required to be spread through the length and breadth of the respective States. The steps taken in that behalf, specially in the present matter, indicate that sometime in 2002 more thanone lakh Shiksha Mitras were appointed by the State. These Shiksha Mitras were not part of the regular cadre of Government Teachers, were not appointed through the regular process of selection and their services were engaged on a fixed salary. These Shiksha Mitras, who were outside the regular cadre of teachers, were entrusted with the job of manning schools in the remotest corners of the State. Sometime in 2006, certain decisions were taken by the Cabinet of Ministers, Government of Bihar. The control in respect of appointment of teachers in all nationalized schools and other aspects, which were hithertobefore with the State Government, were given over to various Panchayat Raj institutions. This was in conformity with Articles 243G read with Serial No. 17 of the Eleventh Schedule in respect of Panchayats at the village, intermediate and at district levels and also in terms of Article 243W read with Serial No.13 of the Twelfth Schedule in respect of Nagar Panchayats, Municipal Councils or Municipal Corporations. The decisions taken by the Cabinet were in accord with the constitutional mandate of enabling Panchayat Raj Systems on one hand while on the other, the decision also raised the number of teachers substantially so that national parameters on student:teacher ratio could be achieved by the State. The statistics placed on record show that about 12% children in the State who were outside the schools had to be brought within the stream of education. The decision discernible from the Cabinet Notes was to achieve these objectives. After the decision of the Cabinet, the idea was translated in an appropriate statutory regime and new set of Rules viz. 2016 Rules were put in place. A decision was taken that there would be no further appointments in the cadre of existing teachers viz. Government Teachers and a completely new cadre of teachers named Niyojit Teachers was created. The erstwhile Shiksha Mitras were absorbed in this new cadre of Niyojit Teacher and fresh employments were made at Panchayat/Block levels so that teachers in sufficient numbers could be appointed. The developments indicate that presently about four lakh such teachers have been appointed and the statistics presented by the State, which are reflected in detail in abovenoted paragraph 31, show the advances made by the State in that behalf. It was submitted that the State could thus achieve substantial improvement in the enrolment of students and the results have also seen appreciable rise in literacy rate in the last decade in respect of the State57. We are thus having a situation where the decisions taken by the State as submitted on its behalf, were guided by public interest and societal commitment. The idea to achieve spread of education to the maximum level was attained and in the process the State had, to a great extent, triedto meet with the obligations that it was required to discharge under the provisions of Article 21A read with the RTE Act. What has however been projected on behalf of Niyojit Teachers is that while achieving these objectives, the State ought not to have discriminated against the Niyojit Teachers and should have extended fair treatment to them by ensuring equal pay for equal work. The arguments on behalf of State are that the first objective that had to be accomplished was to have the reach and spread of education to every nook and corner of the State and to satisfy the requirements of having schools and facilities in every neighbourhood as contemplated by the provisions of the RTE Act; and having achieved that objective, the State is now seeking to improve the service conditions and emoluments of the Niyojit Teachers. What therefore emerges is whether the actions on part of the State were justified or whether the Niyojit Teachers are right in their submission that they are entitled to equal pay for equal work58. Before we consider the rival submissions in connection with this issue, it must be mentioned that the cadre of Government Teachers with which parity or equality has been sought is a dying or a vanishing cadre. A conscious decision was taken by the State not to make any appointments in this cadre of Government Teachers and post 2006, with the exception as narrated hereinabove in paragraph 17, all appointments in the State have been in terms of and under the provisions of 2006 Rules. The statistics also show that presently there are about 57,293 elementary teachers in the cadre of Government Teachers and 7,800 Government Teachers at the secondary level which means there are about 66,000 government teachers in the State as against nearly 4 lakh Niyojit Teachers in the State. It is this group of 4 lakhs which is seeking parity with a number which is less than 1/5 th and by very nature which is a dying and vanishing cadre. Out of those 66,000 more than 31,000 were those who came to be appointed as one-time exception. Leaving aside that issue, the fact remains that it is a larger body of more than 4 lakhs which is seeking parity with a dying or a vanishing cadre59. In order to consider the applicability of the doctrine of equal pay for equal work, one of the fundamental aspects to be considered is nature of duties. As was rightly submitted by Mr. Kabil Sibal and Dr. A.M. Singhvi, learned Senior Advocates, the nature of duties performed by Niyojit Teachers are certainly same or similar to those performed by the Government Teachers. As a matter of fact, both the sets of teachers are teaching in the same school and teaching same syllabus. The pointers placed by Dr. Singhvi in his submission as well as the example given by him evidently show that there is no distinction or difference as regards nature of duties performed and responsibilities discharged by the Niyojit Teachers. Some of the Niyojit Teachers have also been acting as Headmasters. However, the Rules in question viz. 2006 Rules clearly indicate that the method of recruitment of Niyojit Teachers was completely different from the one under which Government Teachers were recruited. The Selection Committee contemplated under the provisions of 2006 Rules comprised of officials at the Panchayat or Block levels. The selection was also at local levels and not through Bihar Public Service Commission or Schools Selection Board. The distinction brought out in that behalf by the State in para 13 of its supplementary counter affidavit filed in the High Court clearly shows the difference in mode of recruitment. It is thus clear that the mode of recruitment and the standards of selection were different but the nature of duties performed by the Niyojit Teachers have been absolutely identical. Could there be a distinction between these two streams of teachers. We may, therefore, at this stage see the development of the doctrine of equal pay for equal work and whether it admits of any qualifications or exceptions62. Post Randhir Singh (1982) 1 SCC 618 , there have been number of decisions rendered by this Court and instead of looking into and considering every single decision on the point, we may consider those decisions which themselves had taken into account all the earlier decisions and thenconsidered if there are any limitations or qualifications to the doctrine of equal pay for equal work68. Analysis of the decisions referred to above shows that this Court has accepted following limitations or qualifications to the applicability of the doctrine of equal pay for equali) The doctrine of equal pay for equal work is not an abstract doctrineii) The principle of equal pay for equal work has no mechanical application in every caseiii) The very fact that the person has not gone through the process of recruitment may itself, in certain cases, makes a differenceiv) The application of the principle of equal pay for equal work requires consideration of various dimensions of a given jobv) Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interferevi) Granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authoritiesvii) Equation of posts and salary is a complex matter which should be left to an expert bodyviii) Granting of pay parity by the court may result in a cascading effect and reaction which can have adverse consequencesix) Before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointmentx) In a given case, mode of selection may be considered as one of the factors which may make a difference71. The qualifications to the applicability of the doctrine of equal pay for equal work which have long been recognised and acknowledged in the decisions referred to above are well established. The decision in Jagjit Singh (2017) 1 SCC 148 again reiterated some of those qualifications. These limitations or qualifications have not been diluted but stand re-inforced74. Heavy reliance was placed on the aforesaid decisions by the learned Attorney General and the learned counsel who appeared for the State. It was submitted that though the teachers in provincialized cadre and the State cadre were doing similar duties and discharging identical responsibilities and though, they were as a matter of fact drawing similar pay and emoluments, the services were considered to be distinct and different. The feature that one of the cadres was to be a dying or vanishing cadre was also present in those cases. It was accepted by this Court that the State was within its Rights to let a particular service or cadre be a dying or vanishing cadre and keep making appointments in other service while maintaining distinct identities of both the services, even when the teachers coming from the both the cadres were doing identical jobs. Though, strictly speaking, those two matters did not involve concept of equal pay for equal work, these cases do point that the State can validly make such distinction or differentiation. The learned Attorney General and the learned counsel appearing for the State were, therefore, justified in placing reliance on these two decisions. It is also evident that the subsequent judgments have not noted the decisions of this Court in Joginder Singh 1963 Suppl. 2 SCR 169 and Zabar SinghFor the purposes of present discussion, we will proceed on the basis that even when the teachers from both the cadres were discharging similar duties and responsibilities, the decision of the State government to maintain different identities of these two cadres was not found objectionable by this Court and further there could be inter se distinctions between these two cadres. It is true that both the cadres were enjoying same pay structure but the submission that the chances of promotion ought to be similar was not accepted by the Court76. We, therefore, have to proceed on the following basic premise:a) It was open to the State to have two distinct cadres namely that of Government Teachers and Niyojit Teachers with Government Teachers being a dying or vanishing cadre. The incidents of these two cadres could be different. The idea by itself would not be discriminatoryb) The pay structure given to the Niyojit Teachers was definitely lower than what was given to Government Teachers but the number of Government Teachers was considerably lower than the number of Niyojit TeachersAs stated above, presently there are just about 66,000 Government Teachers in the State as against nearly 4 lakh Niyojit Teachers. There is scope for further appointment of about 1 lakh teachers which could mean that as against 5 lakh teachers the number of State Teachers would progressively be going downc) The parity that is claimed is by the larger group with the lesser group as stated above which itself is a dying or a vanishing cadred) The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers as stated above77. If a pay structure is normally to be evolved keeping in mind factors such as method of recruitment and employers capacity to pay and if the limitations or qualifications to the applicability of the doctrine of equal pay for equal work admit inter alia the distinction on the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. Going by the facts indicated above and the statistics presented by the State Government, it was an enormous task of having the spread and reach of education in the remotest corners. Furthermore, the literacy rate of the State which was lagging far behind the national average was also a matter which required attention. The advancesmade by the State on these fronts are quite evident. All this was possible through rational use of resources. How best to use or utilise the resources and what emphasis be given to which factors are all policy matters and in our considered view the State had not faltered on any count. As laid down by this Court in the decisions in Joginder Singh 1963 Suppl. 2 SCR 169 and Zabar Singh(1972) 2 SCC 275, the State was justified in having two different streams or cadres. The attempt in making over the process of selection to Panchayati Raj Institutions and letting the cadre of State Teachers to be a dying or vanishing cadre were part of the same mechanics of achieving the spread of education. These issues were all part of an integrated policy and if by process of judicial intervention any directions are issued to make available same salaries and emoluments to Niyojit Teachers, it could create tremendous imbalance and cause great strain on budgetary resources78. It is true that the budgetary constraints or financial implications can never be a ground if there is violation of Fundamental Rights of a citizen. Similarly, while construing the provisions of the RTE Act and the Rules framed thereunder, that interpretation ought to be accepted which would make the Right available under Article 21A a reality. As the text of the Article shows the provision is essentially child-centric. There cannot be two views as regards the point that Free and Compulsory Education ought to be quality education. However, such premise cannot lead to the further conclusion that in order to have quality education, Niyojit Teachers ought to be paid emoluments at the same level as are applicable to the State Teachers. The modalities in which expert teachers can be found, whether by giving them better scales and/or by insisting on threshold ability which could be tested through examinations such as TET Examination are for the Executive to consider79. In our considered view, there has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. We do not find that the efforts on part of the State Government could be labelled as unfair or discriminatory. Consequently, the submissions as to how the funds could and ought to be generated and what would be the burden on the State Government and the Central Government, do not arise for considerationIn our view, great strides have been made by the State in the last decade. It has galvanised itself into action and not only achieved the objectives of having schools in every neighbourhood but has also succeeded in increasing the literacy rate. It has also succeeded in having more girl children in the stream of education and consequently the TFR, as indicated above, has also improved to a great extent. If these are the benefits or rewards which the society stands to gain and achieve, the State ought to be given appropriate free play. The tabular charts placed on record by the State also show continuous improvements made by the State in the packages made available to the Niyojit Teachers. Said attempts also show that the State is moving in the right direction and the gap which is presently existing between the Government Teachers and the Niyojit Teachers would progressively get diminished. Considering the large number of Niyojit Teachers as against the Government Teachers, the steps taken by the State as evident from various tabular charts presented by it are in the right direction. At this juncture, any directions as have been passed by the High Court, may break even tempo which the State has consistently been able to achieve80. At the same time, the submission that at the initial stage the Niyojit Teachers are given such emoluments which are lesser than peons and clerks in the same school is a matter which requires attention. It is true that after having put in two years of service, the emoluments made available to Niyojit Teachers show some improvements but the disparity at the initial stage is more than evident. The State may certainly be entitled to devise a pay structure for Niyojit Teachers and the courts may not interfere in policy matters but, if there is an imbalance of the nature as presented before this Court, the matter raises concern. The teachers must be entitled to decent emoluments. In the chart referred to in para 32(c) above, after two years of service with proposed enhancement as per recommendations of the three member Committee the scales payable to Niyojit Teachers would show some increase as against those in respect of peons and clerks. The State may consider raising the scales of Niyojit Teachers at least to the level suggested by the Committee, without insisting on any test or examination advised by the Committee. Those who clear such test or examination, may be given even better scales. This is only a suggestion which may be considered by the State.	1	39,769	3,381	### 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: parity that is claimed is by the larger group with the lesser group as stated above which itself is a dying or a vanishing cadre. d) The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers as stated above. 77. If a pay structure is normally to be evolved keeping in mind factors such as method of recruitment and employers capacity to pay and if the limitations or qualifications to the applicability of the doctrine of equal pay for equal work admit inter alia the distinction on the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. Going by the facts indicated above and the statistics presented by the State Government, it was an enormous task of having the spread and reach of education in the remotest corners. Furthermore, the literacy rate of the State which was lagging far behind the national average was also a matter which required attention. The advancesmade by the State on these fronts are quite evident. All this was possible through rational use of resources. How best to use or utilise the resources and what emphasis be given to which factors are all policy matters and in our considered view the State had not faltered on any count. As laid down by this Court in the decisions in Joginder Singh 1963 Suppl. 2 SCR 169 and Zabar Singh (1972) 2 SCC 275 , the State was justified in having two different streams or cadres. The attempt in making over the process of selection to Panchayati Raj Institutions and letting the cadre of State Teachers to be a dying or vanishing cadre were part of the same mechanics of achieving the spread of education. These issues were all part of an integrated policy and if by process of judicial intervention any directions are issued to make available same salaries and emoluments to Niyojit Teachers, it could create tremendous imbalance and cause great strain on budgetary resources. 78. It is true that the budgetary constraints or financial implications can never be a ground if there is violation of Fundamental Rights of a citizen. Similarly, while construing the provisions of the RTE Act and the Rules framed thereunder, that interpretation ought to be accepted which would make the Right available under Article 21A a reality. As the text of the Article shows the provision is essentially child-centric. There cannot be two views as regards the point that Free and Compulsory Education ought to be quality education. However, such premise cannot lead to the further conclusion that in order to have quality education, Niyojit Teachers ought to be paid emoluments at the same level as are applicable to the State Teachers. The modalities in which expert teachers can be found, whether by giving them better scales and/or by insisting on threshold ability which could be tested through examinations such as TET Examination are for the Executive to consider. 79. In our considered view, there has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. We do not find that the efforts on part of the State Government could be labelled as unfair or discriminatory. Consequently, the submissions as to how the funds could and ought to be generated and what would be the burden on the State Government and the Central Government, do not arise for consideration. In our view, great strides have been made by the State in the last decade. It has galvanised itself into action and not only achieved the objectives of having schools in every neighbourhood but has also succeeded in increasing the literacy rate. It has also succeeded in having more girl children in the stream of education and consequently the TFR, as indicated above, has also improved to a great extent. If these are the benefits or rewards which the society stands to gain and achieve, the State ought to be given appropriate free play. The tabular charts placed on record by the State also show continuous improvements made by the State in the packages made available to the Niyojit Teachers. Said attempts also show that the State is moving in the right direction and the gap which is presently existing between the Government Teachers and the Niyojit Teachers would progressively get diminished. Considering the large number of Niyojit Teachers as against the Government Teachers, the steps taken by the State as evident from various tabular charts presented by it are in the right direction. At this juncture, any directions as have been passed by the High Court, may break even tempo which the State has consistently been able to achieve. 80. At the same time, the submission that at the initial stage the Niyojit Teachers are given such emoluments which are lesser than peons and clerks in the same school is a matter which requires attention. It is true that after having put in two years of service, the emoluments made available to Niyojit Teachers show some improvements but the disparity at the initial stage is more than evident. The State may certainly be entitled to devise a pay structure for Niyojit Teachers and the courts may not interfere in policy matters but, if there is an imbalance of the nature as presented before this Court, the matter raises concern. The teachers must be entitled to decent emoluments. In the chart referred to in para 32(c) above, after two years of service with proposed enhancement as per recommendations of the three member Committee the scales payable to Niyojit Teachers would show some increase as against those in respect of peons and clerks. The State may consider raising the scales of Niyojit Teachers at least to the level suggested by the Committee, without insisting on any test or examination advised by the Committee. Those who clear such test or examination, may be given even better scales. This is only a suggestion which may be considered by the State. ### Response: 1 ### Explanation: State Teachers would progressively be going downc) The parity that is claimed is by the larger group with the lesser group as stated above which itself is a dying or a vanishing cadred) The mode of recruitment of Niyojit Teachers is completely different from that of the Government Teachers as stated above77. If a pay structure is normally to be evolved keeping in mind factors such as method of recruitment and employers capacity to pay and if the limitations or qualifications to the applicability of the doctrine of equal pay for equal work admit inter alia the distinction on the ground of process of recruitment, the stand taken on behalf of the State Government is not unreasonable or irrational. Going by the facts indicated above and the statistics presented by the State Government, it was an enormous task of having the spread and reach of education in the remotest corners. Furthermore, the literacy rate of the State which was lagging far behind the national average was also a matter which required attention. The advancesmade by the State on these fronts are quite evident. All this was possible through rational use of resources. How best to use or utilise the resources and what emphasis be given to which factors are all policy matters and in our considered view the State had not faltered on any count. As laid down by this Court in the decisions in Joginder Singh 1963 Suppl. 2 SCR 169 and Zabar Singh(1972) 2 SCC 275, the State was justified in having two different streams or cadres. The attempt in making over the process of selection to Panchayati Raj Institutions and letting the cadre of State Teachers to be a dying or vanishing cadre were part of the same mechanics of achieving the spread of education. These issues were all part of an integrated policy and if by process of judicial intervention any directions are issued to make available same salaries and emoluments to Niyojit Teachers, it could create tremendous imbalance and cause great strain on budgetary resources78. It is true that the budgetary constraints or financial implications can never be a ground if there is violation of Fundamental Rights of a citizen. Similarly, while construing the provisions of the RTE Act and the Rules framed thereunder, that interpretation ought to be accepted which would make the Right available under Article 21A a reality. As the text of the Article shows the provision is essentially child-centric. There cannot be two views as regards the point that Free and Compulsory Education ought to be quality education. However, such premise cannot lead to the further conclusion that in order to have quality education, Niyojit Teachers ought to be paid emoluments at the same level as are applicable to the State Teachers. The modalities in which expert teachers can be found, whether by giving them better scales and/or by insisting on threshold ability which could be tested through examinations such as TET Examination are for the Executive to consider79. In our considered view, there has been no violation of the Rights of the Niyojit Teachers nor has there been any discrimination against them. We do not find that the efforts on part of the State Government could be labelled as unfair or discriminatory. Consequently, the submissions as to how the funds could and ought to be generated and what would be the burden on the State Government and the Central Government, do not arise for considerationIn our view, great strides have been made by the State in the last decade. It has galvanised itself into action and not only achieved the objectives of having schools in every neighbourhood but has also succeeded in increasing the literacy rate. It has also succeeded in having more girl children in the stream of education and consequently the TFR, as indicated above, has also improved to a great extent. If these are the benefits or rewards which the society stands to gain and achieve, the State ought to be given appropriate free play. The tabular charts placed on record by the State also show continuous improvements made by the State in the packages made available to the Niyojit Teachers. Said attempts also show that the State is moving in the right direction and the gap which is presently existing between the Government Teachers and the Niyojit Teachers would progressively get diminished. Considering the large number of Niyojit Teachers as against the Government Teachers, the steps taken by the State as evident from various tabular charts presented by it are in the right direction. At this juncture, any directions as have been passed by the High Court, may break even tempo which the State has consistently been able to achieve80. At the same time, the submission that at the initial stage the Niyojit Teachers are given such emoluments which are lesser than peons and clerks in the same school is a matter which requires attention. It is true that after having put in two years of service, the emoluments made available to Niyojit Teachers show some improvements but the disparity at the initial stage is more than evident. The State may certainly be entitled to devise a pay structure for Niyojit Teachers and the courts may not interfere in policy matters but, if there is an imbalance of the nature as presented before this Court, the matter raises concern. The teachers must be entitled to decent emoluments. In the chart referred to in para 32(c) above, after two years of service with proposed enhancement as per recommendations of the three member Committee the scales payable to Niyojit Teachers would show some increase as against those in respect of peons and clerks. The State may consider raising the scales of Niyojit Teachers at least to the level suggested by the Committee, without insisting on any test or examination advised by the Committee. Those who clear such test or examination, may be given even better scales. This is only a suggestion which may be considered by the State.
Dalip Singh Vs. Bhupinder Kaur	Deepak Gupta, J.1. Leave granted.2. This appeal is directed against the judgment dated 05.08.2016 in Regular Second Appeal No. 1442 of 2010 passed by the High Court of Punjab & Haryana at Chandigarh whereby concurrent findings of fact of the trial court and the lower appellate court have been set aside.3. Briefly stated the facts of the case are that Bhupinder Kaur (Respondent-Plaintiff) filed a suit for specific performance of agreement to sell dated 25.02.1999, whereby Dalip Singh (Appellant-Defendant) had allegedly agreed to sell the suit property to her for a consideration of Rs. 1,50,000/- out of which Rs. 92,000/- was paid at the time of the agreement.4. The trial court dismissed the suit holding that there were many suspicious circumstances surrounding the agreement. Though the trial court did not totally believe the case set up by Dalip Singh that he had not even signed the agreement, it held that the Plaintiff Bhupinder Kaur had failed to prove her own case. After discussing the evidence threadbare, the trial court held that the Plaintiff had failed to prove that an amount of Rs. 92,000/- was paid to the Defendant. The court referred to the statement of the Plaintiff in which she had stated that she had withdrawn this amount of Rs. 92,000/- from the Oriental Bank of Commerce. She did not produce the passbook of the Bank to prove this allegation. In fact, the Defendant examined a witness from this Bank, who proved that from 01.02.1999 to 01.03.1999 there was no transaction in the account by the Plaintiff. Thus, the Plaintiff had miserably failed to prove that she had paid a huge amount of Rs. 92,000/- to the Defendant. The trial court also came to the conclusion on the basis of the evidence that the agreement was for consideration of Rs. 1,50,000/- but the value of the property at the relevant time was not less than Rs. 5,00,000/-.5. The lower appellate court, after discussing the entire evidence, upheld the decree of the trial court. It also found that the Defendant is an illiterate person and even if his signatures on the agreement were accepted to be there, nobody had led evidence to show that the document was read out and explained to him before he signed the same. It would also be pertinent to mention that within four days of the agreement being signed, the Defendant had issued notice on 01.03.1999 clearly stating that he had not entered into any agreement to sell nor he had received Rs. 92,000/-. Therefore, this was not an afterthought.6. Surprisingly, the High Court, in second appeal, upset these findings of facts without even discussing the evidence and merely after referring to certain averments of Para 2 of the plaint and paragraph 2 of the written statement, which read as follows:Para No. 2 of the plaintThat at the time of execution of the agreement to sell dated 25.02.1999 the Defendant received a sum of Rs. 92,000/- from the Plaintiff as earnest money in advance and agreed to execute the sale deed in favour of the Plaintiff on or before 16.07.1999.Paragraph 2 of the written statement on meritsPara No. 2 of the plaint is wrong and denied. The defdt. Never received Rs. 92,000/- from the Plaintiff as earnest money on 25.02.99 nor the Plaintiff ever paid this amount to the defdt. It is denied that the sale deed was to be executed on or before 16.7.99.The High Court held that on the basis of the aforesaid pleadings, the irresistible conclusion is that the agreement to sell was actually executed and readiness and willingness has been proved.7. We fail to understand how the High Court could come to this conclusion. In the written statement the Defendant had denied the averments made in Para 2 of the plaint. The Defendant had denied that he had received Rs. 92,000/- as earnest money. There was no admission by him of any of the allegations. The reasoning given by the High Court is specious and cannot stand scrutiny. The High Court did not discuss the evidence at all and erred in setting aside the concurrent findings of both the Courts.	1[ds]7. We fail to understand how the High Court could come to this conclusion. In the written statement the Defendant had denied the averments made in Para 2 of the plaint. The Defendant had denied that he had received Rs. 92,000/- as earnest money. There was no admission by him of any of the allegations. The reasoning given by the High Court is specious and cannot stand scrutiny. The High Court did not discuss the evidence at all and erred in setting aside the concurrent findings of both the Courts.	1	752	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: Deepak Gupta, J.1. Leave granted.2. This appeal is directed against the judgment dated 05.08.2016 in Regular Second Appeal No. 1442 of 2010 passed by the High Court of Punjab & Haryana at Chandigarh whereby concurrent findings of fact of the trial court and the lower appellate court have been set aside.3. Briefly stated the facts of the case are that Bhupinder Kaur (Respondent-Plaintiff) filed a suit for specific performance of agreement to sell dated 25.02.1999, whereby Dalip Singh (Appellant-Defendant) had allegedly agreed to sell the suit property to her for a consideration of Rs. 1,50,000/- out of which Rs. 92,000/- was paid at the time of the agreement.4. The trial court dismissed the suit holding that there were many suspicious circumstances surrounding the agreement. Though the trial court did not totally believe the case set up by Dalip Singh that he had not even signed the agreement, it held that the Plaintiff Bhupinder Kaur had failed to prove her own case. After discussing the evidence threadbare, the trial court held that the Plaintiff had failed to prove that an amount of Rs. 92,000/- was paid to the Defendant. The court referred to the statement of the Plaintiff in which she had stated that she had withdrawn this amount of Rs. 92,000/- from the Oriental Bank of Commerce. She did not produce the passbook of the Bank to prove this allegation. In fact, the Defendant examined a witness from this Bank, who proved that from 01.02.1999 to 01.03.1999 there was no transaction in the account by the Plaintiff. Thus, the Plaintiff had miserably failed to prove that she had paid a huge amount of Rs. 92,000/- to the Defendant. The trial court also came to the conclusion on the basis of the evidence that the agreement was for consideration of Rs. 1,50,000/- but the value of the property at the relevant time was not less than Rs. 5,00,000/-.5. The lower appellate court, after discussing the entire evidence, upheld the decree of the trial court. It also found that the Defendant is an illiterate person and even if his signatures on the agreement were accepted to be there, nobody had led evidence to show that the document was read out and explained to him before he signed the same. It would also be pertinent to mention that within four days of the agreement being signed, the Defendant had issued notice on 01.03.1999 clearly stating that he had not entered into any agreement to sell nor he had received Rs. 92,000/-. Therefore, this was not an afterthought.6. Surprisingly, the High Court, in second appeal, upset these findings of facts without even discussing the evidence and merely after referring to certain averments of Para 2 of the plaint and paragraph 2 of the written statement, which read as follows:Para No. 2 of the plaintThat at the time of execution of the agreement to sell dated 25.02.1999 the Defendant received a sum of Rs. 92,000/- from the Plaintiff as earnest money in advance and agreed to execute the sale deed in favour of the Plaintiff on or before 16.07.1999.Paragraph 2 of the written statement on meritsPara No. 2 of the plaint is wrong and denied. The defdt. Never received Rs. 92,000/- from the Plaintiff as earnest money on 25.02.99 nor the Plaintiff ever paid this amount to the defdt. It is denied that the sale deed was to be executed on or before 16.7.99.The High Court held that on the basis of the aforesaid pleadings, the irresistible conclusion is that the agreement to sell was actually executed and readiness and willingness has been proved.7. We fail to understand how the High Court could come to this conclusion. In the written statement the Defendant had denied the averments made in Para 2 of the plaint. The Defendant had denied that he had received Rs. 92,000/- as earnest money. There was no admission by him of any of the allegations. The reasoning given by the High Court is specious and cannot stand scrutiny. The High Court did not discuss the evidence at all and erred in setting aside the concurrent findings of both the Courts. ### Response: 1 ### Explanation: 7. We fail to understand how the High Court could come to this conclusion. In the written statement the Defendant had denied the averments made in Para 2 of the plaint. The Defendant had denied that he had received Rs. 92,000/- as earnest money. There was no admission by him of any of the allegations. The reasoning given by the High Court is specious and cannot stand scrutiny. The High Court did not discuss the evidence at all and erred in setting aside the concurrent findings of both the Courts.
M/S. Sea Lark Fisheries Vs. United India Insurance Co.	of entering into a contract of insurance were left blank. 10. The Division Bench of the High Court has noticed Rule 31 of the Tamil Nadu Minor Ports Harbour Craft Rules, 1953 which mandates posting of a Master or Serang and one Engineer or Engine Driver in every mechanically propelled vessel, when used. The driver is required to possess a certificate of training issued by the Department of Fisheries. Rule 32 of the said Rules prescribes the method of obtaining a certificate of competency as Master or Serang. Not only did the proposal for insurance not contain the said details but also no evidence in that behalf was brought on records.11. The submission of the learned counsel that the appellant was not allowed to furnish information cannot be accepted as such a plea was not raised in the plaint. 12. Mr. Gogia submitted that the survey conducted by the insurance company established that the vessel was seaworthy. The inspection report is dated 17.04.1980. A survey was conducted by a surveyor (we don’t know at whose instance) on 25.11.1979 at 6 p.m. For what purpose such a survey was conducted is not known. Why a report was submitted after more than four months from the date of conducting the survey is also beyond our comprehension. 13. A marine insurance policy requires an implied warranty of seaworthiness as is evident from Sub-section (3) of Section 41 of the Marine Insurance Act, 1963 (for short “the Act”) which governs the terms of a contract of insurance. It may be true that the notice dated 9.11.1981 repudiating the claim did not contain any details in regard to the purported misrepresentation of material facts but the same was not decisive. It was for the plaintiff not only to plead but also establish that the vessel in question was seaworthy. In the plaint, it was merely stated: “10. The plaintiffs had issued a notice through their counsel dated 7.1.1983 calling upon the defendant to make the payment. Though the said notice was received and acknowledged by the defendant, so far has not made any payment. On the other hand the defendant had sent a reply dated 15.3.83 raising incorrect and unsustainable contentions.” 14. There is no averment even in the plaint that the vehicle was seaworthy. In its written statement, Respondent No. 1 stated: “7. “The defendant submits that even the answers which are handwritten were not filled by Hemachandra Babu or any other person acting on behalf of the defendant”.” 15. Section 19 of the Act states that insurance is uberrimae fidei. Section 20 provides for disclosures by the assured. The question as to whether a particular circumstance which is not disclosed is material or not is essentially a question of fact. What facts need to be disclosed and what need not, have clearly been laid down in sub-sections (2) and (3) of Section 20 respectively. Section 21 of the Act provides for the disclosure by an agent effecting the insurance. The Bank having acted as an agent, thus, had a responsibility to disclose all material facts. The insurance policy was marked as Ext. D-18. It was also referred to in the plaint. We have noticed hereto before the material part thereof. 16. The terms of the contract of insurance, thus, being governed by the provisions of a statute; non-disclosure of such material facts would render the policy repudiable. For this purpose, we may notice the depositions of DW-1, which are in questions and answers form, which read as under: “Q. See the particulars of “Master and Crew”. Then there is a heading “general”. Under the first heading, the answer to the question is “Vessel in charge of qualified master” What is the answer?A: Yes.Q. Under the heading “general” there are three questions. Was any information furnished to you with regard to the questions?A: They have not furnished any information for the three questions.* * *Q. You said the proposal form was typed at your office. Did you carry the information to your office?A: I noted down the particulars in a paper and took them to the office.Q. You would have had a discussion with the bank officials about what are the information required.A: I have the proposal to them and whatever information they gave, I noted down in a paper.Q. Do you have a paper in your possession?A: No.Q. How did you note the information given in the paper wise or generally?A. Column-wise.Q. You find at the top of the proposal “10.05 Meters” has been mentioned. Is it correct?A: Yes.Q. When was this writing in “ink” made?A: After typing it, I took it back to the bank and asked them to check the information whether they are correct.”* * *Q. You got the name of the owner of the Board from the Bank either orally or in writing.A: Orally.By Counsel:Q. Are you in the habit of accepting oral representation?A: YesQ. So if my learned friend says that the insurance was issued only on the basis of the proposal is it incorrect.A: No, it is not incorrect.Q. Are you the accepting authority?A: My branch manager is the accepting authority.Q. What did you do after taking the proposal to the branch manager?A: I showed the proposal to the Branch Manager and he asked me to issue the policy.” Thus, even according to DW-1, necessary particulars were not furnished to him by the plaintiff. How DW-1 could act upon the purported oral representation of the officers of the Bank is beyond anybody’s comprehension. No reliance can, thus, be placed on his evidence. 17. Where there has been a suppression of fact, acceptance of the policy by an officer of the insurance company would not be binding on it. The Division Bench of the High Court, in our opinion, having regard to the statutory provisions, has rightly held that the plaintiff suppressed the material fact. Moreover, in view of the statutory rules, the court would have no other option but to hold that the vessel was not seaworthy.	0[ds]17. Where there has been a suppression of fact, acceptance of the policy by an officer of the insurance company would not be binding on it. The Division Bench of the High Court, in our opinion, having regard to the statutory provisions, has rightly held that the plaintiff suppressed the material fact. Moreover, in view of the statutory rules, the court would have no other option but to hold that the vessel was not seaworthy.The Division Bench of the High Court has noticed Rule 31 of the Tamil Nadu Minor Ports Harbour Craft Rules, 1953 which mandates posting of a Master or Serang and one Engineer or Engine Driver in every mechanically propelled vessel, when used. The driver is required to possess a certificate of training issued by the Department of Fisheries. Rule 32 of the said Rules prescribes the method of obtaining a certificate of competency as Master or Serang. Not only did the proposal for insurance not contain the said details but also no evidence in that behalf was brought on records.11. The submission of the learned counsel that the appellant was not allowed to furnish information cannot be accepted as such a plea was not raised in theinspection report is dated 17.04.1980. A survey was conducted by a surveyor (weknow at whose instance) on 25.11.1979 at 6 p.m. For what purpose such a survey was conducted is not known. Why a report was submitted after more than four months from the date of conducting the survey is also beyond our comprehension.Section 19 of the Act states that insurance is uberrimae fidei. Section 20 provides for disclosures by the assured. The question as to whether a particular circumstance which is not disclosed is material or not is essentially a question of fact. What facts need to be disclosed and what need not, have clearly been laid down in(2) and (3) of Section 20 respectively. Section 21 of the Act provides for the disclosure by an agent effecting the insurance. The Bank having acted as an agent, thus, had a responsibility to disclose all material facts. The insurance policy was marked as Ext.It was also referred to in the plaint. We have noticed hereto before the material part thereof.	0	2,037	410	### Instruction: Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case. ### Input: of entering into a contract of insurance were left blank. 10. The Division Bench of the High Court has noticed Rule 31 of the Tamil Nadu Minor Ports Harbour Craft Rules, 1953 which mandates posting of a Master or Serang and one Engineer or Engine Driver in every mechanically propelled vessel, when used. The driver is required to possess a certificate of training issued by the Department of Fisheries. Rule 32 of the said Rules prescribes the method of obtaining a certificate of competency as Master or Serang. Not only did the proposal for insurance not contain the said details but also no evidence in that behalf was brought on records.11. The submission of the learned counsel that the appellant was not allowed to furnish information cannot be accepted as such a plea was not raised in the plaint. 12. Mr. Gogia submitted that the survey conducted by the insurance company established that the vessel was seaworthy. The inspection report is dated 17.04.1980. A survey was conducted by a surveyor (we don’t know at whose instance) on 25.11.1979 at 6 p.m. For what purpose such a survey was conducted is not known. Why a report was submitted after more than four months from the date of conducting the survey is also beyond our comprehension. 13. A marine insurance policy requires an implied warranty of seaworthiness as is evident from Sub-section (3) of Section 41 of the Marine Insurance Act, 1963 (for short “the Act”) which governs the terms of a contract of insurance. It may be true that the notice dated 9.11.1981 repudiating the claim did not contain any details in regard to the purported misrepresentation of material facts but the same was not decisive. It was for the plaintiff not only to plead but also establish that the vessel in question was seaworthy. In the plaint, it was merely stated: “10. The plaintiffs had issued a notice through their counsel dated 7.1.1983 calling upon the defendant to make the payment. Though the said notice was received and acknowledged by the defendant, so far has not made any payment. On the other hand the defendant had sent a reply dated 15.3.83 raising incorrect and unsustainable contentions.” 14. There is no averment even in the plaint that the vehicle was seaworthy. In its written statement, Respondent No. 1 stated: “7. “The defendant submits that even the answers which are handwritten were not filled by Hemachandra Babu or any other person acting on behalf of the defendant”.” 15. Section 19 of the Act states that insurance is uberrimae fidei. Section 20 provides for disclosures by the assured. The question as to whether a particular circumstance which is not disclosed is material or not is essentially a question of fact. What facts need to be disclosed and what need not, have clearly been laid down in sub-sections (2) and (3) of Section 20 respectively. Section 21 of the Act provides for the disclosure by an agent effecting the insurance. The Bank having acted as an agent, thus, had a responsibility to disclose all material facts. The insurance policy was marked as Ext. D-18. It was also referred to in the plaint. We have noticed hereto before the material part thereof. 16. The terms of the contract of insurance, thus, being governed by the provisions of a statute; non-disclosure of such material facts would render the policy repudiable. For this purpose, we may notice the depositions of DW-1, which are in questions and answers form, which read as under: “Q. See the particulars of “Master and Crew”. Then there is a heading “general”. Under the first heading, the answer to the question is “Vessel in charge of qualified master” What is the answer?A: Yes.Q. Under the heading “general” there are three questions. Was any information furnished to you with regard to the questions?A: They have not furnished any information for the three questions.* * *Q. You said the proposal form was typed at your office. Did you carry the information to your office?A: I noted down the particulars in a paper and took them to the office.Q. You would have had a discussion with the bank officials about what are the information required.A: I have the proposal to them and whatever information they gave, I noted down in a paper.Q. Do you have a paper in your possession?A: No.Q. How did you note the information given in the paper wise or generally?A. Column-wise.Q. You find at the top of the proposal “10.05 Meters” has been mentioned. Is it correct?A: Yes.Q. When was this writing in “ink” made?A: After typing it, I took it back to the bank and asked them to check the information whether they are correct.”* * *Q. You got the name of the owner of the Board from the Bank either orally or in writing.A: Orally.By Counsel:Q. Are you in the habit of accepting oral representation?A: YesQ. So if my learned friend says that the insurance was issued only on the basis of the proposal is it incorrect.A: No, it is not incorrect.Q. Are you the accepting authority?A: My branch manager is the accepting authority.Q. What did you do after taking the proposal to the branch manager?A: I showed the proposal to the Branch Manager and he asked me to issue the policy.” Thus, even according to DW-1, necessary particulars were not furnished to him by the plaintiff. How DW-1 could act upon the purported oral representation of the officers of the Bank is beyond anybody’s comprehension. No reliance can, thus, be placed on his evidence. 17. Where there has been a suppression of fact, acceptance of the policy by an officer of the insurance company would not be binding on it. The Division Bench of the High Court, in our opinion, having regard to the statutory provisions, has rightly held that the plaintiff suppressed the material fact. Moreover, in view of the statutory rules, the court would have no other option but to hold that the vessel was not seaworthy. ### Response: 0 ### Explanation: 17. Where there has been a suppression of fact, acceptance of the policy by an officer of the insurance company would not be binding on it. The Division Bench of the High Court, in our opinion, having regard to the statutory provisions, has rightly held that the plaintiff suppressed the material fact. Moreover, in view of the statutory rules, the court would have no other option but to hold that the vessel was not seaworthy.The Division Bench of the High Court has noticed Rule 31 of the Tamil Nadu Minor Ports Harbour Craft Rules, 1953 which mandates posting of a Master or Serang and one Engineer or Engine Driver in every mechanically propelled vessel, when used. The driver is required to possess a certificate of training issued by the Department of Fisheries. Rule 32 of the said Rules prescribes the method of obtaining a certificate of competency as Master or Serang. Not only did the proposal for insurance not contain the said details but also no evidence in that behalf was brought on records.11. The submission of the learned counsel that the appellant was not allowed to furnish information cannot be accepted as such a plea was not raised in theinspection report is dated 17.04.1980. A survey was conducted by a surveyor (weknow at whose instance) on 25.11.1979 at 6 p.m. For what purpose such a survey was conducted is not known. Why a report was submitted after more than four months from the date of conducting the survey is also beyond our comprehension.Section 19 of the Act states that insurance is uberrimae fidei. Section 20 provides for disclosures by the assured. The question as to whether a particular circumstance which is not disclosed is material or not is essentially a question of fact. What facts need to be disclosed and what need not, have clearly been laid down in(2) and (3) of Section 20 respectively. Section 21 of the Act provides for the disclosure by an agent effecting the insurance. The Bank having acted as an agent, thus, had a responsibility to disclose all material facts. The insurance policy was marked as Ext.It was also referred to in the plaint. We have noticed hereto before the material part thereof.
Hungerford Investment Trust Limited (In Voluntar Vs. Haridas Mundhra & Others	be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by detention in the civil prison, or by the attachment of his property or by both.(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced, by the attachment of the property of the corporation or, with the leave of the Court by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention. (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for one year, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any), to the judgment-debtor on his application. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of one year from the date of the attachment, no application to have the property sold has been made, or if made, has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the costs of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree." 32. The execution of a decree for specific performance can only be in the manner prescribed by this rule; sub-rule (1) of the rule says that if a decree for specific performance is not obeyed, the decree is to be enforced by the detention of the party in default in the civil prison or by attachment of his property or by both. The detention in the civil prison of the party who failed to obey the decree and the attachment of his property are simply the means to compel him to obey the decree. That is made clear by sub-rule (3) which says that if the judgment-debtor has failed to obey the decree when the attachment has remained in force for one year, the property attached may be sold and out of the proceeds the decree-holder may be awarded such compensation as the Court thinks fit. Sub-rule (5) which provides that the Court may direct the act required to be done may be done by the decree-holder or some other person appointed by the Court can only refer to an act other than an act of payment of money. We do not think that the appellant could have executed the decree against Mundhra as a money decree and realised the purchase money from him. Therefore, if Mundhra refused to pay the purchase money, there was nothing which prevented the appellant from applying for rescission of the decree. 33. It was then contended that the attachments of the decree in suit No. 600 of 1961 by the creditors of Mundhra prevented him from tendering the purchase money to the appellant and take delivery of the shares as the attachments prevented him from obtaining satisfaction of the decree by paying the purchase money and obtaining delivery of the shares. In other words, the contention was that because of the attachments Mundhra could not have paid the purchase money to the appellant as that would have been in contravention of the orders of the Court attaching the decree. We do not think that there is any substance in this contention. If the creditors of Mundhra attached the decree and he was prevented from tendering the money because of the attachment, he has only to blame himself. The only question with which the Court is concerned is whether Mundhra has disabled himself from performing his part of the obligation under the decree. The inability to pay off the creditors was the proximate cause of the attachments and the responsibility for the same was that of Mundhra. The fact that the attachments prevented him from performing his part of the obligation under the decree or obtaining satisfaction thereof would not make him anytheless a defaulter, so far as the performance of his part of the obligation under the decree is concerned. Nor is there any substance in the contention of counsel for Mundhra that the attachment by Bank Hoffman of the 51 per cent. shares under the order of the District Judge of Delhi made it impossible for the appellant to deliver the shares to Mundhra, as the attachment order directed that the 51 per cent. shares should be produced before the Calcutta High Court for delivery to Mundhra against payment of the consideration mentioned in the decree in suit No. 600 of 1961. 34. We, therefore, allow the appeal and set aside the judgment under appeal and order the rescission of the decree for specific performance passed in suit No. 600 of 1961. We direct Shri K. B. Bose, Barrister, Member, Bar Library Club, Calcutta High Court, the receiver appointed in suit No. 2005 of 1965, and who was appointed as receiver of the shares by the proceedings, dated July 14, 1969, of Masud, J., in suit No. 600 of 1961, to produce the 2, 295 shares before this Court and give custody of the same to the Registrar of this Court. The Registrar will hand them over to the appellant.	1[ds]32. The execution of a decree for specific performance can only be in the manner prescribed by this rule; sub-rule (1) of the rule says that if a decree for specific performance is not obeyed, the decree is to be enforced by the detention of the party in default in the civil prison or by attachment of his property or by both. The detention in the civil prison of the party who failed to obey the decree and the attachment of his property are simply the means to compel him to obey the decree. That is made clear by sub-rule (3) which says that if the judgment-debtor has failed to obey the decree when the attachment has remained in force for one year, the property attached may be sold and out of the proceeds the decree-holder may be awarded such compensation as the Court thinks fit. Sub-rule (5) which provides that the Court may direct the act required to be done may be done by the decree-holder or some other person appointed by the Court can only refer to an act other than an act of payment of money. We do not think that the appellant could have executed the decree against Mundhra as a money decree and realised the purchase money from him. Therefore, if Mundhra refused to pay the purchase money, there was nothing which prevented the appellant from applying for rescission of the decree33. It was then contended that the attachments of the decree in suit No. 600 of 1961 by the creditors of Mundhra prevented him from tendering the purchase money to the appellant and take delivery of the shares as the attachments prevented him from obtaining satisfaction of the decree by paying the purchase money and obtaining delivery of the shares. In other words, the contention was that because of the attachments Mundhra could not have paid the purchase money to the appellant as that would have been in contravention of the orders of the Court attaching the decree. We do not think that there is any substance in this contention. If the creditors of Mundhra attached the decree and he was prevented from tendering the money because of the attachment, he has only to blame himself.The only question with which the Court is concerned is whether Mundhra has disabled himself from performing his part of the obligation under the decree.The inability to pay off the creditors was the proximate cause of the attachments and the responsibility for the same was that of Mundhra. The fact that the attachments prevented him from performing his part of the obligation under the decree or obtaining satisfaction thereof would not make him anytheless a defaulter, so far as the performance of his part of the obligation under the decree is concerned. Nor is there any substance in the contention of counsel for Mundhra that the attachment by Bank Hoffman of the 51 per cent. shares under the order of the District Judge of Delhi made it impossible for the appellant to deliver the shares to Mundhra, as the attachment order directed that the 51 per cent. shares should be produced before the Calcutta High Court for delivery to Mundhra against payment of the consideration mentioned in the decree in suit No. 600 of 196134. We, therefore, allow the appeal and set aside the judgment under appeal and order the rescission of the decree for specific performance passed in suit No. 600 of 1961. We direct Shri K. B. Bose, Barrister, Member, Bar Library Club, Calcutta High Court, the receiver appointed in suit No. 2005 of 1965, and who was appointed as receiver of the shares by the proceedings, dated July 14, 1969, of Masud, J., in suit No. 600 of 1961, to produce the 2, 295 shares before this Court and give custody of the same to the Registrar of this Court. The Registrar will hand them over to the appellant	1	8,386	709	### Instruction: Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction. ### Input: be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by detention in the civil prison, or by the attachment of his property or by both.(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced, by the attachment of the property of the corporation or, with the leave of the Court by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention. (3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for one year, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any), to the judgment-debtor on his application. (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of one year from the date of the attachment, no application to have the property sold has been made, or if made, has been refused, the attachment shall cease. (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the costs of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree." 32. The execution of a decree for specific performance can only be in the manner prescribed by this rule; sub-rule (1) of the rule says that if a decree for specific performance is not obeyed, the decree is to be enforced by the detention of the party in default in the civil prison or by attachment of his property or by both. The detention in the civil prison of the party who failed to obey the decree and the attachment of his property are simply the means to compel him to obey the decree. That is made clear by sub-rule (3) which says that if the judgment-debtor has failed to obey the decree when the attachment has remained in force for one year, the property attached may be sold and out of the proceeds the decree-holder may be awarded such compensation as the Court thinks fit. Sub-rule (5) which provides that the Court may direct the act required to be done may be done by the decree-holder or some other person appointed by the Court can only refer to an act other than an act of payment of money. We do not think that the appellant could have executed the decree against Mundhra as a money decree and realised the purchase money from him. Therefore, if Mundhra refused to pay the purchase money, there was nothing which prevented the appellant from applying for rescission of the decree. 33. It was then contended that the attachments of the decree in suit No. 600 of 1961 by the creditors of Mundhra prevented him from tendering the purchase money to the appellant and take delivery of the shares as the attachments prevented him from obtaining satisfaction of the decree by paying the purchase money and obtaining delivery of the shares. In other words, the contention was that because of the attachments Mundhra could not have paid the purchase money to the appellant as that would have been in contravention of the orders of the Court attaching the decree. We do not think that there is any substance in this contention. If the creditors of Mundhra attached the decree and he was prevented from tendering the money because of the attachment, he has only to blame himself. The only question with which the Court is concerned is whether Mundhra has disabled himself from performing his part of the obligation under the decree. The inability to pay off the creditors was the proximate cause of the attachments and the responsibility for the same was that of Mundhra. The fact that the attachments prevented him from performing his part of the obligation under the decree or obtaining satisfaction thereof would not make him anytheless a defaulter, so far as the performance of his part of the obligation under the decree is concerned. Nor is there any substance in the contention of counsel for Mundhra that the attachment by Bank Hoffman of the 51 per cent. shares under the order of the District Judge of Delhi made it impossible for the appellant to deliver the shares to Mundhra, as the attachment order directed that the 51 per cent. shares should be produced before the Calcutta High Court for delivery to Mundhra against payment of the consideration mentioned in the decree in suit No. 600 of 1961. 34. We, therefore, allow the appeal and set aside the judgment under appeal and order the rescission of the decree for specific performance passed in suit No. 600 of 1961. We direct Shri K. B. Bose, Barrister, Member, Bar Library Club, Calcutta High Court, the receiver appointed in suit No. 2005 of 1965, and who was appointed as receiver of the shares by the proceedings, dated July 14, 1969, of Masud, J., in suit No. 600 of 1961, to produce the 2, 295 shares before this Court and give custody of the same to the Registrar of this Court. The Registrar will hand them over to the appellant. ### Response: 1 ### Explanation: 32. The execution of a decree for specific performance can only be in the manner prescribed by this rule; sub-rule (1) of the rule says that if a decree for specific performance is not obeyed, the decree is to be enforced by the detention of the party in default in the civil prison or by attachment of his property or by both. The detention in the civil prison of the party who failed to obey the decree and the attachment of his property are simply the means to compel him to obey the decree. That is made clear by sub-rule (3) which says that if the judgment-debtor has failed to obey the decree when the attachment has remained in force for one year, the property attached may be sold and out of the proceeds the decree-holder may be awarded such compensation as the Court thinks fit. Sub-rule (5) which provides that the Court may direct the act required to be done may be done by the decree-holder or some other person appointed by the Court can only refer to an act other than an act of payment of money. We do not think that the appellant could have executed the decree against Mundhra as a money decree and realised the purchase money from him. Therefore, if Mundhra refused to pay the purchase money, there was nothing which prevented the appellant from applying for rescission of the decree33. It was then contended that the attachments of the decree in suit No. 600 of 1961 by the creditors of Mundhra prevented him from tendering the purchase money to the appellant and take delivery of the shares as the attachments prevented him from obtaining satisfaction of the decree by paying the purchase money and obtaining delivery of the shares. In other words, the contention was that because of the attachments Mundhra could not have paid the purchase money to the appellant as that would have been in contravention of the orders of the Court attaching the decree. We do not think that there is any substance in this contention. If the creditors of Mundhra attached the decree and he was prevented from tendering the money because of the attachment, he has only to blame himself.The only question with which the Court is concerned is whether Mundhra has disabled himself from performing his part of the obligation under the decree.The inability to pay off the creditors was the proximate cause of the attachments and the responsibility for the same was that of Mundhra. The fact that the attachments prevented him from performing his part of the obligation under the decree or obtaining satisfaction thereof would not make him anytheless a defaulter, so far as the performance of his part of the obligation under the decree is concerned. Nor is there any substance in the contention of counsel for Mundhra that the attachment by Bank Hoffman of the 51 per cent. shares under the order of the District Judge of Delhi made it impossible for the appellant to deliver the shares to Mundhra, as the attachment order directed that the 51 per cent. shares should be produced before the Calcutta High Court for delivery to Mundhra against payment of the consideration mentioned in the decree in suit No. 600 of 196134. We, therefore, allow the appeal and set aside the judgment under appeal and order the rescission of the decree for specific performance passed in suit No. 600 of 1961. We direct Shri K. B. Bose, Barrister, Member, Bar Library Club, Calcutta High Court, the receiver appointed in suit No. 2005 of 1965, and who was appointed as receiver of the shares by the proceedings, dated July 14, 1969, of Masud, J., in suit No. 600 of 1961, to produce the 2, 295 shares before this Court and give custody of the same to the Registrar of this Court. The Registrar will hand them over to the appellant
Ram Ratna International Vs. The Union of India Through The Secretary, Ministry of Commerce and Industry and Others	office had reported that there are dues pertaining to non-submission of BRC. It is in the above context that the Zonal Committee agreed to grant conditional approval to the claim of Rs.4,22,16,175.00 of the Petitioner subject to clearance of the customs department 23. From the above, it is evident that Petitioner has submitted the no dues certificate as prescribed. The quantum of claim of the Petitioner to the extent of Rs.4,22,16,175.00 is also admitted by the Zonal Committee, Mumbai. However, according to the customs representative dues relating to non-submission of BRC are pending. 24. On a query by the Court, it was explained by learned counsel for the parties that BRC stands for Bank Realization Certificate. It is submitted that such a certificate is issued by the concerned bank after receipt of foreign remittance in connection with the export. 25. At this stage, we may advert to Trade Notice No.06 of 2018 dated 08.05.2017 issued by the Joint Director General of Foreign Trade. Clause VIII thereof reads thus :- VIII. Pending dues to Government: In order to ensure that existing government dues, if any, are recovered from the eligible entities for which claims are now being settled based on the judgment of the Honble Supreme Court, a certificate from these entities must be taken that no dues are pending to government / departments including DGFT. If any due is there, then it must be paid before release of the claim under TPS. In case of large claims, this certificate may be sent to the concerned Departments / Ministries for time-bound comments. In case of DGFT, any dues towards recoveries on account of any of DGFTs Schemes including DFCE shall have to be adjusted first before issue of TPS scrips For the purpose of submitting the certificate under this sub-paragraph, if the firm is a Limited Company, the Certificate shall be signed by the Managing Director or two Directors of the Company, along with the seal of the Company. Alternatively the Certificate shall be signed by a senior executive of the Company of the rank of General Manager and one of the Directors of the Company who have been authorized by the board of Directors for this purpose, along with the seal of the Company. In such cases, Certificate shall be countersigned by the Company Secretary. In case of a Partnership / Proprietorship firm, the Certificate shall be signed by all the Partners / Proprietor respectively. In all cases, the certificate shall be countersigned by the statutory auditor of the company / firm. 26. From the above, it is evident that what is required to be submitted is a certificate certifying that no dues are pending against the government including its departments. In the two orders dated 26.11.2019 and 04.02.2020 passed in the case of Reliance Industries Ltd. (supra), Supreme Court has clarified that clause VIII of the Notification and Trade Notice dated 08.05.2017 refers to pending dues to government only and that government dues means dues which are payable and still subsisting. 27. Without entering into details, we can safely say that the word dues means something which is payable. Shorn of semantics, the word dues means something which a person has an obligation to pay e.g., a debt or a tax; something which is enforceable. Juxtaposing the word dues with the word government, the expression government dues would mean something which is payable to and enforceable by the government on account of a legal obligation or a contract. Therefore, the amount due has to be first quantified by following the due process and as explained by the Supreme Court in the context of the scheme it should be payable to the government and subsisting i.e., not paid. 28. Reverting back to the minutes of the meeting held on 25.09.2020, it is seen that no amount of dues stated to be pending against the government has been mentioned. There is no reference to any demand or demand notice or quantification of any government dues. Alleged nonsubmission of Bank Realization Certificate after receipt of foreign currency/ remittance on successful completion of an export cannot be construed to be a due, not to speak of any pending government due. 29. In any case, Respondents have already granted to the Petitioner partial benefit under the Target Plus Scheme vide licence dated 14.02.2007 i.e., scrips to the extent of 5% of the incremental export growth for the year 2005-2006. Present claim pertains to remaining 10% on the said export growth for the same period. When the Respondents had already issued the licence and had granted partial benefit to the Petitioner under the Target Plus Scheme on 14.02.2007, there cannot be any valid and justifiable reason for non-release of the balance amount of benefit which has now become due to the Petitioner. Withholding of the same is not at all justified. 30. The Target Plus Scheme is a beneficial provision with the objective to accelerate growth in exports by giving incentives to those export houses whose exports show an annual upward trend. Initially the benefits were graded i.e., 5%, 10% and 15% depending upon the percentage of incremental growth in exports. Petitioner fell within the 15% category for the year 2005-2006. Thereafter, by an amendment on 12.06.2006, the percentage of incentives was made uniform i.e., 5% which was given retrospective effect from 01.04.2005. On intervention of the Supreme Court, the retrospectivity was removed and the amendment was given effect prospectively from 12.06.2006. Petitioner was granted the 5% benefit for the year 2005-2006. After the Supreme Court intervention, Petitioner is entitled to the balance 10% benefit for the same period for which the 5% benefit was granted being within the 15% category. When one part of the benefit for a year was given, question of withholding of the remaining benefit for the same year does not arise. Exports are of the year 2005-2006. We are now in 2020. 14 years have lapsed in between. Such inordinate delay can only frustrate the very objective of the scheme.	1[ds]20. We have noticed the salient features of the Target Plus Scheme which was made effective from 01.04.2004. Petitioner had made net exports of Rs.42,21,61,757.21 in the year 2004-2005. This increased to Rs.91,45,81,389.72 in the year 2005-2006, percentage of increase being 119.34 percent. Thus in terms of the scheme, Petitioner became eligible to the benefit of 15% of duty credit entitlement. However, vide Notification No.08 of 2006 dated 12.06.2006 benefit of entitlement was curtailed to 5% with retrospective effect from 01.04.2005. When petitioner lodged claim under the scheme for duty credit entitlement, it was issued duty credit scrips to the extent of 5% of the incremental percentage of exports vide licence dated 14.02.2007 for an amount of Rs.2,11,08,087.85. Supreme Court in Kanak Exports (supra) while upholding the validity of the Notification No.08 of 2006 however held that the said notification could not be applied retrospectively; it could only be applied prospectively. In tune with the Supreme Court judgment, Respondent No.2 issued Notification No.6/ 2015-2020 dated 08.05.2017, besides issuing trade notice on the same date setting up Zonal Committees for scrutiny of claims. It was thereafter that Petitioner renewed its claim for realization of the balance/additional duty credit scrips under the scheme for the balance amount of Rs.4,22,16,175.73 (Rs.4,22,16,175.15) covering the period from 01.04.2005 to 31.03.2006 which was earlier denied on account of retrospectivity. Following a series of correspondence, Petitioner has submitted all the required documents including no dues certificate and revised no dues certificate.21. It is seen that 11th meeting of the Zonal Committee, Mumbai with regard to issue of balance claims under the Target Plus Scheme was held on 25.09.2020. Agenda item No.4(1) dealt with the claim of the Petitioner.23. From the above, it is evident that Petitioner has submitted the no dues certificate as prescribed. The quantum of claim of the Petitioner to the extent of Rs.4,22,16,175.00 is also admitted by the Zonal Committee, Mumbai. However, according to the customs representative dues relating to non-submission of BRC are pending.24. On a query by the Court, it was explained by learned counsel for the parties that BRC stands for Bank Realization Certificate. It is submitted that such a certificate is issued by the concerned bank after receipt of foreign remittance in connection with the export.26. From the above, it is evident that what is required to be submitted is a certificate certifying that no dues are pending against the government including its departments. In the two orders dated 26.11.2019 and 04.02.2020 passed in the case of Reliance Industries Ltd. (supra), Supreme Court has clarified that clause VIII of the Notification and Trade Notice dated 08.05.2017 refers to pending dues to government only and that government dues means dues which are payable and still subsisting.27. Without entering into details, we can safely say that the word dues means something which is payable. Shorn of semantics, the word dues means something which a person has an obligation to pay e.g., a debt or a tax; something which is enforceable. Juxtaposing the word dues with the word government, the expression government dues would mean something which is payable to and enforceable by the government on account of a legal obligation or a contract. Therefore, the amount due has to be first quantified by following the due process and as explained by the Supreme Court in the context of the scheme it should be payable to the government and subsisting i.e., not paid.28. Reverting back to the minutes of the meeting held on 25.09.2020, it is seen that no amount of dues stated to be pending against the government has been mentioned. There is no reference to any demand or demand notice or quantification of any government dues. Alleged nonsubmission of Bank Realization Certificate after receipt of foreign currency/ remittance on successful completion of an export cannot be construed to be a due, not to speak of any pending government due.29. In any case, Respondents have already granted to the Petitioner partial benefit under the Target Plus Scheme vide licence dated 14.02.2007 i.e., scrips to the extent of 5% of the incremental export growth for the year 2005-2006. Present claim pertains to remaining 10% on the said export growth for the same period. When the Respondents had already issued the licence and had granted partial benefit to the Petitioner under the Target Plus Scheme on 14.02.2007, there cannot be any valid and justifiable reason for non-release of the balance amount of benefit which has now become due to the Petitioner. Withholding of the same is not at all justified.30. The Target Plus Scheme is a beneficial provision with the objective to accelerate growth in exports by giving incentives to those export houses whose exports show an annual upward trend. Initially the benefits were graded i.e., 5%, 10% and 15% depending upon the percentage of incremental growth in exports. Petitioner fell within the 15% category for the year 2005-2006. Thereafter, by an amendment on 12.06.2006, the percentage of incentives was made uniform i.e., 5% which was given retrospective effect from 01.04.2005. On intervention of the Supreme Court, the retrospectivity was removed and the amendment was given effect prospectively from 12.06.2006. Petitioner was granted the 5% benefit for the year 2005-2006. After the Supreme Court intervention, Petitioner is entitled to the balance 10% benefit for the same period for which the 5% benefit was granted being within the 15% category. When one part of the benefit for a year was given, question of withholding of the remaining benefit for the same year does not arise. Exports are of the year 2005-2006. We are now in 2020. 14 years have lapsed in between. Such inordinate delay can only frustrate the very objective of the scheme.	1	3,402	1,056	### 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: office had reported that there are dues pertaining to non-submission of BRC. It is in the above context that the Zonal Committee agreed to grant conditional approval to the claim of Rs.4,22,16,175.00 of the Petitioner subject to clearance of the customs department 23. From the above, it is evident that Petitioner has submitted the no dues certificate as prescribed. The quantum of claim of the Petitioner to the extent of Rs.4,22,16,175.00 is also admitted by the Zonal Committee, Mumbai. However, according to the customs representative dues relating to non-submission of BRC are pending. 24. On a query by the Court, it was explained by learned counsel for the parties that BRC stands for Bank Realization Certificate. It is submitted that such a certificate is issued by the concerned bank after receipt of foreign remittance in connection with the export. 25. At this stage, we may advert to Trade Notice No.06 of 2018 dated 08.05.2017 issued by the Joint Director General of Foreign Trade. Clause VIII thereof reads thus :- VIII. Pending dues to Government: In order to ensure that existing government dues, if any, are recovered from the eligible entities for which claims are now being settled based on the judgment of the Honble Supreme Court, a certificate from these entities must be taken that no dues are pending to government / departments including DGFT. If any due is there, then it must be paid before release of the claim under TPS. In case of large claims, this certificate may be sent to the concerned Departments / Ministries for time-bound comments. In case of DGFT, any dues towards recoveries on account of any of DGFTs Schemes including DFCE shall have to be adjusted first before issue of TPS scrips For the purpose of submitting the certificate under this sub-paragraph, if the firm is a Limited Company, the Certificate shall be signed by the Managing Director or two Directors of the Company, along with the seal of the Company. Alternatively the Certificate shall be signed by a senior executive of the Company of the rank of General Manager and one of the Directors of the Company who have been authorized by the board of Directors for this purpose, along with the seal of the Company. In such cases, Certificate shall be countersigned by the Company Secretary. In case of a Partnership / Proprietorship firm, the Certificate shall be signed by all the Partners / Proprietor respectively. In all cases, the certificate shall be countersigned by the statutory auditor of the company / firm. 26. From the above, it is evident that what is required to be submitted is a certificate certifying that no dues are pending against the government including its departments. In the two orders dated 26.11.2019 and 04.02.2020 passed in the case of Reliance Industries Ltd. (supra), Supreme Court has clarified that clause VIII of the Notification and Trade Notice dated 08.05.2017 refers to pending dues to government only and that government dues means dues which are payable and still subsisting. 27. Without entering into details, we can safely say that the word dues means something which is payable. Shorn of semantics, the word dues means something which a person has an obligation to pay e.g., a debt or a tax; something which is enforceable. Juxtaposing the word dues with the word government, the expression government dues would mean something which is payable to and enforceable by the government on account of a legal obligation or a contract. Therefore, the amount due has to be first quantified by following the due process and as explained by the Supreme Court in the context of the scheme it should be payable to the government and subsisting i.e., not paid. 28. Reverting back to the minutes of the meeting held on 25.09.2020, it is seen that no amount of dues stated to be pending against the government has been mentioned. There is no reference to any demand or demand notice or quantification of any government dues. Alleged nonsubmission of Bank Realization Certificate after receipt of foreign currency/ remittance on successful completion of an export cannot be construed to be a due, not to speak of any pending government due. 29. In any case, Respondents have already granted to the Petitioner partial benefit under the Target Plus Scheme vide licence dated 14.02.2007 i.e., scrips to the extent of 5% of the incremental export growth for the year 2005-2006. Present claim pertains to remaining 10% on the said export growth for the same period. When the Respondents had already issued the licence and had granted partial benefit to the Petitioner under the Target Plus Scheme on 14.02.2007, there cannot be any valid and justifiable reason for non-release of the balance amount of benefit which has now become due to the Petitioner. Withholding of the same is not at all justified. 30. The Target Plus Scheme is a beneficial provision with the objective to accelerate growth in exports by giving incentives to those export houses whose exports show an annual upward trend. Initially the benefits were graded i.e., 5%, 10% and 15% depending upon the percentage of incremental growth in exports. Petitioner fell within the 15% category for the year 2005-2006. Thereafter, by an amendment on 12.06.2006, the percentage of incentives was made uniform i.e., 5% which was given retrospective effect from 01.04.2005. On intervention of the Supreme Court, the retrospectivity was removed and the amendment was given effect prospectively from 12.06.2006. Petitioner was granted the 5% benefit for the year 2005-2006. After the Supreme Court intervention, Petitioner is entitled to the balance 10% benefit for the same period for which the 5% benefit was granted being within the 15% category. When one part of the benefit for a year was given, question of withholding of the remaining benefit for the same year does not arise. Exports are of the year 2005-2006. We are now in 2020. 14 years have lapsed in between. Such inordinate delay can only frustrate the very objective of the scheme. ### Response: 1 ### Explanation: 20. We have noticed the salient features of the Target Plus Scheme which was made effective from 01.04.2004. Petitioner had made net exports of Rs.42,21,61,757.21 in the year 2004-2005. This increased to Rs.91,45,81,389.72 in the year 2005-2006, percentage of increase being 119.34 percent. Thus in terms of the scheme, Petitioner became eligible to the benefit of 15% of duty credit entitlement. However, vide Notification No.08 of 2006 dated 12.06.2006 benefit of entitlement was curtailed to 5% with retrospective effect from 01.04.2005. When petitioner lodged claim under the scheme for duty credit entitlement, it was issued duty credit scrips to the extent of 5% of the incremental percentage of exports vide licence dated 14.02.2007 for an amount of Rs.2,11,08,087.85. Supreme Court in Kanak Exports (supra) while upholding the validity of the Notification No.08 of 2006 however held that the said notification could not be applied retrospectively; it could only be applied prospectively. In tune with the Supreme Court judgment, Respondent No.2 issued Notification No.6/ 2015-2020 dated 08.05.2017, besides issuing trade notice on the same date setting up Zonal Committees for scrutiny of claims. It was thereafter that Petitioner renewed its claim for realization of the balance/additional duty credit scrips under the scheme for the balance amount of Rs.4,22,16,175.73 (Rs.4,22,16,175.15) covering the period from 01.04.2005 to 31.03.2006 which was earlier denied on account of retrospectivity. Following a series of correspondence, Petitioner has submitted all the required documents including no dues certificate and revised no dues certificate.21. It is seen that 11th meeting of the Zonal Committee, Mumbai with regard to issue of balance claims under the Target Plus Scheme was held on 25.09.2020. Agenda item No.4(1) dealt with the claim of the Petitioner.23. From the above, it is evident that Petitioner has submitted the no dues certificate as prescribed. The quantum of claim of the Petitioner to the extent of Rs.4,22,16,175.00 is also admitted by the Zonal Committee, Mumbai. However, according to the customs representative dues relating to non-submission of BRC are pending.24. On a query by the Court, it was explained by learned counsel for the parties that BRC stands for Bank Realization Certificate. It is submitted that such a certificate is issued by the concerned bank after receipt of foreign remittance in connection with the export.26. From the above, it is evident that what is required to be submitted is a certificate certifying that no dues are pending against the government including its departments. In the two orders dated 26.11.2019 and 04.02.2020 passed in the case of Reliance Industries Ltd. (supra), Supreme Court has clarified that clause VIII of the Notification and Trade Notice dated 08.05.2017 refers to pending dues to government only and that government dues means dues which are payable and still subsisting.27. Without entering into details, we can safely say that the word dues means something which is payable. Shorn of semantics, the word dues means something which a person has an obligation to pay e.g., a debt or a tax; something which is enforceable. Juxtaposing the word dues with the word government, the expression government dues would mean something which is payable to and enforceable by the government on account of a legal obligation or a contract. Therefore, the amount due has to be first quantified by following the due process and as explained by the Supreme Court in the context of the scheme it should be payable to the government and subsisting i.e., not paid.28. Reverting back to the minutes of the meeting held on 25.09.2020, it is seen that no amount of dues stated to be pending against the government has been mentioned. There is no reference to any demand or demand notice or quantification of any government dues. Alleged nonsubmission of Bank Realization Certificate after receipt of foreign currency/ remittance on successful completion of an export cannot be construed to be a due, not to speak of any pending government due.29. In any case, Respondents have already granted to the Petitioner partial benefit under the Target Plus Scheme vide licence dated 14.02.2007 i.e., scrips to the extent of 5% of the incremental export growth for the year 2005-2006. Present claim pertains to remaining 10% on the said export growth for the same period. When the Respondents had already issued the licence and had granted partial benefit to the Petitioner under the Target Plus Scheme on 14.02.2007, there cannot be any valid and justifiable reason for non-release of the balance amount of benefit which has now become due to the Petitioner. Withholding of the same is not at all justified.30. The Target Plus Scheme is a beneficial provision with the objective to accelerate growth in exports by giving incentives to those export houses whose exports show an annual upward trend. Initially the benefits were graded i.e., 5%, 10% and 15% depending upon the percentage of incremental growth in exports. Petitioner fell within the 15% category for the year 2005-2006. Thereafter, by an amendment on 12.06.2006, the percentage of incentives was made uniform i.e., 5% which was given retrospective effect from 01.04.2005. On intervention of the Supreme Court, the retrospectivity was removed and the amendment was given effect prospectively from 12.06.2006. Petitioner was granted the 5% benefit for the year 2005-2006. After the Supreme Court intervention, Petitioner is entitled to the balance 10% benefit for the same period for which the 5% benefit was granted being within the 15% category. When one part of the benefit for a year was given, question of withholding of the remaining benefit for the same year does not arise. Exports are of the year 2005-2006. We are now in 2020. 14 years have lapsed in between. Such inordinate delay can only frustrate the very objective of the scheme.
Karan Singh Vs. State of Uttar Pradesh	Alagiriswami, J. 1. This is an appeal by special leave against the judgment of the High Court of Allahabad confirming the sentence of death passed on the appellant by the learned Sessions Judge, Moradabad. 2. On the night of 14th/15th June, 1969 Kartar Singh the son of Smt. Moonga, was murdered in the village Karthala, in the district of Moradabad. Her husband, Faqira, had disappeared some time earlier and she had developed illicit intimacy with the appellant, a resident of the village of Pachkaura in the same district. Some time later appellants brother, Charan Singh, was brought in by the appellant to assist him in cultivating Smt. Moongas land. Smt. Moonga is said to have developed illicit intimacy with Charan Singh and the appellant was suspected of having murdered Charan Singh in the year 1968. The appellant is then said to have formed an idea of doing away with Smt. Moongas only son, Kartar Singh, so that he could grab her property. Appellants brother, Dharampal, who was a co-accused with the appellant in the present murder case but was acquitted by the Trial Judge, was also living with Smt. Moonga. On the 14th of June, 1969 the appellant went to his own village Pachkaura with Smt. Moonga and her children, and after sending the others back to village Karthala he himself remained behind in Pachkaura. The prosecution case was that on the night of 14th/15th June, 1969 he returned to the village Karthala quietly and knocked at the door of Smt. Moonga and that some body from inside opened the door, and after murdering Kartar Singh and throwing the dead body on the roof, made good his escape. The appellant and his brother, Dharampal, as already mentioned, were tried for the offence of murder. Dharampal was acquitted and the appellant was sentenced to death. 3. Both the Sessions Judge and the learned Judges of the High Court have on a consideration of the evidence come to the conclusion that the motive alleged for the murder was fully proved. Smt. Moonga herself could not be produced. At one stage she had filed a petition saying that the accused should not be released on bail as he had threatened her. Later on the prosecution alleged that the accused had done away with her also. During the trial an application was moved on behalf of the accused giving two addresses where Smt. Moonga was alleged to be hidden, but she could not be found. It was, therefore, obvious that Smt. Moonga could not have been withheld by the prosecution. There was no evidence one way or the other regarding the suggestion that she also had been done away, by the appellant. There was evidence that the appellant had returned from his village Pachkaura to village Karthala in the evening on the 14th June, 1969. P.W. 9, P.W. 17 and P. W. 4 gave evidence about having seen the appellant at various points near the town of Moradabad between 5 p.m. and 7.30 p.m. on 14-6-1969 and the courts below held that their evidence has established appellants return beyond doubt. Another fact which the prosecution sought to prove was that on the mid-night of June 14/15, 1969 the appellant was found on the roof of Smt. Moongas house and this was sought to be established by the evidence of P.W. 10 and P.W. 8. This evidence was held not reliable and sufficient to prove the presence of the appellant on the roof of Smt. Moongas house. Then there is the evidence of P.W. 15 of having seen the appellant going away from the house of Smt. Moonga shortly after. The statement given by P.W. 15 was believed by the courts below. There was also the fact that the blood stained knife (Ext. 5), with which the murder was committed was recovered at the instance of the appellant. We have not been impressed by the argument on behalf of the appellant that this evidence is not admissible under the provisions of Section 27 of the Evidence Act as the police already knew about the place where the knife could be found. This argument is wholly without substance. This was based on the fact that the appellant first told the police that he would show them the knife and then took them to the place where the knife was hidden. We consider that both the courts below were undoubtedly right in holding that there was no substance in this contention, and the evidence regarding the recovery of the knife was admissible. The courts below were not impressed by the appellants denial of the various facts proved against him and his statement that he was in his own village Pachkaura at the time of occurrence. We have carefully considered the evidence in this case and see no reason to differ from the conclusion arrived at by the courts below.	0[ds]3. Both the Sessions Judge and the learned Judges of the High Court have on a consideration of the evidence come to the conclusion that the motive alleged for the murder was fully proved. Smt. Moonga herself could not be produced. At one stage she had filed a petition saying that the accused should not be released on bail as he had threatened her. Later on the prosecution alleged that the accused had done away with her also. During the trial an application was moved on behalf of the accused giving two addresses where Smt. Moonga was alleged to be hidden, but she could not be found. It was, therefore, obvious that Smt. Moonga could not have been withheld by the prosecution. There was no evidence one way or the other regarding the suggestion that she also had been done away, by the appellant. There was evidence that the appellant had returned from his village Pachkaura to village Karthala in the evening on the 14th June, 1969. P.W. 9, P.W. 17 and P. W. 4 gave evidence about having seen the appellant at various points near the town of Moradabad between 5 p.m. and 7.30 p.m. on9 and the courts below held that their evidence has established appellants return beyond doubt. Another fact which the prosecution sought to prove was that on thet of June 14/15, 1969 the appellant was found on the roof of Smt. Moongas house and this was sought to be established by the evidence of P.W. 10 and P.W. 8. This evidence was held not reliable and sufficient to prove the presence of the appellant on the roof of Smt. Moongas house. Then there is the evidence of P.W. 15 of having seen the appellant going away from the house of Smt. Moonga shortly after. The statement given by P.W. 15 was believed by the courts below. There was also the fact that the blood stained knife (Ext. 5), with which the murder was committed was recovered at the instance of the appellant. We have not been impressed by the argument on behalf of the appellant that this evidence is not admissible under the provisions of Section 27 of the Evidence Act as the police already knew about the place where the knife could be found. This argument is wholly without substance. This was based on the fact that the appellant first told the police that he would show them the knife and then took them to the place where the knife was hidden. We consider that both the courts below were undoubtedly right in holding that there was no substance in this contention, and the evidence regarding the recovery of the knife was admissible. The courts below were not impressed by the appellants denial of the various facts proved against him and his statement that he was in his own village Pachkaura at the time of occurrence. We have carefully considered the evidence in this case and see no reason to differ from the conclusion arrived at by the courts below.	0	901	555	### 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: Alagiriswami, J. 1. This is an appeal by special leave against the judgment of the High Court of Allahabad confirming the sentence of death passed on the appellant by the learned Sessions Judge, Moradabad. 2. On the night of 14th/15th June, 1969 Kartar Singh the son of Smt. Moonga, was murdered in the village Karthala, in the district of Moradabad. Her husband, Faqira, had disappeared some time earlier and she had developed illicit intimacy with the appellant, a resident of the village of Pachkaura in the same district. Some time later appellants brother, Charan Singh, was brought in by the appellant to assist him in cultivating Smt. Moongas land. Smt. Moonga is said to have developed illicit intimacy with Charan Singh and the appellant was suspected of having murdered Charan Singh in the year 1968. The appellant is then said to have formed an idea of doing away with Smt. Moongas only son, Kartar Singh, so that he could grab her property. Appellants brother, Dharampal, who was a co-accused with the appellant in the present murder case but was acquitted by the Trial Judge, was also living with Smt. Moonga. On the 14th of June, 1969 the appellant went to his own village Pachkaura with Smt. Moonga and her children, and after sending the others back to village Karthala he himself remained behind in Pachkaura. The prosecution case was that on the night of 14th/15th June, 1969 he returned to the village Karthala quietly and knocked at the door of Smt. Moonga and that some body from inside opened the door, and after murdering Kartar Singh and throwing the dead body on the roof, made good his escape. The appellant and his brother, Dharampal, as already mentioned, were tried for the offence of murder. Dharampal was acquitted and the appellant was sentenced to death. 3. Both the Sessions Judge and the learned Judges of the High Court have on a consideration of the evidence come to the conclusion that the motive alleged for the murder was fully proved. Smt. Moonga herself could not be produced. At one stage she had filed a petition saying that the accused should not be released on bail as he had threatened her. Later on the prosecution alleged that the accused had done away with her also. During the trial an application was moved on behalf of the accused giving two addresses where Smt. Moonga was alleged to be hidden, but she could not be found. It was, therefore, obvious that Smt. Moonga could not have been withheld by the prosecution. There was no evidence one way or the other regarding the suggestion that she also had been done away, by the appellant. There was evidence that the appellant had returned from his village Pachkaura to village Karthala in the evening on the 14th June, 1969. P.W. 9, P.W. 17 and P. W. 4 gave evidence about having seen the appellant at various points near the town of Moradabad between 5 p.m. and 7.30 p.m. on 14-6-1969 and the courts below held that their evidence has established appellants return beyond doubt. Another fact which the prosecution sought to prove was that on the mid-night of June 14/15, 1969 the appellant was found on the roof of Smt. Moongas house and this was sought to be established by the evidence of P.W. 10 and P.W. 8. This evidence was held not reliable and sufficient to prove the presence of the appellant on the roof of Smt. Moongas house. Then there is the evidence of P.W. 15 of having seen the appellant going away from the house of Smt. Moonga shortly after. The statement given by P.W. 15 was believed by the courts below. There was also the fact that the blood stained knife (Ext. 5), with which the murder was committed was recovered at the instance of the appellant. We have not been impressed by the argument on behalf of the appellant that this evidence is not admissible under the provisions of Section 27 of the Evidence Act as the police already knew about the place where the knife could be found. This argument is wholly without substance. This was based on the fact that the appellant first told the police that he would show them the knife and then took them to the place where the knife was hidden. We consider that both the courts below were undoubtedly right in holding that there was no substance in this contention, and the evidence regarding the recovery of the knife was admissible. The courts below were not impressed by the appellants denial of the various facts proved against him and his statement that he was in his own village Pachkaura at the time of occurrence. We have carefully considered the evidence in this case and see no reason to differ from the conclusion arrived at by the courts below. ### Response: 0 ### Explanation: 3. Both the Sessions Judge and the learned Judges of the High Court have on a consideration of the evidence come to the conclusion that the motive alleged for the murder was fully proved. Smt. Moonga herself could not be produced. At one stage she had filed a petition saying that the accused should not be released on bail as he had threatened her. Later on the prosecution alleged that the accused had done away with her also. During the trial an application was moved on behalf of the accused giving two addresses where Smt. Moonga was alleged to be hidden, but she could not be found. It was, therefore, obvious that Smt. Moonga could not have been withheld by the prosecution. There was no evidence one way or the other regarding the suggestion that she also had been done away, by the appellant. There was evidence that the appellant had returned from his village Pachkaura to village Karthala in the evening on the 14th June, 1969. P.W. 9, P.W. 17 and P. W. 4 gave evidence about having seen the appellant at various points near the town of Moradabad between 5 p.m. and 7.30 p.m. on9 and the courts below held that their evidence has established appellants return beyond doubt. Another fact which the prosecution sought to prove was that on thet of June 14/15, 1969 the appellant was found on the roof of Smt. Moongas house and this was sought to be established by the evidence of P.W. 10 and P.W. 8. This evidence was held not reliable and sufficient to prove the presence of the appellant on the roof of Smt. Moongas house. Then there is the evidence of P.W. 15 of having seen the appellant going away from the house of Smt. Moonga shortly after. The statement given by P.W. 15 was believed by the courts below. There was also the fact that the blood stained knife (Ext. 5), with which the murder was committed was recovered at the instance of the appellant. We have not been impressed by the argument on behalf of the appellant that this evidence is not admissible under the provisions of Section 27 of the Evidence Act as the police already knew about the place where the knife could be found. This argument is wholly without substance. This was based on the fact that the appellant first told the police that he would show them the knife and then took them to the place where the knife was hidden. We consider that both the courts below were undoubtedly right in holding that there was no substance in this contention, and the evidence regarding the recovery of the knife was admissible. The courts below were not impressed by the appellants denial of the various facts proved against him and his statement that he was in his own village Pachkaura at the time of occurrence. We have carefully considered the evidence in this case and see no reason to differ from the conclusion arrived at by the courts below.
Jose Da Costa & Another Vs. Bascora Sadashiva Sinai Narcornim & Anr	possession for 15 years."Article 529 of the Code is as follows:-"When, however, the possession of immovable property or rights to immovable property referred to in the foregoing article has lasted for a period of 30 years, prescription will operate; and no mala fide or absence of title can be averred, except the provisions of Article 510."Thus even under the Portuguese law what appears to be clear is that permissive possession is not sufficient to prescribe title of the owner of the land.The Judicial Commissioner was not right in holding that possession of the defendants was permissive under the plaintiffs. There is no evidence is against recognition by the defendants of any title the evidence is against recognition by the defendants of any title in the plaintiffs as such. The Judicial Commissioner mistook the defendants admission of the alleged perpetual lease under Visnum Narcornim as permissive occupation under the plaintiffs even after holding that the defendants failed to establish perpetual lease.13. We are, therefore, left with the long, continuous and peaceful possession by the defendants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the plaintiffs to the land in 1920. The fact that the defendants set up tit le in Visnum Narcornim describing him as plaintiffs ancestor, does not affect the position in view of the plaintiffs avowed denial that Visnum Narcornim had anything to do with the land. Visnum Narcornim is survived by his own descendants and we are not dealing with a case where Visnum Narcomims heirs as such have sought eviction of the defendants from the land. The plaintiffs do not accept Visnum Narcornims title to the land as their title. The Judicial Commissioner fell into an error because of not keeping the distinction between Visnum Narcornims title to the land and the plaintiffs title to the same. The origin of ownership of the suit land being dipped in the misty past what emerges from the evidence, in the absence of proof of lease or permission by the plaintiffs own ancestors, is the defendants have been in long and open possession of the land over which they have constructed their house for a period long enough for that possession to rip en into ownership. The defendants in our opinion should be held to have acquired title to the said land by prescription.There being no proof whatsoever of permissive possession under the plaintiffs or their ancestors, there is n o question of application of the rule laid down under Article 510, relied upon by Mr. Tarkunde.14. Article 510 reads thus:"One who possesses a thing in anothers name cannot acquire it by prescription except if the title of possession has been inverted, either due to an act of a third party, or by objection raised by the possessor to the right of the other in whose name he was possessing it and not refuted by the latter; but in such event the prescription shall run from the date of inversion of the title. Sole para: The title is said to be inverted when it is substituted by another title capable of transferring the possession or ownership (dominio)."15. According to the Judicial Commissioner the above Article is applicable and since the defendants could not prove that there had been at some time "inversion of title" their possession was merely "detencao" (namely, a precarious possession) and such physical detencao without "animus" cannot be invoked for the purpose of claiming any effect that possession in ones own name or as of right connotes. It is difficult to see how Article 510 can be attracted to the instant case. The defendants had at no time possessed the land on which their house stands in the name of the plaintiffs. They were never accepting the position of permissive possession under the plaintiffs and had asserted perpetual lease under Visnum Narconim, who, even according to the plaintiffs, was an unauthorised person. Article 510 would not be attracted to this case when the defendants alternatively were possessing in the name of Visnum Narornim or his descendants. Article 510 is, therefore, clearly out of the way. We are, therefore, not even required to consider whether there was any "inversion of title" in this case or not.It is clear that the defendants ancestors and, after them, the defendants have been in possession of the land since 1875. Title of the plaintiffs was repudiated openly in the year 1920. The defendants are in possession by occupying the house standing on the land and the house was constructed by the defendants ancestors. The plaintiffs had made a complaint about their conduct in denying their title to the land and in opposing their construction as early as in 1920. The passivity and inertness of the plaintiffs thereafter for over forty years till the institution of the suit in 1961 clearly establishes the plea of prescription set up by the defendants.It is significant that even the plaintiffs, being out of possession of the land in suit for a long number of years and having constructed their house on a house on portion of the land only in the year 1920, sought to establish the title to the property "by virtue of the prescription that operated in their favour" (see paragraph 3 of the plaint).16. Mr. Tarkunde has made a further submission, which appears to have received approval of the Judicial Commissioner, that the defendants witnesses while describing the land in suit acknowledged it as "the plaintiffs land". It may not be overlooked that the plaintiffs also have their own house on a part of the land. We, therefore, cannot agree that the defendants witnesses by identifying the land in suit in that manner defeated the claim of the defendants with regard to the adverse possession.17. We may observe that Mr. Lalit, the learned counsel for the appellants, fairly conceded that he was confining his claim in this case only to the land on which the defendants have their house.18.	1[ds]After examining the entire evidence, oral and documentary, the Judicial Commissioner has come to the conclusion that the defendants have failed to prove their acquisition of full title to the suit property by prescription under the law in force at the relevant time.During the hearing we did not have before us any printed Portuguese Civil Code or any standard legal treatise to which we would have ordinarily liked t o refer. Counsel for the appellants, however, produced certain extracts from various articles to which counsel for the respondents has not taken any exception. There is also reference to certain articles from the Portuguese Civil Code in the earlier judgment of this Court as also in the Report submitted by the Judicial Commissioner, Both the parties accept those articles as correct, although the original books are not before us.In view of the earlier decision of this Court an d after hearing the parties we feel that we will be justified to decide this appeal only on the question relating to the plea ofto the Judicial Commissioner the above Article is applicable and since the defendants could not prove that there had been at some time "inversion of title" their possession was merely "detencao" (namely, a precarious possession) and such physical detencao without "animus" cannot be invoked for the purpose of claiming any effect that possession in ones own name or as of right connotes. It is difficult to see how Article 510 can be attracted to the instant case. The defendants had at no time possessed the land on which their house stands in the name of the plaintiffs. They were never accepting the position of permissive possession under the plaintiffs and had asserted perpetual lease under Visnum Narconim, who, even according to the plaintiffs, was an unauthorised person. Article 510 would not be attracted to this case when the defendants alternatively were possessing in the name of Visnum Narornim or his descendants. Article 510 is, therefore, clearly out of the way. We are, therefore, not even required to consider whether there was any "inversion of title" in this case or not.It is clear that the defendants ancestors and, after them, the defendants have been in possession of the land since 1875. Title of the plaintiffs was repudiated openly in the year 1920. The defendants are in possession by occupying the house standing on the land and the house was constructed by the defendants ancestors. The plaintiffs had made a complaint about their conduct in denying their title to the land and in opposing their construction as early as in 1920. The passivity and inertness of the plaintiffs thereafter for over forty years till the institution of the suit in 1961 clearly establishes the plea of prescription set up by the defendants.It is significant that even the plaintiffs, being out of possession of the land in suit for a long number of years and having constructed their house on a house on portion of the land only in the year 1920, sought to establish the title to the property "by virtue of the prescription that operated in their favour" (see paragraph 3 of the plaint).Tarkunde has made a further submission, which appears to have received approval of the Judicial Commissioner, that the defendants witnesses while describing the land in suit acknowledged it as "the plaintiffs land". It may not be overlooked that the plaintiffs also have their own house on a part of the land. We, therefore, cannot agree that the defendants witnesses by identifying the land in suit in that manner defeated the claim of the defendants with regard to the adversemay observe that Mr. Lalit, the learned counsel for the appellants, fairly conceded that he was confining his claim in this case only to the land on which the defendants have their474 of the Portuguese Civil Code	1	3,700	699	### 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: possession for 15 years."Article 529 of the Code is as follows:-"When, however, the possession of immovable property or rights to immovable property referred to in the foregoing article has lasted for a period of 30 years, prescription will operate; and no mala fide or absence of title can be averred, except the provisions of Article 510."Thus even under the Portuguese law what appears to be clear is that permissive possession is not sufficient to prescribe title of the owner of the land.The Judicial Commissioner was not right in holding that possession of the defendants was permissive under the plaintiffs. There is no evidence is against recognition by the defendants of any title the evidence is against recognition by the defendants of any title in the plaintiffs as such. The Judicial Commissioner mistook the defendants admission of the alleged perpetual lease under Visnum Narcornim as permissive occupation under the plaintiffs even after holding that the defendants failed to establish perpetual lease.13. We are, therefore, left with the long, continuous and peaceful possession by the defendants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the plaintiffs to the land in 1920. The fact that the defendants set up tit le in Visnum Narcornim describing him as plaintiffs ancestor, does not affect the position in view of the plaintiffs avowed denial that Visnum Narcornim had anything to do with the land. Visnum Narcornim is survived by his own descendants and we are not dealing with a case where Visnum Narcomims heirs as such have sought eviction of the defendants from the land. The plaintiffs do not accept Visnum Narcornims title to the land as their title. The Judicial Commissioner fell into an error because of not keeping the distinction between Visnum Narcornims title to the land and the plaintiffs title to the same. The origin of ownership of the suit land being dipped in the misty past what emerges from the evidence, in the absence of proof of lease or permission by the plaintiffs own ancestors, is the defendants have been in long and open possession of the land over which they have constructed their house for a period long enough for that possession to rip en into ownership. The defendants in our opinion should be held to have acquired title to the said land by prescription.There being no proof whatsoever of permissive possession under the plaintiffs or their ancestors, there is n o question of application of the rule laid down under Article 510, relied upon by Mr. Tarkunde.14. Article 510 reads thus:"One who possesses a thing in anothers name cannot acquire it by prescription except if the title of possession has been inverted, either due to an act of a third party, or by objection raised by the possessor to the right of the other in whose name he was possessing it and not refuted by the latter; but in such event the prescription shall run from the date of inversion of the title. Sole para: The title is said to be inverted when it is substituted by another title capable of transferring the possession or ownership (dominio)."15. According to the Judicial Commissioner the above Article is applicable and since the defendants could not prove that there had been at some time "inversion of title" their possession was merely "detencao" (namely, a precarious possession) and such physical detencao without "animus" cannot be invoked for the purpose of claiming any effect that possession in ones own name or as of right connotes. It is difficult to see how Article 510 can be attracted to the instant case. The defendants had at no time possessed the land on which their house stands in the name of the plaintiffs. They were never accepting the position of permissive possession under the plaintiffs and had asserted perpetual lease under Visnum Narconim, who, even according to the plaintiffs, was an unauthorised person. Article 510 would not be attracted to this case when the defendants alternatively were possessing in the name of Visnum Narornim or his descendants. Article 510 is, therefore, clearly out of the way. We are, therefore, not even required to consider whether there was any "inversion of title" in this case or not.It is clear that the defendants ancestors and, after them, the defendants have been in possession of the land since 1875. Title of the plaintiffs was repudiated openly in the year 1920. The defendants are in possession by occupying the house standing on the land and the house was constructed by the defendants ancestors. The plaintiffs had made a complaint about their conduct in denying their title to the land and in opposing their construction as early as in 1920. The passivity and inertness of the plaintiffs thereafter for over forty years till the institution of the suit in 1961 clearly establishes the plea of prescription set up by the defendants.It is significant that even the plaintiffs, being out of possession of the land in suit for a long number of years and having constructed their house on a house on portion of the land only in the year 1920, sought to establish the title to the property "by virtue of the prescription that operated in their favour" (see paragraph 3 of the plaint).16. Mr. Tarkunde has made a further submission, which appears to have received approval of the Judicial Commissioner, that the defendants witnesses while describing the land in suit acknowledged it as "the plaintiffs land". It may not be overlooked that the plaintiffs also have their own house on a part of the land. We, therefore, cannot agree that the defendants witnesses by identifying the land in suit in that manner defeated the claim of the defendants with regard to the adverse possession.17. We may observe that Mr. Lalit, the learned counsel for the appellants, fairly conceded that he was confining his claim in this case only to the land on which the defendants have their house.18. ### Response: 1 ### Explanation: After examining the entire evidence, oral and documentary, the Judicial Commissioner has come to the conclusion that the defendants have failed to prove their acquisition of full title to the suit property by prescription under the law in force at the relevant time.During the hearing we did not have before us any printed Portuguese Civil Code or any standard legal treatise to which we would have ordinarily liked t o refer. Counsel for the appellants, however, produced certain extracts from various articles to which counsel for the respondents has not taken any exception. There is also reference to certain articles from the Portuguese Civil Code in the earlier judgment of this Court as also in the Report submitted by the Judicial Commissioner, Both the parties accept those articles as correct, although the original books are not before us.In view of the earlier decision of this Court an d after hearing the parties we feel that we will be justified to decide this appeal only on the question relating to the plea ofto the Judicial Commissioner the above Article is applicable and since the defendants could not prove that there had been at some time "inversion of title" their possession was merely "detencao" (namely, a precarious possession) and such physical detencao without "animus" cannot be invoked for the purpose of claiming any effect that possession in ones own name or as of right connotes. It is difficult to see how Article 510 can be attracted to the instant case. The defendants had at no time possessed the land on which their house stands in the name of the plaintiffs. They were never accepting the position of permissive possession under the plaintiffs and had asserted perpetual lease under Visnum Narconim, who, even according to the plaintiffs, was an unauthorised person. Article 510 would not be attracted to this case when the defendants alternatively were possessing in the name of Visnum Narornim or his descendants. Article 510 is, therefore, clearly out of the way. We are, therefore, not even required to consider whether there was any "inversion of title" in this case or not.It is clear that the defendants ancestors and, after them, the defendants have been in possession of the land since 1875. Title of the plaintiffs was repudiated openly in the year 1920. The defendants are in possession by occupying the house standing on the land and the house was constructed by the defendants ancestors. The plaintiffs had made a complaint about their conduct in denying their title to the land and in opposing their construction as early as in 1920. The passivity and inertness of the plaintiffs thereafter for over forty years till the institution of the suit in 1961 clearly establishes the plea of prescription set up by the defendants.It is significant that even the plaintiffs, being out of possession of the land in suit for a long number of years and having constructed their house on a house on portion of the land only in the year 1920, sought to establish the title to the property "by virtue of the prescription that operated in their favour" (see paragraph 3 of the plaint).Tarkunde has made a further submission, which appears to have received approval of the Judicial Commissioner, that the defendants witnesses while describing the land in suit acknowledged it as "the plaintiffs land". It may not be overlooked that the plaintiffs also have their own house on a part of the land. We, therefore, cannot agree that the defendants witnesses by identifying the land in suit in that manner defeated the claim of the defendants with regard to the adversemay observe that Mr. Lalit, the learned counsel for the appellants, fairly conceded that he was confining his claim in this case only to the land on which the defendants have their474 of the Portuguese Civil Code
Union Of India Vs. Jyoti Chit Fund & Finance & Ors	2193-50 to which the defendant judgment-debtor is entitled, subject to any claim of the said J. D. and the said Pay and Accounts Officer is hereby prohibited and restrained, until the further order of this court from delivering of the said property to any person.Given under my hand and seal of the Court on 12th day of September 1968.Sd/-Sub-Judge 1st Class, Delhi."On service of the attachment order, objection was raised by the appellant, Union of India, on January 30, 1969 on the score that provident fund amounts and pensionary benefits were not liable to attachment and therefore the order may be rescinded. The decree holder (respondent 1) successfully contested in the trial court and on the objection being over-ruled, the appellant moved the High Court. It may be stated, at this stage, that the trial Court did not actually investigate the claim of the appellant as to whether the whole, or part of the amount sought to be attached, represented provident fund or pensionary benefits nor did the High Court go into the question. This means that even if we uphold the contention of the appellant, the case will have to go back for investigation on the merits7. We may formulate what has been indicated-the actual points urged before us by Shri Sanghi and vigorously controverted by Shri Rohtagi. (1) Is it permissible in law for amounts representing provident fund contributions and pensionary benefits to be attached, having due regard to ss. 3 and 4 of the Provident Funds Act, s. 11 of the Pensions Act and s. 60(1), provisos (g) and ( k) of C.P.C.? (2) Is the Union of India entitled to move the Court and request it to investigate the question that the whole or part of the sum in its hands on account of the judgment-debtor as provident fund, compulsory deposits and pensionary benefits and, therefore, not liable to be attached, or is it out of bounds for a third party to the suit, like the Union of India, even if the step be taken pro bono publico by a relevant public authority, to invoke the jurisdiction of the Court in this behalf? (3) Is the Rajya Sabha Secretariat staff so totally separated from the Union of India that the latter cannot urge, in these proceedings, the claims belonging to employees of the said Secretariat in the civil court even if the attachment of the sums involved is contrary to law ? We are inclined to hold, , without hesitation that on all the points the appellant is bound to succeed. A bare reading of ss. 3 and 4 of the Provident Funds Act, 1925, read with s. 2(a) of that Act, will convince anyone that attachment of amounts bearing their description are prohibited. It will be a gross violation of legal mandates involving public interest if, in the teeth of such injunction, an attachment should still be ordered by a court.The finer distinction sought to be made by Shri Rohatgi that because the appellant has already retired, therefore, the provident fund and allied amounts have already fallen due and have ceased to possess the complexion of sums by way of provident fund under ss. 3 and 4, is fallacious. On first principles and on precedent, we are clear in our minds that these sums, if they are of the character set up by the Union of India, are beyond the reach of the courts power to attach. Section 2 (a) of the Provident Funds Act has also to be read in this connection to remove possible doubts because this definitional clause is of wide amplitude. Moreover, s-60(1), provides (g) and (k), leave no doubt on the point of non- attachability. The matter is so plain that discussion is uncalled for.8. We may state without fear of contradiction that provident fund amounts, pensions and other compulsory deposits covered by the provisions we have referred to, retain their character until they reach the hands of the employee. The reality of the protection is reduced to illusory formality if we accept the interpretation sought. We take a contrary view which means that attachment is possible and lawful only after such amounts are received by the employee. If doubts may possible be entertained on this question, the decision in Union of India v. Radha Kissen Agarwala &Anr. erases them. Indeed our case is an afortiori one, on the facts. A bare reading of Radha Kissen makes the proposition fool-proof that so long as the amounts are Provident Fund dues them, till they are actually paid to the government servant who is entitled to it on retirement or otherwise the nature of the dues is not altered. What is more, that case is also authority for the benignant view that the government is a trustee for those sums and has an interest in maintaining the objection in court to attachment. We follow that ruling and over-rule t he contention.It is possible to take a broad view that cases where public policy is involved and the court has a certain duty to observe statutory prohibitions, a wider concept of locus standi has to be taken. Any public authority interested in the matter and not behaving partially as an officious busy body may bring to the notice of the court the illegality of the steps it proposes to take. When the courts jurisdiction is so invoked, it may be exercised without insisting on some other directly affected party, like the judgment-debtor in the instant case, appearing to defend himself.The argument that the Rajya Sabha Secretariat is different from the Union of India is a new gloss which Shri Rohatgi has put upon his contention of locus standi. He has pressed into service Articles 300 and 98(2) of the Constitution of India, neither of which is helpful or applicable. This point has the merit of novelty, little else. Consequentially, we set aside the decision o f the High Court and of the executing court, but this is not the end of the matter.9.	1[ds]We agree and indeed appreciate the States anxiety to fulfill the policy of the statute on behalf of the weaker-sections by taking up the burden on itself. May be, it is like a test case ventilating a cause in which a large number of employees may be vitallyare inclined to hold, , without hesitation that on all the points the appellant is bound to succeed. A bare reading of ss. 3 and 4 ofthe Provident Funds Act, 1925, read with s. 2(a) of that Act, will convince anyone that attachment of amounts bearing their description are prohibited. It will be a gross violation of legal mandates involving public interest if, in the teeth of such injunction, an attachment should still be ordered by a court.The finer distinction sought to be made by Shri Rohatgi that because the appellant has already retired, therefore, the provident fund and allied amounts have already fallen due and have ceased to possess the complexion of sums by way of provident fund under ss. 3 and 4, is fallacious. On first principles and on precedent, we are clear in our minds that these sums, if they are of the character set up by the Union of India, are beyond the reach of the courts power to attach. Section 2 (a) of the Provident Funds Act has also to be read in this connection to remove possible doubts because this definitional clause is of wide amplitude. Moreover, s-60(1), provides (g) and (k), leave no doubt on the point of non- attachability. The matter is so plain that discussion is uncalledfollow that ruling and over-rule t he contention.It is possible to take a broad view that cases where public policy is involved and the court has a certain duty to observe statutory prohibitions, a wider concept of locus standi has to be taken. Any public authority interested in the matter and not behaving partially as an officious busy body may bring to the notice of the court the illegality of the steps it proposes to take. When the courts jurisdiction is so invoked, it may be exercised without insisting on some other directly affected party, like the judgment-debtor in the instant case, appearing to defend himself.The argument that the Rajya Sabha Secretariat is different from the Union of India is a new gloss which Shri Rohatgi has put upon his contention of locus standi. He has pressed into service Articles 300 and 98(2) of the Constitution of India, neither of which is helpful or applicable. This point has the merit of novelty, little else. Consequentially, we set aside the decision o f the High Court and of the executing court, but this is not the end of the matter.	1	2,274	509	### 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: 2193-50 to which the defendant judgment-debtor is entitled, subject to any claim of the said J. D. and the said Pay and Accounts Officer is hereby prohibited and restrained, until the further order of this court from delivering of the said property to any person.Given under my hand and seal of the Court on 12th day of September 1968.Sd/-Sub-Judge 1st Class, Delhi."On service of the attachment order, objection was raised by the appellant, Union of India, on January 30, 1969 on the score that provident fund amounts and pensionary benefits were not liable to attachment and therefore the order may be rescinded. The decree holder (respondent 1) successfully contested in the trial court and on the objection being over-ruled, the appellant moved the High Court. It may be stated, at this stage, that the trial Court did not actually investigate the claim of the appellant as to whether the whole, or part of the amount sought to be attached, represented provident fund or pensionary benefits nor did the High Court go into the question. This means that even if we uphold the contention of the appellant, the case will have to go back for investigation on the merits7. We may formulate what has been indicated-the actual points urged before us by Shri Sanghi and vigorously controverted by Shri Rohtagi. (1) Is it permissible in law for amounts representing provident fund contributions and pensionary benefits to be attached, having due regard to ss. 3 and 4 of the Provident Funds Act, s. 11 of the Pensions Act and s. 60(1), provisos (g) and ( k) of C.P.C.? (2) Is the Union of India entitled to move the Court and request it to investigate the question that the whole or part of the sum in its hands on account of the judgment-debtor as provident fund, compulsory deposits and pensionary benefits and, therefore, not liable to be attached, or is it out of bounds for a third party to the suit, like the Union of India, even if the step be taken pro bono publico by a relevant public authority, to invoke the jurisdiction of the Court in this behalf? (3) Is the Rajya Sabha Secretariat staff so totally separated from the Union of India that the latter cannot urge, in these proceedings, the claims belonging to employees of the said Secretariat in the civil court even if the attachment of the sums involved is contrary to law ? We are inclined to hold, , without hesitation that on all the points the appellant is bound to succeed. A bare reading of ss. 3 and 4 of the Provident Funds Act, 1925, read with s. 2(a) of that Act, will convince anyone that attachment of amounts bearing their description are prohibited. It will be a gross violation of legal mandates involving public interest if, in the teeth of such injunction, an attachment should still be ordered by a court.The finer distinction sought to be made by Shri Rohatgi that because the appellant has already retired, therefore, the provident fund and allied amounts have already fallen due and have ceased to possess the complexion of sums by way of provident fund under ss. 3 and 4, is fallacious. On first principles and on precedent, we are clear in our minds that these sums, if they are of the character set up by the Union of India, are beyond the reach of the courts power to attach. Section 2 (a) of the Provident Funds Act has also to be read in this connection to remove possible doubts because this definitional clause is of wide amplitude. Moreover, s-60(1), provides (g) and (k), leave no doubt on the point of non- attachability. The matter is so plain that discussion is uncalled for.8. We may state without fear of contradiction that provident fund amounts, pensions and other compulsory deposits covered by the provisions we have referred to, retain their character until they reach the hands of the employee. The reality of the protection is reduced to illusory formality if we accept the interpretation sought. We take a contrary view which means that attachment is possible and lawful only after such amounts are received by the employee. If doubts may possible be entertained on this question, the decision in Union of India v. Radha Kissen Agarwala &Anr. erases them. Indeed our case is an afortiori one, on the facts. A bare reading of Radha Kissen makes the proposition fool-proof that so long as the amounts are Provident Fund dues them, till they are actually paid to the government servant who is entitled to it on retirement or otherwise the nature of the dues is not altered. What is more, that case is also authority for the benignant view that the government is a trustee for those sums and has an interest in maintaining the objection in court to attachment. We follow that ruling and over-rule t he contention.It is possible to take a broad view that cases where public policy is involved and the court has a certain duty to observe statutory prohibitions, a wider concept of locus standi has to be taken. Any public authority interested in the matter and not behaving partially as an officious busy body may bring to the notice of the court the illegality of the steps it proposes to take. When the courts jurisdiction is so invoked, it may be exercised without insisting on some other directly affected party, like the judgment-debtor in the instant case, appearing to defend himself.The argument that the Rajya Sabha Secretariat is different from the Union of India is a new gloss which Shri Rohatgi has put upon his contention of locus standi. He has pressed into service Articles 300 and 98(2) of the Constitution of India, neither of which is helpful or applicable. This point has the merit of novelty, little else. Consequentially, we set aside the decision o f the High Court and of the executing court, but this is not the end of the matter.9. ### Response: 1 ### Explanation: We agree and indeed appreciate the States anxiety to fulfill the policy of the statute on behalf of the weaker-sections by taking up the burden on itself. May be, it is like a test case ventilating a cause in which a large number of employees may be vitallyare inclined to hold, , without hesitation that on all the points the appellant is bound to succeed. A bare reading of ss. 3 and 4 ofthe Provident Funds Act, 1925, read with s. 2(a) of that Act, will convince anyone that attachment of amounts bearing their description are prohibited. It will be a gross violation of legal mandates involving public interest if, in the teeth of such injunction, an attachment should still be ordered by a court.The finer distinction sought to be made by Shri Rohatgi that because the appellant has already retired, therefore, the provident fund and allied amounts have already fallen due and have ceased to possess the complexion of sums by way of provident fund under ss. 3 and 4, is fallacious. On first principles and on precedent, we are clear in our minds that these sums, if they are of the character set up by the Union of India, are beyond the reach of the courts power to attach. Section 2 (a) of the Provident Funds Act has also to be read in this connection to remove possible doubts because this definitional clause is of wide amplitude. Moreover, s-60(1), provides (g) and (k), leave no doubt on the point of non- attachability. The matter is so plain that discussion is uncalledfollow that ruling and over-rule t he contention.It is possible to take a broad view that cases where public policy is involved and the court has a certain duty to observe statutory prohibitions, a wider concept of locus standi has to be taken. Any public authority interested in the matter and not behaving partially as an officious busy body may bring to the notice of the court the illegality of the steps it proposes to take. When the courts jurisdiction is so invoked, it may be exercised without insisting on some other directly affected party, like the judgment-debtor in the instant case, appearing to defend himself.The argument that the Rajya Sabha Secretariat is different from the Union of India is a new gloss which Shri Rohatgi has put upon his contention of locus standi. He has pressed into service Articles 300 and 98(2) of the Constitution of India, neither of which is helpful or applicable. This point has the merit of novelty, little else. Consequentially, we set aside the decision o f the High Court and of the executing court, but this is not the end of the matter.
UNION OF INDIA Vs. MOOLCHAND KHAIRATI RAM TRUST	apparent that before imposing the conditions in lease deeds, a High Level 10Member Committee for hospitals in Delhi was constituted, headed by Mr. Justice A.S. Qureshi regarding the working of the hospitals and nursing homes in Delhi, to review the existing free treatment facilities extended by the charitable and other hospitals who had been allotted land on concessional terms/rates predetermined by the Government, and to suggest suitable policy guidelines for free treatment facilities for needy and deserving patients uniformly in the beneficiary institutions, in particular, to specify the diagnostic, treatment, lodging, surgery, medicines and other facilities that would be given free or partially free; to suggest a proper referral system for the optimum utilization of free treatment by deserving and needy patients; and to suggest a suitable enforcement and monitoring mechanism for the above, including a legal framework. The Committee held various meetings, conducted enquiries, various hospitals were heard including MoolchandKharaiti Ram Hospital. The Government observed that there were resistance and persistent refusal of the management of Moolchand Kharaiti Ram Hospital to send a reply to the questionnaire and to submit the documents which they were required to submit at the end of the enquiry. The first visit made to Moolchand Kharaiti Ram Hospital was on 16.1.2001 and the second on 21.3.2001. Various other hospitals were also visited. The Committee observed that there was no legal, social or moral justification for allowing such moneymaking commercial concerns. The land was allotted for a charitable purpose and to do charitable service which has now been totally replaced by exploitative commercial hospitals. 106. With respect to Moolchand Kharaiti Ram Hospital, Justice Qureshi Committee has discussed the matter in extensive details. It has been observed that initially the Trust was truly charitable. It was granted 9 acres of prime land situated on the Ring Road in Lajpat Nagar in South Delhi. Initially the hospital continued to serve as a free Ayurvedic hospital for patients in OPD and IPD sections. It also carried on the research for Ayurvedic medicines. Later on the trustees decided to introduce Allopathic treatment also. The Allopathic Section has been upgraded with airconditioned deluxe and superdeluxe rooms which are called Wards. Presently the Allopathic section covers about 90% of the hospital activities and the Ayurvedic section is reduced to about 10%. There is only nominal Ayurvedic treatment of patients in OPD and IPD, which had originally 4 wards. Now it is reduced to only one ward in which there are very few patients. There were only 4 or 5 Ayurvedic patients in the ward on 21.3.2001. The manufacturing of Ayurvedic medicines is also considerably reduced. After noting in detail the statements of various witnesses working in the hospital, and after analysing them, the Committee has found that the Moolchand Kharaiti RamHospital has acted not only contrary to the wishes of its founder but also violated the terms and conditions regarding free treatment to the poor, openly both in letter and spirit. The management of hospital does not consider it to be a charitable hospital at all. The land would not have been allotted to Trust if it was not charitable. Be that as it may, nonetheless the land has been allotted for charitable purpose to the hospital. Their stand was that the word poor was not defined in the lease deed or anywhere else, was adversely commented upon. Some adverse comments were also made with respect to the interpolation in the Will. We are not considering the aforesaid question of interpolation in the instant matter as nothing turns on it. The Committee observed that if the hospital was not saved immediately it may be too late because it appears to be in the process of being sold out. The facts are writ large along with the statements of witnesses recorded in the course of the inquiry. In addition, the High Court of Delhi during the course of hearing of Social Jurists (supra) has also constituted a Committee headed by Shri N.N. Khanna and also considered the same and thereafter the decision had been rendered in Social Jurists case (supra). 107. Reliance has been placed on behalf of Moolchand Kharaiti Ram Trust to the decision rendered in Asit Kumar Kar v. State of West Bengal & Ors., (2009) 2 SCC 703 , wherein it was observed that no adverse orders to be passed against a party without hearing him. On this account, it was contended that the Court could not have passed the adverse order against the hospitals, who were not heard in the matter of Social Jurists (supra). It was also contended that a contempt petition was filed by Union of India, which was dismissedon the ground that the hospitals in question were not impleaded as a party to the writ petition, that does not help the hospitals in question. We have examined the matter on merits in the present case afresh unfettered by previous decision and have found Governments order dated 2.2.2012, to be absolutely proper. 108. Reliance has also been placed on Delhi Development Authority & Anr. v. Joint Action Committee Allottee of SFS Flats & Ors., (2008) 2 SCC 672 , wherein it was held that novation of contract cannot be done unilaterally, and the new terms must be brought to the knowledge of the offeree and his acceptance thereto must be obtained. It was further observed that when a contract has been worked out, a fresh liability cannot be thrust upon a contracting party and it was beyond the scope of the original terms contained in the offer letter and the allotment letter, in which the imposition of extra charges was not contemplated. In factual matrix being different decision has no application to the instant case as it was stipulated right from the beginning in the policy/rules that land to such institution has been given for charitable purposes of hospitality, research etc. at concessional rates and/or with nonprofit motive. It is not the case of new obligation being fastened at the time of renewal of the contract.	1[ds]52. In the wake of globalisation, we are in a regime of Intellectual Property Rights. Even these rights have to give way to the human rights. It is an obligation of the Government to provide lifesaving drugs to havenots at affordable prices so as to save their lives, which is part ofArticle 21 of the Constitution of India.It is equally an obligation of the State to devise such measures that havenots are not deprived of the very treatment itself. Administering medicines is also a part of medical therapy. Thus, in our considered opinion members of the medical profession owe a constitutional duty to treat the have nots. They cannot refuse to treat a person who is in dire need of treatment by a particular medicine or by a particular expert merely on the ground that he is not in a position to afford the fee payable for such an opinion/treatment. The moment it is permitted, the medical profession would become purely a commercial activity, it is not supposed to be so due to its nobleness. Thus, in our opinion, when the Government land had been obtained for charitable purpose of running the hospital, the Government is within its right to impose such an obligation.In Parmanand Katara (supra) this Court has observed that every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise, which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way, and there is an obligation upon the doctor to treat the injured victim on his appearance before him either by himself or being carried by others. It has also been observed by this Court that the effort to save the person should be the top priority not only of the medical professional but even of the Police or any other person who happens to be connected with the matter or who happens to notice such an incident or a situation. Apprehensions that the doctor will have to face police interrogation and stand as a witness in court and face all the harassments, should not prevent them from discharging their duty as medical professionals to save a human life and to do all that is necessary.In Paschim Banga Khet Mazdoor Samity (supra), this Court has observed that the Constitution envisages the establishment of a welfare State. In a welfare State, the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centers which provide medical care to the person seeking to avail of those facilities. Preservation of human life is thus of paramount importance. Government is dutybound to provide timely care to persons in serious conditions. Medical facilities cannot be denied by the Government on the ground of nonavailability of bed. Denial of medical assistance on unjust ground was held to be in violation of right to life under Article 21 and the State was directed to pay the compensation of Rs.25,000 to the petitioner and requisite directions were issued by this Court. The State cannot avoid its constitutional obligation in that regard on account of financial constraints and was directed to allocate funds for providing adequate medical infrastructure.In our opinion, the State can also impose such obligation when the Government land is held by such hospitals and it is the constitutional obligation imposed upon such hospitals. Under Article 47, State has to make constant endeavor to raise the level of nutrition and the standard of living and to improve public health. It is also one of the fundamental duties enshrined in Article 51A(h) to develop the scientific temper, humanism and the spirit of inquiry and reform. It would be inhuman to deny a person who is not having sufficient means or no means, the lifesaving treatment, simply on the ground that he is not having enough money. Due to financial reasons, if treatment is refused, it would be against the very basic tenets of the medical profession and the concept of charity in whatever form we envisage the same, besides being unconstitutional would be violative of basic human rights. In our opinion, when the State largesse is being enjoyed by these hospitals in the form of land beside it is their obligation by the very nature of the medical services to extend the reciprocal obligation to the public by providing free treatment as envisaged in the impugned order. In case they want to wriggle out of it and not to comply with it, they have to surrender the land and orge out the benefit which they have received by virtue of holding the Government land in an aforesaid manner.It is regrettable that the land had been obtained by Moolchand Kharaiti Ram Trustwhich claims to be charitable and St. Stephens Hospital run by the Missionaries admittedly for charity, are questioning the very conditions for which they have come into being and it appears with the passage of time they have lost the very purpose of their establishment. In our opinion they should have welcomed the conditions imposed by the Government, considering their objectives and for the purpose, they have obtained the land. Two other hospitals, namely, Sita Ram Bhartia Institute of Science & Research and Foundation for Applied Research in Cancer also cannot wriggle out of their such obligations.Even when the purpose of the charitable activity is not defined, it is open to the court to define it. The decision of the Government cannot be said to be foreign to the purpose for which land is held. Thus, the action of the State cannot be said to be unauthorized, illegal or arbitrary in any manner whatsoever and is in furtherance of the very objectives for which the medical profession exists. It is very unfortunate that by and large the hospitals have now become centers of commercial exploitation and instances have come to notice when a dead body is kept as security for clearance of bills of hospitals which is per se illegal and criminal act. In future, whenever such an act is reported to the police, it is supposed to register a case against management of Hospital and all concerned doctors involved in such inhumane act, which destroys the basic principles of human dignity and tantamount to a criminal breach of the trust reposed in the medical profession.It is unfortunate that most of the hospitals are being run on a commercial basis and various ills have sunk in the noble medical profession. Right from wrong reporting, uncalled for investigation inclusive of invasive one, even as to heart and other parts of the body, which are wholly unnecessary, are performed, it is time for soul searching for such big hospitals in and around Delhi, Gurgaon etc. and other places. They must ponder what they are doing. Is it not a criminal act? Simply by the fact that action is not taken does not absolve the responsibility. Time has come to fix accountability and to set right the evils which have rotten the system. The medical profession had never been intended to be an exploitative device to earn money at the cost of patients who require godly approach and helping hand of doctors. Every prescription starts from Rx, not from the amount of bill. Being big commercial international hospitals in and around Delhi, they are not above the ethical standards which they have to maintain at all costs even by extending financial help to the havenots.The poor cannot be deprived of the treatment by the best physician due to his economic disability in case he requires it. It is the obligation on the medical professionals, hospitals, the State and all concerned to ensure that such person is given treatment and not deprived of the same due to poverty. That is what is envisaged in the Constitution also. On the making of a doctor, the State spends and invests a huge amount of public money and it is the corresponding obligation to serve the needy and the treatment cannot be refused on the ground of financial inability of the patient to bear it. To such an extent, the right and moral obligation can be enforced and that precisely has been done by issuance of the impugned directions to provide free treatment in IPD and OPD to economically weaker sections of society. They have suffered so long and benefit has not percolated down to them of distributive justice and they are deprived of equal justice and proper treatment due to lack of financial means. It is apparent from the policy decision dated 10.6.1949 and also theprovisions contained in section 2 of the Charitable Endowments Act, 1890that running of hospitals is regarded as a charitable activity. The further rider in policy was that such institution claiming allotment should be secular and of noncommunal character.The Arts and Crafts Society and othernonprofit making bodieswere also included under the term charitable institution with the rider that the institution should be run for the good of the public without any profit motive. It was contended on behalf of the hospitals that the aforesaid condition is not applicable to hospitals and would apply to Arts and Crafts Association, and there was no specific stipulation with respect to providing free treatment in the letter of allotments and lease deed. In our opinion, the rider that the Arts and Crafts institution should be run for good of the public, without any profit motive is primarily applicable to the charitable institutions like hospitals etc. then it has been only specified as an obligation to Arts and Crafts institution etc. too. As such there would be an obligation upon hospitals being charitable by their very nature to provide free treatment to economically weaker sections of society. The expression no profit motive would also exclude the hospitals being run for commercial gains. That would be violative of the very foundational basis and fulcrum on which the allotment order had been issued and lease deeds have been executed. Once having claimed themselves to be charitable institutions, it does not lie in the armory of defense to raise such plea and having obtained the benefit of the public largesse. It is not open to raising the aforesaid challenge within the framework of legal parameters. As a matter of fact, as these hospitals are being run for commercial gains, it would be open to the lessor to terminate the lease. That can be done in case there is a refusal to comply with or violation in any manner of the obligation of providing free medical treatment to 10% IPD and 25% OPD patients belonging to economically weaker sections of the society. The imposition of the said condition is inherent in the policy and in the very grant on the basis of which the land is held and even otherwise in the case of two other institutes i.e. Sita Ram Bhartia Institute of Science & Research and Foundation for Applied Research in Cancer, as they are holding the Government land for the hospital purpose and research functions in the hospital, the allotment was also made at a predetermined rate and not by way of auction and considering the specific stipulation in clause 7 of the lease deed and considering the aforesaid other aspects, and it being charitable activity, it was open to the Government to obligate them by providing free medical treatment.It is apparent that decision in Social Jurists (supra) has been rendered on the basis of the terms and conditions contained in the allotment letters as well as stipulations made in the lease deeds. Some representations were made relating to free treatment. The High Court, hence in Social Jurists (supra), opined that it was not necessary to incorporate each and every condition in the lease deed and other corresponding documents would also be seen and it was not only contractual but statutory, and public law obligation enjoined upon the hospitals to fulfil condition of free treatment. The order was affirmed by this Court by a reasoned order, hence it becomes binding as precedent.It is apparent that in the case of Moolchand Kharaiti Ram Trust and St. Stephens Hospital, the lands were allotted for charitable purposes under the Scheme of the year 1949, as further modified, thus, the policy under which they had obtained lease deed would also be a relevant document and of paramount importance for entitlement to hold the land for purpose as specified in the policy, as that is the basic document governing the rights of the parties, and the terms and conditions of lease deed, would be supplemental to the main objective of the policy. The lease deed can supplement not supplant the main policy or rules as the case may be under which the allotment has been obtained and lease deed has been executed.In our considered opinion, not only by the policy that prevailed in 1949, the land at concessional rates for charitable purposes, had been obtained and free treatment being as stipulated in the order dated 02.02.2012 issued by the Government of India, is within the realm of the policy under which allotment had been made at highly concessional rates in the heart of Delhi and the Delhi Development Authority Rules framed in 1981. They cannot wriggle out of their obligation by contending that there was no such stipulation in the allotment letter or lease deed. Allotment letter and lease deed are subject to the riders in the main policy and rules under which grant has been made. It is the foundation of the allotment letter and the lease deed.In the case of Sitaram Bhartia Institute of Science & Research and Foundation for Applied Research in Cancer, the allotment had been made by the DDA when the Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981 were in vogue.It is apparent from Rule 5 that allotment of lands to the charitable institutions would be at predetermined rates and not on market rates. According to Rule 20 above, the allotment is subject to the further rider that public institution should subserve the interests of the population of the Union Territory of Delhi and such institutions should be of nonprofit motive character. There was a clear stipulation by way of the condition in clause 7 of the allotment letter to the effect that DDA reserves the right to alter any terms and conditions on its discretion. Thus, it appears that the land was obtained for research purposes. Later on, it was noticed that hospitals were set up and were running on commercial lines, which was objected to by the DDA as it was in clear violation of the terms and conditions. As the land was obtained at concessional rates, not on market rates, the hospitals were bound to serve the public good and the imposition of such condition in the lease deed could not be said to be impermissible, arbitrary or irrational. The allotments that were made in favour of Sitaram Bhartiya Institute and Foundation for Applied Research in Cancer were at predetermined rates, which were lesser than the marketour view, it is wholly impermissible submission. The Trust cannot be permitted to wriggle out of its obligation unjustly and unfairly. Originally the Trust was set up for pure charity. In raising such unworthy and untenable submission, Trust has lost its main objective and assumeda commercial character and it is regrettable that it has to be reminded of its responsibility by the Court for the purpose for which it exists and having obtained the land on a particular basis, is observed only in breach thereof. The adverse remarks in the report of Justice Qureshi Committee with respect to the institution cannot be brushed aside on the sole ground that comments recorded in Justice Qureshis report were based on the statement made by disgruntled employees of the hospitals, who were in dispute with the management of thestatement in the factual matrix has no legs to stand and we are conscious that we are not trying to create any new obligation. It was a selfcreated obligation on missionaries to do charity for which they exist while obtaining the land and Court is duty bound to enforce it. By the stipulation in the question of free treatment, the policy rules of allotment have been given a shape that is enforceable and cannot be termed to be a new imposition not contemplatedis apparent that Moolchand Kharaiti Ram Trust was created by a Will executed by Lala Kharaiti Ram resident of Lahore in 1927. The Will was produced for perusal. The objects of the creation of Trust were imparting education in and preaching Sanskrit according to Sanatan Dharam methods; and, secondly, for devising means for imparting education in and improving the Ayurvedic system of medicine and preaching the same. In order to achieve the latter object, it was not prohibited to take help from the English or Yunani or any other system of medicine and according to need, one or more than one Ayurvedic Hospital may be opened. It was contended that it was not in the deed of the Trust to impart free medical aid. The ground raised and what is contained in the Will is against the very purpose for which the Moolchand Kharaiti Ram Hospital is being run. When its object was of improving the Ayurvedic system of medicine only as is apparent from the material on record that at present the said activities had beenconfined to one room and the changed main activity is an Allopathic system of medicine which was not at all the intendment of the creator of the Trust. We leave the matter at that in these proceedings. However, having obtained the land for charitable purposes for the hospital, for no profit and for the public good, whatever system of medicine is being administered, it can be obligated with such charitable rider of free treatment as envisaged in the impugned order issued by the Government.Similarly, St. Stephens Hospital is Missionaries hospital and its very objective admittedly is to provide the charitable services free of charge but it has also become more or less a commercial venture as in the case of other hospitals inter alia involved in the instant matter, how such provision for charity is opposed is beyond comprehension, is it charity versus charity. They have to abide by the just and reasonable legal conditions for free treatment which are constitutionally envisagedthe Trustees are Indian citizens, they are exercising their fundamental right in running the hospitals. If any restriction was to be placed on their right to run the institution by providing the manner in which they must run their hospitals by providing free treatment to a particular percentage of patients, this could only be done by enacting a law under Article 19(6) of the Constitution.For deciding the aforesaid submission pivotal question arises whether imposition of condition tantamounts to a restriction imposed within the purview of Article 19(6) of the Constitution. In our considered opinion the High Court has erred in law in holding that such stipulation could have been imposed only by a statutory law. In our considered opinion, it is not a restriction on the right to carry on medical profession, the medical profession has obligated itself by such conditions by very nature of its professional activity and when the State land is being held which is for the public good with no profit motive, such land is held for the charitable purpose of public good. The charitable purpose would include, as already discussed, the aforesaid obligation of free treatment to the persons of economically weaker strata of the society. It is not a restriction but the very purpose of existence of medical profession and very purpose of policy/Rules to grant land to institutions without public actions that would have fetched market rate and does not amount to putting any fetter to practice the medical profession or to carry on occupation. On due consideration of the very object of the medical activity its professional and other obligations for the proper treatment of the persons of economically weaker sections of the society deprived of the fruits of development. The benefits of various welfare schemes hardly reach to them in spite of efforts made, economic disparity is writ large and persists. They cannot afford such treatment and thus in lieu of holding land of Government at concessional rate and enjoying huge occupancy benefits inter alia for aforesaid reasons, the hospitals can be asked to impart free treatment as envisaged in the Government order.The hospitals nowadays have fivestar facilities. The entire concept has been changed to make commercial gains. They are becoming unaffordable. The charges are phenomenally high, and at times unrealistic to the service provided. The dark side of such hospitals can be illuminated only by sharing obligation towards economically weaker sections of the society. It would be almost inhuman to deny proper treatment to the poor owing to economic condition and when hospitals claim that they are doing charity at their own level, we find impugned order dated 2.2.2012 is simply an expression to the aforesaid activity which has been given a channelized form.We are of the considered opinion that there was no necessity of enacting a law, as the policy/rules under which the land has been obtained, the hospitals were obligated to render free treatment as the land was allotted to them for earning no profit and held in trustfor public good. Similar is the provision in the rules of 1981 and apart from that the regulations framed by the Medical Council of India also enjoins upon the medical profession to extend such help and in view of the object of the hospitals, trust, and missionaries it is apparent that there was no necessity of any legislation and the Government was competent to enforce in the circumstances, the contractual and statutory liability and on common law basis.The right to carry on the medical profession has not been restricted, however, what was enjoined upon the respondent hospitals to perform otherwise had been given a concrete shape. Thus, it was permissible to issue circular in the exercise of power under Article 162 of the Constitution. It was urged on behalf of hospitals that they were doing a charitable work at their own, thus, it could not be said to be a restriction within the meaning contemplated under Article 19(6) for which a law was required. No new restriction has been imposed for the first time under Article 19(6) of the Constitution of India, as such in our opinion, there was no necessity for enacting a law, such guidelines could be issued under the executive powers.This Court has observed that above economic justice means abolition of such economic conditions which remove inequality between man and man. In our opinion, there has to be positive action for that equality.In our considered opinion such stipulation for free treatment does not amount to restriction under Article 19(6) on the right enshrined under Article 19(1)(g) and even otherwise it was not necessary to enact a statutory provision by the Government in view of existing liability as per policy/rules/statutory provisions as to ethical standards and other statutory provisions in force.The High Court of Delhi also referred to Rules 5 and 21 of the Delhi Development Authority (Disposal of Developed Nazul Land) Rules, 1981. Rule 5 deals with rules of premium for allotment of Nazul land to certain public institutions, whereas Rule 20 deals with allotment to certain public institutions. Rule 5 provides that the Authority may allot Nazul land to schools, colleges, universities, hospitals, other social charitable institutions, religious, political, semipolitical organizations and local bodies for remunerative, semi remunerative or unremunerative purposes at the premia and ground rent in force immediately before the coming into force of these rules, or at such rates as the Central Government may determine from time to time. Rule 20 (a) (i) provides that no allotment of Nazul land to public institution, referred to in Rule 5 shall be made unless, according to the aims and objects of public institution, it directly sub serves the interests of the population of the Union Territory of Delhi. Rule 20 (c) provides that public institution should be a nonprofit making character. There is no such stipulation running contrary to the aforesaid provisions.The High Court held that it was not open to hospitals to wriggle out of their contractual, statutory and public law obligation. There was no scope for reading and confining the rights and obligations of the parties in isolation.The Government of NCT of Delhi accepted the recommendation of the Justice Qureshi Committee as reasonable and took the decision that it should be enforced. However, Union of India stated that the matter was under its consideration and they had not taken a final view in the matter. At the relevant time, the similar view was expressed by Maninder Acharya Committee that the condition of free treatment of poor strata of society should be reasonable, but its implementation should be strictly enforced and in the event of default, strict action should be taken.The aforesaid decision in Social Jurists (supra) was questioned before this Court by way of several special leave petitions filed by Dharamshila Hospital & Research Centre etc. and Sundar Lal Jain Charitable Hospital also challenged the abovesaid decision by preferring SLP (C) No.5630 of 2008. The said special leave petitions were dismissed by reasoned order dated 01.09.2011.Thereafter, the Government of India on 2.2.2012, issued the impugned order with respect to the policy of free patient treatment to indigent/poor persons of Delhi to be followed by the private hospitals allotted land by Land & Development Office on concessionalIt was also submitted that decision in Social Jurists (supra) is not at all applicable to the Trust. We have examined the case thoroughly and we find that condition of free treatment had been the primary objective, which would be applicable to hospitals in question and to all other similarly situated hospitals, whether they were party to the aforesaid decision or not. The decision rendered in Social Jurists (supra) would be applicable to similarly situated institutions having been rendered in the public interest institution and affirmed by this Court by a reasoned order.It is not the case of unilateral imposition of the condition of free treatment on the hospitals. The inquiry was conducted, hospitals were heard and evidence was recorded by Justice Qureshi Committee and thereafter recommendation made in the report had been accepted. The hospitals were required to show cause. Pursuant thereto, the reply had been filed. Thus, the decision cannot be said to be unilateral.It is apparent that before imposing the conditions in lease deeds, a High Level 10Member Committee for hospitals in Delhi was constituted, headed by Mr. Justice A.S. Qureshi regarding the working of the hospitals and nursing homes in Delhi, to review the existing free treatment facilities extended by the charitable and other hospitals who had been allotted land on concessional terms/rates predetermined by the Government, and to suggest suitable policy guidelines for free treatment facilities for needy and deserving patients uniformly in the beneficiary institutions, in particular, to specify the diagnostic, treatment, lodging, surgery, medicines and other facilities that would be given free or partially free; to suggest a proper referral system for the optimum utilization of free treatment by deserving and needy patients; and to suggest a suitable enforcement and monitoring mechanism for the above, including a legal framework. The Committee held various meetings, conducted enquiries, various hospitals were heard including MoolchandKharaiti Ram Hospital. The Government observed that there were resistance and persistent refusal of the management of Moolchand Kharaiti Ram Hospital to send a reply to the questionnaire and to submit the documents which they were required to submit at the end of the enquiry. The first visit made to Moolchand Kharaiti Ram Hospital was on 16.1.2001 and the second on 21.3.2001. Various other hospitals were also visited. The Committee observed that there was no legal, social or moral justification for allowing such moneymaking commercial concerns. The land was allotted for a charitable purpose and to do charitable service which has now been totally replaced by exploitative commercial hospitals.With respect to Moolchand Kharaiti Ram Hospital, Justice Qureshi Committee has discussed the matter in extensive details. It has been observed that initially the Trust was truly charitable. It was granted 9 acres of prime land situated on the Ring Road in Lajpat Nagar in South Delhi. Initially the hospital continued to serve as a free Ayurvedic hospital for patients in OPD and IPD sections. It also carried on the research for Ayurvedic medicines. Later on the trustees decided to introduce Allopathic treatment also. The Allopathic Section has been upgraded with airconditioned deluxe and superdeluxe rooms which are called Wards. Presently the Allopathic section covers about 90% of the hospital activities and the Ayurvedic section is reduced to about 10%. There is only nominal Ayurvedic treatment of patients in OPD and IPD, which had originally 4 wards. Now it is reduced to only one ward in which there are very few patients. There were only 4 or 5 Ayurvedic patients in the ward on 21.3.2001. The manufacturing of Ayurvedic medicines is also considerably reduced. After noting in detail the statements of various witnesses working in the hospital, and after analysing them, the Committee has found that the Moolchand Kharaiti RamHospital has acted not only contrary to the wishes of its founder but also violated the terms and conditions regarding free treatment to the poor, openly both in letter and spirit. The management of hospital does not consider it to be a charitable hospital at all. The land would not have been allotted to Trust if it was not charitable. Be that as it may, nonetheless the land has been allotted for charitable purpose to the hospital. Their stand was that the word poor was not defined in the lease deed or anywhere else, was adversely commented upon. Some adverse comments were also made with respect to the interpolation in the Will. We are not considering the aforesaid question of interpolation in the instant matter as nothing turns on it. The Committee observed that if the hospital was not saved immediately it may be too late because it appears to be in the process of being sold out. The facts are writ large along with the statements of witnesses recorded in the course of the inquiry. In addition, the High Court of Delhi during the course of hearing of Social Jurists (supra) has also constituted a Committee headed by Shri N.N. Khanna and also considered the same and thereafter the decision had been rendered in Social Jurists case (supra).Reliance has been placed on behalf of Moolchand Kharaiti Ram Trust to the decision rendered in Asit Kumar Kar v. State of West Bengal & Ors., (2009) 2 SCC 703 , wherein it was observed that no adverse orders to be passed against a party without hearing him. On this account, it was contended that the Court could not have passed the adverse order against the hospitals, who were not heard in the matter of Social Jurists (supra). It was also contended that a contempt petition was filed by Union of India, which was dismissedon the ground that the hospitals in question were not impleaded as a party to the writ petition, that does not help the hospitals in question. We have examined the matter on merits in the present case afresh unfettered by previous decision and have found Governments order dated 2.2.2012, to be absolutely proper.Reliance has also been placed onDelhi Development Authority & Anr. v. Joint Action Committee Allottee of SFS Flats & Ors., (2008) 2 SCC 672 , wherein it was held that novation of contract cannot be done unilaterally, and the new terms must be brought to the knowledge of the offeree and his acceptance thereto must be obtained. It was further observed that when a contract has been worked out, a fresh liability cannot be thrust upon a contracting party and it was beyond the scope of the original terms contained in the offer letter and the allotment letter, in which the imposition of extra charges was not contemplated. In factual matrix being different decision has no application to the instant case as it was stipulated right from the beginning in the policy/rules that land to such institution has been given for charitable purposes of hospitality, research etc. at concessional rates and/or with nonprofit motive. It is not the case of new obligation being fastened at the time of renewal of the contract.	1	31,491	5,887	### 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: apparent that before imposing the conditions in lease deeds, a High Level 10Member Committee for hospitals in Delhi was constituted, headed by Mr. Justice A.S. Qureshi regarding the working of the hospitals and nursing homes in Delhi, to review the existing free treatment facilities extended by the charitable and other hospitals who had been allotted land on concessional terms/rates predetermined by the Government, and to suggest suitable policy guidelines for free treatment facilities for needy and deserving patients uniformly in the beneficiary institutions, in particular, to specify the diagnostic, treatment, lodging, surgery, medicines and other facilities that would be given free or partially free; to suggest a proper referral system for the optimum utilization of free treatment by deserving and needy patients; and to suggest a suitable enforcement and monitoring mechanism for the above, including a legal framework. The Committee held various meetings, conducted enquiries, various hospitals were heard including MoolchandKharaiti Ram Hospital. The Government observed that there were resistance and persistent refusal of the management of Moolchand Kharaiti Ram Hospital to send a reply to the questionnaire and to submit the documents which they were required to submit at the end of the enquiry. The first visit made to Moolchand Kharaiti Ram Hospital was on 16.1.2001 and the second on 21.3.2001. Various other hospitals were also visited. The Committee observed that there was no legal, social or moral justification for allowing such moneymaking commercial concerns. The land was allotted for a charitable purpose and to do charitable service which has now been totally replaced by exploitative commercial hospitals. 106. With respect to Moolchand Kharaiti Ram Hospital, Justice Qureshi Committee has discussed the matter in extensive details. It has been observed that initially the Trust was truly charitable. It was granted 9 acres of prime land situated on the Ring Road in Lajpat Nagar in South Delhi. Initially the hospital continued to serve as a free Ayurvedic hospital for patients in OPD and IPD sections. It also carried on the research for Ayurvedic medicines. Later on the trustees decided to introduce Allopathic treatment also. The Allopathic Section has been upgraded with airconditioned deluxe and superdeluxe rooms which are called Wards. Presently the Allopathic section covers about 90% of the hospital activities and the Ayurvedic section is reduced to about 10%. There is only nominal Ayurvedic treatment of patients in OPD and IPD, which had originally 4 wards. Now it is reduced to only one ward in which there are very few patients. There were only 4 or 5 Ayurvedic patients in the ward on 21.3.2001. The manufacturing of Ayurvedic medicines is also considerably reduced. After noting in detail the statements of various witnesses working in the hospital, and after analysing them, the Committee has found that the Moolchand Kharaiti RamHospital has acted not only contrary to the wishes of its founder but also violated the terms and conditions regarding free treatment to the poor, openly both in letter and spirit. The management of hospital does not consider it to be a charitable hospital at all. The land would not have been allotted to Trust if it was not charitable. Be that as it may, nonetheless the land has been allotted for charitable purpose to the hospital. Their stand was that the word poor was not defined in the lease deed or anywhere else, was adversely commented upon. Some adverse comments were also made with respect to the interpolation in the Will. We are not considering the aforesaid question of interpolation in the instant matter as nothing turns on it. The Committee observed that if the hospital was not saved immediately it may be too late because it appears to be in the process of being sold out. The facts are writ large along with the statements of witnesses recorded in the course of the inquiry. In addition, the High Court of Delhi during the course of hearing of Social Jurists (supra) has also constituted a Committee headed by Shri N.N. Khanna and also considered the same and thereafter the decision had been rendered in Social Jurists case (supra). 107. Reliance has been placed on behalf of Moolchand Kharaiti Ram Trust to the decision rendered in Asit Kumar Kar v. State of West Bengal & Ors., (2009) 2 SCC 703 , wherein it was observed that no adverse orders to be passed against a party without hearing him. On this account, it was contended that the Court could not have passed the adverse order against the hospitals, who were not heard in the matter of Social Jurists (supra). It was also contended that a contempt petition was filed by Union of India, which was dismissedon the ground that the hospitals in question were not impleaded as a party to the writ petition, that does not help the hospitals in question. We have examined the matter on merits in the present case afresh unfettered by previous decision and have found Governments order dated 2.2.2012, to be absolutely proper. 108. Reliance has also been placed on Delhi Development Authority & Anr. v. Joint Action Committee Allottee of SFS Flats & Ors., (2008) 2 SCC 672 , wherein it was held that novation of contract cannot be done unilaterally, and the new terms must be brought to the knowledge of the offeree and his acceptance thereto must be obtained. It was further observed that when a contract has been worked out, a fresh liability cannot be thrust upon a contracting party and it was beyond the scope of the original terms contained in the offer letter and the allotment letter, in which the imposition of extra charges was not contemplated. In factual matrix being different decision has no application to the instant case as it was stipulated right from the beginning in the policy/rules that land to such institution has been given for charitable purposes of hospitality, research etc. at concessional rates and/or with nonprofit motive. It is not the case of new obligation being fastened at the time of renewal of the contract. ### Response: 1 ### Explanation: cannot be said to be unilateral.It is apparent that before imposing the conditions in lease deeds, a High Level 10Member Committee for hospitals in Delhi was constituted, headed by Mr. Justice A.S. Qureshi regarding the working of the hospitals and nursing homes in Delhi, to review the existing free treatment facilities extended by the charitable and other hospitals who had been allotted land on concessional terms/rates predetermined by the Government, and to suggest suitable policy guidelines for free treatment facilities for needy and deserving patients uniformly in the beneficiary institutions, in particular, to specify the diagnostic, treatment, lodging, surgery, medicines and other facilities that would be given free or partially free; to suggest a proper referral system for the optimum utilization of free treatment by deserving and needy patients; and to suggest a suitable enforcement and monitoring mechanism for the above, including a legal framework. The Committee held various meetings, conducted enquiries, various hospitals were heard including MoolchandKharaiti Ram Hospital. The Government observed that there were resistance and persistent refusal of the management of Moolchand Kharaiti Ram Hospital to send a reply to the questionnaire and to submit the documents which they were required to submit at the end of the enquiry. The first visit made to Moolchand Kharaiti Ram Hospital was on 16.1.2001 and the second on 21.3.2001. Various other hospitals were also visited. The Committee observed that there was no legal, social or moral justification for allowing such moneymaking commercial concerns. The land was allotted for a charitable purpose and to do charitable service which has now been totally replaced by exploitative commercial hospitals.With respect to Moolchand Kharaiti Ram Hospital, Justice Qureshi Committee has discussed the matter in extensive details. It has been observed that initially the Trust was truly charitable. It was granted 9 acres of prime land situated on the Ring Road in Lajpat Nagar in South Delhi. Initially the hospital continued to serve as a free Ayurvedic hospital for patients in OPD and IPD sections. It also carried on the research for Ayurvedic medicines. Later on the trustees decided to introduce Allopathic treatment also. The Allopathic Section has been upgraded with airconditioned deluxe and superdeluxe rooms which are called Wards. Presently the Allopathic section covers about 90% of the hospital activities and the Ayurvedic section is reduced to about 10%. There is only nominal Ayurvedic treatment of patients in OPD and IPD, which had originally 4 wards. Now it is reduced to only one ward in which there are very few patients. There were only 4 or 5 Ayurvedic patients in the ward on 21.3.2001. The manufacturing of Ayurvedic medicines is also considerably reduced. After noting in detail the statements of various witnesses working in the hospital, and after analysing them, the Committee has found that the Moolchand Kharaiti RamHospital has acted not only contrary to the wishes of its founder but also violated the terms and conditions regarding free treatment to the poor, openly both in letter and spirit. The management of hospital does not consider it to be a charitable hospital at all. The land would not have been allotted to Trust if it was not charitable. Be that as it may, nonetheless the land has been allotted for charitable purpose to the hospital. Their stand was that the word poor was not defined in the lease deed or anywhere else, was adversely commented upon. Some adverse comments were also made with respect to the interpolation in the Will. We are not considering the aforesaid question of interpolation in the instant matter as nothing turns on it. The Committee observed that if the hospital was not saved immediately it may be too late because it appears to be in the process of being sold out. The facts are writ large along with the statements of witnesses recorded in the course of the inquiry. In addition, the High Court of Delhi during the course of hearing of Social Jurists (supra) has also constituted a Committee headed by Shri N.N. Khanna and also considered the same and thereafter the decision had been rendered in Social Jurists case (supra).Reliance has been placed on behalf of Moolchand Kharaiti Ram Trust to the decision rendered in Asit Kumar Kar v. State of West Bengal & Ors., (2009) 2 SCC 703 , wherein it was observed that no adverse orders to be passed against a party without hearing him. On this account, it was contended that the Court could not have passed the adverse order against the hospitals, who were not heard in the matter of Social Jurists (supra). It was also contended that a contempt petition was filed by Union of India, which was dismissedon the ground that the hospitals in question were not impleaded as a party to the writ petition, that does not help the hospitals in question. We have examined the matter on merits in the present case afresh unfettered by previous decision and have found Governments order dated 2.2.2012, to be absolutely proper.Reliance has also been placed onDelhi Development Authority & Anr. v. Joint Action Committee Allottee of SFS Flats & Ors., (2008) 2 SCC 672 , wherein it was held that novation of contract cannot be done unilaterally, and the new terms must be brought to the knowledge of the offeree and his acceptance thereto must be obtained. It was further observed that when a contract has been worked out, a fresh liability cannot be thrust upon a contracting party and it was beyond the scope of the original terms contained in the offer letter and the allotment letter, in which the imposition of extra charges was not contemplated. In factual matrix being different decision has no application to the instant case as it was stipulated right from the beginning in the policy/rules that land to such institution has been given for charitable purposes of hospitality, research etc. at concessional rates and/or with nonprofit motive. It is not the case of new obligation being fastened at the time of renewal of the contract.
UNION OF INDIA (UOI) AND OTHERS Vs. MANGAL TEXTILE MILLS (I) P. LTD. AND OTHERS	his factory, on the dates mentioned above, in the prescribed format duly certified by a Chartered Accountant or Cost Accountant. 4. Accordingly, in order to avail benefit of the said special procedure, the Assessee filed an application with the Commissioner in the prescribed form, declaring a total investment in the plant and machinery as on 1st March, 2001 and 1st May, 2001 at Rs. 2,64,56,076/-. The requisite certificate by a Chartered Accountant was also submitted. 5. The Commissioner got the application verified through the jurisdictional Deputy Commissioner, who found that the original value of investment in plant and machinery as on 1st March, 2001 was Rs. 3,09,63,727/-. Certain other discrepancies were also detected in the valuation report. Finally, after affording an opportunity of hearing to the Assessee, the Commissioner came to the conclusion that: (i) since the Assessee was having two Open Air Stenters which were being used for heat setting and drying of fabrics, they are excluded from the purview of the Special Procedure in terms of Explanation-II to Rule 96ZNA and (ii) the original value of investment by the Assessee as on 1st March, 2001/1st May, 2001 was Rs. 3,09,63,727/-, which was in excess of the specified ceiling limit of three crore rupees. Consequently, Assessees application was rejected. Being aggrieved, the Assessee preferred a writ petition in the High Court under Article 226 of the Constitution, questioning the correctness of the order passed by the Commissioner. 6. As stated above, the High Court has set aside the order passed by the Commissioner inter alia, on the ground that the Revenue, the Appellants herein, had failed to displace the opinion of Assessees Chartered Accountant by bringing on record opinion of another expert. Hence these appeals. 7. Learned Counsel appearing for the Appellants submits that since the issues, subject matter of writ petition, not only involved the valuation of plant and machinery, even the question of disclosure or non-inclusion of some of the machines like Stenters etc. was also required to be gone into for determining whether the Assessee was entitled to the relief claimed and these being questions of fact, the High Court erred in exercising its jurisdiction under Article 226 of the Constitution. According to the Learned Counsel, since an alternative statutory remedy by way of appeal before the Customs Excise & Service Tax Appellate Tribunal (for short the CESTAT) was available to the Assessee, the writ petition should have been dismissed at the threshold. 8. We find substance in the contention of Learned Counsel for the Appellants. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution is plenary in nature and cannot be curtailed by other provision of the Constitution or a Statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution. 9. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertaining a writ petition but is a rule of discretion to be exercised depending on the facts of each case. On this aspect, the following observations by the Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, , which still holds the field, are quite apposite: The passages in the judgment of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the Petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court. 10. In Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others, , enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, this Court observed thus: ...that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 11. We are of the opinion that on the facts of the present case, exercise of writ jurisdiction by the High Court was unwarranted. As rightly pointed out by Learned Counsel appearing on behalf of the Revenue, the controversy in the instant case centred around valuation of plant and machinery as also inclusion or non-inclusion of certain machines, in use or not or in working condition or not, which are primarily questions of fact. 12. Faced with the situation, Mr. Bagaria, learned senior counsel appearing on behalf of the Assessees, prays that the Respondents may be permitted to file appeals before the CESTAT against the aforenoted orders passed by the Commissioner.	1[ds]8. We find substance in the contention of Learned Counsel for the Appellants. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution is plenary in nature and cannot be curtailed by other provision of the Constitution or a Statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution.9. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertaining a writ petition but is a rule of discretion to be exercised depending on the facts of each case. On this aspect, the following observations by the Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, , which still holds the field, are quite apposite:The passages in the judgment of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the Petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.11. We are of the opinion that on the facts of the present case, exercise of writ jurisdiction by the High Court was unwarranted. As rightly pointed out by Learned Counsel appearing on behalf of the Revenue, the controversy in the instant case centred around valuation of plant and machinery as also inclusion or non-inclusion of certain machines, in use or not or in working condition or not, which are primarily questions of fact.	1	1,491	459	### 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: his factory, on the dates mentioned above, in the prescribed format duly certified by a Chartered Accountant or Cost Accountant. 4. Accordingly, in order to avail benefit of the said special procedure, the Assessee filed an application with the Commissioner in the prescribed form, declaring a total investment in the plant and machinery as on 1st March, 2001 and 1st May, 2001 at Rs. 2,64,56,076/-. The requisite certificate by a Chartered Accountant was also submitted. 5. The Commissioner got the application verified through the jurisdictional Deputy Commissioner, who found that the original value of investment in plant and machinery as on 1st March, 2001 was Rs. 3,09,63,727/-. Certain other discrepancies were also detected in the valuation report. Finally, after affording an opportunity of hearing to the Assessee, the Commissioner came to the conclusion that: (i) since the Assessee was having two Open Air Stenters which were being used for heat setting and drying of fabrics, they are excluded from the purview of the Special Procedure in terms of Explanation-II to Rule 96ZNA and (ii) the original value of investment by the Assessee as on 1st March, 2001/1st May, 2001 was Rs. 3,09,63,727/-, which was in excess of the specified ceiling limit of three crore rupees. Consequently, Assessees application was rejected. Being aggrieved, the Assessee preferred a writ petition in the High Court under Article 226 of the Constitution, questioning the correctness of the order passed by the Commissioner. 6. As stated above, the High Court has set aside the order passed by the Commissioner inter alia, on the ground that the Revenue, the Appellants herein, had failed to displace the opinion of Assessees Chartered Accountant by bringing on record opinion of another expert. Hence these appeals. 7. Learned Counsel appearing for the Appellants submits that since the issues, subject matter of writ petition, not only involved the valuation of plant and machinery, even the question of disclosure or non-inclusion of some of the machines like Stenters etc. was also required to be gone into for determining whether the Assessee was entitled to the relief claimed and these being questions of fact, the High Court erred in exercising its jurisdiction under Article 226 of the Constitution. According to the Learned Counsel, since an alternative statutory remedy by way of appeal before the Customs Excise & Service Tax Appellate Tribunal (for short the CESTAT) was available to the Assessee, the writ petition should have been dismissed at the threshold. 8. We find substance in the contention of Learned Counsel for the Appellants. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution is plenary in nature and cannot be curtailed by other provision of the Constitution or a Statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution. 9. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertaining a writ petition but is a rule of discretion to be exercised depending on the facts of each case. On this aspect, the following observations by the Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, , which still holds the field, are quite apposite: The passages in the judgment of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the Petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court. 10. In Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others, , enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, this Court observed thus: ...that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 11. We are of the opinion that on the facts of the present case, exercise of writ jurisdiction by the High Court was unwarranted. As rightly pointed out by Learned Counsel appearing on behalf of the Revenue, the controversy in the instant case centred around valuation of plant and machinery as also inclusion or non-inclusion of certain machines, in use or not or in working condition or not, which are primarily questions of fact. 12. Faced with the situation, Mr. Bagaria, learned senior counsel appearing on behalf of the Assessees, prays that the Respondents may be permitted to file appeals before the CESTAT against the aforenoted orders passed by the Commissioner. ### Response: 1 ### Explanation: 8. We find substance in the contention of Learned Counsel for the Appellants. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution is plenary in nature and cannot be curtailed by other provision of the Constitution or a Statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution.9. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertaining a writ petition but is a rule of discretion to be exercised depending on the facts of each case. On this aspect, the following observations by the Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, , which still holds the field, are quite apposite:The passages in the judgment of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the Petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.11. We are of the opinion that on the facts of the present case, exercise of writ jurisdiction by the High Court was unwarranted. As rightly pointed out by Learned Counsel appearing on behalf of the Revenue, the controversy in the instant case centred around valuation of plant and machinery as also inclusion or non-inclusion of certain machines, in use or not or in working condition or not, which are primarily questions of fact.
Common Cause & Others Vs. Union of India & Others	funds, taking into consideration their requirements of health, education, communication, recreation, livelihood and cultural lifestyle as indicated in this Courts judgment in T.N. Godavaraman Thirumulpad v. Union of India & Others 2008(2) R.C.R.(Civil) 9 : (2008) 2 SCC 222. " 214. Subsequently on 28th April, 2014 this Court accepted the scheme prepared by the Government of Odisha in consultation with the Central Empowered Committee. The scheme was captioned "Setting up of Special Purpose Vehicle (SPV) for undertaking specific tribal welfare and area development works so as to ensure inclusive growth of mineral bearing areas in the State of Odisha". This Court then passed the following order on 28th April, 2014: "Pursuant to orders passed by this Court on 7th [27th] January, 2014, the Government of Odisha in consultation with the Central Empowered Committee has prepared a Scheme captioned "Setting up of Special Purpose Vehicle (SPV) for undertaking specific tribal welfare and area development works so as to ensure inclusive growth of mineral bearing areas in the State of Odisha. The Central Empowered Committee has submitted a Report dated 9th April, 2014 and has recommended that the Scheme prepared by the Government of Odisha may be approved by this Court and the ad hoc CAMPA may be directed to transfer to the SPV 50 per cent of the additional amount of the NPV recovered from the mining lease holders by the State of Odisha for undertaking tribal welfare and development works. We have perused the Scheme prepared by the State Government of Odisha and the recommendation of the Central Empowered Committee and we approve the Scheme and direct as hoc CAMPA to transfer to the SPV 50 per cent of the additional amount of the NPV within a month for undertaking tribal welfare development works. The Interlocutory applications be listed in the month of July, 2014." 215. Some of the salient features of the Scheme are as follows: 5 The SPV will undertake specific tribal welfare and area development works so as to ensure inclusive growth of the mineral bearing areas. These will include works/projects related to livelihood intervention, health, water supply and sanitation, education, special programmes for development of women and children, entrepreneurial development of local people, communication and infrastructure projects and agro silvi-horticultural based livelihood projects through identified agencies/Government Departments. While taking up such projects/works a bottom up planning and participatory approach will be followed. 9 The general superintendence of the affairs will be vested in its Board of Directors including (a) to receive grants/funds and have custody of the same, (b) to approve Annual Budget Estimates and sanction the expenditure within the limits of the Budget, (c) to enter into any agreement for and on behalf of the SPV; (d) institute and defend legal proceedings (e) to consider and approve the Annual Report, audit report, annual accounts and the financial estimates of the SPV, (f) to prescribe procedure to be followed for implementation of the projects/works and for maintenance of accounts and (g) to undertake any other ancillary activities/works for the furtherance of the objective of the SPV. a The funds made available to the SPV will be utilized only for the purpose for which the SPV has been set up and will not be used for any other purpose or transferred to any other authority; and b The composition of the Board of Directors of the SPV, as provided in the present scheme, will be modified only after obtaining permission from the Honble Supreme Court. 10. The accounts of the SPV will be internally audited annually by the Chartered Accountant firms empanelled with the CAG/Principal Accountant General, Odisha. The audit of the accounts of the SPV, receipts as well as expenditure, will be done annually by the office of the Principal Accountant General, Odisha. 11. The State Government has, earlier, registered a Society, namely, Society for Inclusive Development of Mineral Bearing Areas of Odisha, which has been registered vide registration number 23354/74 of 2011-12 under the Societies Registration Act, 1860 to act as SPV for the purpose. It is now proposed to wind up the said Society and to replace it with `Odisha Mineral Bearing Areas Development Corporation to be set up under section 25 of the Companies Act. 216. It appears that the scheme has been implemented with the Chief Secretary of Odisha as the ex-officio Chairman of the SPV. There are several other members and directors of the SPV. There is no further information available with this Court with regard to the implementation of the scheme. 217. During the course of hearing, some of the mining lease holders represented by Shri Gopal Subramanium, Senior Advocate offered to deposit and in fact did deposit an amount of Rs. 237.05 crores for utilization by the SPV for carrying out welfare works and activities in the districts of Keonjhar, Sundergarh and Mayurbhanj in Odisha. The deposit was made by way of a cheque on 6th April, 2017 and was without prejudice to the rights and contentions of lessees. In terms of our directions, the Registry has encashed the cheque and kept the amount in a short term fixed deposit. We have mentioned this only to point out that there are huge amounts available with the Special Purpose Vehicle for tribal welfare and area development works and we have absolutely no idea about the utilization of the funds or whether they are in fact being used for tribal welfare and area development works. We also expect that as a result of the orders that we are passing today, very large amounts will again be made available to the State of Odisha. These amounts should also be kept with the Special Purpose Vehicle. 218. To ensure that the amounts are utilized for the benefit of tribals in the affected districts and for area development works, we would like the Chief Secretary of Odisha to file an affidavit stating the work done as well as providing the audited accounts of the receipt and expenditure of the SPV from its inception. Conclusion	0[ds]20. Insofar as the first issue is concerned, it is common ground that that issue has been fully, conclusively and exhaustively dealt with by this Court by a judgment and order dated 4th April, 2016 (Common Cause v. Union of India), 2016(3) R.C.R.(Civil) 518 : 2016(3) Recent Apex Judgments (R.A.J.) 555 : (2016) 11 SCC 455. Therefore, the first issue does not survive for consideration by us21. As far as the remaining three issues are concerned, these overlap with topics I, II and V dealt with by the CEC22. We may mention that submissions were also made on topics III and IV identified by the CEC, that is, illegal mining outside the sanctioned mining lease areas and mining leases acquired in violation of Section 6 of the MMDR Act22. We may mention that submissions were also made on topics III and IV identified by the CEC, that is, illegal mining outside the sanctioned mining lease areas and mining leases acquired in violation of Section 6 of the MMDR Act23. As far as topics VI and VII identified by the CEC are concerned, we would like to hear the parties in detail in respect of these issues24. No challenges or submissions were made on topics VIII, IX and X and therefore we accept the report of the CEC on these topics26. In terms of rupees, according to the CEC the total notional value of minerals produced without an environmental clearance or in excess of the environmental clearance, at the weighted average price of minerals as proposed by the Indian Bureau of Mines comes to about Rs. 17091.24 crores for iron ore and about Rs. 484.92 crores for manganese ore making a total of Rs. 17,576.16 crores. Again, this does not include mining without forest clearance. It is for this reason that we have referred to the megabucks and rapacious miningWe are not in agreement with learned counsel for the mining lease holders32. The first report given by the Commission was a general, overall perspective on the subject while the second report went into specific details of several mining lease holdersbut we are not concerned with those specifics. Therefore, whether notices were or were not issued to the lease holders who were the subject matter of discussion in the second report is of no consequence33. What we are really perturbed about is the facts stated by the Commission in the first report. So far as this is concerned, we are of the view that no irregularity or illegality has been committed so as to vitiate the first report. Notwithstanding this, we are not relying upon any of the facts determined by the Commission for the purposes of our judgment and order43. It is therefore abundantly clear that the first report is generally a limited fact finding enquiry on the basis of information supplied by the mining lease holders. Therefore, there is absolutely no question of any notice being issued to any mining lease holder under Section 8B or the right of cross examination being granted to any mining lease holder under Section 8C of the Commissions of Inquiry Act, 1952. We are satisfied that the Commission made adequate efforts to collect the facts and this collation in the first report was possible with the assistance of the mining lease holders and their learned counsel and representatives as well as the government authorities and FIMI and FICCI. Under these circumstances, no lease holder can seriously contend that the procedure adopted by the Commission in collecting facts was either irregular or not in accordance with law. As mentioned above, any mining lease holder who wanted to be heard was given an opportunity of being heard and was fully aware of what the Commission was attempting to achieve and if any particular mining lease holder chose not to associate with it, it was at his or her own peril. Lack of knowledge of the proceedings before the Commission cannot be appreciated and we are quite satisfied that all the mining lease holders were fully aware of what was going on, if not personally then certainly through their list of learned counsel running into 18 pages or their representatives individually or their Federation45. In the present petitions before us, there is no challenge to the reports of the Justice Shah Commission. However, we propose (as in Goa Foundation) to confine ourselves to some limited facts adverted to by the CEC in its final report. We do not propose to base any of our conclusions on the reports of the Commission50. We have adverted to the reports of the Commission, without relying on them, only to highlight the gravity of the situation and nothing more. The gravity of the situation is also apparent from the report of the CEC and the Commission seems to support it52. We are of opinion that this objection deserves immediate rejection. The subsequent orders passed by this Court have been completely overlooked by learned counsel inasmuch on 21st April, 2014 it was specifically noted by this Court that "CEC, in the meanwhile, will make out a list of such lessees who are operating the leases in violation of the law." Similarly, in the record of proceedings of 16th May, 2014 it was noted that"TheCentral Empowered Committee will give a final report on the Writ Petition by the end of July, 2014........."53. From a reading of the orders and the proceedings that have been held in this regard from time to time, it is quite obvious to us that the jurisdiction of the CEC was not limited and it was expected to give a detailed report on all aspects of illegal mining or mining being carried out without any lawful authority in whatever manner. The initial objection raised on behalf of the lease holders is therefore rejectedWe need say nothing more except that during the course of hearing of the present petitions, some of the conclusions arrived at by the CEC were disputed by the petitioners and even by the learned Amicus and some were supported by learned counsel for the mining lease holders, the learned Attorney General and the learned counsel for the State of Odisha. It is therefore quite clear that in the present cases, the CEC as a fact finding body has functioned impartially and it is only on the conclusions arrived at by the CEC on the basis of the facts gathered that there can be some debate and discussion. Anyone may disagree with the views of the CEC and there is no need to make heavy weather about this at all56. In so far as the report given by the CEC on 16th October, 2014 (the final report) is concerned, before going into the details thereof, we may mention that the CEC has stated that it held meetings with the Chief Secretary and other senior officials of the State of Odisha and others on six dates. It also heard the lease holders and others on seven dates and it held meetings with three of the lease holders that is Jindal Steel and Power Ltd. (JSPL), Sarda Mines Pvt. Limited (SMPL) and Essel Mining and Industries Ltd. (Essel) on 10th September, 2014. The CEC visited the site of the mining lease of SMPL from 4th March, 2014 to 7th March, 2014 and had site visits of a number of other lessees from 12th July, 2014 to 16th July, 201457. As far as the facts collected by the CEC are concerned, there is no dispute with regard to their correctness. The CEC has recorded that there are 187 iron ore and manganese ore mining leases in the State of Odisha. On the basis of the material and information collected, a statement was prepared showingleasewise and yearwisedetails of production of iron ore and manganese ore, permissible production and production without environmental clearance/beyond environmental clearance. The details in this regard have been given as Annexure4 to the final report59. The CEC noted that the Director, Mines and Geology of the Government of Odisha had informed the CEC that each lease holder with the exception of SMPL and JSPL agreed with the reconciled production details. On facts, therefore, there is no dispute with regard to the contents of the report of the CEC, although the conclusions might be disputed. Separately, the CEC has dealt with the facts concerning SMPL and JSPL pursuant to a meeting held with them on 11th September, 201470. Rule 22A of the MCR makes it clear that mining operations shall be undertaken only in accordance with the duly approved mining plan. Therefore, a mining plan is of considerable importance for a mining lease holder and is in essence sacrosanct. A mining scheme and a mining plan are a sine qua non for the grant of a mining lease84. As can be seen from the statutory scheme adverted to above, protection and preservation of the environment is a significant and integral component of a mining plan, a mining lease and mining operations ?? and rightly soThere is no concept of a retrospective EC and its validity effectively starts only from the day it is granted. Thus, the EC takes precedence over the mining lease or to put it conversely, the mining operations under a mining lease are dependent on and `subordinate to the EC88. The Note is significant and from its bare reading it is clear that if any proposed expansion or modernization activity results in an increase in the pollution load, then a prior EC is required. The project proponent should approach the concerned State Pollution Control Board (for short the SPCB) for certifying whether the proposed expansion or modernization is likely to exceed the existing pollution load or not. If the pollution load is not likely to be exceeded, the project proponent will not be required to seek an EC but a copy of such a certificate from the SPCB will require to be submitted to the Impact Assessment Agency which can review the certificate90. The above Note makes it clear that existing mining projects that have a no objection certificate from the SPCB before 27th January, 1994 will not be required to obtain an EC from the Impact Assessment Agency. Of course, this is subject to the substantive portion of EIA 1994 and the 1st Note. However, if the existing mining project does not have a no objection certificate from the SPCB, then an EC will be required under EIA 199492. In our opinion, as far as the first question is concerned, a reading of EIA 1994 read with the 1st Note implies that the base year would need to be the immediately preceding year that is. This is obvious from the opening sentence of the 1st Note, that is, "A project proponent is required to seek environmental clearance for a proposed expansion/modernization activity if the resultant pollution load is to exceed the existing levels." (Emphasis supplied). In its report, the CEC has taken4 as the base year and we see no error in this. Even the MoEF in its circular dated 28th October, 2004 stated with regard to the expansion in production: "If the annual production of any year from5 onwards exceeds the annual production of4 or its preceding years (even if approved by IBM), it would constitute expansion." If that expansion results in an increase in the pollution load over the existing levels, then an EC is mandatedWe cannot accept this submission for a variety of reasons. For one, the existing levels mentioned in the 1st Note clearly have reference to the immediately preceding year and not to a preceding year in a comparatively remote past. Secondly, a very high annual production in any one year is not reflective of a consistent pattern of productionit could very well be a freak year and that freak year certainly cannot be a basic standard or the norm to measure expansion. Then if the interpretation sought to be given is accepted, there would be an absence of consistency and a lack of uniformity with different mining lease holders having different base years. This is hardly conducive to good governance. Finally, EIA 1994 was intended to prevent the existing environmental load from increasing based on the existing data of the immediate past and not data of a few years gone by. We may add that the only exception that could be made in this regard would be if there is no production during. In that event, the immediately preceding year would be relevant and that is the only reasonable interpretation that we see for the use of the words "or its preceding years"94. On the question of the duration or exemption period from an EC in respect of a project that has commenced prior to 27th January, 1994 the substantive portion of EIA 1994 and the 8th Note grant an exemption from the requirement of obtaining an EC if there is no expansion and the existing pollution load is not exceeded. In any event, a no objection certificate from the SPCB is necessary for continuing the mining operations. Consequently, even if any mining lease holder does not have an EC or does not require an EC for continuing mining operations (but has a no objection certificate from the SPCB), the absence of an EC would not have an adverse impact on the mining lease holder unless of course, there was an expansion in the mining operations without any certificate from the SPCB. In addition to this, the validity period (if any) of the certificate from the SPCB is importantwe have not been made aware whether there is such a validity period or not95. The contention of learned counsel for the mining lease holders that EIA 1994 was rather vague, uncertain and ambiguous cannot be accepted. In our opinion, on a composite reading of EIA 1994, it is clear that: (i) A no objection certificate from the SPCB was necessary for continuing mining operations; (ii) An expansion or modernization activity required an EC unless the pollution load was not exceeded beyond the existing levels; (iii) The base year for determining the pollution load and therefore the proposed expansion would be with reference to; (iv) Whether an expansion or modernization would lead to exceeding the existing pollution load or not would require a certificate from the SPCB which could be reviewed by the IAA; (v) New projects require an EC; and (vi) Existing projects do not require an EC unless there is an expansion or modernization for the duration (if any) of the validity of the certificate from the SPCB. We need not say anything more on this subject since the CEC has proceeded to discuss the issue of mining in excess of the EC or in excess of the mining plan only from the year1 onwards. The prior period may, therefore, be ignored and it is the period from1 onwards which is actually relevant for the present discussionHowever, these circulars are apparently not on our record (which goes into 148 volumes) and therefore we cannot make any comment about them. These circulars were mentioned to also contend that even for new units the absence of an EC would not have an adverse impact on them, since the period for obtaining an EC was extended from time to time. A reference was also made to a circular dated 14th May, 2002 which later on became the subject of consideration by this Court in M.C. Mehta v. Union of India, 2004(2) R.C.R.(Civil) 760 : (2004) 12 SCC 118. A reading of the circular of 14th May, 2002 indicates that several units had come up in violation of EIA 1994. The MoEF had taken the view that such units may be permitted to apply for an EC by 31st March, 1999 which was then extended to 30th June, 2001 by circulars dated 5th November, 1998 and 27th December, 2000 respectively100. As mentioned above, these dates and the text of the circulars were emphasized by learned counsel for the lease holders to contend that it was not obligatory for the mining lease holders, who did not expand their mining operations, to obtain an EC and in any event the period for obtaining an EC was extended till 31st March, 2003 with ex post facto approval101. We are not in agreement with the contention of learned counsel for the mining lease holders on the interpretation given to the various circulars for the reasons given above and must also correctly appreciate the decision of this Court in M.C. Mehta105. It is clear from the decision rendered by this Court that EIA 1994 is mandatory in character; that it is applicable to all mining operationsexpansion of production or even increase in lease area, modernization of the extraction process, new mining projects and renewal of mining leases. A mining lease holder is obliged to adhere to the terms and conditions of a mining lease and the applicable laws and the mere fact that a mining plan has been approved does not entitle a mining lease holder to commence mining operations. In M.C. Mehta this Court concluded that EIA 1994 is clearly applicable to the renewal of a mining lease106. Subsequent to the decision in M.C. Mehta two clarificatory circulars were issued by MoEF on 28th October, 2004 and 25th April, 2005. These were adverted to by learned counsel for the mining lease holders but in our opinion they are not relevant except to the extent that they make it explicit that following the decision of this Court in M.C. Mehta, an EC is required to be obtained before the renewal of a mining lease and that the term `expansion would include an increase in production or the lease area or bothWe do not agree. We have referred to various provisions of the MMDR Act and the rules framed thereunder to indicate the statutory importance given to the protection and preservation of the environment. This was also emphasized in M.C. Mehta in which it was also stated that "It does not appear that MOEF intended to legalise the commencement or continuance of mining activity without compliance of stipulations of the notification." It appears to us that the MoEF was, in a sense, cajoling the mining lease holders to comply with the law and EIA 1994 rather than use the stick. That the mining lease holders chose to misconstrue the soft implementation as a licence to not abide by the requirements of the law is unfortunate and was an act of omission or commission by them at their own peril. We cannot attribute insensitivity to the MoEF or even to the mining lease holders to environment protection and preservation, but at the same time we cannot overlook the obligation of everyone to abide by the law. That the MoEF took a soft approach cannot be an escapist excuse fore with the law or EIA 1994We do not see the relevance of this circular (which really dealt with transitional issues) not only for the reason given in M.C. Mehta that circulars cannot override statutory notifications but also because it deals with the procedure for considering applications made under EIA 1994114. All that we need to say on this subject is that there is no confusion, vagueness or uncertainty in the application of EIA 1994 and EIA 2006 insofar as mining operations were commenced on mining leases before 27th January, 1994 (or even thereafter). Post EIA 2006, every mining lease holder having a lease area of 5 hectares or more and undertaking mining operations in respect of major minerals (with which we are concerned) was obliged to get an EC in terms of EIA 2006116. We have already held that a mining plan is subordinate to the EC and in M.C. Mehta it was held by this Court that having an approved mining plan does not imply that a mining lease holder can commence mining operations. That being so, a modified mining plan without a revised or amended EC, is of no consequence. What the contention of learned counsel suggests to us is that under the shield of a modified mining plan, illegal or unlawful mining in the form of mining without an EC, mining byg EIA 1994 and EIA 2006 was being carried out117. The contention apart, the subterfuge of obtaining a modified mining plan to get over the adverse effects of excess and illegal or unlawful production of iron ore or manganese ore was deprecated by the Ministry of Mines of the Government of India. In a letter dated 29th October, 2010 addressed to the Controller General, Indian Bureau of Mines it was pointed out that State Governments had expressed a concern that the Indian Bureau of Mines (IBM) had been modifying mining plans for allowing an increase in production of ore without adequate intimation to the State Governments. A concern was raised that such a revision was often being used to increase production of ore, which is sometimes not accounted for in mining operations in the concerned mining lease. It was made clear that all modifications of mining plans shall be effective prospectively only and earlier instances of irregular mining shall not be regularized through a modification of the mining plan118. In a subsequent letter dated 12th December, 2011 addressed to the Chief Secretary in the Government of Orissa the said Ministry of Mines noted that there were violations of the actual production limit laid down in the mining plan and that the State Government had finally taken steps to curb illegal mining in respect ofn of minerals. There was a reference to suggest (and we take it to be so) that 20% deviation from the mining plan (in terms of) would be reasonable and permissible. However, it appears from a reading of the communication that illegal mining was going on beyond the 20% deviation limit and that appropriate steps were needed to curb these violations120. The above passage indicates that the permissible variation in production as per the Indian Bureau of Mines is +10% but according to the letter dated 12th December, 2011 issued by the Ministry of Mines, the reasonable variation limit could be +20%. It is not clear why there was a shift in the variation, but as rightly pointed out by learned counsel for the petitioners, the fact that in some cases the variation exceeded 20% was a cause for concern which necessitated strict and punitive actionWe were shown various amendments made to Rule 24A of the MCR from time to time particularly the amendments made on 10th February, 1987, 7th January 1993, 27th September, 1994, 17th January, 2000, 18th July, 2014 and 8th October, 2014. In our opinion, none of these are of any consequence, the reason being that for the purposes of renewal of the mining lease, an application is required to be made by the mining lease holders and the deemed renewal clause under Rule 24A of the MCR will come into operation only after an application for renewal is made in Form J in Schedule I of the MCR. Under Rule 26 of the MCR, the State Government may refuse to renew the mining lease. That apart, the position in environmental jurisprudence with regard to the renewal of a mining lease has been made explicit by this Court in M.C. Mehta. Even otherwise, in view of EIA 1994, it is quite clear that the renewal of a mining lease would require a prior EC122. We may also draw attention in this regard to a circular dated 28th October, 2004 issued by the MoEF wherein it was stated that in view of the decision in M.C. Mehta all mining projects of major minerals of more than 5 hectares lease area that had not yet obtained an EC would have to do so at the time of renewal of the leaseWe are not in agreement with learned counsel for the mining leaseholders. Thereis no doubt that the grant of an EC cannot be taken as a mechanical exercise. It can only be granted after due diligence and reasonable care since damage to the environment can have a long term impact. EIA 1994 is therefore very clear that if expansion or modernization of any mining activity exceeds the existing pollution load, a prior EC is necessary and as already held by this Court in M. C. Mehta even for the renewal of a mining lease where there is no expansion or modernization of any activity, a prior EC is necessary. Such importance having been given to an EC, the grant of an ex post facto environmental clearance would be detrimental to the environment and could lead to irreparable degradation of the environment. The concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006. We make it clear that an EC will come into force not earlier than the date of its grant126. As can be seen from the above, there is a difference of opinion between the CEC and the Commission on what is illegal mining or mining without lawful authority and we will give our views on the subject127. According to the lessees a mining operation only outside the mining lease area would constitute `illegal mining making illegal mining lease centric. We are unable to accept this narrow interpretation given by the CEC and relied upon by learned counsel for the mining lease holders128. The simple reason for not accepting this interpretation is that Rule 2(ii a) of the MCR was inserted by a notification dated 26th July, 2012 while we are concerned with an earlier period. That apart, as mentioned above, the holder of a mining lease is required to adhere to the terms of the mining scheme, the mining plan and the mining lease as well as the statutes such as the EPA, the FCA, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. If any mining operation is conducted in violation of any of these requirements, then that mining operation is illegal or unlawful. Any extraction of a mineral through an illegal or unlawful mining operation would become illegally or unlawfully extracted mineral129. It is not, as suggested by learned counsel, that illegal mining is confined only to mining operations outside a leased area. Such an activity is obviously illegal or unlawful mining. Illegal mining takes within its fold excess extraction of a mineral over the permissible limit even within the mining lease area which is held under lawful authority, if that excess extraction is contrary to the mining scheme, the mining plan, the mining lease or a statutory requirement. Even otherwise, it is not possible for us to accept the narrow interpretation sought to be canvassed by learned counsel for the mining lease holders particularly since we are dealing with a natural resource which is intended for the benefit of everyone and not only for the benefit of the mining lease holders133. It is mentioned in the report of the CEC that the Joint Survey for each of the 39 mining leases is technically sound and reliable. However, in respect of some of the leases, it would be desirable for the State Government to take another look at the results of the field survey. Unfortunately, the CEC has not identified these mining leases that require another look. Be that as it may, the fact is that a joint survey has not been conducted in respect of 43 mining leases134. We are of the view that for completing the record and taking the report of the CEC to its logical conclusion, it would be appropriate if a fresh Joint Survey is conducted by concerned officers of the Government of Odisha from the Revenue Department, the Forest Department, the Mining Department and any other department that may be deemed necessary. The Forest Survey of India, the MoEF, the Indian Bureau of Mines and the Geological Survey of India should also be associated in the Joint Survey. In our opinion, it would also be appropriate if the CEC is also associated in the Joint Survey and the best and latest technology should be made use of including satellite imagery and thereafter a report is submitted in this Court on or before 31st December, 2017 after hearing the 82 lessees identified by the CommissionWhile it is so, this submission must be tempered and appreciated in the proper context. A mining plan is valid for a period of five years but there could be a 20% variation in extraction over and above the mining plan. This is the maximum that is stated to be reasonably permissible according to the Ministry of Mines. In terms of Rule 22(5) of the MCR a mining plan shall incorporate a tentative scheme of mining and annual program and plan for excavation from year to year for five years. At best, there could be a variation in extraction of 20% in each given year but this would be subject to the overall mining plan limit of a variation of 20% over five years. What this means is that a mining lease holder cannot extract the five year quantity (with a variation of 20%) in one or two years only. The extraction has to be staggered and continued over a period of five years. If any other interpretation is given, it would lead to an absurd situation where a mining lease holder could extract the entire permissible quantity under the mining plan plus 20% in one year and extract miniscule amounts over the remaining four years, and this could be done without any reference to the EC. The submission of learned counsel in this regard simply cannot be accepted136. In the letter dated 12th December, 2011 sent by the Secretary in the Ministry of Mines of the Government of India to the Chief Secretary of the Government of Odisha (adverted to above) concerning violation of annual production limit laid down in the approved mining plan, it was stated, inter alia, that an analysis of production and violations in 104 mining leases for bulk minerals in the last ten years was undertaken by the Indian Bureau of Mines. It was noted that in 71 cases there was excess ore produced beyond the reasonable variation limit of 20%. It was noted that this was partly due to the failure of the State machinery to restrict the movement of minerals137. In a further letter dated 5th September, 2012 it was reiterated that any violation of the mining plan or the mining scheme noticed by the State Government should be immediately brought to the notice of the Indian Bureau of Mines to initiate suitable action. It was reiterated that transit passes to such mines should not be issued by the State Government so as to stop any additional outgo. It was added: "Needless to say any revision on the limits of production is subjected to statutory clearances under Environment and Forest laws. Having said that, the State Mining and Geology officials should not also lose focus on taking stringent action against any instances of illegal mining, undertaken outside the leased area, and passed off as excess production." It is quite clear from the correspondence placed before us that as far as the Union of India is concerned, any violation of the requirements of the law has to be firmly dealt with139. All that we need say for the present is that the interpretation given in the aforesaid letter to Section 21(5) of the MMDR Act is not fully correct. While mining in excess of permissible limits under the mining plan or the EC or FC on leased area may not amount to mining on land occupied without lawful authority, it would certainly amount to illegal or unlawful mining or mining without authority of law149. We are in agreement with the view expressed by the learned Attorney General and Shri Dwivedi as also the view expressed in Karnataka Rare Earth. The decision in Khemka & Co. is not at all apposite. There is no ambiguity in Section 21(5) of the MMDR Act or in its application. We are also of opinion that though Section 21(1) of the MMDR Act might be in the realm of criminal liability, Section 21(5) of the MMDR Act is certainly not within that realm150. In our opinion, Section 21(5) of the MMDR Act is applicable when any person raises, without any lawful authority, any mineral from any land. In that event, the State Government is entitled to recover from such person the mineral so raised or where the mineral has already been disposed of, the price thereof as compensation. The words `any land are not confined to the mining lease area. As far as the mining lease area is concerned, extraction of a mineral over and above what is permissible under the mining plan or under the EC undoubtedly attracts the provisions of Section 21(5) of the MMDR Act being extraction without lawful authority. It would also attract Section 21(1) of the MMDR Act. In any event, Section 21(5) of the Act is certainly attracted and is not limited to a violation committed by a person only outside the mining lease areait includes a violation committed even within the mining lease area. This is also because the MMDR Act is intended, among other things, to penalize illegal or unlawful mining on any land including mining lease land and also preserve and protect the environment. Action under the EPA or the MCR could be the primary action required to be taken with reference to the MCR and Rule 2(ii a) thereof read with the Explanation but that cannot preclude compensation to the State under Section 21(5) of the MMDR Act. The MCR cannot be read to govern the MMDR ActAccording to the affidavit of the Union of India this would be contrary to the statutory scheme and in fact 100% recovery should be made under the provisions of Section 21(5) of the MMDR. We may note that only to this extent, the learned Attorney General differed with the view expressed by the Union of India and submitted that the recommendation of the CEC to recover only 30% of the value of the illegally mined ore should be accepted153. In our opinion, there can be no compromise on the quantum of compensation that should be recovered from any defaulting lesseeit should be 100%. If there has been illegal mining, the defaulting lessee must bear the consequences of the illegality and not be benefited by pocketing 70% of the illegally mined ore. It simply does not stand to reason why the State should be compelled to forego what is its due from the exploitation of a natural resource and on the contrary be a party in filling the coffers of defaulting lessees in an ill gotten mannerAs already mentioned above, the figures were not disputed (except by JSPL and SMPL). Therefore, only the application of the figures requires consideration and so we do not need to examine each individual case. However to understand and appreciate the manner in which the CEC has arrived at its figures, we may state that this has been specifically mentioned by the CEC in its reportSuch a contention was also urged before the CEC and was rejected. We have examined this contention independently and are of the view that the base year of4 is most appropriatewe have already given our reasons for this. Some lessees might lose in the process while some of them might benefit but that cannot be avoided. In any event, each mining lease holder is being given the benefit of calculations only from1 and is not being `penalized for the period prior thereto. We think the mining lease holders should be grateful for this since it was submitted by learned counsel for the petitioners and the learned Amicus that the penalty should be levied from the date of EIA 1994. In our opinion, thef from1 (without interest) is undoubtedly reasonable and there can be hardly be any grievance in this regard. The mining lease holders cannot have their cake and eat it too, along with the icing on top156. Since the recommendation made by the CEC in this regard is not totally unreasonable, we accept that the compensation should be payable from1 onwards at 100% of the price of the mineral, as rationalized by the CEC178. We are of opinion that the view expressed by the CEC in this regard is partially correct. Given the fact that the defaulting mining lease holders have been asked to pay and have paid additional NPV as well as an amount towards penal compensatory afforestation, it must be assumed the violation of the FCA has been condoned to a limited extent, more particularly since in its order dated 7th May, 2010 this Court permitted the State of Odisha to accept such recommendations of the CEC made in the report dated 26th April, 2010 as are acceptable to it183. For the reasons that we have already expressed above, we are not in agreement with the CEC that only a part of the notional value (in this case 70%) of the iron ore and manganese ore produced by the mining lease holders should be recovered. We are of the view that Section 21(5) of the MMDR Act should be given full effect and so we reiterate that the recovery should be to the extent of 100%185. We may note that this Court has held in T.N. Godavarman v. Union of India, (2011) 15 SCC 658 and (2011) 15 SCC 681 that a violation of the FCA is condonable on payment of penal compensatory afforestation charges. This obviously would not apply to illegal or unlawful mining under Section 21(5) of the MMDR Act, but we make it clear that the mining lease holders would be entitled to the benefit of any Temporary Working Permission granted186. To avoid any misunderstanding, confusion or ambiguity, we make the following very clear:(1) A mining project that has commenced prior to 27th January, 1994 and has obtained a No Objection Certificate from the SPCB prior to that date is permitted to continue its mining operations without obtaining an EC from the Impact Assessment Agency. However, this is subject to any expansion (including an increase in the lease area) or modernization activity after 27th January, 1994 which would result in an increase in the pollution load. In that event, a prior EC is required. However, if the pollution load is not expected to increase despite the proposed expansion (including an increase in the lease area) or modernization activity, a certificate to this effect is absolutely necessary from the SPCB, which would be reviewed by the Impact Assessment Agency(2) The renewal of a mining lease after 27th January, 1994 will require an EC even if there is no expansion or modernization activity or any increase in the pollution load(3) For considering the pollution load the base year would be, which is to say that if the annual production after 27th January, 1994 exceeds the annual production of	0	30,811	7,160	### 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: funds, taking into consideration their requirements of health, education, communication, recreation, livelihood and cultural lifestyle as indicated in this Courts judgment in T.N. Godavaraman Thirumulpad v. Union of India & Others 2008(2) R.C.R.(Civil) 9 : (2008) 2 SCC 222. " 214. Subsequently on 28th April, 2014 this Court accepted the scheme prepared by the Government of Odisha in consultation with the Central Empowered Committee. The scheme was captioned "Setting up of Special Purpose Vehicle (SPV) for undertaking specific tribal welfare and area development works so as to ensure inclusive growth of mineral bearing areas in the State of Odisha". This Court then passed the following order on 28th April, 2014: "Pursuant to orders passed by this Court on 7th [27th] January, 2014, the Government of Odisha in consultation with the Central Empowered Committee has prepared a Scheme captioned "Setting up of Special Purpose Vehicle (SPV) for undertaking specific tribal welfare and area development works so as to ensure inclusive growth of mineral bearing areas in the State of Odisha. The Central Empowered Committee has submitted a Report dated 9th April, 2014 and has recommended that the Scheme prepared by the Government of Odisha may be approved by this Court and the ad hoc CAMPA may be directed to transfer to the SPV 50 per cent of the additional amount of the NPV recovered from the mining lease holders by the State of Odisha for undertaking tribal welfare and development works. We have perused the Scheme prepared by the State Government of Odisha and the recommendation of the Central Empowered Committee and we approve the Scheme and direct as hoc CAMPA to transfer to the SPV 50 per cent of the additional amount of the NPV within a month for undertaking tribal welfare development works. The Interlocutory applications be listed in the month of July, 2014." 215. Some of the salient features of the Scheme are as follows: 5 The SPV will undertake specific tribal welfare and area development works so as to ensure inclusive growth of the mineral bearing areas. These will include works/projects related to livelihood intervention, health, water supply and sanitation, education, special programmes for development of women and children, entrepreneurial development of local people, communication and infrastructure projects and agro silvi-horticultural based livelihood projects through identified agencies/Government Departments. While taking up such projects/works a bottom up planning and participatory approach will be followed. 9 The general superintendence of the affairs will be vested in its Board of Directors including (a) to receive grants/funds and have custody of the same, (b) to approve Annual Budget Estimates and sanction the expenditure within the limits of the Budget, (c) to enter into any agreement for and on behalf of the SPV; (d) institute and defend legal proceedings (e) to consider and approve the Annual Report, audit report, annual accounts and the financial estimates of the SPV, (f) to prescribe procedure to be followed for implementation of the projects/works and for maintenance of accounts and (g) to undertake any other ancillary activities/works for the furtherance of the objective of the SPV. a The funds made available to the SPV will be utilized only for the purpose for which the SPV has been set up and will not be used for any other purpose or transferred to any other authority; and b The composition of the Board of Directors of the SPV, as provided in the present scheme, will be modified only after obtaining permission from the Honble Supreme Court. 10. The accounts of the SPV will be internally audited annually by the Chartered Accountant firms empanelled with the CAG/Principal Accountant General, Odisha. The audit of the accounts of the SPV, receipts as well as expenditure, will be done annually by the office of the Principal Accountant General, Odisha. 11. The State Government has, earlier, registered a Society, namely, Society for Inclusive Development of Mineral Bearing Areas of Odisha, which has been registered vide registration number 23354/74 of 2011-12 under the Societies Registration Act, 1860 to act as SPV for the purpose. It is now proposed to wind up the said Society and to replace it with `Odisha Mineral Bearing Areas Development Corporation to be set up under section 25 of the Companies Act. 216. It appears that the scheme has been implemented with the Chief Secretary of Odisha as the ex-officio Chairman of the SPV. There are several other members and directors of the SPV. There is no further information available with this Court with regard to the implementation of the scheme. 217. During the course of hearing, some of the mining lease holders represented by Shri Gopal Subramanium, Senior Advocate offered to deposit and in fact did deposit an amount of Rs. 237.05 crores for utilization by the SPV for carrying out welfare works and activities in the districts of Keonjhar, Sundergarh and Mayurbhanj in Odisha. The deposit was made by way of a cheque on 6th April, 2017 and was without prejudice to the rights and contentions of lessees. In terms of our directions, the Registry has encashed the cheque and kept the amount in a short term fixed deposit. We have mentioned this only to point out that there are huge amounts available with the Special Purpose Vehicle for tribal welfare and area development works and we have absolutely no idea about the utilization of the funds or whether they are in fact being used for tribal welfare and area development works. We also expect that as a result of the orders that we are passing today, very large amounts will again be made available to the State of Odisha. These amounts should also be kept with the Special Purpose Vehicle. 218. To ensure that the amounts are utilized for the benefit of tribals in the affected districts and for area development works, we would like the Chief Secretary of Odisha to file an affidavit stating the work done as well as providing the audited accounts of the receipt and expenditure of the SPV from its inception. Conclusion ### Response: 0 ### Explanation: of the Act is certainly attracted and is not limited to a violation committed by a person only outside the mining lease areait includes a violation committed even within the mining lease area. This is also because the MMDR Act is intended, among other things, to penalize illegal or unlawful mining on any land including mining lease land and also preserve and protect the environment. Action under the EPA or the MCR could be the primary action required to be taken with reference to the MCR and Rule 2(ii a) thereof read with the Explanation but that cannot preclude compensation to the State under Section 21(5) of the MMDR Act. The MCR cannot be read to govern the MMDR ActAccording to the affidavit of the Union of India this would be contrary to the statutory scheme and in fact 100% recovery should be made under the provisions of Section 21(5) of the MMDR. We may note that only to this extent, the learned Attorney General differed with the view expressed by the Union of India and submitted that the recommendation of the CEC to recover only 30% of the value of the illegally mined ore should be accepted153. In our opinion, there can be no compromise on the quantum of compensation that should be recovered from any defaulting lesseeit should be 100%. If there has been illegal mining, the defaulting lessee must bear the consequences of the illegality and not be benefited by pocketing 70% of the illegally mined ore. It simply does not stand to reason why the State should be compelled to forego what is its due from the exploitation of a natural resource and on the contrary be a party in filling the coffers of defaulting lessees in an ill gotten mannerAs already mentioned above, the figures were not disputed (except by JSPL and SMPL). Therefore, only the application of the figures requires consideration and so we do not need to examine each individual case. However to understand and appreciate the manner in which the CEC has arrived at its figures, we may state that this has been specifically mentioned by the CEC in its reportSuch a contention was also urged before the CEC and was rejected. We have examined this contention independently and are of the view that the base year of4 is most appropriatewe have already given our reasons for this. Some lessees might lose in the process while some of them might benefit but that cannot be avoided. In any event, each mining lease holder is being given the benefit of calculations only from1 and is not being `penalized for the period prior thereto. We think the mining lease holders should be grateful for this since it was submitted by learned counsel for the petitioners and the learned Amicus that the penalty should be levied from the date of EIA 1994. In our opinion, thef from1 (without interest) is undoubtedly reasonable and there can be hardly be any grievance in this regard. The mining lease holders cannot have their cake and eat it too, along with the icing on top156. Since the recommendation made by the CEC in this regard is not totally unreasonable, we accept that the compensation should be payable from1 onwards at 100% of the price of the mineral, as rationalized by the CEC178. We are of opinion that the view expressed by the CEC in this regard is partially correct. Given the fact that the defaulting mining lease holders have been asked to pay and have paid additional NPV as well as an amount towards penal compensatory afforestation, it must be assumed the violation of the FCA has been condoned to a limited extent, more particularly since in its order dated 7th May, 2010 this Court permitted the State of Odisha to accept such recommendations of the CEC made in the report dated 26th April, 2010 as are acceptable to it183. For the reasons that we have already expressed above, we are not in agreement with the CEC that only a part of the notional value (in this case 70%) of the iron ore and manganese ore produced by the mining lease holders should be recovered. We are of the view that Section 21(5) of the MMDR Act should be given full effect and so we reiterate that the recovery should be to the extent of 100%185. We may note that this Court has held in T.N. Godavarman v. Union of India, (2011) 15 SCC 658 and (2011) 15 SCC 681 that a violation of the FCA is condonable on payment of penal compensatory afforestation charges. This obviously would not apply to illegal or unlawful mining under Section 21(5) of the MMDR Act, but we make it clear that the mining lease holders would be entitled to the benefit of any Temporary Working Permission granted186. To avoid any misunderstanding, confusion or ambiguity, we make the following very clear:(1) A mining project that has commenced prior to 27th January, 1994 and has obtained a No Objection Certificate from the SPCB prior to that date is permitted to continue its mining operations without obtaining an EC from the Impact Assessment Agency. However, this is subject to any expansion (including an increase in the lease area) or modernization activity after 27th January, 1994 which would result in an increase in the pollution load. In that event, a prior EC is required. However, if the pollution load is not expected to increase despite the proposed expansion (including an increase in the lease area) or modernization activity, a certificate to this effect is absolutely necessary from the SPCB, which would be reviewed by the Impact Assessment Agency(2) The renewal of a mining lease after 27th January, 1994 will require an EC even if there is no expansion or modernization activity or any increase in the pollution load(3) For considering the pollution load the base year would be, which is to say that if the annual production after 27th January, 1994 exceeds the annual production of
K. Chithhayan Vs. State of Tamil Nadu	of 10 years rigorous imprisonment and a fine of Rs.1,00,000/- as was imposed by learned Special Judge, Salem. 2. Background facts in a nutshell are as follows:Veerannan (PW-1), Sub Inspector of Police, attached to N.I.B. C.I.D., Salem on 16.12.1999 at about 9.00 A.M. along with Vellingiri (PW-4), Head Constable No.910 and other Police party on secret information were patrolling at Pethanayakkampalaym Bus Stop. They found activities of the appellant/accused, who stood near the bus stop with a yellow colour bag on his right hand, at about 12.00 noon, to be suspicious. P.W.1 after introducing himself, conveyed to him that he is entitled for the conduct of the search before a Gazetted Officer or a Judicial Magistrate. The accused gave consent to be searched by the official himself. Accordingly, P.W.1 searched his bag in the presence of the two independent witnesses namely Duraisamy (PW-2), Village Administrative Assistant and Duraisamy Assistant (PW-3) and P.W.4 Head Constable and found 2 Kilograms of Diazepam. P.W.1 seized the same under Ex.P2 mahazar in the presence of the said witnesses. He took two samples of 25 grams each marked as M.0.2 and affixed the seal and the rest of the contraband was sealed, which is marked as M.0.1.The appellant/accused was arrested under Ex.P3 arrest memo, a copy of which was served on him. The accused was brought to the Office, and a case was registered in Crime No. 91/99 under Sec. 20(b) (1) of the Act. Ex.P4 printed F.I.R. was prepared. The accused was taken to the concerned Court along with the F.I.R and the material objects. A detailed report under Ex.P5 under Sec.57 of-the Act was prepared and sent to the higher officials. Sankarapandian (PW-6), Inspector of police, NIB CID, Salem took up further investigation after obtaining Ex.P5 and other relevant records from PW-1. He proceeded to the site of occurrence and also to the house of the accused, made a search in front of the witnesses, prepared Ex.P7 search memo, examined PWs 1 to 4 and recorded their statements. The investigating officer (PW-6) made a request under Ex.P8 to the Court for sending M.O.2 for chemical analysis. Accordingly, the sample was analysed by Arulanandam (PW-5) Scientific Assistant attached to the Forensic Laboratory, who found that the sample under M.O.2 is diazepam. PW-5 sent Ex.P6 report to the Court. On 19.1.2002 PW-6 examined PW-5 and recorded his statement. On completion of the investigation, PW-6 filed a charge sheet against the accused under Section 22 of the Act. Since the accused pleaded innocence the trial was held. Six witnesses were examined and several exhibits and material objects were brought on record. In his examination under Section 313 of the Code of Criminal Procedure, 1973 (in short the ‘Code) the accused-appellant flatly denied the accusations. He examined his wife as PW-1. The trial Court found that the prosecution has been able to establish its accusations. Two grounds were taken before the High Court relating to the alleged non compliance of the mandatory provisions of Sections 42(2) and the other 50 of the Act. The High Court did not find any substance. Accordingly, the appeal was dismissed. 3. In support of the appeal, learned counsel for the appellant submitted that even if the prosecution case is accepted in toto there is clear material to show the contravention of the requirements of Sections 42(2) and 50 of the Act.4. Learned counsel for the respondent-State supported the judgments of the trial Court and the High Court.5. Sections 42(2) and 43 of the Act are as under: "42(2)-Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.43. Power of seizure and arrest in public place.-Any officer of any of the departments mentioned in section 42 may-(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.Explanation.-For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public." 6. So far as Section 42(2) is concerned it is to be noted that search was made in public place and not in a building and as such what was applicable was Section 43 and not Section 42 (2) of the Act. The decision of this Court in State of Punjab vs. Baldev Singh (1999 (6) SCC 172) is clearly applicable to the facts of the present case. The view in Baldev Singhs case (supra) was re-iterated in State of Haryana v. Jarnail Singh and Ors. (2004 (5) SCC 188 ). 7. So far as the applicability of Section 50 of the Act is concerned, it is to be noted that there was search of the bag carried by the appellant and there was no personal search. It has been held in State of H.P. v. Pawan Kumar (2005 (4) SCC 350 ) that when there is no personal search and the search is effected in relation to a bag, Section 50 of the Act has no application.	0[ds]6. So far as Section 42(2) is concerned it is to be noted that search was made in public place and not in a building and as such what was applicable was Section 43 and not Section 42 (2) of the Act.So far as the applicability of Section 50 of the Act is concerned, it is to be noted that there was search of the bag carried byand there was no personal search.	0	1,220	85	### 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: of 10 years rigorous imprisonment and a fine of Rs.1,00,000/- as was imposed by learned Special Judge, Salem. 2. Background facts in a nutshell are as follows:Veerannan (PW-1), Sub Inspector of Police, attached to N.I.B. C.I.D., Salem on 16.12.1999 at about 9.00 A.M. along with Vellingiri (PW-4), Head Constable No.910 and other Police party on secret information were patrolling at Pethanayakkampalaym Bus Stop. They found activities of the appellant/accused, who stood near the bus stop with a yellow colour bag on his right hand, at about 12.00 noon, to be suspicious. P.W.1 after introducing himself, conveyed to him that he is entitled for the conduct of the search before a Gazetted Officer or a Judicial Magistrate. The accused gave consent to be searched by the official himself. Accordingly, P.W.1 searched his bag in the presence of the two independent witnesses namely Duraisamy (PW-2), Village Administrative Assistant and Duraisamy Assistant (PW-3) and P.W.4 Head Constable and found 2 Kilograms of Diazepam. P.W.1 seized the same under Ex.P2 mahazar in the presence of the said witnesses. He took two samples of 25 grams each marked as M.0.2 and affixed the seal and the rest of the contraband was sealed, which is marked as M.0.1.The appellant/accused was arrested under Ex.P3 arrest memo, a copy of which was served on him. The accused was brought to the Office, and a case was registered in Crime No. 91/99 under Sec. 20(b) (1) of the Act. Ex.P4 printed F.I.R. was prepared. The accused was taken to the concerned Court along with the F.I.R and the material objects. A detailed report under Ex.P5 under Sec.57 of-the Act was prepared and sent to the higher officials. Sankarapandian (PW-6), Inspector of police, NIB CID, Salem took up further investigation after obtaining Ex.P5 and other relevant records from PW-1. He proceeded to the site of occurrence and also to the house of the accused, made a search in front of the witnesses, prepared Ex.P7 search memo, examined PWs 1 to 4 and recorded their statements. The investigating officer (PW-6) made a request under Ex.P8 to the Court for sending M.O.2 for chemical analysis. Accordingly, the sample was analysed by Arulanandam (PW-5) Scientific Assistant attached to the Forensic Laboratory, who found that the sample under M.O.2 is diazepam. PW-5 sent Ex.P6 report to the Court. On 19.1.2002 PW-6 examined PW-5 and recorded his statement. On completion of the investigation, PW-6 filed a charge sheet against the accused under Section 22 of the Act. Since the accused pleaded innocence the trial was held. Six witnesses were examined and several exhibits and material objects were brought on record. In his examination under Section 313 of the Code of Criminal Procedure, 1973 (in short the ‘Code) the accused-appellant flatly denied the accusations. He examined his wife as PW-1. The trial Court found that the prosecution has been able to establish its accusations. Two grounds were taken before the High Court relating to the alleged non compliance of the mandatory provisions of Sections 42(2) and the other 50 of the Act. The High Court did not find any substance. Accordingly, the appeal was dismissed. 3. In support of the appeal, learned counsel for the appellant submitted that even if the prosecution case is accepted in toto there is clear material to show the contravention of the requirements of Sections 42(2) and 50 of the Act.4. Learned counsel for the respondent-State supported the judgments of the trial Court and the High Court.5. Sections 42(2) and 43 of the Act are as under: "42(2)-Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.43. Power of seizure and arrest in public place.-Any officer of any of the departments mentioned in section 42 may-(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.Explanation.-For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public." 6. So far as Section 42(2) is concerned it is to be noted that search was made in public place and not in a building and as such what was applicable was Section 43 and not Section 42 (2) of the Act. The decision of this Court in State of Punjab vs. Baldev Singh (1999 (6) SCC 172) is clearly applicable to the facts of the present case. The view in Baldev Singhs case (supra) was re-iterated in State of Haryana v. Jarnail Singh and Ors. (2004 (5) SCC 188 ). 7. So far as the applicability of Section 50 of the Act is concerned, it is to be noted that there was search of the bag carried by the appellant and there was no personal search. It has been held in State of H.P. v. Pawan Kumar (2005 (4) SCC 350 ) that when there is no personal search and the search is effected in relation to a bag, Section 50 of the Act has no application. ### Response: 0 ### Explanation: 6. So far as Section 42(2) is concerned it is to be noted that search was made in public place and not in a building and as such what was applicable was Section 43 and not Section 42 (2) of the Act.So far as the applicability of Section 50 of the Act is concerned, it is to be noted that there was search of the bag carried byand there was no personal search.
FOUNDATION FOR MEDIA PROFESSIONALS Vs. UNION TERRITORY OF JAMMU AND KASHMIR & ANR	Anuradha Bhasin (supra) judgment): table 13. The above measures taken by the Respondent No. 1 have to be seen in light of the circumstances already highlighted by the learned Solicitor General regarding the existing law and order and national security situations in the Union Territory, and the occurrence of incidents that affect the integrity of the nation. The learned Solicitor General stated that since 05.08.2019, around 108 terrorist related incidents have taken place in Union Territory of Jammu and Kashmir, wherein 99 incidents were reported from the Kashmir province and 09 from Jammu province. In total, 30 civilians have lost their lives and 114 civilians have been injured. Further, more than 20 security personnel have been martyred and 54 security personnel have been injured. Moreover, 76 terrorists have been gunned down. These facts have not been rebutted by the Petitioners. This Court will have to consider the above in its analysis. It may be important to note that after this matter was reserved for orders, the Union Territory of Jammu and Kashmirhas filed another note, indicating that the militancy has significantly increased in the recent times, in the following manner: table Respondent No. 1 has also pointed to certain material, which indicate that cyber terrorism, is on the rise within the valley. The Respondent No. 1, has brought to the notice of this Court that the Pakistani Military in its Green Book 2020 has called for an information warfare on Kashmir, after the revocation of special status of Jammu and Kashmir. 14. While it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown. However, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored. 15. However, the authorities in the Union Territories of Jammu and Kashmir have selected the 2G speed to restrict the flow of information in order to prevent misuse of data by terrorists and their supporters to disturb the peace and tranquility of the Union Territory of Jammu and Kashmir. 16. In any case, we may note that the common thread in the impugned orders is that they have been passed for the entire Union Territory of Jammu and Kashmir. In this regard, our observations in the Anuradha Bhasin (supra) may be of some relevance: The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation. Although the present orders indicate that they have been passed for a limited period of time, the order does not provide any reasons to reflect that all the districts of the Union Territory of Jammu and Kashmir require the imposition of such restrictions. At the same time, we do recognize that the Union Territory of Jammu and Kashmir has been plagued with militancy, which is required to be taken into consideration. These competing considerations needs to calibrated in terms of our judgment in Anuradha Bhasin (supra). 17. One of the criteria for testing the proportionality of the orders is the territorial extent of the restrictions. In view of the observations made in Anuradha Bhasin (supra), for meaningful enforcement of the spirit of the judgment, inter alia, the authorities are required to pass orders with respect to only those areas, where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier. 18. In this regard, our attention is drawn to the fact that blanket orders have been passed for the entire territory rather than for specific affected areas. 19. A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored. 20. Additionally, although the Petitioners have argued that the orders passed by Respondent No. 1 reveals non-application of mind, however, at the cost of repetition, it must be noted that the authorities have been taking steps towards easing of internet restrictions taking into account the prevailing circumstances. This can be seen from the fact that initially only whitelisted websites were allowed, before internet access to all websites was provided on broadband, and finally to postpaid and verified prepaid mobile users as well, although at 2G speeds. Further, the various steps taken by Respondent No. 1 with respect to ensuring the fundamental rights of the people, in relation to the existing COVID- 19 pandemic, must also be taken into account. 21. During the course of the arguments, the Respondent No. 2- Union of India has submitted that continuous infiltration, foreign influence, violent extremism and issues of national integrity are prevalent in the Union Territory of Jammu and Kashmir, which are serious issues. 22. In Anuradha Bhasin (supra), this Court has alluded to the fact that modern terrorism is being propagated through the internet and by using technology in the following manner: 39. Modern terrorism heavily relies on the internet. Operations on the internet do not require substantial expenditure and are not traceable easily. The internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies. The prevalence of the internet provides an easy inroad to young impressionable minds…. 23. At the same time, the Court is also cognizant of the concerns relating to the ongoing pandemic and the hardships that may be faced by the citizens. It may be noted that in the earlier judgment of Anuradha Bhasin (supra) this Court had directed that, under the usual course, every order passed under Rule 2(2) of the Telecom Suspension Rules restricting the internet is to be placed before a Review Committee which provides for adequate procedural and substantive safeguards to ensure that the imposed restrictions are narrowly tailored.	1[ds]Although the Petitioners have objected to the note filed by the Respondent No. 1, taking into consideration the far-reaching consequences of the issues involved herein, we have considered the submissions of both parties12. At the outset, we have already laid down that the fundamental rights of citizens need to be balanced with national security concerns, when the situation so demands. This Court is cognizant of the importance of these matters for the national security concerns, and takes the same with utmost seriousness to ensure that citizens enjoy life and liberty to the greatest possible extent. National security concerns and human rights must be reasonably and defensibly adjusted with one another, in line with the constitutional principles. There is no doubt that the present situation calls for a delicate balancing, looking to the peculiar circumstances prevailing in the Union Territory of Jammu and Kashmir14. While it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown. However, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored15. However, the authorities in the Union Territories of Jammu and Kashmir have selected the 2G speed to restrict the flow of information in order to prevent misuse of data by terrorists and their supporters to disturb the peace and tranquility of the Union Territory of Jammu and KashmirAlthough the present orders indicate that they have been passed for a limited period of time, the order does not provide any reasons to reflect that all the districts of the Union Territory of Jammu and Kashmir require the imposition of such restrictions. At the same time, we do recognize that the Union Territory of Jammu and Kashmir has been plagued with militancy, which is required to be taken into consideration. These competing considerations needs to calibrated in terms of our judgment in Anuradha Bhasin (supra)17. One of the criteria for testing the proportionality of the orders is the territorial extent of the restrictions. In view of the observations made in Anuradha Bhasin (supra), for meaningful enforcement of the spirit of the judgment, inter alia, the authorities are required to pass orders with respect to only those areas, where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier19. A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored20. Additionally, although the Petitioners have argued that the orders passed by Respondent No. 1 reveals non-application of mind, however, at the cost of repetition, it must be noted that the authorities have been taking steps towards easing of internet restrictions taking into account the prevailing circumstances. This can be seen from the fact that initially only whitelisted websites were allowed, before internet access to all websites was provided on broadband, and finally to postpaid and verified prepaid mobile users as well, although at 2G speeds. Further, the various steps taken by Respondent No. 1 with respect to ensuring the fundamental rights of the people, in relation to the existing COVID- 19 pandemic, must also be taken into account23. At the same time, the Court is also cognizant of the concerns relating to the ongoing pandemic and the hardships that may be faced by the citizens. It may be noted that in the earlier judgment of Anuradha Bhasin (supra) this Court had directed that, under the usual course, every order passed under Rule 2(2) of the Telecom Suspension Rules restricting the internet is to be placed before a Review Committee which provides for adequate procedural and substantive safeguards to ensure that the imposed restrictions are narrowly tailored.	1	2,632	737	### 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: Anuradha Bhasin (supra) judgment): table 13. The above measures taken by the Respondent No. 1 have to be seen in light of the circumstances already highlighted by the learned Solicitor General regarding the existing law and order and national security situations in the Union Territory, and the occurrence of incidents that affect the integrity of the nation. The learned Solicitor General stated that since 05.08.2019, around 108 terrorist related incidents have taken place in Union Territory of Jammu and Kashmir, wherein 99 incidents were reported from the Kashmir province and 09 from Jammu province. In total, 30 civilians have lost their lives and 114 civilians have been injured. Further, more than 20 security personnel have been martyred and 54 security personnel have been injured. Moreover, 76 terrorists have been gunned down. These facts have not been rebutted by the Petitioners. This Court will have to consider the above in its analysis. It may be important to note that after this matter was reserved for orders, the Union Territory of Jammu and Kashmirhas filed another note, indicating that the militancy has significantly increased in the recent times, in the following manner: table Respondent No. 1 has also pointed to certain material, which indicate that cyber terrorism, is on the rise within the valley. The Respondent No. 1, has brought to the notice of this Court that the Pakistani Military in its Green Book 2020 has called for an information warfare on Kashmir, after the revocation of special status of Jammu and Kashmir. 14. While it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown. However, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored. 15. However, the authorities in the Union Territories of Jammu and Kashmir have selected the 2G speed to restrict the flow of information in order to prevent misuse of data by terrorists and their supporters to disturb the peace and tranquility of the Union Territory of Jammu and Kashmir. 16. In any case, we may note that the common thread in the impugned orders is that they have been passed for the entire Union Territory of Jammu and Kashmir. In this regard, our observations in the Anuradha Bhasin (supra) may be of some relevance: The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation. Although the present orders indicate that they have been passed for a limited period of time, the order does not provide any reasons to reflect that all the districts of the Union Territory of Jammu and Kashmir require the imposition of such restrictions. At the same time, we do recognize that the Union Territory of Jammu and Kashmir has been plagued with militancy, which is required to be taken into consideration. These competing considerations needs to calibrated in terms of our judgment in Anuradha Bhasin (supra). 17. One of the criteria for testing the proportionality of the orders is the territorial extent of the restrictions. In view of the observations made in Anuradha Bhasin (supra), for meaningful enforcement of the spirit of the judgment, inter alia, the authorities are required to pass orders with respect to only those areas, where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier. 18. In this regard, our attention is drawn to the fact that blanket orders have been passed for the entire territory rather than for specific affected areas. 19. A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored. 20. Additionally, although the Petitioners have argued that the orders passed by Respondent No. 1 reveals non-application of mind, however, at the cost of repetition, it must be noted that the authorities have been taking steps towards easing of internet restrictions taking into account the prevailing circumstances. This can be seen from the fact that initially only whitelisted websites were allowed, before internet access to all websites was provided on broadband, and finally to postpaid and verified prepaid mobile users as well, although at 2G speeds. Further, the various steps taken by Respondent No. 1 with respect to ensuring the fundamental rights of the people, in relation to the existing COVID- 19 pandemic, must also be taken into account. 21. During the course of the arguments, the Respondent No. 2- Union of India has submitted that continuous infiltration, foreign influence, violent extremism and issues of national integrity are prevalent in the Union Territory of Jammu and Kashmir, which are serious issues. 22. In Anuradha Bhasin (supra), this Court has alluded to the fact that modern terrorism is being propagated through the internet and by using technology in the following manner: 39. Modern terrorism heavily relies on the internet. Operations on the internet do not require substantial expenditure and are not traceable easily. The internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies. The prevalence of the internet provides an easy inroad to young impressionable minds…. 23. At the same time, the Court is also cognizant of the concerns relating to the ongoing pandemic and the hardships that may be faced by the citizens. It may be noted that in the earlier judgment of Anuradha Bhasin (supra) this Court had directed that, under the usual course, every order passed under Rule 2(2) of the Telecom Suspension Rules restricting the internet is to be placed before a Review Committee which provides for adequate procedural and substantive safeguards to ensure that the imposed restrictions are narrowly tailored. ### Response: 1 ### Explanation: Although the Petitioners have objected to the note filed by the Respondent No. 1, taking into consideration the far-reaching consequences of the issues involved herein, we have considered the submissions of both parties12. At the outset, we have already laid down that the fundamental rights of citizens need to be balanced with national security concerns, when the situation so demands. This Court is cognizant of the importance of these matters for the national security concerns, and takes the same with utmost seriousness to ensure that citizens enjoy life and liberty to the greatest possible extent. National security concerns and human rights must be reasonably and defensibly adjusted with one another, in line with the constitutional principles. There is no doubt that the present situation calls for a delicate balancing, looking to the peculiar circumstances prevailing in the Union Territory of Jammu and Kashmir14. While it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown. However, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored15. However, the authorities in the Union Territories of Jammu and Kashmir have selected the 2G speed to restrict the flow of information in order to prevent misuse of data by terrorists and their supporters to disturb the peace and tranquility of the Union Territory of Jammu and KashmirAlthough the present orders indicate that they have been passed for a limited period of time, the order does not provide any reasons to reflect that all the districts of the Union Territory of Jammu and Kashmir require the imposition of such restrictions. At the same time, we do recognize that the Union Territory of Jammu and Kashmir has been plagued with militancy, which is required to be taken into consideration. These competing considerations needs to calibrated in terms of our judgment in Anuradha Bhasin (supra)17. One of the criteria for testing the proportionality of the orders is the territorial extent of the restrictions. In view of the observations made in Anuradha Bhasin (supra), for meaningful enforcement of the spirit of the judgment, inter alia, the authorities are required to pass orders with respect to only those areas, where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier19. A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored20. Additionally, although the Petitioners have argued that the orders passed by Respondent No. 1 reveals non-application of mind, however, at the cost of repetition, it must be noted that the authorities have been taking steps towards easing of internet restrictions taking into account the prevailing circumstances. This can be seen from the fact that initially only whitelisted websites were allowed, before internet access to all websites was provided on broadband, and finally to postpaid and verified prepaid mobile users as well, although at 2G speeds. Further, the various steps taken by Respondent No. 1 with respect to ensuring the fundamental rights of the people, in relation to the existing COVID- 19 pandemic, must also be taken into account23. At the same time, the Court is also cognizant of the concerns relating to the ongoing pandemic and the hardships that may be faced by the citizens. It may be noted that in the earlier judgment of Anuradha Bhasin (supra) this Court had directed that, under the usual course, every order passed under Rule 2(2) of the Telecom Suspension Rules restricting the internet is to be placed before a Review Committee which provides for adequate procedural and substantive safeguards to ensure that the imposed restrictions are narrowly tailored.
Sureshchandra Singh Vs. Fertilizer Corpn. Of India Ltd.	special leave.3. It is urged on behalf of appellants that the OM dated 13th May 1998 by itself increased the retirement age and the policy set out therein is mandatory and binding on FCIL to enhance the retirement age. This OM is applicable only to employees in Government Civil Services and not to employees in the Public Sector Enterprises. Hence by reason of this OM, the appellants cannot contend that they are entitled to continue in service till they attain the age of 60 years. It is only by OM issued by the Department of Public Enterprises dated 19th May 1998 the said policy was made applicable to be effective from the date of modification of relevant Rules regarding the same. 4. By OMs dated 25th January, 1991 and 08th April 1991, the Ministry of Program Implementation and Department of Public Enterprises made it clear that all instructions/guidelines issued by the Government of India would be of two kinds - a) Directives issued in the name of President of India and b). Guidelines. Directives would be issued by the Administrative Ministry in the name of the President while all other instructions issued by the Department of Public Enterprise or by the Administrative Ministry are only advisory which the Board of Directors of the concerned Public Sector Undertakings may in their discretion adopt or not for reasons to be recorded in writing. 5. Here the Government of India took a policy decision to increase the retirement of Central Government employees. Application of that decision in respect of employees of Public Sector Enterprises is dependent upon so many factors that are to be taken into account in the light of the peculiar characteristics of each company or corporation or department. So the first OM itself provides that the order will come into force only with effect from the date of Notification of amendment to the relevant rules and regulations. So it is for the concerned authority to make necessary changes in the rules and regulations after taking into account of all the relevant aspects. Immediately after the first OM dated 13th May, 1998 the Department of Public Enterprises, Ministry of Industry, Government of India issued OM dated 19th May, 1998 wherein the modalities of the implementation of first OM in this department was detailed. Here it is pertinent to note that the OM dated 19th May 1998 is not an instruction issued in the name of the President. On the other hand, it was issued by the Department of Public Enterprise, which is advisory in nature. It accorded a broad discretion to the corporations or companies for the implementation of the enhanced retirement age after taking into account all the relevant factors. Pursuant to this direction the Board of Directors of FCIL took the decision not to increase the retirement age of its employees. The relevant factors that prevailed upon the Board of Directors are fully set out in its resolution and they are: that the company is one of the highest loss making company in the country; that the accumulated loss till the relevant date was to the tune of 5049 crores; that the company is incurring financial losses of roughly Rupees 2.35 crores everyday; that the company has no capacity to pay salaries to its employees; that the company was referred the BIFR and was declared as sick in 6/11/1992; that as on the relevant date the company has the negative net worth to the tune of Rupees 4316.21 crores and; that the company has surplus manpower; that it is not taking any new employees but on the contrary it is making conscious efforts to reduce the surplus manpower.6. It is also to be noted that the OM dated 19th May 1998 itself does not raise the retirement age to sixty years. It is only an administrative direction and Court cannot issue a writ to enforce such administrative instructions that is not having the force of law. The Appellants do not have any right to continue in service till the age of sixty years. The decision of the Board of Directors is not arbitrary or unreasonable or unrelated to the question of enhancement in age of retirement. Hence the first contention stands rejected.7. The Appellants assail the decision of the Board on the ground of violation of principles of equality. It is alleged that the Board level employees were allowed to continue in service till the age of sixty and the employees like appellants who were below the Board level were forced to retire at the age of fifty-eight. In reply respondents submitted that board level employees could not be equated and compared with the other employees. Whole time directors, who are two in numbers, are directly appointed by the President of India for a fixed term of five years that could be reviewed even earlier; and that other members of the board are government servants and are nominees or representatives from various ministers and are appointed by the President of India for a term of three years. In these circumstances we find that board of directors themselves form a different class and cannot be compared with other employees in regard to conditions of service applicable to them. Allegation of discrimination is also raised by the Appellants vis-a-vis employees of other corporations. Each Public Sector Undertaking is an independent body/entity and is free to have its own service conditions as per law. However, all employees in the FCIL who are working in its various Units and Divisions retire at the age of fifty-eight as per the relevant rules; and that even the future employees will retire at the age of fifty-eight. We also find that since the employees of different corporations could not be treated alike since every corporation will have to take into account its separate circumstances so as to formulate its policy and consequently the argument that there is discrimination of Appellants vis-a-vis employees of other corporation also cannot be accepted. Thus, appellants have failed on all grounds.	0[ds]This OM is applicable only to employees in Government Civil Services and not to employees in the Public Sector Enterprises. Hence by reason of this OM, the appellants cannot contend that they are entitled to continue in service till they attain the age of 60 years.6. It is also to be noted that the OM dated 19th May 1998 itself does not raise the retirement age to sixty years. It is only an administrative direction and Court cannot issue a writ to enforce such administrative instructions that is not having the force of law. The Appellants do not have any right to continue in service till the age of sixty years. The decision of the Board of Directors is not arbitrary or unreasonable or unrelated to the question of enhancement in age of retirement. Hence the first contention stands rejected.7. The Appellants assail the decision of the Board on the ground of violation of principles of equality. It is alleged that the Board level employees were allowed to continue in service till the age of sixty and the employees like appellants who were below the Board level were forced to retire at the age of fifty-eight. In reply respondents submitted that board level employees could not be equated and compared with the other employees. Whole time directors, who are two in numbers, are directly appointed by the President of India for a fixed term of five years that could be reviewed even earlier; and that other members of the board are government servants and are nominees or representatives from various ministers and are appointed by the President of India for a term of three years. In these circumstances we find that board of directors themselves form a different class and cannot be compared with other employees in regard to conditions of service applicable to them. Allegation of discrimination is also raised by the Appellants vis-a-vis employees of other corporations. Each Public Sector Undertaking is an independent body/entity and is free to have its own service conditions as per law. However, all employees in the FCIL who are working in its various Units and Divisions retire at the age of fifty-eight as per the relevant rules; and that even the future employees will retire at the age of fifty-eight. We also find that since the employees of different corporations could not be treated alike since every corporation will have to take into account its separate circumstances so as to formulate its policy and consequently the argument that there is discrimination of Appellants vis-a-vis employees of other corporation also cannot be accepted. Thus, appellants have failed on all grounds.	0	1,601	469	### 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: special leave.3. It is urged on behalf of appellants that the OM dated 13th May 1998 by itself increased the retirement age and the policy set out therein is mandatory and binding on FCIL to enhance the retirement age. This OM is applicable only to employees in Government Civil Services and not to employees in the Public Sector Enterprises. Hence by reason of this OM, the appellants cannot contend that they are entitled to continue in service till they attain the age of 60 years. It is only by OM issued by the Department of Public Enterprises dated 19th May 1998 the said policy was made applicable to be effective from the date of modification of relevant Rules regarding the same. 4. By OMs dated 25th January, 1991 and 08th April 1991, the Ministry of Program Implementation and Department of Public Enterprises made it clear that all instructions/guidelines issued by the Government of India would be of two kinds - a) Directives issued in the name of President of India and b). Guidelines. Directives would be issued by the Administrative Ministry in the name of the President while all other instructions issued by the Department of Public Enterprise or by the Administrative Ministry are only advisory which the Board of Directors of the concerned Public Sector Undertakings may in their discretion adopt or not for reasons to be recorded in writing. 5. Here the Government of India took a policy decision to increase the retirement of Central Government employees. Application of that decision in respect of employees of Public Sector Enterprises is dependent upon so many factors that are to be taken into account in the light of the peculiar characteristics of each company or corporation or department. So the first OM itself provides that the order will come into force only with effect from the date of Notification of amendment to the relevant rules and regulations. So it is for the concerned authority to make necessary changes in the rules and regulations after taking into account of all the relevant aspects. Immediately after the first OM dated 13th May, 1998 the Department of Public Enterprises, Ministry of Industry, Government of India issued OM dated 19th May, 1998 wherein the modalities of the implementation of first OM in this department was detailed. Here it is pertinent to note that the OM dated 19th May 1998 is not an instruction issued in the name of the President. On the other hand, it was issued by the Department of Public Enterprise, which is advisory in nature. It accorded a broad discretion to the corporations or companies for the implementation of the enhanced retirement age after taking into account all the relevant factors. Pursuant to this direction the Board of Directors of FCIL took the decision not to increase the retirement age of its employees. The relevant factors that prevailed upon the Board of Directors are fully set out in its resolution and they are: that the company is one of the highest loss making company in the country; that the accumulated loss till the relevant date was to the tune of 5049 crores; that the company is incurring financial losses of roughly Rupees 2.35 crores everyday; that the company has no capacity to pay salaries to its employees; that the company was referred the BIFR and was declared as sick in 6/11/1992; that as on the relevant date the company has the negative net worth to the tune of Rupees 4316.21 crores and; that the company has surplus manpower; that it is not taking any new employees but on the contrary it is making conscious efforts to reduce the surplus manpower.6. It is also to be noted that the OM dated 19th May 1998 itself does not raise the retirement age to sixty years. It is only an administrative direction and Court cannot issue a writ to enforce such administrative instructions that is not having the force of law. The Appellants do not have any right to continue in service till the age of sixty years. The decision of the Board of Directors is not arbitrary or unreasonable or unrelated to the question of enhancement in age of retirement. Hence the first contention stands rejected.7. The Appellants assail the decision of the Board on the ground of violation of principles of equality. It is alleged that the Board level employees were allowed to continue in service till the age of sixty and the employees like appellants who were below the Board level were forced to retire at the age of fifty-eight. In reply respondents submitted that board level employees could not be equated and compared with the other employees. Whole time directors, who are two in numbers, are directly appointed by the President of India for a fixed term of five years that could be reviewed even earlier; and that other members of the board are government servants and are nominees or representatives from various ministers and are appointed by the President of India for a term of three years. In these circumstances we find that board of directors themselves form a different class and cannot be compared with other employees in regard to conditions of service applicable to them. Allegation of discrimination is also raised by the Appellants vis-a-vis employees of other corporations. Each Public Sector Undertaking is an independent body/entity and is free to have its own service conditions as per law. However, all employees in the FCIL who are working in its various Units and Divisions retire at the age of fifty-eight as per the relevant rules; and that even the future employees will retire at the age of fifty-eight. We also find that since the employees of different corporations could not be treated alike since every corporation will have to take into account its separate circumstances so as to formulate its policy and consequently the argument that there is discrimination of Appellants vis-a-vis employees of other corporation also cannot be accepted. Thus, appellants have failed on all grounds. ### Response: 0 ### Explanation: This OM is applicable only to employees in Government Civil Services and not to employees in the Public Sector Enterprises. Hence by reason of this OM, the appellants cannot contend that they are entitled to continue in service till they attain the age of 60 years.6. It is also to be noted that the OM dated 19th May 1998 itself does not raise the retirement age to sixty years. It is only an administrative direction and Court cannot issue a writ to enforce such administrative instructions that is not having the force of law. The Appellants do not have any right to continue in service till the age of sixty years. The decision of the Board of Directors is not arbitrary or unreasonable or unrelated to the question of enhancement in age of retirement. Hence the first contention stands rejected.7. The Appellants assail the decision of the Board on the ground of violation of principles of equality. It is alleged that the Board level employees were allowed to continue in service till the age of sixty and the employees like appellants who were below the Board level were forced to retire at the age of fifty-eight. In reply respondents submitted that board level employees could not be equated and compared with the other employees. Whole time directors, who are two in numbers, are directly appointed by the President of India for a fixed term of five years that could be reviewed even earlier; and that other members of the board are government servants and are nominees or representatives from various ministers and are appointed by the President of India for a term of three years. In these circumstances we find that board of directors themselves form a different class and cannot be compared with other employees in regard to conditions of service applicable to them. Allegation of discrimination is also raised by the Appellants vis-a-vis employees of other corporations. Each Public Sector Undertaking is an independent body/entity and is free to have its own service conditions as per law. However, all employees in the FCIL who are working in its various Units and Divisions retire at the age of fifty-eight as per the relevant rules; and that even the future employees will retire at the age of fifty-eight. We also find that since the employees of different corporations could not be treated alike since every corporation will have to take into account its separate circumstances so as to formulate its policy and consequently the argument that there is discrimination of Appellants vis-a-vis employees of other corporation also cannot be accepted. Thus, appellants have failed on all grounds.
Sheikh Mohd. Omer Vs. Collector Of Customs, Calcutta & Ors	and Exports (Control) Act, 1947 provides:"Powers to prohibit or restrict imports and exports :-(1) The Central Government may, by order published in the Official Gazette, make provision for prohibiting, restricting or otherwise controlling, in all cases or in specified classes of cases and subject to such exceptions, if any as may be made by or under the order.-(a) the import, export, carriage coastwise or shipment as ships stores of goods of any specified description;(b) the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried."8. In exercise of the powers conferred by Sec. 3 of the Imports and Exports (Control) Act, 1947, the Government of India promulgated an order known as the "Imports Control" Order, 1955 dated 7th December, 1955. Clause 3 (1) of the said order reads:"Restriction on Import of Certain Goods :-(1) Save as otherwise provided in this order, no person shall import any goods of the description specified in Schedule I, except under, and in accordance with, a licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule II ".9. The relevant Entry is to be found in Item I of Schedule I in Part IV which is as follows :-"Sl No.Name of ArticleItem of First Schedule to Indian Tariff Act, 1934.(1)(2)(3)Part IV1.Animals, living all sortsI and I (I)."10. By the notification dated January 2, l961 referred to earlier certain exemptions were provided for personal baggage of a passenger. One of the exemptions granted is for clearance of one dog, pet animal and birds in a limited number subject to certain conditions.11. Now we shall go back to the question whether "Jury Maid" can be considered as a pet animal. A pet is explained in Concise Oxford Dictionary of Current English as "any animal tamed and kept as favourite or treated with fondness."The shorter Oxford Dictionary explains that word thus:"Any animal that is domesticated or tamed and kept as a favourite or treated with fondness, esp. applied to a lamb reared by hand."The same word is explained in Chamberss Twentieth Century Dictionary thus:"Any animal, tamed and fondled."12. There is no evidence to show that "Jury Maid" was tamed. That apart the Jury Maid" was not fondled or treated with fondness by the appellant. He obtained that animal on lease for certain specified purpose. In respect of that animal he had only a business connection. Rejecting the contention of the appellant that "Jury Maid" is a pet animal, the learned Judges of the appellate bench of the Calcutta High Court observed:"There is no such species of animal known as "Pet animal". What happens is that certain kind of animals or birds are often domesticated and when a particular person becomes fond of such an animal or bird it may be said to have become a "pet" of that person and may be called a "pet animal". It is a subjective expression. In the present case, the mare "Jury Maid" was not the "pet" of any particular person. So far as the appellant is concerned, he had not even seen the mare when it arrived in India. It cannot be said that he became fond of it at any relevant point of time. In actual life we find that men have at times become fond of strange animals like lions, tigers and even crocodiles. It was not intended to make the baggage rules a warrant for transforming passengers ships into a Noahs Ark......."13. We entirely agree with those observations and reject the contention of the appellant that "Jury Maid" was a pet animal.14. This takes us to the question whether by importing the mare "Jury Maid" the appellant contravened Section 111 (d) read with Sec. 125 of the Act. It was urged on behalf of the appellant that expression "prohibition" in Section 111 (d) must be considered as a total prohibition and that expression does not bring within its fold the restrictions imposed by C1. 3 of the Imports Control Order, 1955. According to the learned counsel for appellant clause 3 of that order deals with the restrictions of import of certain goods. Such a restriction cannot be considered as a prohibition under Sec. 111 (d) of the Act. While elaborating his argument the learned Counsel invited our attention to the fact that while Sec. 111 (d) of the Act uses the word "prohibition", Section 3 of the Imports and Exports (Control) Act, 1947 takes in not merely prohibition of imports and exports, it also includes "restrictions or otherwise controlling," all imports and exports. According to him restrictions cannot be considered as prohibition more particularly under the Imports and Exports (Control) Act, 1947 as that statute deals with "restrictions or otherwise controlling," separately from prohibitions. We are not impressed with this argument. What clause (d) of Sec. 111 says is that any goods which are imported or attempted to be imported contrary to "any prohibition imposed by any law for the time being in force in this country," is liable to be confiscated. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression "any prohibition" in Section 111 (d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947 uses three different expressions "prohibiting", "restricting" or "otherwise controlling," we cannot cut down the amplitude of the word "any prohibition" in Section 111 (d) of the Act. "Any prohibition" means every, prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (1) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But none the less the prohibition continues.	0[ds]13. We entirely agree with those observations and reject the contention of the appellant that "Jury Maid" was a pet animal.14. This takes us to the question whether by importing the mare "Jury Maid" the appellant contravened Section 111 (d) read with Sec. 125 of the Act. It was urged on behalf of the appellant that expression "prohibition" in Section 111 (d) must be considered as a total prohibition and that expression does not bring within its fold the restrictions imposed by C1. 3 of the Imports Control Order, 1955. According to the learned counsel for appellant clause 3 of that order deals with the restrictions of import of certain goods. Such a restriction cannot be considered as a prohibition under Sec. 111 (d) of the Act. While elaborating his argument the learned Counsel invited our attention to the fact that while Sec. 111 (d) of the Act uses the word "prohibition", Section 3 of the Imports and Exports (Control) Act, 1947 takes in not merely prohibition of imports and exports, it also includes "restrictions or otherwise controlling," all imports and exports. According to him restrictions cannot be considered as prohibition more particularly under the Imports and Exports (Control) Act, 1947 as that statute deals with "restrictions or otherwise controlling," separately from prohibitions. We are not impressed with this argument. What clause (d) of Sec. 111 says is that any goods which are imported or attempted to be imported contrary to "any prohibition imposed by any law for the time being in force in this country," is liable to be confiscated. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression "any prohibition" in Section 111 (d) ofthe Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947 uses three different expressions "prohibiting", "restricting" or "otherwise controlling," we cannot cut down the amplitude of the word "any prohibition" in Section 111 (d) of the Act. "Any prohibition" means every, prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (1) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But none the less the prohibition continues.There is no evidence to show that "Jury Maid" was tamed. That apart the Jury Maid" was not fondled or treated with fondness by the appellant. He obtained that animal on lease for certain specified purpose. In respect of that animal he had only a business connection. Rejecting the contention of the appellant that "Jury Maid" is a pet animal, the learned Judges of the appellate bench of the Calcutta High Courtis no such species of animal known as "Pet animal". What happens is that certain kind of animals or birds are often domesticated and when a particular person becomes fond of such an animal or bird it may be said to have become a "pet" of that person and may be called a "pet animal". It is a subjective expression. In the present case, the mare "Jury Maid" was not the "pet" of any particular person. So far as the appellant is concerned, he had not even seen the mare when it arrived in India. It cannot be said that he became fond of it at any relevant point of time. In actual life we find that men have at times become fond of strange animals like lions, tigers and even crocodiles. It was not intended to make the baggage rules a warrant for transforming passengers ships into a Noahs Ark......."	0	2,000	757	### 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: and Exports (Control) Act, 1947 provides:"Powers to prohibit or restrict imports and exports :-(1) The Central Government may, by order published in the Official Gazette, make provision for prohibiting, restricting or otherwise controlling, in all cases or in specified classes of cases and subject to such exceptions, if any as may be made by or under the order.-(a) the import, export, carriage coastwise or shipment as ships stores of goods of any specified description;(b) the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried."8. In exercise of the powers conferred by Sec. 3 of the Imports and Exports (Control) Act, 1947, the Government of India promulgated an order known as the "Imports Control" Order, 1955 dated 7th December, 1955. Clause 3 (1) of the said order reads:"Restriction on Import of Certain Goods :-(1) Save as otherwise provided in this order, no person shall import any goods of the description specified in Schedule I, except under, and in accordance with, a licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule II ".9. The relevant Entry is to be found in Item I of Schedule I in Part IV which is as follows :-"Sl No.Name of ArticleItem of First Schedule to Indian Tariff Act, 1934.(1)(2)(3)Part IV1.Animals, living all sortsI and I (I)."10. By the notification dated January 2, l961 referred to earlier certain exemptions were provided for personal baggage of a passenger. One of the exemptions granted is for clearance of one dog, pet animal and birds in a limited number subject to certain conditions.11. Now we shall go back to the question whether "Jury Maid" can be considered as a pet animal. A pet is explained in Concise Oxford Dictionary of Current English as "any animal tamed and kept as favourite or treated with fondness."The shorter Oxford Dictionary explains that word thus:"Any animal that is domesticated or tamed and kept as a favourite or treated with fondness, esp. applied to a lamb reared by hand."The same word is explained in Chamberss Twentieth Century Dictionary thus:"Any animal, tamed and fondled."12. There is no evidence to show that "Jury Maid" was tamed. That apart the Jury Maid" was not fondled or treated with fondness by the appellant. He obtained that animal on lease for certain specified purpose. In respect of that animal he had only a business connection. Rejecting the contention of the appellant that "Jury Maid" is a pet animal, the learned Judges of the appellate bench of the Calcutta High Court observed:"There is no such species of animal known as "Pet animal". What happens is that certain kind of animals or birds are often domesticated and when a particular person becomes fond of such an animal or bird it may be said to have become a "pet" of that person and may be called a "pet animal". It is a subjective expression. In the present case, the mare "Jury Maid" was not the "pet" of any particular person. So far as the appellant is concerned, he had not even seen the mare when it arrived in India. It cannot be said that he became fond of it at any relevant point of time. In actual life we find that men have at times become fond of strange animals like lions, tigers and even crocodiles. It was not intended to make the baggage rules a warrant for transforming passengers ships into a Noahs Ark......."13. We entirely agree with those observations and reject the contention of the appellant that "Jury Maid" was a pet animal.14. This takes us to the question whether by importing the mare "Jury Maid" the appellant contravened Section 111 (d) read with Sec. 125 of the Act. It was urged on behalf of the appellant that expression "prohibition" in Section 111 (d) must be considered as a total prohibition and that expression does not bring within its fold the restrictions imposed by C1. 3 of the Imports Control Order, 1955. According to the learned counsel for appellant clause 3 of that order deals with the restrictions of import of certain goods. Such a restriction cannot be considered as a prohibition under Sec. 111 (d) of the Act. While elaborating his argument the learned Counsel invited our attention to the fact that while Sec. 111 (d) of the Act uses the word "prohibition", Section 3 of the Imports and Exports (Control) Act, 1947 takes in not merely prohibition of imports and exports, it also includes "restrictions or otherwise controlling," all imports and exports. According to him restrictions cannot be considered as prohibition more particularly under the Imports and Exports (Control) Act, 1947 as that statute deals with "restrictions or otherwise controlling," separately from prohibitions. We are not impressed with this argument. What clause (d) of Sec. 111 says is that any goods which are imported or attempted to be imported contrary to "any prohibition imposed by any law for the time being in force in this country," is liable to be confiscated. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression "any prohibition" in Section 111 (d) of the Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947 uses three different expressions "prohibiting", "restricting" or "otherwise controlling," we cannot cut down the amplitude of the word "any prohibition" in Section 111 (d) of the Act. "Any prohibition" means every, prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (1) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But none the less the prohibition continues. ### Response: 0 ### Explanation: 13. We entirely agree with those observations and reject the contention of the appellant that "Jury Maid" was a pet animal.14. This takes us to the question whether by importing the mare "Jury Maid" the appellant contravened Section 111 (d) read with Sec. 125 of the Act. It was urged on behalf of the appellant that expression "prohibition" in Section 111 (d) must be considered as a total prohibition and that expression does not bring within its fold the restrictions imposed by C1. 3 of the Imports Control Order, 1955. According to the learned counsel for appellant clause 3 of that order deals with the restrictions of import of certain goods. Such a restriction cannot be considered as a prohibition under Sec. 111 (d) of the Act. While elaborating his argument the learned Counsel invited our attention to the fact that while Sec. 111 (d) of the Act uses the word "prohibition", Section 3 of the Imports and Exports (Control) Act, 1947 takes in not merely prohibition of imports and exports, it also includes "restrictions or otherwise controlling," all imports and exports. According to him restrictions cannot be considered as prohibition more particularly under the Imports and Exports (Control) Act, 1947 as that statute deals with "restrictions or otherwise controlling," separately from prohibitions. We are not impressed with this argument. What clause (d) of Sec. 111 says is that any goods which are imported or attempted to be imported contrary to "any prohibition imposed by any law for the time being in force in this country," is liable to be confiscated. "Any prohibition" referred to in that section applies to every type of "prohibition". That prohibition may be complete or partial. Any restriction on import or export is to an extent a prohibition. The expression "any prohibition" in Section 111 (d) ofthe Customs Act, 1962 includes restrictions. Merely because Section 3 of the Imports and Exports (Control) Act, 1947 uses three different expressions "prohibiting", "restricting" or "otherwise controlling," we cannot cut down the amplitude of the word "any prohibition" in Section 111 (d) of the Act. "Any prohibition" means every, prohibition. In other words all types of prohibitions. Restriction is one type of prohibition. From item (1) of Schedule I, Part IV to Import Control Order, 1955, it is clear that import of living animals of all sorts is prohibited. But certain exceptions are provided for. But none the less the prohibition continues.There is no evidence to show that "Jury Maid" was tamed. That apart the Jury Maid" was not fondled or treated with fondness by the appellant. He obtained that animal on lease for certain specified purpose. In respect of that animal he had only a business connection. Rejecting the contention of the appellant that "Jury Maid" is a pet animal, the learned Judges of the appellate bench of the Calcutta High Courtis no such species of animal known as "Pet animal". What happens is that certain kind of animals or birds are often domesticated and when a particular person becomes fond of such an animal or bird it may be said to have become a "pet" of that person and may be called a "pet animal". It is a subjective expression. In the present case, the mare "Jury Maid" was not the "pet" of any particular person. So far as the appellant is concerned, he had not even seen the mare when it arrived in India. It cannot be said that he became fond of it at any relevant point of time. In actual life we find that men have at times become fond of strange animals like lions, tigers and even crocodiles. It was not intended to make the baggage rules a warrant for transforming passengers ships into a Noahs Ark......."
Haryana Tourism Corp. Ltd Vs. Fakir Chand	K.G. Balakrishnan, J. 1. Appellant - Haryana Tourism Corporation Limited in these appeals is a Government-owned company incorporated under the Companies Act. The appellant-corporation was engaged in the tourism-related activities in the State of Haryana. As part of its activities, the appellant-corporation started various fast food centres and tourist complexes in different parts of the State and utilized the services of these respondents to meet the day-to-day requirements of work. The respondents in these appeals were engaged either as Kitchen Helper, Mali or Sweeper and according to the appellant-corporation, these respondents were given daily-wage appointments. The fast food centres/tourist complexes in question were started on 8.11.1988. The appellant alleged that soon after these fast food centres and tourist complexes were started many of them stated running into losses and in 1991, the State Govt. re-considered the matter and took a policy decision to discontinue the running of some of them and that the appellant-corporation returned these outlets to the Transport Department. This change of policy, the appellant stated, necessitated the retrenchment of the respondent workmen and accordingly the services of the respondent workmen were terminated in the months of August and October, 1991. The respondents challenged the termination of their services and the matter was referred to the Labour Court under the Industrial Disputes Act, 1947. The Labour Court, by its award, directed reinstatement of the respondents in service with 25 per cent back wages. The appellant- corporation challenged the award of the Labour Court before the High Court of Punjab & Haryana, but the High Court declined to interfere with the award passed by the Labour Court. The judgment of the High Court is challenged before us by the appellant-corporation. 2. We heard Shri Sudhir Walia, learned Addl. Advocate General for the appellant-corporation and also counsel for the respondents. Shri walia submitted that these respondents were engaged on daily-wage basis and their services were terminated when the policy of the State Govt. was reviewed and the appellant-corporation then entrusted most of the outlets to the Transport Department. The counsel for the respondents disputed this fact. On the other hand, it was alleged that the appellant-corporation opened fresh fast food centres and started engaging new employees. 3. It is important to note that some of the fast food centres, which were under the management of the appellant-corporation were entrusted to the Transport Department and there was a change of policy made in the month of September, 1991. This plea was raised by the appellant before the labour court when one of the employees of the appellant-corporation who was engaged by them as a Sweeper in a catering service station at Hissar, challenged his termination order. The plea of the appellant-corporation that there was a change of policy in September, 1991, was accepted by the Labour Court and the Labour Court also relied on Ex. M-1 copy of the minutes of the meeting dated 8.11.1988 of the State Govt. for starting catering services at the bus stands and also Ex. M-3 copy of the minutes of the subsequent meeting dated 5.9.1991 for taking a decision for closing down the said services and for handling over the possession of the bus stands to the Transport Department. But, a specific plea was not raised by the appellant-corporation in these mattes. Certain other facts are, however, relevant to be noted for the purposes of these cases.4. The respondents herein were engaged to work on daily wage basis. They were not recruited through Employment Exchange or through any other accepted mode of selection. It is also not known whether there was any advertisement calling for applications for appointment of these respondents. None of the respondents was regularized in service. All of them continued as daily wage employees ad their services were terminated as early as 1991. 5. It is submitted on behalf of the appellant-corporation that some of the fast food centres and tourist complexes of the appellant-corporation are still being run by incurring losses and that there are a large number of workers already available for running them. It was submitted that if these respondents are directed to be reinstated, it would only lead to excess manpower, disproportionate to the actual requirement. IT is, however, to be noted that these respondents had obtained an award for reinstatement as the appellant-corporation did not raise appropriate contention before the Labour Court. However, it is clear that in other cases the labour court accepted the plea raised by the appellant-corporation. These respondents, as stated earlier, were mostly working as Cook, Cleaner, Sweeper and Gardener, etc; and by the nature of their work, they must have been doing similar work elsewhere if not regularly, at least intermittently after their services were terminated.6. Having regard to the above facts, we do not think that the direction to reinstate them would be a just and equitable solution at this distance of time.	0[ds]3. It is important to note that some of the fast food centres, which were under the management of thewere entrusted to the Transport Department and there was a change of policy made in the month of September, 1991. This plea was raised by the appellant before the labour court when one of the employees of thewho was engaged by them as a Sweeper in a catering service station at Hissar, challenged his termination order. The plea of thethat there was a change of policy in September, 1991, was accepted by the Labour Court and the Labour Court also relied on Ex.copy of the minutes of the meeting dated 8.11.1988 of the State Govt. for starting catering services at the bus stands and also Ex.copy of the minutes of the subsequent meeting dated 5.9.1991 for taking a decision for closing down the said services and for handling over the possession of the bus stands to the Transport Department. But, a specific plea was not raised by thein these mattes. Certain other facts are, however, relevant to be noted for the purposes of these cases.4. The respondents herein were engaged to work on daily wage basis. They were not recruited through Employment Exchange or through any other accepted mode of selection. It is also not known whether there was any advertisement calling for applications for appointment of these respondents. None of the respondents was regularized in service. All of them continued as daily wage employees ad their services were terminated as early as 1991.It is submitted on behalf of thethat some of the fast food centres and tourist complexes of thee still being run by incurring losses and that there are a large number of workers already available for running them. It was submitted that if these respondents are directed to be reinstated, it would only lead to excess manpower, disproportionate to the actual requirement.IT is, however, to be noted that these respondents had obtained an award for reinstatement as thedid not raise appropriate contention before the Labour Court. However, it is clear that in other cases the labour court accepted the plea raised by theThese respondents, as stated earlier, were mostly working as Cook, Cleaner, Sweeper and Gardener, etc; and by the nature of their work, they must have been doing similar work elsewhere if not regularly, at least intermittently after their services were terminated.6. Having regard to the above facts, we do not think that the direction to reinstate them would be a just and equitable solution at this distance of time.	0	891	464	### 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: K.G. Balakrishnan, J. 1. Appellant - Haryana Tourism Corporation Limited in these appeals is a Government-owned company incorporated under the Companies Act. The appellant-corporation was engaged in the tourism-related activities in the State of Haryana. As part of its activities, the appellant-corporation started various fast food centres and tourist complexes in different parts of the State and utilized the services of these respondents to meet the day-to-day requirements of work. The respondents in these appeals were engaged either as Kitchen Helper, Mali or Sweeper and according to the appellant-corporation, these respondents were given daily-wage appointments. The fast food centres/tourist complexes in question were started on 8.11.1988. The appellant alleged that soon after these fast food centres and tourist complexes were started many of them stated running into losses and in 1991, the State Govt. re-considered the matter and took a policy decision to discontinue the running of some of them and that the appellant-corporation returned these outlets to the Transport Department. This change of policy, the appellant stated, necessitated the retrenchment of the respondent workmen and accordingly the services of the respondent workmen were terminated in the months of August and October, 1991. The respondents challenged the termination of their services and the matter was referred to the Labour Court under the Industrial Disputes Act, 1947. The Labour Court, by its award, directed reinstatement of the respondents in service with 25 per cent back wages. The appellant- corporation challenged the award of the Labour Court before the High Court of Punjab & Haryana, but the High Court declined to interfere with the award passed by the Labour Court. The judgment of the High Court is challenged before us by the appellant-corporation. 2. We heard Shri Sudhir Walia, learned Addl. Advocate General for the appellant-corporation and also counsel for the respondents. Shri walia submitted that these respondents were engaged on daily-wage basis and their services were terminated when the policy of the State Govt. was reviewed and the appellant-corporation then entrusted most of the outlets to the Transport Department. The counsel for the respondents disputed this fact. On the other hand, it was alleged that the appellant-corporation opened fresh fast food centres and started engaging new employees. 3. It is important to note that some of the fast food centres, which were under the management of the appellant-corporation were entrusted to the Transport Department and there was a change of policy made in the month of September, 1991. This plea was raised by the appellant before the labour court when one of the employees of the appellant-corporation who was engaged by them as a Sweeper in a catering service station at Hissar, challenged his termination order. The plea of the appellant-corporation that there was a change of policy in September, 1991, was accepted by the Labour Court and the Labour Court also relied on Ex. M-1 copy of the minutes of the meeting dated 8.11.1988 of the State Govt. for starting catering services at the bus stands and also Ex. M-3 copy of the minutes of the subsequent meeting dated 5.9.1991 for taking a decision for closing down the said services and for handling over the possession of the bus stands to the Transport Department. But, a specific plea was not raised by the appellant-corporation in these mattes. Certain other facts are, however, relevant to be noted for the purposes of these cases.4. The respondents herein were engaged to work on daily wage basis. They were not recruited through Employment Exchange or through any other accepted mode of selection. It is also not known whether there was any advertisement calling for applications for appointment of these respondents. None of the respondents was regularized in service. All of them continued as daily wage employees ad their services were terminated as early as 1991. 5. It is submitted on behalf of the appellant-corporation that some of the fast food centres and tourist complexes of the appellant-corporation are still being run by incurring losses and that there are a large number of workers already available for running them. It was submitted that if these respondents are directed to be reinstated, it would only lead to excess manpower, disproportionate to the actual requirement. IT is, however, to be noted that these respondents had obtained an award for reinstatement as the appellant-corporation did not raise appropriate contention before the Labour Court. However, it is clear that in other cases the labour court accepted the plea raised by the appellant-corporation. These respondents, as stated earlier, were mostly working as Cook, Cleaner, Sweeper and Gardener, etc; and by the nature of their work, they must have been doing similar work elsewhere if not regularly, at least intermittently after their services were terminated.6. Having regard to the above facts, we do not think that the direction to reinstate them would be a just and equitable solution at this distance of time. ### Response: 0 ### Explanation: 3. It is important to note that some of the fast food centres, which were under the management of thewere entrusted to the Transport Department and there was a change of policy made in the month of September, 1991. This plea was raised by the appellant before the labour court when one of the employees of thewho was engaged by them as a Sweeper in a catering service station at Hissar, challenged his termination order. The plea of thethat there was a change of policy in September, 1991, was accepted by the Labour Court and the Labour Court also relied on Ex.copy of the minutes of the meeting dated 8.11.1988 of the State Govt. for starting catering services at the bus stands and also Ex.copy of the minutes of the subsequent meeting dated 5.9.1991 for taking a decision for closing down the said services and for handling over the possession of the bus stands to the Transport Department. But, a specific plea was not raised by thein these mattes. Certain other facts are, however, relevant to be noted for the purposes of these cases.4. The respondents herein were engaged to work on daily wage basis. They were not recruited through Employment Exchange or through any other accepted mode of selection. It is also not known whether there was any advertisement calling for applications for appointment of these respondents. None of the respondents was regularized in service. All of them continued as daily wage employees ad their services were terminated as early as 1991.It is submitted on behalf of thethat some of the fast food centres and tourist complexes of thee still being run by incurring losses and that there are a large number of workers already available for running them. It was submitted that if these respondents are directed to be reinstated, it would only lead to excess manpower, disproportionate to the actual requirement.IT is, however, to be noted that these respondents had obtained an award for reinstatement as thedid not raise appropriate contention before the Labour Court. However, it is clear that in other cases the labour court accepted the plea raised by theThese respondents, as stated earlier, were mostly working as Cook, Cleaner, Sweeper and Gardener, etc; and by the nature of their work, they must have been doing similar work elsewhere if not regularly, at least intermittently after their services were terminated.6. Having regard to the above facts, we do not think that the direction to reinstate them would be a just and equitable solution at this distance of time.
Prem Nath Kaul Vs. The State Of Jammu & Kashmir	treated the problem of Kashmir on a special basis and that though the association of Kashmir with India which began with the Instrument of Accession has been steadily and gradually growing closer and closer on a democratic basis, it still presents features not common to any other State included in the Union of India. We have no doubt that at the time when the Act was passed the plenary legislative powers of the Yuvaraj had not been affected in any manner.The result is that Yuvaraj Karan Singh was competent to enact the Act in 1950 and so the challenge to the validity of the Act on the ground that he did not possess legislative competence in that behalf cannot succeed. 44. It is clear that the validity of the Act cannot be challenged on the ground that the Act did not provide for the payment of compensation. For one thing S. 26 of the Act did contemplate the payment of compensation. Besides, its the law of the State then stood, there was no limitation on the legislative power of the Ruler such as is prescribed by Art. 31 of the Constitution and Art. 31 had not been then applied to the State. Subsequently when Art. 31(2) was extended to the State the Act no doubt became the existing law and it has been saved by the new and modified cl. (5) of the said Article. 45. There is another aspect of the matter to which reference must be made. Section 26 of the Act had left the final decision on the question of the payment of compensation to the Constituent Assembly of the State; and it is common ground that the Constituent Assembly has decided not to pay any compensation.Mr. Chatterjee contends that this decision is invalid because the Constituent Assembly itself was not properly called and constituted. There is no substance in this argument.After Yuvaraj Karan Singh was put in charge of the duties of governing the State by Maharaja Hari Singh by his proclamation issued on June 20, 1949, he began to function as a Ruler and was entitled to exercise all his powers in that behalf. He realised that the original plan of Maharaja Hari Singh to call a national assembly which he announced on March 5, 1948, would not meet the requirements of the situation which had radically changed; and the Yuvaraj thought that a Constituent Assembly on a broader basis should be called and should be entrusted with the task of framing a Constitution without any delay. It is idle to suggest that the Yuvaraj was bound to convene the national assembly on the same lines as were laid down by Maharaja Hari Singh in his proclamation and with the same object, for the same purpose, and subject to the same conditions. It was for the Yuvaraj to consider the situation which confronted him and it was within his competence to decide what solution would satisfactorily meet the requirements of the situation. We have no doubt that the Yuvaraj was perfectly competent to issue the proclamation on April 20, 1951, under which the Constituent Assembly ultimately came to be elected and convened. If the Constituent Assembly was properly constituted and it decided not to pay any compensation to the landlords it is difficult to understand how the validity of this decision can be effectively challenged. 46. That leaves only one question to be considered. It is contended that the Act is invalid under Art. 254 of the Constitution because it is inconsistent with the two earlier Acts, No. 10 of 1990 and No. 4 of 1977. It is unnecessary to enquire whether there is any repugnancy between the Act and the earlier Acts to which the appellant refers. In our opinion the argument based on the provisions of Art. 254 must be rejected on the preliminary ground that it is impossible to invoke the assistance of this article effectively because in terms the essential conditions for its application are absent in the present case. This argument assumes that under Art. 254(1) if there is repugnancy between any provision of a law made by the Legislature of a State and any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of clause (2), the law made by the Legislature of the State was to the extent of the repugnancy void. The appellant concedes that there is no scope for applying the provisions of cl. (2) of Art. 254 which deals with cases where the subsequent law has been reserved for the consideration and assent of the President; but this aspect of the matter itself shows that the whole article would in substance be inapplicable to the State.Clause (2) of Art. 254 which is its integral and important part, postulates that the Legislature of the State, in enacting a law on the relevant matter may reserve it for consideration of the President and his assent, and thereby save the consequences of cl.(1); and cl. (2) was clearly inapplicable to the State. Besides it is clear that the essential condition for the application of Art. 254(1) is that the existing law must be with respect to one of the matters enumerated in the Concurrent List; in other words, unless it is shown that the repugnancy is between the provisions of a subsequent law and those of an existing law in respect of the specified matters, the Article would be inapplicable; and, as we have already pointed out, Schedule Seven which contains the three Legislative Lists was not then extended to the State, and it is, therefore, impossible to predicate that the matter covered by the prior law is one of the matters enumerated in the Concurrent List.That is why Art. 254 cannot be invoked by the appellant. On this view, it is not necessary to consider whether the construction sought to be placed by the appellant on this Article is otherwise correct or not. 47.	0[ds]These provisions make it clear that his Highness could enlarge the list of reserved matters thereby limiting the jurisdiction of the Praja Sabha. Similarly the legislative procedure prescribed by Section 31, sub-sections (2) and (3) clearly shows that it is only such bills as received the assent of His Highness that became law, His Highnesss power to assent or not to assent to the bills submitted to him being absolutely unfettered. The ordinances issued by His Highness under S. 38 cannot be repealed or altered by the Praja Sabha by virtue of S. 39; and lastly S. 72 expressly preserves the inherent power and prerogative of His Highness.Thus there can be no doubt that though this Act marked the second step taken by His Highness in actively associating his subjects with the administration of the State, it did not constitute even a partial surrender by His Highness of his sovereign rights in favour of the Praja Sabha. So far as the said powers are concerned, the constitutional position under this Act is substantially the same as under the earlier ActWhilst this was the true constitutional position the Independence Act, 1947 was passed by the British Parliament; and with the lapse of the British paramountcy the Rulers of Indian States were released from the limitations imposed on their sovereignty by the said paramountcy of the British Crown and by the treaties in force between the British Government and the States; this was, however, subject to the proviso prescribed by S. 7 of the Independence Act under which effect had to be given to the provisions of the agreements specified in the proviso until they were denounced by the Rulers of the States or were superseded by subsequent agreements.In the result, subject to the agreements saved by the proviso, Maharaja Hari Singh continued to be an absolute monarch of the State, and in the eyes of international law he might conceivably have claimed the status of a sovereign and independent State.But it is urged that the sovereignty of the Maharaja was considerably affected by the provisions of the Instrument of Accession which he signed on 25-10-1947. This argument is clearly untenable. It is true that by cl. 1 of the Instrument of Accession. His Highness conceded to the authorities mentioned in the said clause the right to exercise in relation to his State such functions as may be vested in them by or under the Government of India Act 1935 as in force in the said Dominion on August 15, 1947, but this was subject to the other terms of the Instrument of Accession itself; and cl. 6 of the Instrument clearly and expressly recognised the continuance of the sovereignty of His Highness in and over his State.We must, therefore, reject the argument that the execution of the Instrument of Accession affected in any manner the legislative, executive and judicial powers in regard to the government of the State which then vested in the Ruler of the State. The proclamation merely shows that, under pressure of public opinion and as a result of the difficult and delicate problem raised by the tribal raid, the Maharaja very wisely chose to entrust the actual administration of the government to the charge of a popular Cabinet; but the description of the Cabinet as a popular interim government did not make the said cabinet a popular Cabinet in the true constitutional sense of the expression. The Cabinet had still to function under the Constitution Act 14 of 1996 (1939) and whatever policies it pursued, it had to act under the overriding powers of His Highness. It is thus clear that until the Maharaja issued his proclamation on June 20, 1949, all his powers legislative, executive and judicial as well as his right and prerogative vested in him as before.That is why the argument that Maharaja Hari Singh had surrendered his sovereign powers in favour of the Praja Sabha and the popular interim government thereby accepting the status of a constitutional monarch cannot be upheld29.Besides, it would be permissible to observe that though the proclamation purports to have been issued on the ground that Maharaja Hari Singh was leaving the State for a temporary period for reasons of health, it was clear even then that the temporary departure of the Maharaja really meant his permanent retirement from the State.It was realised by him as much as by his subjects that to face the stress and strain caused by the unusual problems raised by the act of aggression against the State, it was necessary that he should, quit and young Yuvaraj Karan Singh should take his place.Thus considered the proclamation really amounted to his abdication and installation by him of Yuvaraj Karan Singh as the Ruler of the State.It is, however, not necessary to consider any further this aspect of the matter in dealing with the authority of Yuvaraj Karan Singh, because, as we have just held, Maharaja Hari Singh was competent to delegate his powers to Yuvaraj Karan Singh for a temporary period as his proclamation purported to do; and by virtue of such delegation, Yuvaraj Karan Singh was clothed with all the authority which his father possessed as the Ruler of the State until the proclamation was revoked. Therefore, the argument that Maharaja Hari Singhs proclamation issued on June 20, 1949, did not confer on Yuvaraj Karan Singh the specified powers cannot be acceptedWe are not impressed even by this argument. By this proclamation Yuvaraj Karan Singh purported to make applicable to his State the Constitution of India which was shortly going to be adopted by the Constituent Assembly of India in so far as was applicable; in other words, this proclamation did not carry the constitutional position any further than where it stood after and as a result of the execution of the Instrument of Accession by Maharaja Hari Singh. It is thus clear that the proclamation did not affect Yuvaraj Karan Singhs authority and powers as the Ruler of the which had been conferred on him by the proclamation of his father issued in that behalfThis clause shows that the Constitution-makers attached great importance to the final decision of the Constituent Assembly, and the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provisions of Art. 370 (1) is made conditional on the final approval by the said Constituent Assembly in the said matters.But, it is possible to take the view that the said clause really indicates that in recognising any person as the Maharaja of the State the President has to act on the advice of the Council of Ministers for the time being in office under the Maharajas proclamation dated March 5, 1948. If that be the true construction of the explanation, then the argument that, before the Maharaja is consulted or his concurrence is obtained, he must act on the advice of his Ministers would not be valid. We would, however, like to deal with the argument even on the assumption that the construction put by the appellant on the explanation is rightThe Constitution-makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself; that is the main basis for, and purport of, the temporary provisions made by the present article; and so the effect of its provisions must be confined to its subject-matter. It would not be permissible or legitimate to hold that, by implication, this article sought to impose limitations on the plenary legislative powers of the Maharaja. These powers had been recognised and specifically provided by the Constitution Act of the State itself; and it was not, and could not have been, within the contemplation, or competence of the Constitution makers to impinge even indirectly on the said powers. It would be recalled that by the Instrument of Accession these powers have been expressly recognised and preserved and neither the subsequent proclamation issued by Yuvaraj Karan Singh adopting, as far as it was applicable, the proposed Constitution of India, nor the Constitution Order subsequently issued by the President, purported to impose any limitations on the said legislative powers of the Ruler. What form of government the State should adopt was a matter which had to be, and naturally was left to be, decided by the Constituent Assembly of the State. Until the Constituent Assembly reached its decision in that behalf, the constitutional relationship between the State and India continued to be governed basically by the Instrument of Accession.It would, therefore, be unreasonable to assume that the application of Art. 370 could have affected, or was intended to affect, the plenary powers of the Maharaja in the matter of the governance of the State. In our opinion, the appellants contention based on this article must, therefore, be rejectedIt seems to us that the initial formal application of this article cannot justify the appellants case that the plenary legislative powers vesting in the Ruler of the State were not only affected but, as the appellant contends, completely extinguished. The constitutional position in regard to the government of the State continued to be the same despite the application of this Article. In dealing with the application of this Article and Arts. 245, 254 and 255, it would be permissible to rely on the rule of construction set out in Maxwell that "a thing which is within the letter of a statute is generally to be considered as not within the statute unless it is also the real intention of the Legislature" Maxwell on "Interpretation of Statutes," 10th ed., p. 17. It is evident that the Constitution-makers have treated the problem of Kashmir on a special basis and that though the association of Kashmir with India which began with the Instrument of Accession has been steadily and gradually growing closer and closer on a democratic basis, it still presents features not common to any other State included in the Union of India. We have no doubt that at the time when the Act was passed the plenary legislative powers of the Yuvaraj had not been affected in any manner.The result is that Yuvaraj Karan Singh was competent to enact the Act in 1950 and so the challenge to the validity of the Act on the ground that he did not possess legislative competence in that behalf cannot succeedIt is clear that the validity of the Act cannot be challenged on the ground that the Act did not provide for the payment of compensationIn our opinion the argument based on the provisions of Art. 254 must be rejected on the preliminary ground that it is impossible to invoke the assistance of this article effectively because in terms the essential conditions for its application are absent in the present case. This argument assumes that under Art. 254(1) if there is repugnancy between any provision of a law made by the Legislature of a State and any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of clause (2), the law made by the Legislature of the State was to the extent of the repugnancy void. The appellant concedes that there is no scope for applying the provisions of cl. (2) of Art. 254 which deals with cases where the subsequent law has been reserved for the consideration and assent of the President; but this aspect of the matter itself shows that the whole article would in substance be inapplicable to the State.Clause (2) of Art. 254 which is its integral and important part, postulates that the Legislature of the State, in enacting a law on the relevant matter may reserve it for consideration of the President and his assent, and thereby save the consequences of cl.(1); and cl. (2) was clearly inapplicable to the State. Besides it is clear that the essential condition for the application of Art. 254(1) is that the existing law must be with respect to one of the matters enumerated in the Concurrent List; in other words, unless it is shown that the repugnancy is between the provisions of a subsequent law and those of an existing law in respect of the specified matters, the Article would be inapplicable; and, as we have already pointed out, Schedule Seven which contains the three Legislative Lists was not then extended to the State, and it is, therefore, impossible to predicate that the matter covered by the prior law is one of the matters enumerated in the Concurrent List.That is why Art. 254 cannot be invoked by the appellant. On this view, it is not necessary to consider whether the construction sought to be placed by the appellant on this Article is otherwise correct or not	0	11,274	2,303	### 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: treated the problem of Kashmir on a special basis and that though the association of Kashmir with India which began with the Instrument of Accession has been steadily and gradually growing closer and closer on a democratic basis, it still presents features not common to any other State included in the Union of India. We have no doubt that at the time when the Act was passed the plenary legislative powers of the Yuvaraj had not been affected in any manner.The result is that Yuvaraj Karan Singh was competent to enact the Act in 1950 and so the challenge to the validity of the Act on the ground that he did not possess legislative competence in that behalf cannot succeed. 44. It is clear that the validity of the Act cannot be challenged on the ground that the Act did not provide for the payment of compensation. For one thing S. 26 of the Act did contemplate the payment of compensation. Besides, its the law of the State then stood, there was no limitation on the legislative power of the Ruler such as is prescribed by Art. 31 of the Constitution and Art. 31 had not been then applied to the State. Subsequently when Art. 31(2) was extended to the State the Act no doubt became the existing law and it has been saved by the new and modified cl. (5) of the said Article. 45. There is another aspect of the matter to which reference must be made. Section 26 of the Act had left the final decision on the question of the payment of compensation to the Constituent Assembly of the State; and it is common ground that the Constituent Assembly has decided not to pay any compensation.Mr. Chatterjee contends that this decision is invalid because the Constituent Assembly itself was not properly called and constituted. There is no substance in this argument.After Yuvaraj Karan Singh was put in charge of the duties of governing the State by Maharaja Hari Singh by his proclamation issued on June 20, 1949, he began to function as a Ruler and was entitled to exercise all his powers in that behalf. He realised that the original plan of Maharaja Hari Singh to call a national assembly which he announced on March 5, 1948, would not meet the requirements of the situation which had radically changed; and the Yuvaraj thought that a Constituent Assembly on a broader basis should be called and should be entrusted with the task of framing a Constitution without any delay. It is idle to suggest that the Yuvaraj was bound to convene the national assembly on the same lines as were laid down by Maharaja Hari Singh in his proclamation and with the same object, for the same purpose, and subject to the same conditions. It was for the Yuvaraj to consider the situation which confronted him and it was within his competence to decide what solution would satisfactorily meet the requirements of the situation. We have no doubt that the Yuvaraj was perfectly competent to issue the proclamation on April 20, 1951, under which the Constituent Assembly ultimately came to be elected and convened. If the Constituent Assembly was properly constituted and it decided not to pay any compensation to the landlords it is difficult to understand how the validity of this decision can be effectively challenged. 46. That leaves only one question to be considered. It is contended that the Act is invalid under Art. 254 of the Constitution because it is inconsistent with the two earlier Acts, No. 10 of 1990 and No. 4 of 1977. It is unnecessary to enquire whether there is any repugnancy between the Act and the earlier Acts to which the appellant refers. In our opinion the argument based on the provisions of Art. 254 must be rejected on the preliminary ground that it is impossible to invoke the assistance of this article effectively because in terms the essential conditions for its application are absent in the present case. This argument assumes that under Art. 254(1) if there is repugnancy between any provision of a law made by the Legislature of a State and any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of clause (2), the law made by the Legislature of the State was to the extent of the repugnancy void. The appellant concedes that there is no scope for applying the provisions of cl. (2) of Art. 254 which deals with cases where the subsequent law has been reserved for the consideration and assent of the President; but this aspect of the matter itself shows that the whole article would in substance be inapplicable to the State.Clause (2) of Art. 254 which is its integral and important part, postulates that the Legislature of the State, in enacting a law on the relevant matter may reserve it for consideration of the President and his assent, and thereby save the consequences of cl.(1); and cl. (2) was clearly inapplicable to the State. Besides it is clear that the essential condition for the application of Art. 254(1) is that the existing law must be with respect to one of the matters enumerated in the Concurrent List; in other words, unless it is shown that the repugnancy is between the provisions of a subsequent law and those of an existing law in respect of the specified matters, the Article would be inapplicable; and, as we have already pointed out, Schedule Seven which contains the three Legislative Lists was not then extended to the State, and it is, therefore, impossible to predicate that the matter covered by the prior law is one of the matters enumerated in the Concurrent List.That is why Art. 254 cannot be invoked by the appellant. On this view, it is not necessary to consider whether the construction sought to be placed by the appellant on this Article is otherwise correct or not. 47. ### Response: 0 ### Explanation: true construction of the explanation, then the argument that, before the Maharaja is consulted or his concurrence is obtained, he must act on the advice of his Ministers would not be valid. We would, however, like to deal with the argument even on the assumption that the construction put by the appellant on the explanation is rightThe Constitution-makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself; that is the main basis for, and purport of, the temporary provisions made by the present article; and so the effect of its provisions must be confined to its subject-matter. It would not be permissible or legitimate to hold that, by implication, this article sought to impose limitations on the plenary legislative powers of the Maharaja. These powers had been recognised and specifically provided by the Constitution Act of the State itself; and it was not, and could not have been, within the contemplation, or competence of the Constitution makers to impinge even indirectly on the said powers. It would be recalled that by the Instrument of Accession these powers have been expressly recognised and preserved and neither the subsequent proclamation issued by Yuvaraj Karan Singh adopting, as far as it was applicable, the proposed Constitution of India, nor the Constitution Order subsequently issued by the President, purported to impose any limitations on the said legislative powers of the Ruler. What form of government the State should adopt was a matter which had to be, and naturally was left to be, decided by the Constituent Assembly of the State. Until the Constituent Assembly reached its decision in that behalf, the constitutional relationship between the State and India continued to be governed basically by the Instrument of Accession.It would, therefore, be unreasonable to assume that the application of Art. 370 could have affected, or was intended to affect, the plenary powers of the Maharaja in the matter of the governance of the State. In our opinion, the appellants contention based on this article must, therefore, be rejectedIt seems to us that the initial formal application of this article cannot justify the appellants case that the plenary legislative powers vesting in the Ruler of the State were not only affected but, as the appellant contends, completely extinguished. The constitutional position in regard to the government of the State continued to be the same despite the application of this Article. In dealing with the application of this Article and Arts. 245, 254 and 255, it would be permissible to rely on the rule of construction set out in Maxwell that "a thing which is within the letter of a statute is generally to be considered as not within the statute unless it is also the real intention of the Legislature" Maxwell on "Interpretation of Statutes," 10th ed., p. 17. It is evident that the Constitution-makers have treated the problem of Kashmir on a special basis and that though the association of Kashmir with India which began with the Instrument of Accession has been steadily and gradually growing closer and closer on a democratic basis, it still presents features not common to any other State included in the Union of India. We have no doubt that at the time when the Act was passed the plenary legislative powers of the Yuvaraj had not been affected in any manner.The result is that Yuvaraj Karan Singh was competent to enact the Act in 1950 and so the challenge to the validity of the Act on the ground that he did not possess legislative competence in that behalf cannot succeedIt is clear that the validity of the Act cannot be challenged on the ground that the Act did not provide for the payment of compensationIn our opinion the argument based on the provisions of Art. 254 must be rejected on the preliminary ground that it is impossible to invoke the assistance of this article effectively because in terms the essential conditions for its application are absent in the present case. This argument assumes that under Art. 254(1) if there is repugnancy between any provision of a law made by the Legislature of a State and any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of clause (2), the law made by the Legislature of the State was to the extent of the repugnancy void. The appellant concedes that there is no scope for applying the provisions of cl. (2) of Art. 254 which deals with cases where the subsequent law has been reserved for the consideration and assent of the President; but this aspect of the matter itself shows that the whole article would in substance be inapplicable to the State.Clause (2) of Art. 254 which is its integral and important part, postulates that the Legislature of the State, in enacting a law on the relevant matter may reserve it for consideration of the President and his assent, and thereby save the consequences of cl.(1); and cl. (2) was clearly inapplicable to the State. Besides it is clear that the essential condition for the application of Art. 254(1) is that the existing law must be with respect to one of the matters enumerated in the Concurrent List; in other words, unless it is shown that the repugnancy is between the provisions of a subsequent law and those of an existing law in respect of the specified matters, the Article would be inapplicable; and, as we have already pointed out, Schedule Seven which contains the three Legislative Lists was not then extended to the State, and it is, therefore, impossible to predicate that the matter covered by the prior law is one of the matters enumerated in the Concurrent List.That is why Art. 254 cannot be invoked by the appellant. On this view, it is not necessary to consider whether the construction sought to be placed by the appellant on this Article is otherwise correct or not
Regional Provident Fund Commissioner Vs. M/S. Ict. Rolling Mills Pvt. Ltd	Sri Krishna Metal Manufacturing Company, 1962 (Supp.) 3 SCR 815 and was reiterated in Regional Provident Fund Commissioner v. Shibu Metal Works, 1965(2) SCR 72.2. The purpose of the aforesaid prologue is to find out as to when power under Section 14-B of the Act should be allowed to be used and whether it would in consonance with the object sought to be achieved by the Act if delay in invoking the power is allowed to stand in the way. As in the present case we are concerned with the order of the Regional Provident Fund Commissioner, Maharashtra, (the Commissioner) levying damages on the respondent for default in the payment of the contribution in exercise of power under Section 14-B, let it be noted what this Court had said about this section in Organo Chemical Industries v. Union of India, 1980(1) SCR 41. In that case this Court was called upon to decide the constitutionality of Section 14-B, which was challenged as violative of Article 14 having conferred unguided power. It rejected the contention. It also spelt out the purpose of imposition of damages, stating that the same was meant to penalise defaulting employer, as also to provide reparation for the amount of loss suffered by the employees. It was pointed out that it is not only a warning to employers in general not to commit a breach of the statutory requirements, but at the same time it is meant to provide compensation or redress to the beneficiaries i.e. to recompense the employees for the loss sustained by them.3. There is no dispute in the present case that the respondent had defaulted in depositing the contributions both its own and as well as of the employees in time. The Commissioner, after applying his mind to the period of delay as well as to the quantum, imposed a sum of Rs. 52,034.80 as damages. The order of the Commissioner came to be challenged before the Bombay High Court by the respondent who has set aside the order solely on the ground that the proceeding was bad because of unreasonable delay in initiating the same. The Court pointed out that though Section 14-B has not laid down any period of limitation, the power has to be exercised within reasonable time. As the default related to the period from July 68 to October 77, relating to which proceedings came to be initiated in 1985, the High Court regarded the delay as unreasonable, and so, fatal. The Regional Provident Fund Commissioner has preferred this appeal with the aid of Article 136 of the Constitution. 4. There can be no dispute in law that when a power is conferred by statute without mentioning the period within which it could be invoked, the same has to be done within reasonable period, as all powers must be exercised reasonably, and exercise of the same within reasonable period would be a facet of reasonableness. When this appeal was heard by us on 7.9.94 and when this aspect of the matter came to our notice, we desired an affidavit from the Commissioner to put on record regarding the point of time when he knew about the default and to explain the cause of delay. Pursuant to that order, the Commissioner filed his affidavit on 10.11.94, according to which the power of levying damages came to be delegated to the Commissioner by an order dated 17.10.73. As, however, large number of establishments were in existence in the State of Maharashtra the number of which in 1985 was 22, 189 and there was only one Regional Provident Fund Commissioner having power to levy damages, delay was caused in detection of the cases of belated payment. According to the affidavit, the default at hand was located on 19.4.85 and the damages came to be levied by order dated 5.11.86. 5. The aforesaid shows that the delay was of 12 years viewed generally and was of 1-1/2 years qua the case at hand. Though the general period of delay is quite long, unreasonably long, but if it is borne in mind that in view of large number of establishments in the State of Maharashtra, default at hand come to notice only in April 1985, the killing effect of delay get eroded. We do not, therefore, think if the order merits to be struck down on the ground of delay, when it is also kept in mind that the delay, in default related even to the contribution of the employees, which money the respondent (after deducting the same from the wages of the employees) must have used for its own purpose and that too without paying any interest, at the cost of those for whose benefit it was meant. Any different stand would encourage the employers to thwart the object of the Act, which cannot be permitted. 6. Shri Mohan, learned counsel for the respondent, pleads that keeping in view what had been ordered by this Court in Christian Medical College, and Brown Memorial Hospital v. Regional Provident Fund Commissioner, 1989(Supp) 2 SCC 95 , we may not sustain the order of the Commissioner. In that case dues were not paid in time because of some controversy as to whether hospitals are covered by the Act. It was, therefore, contended that as the appellants would be complying with the provisions of the Act and would pay all the arrears, damages for delayed payment of the arrears may not be approved. This Court, having regard to the facts of that case, accepted the submission. The facts of the present case are entirely different.7. We, therefore, set aside the impugned judgment of the High Court. But then we state that the respondent would not be called upon to pay any interest on the damages as fixed by the Commissioner, if it would pay the entire amount within two months from today. On the failure of the respondent to so pay, it shall have to pay interest at the rate of 18% from today till full realisation.	1[ds]6. Shri Mohan, learned counsel for the respondent, pleads that keeping in view what had been ordered by this Court in Christian Medical College, and Brown Memorial Hospital v. Regional Provident Fund Commissioner, 1989(Supp) 2 SCC 95 , we may not sustain the order of the Commissioner. In that case dues were not paid in time because of some controversy as to whether hospitals are covered by the Act. It was, therefore, contended that as the appellants would be complying with the provisions of the Act and would pay all the arrears, damages for delayed payment of the arrears may not be approved. This Court, having regard to the facts of that case, accepted the submission. The facts of the present case are entirely different.7. We, therefore, set aside the impugned judgment of the High Court. But then we state that the respondent would not be called upon to pay any interest on the damages as fixed by the Commissioner, if it would pay the entire amount within two months from today. On the failure of the respondent to so pay, it shall have to pay interest at the rate of 18% from today till full realisation.	1	1,235	227	### 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: Sri Krishna Metal Manufacturing Company, 1962 (Supp.) 3 SCR 815 and was reiterated in Regional Provident Fund Commissioner v. Shibu Metal Works, 1965(2) SCR 72.2. The purpose of the aforesaid prologue is to find out as to when power under Section 14-B of the Act should be allowed to be used and whether it would in consonance with the object sought to be achieved by the Act if delay in invoking the power is allowed to stand in the way. As in the present case we are concerned with the order of the Regional Provident Fund Commissioner, Maharashtra, (the Commissioner) levying damages on the respondent for default in the payment of the contribution in exercise of power under Section 14-B, let it be noted what this Court had said about this section in Organo Chemical Industries v. Union of India, 1980(1) SCR 41. In that case this Court was called upon to decide the constitutionality of Section 14-B, which was challenged as violative of Article 14 having conferred unguided power. It rejected the contention. It also spelt out the purpose of imposition of damages, stating that the same was meant to penalise defaulting employer, as also to provide reparation for the amount of loss suffered by the employees. It was pointed out that it is not only a warning to employers in general not to commit a breach of the statutory requirements, but at the same time it is meant to provide compensation or redress to the beneficiaries i.e. to recompense the employees for the loss sustained by them.3. There is no dispute in the present case that the respondent had defaulted in depositing the contributions both its own and as well as of the employees in time. The Commissioner, after applying his mind to the period of delay as well as to the quantum, imposed a sum of Rs. 52,034.80 as damages. The order of the Commissioner came to be challenged before the Bombay High Court by the respondent who has set aside the order solely on the ground that the proceeding was bad because of unreasonable delay in initiating the same. The Court pointed out that though Section 14-B has not laid down any period of limitation, the power has to be exercised within reasonable time. As the default related to the period from July 68 to October 77, relating to which proceedings came to be initiated in 1985, the High Court regarded the delay as unreasonable, and so, fatal. The Regional Provident Fund Commissioner has preferred this appeal with the aid of Article 136 of the Constitution. 4. There can be no dispute in law that when a power is conferred by statute without mentioning the period within which it could be invoked, the same has to be done within reasonable period, as all powers must be exercised reasonably, and exercise of the same within reasonable period would be a facet of reasonableness. When this appeal was heard by us on 7.9.94 and when this aspect of the matter came to our notice, we desired an affidavit from the Commissioner to put on record regarding the point of time when he knew about the default and to explain the cause of delay. Pursuant to that order, the Commissioner filed his affidavit on 10.11.94, according to which the power of levying damages came to be delegated to the Commissioner by an order dated 17.10.73. As, however, large number of establishments were in existence in the State of Maharashtra the number of which in 1985 was 22, 189 and there was only one Regional Provident Fund Commissioner having power to levy damages, delay was caused in detection of the cases of belated payment. According to the affidavit, the default at hand was located on 19.4.85 and the damages came to be levied by order dated 5.11.86. 5. The aforesaid shows that the delay was of 12 years viewed generally and was of 1-1/2 years qua the case at hand. Though the general period of delay is quite long, unreasonably long, but if it is borne in mind that in view of large number of establishments in the State of Maharashtra, default at hand come to notice only in April 1985, the killing effect of delay get eroded. We do not, therefore, think if the order merits to be struck down on the ground of delay, when it is also kept in mind that the delay, in default related even to the contribution of the employees, which money the respondent (after deducting the same from the wages of the employees) must have used for its own purpose and that too without paying any interest, at the cost of those for whose benefit it was meant. Any different stand would encourage the employers to thwart the object of the Act, which cannot be permitted. 6. Shri Mohan, learned counsel for the respondent, pleads that keeping in view what had been ordered by this Court in Christian Medical College, and Brown Memorial Hospital v. Regional Provident Fund Commissioner, 1989(Supp) 2 SCC 95 , we may not sustain the order of the Commissioner. In that case dues were not paid in time because of some controversy as to whether hospitals are covered by the Act. It was, therefore, contended that as the appellants would be complying with the provisions of the Act and would pay all the arrears, damages for delayed payment of the arrears may not be approved. This Court, having regard to the facts of that case, accepted the submission. The facts of the present case are entirely different.7. We, therefore, set aside the impugned judgment of the High Court. But then we state that the respondent would not be called upon to pay any interest on the damages as fixed by the Commissioner, if it would pay the entire amount within two months from today. On the failure of the respondent to so pay, it shall have to pay interest at the rate of 18% from today till full realisation. ### Response: 1 ### Explanation: 6. Shri Mohan, learned counsel for the respondent, pleads that keeping in view what had been ordered by this Court in Christian Medical College, and Brown Memorial Hospital v. Regional Provident Fund Commissioner, 1989(Supp) 2 SCC 95 , we may not sustain the order of the Commissioner. In that case dues were not paid in time because of some controversy as to whether hospitals are covered by the Act. It was, therefore, contended that as the appellants would be complying with the provisions of the Act and would pay all the arrears, damages for delayed payment of the arrears may not be approved. This Court, having regard to the facts of that case, accepted the submission. The facts of the present case are entirely different.7. We, therefore, set aside the impugned judgment of the High Court. But then we state that the respondent would not be called upon to pay any interest on the damages as fixed by the Commissioner, if it would pay the entire amount within two months from today. On the failure of the respondent to so pay, it shall have to pay interest at the rate of 18% from today till full realisation.
S. C. Prashar, Income-Tax Officer,Market Ward, Bombay And Vs. Vasantsen Dwarkadas And Others	escaped income. But those who are guilty of an omission or failure or who give incorrect particulars or conceal the particulars of their income must stand exposed to action for a longer time. The difference between these two cases is understandable. Those who are deliberately in default generally cover up their action and it takes longer to detect them and open proceedings against them. They cannot be allowed to say that theirs is a case on par with a man who acts innocently. The section also draws a distinction between two more classes one above rupees one lakh and the other below it. In the former there is no limit of time ex- cept that the income-tax officer cannot go beyond the year ending on the March 31, 1941, arid that he must take the sanction of the Board of Revenue. In the other cases the Income-tax Officer can take action within eight years and must obtain the sanction of his Commissioner. These two distinctions have never been challenged as discriminatory.What is challenged is the provision that if in the assessment proceedings against A there is a finding or direction against B, proceedings can be started against B at any time while the time limit for action otherwise is either four years or eight years. But it must be remembered that the law is dealing with the subject of tax evasion. No uniform system applicable to all kinds of defaulters can be made. The methods of tax evaders are both ingenious and varied. One such method is to confuse the issue by mixing up incomes, profits and gains of several parties so that the income of A may appear to be the income of B or of A B. There is of course always the chance that it may not be discovered to be the income of either A or B or A B. The cases with which we have dealt are admirable examples of such actions. Whether the firm "Vasantsen Dwarkadas" belonged to its three partners, or to Dwarkadas alone or to the firm "Purshottam Laxmidas"; whether Jagannath Ramkishan was a munim of Jagannath Fakirchand or his partner; whether Lakhmir Singh or Nechal Singh from a Hindu undivided family or were seperate are questions the answers to which may not be known till some Court or Tribunal finds the true facts and there is no reason why a law should not be framed in such a way as to give more time for action. If A keeps his money with B and this fact is discovered in the assessment proceedings against B and a finding to that effect is given, a situation arises in which the law thinks that A should be brought to book even though, if action against him were commenced in the ordinary way, -it would have been out of time. The finding does not hurt A. He need not be heard before the finding is given because he is heard in his own proceedings and the finding given earlier does not bind him. All that happens is that he is faced with an inquiry which he would have avoided if the true facts had not been discovered. He would have faced an inquiry if the matter had been discovered earlier independently of the finding within a shorter period. He now faces the same enquiry but without the limit of time. He need not compare himself with others but only with himself. The different treatment arises under different circumstances and they serve the object which is to bring to tax the tax evader. In this connection, reference may be made to the decision in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti ([1955] 2 S.C.R. 1196.) where two classess of tax evaders contemplated by s. 47 of the Travancore Income Tax Act XXIII of 1121, which corresponded to s. 34 (1) of the Income-tax Act as it stood before the amendment of 1948, and by s. 5 (1) of the Travancore Taxation on Income (Investigation Commission) Act XIV of 11 24, were held to be different classes and not falling within the same category on the ground that action against the former class could be taken on the basis of definite information coming into possession of the Income-tax Officer that income had escaped, while, in the case of the latter, the Government could refer the cases to the Commission on finding prima facie reason to believe that they had evaded payment of tax to a substantial amount. The persons who came under s. 34 (1) (a) of the Income-tax Act after the amendment of 1948 are those in respect of whose income the Income-tax Officer has reason to believe that due to certain conduct on their part their income has escaped assessment, while action can be taken against the persons contemplated by the second proviso to sub-s. (3) against those persons alone with respect to whose escaped income some authority had given a finding or directions. These latter persons would therefore correspond to the persons contemplated by s. 47 of the Travancore Income-tax Act, while the other tax evaders contemplated by s. 34 (1) as amended in 1948 would correspond to persons contemplated by s. 5 (1) of the Investigation Commission Act. We see no reason to hold that the second proviso to s. 34 (3) offends Article 14.In the result, as we have already said, we would allow all these appeals. We would also grant costs of the appellants both here and in the High Court in C. A. No. 585 of 1960 and C. As. No#. 214 and 215 of 1958 but in view of the undertaking given in the High Court by the Department the appellants in C. A. No. 705 of 1957 shall bear the costs of the first and second respondents in this Court and also in C. A. No. 509 of 1958 we would make a similar order in view of the order of the, High Court granting the certificate.79.	1[ds]To my mind, all that these words mean is that the section to be considered is the section as it stood before it was amended by the ]Finance Act, 1956, that is to say, the section as it stood as a result of the amending Act of 1948, for that was the section which was in force immedi- ately before the amendment affected by the Finance Act,that is the result of the words used in s. 4, the words must have that effect. That would be no reason to say that s. 4 applies only to notices issued after the 1956 Act came into force. No doubt the words " at any time" would comprehend a notice whenever issued before the commencement of the 1959 Act. But the section protects such notice only against the invalidity caused by s. 34 (1) as it stood after the 1948 amendment, that is, against the invalidity caused by reason of the notice having been issued after the expiry of the time prescribed for it in the section as it then stood. Section 4 does riot protect the notice from invalidity otherwise attaching to it. Now it will be remembered that the 1939 amendment of s. 34 also prescribed a period of time for the issue of the notice. That prescription had to be obeyed whenever applicable. Section 4 provided for no immunity against a breach of that prescription. So, though s. 4 of the 1959 Act freed a notice from the bar of limitation in respect of it imposed by the 1948 amendment, it did not altogether do away with all prescriptions of time. Inspite of s. 4, a notice contemplated by it would be subject to the prescription of time as to its issue under the 1939 Act and may be, under s. 34 as it stood before the 1939 amendment. If the notice was issued after the 1956, amendment it would also be subject to the prescription as to time provided by that amendment.Then it was said that if s. 4 applied to a notice issued more than eight years after the year in which the income escaped assessment but before the 1956 amendment came into force in a case where the escaped income of the year was less than Rs. 1, 00, 000/-, the position. would be curious. A notice issued in a similar case after the 1956 amendment would be bad under s. 34 as it then stood and s. 4 could not save it for it saved notices only from the effect of the 1948 amendment. The position then would be that in a case involving the same amount of escaped income for the same year, a notice issued before 1956 amendment and invalid under the 1948 amendment would be validated and a more recent notice equally invalid under both the earlier and present laws would remain invalid. Assume that the position is somewhat curious or incongruous. But that seems to me to be the result of the words used. For all we know that might have been intended. However strange, if at all, the result may be, I do not think the Courts can alter the plain meaning of the language of the statute only on the ground of incongruity if there is nothing in the words which would justify the alteration. As I have said earlier, in this case there is nothing to justify the alteration of the plain meaning. Consider this. In a case where the escaped income is Rs. 1, 00, 000/- or over, no incongruity as in the case of escaped income below Rs. 1, 00, 600/- arises. In such a case the 1956 amendment removes the bar of limitation altogether and what had not been previously barred cannot become at all barred. So no question of more recent notices becoming barred and earlier notices made valid arises: If on the ground of the alleged incongruity notices issued before 1956 in cases of escaped income of less than Rs. 1, 00, 000/- have to be left out of the scope of s. 4 of the Act of 1959, I suppose we must hold that such notices in cases of escaped income of Rs. 1, 00, 000/or over must also be left out of the scope of s. 4, for clearly the section cannot be read as treating the notices in these two cases differently. But in the latter kind of cases, there is no incongruity. It would indeed be absurd to hold that notices issued before 1956 in cases where the escaped income was Rs. 1, 00, 000/- or over were excluded from s. 4, for in such cases notices may be clearly issued after the 1959 Act under sub-s. (4) of s. 34 introduced by that Act. Sub-section (4) of s. 34 was enacted by the Act of 1959 which also enacted s. 4. If a years escaped income could be brought to tax by a notice issued after the 1959 Act under sub-s. (4), it could not be that it was intended that the same income could not be brought to tax by a notice earlier issued and prima facie made valid by s. 4. There would be no reason to make a distinction between the two cases. If a distinction could not be made between the two cases, and in one case notices issued before 1956 were covered by s. 4, s. 4 must apply to all notices issued before the 1956 amendment came into force.I may, before I conclude, as well say that for the reasons mentioned in the judgment in the case of Commissioner of Income-tax v. Sardar Lakhmir Singh (C. As. Nos. 214-215 of 1958), that I shall presently read today, I think that the second proviso to s. 34 (3) of the Income-tax Act is invalid and cannot therefore support the notice.	1	36,671	1,080	### 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: escaped income. But those who are guilty of an omission or failure or who give incorrect particulars or conceal the particulars of their income must stand exposed to action for a longer time. The difference between these two cases is understandable. Those who are deliberately in default generally cover up their action and it takes longer to detect them and open proceedings against them. They cannot be allowed to say that theirs is a case on par with a man who acts innocently. The section also draws a distinction between two more classes one above rupees one lakh and the other below it. In the former there is no limit of time ex- cept that the income-tax officer cannot go beyond the year ending on the March 31, 1941, arid that he must take the sanction of the Board of Revenue. In the other cases the Income-tax Officer can take action within eight years and must obtain the sanction of his Commissioner. These two distinctions have never been challenged as discriminatory.What is challenged is the provision that if in the assessment proceedings against A there is a finding or direction against B, proceedings can be started against B at any time while the time limit for action otherwise is either four years or eight years. But it must be remembered that the law is dealing with the subject of tax evasion. No uniform system applicable to all kinds of defaulters can be made. The methods of tax evaders are both ingenious and varied. One such method is to confuse the issue by mixing up incomes, profits and gains of several parties so that the income of A may appear to be the income of B or of A B. There is of course always the chance that it may not be discovered to be the income of either A or B or A B. The cases with which we have dealt are admirable examples of such actions. Whether the firm "Vasantsen Dwarkadas" belonged to its three partners, or to Dwarkadas alone or to the firm "Purshottam Laxmidas"; whether Jagannath Ramkishan was a munim of Jagannath Fakirchand or his partner; whether Lakhmir Singh or Nechal Singh from a Hindu undivided family or were seperate are questions the answers to which may not be known till some Court or Tribunal finds the true facts and there is no reason why a law should not be framed in such a way as to give more time for action. If A keeps his money with B and this fact is discovered in the assessment proceedings against B and a finding to that effect is given, a situation arises in which the law thinks that A should be brought to book even though, if action against him were commenced in the ordinary way, -it would have been out of time. The finding does not hurt A. He need not be heard before the finding is given because he is heard in his own proceedings and the finding given earlier does not bind him. All that happens is that he is faced with an inquiry which he would have avoided if the true facts had not been discovered. He would have faced an inquiry if the matter had been discovered earlier independently of the finding within a shorter period. He now faces the same enquiry but without the limit of time. He need not compare himself with others but only with himself. The different treatment arises under different circumstances and they serve the object which is to bring to tax the tax evader. In this connection, reference may be made to the decision in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti ([1955] 2 S.C.R. 1196.) where two classess of tax evaders contemplated by s. 47 of the Travancore Income Tax Act XXIII of 1121, which corresponded to s. 34 (1) of the Income-tax Act as it stood before the amendment of 1948, and by s. 5 (1) of the Travancore Taxation on Income (Investigation Commission) Act XIV of 11 24, were held to be different classes and not falling within the same category on the ground that action against the former class could be taken on the basis of definite information coming into possession of the Income-tax Officer that income had escaped, while, in the case of the latter, the Government could refer the cases to the Commission on finding prima facie reason to believe that they had evaded payment of tax to a substantial amount. The persons who came under s. 34 (1) (a) of the Income-tax Act after the amendment of 1948 are those in respect of whose income the Income-tax Officer has reason to believe that due to certain conduct on their part their income has escaped assessment, while action can be taken against the persons contemplated by the second proviso to sub-s. (3) against those persons alone with respect to whose escaped income some authority had given a finding or directions. These latter persons would therefore correspond to the persons contemplated by s. 47 of the Travancore Income-tax Act, while the other tax evaders contemplated by s. 34 (1) as amended in 1948 would correspond to persons contemplated by s. 5 (1) of the Investigation Commission Act. We see no reason to hold that the second proviso to s. 34 (3) offends Article 14.In the result, as we have already said, we would allow all these appeals. We would also grant costs of the appellants both here and in the High Court in C. A. No. 585 of 1960 and C. As. No#. 214 and 215 of 1958 but in view of the undertaking given in the High Court by the Department the appellants in C. A. No. 705 of 1957 shall bear the costs of the first and second respondents in this Court and also in C. A. No. 509 of 1958 we would make a similar order in view of the order of the, High Court granting the certificate.79. ### Response: 1 ### Explanation: To my mind, all that these words mean is that the section to be considered is the section as it stood before it was amended by the ]Finance Act, 1956, that is to say, the section as it stood as a result of the amending Act of 1948, for that was the section which was in force immedi- ately before the amendment affected by the Finance Act,that is the result of the words used in s. 4, the words must have that effect. That would be no reason to say that s. 4 applies only to notices issued after the 1956 Act came into force. No doubt the words " at any time" would comprehend a notice whenever issued before the commencement of the 1959 Act. But the section protects such notice only against the invalidity caused by s. 34 (1) as it stood after the 1948 amendment, that is, against the invalidity caused by reason of the notice having been issued after the expiry of the time prescribed for it in the section as it then stood. Section 4 does riot protect the notice from invalidity otherwise attaching to it. Now it will be remembered that the 1939 amendment of s. 34 also prescribed a period of time for the issue of the notice. That prescription had to be obeyed whenever applicable. Section 4 provided for no immunity against a breach of that prescription. So, though s. 4 of the 1959 Act freed a notice from the bar of limitation in respect of it imposed by the 1948 amendment, it did not altogether do away with all prescriptions of time. Inspite of s. 4, a notice contemplated by it would be subject to the prescription of time as to its issue under the 1939 Act and may be, under s. 34 as it stood before the 1939 amendment. If the notice was issued after the 1956, amendment it would also be subject to the prescription as to time provided by that amendment.Then it was said that if s. 4 applied to a notice issued more than eight years after the year in which the income escaped assessment but before the 1956 amendment came into force in a case where the escaped income of the year was less than Rs. 1, 00, 000/-, the position. would be curious. A notice issued in a similar case after the 1956 amendment would be bad under s. 34 as it then stood and s. 4 could not save it for it saved notices only from the effect of the 1948 amendment. The position then would be that in a case involving the same amount of escaped income for the same year, a notice issued before 1956 amendment and invalid under the 1948 amendment would be validated and a more recent notice equally invalid under both the earlier and present laws would remain invalid. Assume that the position is somewhat curious or incongruous. But that seems to me to be the result of the words used. For all we know that might have been intended. However strange, if at all, the result may be, I do not think the Courts can alter the plain meaning of the language of the statute only on the ground of incongruity if there is nothing in the words which would justify the alteration. As I have said earlier, in this case there is nothing to justify the alteration of the plain meaning. Consider this. In a case where the escaped income is Rs. 1, 00, 000/- or over, no incongruity as in the case of escaped income below Rs. 1, 00, 600/- arises. In such a case the 1956 amendment removes the bar of limitation altogether and what had not been previously barred cannot become at all barred. So no question of more recent notices becoming barred and earlier notices made valid arises: If on the ground of the alleged incongruity notices issued before 1956 in cases of escaped income of less than Rs. 1, 00, 000/- have to be left out of the scope of s. 4 of the Act of 1959, I suppose we must hold that such notices in cases of escaped income of Rs. 1, 00, 000/or over must also be left out of the scope of s. 4, for clearly the section cannot be read as treating the notices in these two cases differently. But in the latter kind of cases, there is no incongruity. It would indeed be absurd to hold that notices issued before 1956 in cases where the escaped income was Rs. 1, 00, 000/- or over were excluded from s. 4, for in such cases notices may be clearly issued after the 1959 Act under sub-s. (4) of s. 34 introduced by that Act. Sub-section (4) of s. 34 was enacted by the Act of 1959 which also enacted s. 4. If a years escaped income could be brought to tax by a notice issued after the 1959 Act under sub-s. (4), it could not be that it was intended that the same income could not be brought to tax by a notice earlier issued and prima facie made valid by s. 4. There would be no reason to make a distinction between the two cases. If a distinction could not be made between the two cases, and in one case notices issued before 1956 were covered by s. 4, s. 4 must apply to all notices issued before the 1956 amendment came into force.I may, before I conclude, as well say that for the reasons mentioned in the judgment in the case of Commissioner of Income-tax v. Sardar Lakhmir Singh (C. As. Nos. 214-215 of 1958), that I shall presently read today, I think that the second proviso to s. 34 (3) of the Income-tax Act is invalid and cannot therefore support the notice.
Vishwa Vijai Bharti Vs. Fakhrul Hasan & Ors	not in possession in the year 1359 Fasli shall be called an Adhivasi of the land and shal l be entitled to retain possession thereof. The names of the respondents were entered as occupants in the revenue record of 1356 Fasli but after considering the entire evidence, the District Court rejected those entries on the ground that they were fraudulent. Thus, the only question before the High Court was whether the entries on which the respondents relied were genuine or fraudulent. That is a question of fact and the High Court had no jurisdiction to set aside in second appeal the finding recorded on that question by the district Court.The High Court assumed erroneously that the District Court had not given any finding on the question of fraud and on that assumption, it accepted mechanically the en tries in the revenue record showing that the respondents were in possession of the lands as occupants. The learned District Judge, by his judgment dated April 18, 1962 had gone in great details into the question whether the particular ent ries showing that the respondents were occupants of the land were genuine or fraudulent. Those entries are Exs. A-5 to A-12. As pointed out by the learned Judge, the original lessee Sukai had migrated to Bombay after handing over the charge of the lands to his nephews who got the names of the respondents entered in the revenue record "surreptitiously". The learned Judge points out that Fakhrul Hasan, who alone was examined on behalf of the respondents, was just a lad of 10 at the time when he i s alleged to have entered into adverse possession of the lands. Neither Sukai, who was the original lessee, nor Haqiqullah and Ghani who were said to: be cultivating the lands under a power of attorney executed by Sukai, were examined by the respondents. The other respondent Sanaullah was not living in the village at all and is said to have been doing business in second-hand spares in Bombay. Haqiqullah was summoned by the appellant for producing the power of attorney dated July 27, 1942 and taking advantage of that opportunity the respondents cross- examined him. Haqiqullah, being a close relation of the respondents was only too willing to oblige them by giving pre-conceived answers in the so-called cross-examination. Bu t the learned trial Judge overlooked that Haqiqullah was only summoned to produce a document and by reason of section 139 of the Evidence Act he could not become a witness in the case and could not therefore have been cross-examined on the merits of the case. But, even her considering the evidence of Haqiqullah the learned District Judge recorded a finding that "The entries were all fictitious". He then proceeded to examine the documentary evidence in the case and held:"After a careful consideration of the pros and cons of the whole case I am of opinion that the Thekedar Sukai had I cultivated the sir and Khudkashi of the temple land which was given to him on Theka through his brother and his cousin, namely Haqiqullah and Ghani and these two per sons in order to create permanent rights in the Theka property, had fraudulently got the names of their boys entered , in the revenue records right from the inception. I am also of the opinion that these by of the house-hold never cultivated the land and they acquired no right, title or interest in the Theka land".5. We find it quite difficult to understand how the High Court could hold that the District Court had not recorded any "clear finding" that the entries in the revenue record for the year 1356 Fasli were fraudulent. Evidently, the attention of the High Court was not drawn to at least half a dozen reasons given by the District Court for holding that the entries were "fictitious" and were made "surreptitiously" and "fraudulently".6. We could have even appreciated if, under section 103 of the Code of Civil Procedure, the High Court were to determine the issue whether the entries were fraudulent, if it though, wrongly though, that the District Court had not recorded a clear finding on that issue. But the High Court did not discuss the evidence at all and chose instead to place a blind and easy reliance on the entries which are utterly uninspiring. B7. It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was Made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.In Amba Prasad v. Abdul Noor Khan and ors.([1964] 7 S.C.R. 800.), it was held by this Court that section 20 of the U.P. Act 1 of 1.951 does not require proof of actual possession and that its purpose is to eliminate inquiries into disputed possession by acceptance of the entries in the Khasra or Khatauni of 1356 Fasli. While commenting on this decision, this Court observed in Sonawati and ors. v. Sri Ram and Anr.([1968] 1 S.C.R. 617, 620.) that "the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant". We have supplied the emphasis in order to show that the normal presumption of correctness attaching to entries in the revenue record, which by law constitute evidence of a legal title, is displaced by proof of fraud.8.	1[ds]We find it quite difficult to understand how the High Court could hold that the District Court had not recorded any "clear finding" that the entries in the revenue record for the year 1356 Fasli were fraudulent. Evidently, the attention of the High Court was not drawn to at least half a dozen reasons given by the District Court for holding that the entries were "fictitious" and were made "surreptitiously" andcould have even appreciated if, under section 103 of theCode of Civil Procedure, the High Court were to determine the issue whether the entries were fraudulent, if it though, wrongly though, that the District Court had not recorded a clear finding on that issue. But the High Court did not discuss the evidence at all and chose instead to place a blind and easy reliance on the entries which are utterly uninspiring.is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was Made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.In Amba Prasad v. Abdul Noor Khan and ors.([1964] 7 S.C.R. 800.), it was held by this Court that section 20 of the U.P. Act 1 of 1.951 does not require proof of actual possession and that its purpose is to eliminate inquiries into disputed possession by acceptance of the entries in the Khasra or Khatauni of 1356 Fasli. While commenting on this decision, this Court observed in Sonawati and ors. v. Sri Ram and Anr.([1968] 1 S.C.R. 617, 620.) that "the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant". We have supplied the emphasis in order to show that the normal presumption of correctness attaching to entries in the revenue record, which by law constitute evidence of a legal title, is displaced by proof of fraud.	1	2,030	476	### 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: not in possession in the year 1359 Fasli shall be called an Adhivasi of the land and shal l be entitled to retain possession thereof. The names of the respondents were entered as occupants in the revenue record of 1356 Fasli but after considering the entire evidence, the District Court rejected those entries on the ground that they were fraudulent. Thus, the only question before the High Court was whether the entries on which the respondents relied were genuine or fraudulent. That is a question of fact and the High Court had no jurisdiction to set aside in second appeal the finding recorded on that question by the district Court.The High Court assumed erroneously that the District Court had not given any finding on the question of fraud and on that assumption, it accepted mechanically the en tries in the revenue record showing that the respondents were in possession of the lands as occupants. The learned District Judge, by his judgment dated April 18, 1962 had gone in great details into the question whether the particular ent ries showing that the respondents were occupants of the land were genuine or fraudulent. Those entries are Exs. A-5 to A-12. As pointed out by the learned Judge, the original lessee Sukai had migrated to Bombay after handing over the charge of the lands to his nephews who got the names of the respondents entered in the revenue record "surreptitiously". The learned Judge points out that Fakhrul Hasan, who alone was examined on behalf of the respondents, was just a lad of 10 at the time when he i s alleged to have entered into adverse possession of the lands. Neither Sukai, who was the original lessee, nor Haqiqullah and Ghani who were said to: be cultivating the lands under a power of attorney executed by Sukai, were examined by the respondents. The other respondent Sanaullah was not living in the village at all and is said to have been doing business in second-hand spares in Bombay. Haqiqullah was summoned by the appellant for producing the power of attorney dated July 27, 1942 and taking advantage of that opportunity the respondents cross- examined him. Haqiqullah, being a close relation of the respondents was only too willing to oblige them by giving pre-conceived answers in the so-called cross-examination. Bu t the learned trial Judge overlooked that Haqiqullah was only summoned to produce a document and by reason of section 139 of the Evidence Act he could not become a witness in the case and could not therefore have been cross-examined on the merits of the case. But, even her considering the evidence of Haqiqullah the learned District Judge recorded a finding that "The entries were all fictitious". He then proceeded to examine the documentary evidence in the case and held:"After a careful consideration of the pros and cons of the whole case I am of opinion that the Thekedar Sukai had I cultivated the sir and Khudkashi of the temple land which was given to him on Theka through his brother and his cousin, namely Haqiqullah and Ghani and these two per sons in order to create permanent rights in the Theka property, had fraudulently got the names of their boys entered , in the revenue records right from the inception. I am also of the opinion that these by of the house-hold never cultivated the land and they acquired no right, title or interest in the Theka land".5. We find it quite difficult to understand how the High Court could hold that the District Court had not recorded any "clear finding" that the entries in the revenue record for the year 1356 Fasli were fraudulent. Evidently, the attention of the High Court was not drawn to at least half a dozen reasons given by the District Court for holding that the entries were "fictitious" and were made "surreptitiously" and "fraudulently".6. We could have even appreciated if, under section 103 of the Code of Civil Procedure, the High Court were to determine the issue whether the entries were fraudulent, if it though, wrongly though, that the District Court had not recorded a clear finding on that issue. But the High Court did not discuss the evidence at all and chose instead to place a blind and easy reliance on the entries which are utterly uninspiring. B7. It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was Made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.In Amba Prasad v. Abdul Noor Khan and ors.([1964] 7 S.C.R. 800.), it was held by this Court that section 20 of the U.P. Act 1 of 1.951 does not require proof of actual possession and that its purpose is to eliminate inquiries into disputed possession by acceptance of the entries in the Khasra or Khatauni of 1356 Fasli. While commenting on this decision, this Court observed in Sonawati and ors. v. Sri Ram and Anr.([1968] 1 S.C.R. 617, 620.) that "the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant". We have supplied the emphasis in order to show that the normal presumption of correctness attaching to entries in the revenue record, which by law constitute evidence of a legal title, is displaced by proof of fraud.8. ### Response: 1 ### Explanation: We find it quite difficult to understand how the High Court could hold that the District Court had not recorded any "clear finding" that the entries in the revenue record for the year 1356 Fasli were fraudulent. Evidently, the attention of the High Court was not drawn to at least half a dozen reasons given by the District Court for holding that the entries were "fictitious" and were made "surreptitiously" andcould have even appreciated if, under section 103 of theCode of Civil Procedure, the High Court were to determine the issue whether the entries were fraudulent, if it though, wrongly though, that the District Court had not recorded a clear finding on that issue. But the High Court did not discuss the evidence at all and chose instead to place a blind and easy reliance on the entries which are utterly uninspiring.is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was Made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.In Amba Prasad v. Abdul Noor Khan and ors.([1964] 7 S.C.R. 800.), it was held by this Court that section 20 of the U.P. Act 1 of 1.951 does not require proof of actual possession and that its purpose is to eliminate inquiries into disputed possession by acceptance of the entries in the Khasra or Khatauni of 1356 Fasli. While commenting on this decision, this Court observed in Sonawati and ors. v. Sri Ram and Anr.([1968] 1 S.C.R. 617, 620.) that "the Civil Court in adjudging a claim of a person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant". We have supplied the emphasis in order to show that the normal presumption of correctness attaching to entries in the revenue record, which by law constitute evidence of a legal title, is displaced by proof of fraud.
Ramesh Rajagopal Vs. Devi Polymers Pvt. Ltd	report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We find that the High Court ought to have exercised its power under Clause (1), (3) and (5) of the above said judgment. 17. In Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors., reported in (1988) 1 SCC 692 , this Court observed as follows:- 7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 18. This Court in Janata Dal v. H.S. Chowdhary and Ors., reported in (1992) 4 SCC 305 , observed as follows:- 132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. We reiterate the same caution having found that this is an appropriate case for the exercise of such powers. 19. The entire law on the subjects was reviewed by a three Judges Bench of this Court in Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors., reported in (2007) 12 SCC 1 vide paragraphs 23 to 39. Thereafter, the law was reiterated in R. Kalyani v. Janak C. Mehta and Ors. reported in (2009) 1 SCC 516 vide paragraphs 15 and 16. 20. In all the cases the principle that the accused must be relieved from the prosecution, even if the allegations are taken at their face value and accepted in their entirety do not constitute any offence has been upheld, and thereafter in Umesh Kumar v. State of Andhra Pradesh and anr., reported in (2013) 10 SCC 591. 21. As regards the commission of offences under the Information Technology Act, 2000 the allegations are that the appellant had, with fraudulent and dishonest intention on the website of Devi Consultancy Services i.e. www.devidcs.com that the former is a sister concern of Devi Polymers. Further, that this amounts to creating false electronic record. In view of the finding above we find that no offence is made out under Section 66 of the I.T. Act, read with Section 43. The appellant was a Director of Devi Polymers and nothing is brought on record to show that he did not have any authority to access the computer system or the computer network of the company. That apart there is nothing on record to show the commission of offence under Section 65 of the I.T. Act, since the allegation is not that any computer source code has been concealed, destroyed or altered. We have already observed that the acts of the appellant did not have any dishonest intention while considering the allegations in respect of the other offences. In the circumstances, no case is made out under Sections 65 and 66 of the I.T. Act, 2000. 22. The High Court seems to have over looked these circumstances and has merely dismissed the petition under Section 482 of the Criminal Procedure Code on the ground that it requires evidence at a trial to come to any conclusion. We, however, find that the criminal proceedings initiated by the respondent constitute an abuse of process of Court and it is necessary to meet the ends of justice to quash the prosecution against the appellant.	1[ds]21. As regards the commission of offences under the Information Technology Act, 2000 the allegations are that the appellant had, with fraudulent and dishonest intention on the website of Devi Consultancy Services i.e. www.devidcs.com that the former is a sister concern of Devi Polymers. Further, that this amounts to creating false electronic record. In view of the finding above we find that no offence is made out under Section 66 of the I.T. Act, read with Section 43. The appellant was a Director of Devi Polymers and nothing is brought on record to show that he did not have any authority to access the computer system or the computer network of the company. That apart there is nothing on record to show the commission of offence under Section 65 of the I.T. Act, since the allegation is not that any computer source code has been concealed, destroyed or altered. We have already observed that the acts of the appellant did not have any dishonest intention while considering the allegations in respect of the other offences. In the circumstances, no case is made out under Sections 65 and 66 of the I.T. Act, 200022. The High Court seems to have over looked these circumstances and has merely dismissed the petition under Section 482 of the Criminal Procedure Code on the ground that it requires evidence at a trial to come to any conclusion. We, however, find that the criminal proceedings initiated by the respondent constitute an abuse of process of Court and it is necessary to meet the ends of justice to quash the prosecution against the appellant	1	2,758	294	### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We find that the High Court ought to have exercised its power under Clause (1), (3) and (5) of the above said judgment. 17. In Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors., reported in (1988) 1 SCC 692 , this Court observed as follows:- 7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 18. This Court in Janata Dal v. H.S. Chowdhary and Ors., reported in (1992) 4 SCC 305 , observed as follows:- 132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. We reiterate the same caution having found that this is an appropriate case for the exercise of such powers. 19. The entire law on the subjects was reviewed by a three Judges Bench of this Court in Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors., reported in (2007) 12 SCC 1 vide paragraphs 23 to 39. Thereafter, the law was reiterated in R. Kalyani v. Janak C. Mehta and Ors. reported in (2009) 1 SCC 516 vide paragraphs 15 and 16. 20. In all the cases the principle that the accused must be relieved from the prosecution, even if the allegations are taken at their face value and accepted in their entirety do not constitute any offence has been upheld, and thereafter in Umesh Kumar v. State of Andhra Pradesh and anr., reported in (2013) 10 SCC 591. 21. As regards the commission of offences under the Information Technology Act, 2000 the allegations are that the appellant had, with fraudulent and dishonest intention on the website of Devi Consultancy Services i.e. www.devidcs.com that the former is a sister concern of Devi Polymers. Further, that this amounts to creating false electronic record. In view of the finding above we find that no offence is made out under Section 66 of the I.T. Act, read with Section 43. The appellant was a Director of Devi Polymers and nothing is brought on record to show that he did not have any authority to access the computer system or the computer network of the company. That apart there is nothing on record to show the commission of offence under Section 65 of the I.T. Act, since the allegation is not that any computer source code has been concealed, destroyed or altered. We have already observed that the acts of the appellant did not have any dishonest intention while considering the allegations in respect of the other offences. In the circumstances, no case is made out under Sections 65 and 66 of the I.T. Act, 2000. 22. The High Court seems to have over looked these circumstances and has merely dismissed the petition under Section 482 of the Criminal Procedure Code on the ground that it requires evidence at a trial to come to any conclusion. We, however, find that the criminal proceedings initiated by the respondent constitute an abuse of process of Court and it is necessary to meet the ends of justice to quash the prosecution against the appellant. ### Response: 1 ### Explanation: 21. As regards the commission of offences under the Information Technology Act, 2000 the allegations are that the appellant had, with fraudulent and dishonest intention on the website of Devi Consultancy Services i.e. www.devidcs.com that the former is a sister concern of Devi Polymers. Further, that this amounts to creating false electronic record. In view of the finding above we find that no offence is made out under Section 66 of the I.T. Act, read with Section 43. The appellant was a Director of Devi Polymers and nothing is brought on record to show that he did not have any authority to access the computer system or the computer network of the company. That apart there is nothing on record to show the commission of offence under Section 65 of the I.T. Act, since the allegation is not that any computer source code has been concealed, destroyed or altered. We have already observed that the acts of the appellant did not have any dishonest intention while considering the allegations in respect of the other offences. In the circumstances, no case is made out under Sections 65 and 66 of the I.T. Act, 200022. The High Court seems to have over looked these circumstances and has merely dismissed the petition under Section 482 of the Criminal Procedure Code on the ground that it requires evidence at a trial to come to any conclusion. We, however, find that the criminal proceedings initiated by the respondent constitute an abuse of process of Court and it is necessary to meet the ends of justice to quash the prosecution against the appellant
Amalgamated Electricity Co. Ltd Vs. Jalgaon Borough Municipality	assistance to the appellant. The High Court also considered lot of other circumstances which were not at all relevant for the purpose of construing clause 3 of the agreement. In order to interpret the document, it may be necessary to extract clauses 2 and 3 of the said agreement:"2. The Company shall supply to the Municipality and the Municipality shall take from the company for a period of five years, the period commencing from 1st February 1951, electrical energy for running the electric motors to work water pumps at the Girna Pumping Station at the following rates.1.5 annas per unit for the first 50 units per month per B.H.P. installed and the lest at 0.5 anna per unit plus an additional charge at 0.01 anna per- unit per rupee rise in the fuel oil rate over Rs. 68/- per ton viz. the rate ex-Power house ruling prior to war, with a minimum of 50 units per month per B.H.P. installed, first 50 units per B.H.P. shall mean and include units given by both the electric Motors and Pumps at the Girna Pumping Station. The additional charge is to apply t o all units."3. The hours of supply of electrical energy for running the said electric motors shall be according to the quota of diesel oil sanctioned by the Government. In normal times, i.e. when diesel oil becomes available in any required quantity and without any restriction, the Municipality shall take supply of electrical energy for a minimum period of 16 hours a day and the Company shall supply electricity for a maximum period of 20 hour s a day i.e. excluding the four hours from 6 P.M. to 10 P.M.6. An analysis of clauses 2 and 3 of the agreement clearly shows that these two clauses are independent and separate provisions dealing with different contingencies. If there is any link between the two it is only that the reason for making concession in clause a for charging rate of 0.5 annas per unit over first 50 units is the fact that the plain tiff company was guaranteed payment for electrical energy to be sup plied during fixed period whether or not it is consumed by the Municipality. Clause 3 first of all stipulated that in normal times the Municipality was bound to take supply of electrical energy for a "- minimum period of 16 hours a day and in view of this minimum guarantee the Company would supply electricity for a maximum period of 20 hours a day. In doing this, however, four hours, namely from 6 P.M. to 10 P.M.., would be excluded, because these being the peak hours the Company would be at liberty to supply electricity to other consumers. The terms of clause 3 appear to us to be absolutely - clear and unambiguous and it was not at all necessary for the High Court to have gone into a plethora of extraneous circumstances when the terms of that document do not admit of any ambiguity. The High Court seems to have completely overlooked the fact that clause 3 of the agreement embodied what is known in common parlance as the doctrine of minimum guarantee i.e. the Company was assured of a minimum consumption of electrical energy by the Municipality and or the payment of the same whether it was consumed or not. That was the reason why the Company was prepared to charge a minimum rate of 0.5 anna per unit over and above the first 50 units. The minimum charge of 0.5 anna per unit, therefore, was actually the consideration for the minimum guarantee allowed to the plaintiff under clause 3 of the agreement.Moreover clauses 2 and 3 of the agreement seem to us to be in consonance with the spirit and letter of the proviso to s. 22 of the Indian Electricity Act which runs thus:"Provided that no person shall be entitled to demand or to continue to receive from a licensee a supply of energy for any premises having a separate supply unless he has agreed with the licensee to pay to him such minimum annual sum as will give him a reasonable return on the capita l expenditure, and will cover other standing charges incurred by him in order to meet the possible maximum demand for those premises, the sum payable to be determined in case of difference or dispute by arbitration."7. A bale reading of clause 3 is sufficient to indicate that this particular term of the contract was in direct compliance with the provisions of the proviso to s. 22 of the Act which ensures a provision for minimum guarantee for the supply of electricity.8. Moreover it is obvious that if the plaintiff company was to give bulk supply of electricity at a concessional rate of 0.5 anna per unit it had to lay down lines and to keep the power ready for being supplied as and when required. The consumers could put their switches on whenever they liked and therefore the plaintiff had to keep every thing ready so that power is supplied the moment the switch was put on. in these circumstances, it was absolutely essential that the plaintiff should have been ensured the payment of the minimum charges for the supply of electrical energy whether consumed or not so that it may be able to meet the bare maintenance expenses.9. For these reasons, therefore, we are satisfied that t he interpretation put by the Courts below on the agreement Ext. 39. was legally erroneous and cannot be accepted.10. The next question that falls to be considered is about the question of quantum of interest to be allowed to the appellant Company. Mr. F. S. Nariman, learned counsel for the appellant, fairly conceded that he would not be in a position to press his claim for interest prior to the date of the suit and would be satisfied if he is awarded interest at the rate of 4 per cent per annum from the date of the suit.	1[ds]The plaintiff/appellants case was based mainly on clause 3 of the agreement but the High Court instead of concentrating its attention on the interpretation of the scope and ambit of this particular clause appears to have entered upon a covering inquiry and a detailed determination of the history of the case, the various clauses of the agreement executed, the licence taken by the appellant, and so on, which, in our opinion, were not at all germane for the decision of the simple issue which arose in thisanalysis of clauses 2 and 3 of the agreement clearly shows that these two clauses are independent and separate provisions dealing with different contingencies. If there is any link between the two it is only that the reason for making concession in clause a for charging rate of 0.5 annas per unit over first 50 units is the fact that the plain tiff company was guaranteed payment for electrical energy to be sup plied during fixed period whether or not it is consumed by the Municipality. Clause 3 first of all stipulated that in normal times the Municipality was bound to take supply of electrical energy for a "- minimum period of 16 hours a day and in view of this minimum guarantee the Company would supply electricity for a maximum period of 20 hours a day. In doing this, however, four hours, namely from 6 P.M. to 10 P.M.., would be excluded, because these being the peak hours the Company would be at liberty to supply electricity to other consumers. The terms of clause 3 appear to us to be absolutely - clear and unambiguous and it was not at all necessary for the High Court to have gone into a plethora of extraneous circumstances when the terms of that document do not admit of any ambiguity. The High Court seems to have completely overlooked the fact that clause 3 of the agreement embodied what is known in common parlance as the doctrine of minimum guarantee i.e. the Company was assured of a minimum consumption of electrical energy by the Municipality and or the payment of the same whether it was consumed or not. That was the reason why the Company was prepared to charge a minimum rate of 0.5 anna per unit over and above the first 50 units. The minimum charge of 0.5 anna per unit, therefore, was actually the consideration for the minimum guarantee allowed to the plaintiff under clause 3 of thebale reading of clause 3 is sufficient to indicate that this particular term of the contract was in direct compliance with the provisions of the proviso to s. 22 of the Act which ensures a provision for minimum guarantee for the supply ofit is obvious that if the plaintiff company was to give bulk supply of electricity at a concessional rate of 0.5 anna per unit it had to lay down lines and to keep the power ready for being supplied as and when required. The consumers could put their switches on whenever they liked and therefore the plaintiff had to keep every thing ready so that power is supplied the moment the switch was put on. in these circumstances, it was absolutely essential that the plaintiff should have been ensured the payment of the minimum charges for the supply of electrical energy whether consumed or not so that it may be able to meet the bare maintenancethese reasons, therefore, we are satisfied that t he interpretation put by the Courts below on the agreement Ext. 39. was legally erroneous and cannot be accepted.	1	1,749	631	### 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: assistance to the appellant. The High Court also considered lot of other circumstances which were not at all relevant for the purpose of construing clause 3 of the agreement. In order to interpret the document, it may be necessary to extract clauses 2 and 3 of the said agreement:"2. The Company shall supply to the Municipality and the Municipality shall take from the company for a period of five years, the period commencing from 1st February 1951, electrical energy for running the electric motors to work water pumps at the Girna Pumping Station at the following rates.1.5 annas per unit for the first 50 units per month per B.H.P. installed and the lest at 0.5 anna per unit plus an additional charge at 0.01 anna per- unit per rupee rise in the fuel oil rate over Rs. 68/- per ton viz. the rate ex-Power house ruling prior to war, with a minimum of 50 units per month per B.H.P. installed, first 50 units per B.H.P. shall mean and include units given by both the electric Motors and Pumps at the Girna Pumping Station. The additional charge is to apply t o all units."3. The hours of supply of electrical energy for running the said electric motors shall be according to the quota of diesel oil sanctioned by the Government. In normal times, i.e. when diesel oil becomes available in any required quantity and without any restriction, the Municipality shall take supply of electrical energy for a minimum period of 16 hours a day and the Company shall supply electricity for a maximum period of 20 hour s a day i.e. excluding the four hours from 6 P.M. to 10 P.M.6. An analysis of clauses 2 and 3 of the agreement clearly shows that these two clauses are independent and separate provisions dealing with different contingencies. If there is any link between the two it is only that the reason for making concession in clause a for charging rate of 0.5 annas per unit over first 50 units is the fact that the plain tiff company was guaranteed payment for electrical energy to be sup plied during fixed period whether or not it is consumed by the Municipality. Clause 3 first of all stipulated that in normal times the Municipality was bound to take supply of electrical energy for a "- minimum period of 16 hours a day and in view of this minimum guarantee the Company would supply electricity for a maximum period of 20 hours a day. In doing this, however, four hours, namely from 6 P.M. to 10 P.M.., would be excluded, because these being the peak hours the Company would be at liberty to supply electricity to other consumers. The terms of clause 3 appear to us to be absolutely - clear and unambiguous and it was not at all necessary for the High Court to have gone into a plethora of extraneous circumstances when the terms of that document do not admit of any ambiguity. The High Court seems to have completely overlooked the fact that clause 3 of the agreement embodied what is known in common parlance as the doctrine of minimum guarantee i.e. the Company was assured of a minimum consumption of electrical energy by the Municipality and or the payment of the same whether it was consumed or not. That was the reason why the Company was prepared to charge a minimum rate of 0.5 anna per unit over and above the first 50 units. The minimum charge of 0.5 anna per unit, therefore, was actually the consideration for the minimum guarantee allowed to the plaintiff under clause 3 of the agreement.Moreover clauses 2 and 3 of the agreement seem to us to be in consonance with the spirit and letter of the proviso to s. 22 of the Indian Electricity Act which runs thus:"Provided that no person shall be entitled to demand or to continue to receive from a licensee a supply of energy for any premises having a separate supply unless he has agreed with the licensee to pay to him such minimum annual sum as will give him a reasonable return on the capita l expenditure, and will cover other standing charges incurred by him in order to meet the possible maximum demand for those premises, the sum payable to be determined in case of difference or dispute by arbitration."7. A bale reading of clause 3 is sufficient to indicate that this particular term of the contract was in direct compliance with the provisions of the proviso to s. 22 of the Act which ensures a provision for minimum guarantee for the supply of electricity.8. Moreover it is obvious that if the plaintiff company was to give bulk supply of electricity at a concessional rate of 0.5 anna per unit it had to lay down lines and to keep the power ready for being supplied as and when required. The consumers could put their switches on whenever they liked and therefore the plaintiff had to keep every thing ready so that power is supplied the moment the switch was put on. in these circumstances, it was absolutely essential that the plaintiff should have been ensured the payment of the minimum charges for the supply of electrical energy whether consumed or not so that it may be able to meet the bare maintenance expenses.9. For these reasons, therefore, we are satisfied that t he interpretation put by the Courts below on the agreement Ext. 39. was legally erroneous and cannot be accepted.10. The next question that falls to be considered is about the question of quantum of interest to be allowed to the appellant Company. Mr. F. S. Nariman, learned counsel for the appellant, fairly conceded that he would not be in a position to press his claim for interest prior to the date of the suit and would be satisfied if he is awarded interest at the rate of 4 per cent per annum from the date of the suit. ### Response: 1 ### Explanation: The plaintiff/appellants case was based mainly on clause 3 of the agreement but the High Court instead of concentrating its attention on the interpretation of the scope and ambit of this particular clause appears to have entered upon a covering inquiry and a detailed determination of the history of the case, the various clauses of the agreement executed, the licence taken by the appellant, and so on, which, in our opinion, were not at all germane for the decision of the simple issue which arose in thisanalysis of clauses 2 and 3 of the agreement clearly shows that these two clauses are independent and separate provisions dealing with different contingencies. If there is any link between the two it is only that the reason for making concession in clause a for charging rate of 0.5 annas per unit over first 50 units is the fact that the plain tiff company was guaranteed payment for electrical energy to be sup plied during fixed period whether or not it is consumed by the Municipality. Clause 3 first of all stipulated that in normal times the Municipality was bound to take supply of electrical energy for a "- minimum period of 16 hours a day and in view of this minimum guarantee the Company would supply electricity for a maximum period of 20 hours a day. In doing this, however, four hours, namely from 6 P.M. to 10 P.M.., would be excluded, because these being the peak hours the Company would be at liberty to supply electricity to other consumers. The terms of clause 3 appear to us to be absolutely - clear and unambiguous and it was not at all necessary for the High Court to have gone into a plethora of extraneous circumstances when the terms of that document do not admit of any ambiguity. The High Court seems to have completely overlooked the fact that clause 3 of the agreement embodied what is known in common parlance as the doctrine of minimum guarantee i.e. the Company was assured of a minimum consumption of electrical energy by the Municipality and or the payment of the same whether it was consumed or not. That was the reason why the Company was prepared to charge a minimum rate of 0.5 anna per unit over and above the first 50 units. The minimum charge of 0.5 anna per unit, therefore, was actually the consideration for the minimum guarantee allowed to the plaintiff under clause 3 of thebale reading of clause 3 is sufficient to indicate that this particular term of the contract was in direct compliance with the provisions of the proviso to s. 22 of the Act which ensures a provision for minimum guarantee for the supply ofit is obvious that if the plaintiff company was to give bulk supply of electricity at a concessional rate of 0.5 anna per unit it had to lay down lines and to keep the power ready for being supplied as and when required. The consumers could put their switches on whenever they liked and therefore the plaintiff had to keep every thing ready so that power is supplied the moment the switch was put on. in these circumstances, it was absolutely essential that the plaintiff should have been ensured the payment of the minimum charges for the supply of electrical energy whether consumed or not so that it may be able to meet the bare maintenancethese reasons, therefore, we are satisfied that t he interpretation put by the Courts below on the agreement Ext. 39. was legally erroneous and cannot be accepted.
Sambangi Applaswamy Naidu and Others Vs. Behara Venkataramanayya Patro and Others	deed to suggest that there was an implied surrender of the lessees rights while in the later case the court held that the terms of the mortgage deed showed that the lessee had impliedly surrendered his rights. In other words, it all depends upon whether by executing a possessory or usufructuary mortgage in favour of a sitting tenant the parties intended that there should be a su rrender of lessees rights or not, and only if an implied surrender of lessees rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise.In the instant ca se the earlier usufructuary mortgage deed of 1939 is not on record before us but the parties have produced a copy of Exhibit A-3 which is the later usufructuary mortgage deed dated 23.8.1942, the terms thereof are required to be construe d. It runs thus: Exhibit A-3"Deed of mortgage of land accompanied by delivery of possession of land for Rs. 250 (in words two hundred and fifty rupees) executed on 23rd August, 1942 in favour of Sambangi Taviti Naidu, son of late Jogi Naidu of Koppula Velama Caste, living by cultivation, resident of Dathivalasa village, hamlet of Tummalavalasa of Parvatipuram Sub District by Behara Adinarayana Patro, son of late Behera Narayana Patro Sista Karnam, Inamdar resident of Markonduputti village of the same Sub District. The amount of principal and interest due on the promissory note executed by me in your favour previously on 24th April, 1940 for my necessity, the amount paid by you on my behalf to the Estate towards the cist etc., due on this land and the amounts borrowed from you by me in installments subsequent thereto-all those amounts are found to be Rs. 200 and I have found due to you in this sum. The amount borrowed now for paying the cist to the Estate and for my own maintenance is Rs. 50. In all, Rs. 250 (in words two hundred and fifty rupees). I shall pay interest at the rate of Rs. 0-4-0 (four anna) per cent per mensum and shall discharge the principal and interest. For this, the produce of all kinds of crops raised on the half share of the lands previously being cultivated by you as my sub-tenant on condition of paying 1/4 (?) share out of the Jarayathi dry and wet lands bearing No. 1 and know as "Tummulamanu Polam" which passed to me as my self-acquired property, which has been in my possession and enjoyment till this day, which is situate in Tummalavalasa village and the boundaries etc. of which are given hereunder, shall be utilised for paying interest due on this deed and the interest due on the deed executed previously on 30th August, 1939 and get registered in the office of the Sub Registrar of Parvatipuram as No. 1148/39 and for paying the cist due to the Govt. on my behalf and obtaining receipt in my name. The remaining a mount shall be paid to me by 15th January of every year and the receipt obtained from me. When the above mentioned principal and interest are paid to you in full, payment shall be endorsed on this deed and this deed shall be returned and the land mentioned herein shall be delivered possession of to me." Three or four things become amply clear on a fair reading of the aforesaid document (1) that though the deed commences by reciting that possession of the land has been delivered thereunder it refers to the fact that the original mortgage (1st defendant) was actually cultivating the lands as a tenant of the mortgagor on crop share basis; that is to say the rental was payable by the tenant in the shape of a crop share; (2) that the mortgagor had agreed to pay interest at the specified rate on the total loan of Rs. 250 and had undertaken to discharge the principal and interest; (3) that the rental of the land payable by the 1st defendant was t o be adjusted against the interest payable by the mortgagor under this deed as well as the earlier deed and the cist payable by him to the Government; and excess, if any, to be paid to mortgagor; (4) that when the principal and interest are fully repaid such payment was to be endorsed on this deed and the deed as also the land shall be "delivered to the possession of mortgagor". It may be noted that the last portion of the document is equivocal in that it does not mention whether on redemption physical possession is to be delivered or symbolical possession is to be delivered to the mortgagor. But under the terms of the deed one thing is clear that during the currency of the mortgage the liability to pay rent to the lessor mortgagor (albeit to be discharged by adjustment) is kept alive. If anything such a term clearly runs counter to any implied surrender of the lessees rights. Secondly, there is no term fixed for redemption of mortgage property which means that it was open to the mortgagor to redeem the mortgage at any time that is to say even within a very short time and if that be so, would a sitting tenant cultivating the lands under a lease, who has obliged his lessor by advancing monies to him to tide over his financial difficulties give up his rights as a lessee no sooner redemption takes place? In our view, it does not stand to reason that he would do so. This circumstance coupled with a fact that the mortgage deed keeps alive the lessees liability to pay rent during the currency of the mortgage clearly suggests that no implied surrender was intended by the parties.In the result, we are of the view that the only effect of the execution of usufructuary mortgage deeds in this case was that the lessees rights were kept in abeyance and they revived upon the redemption of mortgage.	1[ds]In our view the answer to the question raised in this appeal must depend upon whether there was an implied surrender of the lessees rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor. And this obviously depends upon what was the intention of the parties at the time of the execution of the mortgage deed in favour of the sitting tenant to be gathered from the terms and conditions of the mortgage transaction in light of the surrounding circumstances of the case. It may be stated that in both the decisions of the Andhra Pradesh High Court on which reliance was placed by the respective counsel of the parties in support of his own contention the question was ultimately decided on proper construction of the terms and conditions of the mortgage transactions; in the earlier decision the court took the view that there was nothing in the mortgage deed to suggest that there was an implied surrender of the lessees rights while in the later case the court held that the terms of the mortgage deed showed that the lessee had impliedly surrendered his rightsIt may be noted that the last portion of the document is equivocal in that it does not mention whether on redemption physical possession is to be delivered or symbolical possession is to be delivered to the mortgagor. But under the terms of the deed one thing is clear that during the currency of the mortgage the liability to pay rent to the lessor mortgagor (albeit to be discharged by adjustment) is kept alive. If anything such a term clearly runs counter to any implied surrender of the lessees rights. Secondly, there is no term fixed for redemption of mortgage property which means that it was open to the mortgagor to redeem the mortgage at any time that is to say even within a very short time and if that be so, would a sitting tenant cultivating the lands under a lease, who has obliged his lessor by advancing monies to him to tide over his financial difficulties give up his rights as a lessee no sooner redemption takes place? In our view, it does not stand to reason that he would do so. This circumstance coupled with a fact that the mortgage deed keeps alive the lessees liability to pay rent during the currency of the mortgage clearly suggests that no implied surrender was intended by the parties.In the result, we are of the view that the only effect of the execution of usufructuary mortgage deeds in this case was that the lessees rights were kept in abeyance and they revived upon the redemption of mortgage.	1	2,303	465	### 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: deed to suggest that there was an implied surrender of the lessees rights while in the later case the court held that the terms of the mortgage deed showed that the lessee had impliedly surrendered his rights. In other words, it all depends upon whether by executing a possessory or usufructuary mortgage in favour of a sitting tenant the parties intended that there should be a su rrender of lessees rights or not, and only if an implied surrender of lessees rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise.In the instant ca se the earlier usufructuary mortgage deed of 1939 is not on record before us but the parties have produced a copy of Exhibit A-3 which is the later usufructuary mortgage deed dated 23.8.1942, the terms thereof are required to be construe d. It runs thus: Exhibit A-3"Deed of mortgage of land accompanied by delivery of possession of land for Rs. 250 (in words two hundred and fifty rupees) executed on 23rd August, 1942 in favour of Sambangi Taviti Naidu, son of late Jogi Naidu of Koppula Velama Caste, living by cultivation, resident of Dathivalasa village, hamlet of Tummalavalasa of Parvatipuram Sub District by Behara Adinarayana Patro, son of late Behera Narayana Patro Sista Karnam, Inamdar resident of Markonduputti village of the same Sub District. The amount of principal and interest due on the promissory note executed by me in your favour previously on 24th April, 1940 for my necessity, the amount paid by you on my behalf to the Estate towards the cist etc., due on this land and the amounts borrowed from you by me in installments subsequent thereto-all those amounts are found to be Rs. 200 and I have found due to you in this sum. The amount borrowed now for paying the cist to the Estate and for my own maintenance is Rs. 50. In all, Rs. 250 (in words two hundred and fifty rupees). I shall pay interest at the rate of Rs. 0-4-0 (four anna) per cent per mensum and shall discharge the principal and interest. For this, the produce of all kinds of crops raised on the half share of the lands previously being cultivated by you as my sub-tenant on condition of paying 1/4 (?) share out of the Jarayathi dry and wet lands bearing No. 1 and know as "Tummulamanu Polam" which passed to me as my self-acquired property, which has been in my possession and enjoyment till this day, which is situate in Tummalavalasa village and the boundaries etc. of which are given hereunder, shall be utilised for paying interest due on this deed and the interest due on the deed executed previously on 30th August, 1939 and get registered in the office of the Sub Registrar of Parvatipuram as No. 1148/39 and for paying the cist due to the Govt. on my behalf and obtaining receipt in my name. The remaining a mount shall be paid to me by 15th January of every year and the receipt obtained from me. When the above mentioned principal and interest are paid to you in full, payment shall be endorsed on this deed and this deed shall be returned and the land mentioned herein shall be delivered possession of to me." Three or four things become amply clear on a fair reading of the aforesaid document (1) that though the deed commences by reciting that possession of the land has been delivered thereunder it refers to the fact that the original mortgage (1st defendant) was actually cultivating the lands as a tenant of the mortgagor on crop share basis; that is to say the rental was payable by the tenant in the shape of a crop share; (2) that the mortgagor had agreed to pay interest at the specified rate on the total loan of Rs. 250 and had undertaken to discharge the principal and interest; (3) that the rental of the land payable by the 1st defendant was t o be adjusted against the interest payable by the mortgagor under this deed as well as the earlier deed and the cist payable by him to the Government; and excess, if any, to be paid to mortgagor; (4) that when the principal and interest are fully repaid such payment was to be endorsed on this deed and the deed as also the land shall be "delivered to the possession of mortgagor". It may be noted that the last portion of the document is equivocal in that it does not mention whether on redemption physical possession is to be delivered or symbolical possession is to be delivered to the mortgagor. But under the terms of the deed one thing is clear that during the currency of the mortgage the liability to pay rent to the lessor mortgagor (albeit to be discharged by adjustment) is kept alive. If anything such a term clearly runs counter to any implied surrender of the lessees rights. Secondly, there is no term fixed for redemption of mortgage property which means that it was open to the mortgagor to redeem the mortgage at any time that is to say even within a very short time and if that be so, would a sitting tenant cultivating the lands under a lease, who has obliged his lessor by advancing monies to him to tide over his financial difficulties give up his rights as a lessee no sooner redemption takes place? In our view, it does not stand to reason that he would do so. This circumstance coupled with a fact that the mortgage deed keeps alive the lessees liability to pay rent during the currency of the mortgage clearly suggests that no implied surrender was intended by the parties.In the result, we are of the view that the only effect of the execution of usufructuary mortgage deeds in this case was that the lessees rights were kept in abeyance and they revived upon the redemption of mortgage. ### Response: 1 ### Explanation: In our view the answer to the question raised in this appeal must depend upon whether there was an implied surrender of the lessees rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor. And this obviously depends upon what was the intention of the parties at the time of the execution of the mortgage deed in favour of the sitting tenant to be gathered from the terms and conditions of the mortgage transaction in light of the surrounding circumstances of the case. It may be stated that in both the decisions of the Andhra Pradesh High Court on which reliance was placed by the respective counsel of the parties in support of his own contention the question was ultimately decided on proper construction of the terms and conditions of the mortgage transactions; in the earlier decision the court took the view that there was nothing in the mortgage deed to suggest that there was an implied surrender of the lessees rights while in the later case the court held that the terms of the mortgage deed showed that the lessee had impliedly surrendered his rightsIt may be noted that the last portion of the document is equivocal in that it does not mention whether on redemption physical possession is to be delivered or symbolical possession is to be delivered to the mortgagor. But under the terms of the deed one thing is clear that during the currency of the mortgage the liability to pay rent to the lessor mortgagor (albeit to be discharged by adjustment) is kept alive. If anything such a term clearly runs counter to any implied surrender of the lessees rights. Secondly, there is no term fixed for redemption of mortgage property which means that it was open to the mortgagor to redeem the mortgage at any time that is to say even within a very short time and if that be so, would a sitting tenant cultivating the lands under a lease, who has obliged his lessor by advancing monies to him to tide over his financial difficulties give up his rights as a lessee no sooner redemption takes place? In our view, it does not stand to reason that he would do so. This circumstance coupled with a fact that the mortgage deed keeps alive the lessees liability to pay rent during the currency of the mortgage clearly suggests that no implied surrender was intended by the parties.In the result, we are of the view that the only effect of the execution of usufructuary mortgage deeds in this case was that the lessees rights were kept in abeyance and they revived upon the redemption of mortgage.
STATE GOVERNMENT OF MADHYA PRADESH Vs. NARSINGH MANDIR, CHIKHALDA	affairs of the temple, it was required by them to adopt the procedure in getting their names in the revenue records. 7. The Trial Court after recording the evidence of the parties and hearing the arguments dismissed the suit holding that the temple was the public property and, therefore, the name of the Collector was endorsed in the revenue records. First appeal filed by the respondents under Section 96 of the Code of Civil Procedure, 1908 was dismissed by the learned Additional District Judge affirming the findings of the Trial Court. Being aggrieved, the respondents approached the High Court by way of filing the second appeal. This appeal was admitted on the following two substantial questions of law:- 1. Whether the finding of the Court below that the temple in question is not a private temple but a public temple, is perverse unsupportable by the evidence on record? 2. Whether in absence of giving any notice under Section 115 of the M.P. Land Revenue Code, 1959 to the plaintiffs and without following the procedure prescribed under this Section, any correction can be made in the revenue record by any of the order of the State Government? If no, what would be the effect of endorsing the name of Collector, Dhar in revenue record as Prabhandhak (Manager) of the temple and Bhoomiswami of the disputed land? The High Court has answered both the questions in favour of the respondents thereby allowing the appeal. 8. Second question was taken first for discussion by the High Court. Referring to Section 115 of the M.P. Land Revenue Code, 1959 (Revenue Code), the High Court came to the conclusion that in the revenue record, correction/change could not be carried out by the State Government ascertaining the name of the Collector without following the procedure prescribed under Section 115 of the said revenue code. This section reads as under:- 115. Correction of wrong entry in Khasra and any other land records by superior officers- if any Tahsildar finds that a wrong or incorrect entry has been made in the land records prepared under Section 114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink after making such enquiry from the person concerned as he may deem fit after due written notice. 9. The High Court interpreted the words such enquiry occurring in the aforesaid code to mean that it was incumbent upon the Tahsildar to make an enquiry, before the existing entry in the revenue record could be changed. It, thus, held that in the absence of any enquiry made in this behalf the action of the Tahsildar in changing the revenue record and in inserting the name of the Collector as a Manager in respect of the disputed temple as Prabandhak and as well as Swami Bhoomi was contrary to the aforesaid provisions of the code and also in violation of natural justice. 10. Insofar as first question of law is concerned, the High Court noticed that even the Trial Court had arrived at a conclusion, on the basis of evidence placed before it, that the disputed temple and land was a private temple of Amrit Lal. Notwithstanding the same, it was held to be a public property by executing the gift-deed (Ex.P/3) vide which the temple in question was gifted by the original owners (two brothers) to Babu lal and Narayan Brahmin. To ascertain as to whether this gift deed was rightly interpreted by the Courts below, the High Court went through the said document and held that from the description of the property that was gifted, the description of temple did not find place. It held that insofar as the said gift deed is concerned, only agricultural land was described therein. The High Court, therefore, reversed the finding of the Trial Court on this question as well. 11. From the grounds taken in the appeal, we find that the entire thrust of the appellants was on the power of the High Court under Section 100 of the Code of Civil Procedure. It is sought to be argued that finding of facts arrived at by the Trial Court and the first Appellate Court could not have been reversed by the High Court in the Second Appeal which is permissible only on substantial question of law. Number of judgments in support of this plea are referred to in the appeal. 12. There cannot be any quarrel about this proposition of law. However, from the description of the questions of law as well as the manner in which the said two substantial questions of law were framed and decided by the High Court, we do not find that High Court has tinkered with any of the findings of the case. As far as question of law No.2 is concerned, it was purely a legal question and while answering the same, the High Court decided that correction made in the revenue record was contrary to the provisions contained in the procedure that is prescribed in Section 45 of the M.P. Land Revenue Code, 1959. Insofar as first question of law is concerned, again the High Court has not disturbed the finding of facts arrived at by the lower Courts and noted above. The High Court has taken note of such findings recorded by the Trial Court itself while addressing the history of ownership into the said land and based there upon it was reached the conclusion in law holding that the disputed land was owned by the private persons and it was a private temple of Amritlal. 13. The judgment of the Courts below is reversed on the interpretation of gift-deed, holding that the relevant clauses of gift-deed were misconstrued by the Trial Court. This exercise, again, cannot be said to be an exercise deciding the question of fact. Since the gift deed is not on record, we are not in a position to state as to whether the High Court has rightly interpreted the said gift deed.	1[ds]2. When the matter was called out nobody appeared on behalf of the appellants. Instead of dismissing the matter in default or for non-prosecution, we deemed it proper to go through the judgment and the material available on record and decide the same on merits with the assistance of learned counsel for the respondents.3. As can be seen from the judgment of the High Court, the respondents herein had filed a suit for declaration that they have right to manage the disputed temple which is a private property and for injunction restraining the appellants herein not to interfere with the said suit property.4. Insofar as temple in question is concerned, it is known as Shri Narsingh Mandir and is situated at land survey No.209 area 2.481 hectare in village chikkhalda, Tehsil Kukshi District Dhar, Madhya Pradesh.11. From the grounds taken in the appeal, we find that the entire thrust of the appellants was on the power of the High Court under Section 100 of the Code of Civil Procedure.12. There cannot be any quarrel about this proposition of law. However, from the description of the questions of law as well as the manner in which the said two substantial questions of law were framed and decided by the High Court, we do not find that High Court has tinkered with any of the findings of the case. As far as question of law No.2 is concerned, it was purely a legal question and while answering the same, the High Court decided that correction made in the revenue record was contrary to the provisions contained in the procedure that is prescribed in Section 45 of the M.P. Land Revenue Code, 1959. Insofar as first question of law is concerned, again the High Court has not disturbed the finding of facts arrived at by the lower Courts and noted above. The High Court has taken note of such findings recorded by the Trial Court itself while addressing the history of ownership into the said land and based there upon it was reached the conclusion in law holding that the disputed land was owned by the private persons and it was a private temple of Amritlal.13. The judgment of the Courts below is reversed on the interpretation of gift-deed, holding that the relevant clauses of gift-deed were misconstrued by the Trial Court. This exercise, again, cannot be said to be an exercise deciding the question of fact. Since the gift deed is not on record, we are not in a position to state as to whether the High Court has rightly interpreted the said gift deed.	1	1,712	470	### 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: affairs of the temple, it was required by them to adopt the procedure in getting their names in the revenue records. 7. The Trial Court after recording the evidence of the parties and hearing the arguments dismissed the suit holding that the temple was the public property and, therefore, the name of the Collector was endorsed in the revenue records. First appeal filed by the respondents under Section 96 of the Code of Civil Procedure, 1908 was dismissed by the learned Additional District Judge affirming the findings of the Trial Court. Being aggrieved, the respondents approached the High Court by way of filing the second appeal. This appeal was admitted on the following two substantial questions of law:- 1. Whether the finding of the Court below that the temple in question is not a private temple but a public temple, is perverse unsupportable by the evidence on record? 2. Whether in absence of giving any notice under Section 115 of the M.P. Land Revenue Code, 1959 to the plaintiffs and without following the procedure prescribed under this Section, any correction can be made in the revenue record by any of the order of the State Government? If no, what would be the effect of endorsing the name of Collector, Dhar in revenue record as Prabhandhak (Manager) of the temple and Bhoomiswami of the disputed land? The High Court has answered both the questions in favour of the respondents thereby allowing the appeal. 8. Second question was taken first for discussion by the High Court. Referring to Section 115 of the M.P. Land Revenue Code, 1959 (Revenue Code), the High Court came to the conclusion that in the revenue record, correction/change could not be carried out by the State Government ascertaining the name of the Collector without following the procedure prescribed under Section 115 of the said revenue code. This section reads as under:- 115. Correction of wrong entry in Khasra and any other land records by superior officers- if any Tahsildar finds that a wrong or incorrect entry has been made in the land records prepared under Section 114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink after making such enquiry from the person concerned as he may deem fit after due written notice. 9. The High Court interpreted the words such enquiry occurring in the aforesaid code to mean that it was incumbent upon the Tahsildar to make an enquiry, before the existing entry in the revenue record could be changed. It, thus, held that in the absence of any enquiry made in this behalf the action of the Tahsildar in changing the revenue record and in inserting the name of the Collector as a Manager in respect of the disputed temple as Prabandhak and as well as Swami Bhoomi was contrary to the aforesaid provisions of the code and also in violation of natural justice. 10. Insofar as first question of law is concerned, the High Court noticed that even the Trial Court had arrived at a conclusion, on the basis of evidence placed before it, that the disputed temple and land was a private temple of Amrit Lal. Notwithstanding the same, it was held to be a public property by executing the gift-deed (Ex.P/3) vide which the temple in question was gifted by the original owners (two brothers) to Babu lal and Narayan Brahmin. To ascertain as to whether this gift deed was rightly interpreted by the Courts below, the High Court went through the said document and held that from the description of the property that was gifted, the description of temple did not find place. It held that insofar as the said gift deed is concerned, only agricultural land was described therein. The High Court, therefore, reversed the finding of the Trial Court on this question as well. 11. From the grounds taken in the appeal, we find that the entire thrust of the appellants was on the power of the High Court under Section 100 of the Code of Civil Procedure. It is sought to be argued that finding of facts arrived at by the Trial Court and the first Appellate Court could not have been reversed by the High Court in the Second Appeal which is permissible only on substantial question of law. Number of judgments in support of this plea are referred to in the appeal. 12. There cannot be any quarrel about this proposition of law. However, from the description of the questions of law as well as the manner in which the said two substantial questions of law were framed and decided by the High Court, we do not find that High Court has tinkered with any of the findings of the case. As far as question of law No.2 is concerned, it was purely a legal question and while answering the same, the High Court decided that correction made in the revenue record was contrary to the provisions contained in the procedure that is prescribed in Section 45 of the M.P. Land Revenue Code, 1959. Insofar as first question of law is concerned, again the High Court has not disturbed the finding of facts arrived at by the lower Courts and noted above. The High Court has taken note of such findings recorded by the Trial Court itself while addressing the history of ownership into the said land and based there upon it was reached the conclusion in law holding that the disputed land was owned by the private persons and it was a private temple of Amritlal. 13. The judgment of the Courts below is reversed on the interpretation of gift-deed, holding that the relevant clauses of gift-deed were misconstrued by the Trial Court. This exercise, again, cannot be said to be an exercise deciding the question of fact. Since the gift deed is not on record, we are not in a position to state as to whether the High Court has rightly interpreted the said gift deed. ### Response: 1 ### Explanation: 2. When the matter was called out nobody appeared on behalf of the appellants. Instead of dismissing the matter in default or for non-prosecution, we deemed it proper to go through the judgment and the material available on record and decide the same on merits with the assistance of learned counsel for the respondents.3. As can be seen from the judgment of the High Court, the respondents herein had filed a suit for declaration that they have right to manage the disputed temple which is a private property and for injunction restraining the appellants herein not to interfere with the said suit property.4. Insofar as temple in question is concerned, it is known as Shri Narsingh Mandir and is situated at land survey No.209 area 2.481 hectare in village chikkhalda, Tehsil Kukshi District Dhar, Madhya Pradesh.11. From the grounds taken in the appeal, we find that the entire thrust of the appellants was on the power of the High Court under Section 100 of the Code of Civil Procedure.12. There cannot be any quarrel about this proposition of law. However, from the description of the questions of law as well as the manner in which the said two substantial questions of law were framed and decided by the High Court, we do not find that High Court has tinkered with any of the findings of the case. As far as question of law No.2 is concerned, it was purely a legal question and while answering the same, the High Court decided that correction made in the revenue record was contrary to the provisions contained in the procedure that is prescribed in Section 45 of the M.P. Land Revenue Code, 1959. Insofar as first question of law is concerned, again the High Court has not disturbed the finding of facts arrived at by the lower Courts and noted above. The High Court has taken note of such findings recorded by the Trial Court itself while addressing the history of ownership into the said land and based there upon it was reached the conclusion in law holding that the disputed land was owned by the private persons and it was a private temple of Amritlal.13. The judgment of the Courts below is reversed on the interpretation of gift-deed, holding that the relevant clauses of gift-deed were misconstrued by the Trial Court. This exercise, again, cannot be said to be an exercise deciding the question of fact. Since the gift deed is not on record, we are not in a position to state as to whether the High Court has rightly interpreted the said gift deed.
G.M.,Kisan Sahkari Chini Mills Ltd.,U.P Vs. Satrughan Nishad	that majority of the shares were held by cane growers. Of course, it was not said that the Government of Uttar Pradesh did not hold any share. Before this Court, it was stated on behalf of the contesting respondents in the counter affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it is taken to be admitted due to non traverse, the share of the State Government would be only 50% and not entire. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. It has no where been stated that the State used to meet any expenditure of the Mill much less almost the entire one, but, as a matter of fact, it operates on the basis of self generated finances. There is nothing to show that the Mill enjoys monopoly status in the matter of production of sugar. A perusal of Bye-Laws of the Mill would show that its membership is open to cane growers, other societies, Gram Sabha, State Government, etc. and under Bye-Laws 52, a committee of management consisting of 15 members is constituted, out of whom, 5 members are required to be elected by the representatives of individual members, 3 out of co-operative society and other institutions and 2 representatives of financial institutions besides 5 members who are required to be nominated by the State Government which shall be inclusive of the Chairman and Administrative. Thus, the ratio of the nominees of State Government in the committee is only 1/3rd and the management of the committee is dominated by 2/3rd non-government members. Under the Bye-Laws, the State Government can neither issue any direction to the Mill nor determine its policy as it is an autonomous body. The State has no control at all in the functioning of the Mill much less deep and pervasive one. The role of the Federation, which is the apex body and whose ex-officio Chairman-cum-Managing Director is Secretary, Department of Sugar Industry and Cane, Government of Uttar Pradesh, is only advisory and to guide its members. The letter sent by Managing Director of the Federation on 22nd November, 1999 was merely by way of an advice and was in the nature of a suggestion to the Mill in view of its deteriorating financial condition. From the said letter, which is in the advisory capacity, it cannot be inferred that the State had any deep and pervasive control over the Mill. Thus, we find none of the indicia exists in the case of Mills, as such the same being neither instrumentality nor agency of government cannot be said to be an authority and, therefore, it is not State within the meaning of Article 12 of the Constitution. 9. Learned counsel appearing on behalf of the contesting respondents submitted that even if the Mill is not an authority within the meaning of Article 12 of the Constitution, writ application can be entertained as mandamus can be issued under Article 226 of the Constitution against any person or authority which would include any private person or body. Learned counsel appearing on behalf of the appellant, on the other hand, submitted that mandamus can be issued against private person or body only if infraction alleged is in performance of public duty. Reference in this connection may be made to the decisions of this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust and others vs. V.R. Rudani and others (1989) 2 SCC 691 in which this Court examined the various aspects and distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty that Article 226 of the Constitution can be invoked. In the cases of K. Krishnamacharyulu and others vs. Sri Venkateswara Hindu College of Engineering and another (1997) 3 SCC 571 and VST Industries Ltd. vs. VST Industries Workers Union and another, (2001) 1 SCC 298 , the same principle has been reiterated. Further, in the case of VST Industries Ltd. (supra), it was observed that manufacture and sale of cigarettes by a private person will not involve any public function. This being the position in that case, this Court held that the High Court had no jurisdiction to entertain an application under Article 226 of the Constitution. In the present case, the Mill is engaged in the manufacture and sale of sugar which, on the same analogy, would not involve any public function. Thus, we have no difficulty in holding that jurisdiction of the High Court under Article 226 of the Constitution could not have been invoked. 10. Learned counsel appearing on behalf of the appellant in the alternative submitted that in the present batch of appeals, there are disputed questions of facts as according to the contesting respondents, they had worked for more than 240 days whereas stand of the Mill was that from the day the contesting respondents joined, in not a single year, the Mill was functional for a period of 240 days and during the years in question, the functioning of the Mill was between 45 days to 199 days. Further, according to the contesting respondents, some of them were permanent and others seasonal but according to the Mill, all the employees were seasonal workmen. In our view, these are disputed questions of facts which cannot be decided in writ jurisdiction and the same can be decided by the courts constituted under the provisions of the Act. For the foregoing reasons, we are of the view that the High Court was not justified in entertaining the writ applications.	1[ds]8. From the decisions referred to above, it would be clear that the form in which the body is constituted, namely, whether it is a society or co-operative society or a company, is not decisive. The real status of the body with respect to the control of government would have to be looked into. The various tests, as indicated above, would have to be applied and considered cumulatively. There can be no hard and fast formula and in different facts? situations, different factors may be found to be overwhelming and indicating that the body is an authority under Article 12 of the Constitution. In this context, Bye Laws of the Mill would have to be seen. In the instant case, in one of the writ applications filed before the High Court, it was asserted that the Government of Uttar Pradesh held 50% shares in the Mill which fact was denied in the counter affidavit filed on behalf of the State and it was averred that majority of the shares were held by cane growers. Of course, it was not said that the Government of Uttar Pradesh did not hold any share. Before this Court, it was stated on behalf of the contesting respondents in the counter affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it is taken to be admitted due to non traverse, the share of the State Government would be only 50% and not entire. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. It has no where been stated that the State used to meet any expenditure of the Mill much less almost the entire one, but, as a matter of fact, it operates on the basis of self generated finances. There is nothing to show that the Mill enjoys monopoly status in the matter of production of sugar. A perusal of Bye-Laws of the Mill would show that its membership is open to cane growers, other societies, Gram Sabha, State Government, etc. and under Bye-Laws 52, a committee of management consisting of 15 members is constituted, out of whom, 5 members are required to be elected by the representatives of individual members, 3 out of co-operative society and other institutions and 2 representatives of financial institutions besides 5 members who are required to be nominated by the State Government which shall be inclusive of the Chairman and Administrative. Thus, the ratio of the nominees of State Government in the committee is only 1/3rd and the management of the committee is dominated by 2/3rd non-government members. Under the Bye-Laws, the State Government can neither issue any direction to the Mill nor determine its policy as it is an autonomous body. The State has no control at all in the functioning of the Mill much less deep and pervasive one. The role of the Federation, which is the apex body and whose ex-officio Chairman-cum-Managing Director is Secretary, Department of Sugar Industry and Cane, Government of Uttar Pradesh, is only advisory and to guide its members. The letter sent by Managing Director of the Federation on 22nd November, 1999 was merely by way of an advice and was in the nature of a suggestion to the Mill in view of its deteriorating financial condition. From the said letter, which is in the advisory capacity, it cannot be inferred that the State had any deep and pervasive control over the Mill. Thus, we find none of the indicia exists in the case of Mills, as such the same being neither instrumentality nor agency of government cannot be said to be an authority and, therefore, it is not State within the meaning of Article 12 of the Constitution9. Learned counsel appearing on behalf of the contesting respondents submitted that even if the Mill is not an authority within the meaning of Article 12 of the Constitution, writ application can be entertained as mandamus can be issued under Article 226 of the Constitution against any person or authority which would include any private person or body.Learned counsel appearing on behalf of the appellant, on the other hand, submitted that mandamus can be issued against private person or body only if infraction alleged is in performance of public duty. Reference in this connection may be made to the decisions of this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust and others vs. V.R. Rudani and others (1989) 2 SCC 691 in which this Court examined the various aspects and distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty that Article 226 of the Constitution can be10. Learned counsel appearing on behalf of the appellant in the alternative submitted that in the present batch of appeals, there are disputed questions of facts as according to the contesting respondents, they had worked for more than 240 days whereas stand of the Mill was that from the day the contesting respondents joined, in not a single year, the Mill was functional for a period of 240 days and during the years in question, the functioning of the Mill was between 45 days to 199 days. Further, according to the contesting respondents, some of them were permanent and others seasonal but according to the Mill, all the employees were seasonal workmen.	1	3,001	1,051	### 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: that majority of the shares were held by cane growers. Of course, it was not said that the Government of Uttar Pradesh did not hold any share. Before this Court, it was stated on behalf of the contesting respondents in the counter affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it is taken to be admitted due to non traverse, the share of the State Government would be only 50% and not entire. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. It has no where been stated that the State used to meet any expenditure of the Mill much less almost the entire one, but, as a matter of fact, it operates on the basis of self generated finances. There is nothing to show that the Mill enjoys monopoly status in the matter of production of sugar. A perusal of Bye-Laws of the Mill would show that its membership is open to cane growers, other societies, Gram Sabha, State Government, etc. and under Bye-Laws 52, a committee of management consisting of 15 members is constituted, out of whom, 5 members are required to be elected by the representatives of individual members, 3 out of co-operative society and other institutions and 2 representatives of financial institutions besides 5 members who are required to be nominated by the State Government which shall be inclusive of the Chairman and Administrative. Thus, the ratio of the nominees of State Government in the committee is only 1/3rd and the management of the committee is dominated by 2/3rd non-government members. Under the Bye-Laws, the State Government can neither issue any direction to the Mill nor determine its policy as it is an autonomous body. The State has no control at all in the functioning of the Mill much less deep and pervasive one. The role of the Federation, which is the apex body and whose ex-officio Chairman-cum-Managing Director is Secretary, Department of Sugar Industry and Cane, Government of Uttar Pradesh, is only advisory and to guide its members. The letter sent by Managing Director of the Federation on 22nd November, 1999 was merely by way of an advice and was in the nature of a suggestion to the Mill in view of its deteriorating financial condition. From the said letter, which is in the advisory capacity, it cannot be inferred that the State had any deep and pervasive control over the Mill. Thus, we find none of the indicia exists in the case of Mills, as such the same being neither instrumentality nor agency of government cannot be said to be an authority and, therefore, it is not State within the meaning of Article 12 of the Constitution. 9. Learned counsel appearing on behalf of the contesting respondents submitted that even if the Mill is not an authority within the meaning of Article 12 of the Constitution, writ application can be entertained as mandamus can be issued under Article 226 of the Constitution against any person or authority which would include any private person or body. Learned counsel appearing on behalf of the appellant, on the other hand, submitted that mandamus can be issued against private person or body only if infraction alleged is in performance of public duty. Reference in this connection may be made to the decisions of this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust and others vs. V.R. Rudani and others (1989) 2 SCC 691 in which this Court examined the various aspects and distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty that Article 226 of the Constitution can be invoked. In the cases of K. Krishnamacharyulu and others vs. Sri Venkateswara Hindu College of Engineering and another (1997) 3 SCC 571 and VST Industries Ltd. vs. VST Industries Workers Union and another, (2001) 1 SCC 298 , the same principle has been reiterated. Further, in the case of VST Industries Ltd. (supra), it was observed that manufacture and sale of cigarettes by a private person will not involve any public function. This being the position in that case, this Court held that the High Court had no jurisdiction to entertain an application under Article 226 of the Constitution. In the present case, the Mill is engaged in the manufacture and sale of sugar which, on the same analogy, would not involve any public function. Thus, we have no difficulty in holding that jurisdiction of the High Court under Article 226 of the Constitution could not have been invoked. 10. Learned counsel appearing on behalf of the appellant in the alternative submitted that in the present batch of appeals, there are disputed questions of facts as according to the contesting respondents, they had worked for more than 240 days whereas stand of the Mill was that from the day the contesting respondents joined, in not a single year, the Mill was functional for a period of 240 days and during the years in question, the functioning of the Mill was between 45 days to 199 days. Further, according to the contesting respondents, some of them were permanent and others seasonal but according to the Mill, all the employees were seasonal workmen. In our view, these are disputed questions of facts which cannot be decided in writ jurisdiction and the same can be decided by the courts constituted under the provisions of the Act. For the foregoing reasons, we are of the view that the High Court was not justified in entertaining the writ applications. ### Response: 1 ### Explanation: 8. From the decisions referred to above, it would be clear that the form in which the body is constituted, namely, whether it is a society or co-operative society or a company, is not decisive. The real status of the body with respect to the control of government would have to be looked into. The various tests, as indicated above, would have to be applied and considered cumulatively. There can be no hard and fast formula and in different facts? situations, different factors may be found to be overwhelming and indicating that the body is an authority under Article 12 of the Constitution. In this context, Bye Laws of the Mill would have to be seen. In the instant case, in one of the writ applications filed before the High Court, it was asserted that the Government of Uttar Pradesh held 50% shares in the Mill which fact was denied in the counter affidavit filed on behalf of the State and it was averred that majority of the shares were held by cane growers. Of course, it was not said that the Government of Uttar Pradesh did not hold any share. Before this Court, it was stated on behalf of the contesting respondents in the counter affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it is taken to be admitted due to non traverse, the share of the State Government would be only 50% and not entire. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. It has no where been stated that the State used to meet any expenditure of the Mill much less almost the entire one, but, as a matter of fact, it operates on the basis of self generated finances. There is nothing to show that the Mill enjoys monopoly status in the matter of production of sugar. A perusal of Bye-Laws of the Mill would show that its membership is open to cane growers, other societies, Gram Sabha, State Government, etc. and under Bye-Laws 52, a committee of management consisting of 15 members is constituted, out of whom, 5 members are required to be elected by the representatives of individual members, 3 out of co-operative society and other institutions and 2 representatives of financial institutions besides 5 members who are required to be nominated by the State Government which shall be inclusive of the Chairman and Administrative. Thus, the ratio of the nominees of State Government in the committee is only 1/3rd and the management of the committee is dominated by 2/3rd non-government members. Under the Bye-Laws, the State Government can neither issue any direction to the Mill nor determine its policy as it is an autonomous body. The State has no control at all in the functioning of the Mill much less deep and pervasive one. The role of the Federation, which is the apex body and whose ex-officio Chairman-cum-Managing Director is Secretary, Department of Sugar Industry and Cane, Government of Uttar Pradesh, is only advisory and to guide its members. The letter sent by Managing Director of the Federation on 22nd November, 1999 was merely by way of an advice and was in the nature of a suggestion to the Mill in view of its deteriorating financial condition. From the said letter, which is in the advisory capacity, it cannot be inferred that the State had any deep and pervasive control over the Mill. Thus, we find none of the indicia exists in the case of Mills, as such the same being neither instrumentality nor agency of government cannot be said to be an authority and, therefore, it is not State within the meaning of Article 12 of the Constitution9. Learned counsel appearing on behalf of the contesting respondents submitted that even if the Mill is not an authority within the meaning of Article 12 of the Constitution, writ application can be entertained as mandamus can be issued under Article 226 of the Constitution against any person or authority which would include any private person or body.Learned counsel appearing on behalf of the appellant, on the other hand, submitted that mandamus can be issued against private person or body only if infraction alleged is in performance of public duty. Reference in this connection may be made to the decisions of this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust and others vs. V.R. Rudani and others (1989) 2 SCC 691 in which this Court examined the various aspects and distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty that Article 226 of the Constitution can be10. Learned counsel appearing on behalf of the appellant in the alternative submitted that in the present batch of appeals, there are disputed questions of facts as according to the contesting respondents, they had worked for more than 240 days whereas stand of the Mill was that from the day the contesting respondents joined, in not a single year, the Mill was functional for a period of 240 days and during the years in question, the functioning of the Mill was between 45 days to 199 days. Further, according to the contesting respondents, some of them were permanent and others seasonal but according to the Mill, all the employees were seasonal workmen.
M.P. Electricity Board Vs. Shail Kumari	such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. 8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions. 9. The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands vs. Fletcher (1868 Law Reporter (3) HL 330). Blackburn J., the author of the said rule had observed thus in the said decision: "The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape." 10. There are seven exceptions formulated by means of case law to the doctrine of strict liability. It is unnecessary to enumerate those exceptions barring one which is this. "Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply". (vide page 535 Winfield on Tort, 15th Edn.) 11. The rule of strict liability has been approved and followed in many subsequent decisions in England. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. vs. Eastern Counties Leather plc. [1994(1) All England Law Reports (HL) 53]. The said principle gained approval in India, and decisions of the High Courts are a legion to that effect. A Constitution Bench of this Court in Charan Lal Sahu vs. Union of India [1990(1) SCC 613] and a Division Bench in Gujarat State Road Transport Corpn. vs. Ramanbhai Prabhatbhai [1987 (3) SCC 234 ] had followed with approval the principle in Rylands vs. Fletcher. By referring to the above two decisions a to Judge Bench of this Court has reiterated the same principle in Kaushnuma Begum vs. New India Assurance Co. Ltd. [2001 (2) SCC 9 ]. 12. In M.C. Mehta vs. Union of India [1987 (1) SCC 395 ] this Court has gone even beyond the rule of strict liability by holding that "where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands vs. Fletcher." 13. In the present case, the Board made an endeavour to rely on the exception to the rule of strict liability (Rylands vs. Fletcher) being "an act of stranger". The said exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant-Board. In Northwestern Utilities, Limited vs. London Guarantee and Accident Company, Limited (1936 Appeal Cases 108), the Privy Council repelled the contention of the defendant based on the aforecited exception. In that case a hotel belonging to the plaintiffs was destroyed in a fire caused by the escape and ignition of natural gas. The gas had percolated into the hotel basement from a fractured welded joint in an intermediate pressure main situated below the street level and belonging to the defendants which was a public utility company. The fracture was caused during the construction involving underground work by a third party. The Privy Council held that the risk involved in the operation undertaken by the defendant was so great that a high degree care was expected of him since the defendant ought to have appreciated the possibility of such a leakage.14. The Privy Council has observed in Quebec Railway, Light Heat and Power Company Limited vs. Vandry and ors. (1920 Law Reports Appeal Cases 6621) that the company supplying electricity is liable for the damage without proof that they had been negligent. Even the defence that the cables were disrupted on account of a violent wind and high tension current found its way through the low tension cable into the premises of the respondents was held to be not a justifiable defence. Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road.15. In W.B. State Electricity Board vs. Sachin Banerjee [1999 (9) SCC 21 ] the Electricity Board adopted a defence that electric lines were illegally hooked for pilferage purposes. This Court said that the Board cannot be held to be negligent on the said fact situation but the question of strict liability was not taken up in that case.	1[ds]13. In the present case, the Board made an endeavour to rely on the exception to the rule of strict liability (Rylands vs. Fletcher) being "an act of stranger". The said exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by theIn Northwestern Utilities, Limited vs. London Guarantee and Accident Company, Limited (1936 Appeal Cases 108), the Privy Council repelled the contention of the defendant based on the aforecited exception. In that case a hotel belonging to the plaintiffs was destroyed in a fire caused by the escape and ignition of natural gas. The gas had percolated into the hotel basement from a fractured welded joint in an intermediate pressure main situated below the street level and belonging to the defendants which was a public utility company. The fracture was caused during the construction involving underground work by a third party. The Privy Council held that the risk involved in the operation undertaken by the defendant was so great that a high degree care was expected of him since the defendant ought to have appreciated the possibility of such a leakage.14. The Privy Council has observed in Quebec Railway, Light Heat and Power Company Limited vs. Vandry and ors. (1920 Law Reports Appeal Cases 6621) that the company supplying electricity is liable for the damage without proof that they had been negligent. Even the defence that the cables were disrupted on account of a violent wind and high tension current found its way through the low tension cable into the premises of the respondents was held to be not a justifiable defence. Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road.15. In W.B. State Electricity Board vs. Sachin Banerjee [1999 (9) SCC 21 ] the Electricity Board adopted a defence that electric lines were illegally hooked for pilferage purposes. This Court said that the Board cannot be held to be negligent on the said fact situation but the question of strict liability was not taken up in that case.	1	2,005	407	### 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: such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. 8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions. 9. The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands vs. Fletcher (1868 Law Reporter (3) HL 330). Blackburn J., the author of the said rule had observed thus in the said decision: "The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape." 10. There are seven exceptions formulated by means of case law to the doctrine of strict liability. It is unnecessary to enumerate those exceptions barring one which is this. "Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply". (vide page 535 Winfield on Tort, 15th Edn.) 11. The rule of strict liability has been approved and followed in many subsequent decisions in England. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. vs. Eastern Counties Leather plc. [1994(1) All England Law Reports (HL) 53]. The said principle gained approval in India, and decisions of the High Courts are a legion to that effect. A Constitution Bench of this Court in Charan Lal Sahu vs. Union of India [1990(1) SCC 613] and a Division Bench in Gujarat State Road Transport Corpn. vs. Ramanbhai Prabhatbhai [1987 (3) SCC 234 ] had followed with approval the principle in Rylands vs. Fletcher. By referring to the above two decisions a to Judge Bench of this Court has reiterated the same principle in Kaushnuma Begum vs. New India Assurance Co. Ltd. [2001 (2) SCC 9 ]. 12. In M.C. Mehta vs. Union of India [1987 (1) SCC 395 ] this Court has gone even beyond the rule of strict liability by holding that "where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands vs. Fletcher." 13. In the present case, the Board made an endeavour to rely on the exception to the rule of strict liability (Rylands vs. Fletcher) being "an act of stranger". The said exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant-Board. In Northwestern Utilities, Limited vs. London Guarantee and Accident Company, Limited (1936 Appeal Cases 108), the Privy Council repelled the contention of the defendant based on the aforecited exception. In that case a hotel belonging to the plaintiffs was destroyed in a fire caused by the escape and ignition of natural gas. The gas had percolated into the hotel basement from a fractured welded joint in an intermediate pressure main situated below the street level and belonging to the defendants which was a public utility company. The fracture was caused during the construction involving underground work by a third party. The Privy Council held that the risk involved in the operation undertaken by the defendant was so great that a high degree care was expected of him since the defendant ought to have appreciated the possibility of such a leakage.14. The Privy Council has observed in Quebec Railway, Light Heat and Power Company Limited vs. Vandry and ors. (1920 Law Reports Appeal Cases 6621) that the company supplying electricity is liable for the damage without proof that they had been negligent. Even the defence that the cables were disrupted on account of a violent wind and high tension current found its way through the low tension cable into the premises of the respondents was held to be not a justifiable defence. Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road.15. In W.B. State Electricity Board vs. Sachin Banerjee [1999 (9) SCC 21 ] the Electricity Board adopted a defence that electric lines were illegally hooked for pilferage purposes. This Court said that the Board cannot be held to be negligent on the said fact situation but the question of strict liability was not taken up in that case. ### Response: 1 ### Explanation: 13. In the present case, the Board made an endeavour to rely on the exception to the rule of strict liability (Rylands vs. Fletcher) being "an act of stranger". The said exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by theIn Northwestern Utilities, Limited vs. London Guarantee and Accident Company, Limited (1936 Appeal Cases 108), the Privy Council repelled the contention of the defendant based on the aforecited exception. In that case a hotel belonging to the plaintiffs was destroyed in a fire caused by the escape and ignition of natural gas. The gas had percolated into the hotel basement from a fractured welded joint in an intermediate pressure main situated below the street level and belonging to the defendants which was a public utility company. The fracture was caused during the construction involving underground work by a third party. The Privy Council held that the risk involved in the operation undertaken by the defendant was so great that a high degree care was expected of him since the defendant ought to have appreciated the possibility of such a leakage.14. The Privy Council has observed in Quebec Railway, Light Heat and Power Company Limited vs. Vandry and ors. (1920 Law Reports Appeal Cases 6621) that the company supplying electricity is liable for the damage without proof that they had been negligent. Even the defence that the cables were disrupted on account of a violent wind and high tension current found its way through the low tension cable into the premises of the respondents was held to be not a justifiable defence. Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road.15. In W.B. State Electricity Board vs. Sachin Banerjee [1999 (9) SCC 21 ] the Electricity Board adopted a defence that electric lines were illegally hooked for pilferage purposes. This Court said that the Board cannot be held to be negligent on the said fact situation but the question of strict liability was not taken up in that case.
The Indian Oxygen Limited Vs. Workmen And Others	by the tribunal to be too small. It seems to us therefore that for the purpose of comparison the tribunal rightly took into account practically the companies suggested by the appellant. The tribunal also mentioned some other companies which were indicated on behalf of the workmen, for example, the Indian Cable Company Limited, and the Automobile Products. These also cannot be said, , to be non-comparable though the are not quite as near the appellant-company as they engineering concerns which the appellant-, company relied on. In the main, however, it appears that the tribunal relied on the engineering concerns on which the appellant-company relied, though, as already indicated, it has given a slightly higher scale in some cases to the workmen of the apppellant company apparently in view of the fact that the appellant company was always a leading employer in the matter of wage-scales. We are therefore of opinion that the tribunal cannot be said to have made any mistake in the matter of taking into account comparable concerns.4. Then our attention was drawn to a few mistakes in the tribunals award, and it is urged that. these mistakes show that the tribunal did not give such consideration to. the matter as was expected of it. It may be pointed out that three of these mistakes were corrected by the tribunal later. So far as two of these corrections are concerned, namely, (i) carpenters, and (ii) Assistant fore-man, there appears to have been a slip inasmuch as the tribunal reduced the maximum for these workmen which was already prevalent, which of course it could not do. The third mistake that the tribunal corrected was with respect to cylinder weighers. There undoubtedly the tribunal made mistake inasmuch as it fixed wages for cylinder weighers which were even lower than Mazdoor I, though cylinder weighers always used to get more than Mazdoor I. That mistake was also corrected by the tribunal. One more mistake has been pointed out to us with respect to masons. In the case of masons, the grade demanded was (SCR at page 744) 60-5-110-7-1/2-140 while the existing scale was 60-4-100.The tribunal revised the scale to 64-4-100-5-110. The complaint is that the minimum awarded by the tribunal is more than the minimum demanded by the workmen. It seems to us that this is due to a slip, and the learned counsel for the respondents conceded that the starting pay should be Rs.60/-. We therefore correct this Mistake and fix the grade of masons at 60-4-100-5-110. It is clear therefore that there Were three slips by, the tribunal and there was only one mistake with respect to cylinder weighers. That however, does not mean that the tribunal did not bestow that attention to the matter before it which it was expected to do. The tribunals award appears to be on the whole a careful one and it cannot be thrown over-board because of these, slips. We therefore see no force in the contention of the appellant with respect to wage scales and hold that the revised, grades introduced by the tribunal are fair.5. Turning now to classification, the contention is that the tribunal should have made the classification itself and should not have asked the appellant to make the classification after consulting the unions in an advisory capacity. Reliance in this connect on is placed on a decision of this Court in Novex Dry Cleaners v. Its Workmen ([1962] 1 L L. J. 271.). In that case alto there was a question of classification and this Court pointed out that it was not a satisfactory way of dealing with the matter to leave the question of classification to the management in consultation with the workmen. Classification , however, is of two kinds, namely, (i) Classification of jobs, and (ii) fitting of existing staff into the various classified jobs. Now the first matter, (namely, classification of jobs) if it is in dispute between there management and the workmen should be dealt with by tribunals themselves and the case relied on by the appellant is more of this nature, though it also involved the question of fitting each workmen in the various classified jobs. In that case six categories were fixed, but apparently the functions of the categories concerned were not defined by the tribunal.Therefore, it was observed that the tribunal should have described the functions of different categories and given indication in the award as to how different employees should be placed in what category. That case did not lay down that the, tribunal must fix each man into a particular classified job and that if it leaves this second kind of classification to be done by the management in consultation with the workmen, the award must be set aside. We may, in this connection refer to French Motor Car Co. Ltd. v. Workmen ([1963] Supp. 2 S.C.R. 16.), where the tribunal had left the fixation of individual workman into particular classified jobs to the management in consultation with the workmen and that was upheld by this Court. Generally speaking, the fixing of individual workmen in particular classified, jobs can best be done by the management in consultation with the union and it is only the disputed cases which may be referred, if necessary, to the tribunal. In the present case also, the tribunal has left it to the appellant to fix individual workmen into the various classified jobs after consultation with the unions. It is true that the tribunal has remarked that some of the Mazdoor I and Mazdoor II appear to it to be doing work of higher category but that is merely a general remark and it will be for the appellant to classify the workmen in consultation with the unions i.e. to fix each workman in particular classified jobs which already exist in this company and about which there. is no dispute. In the circumstances, the tribunals direction in the present case with reference to the second type of classification does not suffer from any infirmity,	0[ds].We are of opinion that there is no force in- any of these contentions. There is no doubt that wage scales which were revised by the tribunal were fixed as far back as- 1949. Obviously, therefore, there would be a clear case :for, revision of wage-scales in 1962, for it is not, and cannot be, disputed that there has been considerable change in circumstances between 1949 andas the tribunal has pointed out, there has been an increase in the cost of living even since 1957. It has further pointed that dearness allowance at the best, may neutralise the increase in the cost of living fully in the, case of workmen drawing a basic wage of Rs.30/-; it does not neutralise the increase in the cost. of living in the case of those drawing above the minimum wage, and as the wage increases the neutralisation affected by dearness allowance becomes, less and less. Therefore, when cost of living has gone up since 1957, a case has been made out for revising wage scales in 1962. The tribunal; has further pointed out that there have been since 1949 a large number of awards and agreements in prosperous concerns like the appellant-company wherein higher wages have been fixed. It may be that the wage-scales fixed in the appellant-company in 1949 were on the high side as compared to other concerns of the same standing in that region. But if, as pointed out by the tribunal, the other concerns are now giving higher wages than they were giving in 1949 due either to agreements or to awards, wage-scales fixed in the appellant-company should also be revised in order to maintain it in the same leading position as it apparently held incharts in our opinion as prepared do not depict the correct position because the dearness allowance payable by the appellant-company is on a different basis from the dearness allowance payable in the concerns, which appear in these charts. The appellant-company apparently pays dearness allowance at the old textile scale but for all days in the month while the other companies which have been taken for comparison pay the revised textile scale which is apparently higher than the old textile scale for all days in the month which the appellant is paying. So, the comparison made in these charts is not very helpful in showing that the revised wage scales have made such changes in the wage structure in the appellant company as to put it completely out of line with comparable concerns. It appears to us that with the changes made in the wage scales all that has happened is that the appellant-company still maintains a lead in the matter of total wage packet as against the comparable concerns in the same way as it did: in, 1949. In the circumstances, we agree with the tribunal that a case had been made out for revising the wage scales even though in 1957 the then tribunal did not think it necessary to make any change in the wage-scales prevailing, in this company except in the case of Mazdoor I and Mazdoor II.3. As, to the contention that the tribunal compared the appellant-company with concerns which were really not comparable, it may be mentioned that at present the appellant is the only company of its kind carrying on business in Bombay. There was thus no comparable concern in its own line of business in that region. Therefore, the tribunal would be justified in looking for comparison at concerns nearly similar to thetribunal held that the oil refineries stood in a class by themselves. It also held that Greaves Cotton and Company Limited was a managing agency concern and was therefore not comparable.It also refused to compare the appellant-company with the Associated Cement Companies on the ground that it had no factory in Bombay but only its head office. The tribunal also was not prepared to compare the appeliant company with the Imperial Tobacco Company which was in an altogether different line of business. The tribunal was prepared to compare the appellant with the engineering firms which the appellant itself relied on except one concern which was considered by the tribunal to be too small. It seems to us therefore that for the purpose of comparison the tribunal rightly took into account practically the companies suggested by the appellant. The tribunal also mentioned some other companies which were indicated on behalf of the workmen, for example, the Indian Cable Company Limited, and the Automobile Products. These also cannot be said, , to be non-comparable though the are not quite as near the appellant-company as they engineering concerns which the appellant-, company relied on. In the main, however, it appears that the tribunal relied on the engineering concerns on which the appellant-company relied, though, as already indicated, it has given a slightly higher scale in some cases to the workmen of the apppellant company apparently in view of the fact that the appellant company was always a leading employer in the matter of wage-scales. We are therefore of opinion that the tribunal cannot be said to have made any mistake in the matter of taking into account comparablemay be pointed out that three of these mistakes were corrected by the tribunal later. So far as two of these corrections are concerned, namely, (i) carpenters, and (ii) Assistant fore-man, there appears to have been a slip inasmuch as the tribunal reduced the maximum for these workmen which was already prevalent, which of course it could not do. The third mistake that the tribunal corrected was with respect to cylinder weighers. There undoubtedly the tribunal made mistake inasmuch as it fixed wages for cylinder weighers which were even lower than Mazdoor I, though cylinder weighers always used to get more than Mazdoor I. That mistake was also corrected by the tribunal. One more mistake has been pointed out to us with respect to masons. In the case of masons, the grade demanded was (SCR at page 744) 60-5-110-7-1/2-140 while the existing scale was 60-4-100.The tribunal revised the scale toseems to us that this is due to a slip, and the learned counsel for the respondents conceded that the starting pay should be Rs.60/-. We therefore correct this Mistake and fix the grade of masons at 60-4-100-5-110. It is clear therefore that there Were three slips by, the tribunal and there was only one mistake with respect to cylinder weighers. That however, does not mean that the tribunal did not bestow that attention to the matter before it which it was expected to do. The tribunals award appears to be on the whole a careful one and it cannot be thrown over-board because of these, slips. We therefore see no force in the contention of the appellant with respect to wage scales and hold that the revised, grades introduced by the tribunal aremay, in this connection refer to French Motor Car Co. Ltd. v. Workmen ([1963] Supp. 2 S.C.R. 16.), where the tribunal had left the fixation of individual workman into particular classified jobs to the management in consultation with the workmen and that was upheld by this Court. Generally speaking, the fixing of individual workmen in particular classified, jobs can best be done by the management in consultation with the union and it is only the disputed cases which may be referred, if necessary, to the tribunal. In the present case also, the tribunal has left it to the appellant to fix individual workmen into the various classified jobs after consultation with the unions. It is true that the tribunal has remarked that some of the Mazdoor I and Mazdoor II appear to it to be doing work of higher category but that is merely a general remark and it will be for the appellant to classify the workmen in consultation with the unions i.e. to fix each workman in particular classified jobs which already exist in this company and about which there. is no dispute. In the circumstances, the tribunals direction in the present case with reference to the second type of classification does not suffer from any infirmity,	0	2,465	1,470	### Instruction: Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document. ### Input: by the tribunal to be too small. It seems to us therefore that for the purpose of comparison the tribunal rightly took into account practically the companies suggested by the appellant. The tribunal also mentioned some other companies which were indicated on behalf of the workmen, for example, the Indian Cable Company Limited, and the Automobile Products. These also cannot be said, , to be non-comparable though the are not quite as near the appellant-company as they engineering concerns which the appellant-, company relied on. In the main, however, it appears that the tribunal relied on the engineering concerns on which the appellant-company relied, though, as already indicated, it has given a slightly higher scale in some cases to the workmen of the apppellant company apparently in view of the fact that the appellant company was always a leading employer in the matter of wage-scales. We are therefore of opinion that the tribunal cannot be said to have made any mistake in the matter of taking into account comparable concerns.4. Then our attention was drawn to a few mistakes in the tribunals award, and it is urged that. these mistakes show that the tribunal did not give such consideration to. the matter as was expected of it. It may be pointed out that three of these mistakes were corrected by the tribunal later. So far as two of these corrections are concerned, namely, (i) carpenters, and (ii) Assistant fore-man, there appears to have been a slip inasmuch as the tribunal reduced the maximum for these workmen which was already prevalent, which of course it could not do. The third mistake that the tribunal corrected was with respect to cylinder weighers. There undoubtedly the tribunal made mistake inasmuch as it fixed wages for cylinder weighers which were even lower than Mazdoor I, though cylinder weighers always used to get more than Mazdoor I. That mistake was also corrected by the tribunal. One more mistake has been pointed out to us with respect to masons. In the case of masons, the grade demanded was (SCR at page 744) 60-5-110-7-1/2-140 while the existing scale was 60-4-100.The tribunal revised the scale to 64-4-100-5-110. The complaint is that the minimum awarded by the tribunal is more than the minimum demanded by the workmen. It seems to us that this is due to a slip, and the learned counsel for the respondents conceded that the starting pay should be Rs.60/-. We therefore correct this Mistake and fix the grade of masons at 60-4-100-5-110. It is clear therefore that there Were three slips by, the tribunal and there was only one mistake with respect to cylinder weighers. That however, does not mean that the tribunal did not bestow that attention to the matter before it which it was expected to do. The tribunals award appears to be on the whole a careful one and it cannot be thrown over-board because of these, slips. We therefore see no force in the contention of the appellant with respect to wage scales and hold that the revised, grades introduced by the tribunal are fair.5. Turning now to classification, the contention is that the tribunal should have made the classification itself and should not have asked the appellant to make the classification after consulting the unions in an advisory capacity. Reliance in this connect on is placed on a decision of this Court in Novex Dry Cleaners v. Its Workmen ([1962] 1 L L. J. 271.). In that case alto there was a question of classification and this Court pointed out that it was not a satisfactory way of dealing with the matter to leave the question of classification to the management in consultation with the workmen. Classification , however, is of two kinds, namely, (i) Classification of jobs, and (ii) fitting of existing staff into the various classified jobs. Now the first matter, (namely, classification of jobs) if it is in dispute between there management and the workmen should be dealt with by tribunals themselves and the case relied on by the appellant is more of this nature, though it also involved the question of fitting each workmen in the various classified jobs. In that case six categories were fixed, but apparently the functions of the categories concerned were not defined by the tribunal.Therefore, it was observed that the tribunal should have described the functions of different categories and given indication in the award as to how different employees should be placed in what category. That case did not lay down that the, tribunal must fix each man into a particular classified job and that if it leaves this second kind of classification to be done by the management in consultation with the workmen, the award must be set aside. We may, in this connection refer to French Motor Car Co. Ltd. v. Workmen ([1963] Supp. 2 S.C.R. 16.), where the tribunal had left the fixation of individual workman into particular classified jobs to the management in consultation with the workmen and that was upheld by this Court. Generally speaking, the fixing of individual workmen in particular classified, jobs can best be done by the management in consultation with the union and it is only the disputed cases which may be referred, if necessary, to the tribunal. In the present case also, the tribunal has left it to the appellant to fix individual workmen into the various classified jobs after consultation with the unions. It is true that the tribunal has remarked that some of the Mazdoor I and Mazdoor II appear to it to be doing work of higher category but that is merely a general remark and it will be for the appellant to classify the workmen in consultation with the unions i.e. to fix each workman in particular classified jobs which already exist in this company and about which there. is no dispute. In the circumstances, the tribunals direction in the present case with reference to the second type of classification does not suffer from any infirmity, ### Response: 0 ### Explanation: for comparison pay the revised textile scale which is apparently higher than the old textile scale for all days in the month which the appellant is paying. So, the comparison made in these charts is not very helpful in showing that the revised wage scales have made such changes in the wage structure in the appellant company as to put it completely out of line with comparable concerns. It appears to us that with the changes made in the wage scales all that has happened is that the appellant-company still maintains a lead in the matter of total wage packet as against the comparable concerns in the same way as it did: in, 1949. In the circumstances, we agree with the tribunal that a case had been made out for revising the wage scales even though in 1957 the then tribunal did not think it necessary to make any change in the wage-scales prevailing, in this company except in the case of Mazdoor I and Mazdoor II.3. As, to the contention that the tribunal compared the appellant-company with concerns which were really not comparable, it may be mentioned that at present the appellant is the only company of its kind carrying on business in Bombay. There was thus no comparable concern in its own line of business in that region. Therefore, the tribunal would be justified in looking for comparison at concerns nearly similar to thetribunal held that the oil refineries stood in a class by themselves. It also held that Greaves Cotton and Company Limited was a managing agency concern and was therefore not comparable.It also refused to compare the appellant-company with the Associated Cement Companies on the ground that it had no factory in Bombay but only its head office. The tribunal also was not prepared to compare the appeliant company with the Imperial Tobacco Company which was in an altogether different line of business. The tribunal was prepared to compare the appellant with the engineering firms which the appellant itself relied on except one concern which was considered by the tribunal to be too small. It seems to us therefore that for the purpose of comparison the tribunal rightly took into account practically the companies suggested by the appellant. The tribunal also mentioned some other companies which were indicated on behalf of the workmen, for example, the Indian Cable Company Limited, and the Automobile Products. These also cannot be said, , to be non-comparable though the are not quite as near the appellant-company as they engineering concerns which the appellant-, company relied on. In the main, however, it appears that the tribunal relied on the engineering concerns on which the appellant-company relied, though, as already indicated, it has given a slightly higher scale in some cases to the workmen of the apppellant company apparently in view of the fact that the appellant company was always a leading employer in the matter of wage-scales. We are therefore of opinion that the tribunal cannot be said to have made any mistake in the matter of taking into account comparablemay be pointed out that three of these mistakes were corrected by the tribunal later. So far as two of these corrections are concerned, namely, (i) carpenters, and (ii) Assistant fore-man, there appears to have been a slip inasmuch as the tribunal reduced the maximum for these workmen which was already prevalent, which of course it could not do. The third mistake that the tribunal corrected was with respect to cylinder weighers. There undoubtedly the tribunal made mistake inasmuch as it fixed wages for cylinder weighers which were even lower than Mazdoor I, though cylinder weighers always used to get more than Mazdoor I. That mistake was also corrected by the tribunal. One more mistake has been pointed out to us with respect to masons. In the case of masons, the grade demanded was (SCR at page 744) 60-5-110-7-1/2-140 while the existing scale was 60-4-100.The tribunal revised the scale toseems to us that this is due to a slip, and the learned counsel for the respondents conceded that the starting pay should be Rs.60/-. We therefore correct this Mistake and fix the grade of masons at 60-4-100-5-110. It is clear therefore that there Were three slips by, the tribunal and there was only one mistake with respect to cylinder weighers. That however, does not mean that the tribunal did not bestow that attention to the matter before it which it was expected to do. The tribunals award appears to be on the whole a careful one and it cannot be thrown over-board because of these, slips. We therefore see no force in the contention of the appellant with respect to wage scales and hold that the revised, grades introduced by the tribunal aremay, in this connection refer to French Motor Car Co. Ltd. v. Workmen ([1963] Supp. 2 S.C.R. 16.), where the tribunal had left the fixation of individual workman into particular classified jobs to the management in consultation with the workmen and that was upheld by this Court. Generally speaking, the fixing of individual workmen in particular classified, jobs can best be done by the management in consultation with the union and it is only the disputed cases which may be referred, if necessary, to the tribunal. In the present case also, the tribunal has left it to the appellant to fix individual workmen into the various classified jobs after consultation with the unions. It is true that the tribunal has remarked that some of the Mazdoor I and Mazdoor II appear to it to be doing work of higher category but that is merely a general remark and it will be for the appellant to classify the workmen in consultation with the unions i.e. to fix each workman in particular classified jobs which already exist in this company and about which there. is no dispute. In the circumstances, the tribunals direction in the present case with reference to the second type of classification does not suffer from any infirmity,
Pimpri Chinchwad Municipal Corporation & Others Vs. M/s. Gayatri Construction Company & Another	stretch of imagination; hence it was not necessary to observe the principles of natural justice. It is not also an executive or administrative act to attract the duty to act fairly. It was -- as has been repeatedly urged by Shri Ramaswamy -- a matter governed by a contract/agreement between the parties. If the matter is governed by a contract, the writ petition is not maintainable since it is a public law remedy and is not available in private law field, e.g., where the matter is governed by a non-statutory contract. Be that as it may, in view of our opinion on the main question, it is not necessary to pursue this reasoning further." 11. Again in State of U.P. and Ors. v. Bridge & Roof Company (India) Ltd. (1996 (6) SCC 22 ), this Court dealt with the issue in paras 15 and 16 in the following manner: "15. In our opinion, the very remedy adopted by the respondent is misconceived. It is not entitled to any relief in these proceedings, i.e., in the writ petition filed by it. The High Court appears to be right in not pronouncing upon any of the several contentions raised in the writ petition by both the parties and in merely reiterating the effect of the order of the Deputy Commissioner made under the proviso to Section 8-D(1).16. Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the provisions of the Contract Act or, maybe, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated, and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for the civil court, as the case may be. Whether any amount is due to the respondent from the appellant-Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not, are all matters which cannot be agitated in or adjudicated upon in a writ petition. The prayer in the writ petition, viz., to restrain the Government from deducting a particular amount from the writ petitioners bill(s) was not a prayer which could be granted by the High Court under Article 226. Indeed, the High Court has not granted the said prayer." 12. At para 11 of India Thermal Power Ltd. v. State of M.P. and Ors. (2000 (3) SCC 379 ), it was observed as follows: "11. It was contended by Mr. Cooper, learned Senior Counsel appearing for appellant GBL and also by some counsel appearing for other appellants that the appellant/IPPs had entered into PPAs under Sections 43 and 43-A of the Electricity Supply Act and as such they are statutory contracts and, therefore, MPEB had no power or authority to alter their terms and conditions. This contention has been upheld by the High Court. In our opinion the said contention is not correct and the High Court was wrong in accepting the same. Section 43 empowers the Electricity Board to enter into an arrangement for purchase of electricity on such terms as may be agreed. Section 43-A(1) provides that a generating company may enter into a contract for the sale of electricity generated by it with the Electricity Board. As regards the determination of tariff for the sale of electricity by a generating company to the Board, Section 43(1)(2) provides that the tariff shall be determined in accordance with the norms regarding operation and plant-load factor as may be laid down by the authority and in accordance with the rates of depreciation and reasonable return and such other factors as may be determined from time to time by the Central Government by a notification in the Official Gazette. These provisions clearly indicate that the agreement can be on such terms as may be agreed by the parties except that the tariff is to be determined in accordance with the provision contained in Section 43-A(2) and notifications issued thereunder. Merely because a contract is entered into in exercise of an enabling power conferred by a statute that by itself cannot render the contract a statutory contract. If entering into a contract containing the prescribed terms and conditions is a must under the statute then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory then the said contract to that extent is statutory. A contract may contain certain other terms and conditions which may not be of a statutory character and which have been incorporated therein as a result of mutual agreement between the parties. Therefore, the PPAs can be regarded as statutory only to the extent that they contain provisions regarding determination of tariff and other statutory requirements of Section 43-A(2). Opening and maintaining of an escrow account or an escrow agreement are not the statutory requirements and, therefore, merely because PPAs contemplate maintaining escrow accounts that obligation cannot be regarded as statutory". 13. Therefore, the High Court ought not to have entertained the writ petition. Additionally, it appears that by order dated 17.1.2007 interim stay of the impugned order was granted and was continued by order dated 12.2.2007. It is pointed out by learned counsel for the appellants that since the order of the High Court was stayed and there was urgency in the matter fresh tenders were called for. Three persons submitted the bids and the work has already been allotted and a considerable portion of the work has already been completed. In view of aforesaid, we set aside the impugned order of the High Court and direct dismissal of the writ petition. It is however open to the respondents-writ petitioners to seek such remedy, if so advised, as is available in law. We do not express any opinion in that regard.	1[ds]13. Therefore, the High Court ought not to have entertained the writ petition. Additionally, it appears that by order dated 17.1.2007 interim stay of the impugned order was granted and was continued by order dated 12.2.2007. It is pointed out by learned counsel for the appellants that since the order of the High Court was stayed and there was urgency in the matter fresh tenders were called for. Three persons submitted the bids and the work has already been allotted and a considerable portion of the work has already been completed. In view of aforesaid, we set aside the impugned order of the High Court and direct dismissal of the writ petition. It is however open to the respondents-writ petitioners to seek such remedy, if so advised, as is available in law. We do not express any opinion in that regard.	1	3,637	158	### 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: stretch of imagination; hence it was not necessary to observe the principles of natural justice. It is not also an executive or administrative act to attract the duty to act fairly. It was -- as has been repeatedly urged by Shri Ramaswamy -- a matter governed by a contract/agreement between the parties. If the matter is governed by a contract, the writ petition is not maintainable since it is a public law remedy and is not available in private law field, e.g., where the matter is governed by a non-statutory contract. Be that as it may, in view of our opinion on the main question, it is not necessary to pursue this reasoning further." 11. Again in State of U.P. and Ors. v. Bridge & Roof Company (India) Ltd. (1996 (6) SCC 22 ), this Court dealt with the issue in paras 15 and 16 in the following manner: "15. In our opinion, the very remedy adopted by the respondent is misconceived. It is not entitled to any relief in these proceedings, i.e., in the writ petition filed by it. The High Court appears to be right in not pronouncing upon any of the several contentions raised in the writ petition by both the parties and in merely reiterating the effect of the order of the Deputy Commissioner made under the proviso to Section 8-D(1).16. Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the provisions of the Contract Act or, maybe, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated, and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for the civil court, as the case may be. Whether any amount is due to the respondent from the appellant-Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not, are all matters which cannot be agitated in or adjudicated upon in a writ petition. The prayer in the writ petition, viz., to restrain the Government from deducting a particular amount from the writ petitioners bill(s) was not a prayer which could be granted by the High Court under Article 226. Indeed, the High Court has not granted the said prayer." 12. At para 11 of India Thermal Power Ltd. v. State of M.P. and Ors. (2000 (3) SCC 379 ), it was observed as follows: "11. It was contended by Mr. Cooper, learned Senior Counsel appearing for appellant GBL and also by some counsel appearing for other appellants that the appellant/IPPs had entered into PPAs under Sections 43 and 43-A of the Electricity Supply Act and as such they are statutory contracts and, therefore, MPEB had no power or authority to alter their terms and conditions. This contention has been upheld by the High Court. In our opinion the said contention is not correct and the High Court was wrong in accepting the same. Section 43 empowers the Electricity Board to enter into an arrangement for purchase of electricity on such terms as may be agreed. Section 43-A(1) provides that a generating company may enter into a contract for the sale of electricity generated by it with the Electricity Board. As regards the determination of tariff for the sale of electricity by a generating company to the Board, Section 43(1)(2) provides that the tariff shall be determined in accordance with the norms regarding operation and plant-load factor as may be laid down by the authority and in accordance with the rates of depreciation and reasonable return and such other factors as may be determined from time to time by the Central Government by a notification in the Official Gazette. These provisions clearly indicate that the agreement can be on such terms as may be agreed by the parties except that the tariff is to be determined in accordance with the provision contained in Section 43-A(2) and notifications issued thereunder. Merely because a contract is entered into in exercise of an enabling power conferred by a statute that by itself cannot render the contract a statutory contract. If entering into a contract containing the prescribed terms and conditions is a must under the statute then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory then the said contract to that extent is statutory. A contract may contain certain other terms and conditions which may not be of a statutory character and which have been incorporated therein as a result of mutual agreement between the parties. Therefore, the PPAs can be regarded as statutory only to the extent that they contain provisions regarding determination of tariff and other statutory requirements of Section 43-A(2). Opening and maintaining of an escrow account or an escrow agreement are not the statutory requirements and, therefore, merely because PPAs contemplate maintaining escrow accounts that obligation cannot be regarded as statutory". 13. Therefore, the High Court ought not to have entertained the writ petition. Additionally, it appears that by order dated 17.1.2007 interim stay of the impugned order was granted and was continued by order dated 12.2.2007. It is pointed out by learned counsel for the appellants that since the order of the High Court was stayed and there was urgency in the matter fresh tenders were called for. Three persons submitted the bids and the work has already been allotted and a considerable portion of the work has already been completed. In view of aforesaid, we set aside the impugned order of the High Court and direct dismissal of the writ petition. It is however open to the respondents-writ petitioners to seek such remedy, if so advised, as is available in law. We do not express any opinion in that regard. ### Response: 1 ### Explanation: 13. Therefore, the High Court ought not to have entertained the writ petition. Additionally, it appears that by order dated 17.1.2007 interim stay of the impugned order was granted and was continued by order dated 12.2.2007. It is pointed out by learned counsel for the appellants that since the order of the High Court was stayed and there was urgency in the matter fresh tenders were called for. Three persons submitted the bids and the work has already been allotted and a considerable portion of the work has already been completed. In view of aforesaid, we set aside the impugned order of the High Court and direct dismissal of the writ petition. It is however open to the respondents-writ petitioners to seek such remedy, if so advised, as is available in law. We do not express any opinion in that regard.
Giani Ram & Ors Vs. Ramji Lal & Ors	the Punjab a declaratory decree obtained by the reversionary heir in an action to set aside the alienation of ancestral property enured in favour of all persons who ultimately took the estate on the death of the alienor for the object of a declaratory suit filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a common apprehended injury, in the interest of the reversioners. The decree did not make the alienation a nullity it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened.By the decree passed in suit No. 75 of 1920 filed by Giani Ram it was declared that the alienations by Jwala were not binding after his lifetime, and the property will revert to his estate. It is true that under the customary law the wife and the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor.But a declaratory decree obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the property alienated to the estate of the alienor.6. The effect of the declaratory decree in suit No. 75 of 1920 was merely to declare that by the sale interest conveyed in favour of the alienee was to enure during the lifetime of the alienor. The conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala at the point of his death and all persons who would, but for the alienation, have taken the estate will be entitled to inherit the same. If Jwala had died before the Hindu Succession Act, 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters.After the enactment of the Hindu Succession Act the estate devolved, by virtue of Sections 2 and 4 (1) of the Hindu Succession Act, 1956, upon the three sons, the widow and the two daughters. We are unable to agree with the High Court that because in the year 1920 the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the Hindu Succession Act, inherit his estate when succession opened after that Act came into force.7. The second ground on which the learned Judge has founded his judgment also does not appeal to us. The three sons, the two daughters and the widow of Jwala had filed the suit claiming possession of the entire property from the alienee. That suit was decreed by the Trial Court in favour of the sons only to the extent of a half share in the property alienated. The Court held that the widow and the daughters were not entitled to a share because "only those persons can bring a suit for possession on the death of Jwala who had the right to challenge the alienation made by Jwala." In appeal the District Court granted a decree for possession of the entire property on the view that the alienee had no subsisting interest after the death of Jwala. But the District Court granted a decree for possession of the entire property alienated only in favour of the three sons, because in the view of the Court the daughters and the widow of Jwala were not entitled to any share in the property. According to the High Court if the widow and the daughters were entitled to the share in the property, they had disentitled themselves to that right, because they had not preferred an appeal or filed cross objections to the decree appealed from. The sons, daughters and widow of Jwala filed a suit for a decree for possession of the entire property and their primary claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees are unable to convince the Court that they had any subsisting interest in the property in dispute after the death of Jwala the Court will be competent to adjust the rights between the sons, the daughters and the widow of Jwala in that property.8. Order 41, Rule 33 of the Code of Civil Procedure was enacted to meet a situation of the nature arising in this case.In so far as it is material the rule provides:"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection."The expression "which ought to have been passed" means "which ought in law to have been passed". If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the Subordinate Court, it may pass or make such further or other decree or order as the justice of the case may require.9. If the claim of the respondents to retain any part of the property after the death of Jwala is negatived it would be perpetrating grave injustice to deny to the widow and the two daughters their share in the property to which they are in law entitled. In our view, the case was one in which the power under Order 41. Rule 33, Code of Civil Procedure ought to have been exercised and the claim not only of the three sons but also of the widow and the daughters ought to have been decreed.	1[ds]must stand rejected. The High Court has granted a decree in favour of the three sons for a half share in the property, and the decree is not challenged in an appeal by the respondents.The respondents cannot now be permitted to challenge that part of the decree. In any event there is nothing in the Hindu Succession Act which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before the Act.5. The Punjab Custom (Power to Contest) Act 1 of 1920 was enacted to restrict the rights exercisable by members of the family to contest alienations made by a holder of ancestral property.By virtue of Section 6 of the Act no person is entitled to contest an alienation of ancestral immovable property unless he is descended in the male line from the great-great grand father of the alienor. Under the customary law in force in the Punjab a declaratory decree obtained by the reversionary heir in an action to set aside the alienation of ancestral property enured in favour of all persons who ultimately took the estate on the death of the alienor for the object of a declaratory suit filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a common apprehended injury, in the interest of the reversioners. The decree did not make the alienation a nullity it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened.By the decree passed in suit No. 75 of 1920 filed by Giani Ram it was declared that the alienations by Jwala were not binding after his lifetime, and the property will revert to his estate. It is true that under the customary law the wife and the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor.But a declaratory decree obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the property alienated to the estate of the alienor.If the claim of the respondents to retain any part of the property after the death of Jwala is negatived it would be perpetrating grave injustice to deny to the widow and the two daughters their share in the property to which they are in law entitled. In our view, the case was one in which the power under Order 41. Rule 33, Code of Civil Procedure ought to have been exercised and the claim not only of the three sons but also of the widow and the daughters ought to have been decreed.The effect of the declaratory decree in suit No. 75 of 1920 was merely to declare that by the sale interest conveyed in favour of the alienee was to enure during the lifetime of the alienor. The conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala at the point of his death and all persons who would, but for the alienation, have taken the estate will be entitled to inherit the same. If Jwala had died before the Hindu Succession Act, 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters.After the enactment of the Hindu Succession Act the estate devolved, by virtue of Sections 2 and 4 (1) of the Hindu Succession Act, 1956, upon the three sons, the widow and the two daughters. We are unable to agree with the High Court that because in the year 1920 the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the Hindu Succession Act, inherit his estate when succession opened after that Act came into force.7. The second ground on which the learned Judge has founded his judgment also does not appeal to us. The three sons, the two daughters and the widow of Jwala had filed the suit claiming possession of the entire property from the alienee. That suit was decreed by the Trial Court in favour of the sons only to the extent of a half share in the property alienated. The Court held that the widow and the daughters were not entitled to a share because "only those persons can bring a suit for possession on the death of Jwala who had the right to challenge the alienation made by Jwala." In appeal the District Court granted a decree for possession of the entire property on the view that the alienee had no subsisting interest after the death of Jwala. But the District Court granted a decree for possession of the entire property alienated only in favour of the three sons, because in the view of the Court the daughters and the widow of Jwala were not entitled to any share in the property. According to the High Court if the widow and the daughters were entitled to the share in the property, they had disentitled themselves to that right, because they had not preferred an appeal or filed cross objections to the decree appealed from. The sons, daughters and widow of Jwala filed a suit for a decree for possession of the entire property and their primary claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees are unable to convince the Court that they had any subsisting interest in the property in dispute after the death of Jwala the Court will be competent to adjust the rights between the sons, the daughters and the widow of Jwala in that property.8. Order 41, Rule 33 of the Code of Civil Procedure was enacted to meet a situation of the nature arising in this case.In so far as it is material the ruleAppellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal orexpression "which ought to have been passed" means "which ought in law to have been passed". If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the Subordinate Court, it may pass or make such further or other decree or order as the justice of the case may require.	1	1,919	1,212	### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: the Punjab a declaratory decree obtained by the reversionary heir in an action to set aside the alienation of ancestral property enured in favour of all persons who ultimately took the estate on the death of the alienor for the object of a declaratory suit filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a common apprehended injury, in the interest of the reversioners. The decree did not make the alienation a nullity it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened.By the decree passed in suit No. 75 of 1920 filed by Giani Ram it was declared that the alienations by Jwala were not binding after his lifetime, and the property will revert to his estate. It is true that under the customary law the wife and the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor.But a declaratory decree obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the property alienated to the estate of the alienor.6. The effect of the declaratory decree in suit No. 75 of 1920 was merely to declare that by the sale interest conveyed in favour of the alienee was to enure during the lifetime of the alienor. The conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala at the point of his death and all persons who would, but for the alienation, have taken the estate will be entitled to inherit the same. If Jwala had died before the Hindu Succession Act, 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters.After the enactment of the Hindu Succession Act the estate devolved, by virtue of Sections 2 and 4 (1) of the Hindu Succession Act, 1956, upon the three sons, the widow and the two daughters. We are unable to agree with the High Court that because in the year 1920 the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the Hindu Succession Act, inherit his estate when succession opened after that Act came into force.7. The second ground on which the learned Judge has founded his judgment also does not appeal to us. The three sons, the two daughters and the widow of Jwala had filed the suit claiming possession of the entire property from the alienee. That suit was decreed by the Trial Court in favour of the sons only to the extent of a half share in the property alienated. The Court held that the widow and the daughters were not entitled to a share because "only those persons can bring a suit for possession on the death of Jwala who had the right to challenge the alienation made by Jwala." In appeal the District Court granted a decree for possession of the entire property on the view that the alienee had no subsisting interest after the death of Jwala. But the District Court granted a decree for possession of the entire property alienated only in favour of the three sons, because in the view of the Court the daughters and the widow of Jwala were not entitled to any share in the property. According to the High Court if the widow and the daughters were entitled to the share in the property, they had disentitled themselves to that right, because they had not preferred an appeal or filed cross objections to the decree appealed from. The sons, daughters and widow of Jwala filed a suit for a decree for possession of the entire property and their primary claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees are unable to convince the Court that they had any subsisting interest in the property in dispute after the death of Jwala the Court will be competent to adjust the rights between the sons, the daughters and the widow of Jwala in that property.8. Order 41, Rule 33 of the Code of Civil Procedure was enacted to meet a situation of the nature arising in this case.In so far as it is material the rule provides:"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection."The expression "which ought to have been passed" means "which ought in law to have been passed". If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the Subordinate Court, it may pass or make such further or other decree or order as the justice of the case may require.9. If the claim of the respondents to retain any part of the property after the death of Jwala is negatived it would be perpetrating grave injustice to deny to the widow and the two daughters their share in the property to which they are in law entitled. In our view, the case was one in which the power under Order 41. Rule 33, Code of Civil Procedure ought to have been exercised and the claim not only of the three sons but also of the widow and the daughters ought to have been decreed. ### Response: 1 ### Explanation: the customary law in force in the Punjab a declaratory decree obtained by the reversionary heir in an action to set aside the alienation of ancestral property enured in favour of all persons who ultimately took the estate on the death of the alienor for the object of a declaratory suit filed by a reversionary heir impeaching an alienation of ancestral estate was to remove a common apprehended injury, in the interest of the reversioners. The decree did not make the alienation a nullity it removed the obstacle to the right of the reversioner entitled to succeed when the succession opened.By the decree passed in suit No. 75 of 1920 filed by Giani Ram it was declared that the alienations by Jwala were not binding after his lifetime, and the property will revert to his estate. It is true that under the customary law the wife and the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor.But a declaratory decree obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the property alienated to the estate of the alienor.If the claim of the respondents to retain any part of the property after the death of Jwala is negatived it would be perpetrating grave injustice to deny to the widow and the two daughters their share in the property to which they are in law entitled. In our view, the case was one in which the power under Order 41. Rule 33, Code of Civil Procedure ought to have been exercised and the claim not only of the three sons but also of the widow and the daughters ought to have been decreed.The effect of the declaratory decree in suit No. 75 of 1920 was merely to declare that by the sale interest conveyed in favour of the alienee was to enure during the lifetime of the alienor. The conclusion is therefore inevitable that the property alienated reverted to the estate of Jwala at the point of his death and all persons who would, but for the alienation, have taken the estate will be entitled to inherit the same. If Jwala had died before the Hindu Succession Act, 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters.After the enactment of the Hindu Succession Act the estate devolved, by virtue of Sections 2 and 4 (1) of the Hindu Succession Act, 1956, upon the three sons, the widow and the two daughters. We are unable to agree with the High Court that because in the year 1920 the wife and the daughters of Jwala were incompetent to challenge the alienation of ancestral property by Jwala, they could not, after the enactment of the Hindu Succession Act, inherit his estate when succession opened after that Act came into force.7. The second ground on which the learned Judge has founded his judgment also does not appeal to us. The three sons, the two daughters and the widow of Jwala had filed the suit claiming possession of the entire property from the alienee. That suit was decreed by the Trial Court in favour of the sons only to the extent of a half share in the property alienated. The Court held that the widow and the daughters were not entitled to a share because "only those persons can bring a suit for possession on the death of Jwala who had the right to challenge the alienation made by Jwala." In appeal the District Court granted a decree for possession of the entire property on the view that the alienee had no subsisting interest after the death of Jwala. But the District Court granted a decree for possession of the entire property alienated only in favour of the three sons, because in the view of the Court the daughters and the widow of Jwala were not entitled to any share in the property. According to the High Court if the widow and the daughters were entitled to the share in the property, they had disentitled themselves to that right, because they had not preferred an appeal or filed cross objections to the decree appealed from. The sons, daughters and widow of Jwala filed a suit for a decree for possession of the entire property and their primary claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees are unable to convince the Court that they had any subsisting interest in the property in dispute after the death of Jwala the Court will be competent to adjust the rights between the sons, the daughters and the widow of Jwala in that property.8. Order 41, Rule 33 of the Code of Civil Procedure was enacted to meet a situation of the nature arising in this case.In so far as it is material the ruleAppellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal orexpression "which ought to have been passed" means "which ought in law to have been passed". If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the Subordinate Court, it may pass or make such further or other decree or order as the justice of the case may require.

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