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Lallubhai Jogibhai Patel Vs. Union Of India & Ors | 1980 SC 1983 ), this Court reiterated the principle as follows:"One of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub-section (3) of Section 3 of the COFEPOSA Act, the words "as soon as may be" have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention." The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention. There are the two outside time limits provided by Section 3, sub-section (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a representation against the order of detention and it is a basic requirement of Clause (5) of Art. 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention. If the grounds of detention are not furnished to the detenu within five fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the grounds of violation of Clause (5) of Art. 22 as also on the ground of breach of requirement of S. 3, sub-section (3) of the COFEPOSA Act. Now it is obvious that when Clause (5) of Art, 22 and sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in the entirety must be furnished to the detenu, if there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete with them. It would not therefore be sufficient to communicate the detenu a bare recital of the grounds of detention, but of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3, sub-section (3) of the COFEPOSA Act." 18. In the instant case, the materials and documents which were not supplied to the detenu were evidently a part of those materials which had influenced the mind of the detaining authority in passing the order of detention. In other words, they were a part of the basic facts and materials, and therefore, according to the ratio of Smt. Icchu Devis case (ibid), should have been supplied to the detenu ordinarily within five days of the order of detention, and, for exceptional reasons to be recorded, within fifteen days of the commencement of detention. In the counter-affidavit, it has not been asserted that these documents, which were not supplied, were not relevant to the case of the detenu. Contention (2) 19. The respondents have, in their counter-affidavit, stated that this representation was not addressed to the Central Government. It is, however, admitted that the Jailor had, on the request of the detenu, forwarded the same to the Central Government on July 18, 1980. No counter-affidavit has been filed on behalf of the Central Government, showing that this representation was considered and disposed of by it. In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him should be dealt with utmost expedition. This constitutional mandate has been honoured in breach regarding the representation sent by the detenu to the Central Government. Contention (3) 20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the grounds to the detenu is to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikisan v. State of Maharashtra, 1962 Supp 2 SCR 918 : (AIR 1962 SC 911 ) and Hadibandhu Das v. District Magistrate (AIR 1969 SC 43 ) (ibid). 21. Thus, all the three contentions canvassed by the counsel for the petitioner, on merits were sound. The conclusion was therefore, inescapable that due to the aforesaid contraventions of constitutional imperatives, the continued detention of the detenu was illegal. | 1[ds]16. In the previous petition, though it was alleged that there was delay in supply of copies of the documents relied on by the detaining authority in passing the impugned order of detention, no specific ground was taken that documents covering about 236 pages which were relied upon by the detaining authority in passing the order of detentiton, were suppressed and not supplied to the petitioner. Indeed, this is not denied in the counter-affidavit. The petitioner has affirmed in his affidavit that he came to know about the non-supply of these documents from the judgment of the Gujarat High Court subsequent to the dismissal of his earlier petition. This affirmation remains unchallenged17. A catena of decisions of this Court has firmly established the rule that one of the constitutional imperatives embodied in Article 22(5) of the Constitution is that all the documents and materials relied upon by the detaining authority in passing the order of detention must be supplied to the detenu, as soon as practicable, to enable him to make an effective representation. Recently, in Smt. Icchu Devi Choraria v. Union of India (AIR 1980 SC 1983 ), this Court reiterated the principle as follows"One of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub-section (3) of Section 3 of the COFEPOSA Act, the words "as soon as may be" have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention."The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention. There are the two outside time limits provided by Section 3, sub-section (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a representation against the order of detention and it is a basic requirement of Clause (5) of Art. 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention. If the grounds of detention are not furnished to the detenu within five fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the grounds of violation of Clause (5) of Art. 22 as also on the ground of breach of requirement of S. 3, sub-section (3) of the COFEPOSA Act. Now it is obvious that when Clause (5) of Art, 22 and sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in the entirety must be furnished to the detenu, if there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete with them. It would not therefore be sufficient to communicate the detenu a bare recital of the grounds of detention, but of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3, sub-section (3) of the COFEPOSA Act."18. In the instant case, the materials and documents which were not supplied to the detenu were evidently a part of those materials which had influenced the mind of the detaining authority in passing the order of detention. In other words, they were a part of the basic facts and materials, and therefore, according to the ratio of Smt. Icchu Devis case (ibid), should have been supplied to the detenu ordinarily within five days of the order of detention, and, for exceptional reasons to be recorded, within fifteen days of the commencement of detention. In the counter-affidavit, it has not been asserted that these documents, which were not supplied, were not relevant to the case of the detenu19. The respondents have, in their counter-affidavit, stated that this representation was not addressed to the Central Government. It is, however, admitted that the Jailor had, on the request of the detenu, forwarded the same to the Central Government on July 18, 1980. No counter-affidavit has been filed on behalf of the Central Government, showing that this representation was considered and disposed of by it. In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him should be dealt with utmost expedition. This constitutional mandate has been honoured in breach regarding the representation sent by the detenu to the Central Government20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the grounds to the detenu is to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikisan v. State of Maharashtra, 1962 Supp 2 SCR 918 : (AIR 1962 SC 911 ) and Hadibandhu Das v. District Magistrate (AIR 1969 SC 43 ) (ibid)21. Thus, all the three contentions canvassed by the counsel for the petitioner, on merits were sound. The conclusion was therefore, inescapable that due to the aforesaid contraventions of constitutional imperatives, the continued detention of the detenu was illegal. | 1 | 4,510 | 1,342 | ### Instruction:
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1980 SC 1983 ), this Court reiterated the principle as follows:"One of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub-section (3) of Section 3 of the COFEPOSA Act, the words "as soon as may be" have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention." The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention. There are the two outside time limits provided by Section 3, sub-section (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a representation against the order of detention and it is a basic requirement of Clause (5) of Art. 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention. If the grounds of detention are not furnished to the detenu within five fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the grounds of violation of Clause (5) of Art. 22 as also on the ground of breach of requirement of S. 3, sub-section (3) of the COFEPOSA Act. Now it is obvious that when Clause (5) of Art, 22 and sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in the entirety must be furnished to the detenu, if there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete with them. It would not therefore be sufficient to communicate the detenu a bare recital of the grounds of detention, but of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3, sub-section (3) of the COFEPOSA Act." 18. In the instant case, the materials and documents which were not supplied to the detenu were evidently a part of those materials which had influenced the mind of the detaining authority in passing the order of detention. In other words, they were a part of the basic facts and materials, and therefore, according to the ratio of Smt. Icchu Devis case (ibid), should have been supplied to the detenu ordinarily within five days of the order of detention, and, for exceptional reasons to be recorded, within fifteen days of the commencement of detention. In the counter-affidavit, it has not been asserted that these documents, which were not supplied, were not relevant to the case of the detenu. Contention (2) 19. The respondents have, in their counter-affidavit, stated that this representation was not addressed to the Central Government. It is, however, admitted that the Jailor had, on the request of the detenu, forwarded the same to the Central Government on July 18, 1980. No counter-affidavit has been filed on behalf of the Central Government, showing that this representation was considered and disposed of by it. In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him should be dealt with utmost expedition. This constitutional mandate has been honoured in breach regarding the representation sent by the detenu to the Central Government. Contention (3) 20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the grounds to the detenu is to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikisan v. State of Maharashtra, 1962 Supp 2 SCR 918 : (AIR 1962 SC 911 ) and Hadibandhu Das v. District Magistrate (AIR 1969 SC 43 ) (ibid). 21. Thus, all the three contentions canvassed by the counsel for the petitioner, on merits were sound. The conclusion was therefore, inescapable that due to the aforesaid contraventions of constitutional imperatives, the continued detention of the detenu was illegal.
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Choraria v. Union of India (AIR 1980 SC 1983 ), this Court reiterated the principle as follows"One of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub-section (3) of Section 3 of the COFEPOSA Act, the words "as soon as may be" have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention."The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention. There are the two outside time limits provided by Section 3, sub-section (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a representation against the order of detention and it is a basic requirement of Clause (5) of Art. 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention. If the grounds of detention are not furnished to the detenu within five fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the grounds of violation of Clause (5) of Art. 22 as also on the ground of breach of requirement of S. 3, sub-section (3) of the COFEPOSA Act. Now it is obvious that when Clause (5) of Art, 22 and sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in the entirety must be furnished to the detenu, if there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete with them. It would not therefore be sufficient to communicate the detenu a bare recital of the grounds of detention, but of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3, sub-section (3) of the COFEPOSA Act."18. In the instant case, the materials and documents which were not supplied to the detenu were evidently a part of those materials which had influenced the mind of the detaining authority in passing the order of detention. In other words, they were a part of the basic facts and materials, and therefore, according to the ratio of Smt. Icchu Devis case (ibid), should have been supplied to the detenu ordinarily within five days of the order of detention, and, for exceptional reasons to be recorded, within fifteen days of the commencement of detention. In the counter-affidavit, it has not been asserted that these documents, which were not supplied, were not relevant to the case of the detenu19. The respondents have, in their counter-affidavit, stated that this representation was not addressed to the Central Government. It is, however, admitted that the Jailor had, on the request of the detenu, forwarded the same to the Central Government on July 18, 1980. No counter-affidavit has been filed on behalf of the Central Government, showing that this representation was considered and disposed of by it. In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him should be dealt with utmost expedition. This constitutional mandate has been honoured in breach regarding the representation sent by the detenu to the Central Government20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu. "Communicate" is a strong word. It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the grounds to the detenu is to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikisan v. State of Maharashtra, 1962 Supp 2 SCR 918 : (AIR 1962 SC 911 ) and Hadibandhu Das v. District Magistrate (AIR 1969 SC 43 ) (ibid)21. Thus, all the three contentions canvassed by the counsel for the petitioner, on merits were sound. The conclusion was therefore, inescapable that due to the aforesaid contraventions of constitutional imperatives, the continued detention of the detenu was illegal.
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Periyar & Pareekanni Rubbers Ltd Vs. State Of Kerala | that certain income has been received during the relevant assessment year but it is not clear who has received that income and prima facie it appears that the income may have been received either by A or B or by both together, it would be open to the relevant income-tax authorities to determine the said question by taking appropriate proceedings both against A and B. That being so, we do not think that Mr. Nambiar would be justified in resisting the enquiry which is proposed to be held by respondent No.1 in pursuance of the impugned notice issued by him against the appellant." 22. Such a procedure in this case was also followed. Such a direction has been issued, whereupon the assessment orders have been passed. We at this stage, therefore, cannot direct the authority to reopen the proceedings once again, as was urged by the learned counsel. 23. Reliance was also placed on the Commissioner of Income-tax, Madhya Pradesh, Nagpur vs. M/s. Hukam Chand Mohanlal : AIR 1971 SC 2591 wherein it was held :- "The assessee, in the present case, does not fall within any of those clauses. There is no specific provision in the Act under which it can be said that the assessee is a person by whom income tax is payable on the amount of Rs. 24,341/-which came to her by way of remission on account of what had transpired in the lifetime of her husband. The Act does not contain any provision making a successor in business or the legal representative of an assessee to whom an allowance has already been granted liable to tax under Section 41 (1) in respect of the amount remitted and received by the successor or the legal representative." 24. We have noticed hereinbefore that a finding of fact has been arrived at that for all intent and purport the appellant was the agent of ‘the lessee. Furthermore, a distinction must be borne in mind between the provisions of the Income Tax Act and Sales Tax Act. Sales tax is leviable on a sale. The manufacturer of the liquor is an assessee. It is a dealer within the meaning of the said Act. For the purpose of realisation of the sales tax, one who manages the business may not come to the front. Applying the doctrine of Crown Debt the assets of the unit could be attached or sold therefor. Crown Debt, as is well known, unless there is a statutory interdict, prevails over all other debts. It is based on the principle that public interest prevail over the private individual. [See Halsburys Laws of England Fourth Edition Volume 8 paras 1076 at pg. 666-667]. 25. We have referred to the doctrine of Crown Debt not for its applicability directly but to emphasise its importance in common law. A statute, particularly a fiscal one, must be construed in such a manner so as to give effect thereto. Evasion of tax is looked down upon under our constitutional and statutory schemes. 26. Reliance has also been placed on Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam vs. Gopal Trading Company [84 (1992) STC 294], wherein this Court, in a case involving the question as to whether despite establishing the fact that the purchaser of the goods at the relevant time had a valid certificate of registration and that he in fact had purchased the goods, whether the assessing authority must accept the form 25 declaration issued by him and make the assessment accordingly, opined that a fresh opportunity must be given to the assessee. 27. If the finding of fact arrived at by the Tribunal as affirmed by the High Court is correct, we would not take recourse to a construction which will defeat the purport and object of the Act.28. Tax liability of the business concern is not in dispute. Correctness of the orders of assessment is also not under challenge. The Tribunal or for that matter the High Court were, therefore, not concerned with the liability fastened upon the dealer. The only question was as to what extent the appellant was liable therefor. It is impossible for the legislature to envisage all situations. Recourse to statutory interpretations therefor should be done in such a manner so as to give effect to the object and purport thereof. Doctrine of purposive construction should, for the said purpose, be taken recourse to. {See New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr. [JT 2008 (1) SC 31 ] 29. Ordinarily, we would have accepted the contention that prior to coming into force of Section 19C of the Act, there did not exist any provision in the Act to assess two persons by fastening joint and several liability. However, the superior courts and, in particular, this Court, would not come on the way of the revenue to recover arrears of tax, if it is otherwise permissible in law.30. Apart from the finding of fact arrived at by the Tribunal, the appellant upon resumption of tenancy would become liable to pay tax, if it intends to carry on its business.31. The Act provides for the mode and manner in which the revenue may be recovered. The property of the dealer, namely, one in whose name the registration stood, can be proceeded with. Its properties may be subjected to attachment and sale.32. In that view of the matter, it is not a case where, this Court, while exercising its jurisdiction under Article 136 of the Constitution of India should interfere with the impugned judgment.33. In State of Karnataka and another vs. Shreyas Papers Pvt. Ltd. and others [(2006) 1 SCC 615] , this Court held that since there is a transfer of ownership of properties of the transferee, as noticed in terms of Section 100 of the Transfer of Property Act, the charged property may be sold.34. We may observe that in law the appellant is liable to pay the amount of sales tax assessed by the assessing authority. | 0[ds]19. Management of business may be handed over by the owner to another but the department must be made known thereabout. A fresh registration certificate must be applied for and granted. The business by the Lessee continued under the old name. It was done at the behest of the appellant. It, therefore, cannot now turn around and contend that it was not liable to pay any tax.20. It may be true that Section 19C of the Act having come into effect from 29th August, 1989, could not be given any retrospective effect but then the legislature was not presumed to take into consideration a situation of the present nature. It is presumably for the said reason, the High Court evolved such a procedure which was acceptable to all the parties. Pursuant to or in furtherance of the direction of the High Court also, notices were issued. Appellant submitted itself to the jurisdiction of the assessing authority. Its liability was held to be joint and several with that of ‘the lessee. It preferred an appeal there against but it did not implead ‘the lessee as a party therein. In absence of ‘the lessee as a party to the said appeal, it was impermissible for the appellate authority to hold ‘the lessee alone liable for payment of tax. Even the Tribunal and the High Court could not have, in the said fact situation, issued any direction as to how the arrears of tax should be recovered.Such a procedure in this case was also followed. Such a direction has been issued, whereupon the assessment orders have been passed. We at this stage, therefore, cannot direct the authority to reopen the proceedings once again, as was urged by the learned counsel.We have noticed hereinbefore that a finding of fact has been arrived at that for all intent and purport the appellant was the agent of ‘the lessee. Furthermore, a distinction must be borne in mind between the provisions of the Income Tax Act and Sales Tax Act. Sales tax is leviable on a sale. The manufacturer of the liquor is an assessee. It is a dealer within the meaning of the said Act. For the purpose of realisation of the sales tax, one who manages the business may not come to the front. Applying the doctrine of Crown Debt the assets of the unit could be attached or sold therefor. Crown Debt, as is well known, unless there is a statutory interdict, prevails over all other debts. It is based on the principle that public interest prevail over the private individual.We have referred to the doctrine of Crown Debt not for its applicability directly but to emphasise its importance in common law. A statute, particularly a fiscal one, must be construed in such a manner so as to give effect thereto. Evasion of tax is looked down upon under our constitutional and statutory schemes.If the finding of fact arrived at by the Tribunal as affirmed by the High Court is correct, we would not take recourse to a construction which will defeat the purport and object of the Act.28. Tax liability of the business concern is not in dispute. Correctness of the orders of assessment is also not under challenge. The Tribunal or for that matter the High Court were, therefore, not concerned with the liability fastened upon the dealer. The only question was as to what extent the appellant was liable therefor. It is impossible for the legislature to envisage all situations. Recourse to statutory interpretations therefor should be done in such a manner so as to give effect to the object and purport thereof. Doctrine of purposive construction should, for the said purpose, be taken recourse to.Ordinarily, we would have accepted the contention that prior to coming into force of Section 19C of the Act, there did not exist any provision in the Act to assess two persons by fastening joint and several liability. However, the superior courts and, in particular, this Court, would not come on the way of the revenue to recover arrears of tax, if it is otherwise permissible in law.30. Apart from the finding of fact arrived at by the Tribunal, the appellant upon resumption of tenancy would become liable to pay tax, if it intends to carry on its business.31. The Act provides for the mode and manner in which the revenue may be recovered. The property of the dealer, namely, one in whose name the registration stood, can be proceeded with. Its properties may be subjected to attachment and sale.32. In that view of the matter, it is not a case where, this Court, while exercising its jurisdiction under Article 136 of the Constitution of India should interfere with the impugned judgment.33. In State of Karnataka and another vs. Shreyas Papers Pvt. Ltd. and others [(2006) 1 SCC 615] , this Court held that since there is a transfer of ownership of properties of the transferee, as noticed in terms of Section 100 of the Transfer of Property Act, the charged property may be sold.34. We may observe that in law the appellant is liable to pay the amount of sales tax assessed by the assessing authority. | 0 | 4,427 | 960 | ### Instruction:
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that certain income has been received during the relevant assessment year but it is not clear who has received that income and prima facie it appears that the income may have been received either by A or B or by both together, it would be open to the relevant income-tax authorities to determine the said question by taking appropriate proceedings both against A and B. That being so, we do not think that Mr. Nambiar would be justified in resisting the enquiry which is proposed to be held by respondent No.1 in pursuance of the impugned notice issued by him against the appellant." 22. Such a procedure in this case was also followed. Such a direction has been issued, whereupon the assessment orders have been passed. We at this stage, therefore, cannot direct the authority to reopen the proceedings once again, as was urged by the learned counsel. 23. Reliance was also placed on the Commissioner of Income-tax, Madhya Pradesh, Nagpur vs. M/s. Hukam Chand Mohanlal : AIR 1971 SC 2591 wherein it was held :- "The assessee, in the present case, does not fall within any of those clauses. There is no specific provision in the Act under which it can be said that the assessee is a person by whom income tax is payable on the amount of Rs. 24,341/-which came to her by way of remission on account of what had transpired in the lifetime of her husband. The Act does not contain any provision making a successor in business or the legal representative of an assessee to whom an allowance has already been granted liable to tax under Section 41 (1) in respect of the amount remitted and received by the successor or the legal representative." 24. We have noticed hereinbefore that a finding of fact has been arrived at that for all intent and purport the appellant was the agent of ‘the lessee. Furthermore, a distinction must be borne in mind between the provisions of the Income Tax Act and Sales Tax Act. Sales tax is leviable on a sale. The manufacturer of the liquor is an assessee. It is a dealer within the meaning of the said Act. For the purpose of realisation of the sales tax, one who manages the business may not come to the front. Applying the doctrine of Crown Debt the assets of the unit could be attached or sold therefor. Crown Debt, as is well known, unless there is a statutory interdict, prevails over all other debts. It is based on the principle that public interest prevail over the private individual. [See Halsburys Laws of England Fourth Edition Volume 8 paras 1076 at pg. 666-667]. 25. We have referred to the doctrine of Crown Debt not for its applicability directly but to emphasise its importance in common law. A statute, particularly a fiscal one, must be construed in such a manner so as to give effect thereto. Evasion of tax is looked down upon under our constitutional and statutory schemes. 26. Reliance has also been placed on Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam vs. Gopal Trading Company [84 (1992) STC 294], wherein this Court, in a case involving the question as to whether despite establishing the fact that the purchaser of the goods at the relevant time had a valid certificate of registration and that he in fact had purchased the goods, whether the assessing authority must accept the form 25 declaration issued by him and make the assessment accordingly, opined that a fresh opportunity must be given to the assessee. 27. If the finding of fact arrived at by the Tribunal as affirmed by the High Court is correct, we would not take recourse to a construction which will defeat the purport and object of the Act.28. Tax liability of the business concern is not in dispute. Correctness of the orders of assessment is also not under challenge. The Tribunal or for that matter the High Court were, therefore, not concerned with the liability fastened upon the dealer. The only question was as to what extent the appellant was liable therefor. It is impossible for the legislature to envisage all situations. Recourse to statutory interpretations therefor should be done in such a manner so as to give effect to the object and purport thereof. Doctrine of purposive construction should, for the said purpose, be taken recourse to. {See New India Assurance Company Ltd. v. Nusli Neville Wadia and Anr. [JT 2008 (1) SC 31 ] 29. Ordinarily, we would have accepted the contention that prior to coming into force of Section 19C of the Act, there did not exist any provision in the Act to assess two persons by fastening joint and several liability. However, the superior courts and, in particular, this Court, would not come on the way of the revenue to recover arrears of tax, if it is otherwise permissible in law.30. Apart from the finding of fact arrived at by the Tribunal, the appellant upon resumption of tenancy would become liable to pay tax, if it intends to carry on its business.31. The Act provides for the mode and manner in which the revenue may be recovered. The property of the dealer, namely, one in whose name the registration stood, can be proceeded with. Its properties may be subjected to attachment and sale.32. In that view of the matter, it is not a case where, this Court, while exercising its jurisdiction under Article 136 of the Constitution of India should interfere with the impugned judgment.33. In State of Karnataka and another vs. Shreyas Papers Pvt. Ltd. and others [(2006) 1 SCC 615] , this Court held that since there is a transfer of ownership of properties of the transferee, as noticed in terms of Section 100 of the Transfer of Property Act, the charged property may be sold.34. We may observe that in law the appellant is liable to pay the amount of sales tax assessed by the assessing authority.
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19. Management of business may be handed over by the owner to another but the department must be made known thereabout. A fresh registration certificate must be applied for and granted. The business by the Lessee continued under the old name. It was done at the behest of the appellant. It, therefore, cannot now turn around and contend that it was not liable to pay any tax.20. It may be true that Section 19C of the Act having come into effect from 29th August, 1989, could not be given any retrospective effect but then the legislature was not presumed to take into consideration a situation of the present nature. It is presumably for the said reason, the High Court evolved such a procedure which was acceptable to all the parties. Pursuant to or in furtherance of the direction of the High Court also, notices were issued. Appellant submitted itself to the jurisdiction of the assessing authority. Its liability was held to be joint and several with that of ‘the lessee. It preferred an appeal there against but it did not implead ‘the lessee as a party therein. In absence of ‘the lessee as a party to the said appeal, it was impermissible for the appellate authority to hold ‘the lessee alone liable for payment of tax. Even the Tribunal and the High Court could not have, in the said fact situation, issued any direction as to how the arrears of tax should be recovered.Such a procedure in this case was also followed. Such a direction has been issued, whereupon the assessment orders have been passed. We at this stage, therefore, cannot direct the authority to reopen the proceedings once again, as was urged by the learned counsel.We have noticed hereinbefore that a finding of fact has been arrived at that for all intent and purport the appellant was the agent of ‘the lessee. Furthermore, a distinction must be borne in mind between the provisions of the Income Tax Act and Sales Tax Act. Sales tax is leviable on a sale. The manufacturer of the liquor is an assessee. It is a dealer within the meaning of the said Act. For the purpose of realisation of the sales tax, one who manages the business may not come to the front. Applying the doctrine of Crown Debt the assets of the unit could be attached or sold therefor. Crown Debt, as is well known, unless there is a statutory interdict, prevails over all other debts. It is based on the principle that public interest prevail over the private individual.We have referred to the doctrine of Crown Debt not for its applicability directly but to emphasise its importance in common law. A statute, particularly a fiscal one, must be construed in such a manner so as to give effect thereto. Evasion of tax is looked down upon under our constitutional and statutory schemes.If the finding of fact arrived at by the Tribunal as affirmed by the High Court is correct, we would not take recourse to a construction which will defeat the purport and object of the Act.28. Tax liability of the business concern is not in dispute. Correctness of the orders of assessment is also not under challenge. The Tribunal or for that matter the High Court were, therefore, not concerned with the liability fastened upon the dealer. The only question was as to what extent the appellant was liable therefor. It is impossible for the legislature to envisage all situations. Recourse to statutory interpretations therefor should be done in such a manner so as to give effect to the object and purport thereof. Doctrine of purposive construction should, for the said purpose, be taken recourse to.Ordinarily, we would have accepted the contention that prior to coming into force of Section 19C of the Act, there did not exist any provision in the Act to assess two persons by fastening joint and several liability. However, the superior courts and, in particular, this Court, would not come on the way of the revenue to recover arrears of tax, if it is otherwise permissible in law.30. Apart from the finding of fact arrived at by the Tribunal, the appellant upon resumption of tenancy would become liable to pay tax, if it intends to carry on its business.31. The Act provides for the mode and manner in which the revenue may be recovered. The property of the dealer, namely, one in whose name the registration stood, can be proceeded with. Its properties may be subjected to attachment and sale.32. In that view of the matter, it is not a case where, this Court, while exercising its jurisdiction under Article 136 of the Constitution of India should interfere with the impugned judgment.33. In State of Karnataka and another vs. Shreyas Papers Pvt. Ltd. and others [(2006) 1 SCC 615] , this Court held that since there is a transfer of ownership of properties of the transferee, as noticed in terms of Section 100 of the Transfer of Property Act, the charged property may be sold.34. We may observe that in law the appellant is liable to pay the amount of sales tax assessed by the assessing authority.
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The Commissioner Of Income-Tax, Bombay City I Vs. M/S. Jagannath Kissonlal, Bombay | custom sought to be relied upon by the appellant so as to make the transaction of his having joined Mumraj Rambhagat as surety in the loan procured by Mumraj Rambhagat from Imperial Bank of India, a transaction in the course of carrying on his own timber business and to make the loss in the transaction a trading loss or a bad debt of the timber business of the appellant."Continuing at page 558 (of SCR): (at p. 574 of AIR) it was observed:"There were thus elements of mutuality and the essential ingredient in the carrying on of the money lending business, which were elements of the custom proved in that case, both of which are wanting in the present case before us."Mr. Palkhivala for the respondent rightly argued that Madan Gopal Baglas case, 1956 SCR 551 : ((S) AIR 1956 SC 571 ) was decided against the assessee because the custom of persons standing surety for each other for borrowing money and the element of mutuality which was an essential ingredient in the case of Commissioner of Income-Tax, Madras v. S. A. S. Ramaswamy Chettiar, 1946-14 ITR 236: (AIR 1946 Mad 508) was not proved. In the latter case it was established that there was a well recognised custom amongst Chettiars of raising funds for their business of money lenders by the execution of joint pronotes and that if a loss was sustained by one of the executants having to pay the whole on account of inability of the other it was a deductible loss.6. The appellant also relied on a judgment of the Madras High Court in Commissioner of Income-Tax v. S. R. Subramanya Pillai, 1950-18 ITR 85 : (AIR 1950 Mad 626 ). In that case the assessee was a book-seller who from time to time jointly with another person borrowed money out of which he employed a portion in his business. One of such amounts borrowed was Rs. 16,200 out of which the assessee took Rs. 10,450 for his business needs and the other debtor took the balance. The latter became insolvent and the assessee had to pay the whole of the money borrowed and claimed it as allowable deduction under S. 10(2) (xi) or S. 10(2) (v) of the Act or as business loss and it was held that he was not entitled, because the loss sustained by the assessee was too remote from the business of book-selling carried on by him and was not sufficiently connected with the trade and therefore fell outside the range of those amounts which could properly be brought into profit and loss account of the business. The decision in 1946-14 ITR 236: (AIR 1946 Mad 508) was there distinguished on the ground that the decision must be confined to its own peculiar facts and did not apply to business as the one in Subramanya Pillais case, 1950-18 ITR 85 : (AIR 1950 Mad 626 ). The following passage from the judgment of Viswanatha Sastri, J. in that case is relevant:"But there the business was one of money lending and the Court found that according to the well-known and well-recognised mercantile custom of Nattukottai bankers, they were in the habit of raising funds which formed the stock-in-trade of their money lending business by the execution of joint promissory notes in favour of bankers. That was apparently the usual technique of obtaining credit adopted by the Nattukottai Chetti community money-lenders. In the context this Court held that where a Nattukottai Chetti money-lender paid off in their entirety the debts jointly due by him and another as a result of the latters inability to pay, the loss sustained as a result of this transaction was a loss of the money lending business itself and therefore a deductible item in computing profits."7. In the instant case it has been found that there was a well recognised commercial practice in Bombay of carrying on business by borrowing money from Banks on joint and several liability. It was also found that by so doing the borrower could borrow money at a lower rate of interest than he otherwise would have paid; that the respondent had, in accordance with the commercial practice, borrowed the money, the whole of which he had to return because the joint promisor Kishori Lal had become bankrupt; mutuality was also held proved. It cannot be said that the essential feature of the case now before us is in principle different from that of 1946-14 ITR 236 : (AIR 1946 Mad 508). In both cases the finding is that there is mutuality and custom of borrowing money on joint pronotes for the carrying on the business. In our opinion in the circumstances proved in the present case, and on the facts established and on the findings given, the respondent was rightly held to be entitled to deduct the loss which was suffered by him in the transaction in dispute.8. Counsel for the assessee drew our attention to a Privy Council judgment Montreal Coke and Manufacturing Co. v. Minister of National Revenue, 1945-13 ITR (Supp) 1 but that case can have no application to the facts of the present case because it was found there as a fact that the assessees financial arrangements were quite distinct from the activities by which they earned their income and expenditure incurred in relation to the financing of their business was not expenditure in the earning of their income within the statute.9. It was then contended that the loss of the respondent was a capital loss and for this again reliance was placed on the judgment of this Court in Madan Gopal Baglas case, 1956 SCR 551 : ( (S) AIR 1956 SC 571 ) and particularly on the observation at page 559 where Bhagwati, J., quoted with approval the observations of the High Court in the judgment but as we have pointed out the facts of that case are distinguishable and what was said there has no application to the facts and circumstances proved in the present case. | 0[ds]7. In the instant case it has been found that there was a well recognised commercial practice in Bombay of carrying on business by borrowing money from Banks on joint and several liability. It was also found that by so doing the borrower could borrow money at a lower rate of interest than he otherwise would have paid; that the respondent had, in accordance with the commercial practice, borrowed the money, the whole of which he had to return because the joint promisor Kishori Lal had become bankrupt; mutuality was also heldour opinion in the circumstances proved in the present case, and on the facts established and on the findings given, the respondent was rightly held to be entitled to deduct the loss which was suffered by him in the transaction in dispute.It was then contended that the loss of the respondent was a capital loss and for this again reliance was placed on the judgment of this Court in Madan Gopal Baglas case, 1956 SCR 551 : ( (S) AIR 1956 SC 571 ) and particularly on the observation at page 559 where Bhagwati, J., quoted with approval the observations of the High Court in the judgment but as we have pointed out the facts of that case are distinguishable and what was said there has no application to the facts and circumstances proved in the present case. | 0 | 2,512 | 248 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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custom sought to be relied upon by the appellant so as to make the transaction of his having joined Mumraj Rambhagat as surety in the loan procured by Mumraj Rambhagat from Imperial Bank of India, a transaction in the course of carrying on his own timber business and to make the loss in the transaction a trading loss or a bad debt of the timber business of the appellant."Continuing at page 558 (of SCR): (at p. 574 of AIR) it was observed:"There were thus elements of mutuality and the essential ingredient in the carrying on of the money lending business, which were elements of the custom proved in that case, both of which are wanting in the present case before us."Mr. Palkhivala for the respondent rightly argued that Madan Gopal Baglas case, 1956 SCR 551 : ((S) AIR 1956 SC 571 ) was decided against the assessee because the custom of persons standing surety for each other for borrowing money and the element of mutuality which was an essential ingredient in the case of Commissioner of Income-Tax, Madras v. S. A. S. Ramaswamy Chettiar, 1946-14 ITR 236: (AIR 1946 Mad 508) was not proved. In the latter case it was established that there was a well recognised custom amongst Chettiars of raising funds for their business of money lenders by the execution of joint pronotes and that if a loss was sustained by one of the executants having to pay the whole on account of inability of the other it was a deductible loss.6. The appellant also relied on a judgment of the Madras High Court in Commissioner of Income-Tax v. S. R. Subramanya Pillai, 1950-18 ITR 85 : (AIR 1950 Mad 626 ). In that case the assessee was a book-seller who from time to time jointly with another person borrowed money out of which he employed a portion in his business. One of such amounts borrowed was Rs. 16,200 out of which the assessee took Rs. 10,450 for his business needs and the other debtor took the balance. The latter became insolvent and the assessee had to pay the whole of the money borrowed and claimed it as allowable deduction under S. 10(2) (xi) or S. 10(2) (v) of the Act or as business loss and it was held that he was not entitled, because the loss sustained by the assessee was too remote from the business of book-selling carried on by him and was not sufficiently connected with the trade and therefore fell outside the range of those amounts which could properly be brought into profit and loss account of the business. The decision in 1946-14 ITR 236: (AIR 1946 Mad 508) was there distinguished on the ground that the decision must be confined to its own peculiar facts and did not apply to business as the one in Subramanya Pillais case, 1950-18 ITR 85 : (AIR 1950 Mad 626 ). The following passage from the judgment of Viswanatha Sastri, J. in that case is relevant:"But there the business was one of money lending and the Court found that according to the well-known and well-recognised mercantile custom of Nattukottai bankers, they were in the habit of raising funds which formed the stock-in-trade of their money lending business by the execution of joint promissory notes in favour of bankers. That was apparently the usual technique of obtaining credit adopted by the Nattukottai Chetti community money-lenders. In the context this Court held that where a Nattukottai Chetti money-lender paid off in their entirety the debts jointly due by him and another as a result of the latters inability to pay, the loss sustained as a result of this transaction was a loss of the money lending business itself and therefore a deductible item in computing profits."7. In the instant case it has been found that there was a well recognised commercial practice in Bombay of carrying on business by borrowing money from Banks on joint and several liability. It was also found that by so doing the borrower could borrow money at a lower rate of interest than he otherwise would have paid; that the respondent had, in accordance with the commercial practice, borrowed the money, the whole of which he had to return because the joint promisor Kishori Lal had become bankrupt; mutuality was also held proved. It cannot be said that the essential feature of the case now before us is in principle different from that of 1946-14 ITR 236 : (AIR 1946 Mad 508). In both cases the finding is that there is mutuality and custom of borrowing money on joint pronotes for the carrying on the business. In our opinion in the circumstances proved in the present case, and on the facts established and on the findings given, the respondent was rightly held to be entitled to deduct the loss which was suffered by him in the transaction in dispute.8. Counsel for the assessee drew our attention to a Privy Council judgment Montreal Coke and Manufacturing Co. v. Minister of National Revenue, 1945-13 ITR (Supp) 1 but that case can have no application to the facts of the present case because it was found there as a fact that the assessees financial arrangements were quite distinct from the activities by which they earned their income and expenditure incurred in relation to the financing of their business was not expenditure in the earning of their income within the statute.9. It was then contended that the loss of the respondent was a capital loss and for this again reliance was placed on the judgment of this Court in Madan Gopal Baglas case, 1956 SCR 551 : ( (S) AIR 1956 SC 571 ) and particularly on the observation at page 559 where Bhagwati, J., quoted with approval the observations of the High Court in the judgment but as we have pointed out the facts of that case are distinguishable and what was said there has no application to the facts and circumstances proved in the present case.
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7. In the instant case it has been found that there was a well recognised commercial practice in Bombay of carrying on business by borrowing money from Banks on joint and several liability. It was also found that by so doing the borrower could borrow money at a lower rate of interest than he otherwise would have paid; that the respondent had, in accordance with the commercial practice, borrowed the money, the whole of which he had to return because the joint promisor Kishori Lal had become bankrupt; mutuality was also heldour opinion in the circumstances proved in the present case, and on the facts established and on the findings given, the respondent was rightly held to be entitled to deduct the loss which was suffered by him in the transaction in dispute.It was then contended that the loss of the respondent was a capital loss and for this again reliance was placed on the judgment of this Court in Madan Gopal Baglas case, 1956 SCR 551 : ( (S) AIR 1956 SC 571 ) and particularly on the observation at page 559 where Bhagwati, J., quoted with approval the observations of the High Court in the judgment but as we have pointed out the facts of that case are distinguishable and what was said there has no application to the facts and circumstances proved in the present case.
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The Collector of Sabarkantha Vs. Shankarlal Kalidas Patel & Another | he could not have recourse to the provisions of S. 186 of the Act.13. Mr. Rane then points out that in his application to the Court the Liquidator has claimed interest at 9 per cent from the date of the resolution and, therefore, it must be inferred that the demand made by the Liquidator was based on the resolution. The most that can be said is that the demand for interest was based on that resolution but nothing more. We do not think that this circumstance conclusively indicates that the Liquidator had based his demand for the unpaid call money on the resolution of the Board of Directors.14. Under the Companies Act a Liquidator is given a right to move the court for recovery of moneys due under certain provisions of that Act. Section 187 of the Act is a provision which empowers the Court to order in certain circumstances the payment to the Liquidator of moneys which he can claim under the Statute. It is contended by Mr. Rane that even in such a case the question of interest would arise. Whether it does so or not it is sufficient for the purpose of this case to say that no proper application was made by the liquidator under S. 187 of the Act. The Companies Act provides a form for making an application in this behalf. The Liquidator should have made an application in that particular form and given all the particulars which are required to be mentioned in the application. Then again before the Court can grant an application under S. 187 it must be satisfied that the payment of the money sought by the Liquidator is necessary to satisfy the debts and liabilities of the company and costs, charges or expenses of the winding up or for the adjustment of the rates of the contributories themselves. The application which is before us cannot be ascribed to S. 187 of the Act because all the particulars which are necessary to be placed before the Court for enabling it to decide the various matters referred to in S. 187 are not set out in that application. There is apparently no time limit for making an application under this section, and it will be open to the Liquidator to make such an application even now. The consequence of our view would, therefore, be that the order of the court below requiring the State to pay Rs. 50,000 to the Liquidator in respect of the call money will have to be set aside.15. The next question to be considered is whether the direction regarding the payment of interest at 9 per cent on Rs. 50,000 is correct. In our opinion, in the absence of a provision in the Companies Act and in the absence of a demand for interest in the letter of the Liquidator it was not competent to the Court to award interest against the State. That direction is also liable to be set aside.16. Finally, there remains the question of payment of rent. It is said that the Court was competent to make such an order under S. 185 of the Act. That section runs thus:-"At any time after the making of the winding up order, the Court may require any contributory and any trustee, banker, agent or officer of the company to pay, deliver, surrender, or transfer forthwith or within such time as the Court directs, to the, official liquidator any money, property or documents in his hands to which the company is prima facie entitled".We have already held that the State must be regarded as a contributory and that the contention that it does not appear that a list of contributories had been settled ought not to be permitted to be raised on behalf of the State. From this it would follow that the provisions of S. 185 could be availed of against the State. There is, however, nothing in those provisions which entitled the Court to require a contributory to pay rent in respect of property in the possession of the contributory. If the State had collected any money belonging to the company or had in its possession any money belonging to the company then, of course, an order could have been made by the Court requiring the State to pay such money to the Liquidator. Mr. Shah, who appears for the respondent, says that the State of Bombay had let out the buildings belonging to the company to the Civil Supplies Department on a rent of Rs. 500 per month and that after collecting the rent from the Civil Supplies Department, the State had actually paid a part of the rent so collected to one of the Directors of the Company and that consequently the State must be held liable to pay the rent for the entire period during which the Civil Supplies Department was in occupation of the building. For one thing it does not appear that any rent was collected by the State from the Civil Supplies Department except for a period of five months or so and a part of the rent for this period was actually paid by the Government to a Director of the Company. Apart, however from that it cannot be disputed that the Civil Supplies Department is a limb of the State and is not a separate entity. Therefore, even though the premises may have been made available for the use of the Civil Supplies Department and even though a rent of Rs. 500 per month was fixed with respect to those premises and actually recovered for a period of five months, it cannot be said that the State had in its hands moneys belonging to the Company collected by the State from any person or entity. In these circumstances, we are of the opinion, that no order can be made against the Government requiring it to pay rent of Rs. 500 per month to the Company in respect of rent payable by the Civil Supplies Department. | 0[ds]Here we have the fact that the State of Idar had entered into possession of this property by virtue of the agreements of 1945 on the ground that it was a share-holder to the extent of two lakhs of rupees. After the merger the State of Bombay entered into possession of this property. It would therefore, follow that the State of Bombay intended to assert the same rights which the former Idar State purported to assert when it had entered into the agreement. Those rights were based, as already stated, upon the initial fact that the State of Idar was a shareholder to the extent of Rs. 2 lakhs and in respect of which it had paid,Rs. 1,50,000 by way of share money. A balance of Rs. 50,000 was payable by the State to the company. This liability must naturally attach to the right which the State of Idar had by reason of the fact that it had paid Rs. 1,50,000. Now the State of Idar could not have exercised those rights and ignored the liabilities which were attached to those rights. The State of Bombay did not repudiate expressly any liability after it entered into possession of this property. It could, therefore, be said that by implication the State of Bombay accepted that liability. Apart from that the Court cannot permit a party to allow itself to take only the benefits arising out of a contract or a bargain and dispute the liabilities arising therefrom. Therefore, looking at the matter either way, it would be clear that the State of Bombay as the successor State is bound by the same obligation by which the State of Idar was bound. Alternatively it can be said that the State of Bombay cannot be allowed to assert their rights as share-holders but dispute the liabilities arising from the fact that they are the share-holders.As regards the second ground we may point out that though the agreement between the State of Idar and the M.D. Industries Ltd. whereunder the latter had undertaken to take over the shares standing in the name of the State and pay for them and though there is also an agreement between the company on the one hand and the M.D. Industries on the other that the latter would pay the price of the shares to the Idar State and get the shares transferred to themselves, there has in fact been no transfer of the shares in the name of M. D. Industries Ltd.In the absence of any such transfer we are clear that the liability of the original share-holders, i.e., the State of Idar, continued. Since the State of Idar was liable, the State of Bombay, which is the successor of the State Idar, is alsoS. 185 provides that an order of the Court could be made against a contributory whose name is settled in the list of contributories. Mr. Rane points out that no such list has been made and at any rate the State of Bombay has not been settled in the list of contributories. That may be so. Here again the point was not taken either in the Court below or in the Memo of appeal. In such a circumstance we do not permit Mr. Rane to raise thisseems to us that this contention is not correct because no reference whatsoever is made to that resolution in the Liquidators letter. Apart from that, under that resolution only Rs. 25 per share, i.e., in all a sum of Rs. 25,000 was called, while the total amount of unpaid share-money was Rs. 50,000.The Liquidator in his letter had made a demand for the amount of Rs. 50,000. Therefore, it is clear that his demand is not based upon the resolution. Since it is not based upon that resolution he could not have recourse to the provisions of S. 186 of the Act.13.Mr. Rane then points out that in his application to the Court the Liquidator has claimed interest at 9 per cent from the date of the resolution and, therefore, it must be inferred that the demand made by the Liquidator was based on the resolution. The most that can be said is that the demand for interest was based on that resolution but nothing more.We do not think that this circumstance conclusively indicates that the Liquidator had based his demand for the unpaid call money on the resolution of the Board ofCompanies Act provides a form for making an application in this behalf. The Liquidator should have made an application in that particular form and given all the particulars which are required to be mentioned in the application. Then again before the Court can grant an application under S. 187 it must be satisfied that the payment of the money sought by the Liquidator is necessary to satisfy the debts and liabilities of the company and costs, charges or expenses of the winding up or for the adjustment of the rates of the contributories themselves. The application which is before us cannot be ascribed to S. 187 of the Act because all the particulars which are necessary to be placed before the Court for enabling it to decide the various matters referred to in S. 187 are not set out in that application. There is apparently no time limit for making an application under this section, and it will be open to the Liquidator to make such an application even now. The consequence of our view would, therefore, be that the order of the court below requiring the State to pay Rs. 50,000 to the Liquidator in respect of the call money will have to be setour opinion, in the absence of a provision in the Companies Act and in the absence of a demand for interest in the letter of the Liquidator it was not competent to the Court to award interest against the State. That direction is also liable to be setone thing it does not appear that any rent was collected by the State from the Civil Supplies Department except for a period of five months or so and a part of the rent for this period was actually paid by the Government to a Director of the Company. Apart, however from that it cannot be disputed that the Civil Supplies Department is a limb of the State and is not a separate entity. Therefore, even though the premises may have been made available for the use of the Civil Supplies Department and even though a rent of Rs. 500 per month was fixed with respect to those premises and actually recovered for a period of five months, it cannot be said that the State had in its hands moneys belonging to the Company collected by the State from any person or entity. In these circumstances, we are of the opinion, that no order can be made against the Government requiring it to pay rent of Rs. 500 per month to the Company in respect of rent payable by the Civil Supplies Department. | 0 | 4,012 | 1,257 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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he could not have recourse to the provisions of S. 186 of the Act.13. Mr. Rane then points out that in his application to the Court the Liquidator has claimed interest at 9 per cent from the date of the resolution and, therefore, it must be inferred that the demand made by the Liquidator was based on the resolution. The most that can be said is that the demand for interest was based on that resolution but nothing more. We do not think that this circumstance conclusively indicates that the Liquidator had based his demand for the unpaid call money on the resolution of the Board of Directors.14. Under the Companies Act a Liquidator is given a right to move the court for recovery of moneys due under certain provisions of that Act. Section 187 of the Act is a provision which empowers the Court to order in certain circumstances the payment to the Liquidator of moneys which he can claim under the Statute. It is contended by Mr. Rane that even in such a case the question of interest would arise. Whether it does so or not it is sufficient for the purpose of this case to say that no proper application was made by the liquidator under S. 187 of the Act. The Companies Act provides a form for making an application in this behalf. The Liquidator should have made an application in that particular form and given all the particulars which are required to be mentioned in the application. Then again before the Court can grant an application under S. 187 it must be satisfied that the payment of the money sought by the Liquidator is necessary to satisfy the debts and liabilities of the company and costs, charges or expenses of the winding up or for the adjustment of the rates of the contributories themselves. The application which is before us cannot be ascribed to S. 187 of the Act because all the particulars which are necessary to be placed before the Court for enabling it to decide the various matters referred to in S. 187 are not set out in that application. There is apparently no time limit for making an application under this section, and it will be open to the Liquidator to make such an application even now. The consequence of our view would, therefore, be that the order of the court below requiring the State to pay Rs. 50,000 to the Liquidator in respect of the call money will have to be set aside.15. The next question to be considered is whether the direction regarding the payment of interest at 9 per cent on Rs. 50,000 is correct. In our opinion, in the absence of a provision in the Companies Act and in the absence of a demand for interest in the letter of the Liquidator it was not competent to the Court to award interest against the State. That direction is also liable to be set aside.16. Finally, there remains the question of payment of rent. It is said that the Court was competent to make such an order under S. 185 of the Act. That section runs thus:-"At any time after the making of the winding up order, the Court may require any contributory and any trustee, banker, agent or officer of the company to pay, deliver, surrender, or transfer forthwith or within such time as the Court directs, to the, official liquidator any money, property or documents in his hands to which the company is prima facie entitled".We have already held that the State must be regarded as a contributory and that the contention that it does not appear that a list of contributories had been settled ought not to be permitted to be raised on behalf of the State. From this it would follow that the provisions of S. 185 could be availed of against the State. There is, however, nothing in those provisions which entitled the Court to require a contributory to pay rent in respect of property in the possession of the contributory. If the State had collected any money belonging to the company or had in its possession any money belonging to the company then, of course, an order could have been made by the Court requiring the State to pay such money to the Liquidator. Mr. Shah, who appears for the respondent, says that the State of Bombay had let out the buildings belonging to the company to the Civil Supplies Department on a rent of Rs. 500 per month and that after collecting the rent from the Civil Supplies Department, the State had actually paid a part of the rent so collected to one of the Directors of the Company and that consequently the State must be held liable to pay the rent for the entire period during which the Civil Supplies Department was in occupation of the building. For one thing it does not appear that any rent was collected by the State from the Civil Supplies Department except for a period of five months or so and a part of the rent for this period was actually paid by the Government to a Director of the Company. Apart, however from that it cannot be disputed that the Civil Supplies Department is a limb of the State and is not a separate entity. Therefore, even though the premises may have been made available for the use of the Civil Supplies Department and even though a rent of Rs. 500 per month was fixed with respect to those premises and actually recovered for a period of five months, it cannot be said that the State had in its hands moneys belonging to the Company collected by the State from any person or entity. In these circumstances, we are of the opinion, that no order can be made against the Government requiring it to pay rent of Rs. 500 per month to the Company in respect of rent payable by the Civil Supplies Department.
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0
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those rights and ignored the liabilities which were attached to those rights. The State of Bombay did not repudiate expressly any liability after it entered into possession of this property. It could, therefore, be said that by implication the State of Bombay accepted that liability. Apart from that the Court cannot permit a party to allow itself to take only the benefits arising out of a contract or a bargain and dispute the liabilities arising therefrom. Therefore, looking at the matter either way, it would be clear that the State of Bombay as the successor State is bound by the same obligation by which the State of Idar was bound. Alternatively it can be said that the State of Bombay cannot be allowed to assert their rights as share-holders but dispute the liabilities arising from the fact that they are the share-holders.As regards the second ground we may point out that though the agreement between the State of Idar and the M.D. Industries Ltd. whereunder the latter had undertaken to take over the shares standing in the name of the State and pay for them and though there is also an agreement between the company on the one hand and the M.D. Industries on the other that the latter would pay the price of the shares to the Idar State and get the shares transferred to themselves, there has in fact been no transfer of the shares in the name of M. D. Industries Ltd.In the absence of any such transfer we are clear that the liability of the original share-holders, i.e., the State of Idar, continued. Since the State of Idar was liable, the State of Bombay, which is the successor of the State Idar, is alsoS. 185 provides that an order of the Court could be made against a contributory whose name is settled in the list of contributories. Mr. Rane points out that no such list has been made and at any rate the State of Bombay has not been settled in the list of contributories. That may be so. Here again the point was not taken either in the Court below or in the Memo of appeal. In such a circumstance we do not permit Mr. Rane to raise thisseems to us that this contention is not correct because no reference whatsoever is made to that resolution in the Liquidators letter. Apart from that, under that resolution only Rs. 25 per share, i.e., in all a sum of Rs. 25,000 was called, while the total amount of unpaid share-money was Rs. 50,000.The Liquidator in his letter had made a demand for the amount of Rs. 50,000. Therefore, it is clear that his demand is not based upon the resolution. Since it is not based upon that resolution he could not have recourse to the provisions of S. 186 of the Act.13.Mr. Rane then points out that in his application to the Court the Liquidator has claimed interest at 9 per cent from the date of the resolution and, therefore, it must be inferred that the demand made by the Liquidator was based on the resolution. The most that can be said is that the demand for interest was based on that resolution but nothing more.We do not think that this circumstance conclusively indicates that the Liquidator had based his demand for the unpaid call money on the resolution of the Board ofCompanies Act provides a form for making an application in this behalf. The Liquidator should have made an application in that particular form and given all the particulars which are required to be mentioned in the application. Then again before the Court can grant an application under S. 187 it must be satisfied that the payment of the money sought by the Liquidator is necessary to satisfy the debts and liabilities of the company and costs, charges or expenses of the winding up or for the adjustment of the rates of the contributories themselves. The application which is before us cannot be ascribed to S. 187 of the Act because all the particulars which are necessary to be placed before the Court for enabling it to decide the various matters referred to in S. 187 are not set out in that application. There is apparently no time limit for making an application under this section, and it will be open to the Liquidator to make such an application even now. The consequence of our view would, therefore, be that the order of the court below requiring the State to pay Rs. 50,000 to the Liquidator in respect of the call money will have to be setour opinion, in the absence of a provision in the Companies Act and in the absence of a demand for interest in the letter of the Liquidator it was not competent to the Court to award interest against the State. That direction is also liable to be setone thing it does not appear that any rent was collected by the State from the Civil Supplies Department except for a period of five months or so and a part of the rent for this period was actually paid by the Government to a Director of the Company. Apart, however from that it cannot be disputed that the Civil Supplies Department is a limb of the State and is not a separate entity. Therefore, even though the premises may have been made available for the use of the Civil Supplies Department and even though a rent of Rs. 500 per month was fixed with respect to those premises and actually recovered for a period of five months, it cannot be said that the State had in its hands moneys belonging to the Company collected by the State from any person or entity. In these circumstances, we are of the opinion, that no order can be made against the Government requiring it to pay rent of Rs. 500 per month to the Company in respect of rent payable by the Civil Supplies Department.
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Padmavati R. Saraiya And Others Vs. Commissioner Of Income-Tax Bombay City-1 | excess of the amount calculated according to the percentage specified, in columns 2 and 3 thereof, that Dominion shall allow an abatement equal to the lower amount of tax payable on such excess in either Dominion as provided for in Article VI.Article VI.-(a) For the purposes of the abatement to be allowed under Art. IV or V, the tax payable in each Dominion on the excess or the doubly taxed income, as the case may be shall be such proportion of the tax payable in each Dominion as the excess or the doubtly taxed income bears to the total income of the assessee in each Dominion.(b) Where at the time of assessment in one Dominion, the tax payable on the total income in the other Dominion is not known, the first Dominion shall make a demand without allowing the abatement, but shall hold in abeyance for a period of one year (or such longer period as may be allowed by the Income-tax Officer in his discretion) the collection of a portion of the demand equal to the estimated abatement. If the assessee produces a certificate of assessment in the other Dominion within the period of one year or any longer period allowed by the Income-tax Officer, the uncollected portion of the demand will be adjusted against the abatement allowable under this Agreement; if no such certificate is produced, the abatement shall cease to be operative and the outstanding demand shall be collected forthwith."15. It seems to us that the opening sentence of Art. IV of the Agreement that each Dominion is entitled to make assessment in the ordinary way under its own laws clearly shows that each Dominion can make an assessment regardless of the Agreement. But a restriction is imposed on each Dominion and the restriction is not on the power of assessment but on the liberty, to retain the tax assessed. Art. IV directs each Dominion to allow abatement on the amount in excess of the amount mentioned in the Schedule.The scheme of the Schedule is to apportion income from various sources among the two Dominions. In the case of Dividends each Dominion is entitled to charge "in proportion to the profits of the company chargeable by each Dominion under this agreement." This refers us back to the other items. For instance, in respect of goods manufactured by the assessee partly in one Dominion and partly in the other, each Dominion is entitled to charge on 50% of the profits. But the Schedule does not 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 inserted only for the purpose of calculating the abatement to be allowed.16. Article VI also leads to the same conclusion. For if no assessment could be made on the amount on which abatement is to be allowed, there could be no question of making a demand without allowing the abatement and holding in abeyance for a period the collection of a portion of the demand equal to the estimated abatement.17. It is common ground that no certificate of assessment in the other Dominion has been produced before the Income-tax Officer. We agree with the High Court that the answer to this question is in the affirmative.18. The other question that remains is question D, set out above. The High Court approached the question in the light of the decision of the Bombay High Court in Commissioner of Income-tax, Bombay City II v. Laxmidas Mulraj Khatau, 1948-16 ITR 248 : (AIR 1948 Bom 404 ). It came to the conclusion that the resolution created only a contingent liability, and, therefore, the dividend could not be said to have been paid in the previous year of the asessment year 1953-54. Mr. Gupte, the learned Additional Solicitor General, has urged that this view is wrong but that in view of the recent decision of this Court in J. Dalmia v. Commissioner of Income-tax, New Delhi,1964-53 ITR (SC) 83: (AIR 1964 SC 1866 ), it is not necessary to decide this point as this Court has dissented from the decision in 1948-16 ITR 248 : (AIR 1948 Bom 404 ). He, however, urged that the amount had been credited within the meaning of S. 16 (2) of the Act. He said that the profit and loss Account of the Company was debited with Rs. 5,85,000, that being the total amount of dividend declared. The corresponding credits, he points, out were given as follows:-"To seventh Dividend Account (being the amount payable to share-holders). 5,74,144-4-0To Income-tax Reserve Account (being the amount of income-tax deducted on dividend warrant) 10,500-0-0Non-resident shareholder super-tax Account (being the amount of super-tax deducted from the dividend payable to non-resident shareholders). 355-12-0."19. Subsequently, after making payment, the seventh dividend account showed a credit balance of Rs. 2,92,500 representing a moiety of the dividend that remained to be paid out of the total dividend declared of Rs. 5,85,000.20. We are unable to accept the contention. In 1964-53 ITR (SC) 83: (AIR 1964 SC 1866 ), Shah, J., speaking for the Court had observed:-"In general, dividend may be said to be paid within the meaning of S. 16 (2) when the Company discharges its liability and makes the amount of dividend unconditionally available to the member entitled thereto".This condition must also be fulfilled in case a dividend is credited. In other words, the credit must be in such form that the dividend is unconditionally available to the member.21. It will be noticed that the dividend due to the assessee has not been credited to any separate account of the assessee, so that he could, if he wished, draw it. Before the High Court it was never suggested that the dividend was credited or distributed. Accordingly we hold that the Pakistan portion of the dividend has not been credited or paid within the meaning of S. 16 (2) of the Income-tax Act. The answer to the question is, therefore, in the negative. | 0[ds]11. It is not necessary to discuss the first question which raises the point of the validity of proceedings under S. 34 of the Act. because it is common ground that it has become academic. This common ground is based on the fact that the Commissioner of Income-tax has not appealed against the judgment of the High Court, dated April 14, 1960. By this judgment the High Court had answered the supplementary question in favour of the Assessee A12. Regarding the second question.Mr Vishwanath Sastri rightly concedes that the Pakistan portion of the dividend forms part of the assessees total income as defined in S. 2 (15) of the Act. The High Court had followed its earlier judgment in the Commissioner of Incometax, Bombay City II v. Shanti K. Maheshwari, 1958-33 ITR 313: (AIR 1958 Bom478).We hold that the High Court was right in answering this question against the Assessee A.It seems to us that the opening sentence of Art. IV of the Agreement that each Dominion is entitled to make assessment in the ordinary way under its own laws clearly shows that each Dominion can make an assessment regardless of the Agreement. But a restriction is imposed on each Dominion and the restriction is not on the power of assessment but on the liberty, to retain the tax assessed. Art. IV directs each Dominion to allow abatement on the amount in excess of the amount mentioned in the Schedule.The scheme of the Schedule is to apportion income from various sources among the two Dominions. In the case of Dividends each Dominion is entitled to charge "in proportion to the profits of the company chargeable by each Dominion under this agreement." This refers us back to the other items. For instance, in respect of goods manufactured by the assessee partly in one Dominion and partly in the other, each Dominion is entitled to charge on 50% of the profits. But the Schedule does not 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 inserted only for the purpose of calculating the abatement to be allowed.16. Article VI also leads to the same conclusion. For if no assessment could be made on the amount on which abatement is to be allowed, there could be no question of making a demand without allowing the abatement and holding in abeyance for a period the collection of a portion of the demand equal to the estimated abatement.17. It is common ground that no certificate of assessment in the other Dominion has been produced before the Income-tax Officer. We agree with the High Court that the answer to this question is in the affirmative.It will be noticed that the dividend due to the assessee has not been credited to any separate account of the assessee, so that he could, if he wished, draw it. Before the High Court it was never suggested that the dividend was credited or distributed. Accordingly we hold that the Pakistan portion of the dividend has not been credited or paid within the meaning of S. 16 (2) of the Income-tax Act. The answer to the question is, therefore, in the negative. | 0 | 2,954 | 590 | ### 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.
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excess of the amount calculated according to the percentage specified, in columns 2 and 3 thereof, that Dominion shall allow an abatement equal to the lower amount of tax payable on such excess in either Dominion as provided for in Article VI.Article VI.-(a) For the purposes of the abatement to be allowed under Art. IV or V, the tax payable in each Dominion on the excess or the doubly taxed income, as the case may be shall be such proportion of the tax payable in each Dominion as the excess or the doubtly taxed income bears to the total income of the assessee in each Dominion.(b) Where at the time of assessment in one Dominion, the tax payable on the total income in the other Dominion is not known, the first Dominion shall make a demand without allowing the abatement, but shall hold in abeyance for a period of one year (or such longer period as may be allowed by the Income-tax Officer in his discretion) the collection of a portion of the demand equal to the estimated abatement. If the assessee produces a certificate of assessment in the other Dominion within the period of one year or any longer period allowed by the Income-tax Officer, the uncollected portion of the demand will be adjusted against the abatement allowable under this Agreement; if no such certificate is produced, the abatement shall cease to be operative and the outstanding demand shall be collected forthwith."15. It seems to us that the opening sentence of Art. IV of the Agreement that each Dominion is entitled to make assessment in the ordinary way under its own laws clearly shows that each Dominion can make an assessment regardless of the Agreement. But a restriction is imposed on each Dominion and the restriction is not on the power of assessment but on the liberty, to retain the tax assessed. Art. IV directs each Dominion to allow abatement on the amount in excess of the amount mentioned in the Schedule.The scheme of the Schedule is to apportion income from various sources among the two Dominions. In the case of Dividends each Dominion is entitled to charge "in proportion to the profits of the company chargeable by each Dominion under this agreement." This refers us back to the other items. For instance, in respect of goods manufactured by the assessee partly in one Dominion and partly in the other, each Dominion is entitled to charge on 50% of the profits. But the Schedule does not 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 inserted only for the purpose of calculating the abatement to be allowed.16. Article VI also leads to the same conclusion. For if no assessment could be made on the amount on which abatement is to be allowed, there could be no question of making a demand without allowing the abatement and holding in abeyance for a period the collection of a portion of the demand equal to the estimated abatement.17. It is common ground that no certificate of assessment in the other Dominion has been produced before the Income-tax Officer. We agree with the High Court that the answer to this question is in the affirmative.18. The other question that remains is question D, set out above. The High Court approached the question in the light of the decision of the Bombay High Court in Commissioner of Income-tax, Bombay City II v. Laxmidas Mulraj Khatau, 1948-16 ITR 248 : (AIR 1948 Bom 404 ). It came to the conclusion that the resolution created only a contingent liability, and, therefore, the dividend could not be said to have been paid in the previous year of the asessment year 1953-54. Mr. Gupte, the learned Additional Solicitor General, has urged that this view is wrong but that in view of the recent decision of this Court in J. Dalmia v. Commissioner of Income-tax, New Delhi,1964-53 ITR (SC) 83: (AIR 1964 SC 1866 ), it is not necessary to decide this point as this Court has dissented from the decision in 1948-16 ITR 248 : (AIR 1948 Bom 404 ). He, however, urged that the amount had been credited within the meaning of S. 16 (2) of the Act. He said that the profit and loss Account of the Company was debited with Rs. 5,85,000, that being the total amount of dividend declared. The corresponding credits, he points, out were given as follows:-"To seventh Dividend Account (being the amount payable to share-holders). 5,74,144-4-0To Income-tax Reserve Account (being the amount of income-tax deducted on dividend warrant) 10,500-0-0Non-resident shareholder super-tax Account (being the amount of super-tax deducted from the dividend payable to non-resident shareholders). 355-12-0."19. Subsequently, after making payment, the seventh dividend account showed a credit balance of Rs. 2,92,500 representing a moiety of the dividend that remained to be paid out of the total dividend declared of Rs. 5,85,000.20. We are unable to accept the contention. In 1964-53 ITR (SC) 83: (AIR 1964 SC 1866 ), Shah, J., speaking for the Court had observed:-"In general, dividend may be said to be paid within the meaning of S. 16 (2) when the Company discharges its liability and makes the amount of dividend unconditionally available to the member entitled thereto".This condition must also be fulfilled in case a dividend is credited. In other words, the credit must be in such form that the dividend is unconditionally available to the member.21. It will be noticed that the dividend due to the assessee has not been credited to any separate account of the assessee, so that he could, if he wished, draw it. Before the High Court it was never suggested that the dividend was credited or distributed. Accordingly we hold that the Pakistan portion of the dividend has not been credited or paid within the meaning of S. 16 (2) of the Income-tax Act. The answer to the question is, therefore, in the negative.
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0
### Explanation:
11. It is not necessary to discuss the first question which raises the point of the validity of proceedings under S. 34 of the Act. because it is common ground that it has become academic. This common ground is based on the fact that the Commissioner of Income-tax has not appealed against the judgment of the High Court, dated April 14, 1960. By this judgment the High Court had answered the supplementary question in favour of the Assessee A12. Regarding the second question.Mr Vishwanath Sastri rightly concedes that the Pakistan portion of the dividend forms part of the assessees total income as defined in S. 2 (15) of the Act. The High Court had followed its earlier judgment in the Commissioner of Incometax, Bombay City II v. Shanti K. Maheshwari, 1958-33 ITR 313: (AIR 1958 Bom478).We hold that the High Court was right in answering this question against the Assessee A.It seems to us that the opening sentence of Art. IV of the Agreement that each Dominion is entitled to make assessment in the ordinary way under its own laws clearly shows that each Dominion can make an assessment regardless of the Agreement. But a restriction is imposed on each Dominion and the restriction is not on the power of assessment but on the liberty, to retain the tax assessed. Art. IV directs each Dominion to allow abatement on the amount in excess of the amount mentioned in the Schedule.The scheme of the Schedule is to apportion income from various sources among the two Dominions. In the case of Dividends each Dominion is entitled to charge "in proportion to the profits of the company chargeable by each Dominion under this agreement." This refers us back to the other items. For instance, in respect of goods manufactured by the assessee partly in one Dominion and partly in the other, each Dominion is entitled to charge on 50% of the profits. But the Schedule does not 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 inserted only for the purpose of calculating the abatement to be allowed.16. Article VI also leads to the same conclusion. For if no assessment could be made on the amount on which abatement is to be allowed, there could be no question of making a demand without allowing the abatement and holding in abeyance for a period the collection of a portion of the demand equal to the estimated abatement.17. It is common ground that no certificate of assessment in the other Dominion has been produced before the Income-tax Officer. We agree with the High Court that the answer to this question is in the affirmative.It will be noticed that the dividend due to the assessee has not been credited to any separate account of the assessee, so that he could, if he wished, draw it. Before the High Court it was never suggested that the dividend was credited or distributed. Accordingly we hold that the Pakistan portion of the dividend has not been credited or paid within the meaning of S. 16 (2) of the Income-tax Act. The answer to the question is, therefore, in the negative.
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Commissioner of Income Tax, West Bengal Vs. Wesman Engineering Company Private Limited | in the affirmative and in favour of the assessee by order dated February 10, 1976. The department filed an application for leave to appeal to the Supreme Court and the High Court by order dated September 8, 1977 citified it to be a fit case for appeal to the Supreme Court under Section 261 of the Income Tax Act, 1961 and issued a certificate accordingly 8. We have heard Mr. S. C. Manchanda, senior advocate for the appellant but nobody appeared for the respondent. The High Court in answering the reference placed reliance on its earlier judgment dated August 12, 1970 but the copy of the said judgment has not been supplied in the paper book as such we were deprived to go through the reasoning given by the High Court in answering the reference in the affirmative and in favour of the assessee 9. It was contended by Mr. Manchanda that the order passed by the Income Tax Officer under Section 195(2) of the Income Tax Act, 1961 (hereinafter referred to as the Act) was not appealable to AAC under Section 248 of the Act. His further contention was that the order passed by AAC was totally without jurisdiction and the only remedy available to the assessee was to file a writ petition to High Court under Article 226 of the Constitution of India. In our opinion this question does not arise before us nor such question was raised in the reference before the High Court. The Commissioner of Income Tax only sought to refer the following question for the opinion of the High Court "Whether, on the facts and circumstances of the case in appeal filed under Section 248 Income Tax Act, 1961, the Appellant Assistant Commissioner had jurisdiction to deal with the quantum of the sum chargeable under the provision of the said Act from which the assessee was liable to deduct tax under Section 195 thereof ?" * The above question does not contain the objection that no appeal was maintainable under Section 248 of the Act against the order of the Income Tax Officer passed under Section 195(2) of the Act. The High Court was not called upon to decide any question of jurisdiction as sought to be raised by Mr. Manchanda before us nor the High Court has granted any certificate in this regard. So far as the question referred to the High Court is concerned, its language shows that there was no controversy about the appeal filed under Section 248 of the Act and the only question raised was whether the AAC had jurisdiction to deal with the quantum of the sum chargeable under the provisions of the said Act from which the assessee was liable to deduct tax under Section 195 thereof. The argument thus raised by Mr. Manchanda before us that order under Section 195(2) was not appealable under Section 248 of the Act, is not available. Even otherwise the language of Section 248 of the Act, is wide enough to cover any order passed under Section 195 of the Act. The case Meteor Satellite Ltd. v. ITO ( 1980 (121) ITR 311 (Guj)) cited in support of the above contention by Mr. Manchanda is of no relevance 10. It was next contended by Mr. Manchanda that the AAC was wrong in holding that the quantum of income could be determined in an appeal under Section 248. It was also argued that the AAC was also wrong in allowing the expenses at 75 per cent of the remittance. It would be proper to reproduce Section 248 of the Act which reads as under "248. Appeal by person denying liability to deduct tax. - Any person having in accordance with the provisions of Section 195 and 200 deducted and paid tax in respect of any sum chargeable under this Act, other than interest, who denies his liability to make such deduction, may appeal to the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) to be declared not liable to make such deduction." * 11. It was argued by Mr. Manchanda that under Section 248 a person could deny his liability to make such deduction but there was no power to determine the quantum and to say as to what extent the said remittance will be taxed. We find no force in the above contention. Section 248 makes a mention of Sections 195 and 200 and it does not speak of the sub-clauses of Section 195 either (1) or (2). When once an appeal has been preferred to the ACC on the matter of liability of the company to deduct taxes, the AAC is well within his competence to pass an order on the quantum also. In our opinion the AAC was also competent to pass an order with regard to quantum when once he is seized of the matter. Under Section 248 a person having deducted and paid tax under Section 195 may appeal to the AAC denying his liability to make such deduction and for a declaration that he is not liable to make such deduction. It is thus difficult for us to accept the argument that total denial may enable an appeal to be filed but not a part denial with reference to part of the payment subjected to deduction of tax. The right of appeal given under Section 248 is clear and we cannot accept the view sought to be propounded by Mr. Manchanda that such a right is restricted and the AAC was not competent to fix the quantum or to revise the proportion of the amount chargeable under the provisions of the Act as determined by the Income Tax Officer. Section 251 of the Act provides with the powers of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals). Clause (c) sub-section (1) of Section 251 reads as under"251. (1) (c) - in any other case, he may pass such orders in the appeal as he thinks fit." 12. | 0[ds]9. It was contended by Mr. Manchanda that the order passed by the Income Tax Officer under Section 195(2) of the Income Tax Act, 1961 (hereinafter referred to as the Act) was not appealable to AAC under Section 248 of the Act. His further contention was that the order passed by AAC was totally without jurisdiction and the only remedy available to the assessee was to file a writ petition to High Court under Article 226 of the Constitution of India.In our opinion this question does not arise before us nor such question was raised in the reference before the High Court. The Commissioner of Income Tax only sought to refer the following question for the opinion of the Highn our opinion the AAC was also competent to pass an order with regard to quantum when once he is seized of the matter. Under Section 248 a person having deducted and paid tax under Section 195 may appeal to the AAC denying his liability to make such deduction and for a declaration that he is not liable to make such deduction. It is thus difficult for us to accept the argument that total denial may enable an appeal to be filed but not a part denial with reference to part of the payment subjected to deduction of tax. The right of appeal given under Section 248 is clear and we cannot accept the view sought to be propounded by Mr. Manchanda that such a right is restricted and the AAC was not competent to fix the quantum or to revise the proportion of the amount chargeable under the provisions of the Act as determined by the Income Tax Officer. Section 251 of the Act provides with the powers of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) | 0 | 2,594 | 326 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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in the affirmative and in favour of the assessee by order dated February 10, 1976. The department filed an application for leave to appeal to the Supreme Court and the High Court by order dated September 8, 1977 citified it to be a fit case for appeal to the Supreme Court under Section 261 of the Income Tax Act, 1961 and issued a certificate accordingly 8. We have heard Mr. S. C. Manchanda, senior advocate for the appellant but nobody appeared for the respondent. The High Court in answering the reference placed reliance on its earlier judgment dated August 12, 1970 but the copy of the said judgment has not been supplied in the paper book as such we were deprived to go through the reasoning given by the High Court in answering the reference in the affirmative and in favour of the assessee 9. It was contended by Mr. Manchanda that the order passed by the Income Tax Officer under Section 195(2) of the Income Tax Act, 1961 (hereinafter referred to as the Act) was not appealable to AAC under Section 248 of the Act. His further contention was that the order passed by AAC was totally without jurisdiction and the only remedy available to the assessee was to file a writ petition to High Court under Article 226 of the Constitution of India. In our opinion this question does not arise before us nor such question was raised in the reference before the High Court. The Commissioner of Income Tax only sought to refer the following question for the opinion of the High Court "Whether, on the facts and circumstances of the case in appeal filed under Section 248 Income Tax Act, 1961, the Appellant Assistant Commissioner had jurisdiction to deal with the quantum of the sum chargeable under the provision of the said Act from which the assessee was liable to deduct tax under Section 195 thereof ?" * The above question does not contain the objection that no appeal was maintainable under Section 248 of the Act against the order of the Income Tax Officer passed under Section 195(2) of the Act. The High Court was not called upon to decide any question of jurisdiction as sought to be raised by Mr. Manchanda before us nor the High Court has granted any certificate in this regard. So far as the question referred to the High Court is concerned, its language shows that there was no controversy about the appeal filed under Section 248 of the Act and the only question raised was whether the AAC had jurisdiction to deal with the quantum of the sum chargeable under the provisions of the said Act from which the assessee was liable to deduct tax under Section 195 thereof. The argument thus raised by Mr. Manchanda before us that order under Section 195(2) was not appealable under Section 248 of the Act, is not available. Even otherwise the language of Section 248 of the Act, is wide enough to cover any order passed under Section 195 of the Act. The case Meteor Satellite Ltd. v. ITO ( 1980 (121) ITR 311 (Guj)) cited in support of the above contention by Mr. Manchanda is of no relevance 10. It was next contended by Mr. Manchanda that the AAC was wrong in holding that the quantum of income could be determined in an appeal under Section 248. It was also argued that the AAC was also wrong in allowing the expenses at 75 per cent of the remittance. It would be proper to reproduce Section 248 of the Act which reads as under "248. Appeal by person denying liability to deduct tax. - Any person having in accordance with the provisions of Section 195 and 200 deducted and paid tax in respect of any sum chargeable under this Act, other than interest, who denies his liability to make such deduction, may appeal to the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) to be declared not liable to make such deduction." * 11. It was argued by Mr. Manchanda that under Section 248 a person could deny his liability to make such deduction but there was no power to determine the quantum and to say as to what extent the said remittance will be taxed. We find no force in the above contention. Section 248 makes a mention of Sections 195 and 200 and it does not speak of the sub-clauses of Section 195 either (1) or (2). When once an appeal has been preferred to the ACC on the matter of liability of the company to deduct taxes, the AAC is well within his competence to pass an order on the quantum also. In our opinion the AAC was also competent to pass an order with regard to quantum when once he is seized of the matter. Under Section 248 a person having deducted and paid tax under Section 195 may appeal to the AAC denying his liability to make such deduction and for a declaration that he is not liable to make such deduction. It is thus difficult for us to accept the argument that total denial may enable an appeal to be filed but not a part denial with reference to part of the payment subjected to deduction of tax. The right of appeal given under Section 248 is clear and we cannot accept the view sought to be propounded by Mr. Manchanda that such a right is restricted and the AAC was not competent to fix the quantum or to revise the proportion of the amount chargeable under the provisions of the Act as determined by the Income Tax Officer. Section 251 of the Act provides with the powers of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals). Clause (c) sub-section (1) of Section 251 reads as under"251. (1) (c) - in any other case, he may pass such orders in the appeal as he thinks fit." 12.
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9. It was contended by Mr. Manchanda that the order passed by the Income Tax Officer under Section 195(2) of the Income Tax Act, 1961 (hereinafter referred to as the Act) was not appealable to AAC under Section 248 of the Act. His further contention was that the order passed by AAC was totally without jurisdiction and the only remedy available to the assessee was to file a writ petition to High Court under Article 226 of the Constitution of India.In our opinion this question does not arise before us nor such question was raised in the reference before the High Court. The Commissioner of Income Tax only sought to refer the following question for the opinion of the Highn our opinion the AAC was also competent to pass an order with regard to quantum when once he is seized of the matter. Under Section 248 a person having deducted and paid tax under Section 195 may appeal to the AAC denying his liability to make such deduction and for a declaration that he is not liable to make such deduction. It is thus difficult for us to accept the argument that total denial may enable an appeal to be filed but not a part denial with reference to part of the payment subjected to deduction of tax. The right of appeal given under Section 248 is clear and we cannot accept the view sought to be propounded by Mr. Manchanda that such a right is restricted and the AAC was not competent to fix the quantum or to revise the proportion of the amount chargeable under the provisions of the Act as determined by the Income Tax Officer. Section 251 of the Act provides with the powers of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals)
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Union of India Vs. Agya Ram | Settlement Officer was illegal and ineffective and that the respondent continued to hold the post of Settlement Officer. The Trial Court found that the respondent was a direct recruit to the post of Assistant Settlement Officer by selection, not a transferee from the Director of Land Records, Punjab, as contended on behalf of the Union of India, and there was no parent department to which the respondent could be sent back. It was held that the order of reversion was really an order terminating the services of the respondent which was void in the absence of a prior notice in accordance with the terms of appointment. The court also passed a decree for Rs. 2700 as terms of pay and allowances. 3. The Union of India preferred an appeal against the decision of the trial Court which was partly allowed. The Additional District Judge, Jullundur, who heard the appeal held that the order reverting the respondent to his parent department had been made in accordance with his terms of service, and was therefore valid, but as one of the terms, which we have quoted above, provided that the respondents services might be terminated only after giving him "notice for a period of not less than 15 days", and as no such notice was admittedly given, he was entitled to his pay for these 15 days. The Additional District Judge disposed of the appeal accordingly giving the respondent a decree for Rs. 312.50 p. The respondent preferred a second appeal to the High Court of Punjab and Haryana questioning the correctness of this decision and a learned single Judge of the High Court allowed the appeal, setting aside the judgment and decree of the first appellate Court and restored those of the trial Court. The learned Judge was of opinion that in the absence of anything in the conditions of service to suggest that pay in lieu of notice would satisfy the requirement of serving 15 days clear notice on the respondent before his services could be terminated, the order of reversion was illegal and void. It was observed that the view taken found support from two decisions of the Punjab and Haryana High Court; one of them was Mohan Singh Malhi v. State of Punjab [1968 SLR 881 (Punj and Har)]. A Division Bench of the High Court dismissed in limine the letters patent appeal preferred by the Union of India from the judgment of the single Judge but granted a certificate that the case was a fit one for appeal to the Supreme Court. This is how this appeal is before us. 4. It is clear even from the evidence of the respondent himself that he was one deputation in the Ministry of Rehabilitation, Government of India, though he sought to deny this fact. He admitted that he was a "permanent employee of the Punjab Government" in the "substantive rank of Superintendent" and that he had "lien in the Punjab State, Rehabilitation Department" even when he was working as Settlement Officer in the Central Rehabilitation Department. This shows that there was no basis for the view taken by the trial Court. Both the first appellate Court and the High Court thought that 15 days prior notice was necessary before the order of reversion was made though they differed on the consequences of non-service of the notice. The High Court relied on its earlier decision in the case of Mohan Singh Malhi v. State of Punjab, where the question was whether under Rule 5.32(c) of the Punjab Civil Service Rules, the Government could retire an employee on or after he attained the age of 55 years by giving him 3 months salary in lieu of 3 months notice. It appears that the decision relied on way by a single Judge who held that failure to give notice would not be cured by giving the employee his salary for the period. The question was ultimately referred to a Full Bench, and the Full Bench of the High Court took a contrary view. The case came up to this Court (Civil Appeal 1601 of 1970 decided on March 25, 1976 [Mohan Singh Malhi v. State of Punjab, (1976) 3 SCC 21 : 1976 SCC (L&S) 376]) and this Court agreeing with the Full Bench held that the validity of the order retiring the government servant was not affected if, instead of notice, a sum equivalent to the amount of his pay and allowances for the period of notice was paid to him. 5. Before us it was contended on behalf of the appellant. Union of India, (a) that the respondents conditions of service as Settlement Officer did not require that he would be given any prior notice before reverting him to his parent department, and (b) that, even assuming that the respondent was entitled to a prior notice of 15 days before his services were terminated, sending him back to the Directorate of Land Records where he held as substantive post did not amount to termination of his services as Settlement Officer. We do not think it necessary to consider the second question as to whether in the circumstance of the case reverting the respondent to the parent department amounted to termination of his services, because we have not been able to find any basis for the claim that prior notice of 15 days was required before the respondent could be reverted from his temporary post as Settlement Officer to the Directorate of Land Records. The terms of service on which the courts including the High Court proceeded were applicable to the respondent as Assistant Settlement Officer. No such term appears from the order appointing the respondent as Settlement Officer, nor there is anything on record to suggest that the terms and conditions which regulated the services of the respondent as Assistant Settlement Officer would continue to apply to him as Settlement Officer. 6. Reference to that term in this case, in our opinion, was misconceived. The appeal therefore must succeed. 7. | 1[ds]We do not think it necessary to consider the second question as to whether in the circumstance of the case reverting the respondent to the parent department amounted to termination of his services, because we have not been able to find any basis for the claim that prior notice of 15 days was required before the respondent could be reverted from his temporary post as Settlement Officer to the Directorate of Land Records. The terms of service on which the courts including the High Court proceeded were applicable to the respondent as Assistant Settlement Officer. No such term appears from the order appointing the respondent as Settlement Officer, nor there is anything on record to suggest that the terms and conditions which regulated the services of the respondent as Assistant Settlement Officer would continue to apply to him as Settlement Officer.Reference to that term in this case, in our opinion, was misconceived. The appeal therefore must succeedWe do not think it necessary to consider the second question as to whether in the circumstance of the case reverting the respondent to the parent department amounted to termination of his services, because we have not been able to find any basis for the claim that prior notice of 15 days was required before the respondent could be reverted from his temporary post as Settlement Officer to the Directorate of Land Records. The terms of service on which the courts including the High Court proceeded were applicable to the respondent as Assistant Settlement Officer. No such term appears from the order appointing the respondent as Settlement Officer, nor there is anything on record to suggest that the terms and conditions which regulated the services of the respondent as Assistant Settlement Officer would continue to apply to him as Settlement Officer. | 1 | 1,637 | 313 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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Settlement Officer was illegal and ineffective and that the respondent continued to hold the post of Settlement Officer. The Trial Court found that the respondent was a direct recruit to the post of Assistant Settlement Officer by selection, not a transferee from the Director of Land Records, Punjab, as contended on behalf of the Union of India, and there was no parent department to which the respondent could be sent back. It was held that the order of reversion was really an order terminating the services of the respondent which was void in the absence of a prior notice in accordance with the terms of appointment. The court also passed a decree for Rs. 2700 as terms of pay and allowances. 3. The Union of India preferred an appeal against the decision of the trial Court which was partly allowed. The Additional District Judge, Jullundur, who heard the appeal held that the order reverting the respondent to his parent department had been made in accordance with his terms of service, and was therefore valid, but as one of the terms, which we have quoted above, provided that the respondents services might be terminated only after giving him "notice for a period of not less than 15 days", and as no such notice was admittedly given, he was entitled to his pay for these 15 days. The Additional District Judge disposed of the appeal accordingly giving the respondent a decree for Rs. 312.50 p. The respondent preferred a second appeal to the High Court of Punjab and Haryana questioning the correctness of this decision and a learned single Judge of the High Court allowed the appeal, setting aside the judgment and decree of the first appellate Court and restored those of the trial Court. The learned Judge was of opinion that in the absence of anything in the conditions of service to suggest that pay in lieu of notice would satisfy the requirement of serving 15 days clear notice on the respondent before his services could be terminated, the order of reversion was illegal and void. It was observed that the view taken found support from two decisions of the Punjab and Haryana High Court; one of them was Mohan Singh Malhi v. State of Punjab [1968 SLR 881 (Punj and Har)]. A Division Bench of the High Court dismissed in limine the letters patent appeal preferred by the Union of India from the judgment of the single Judge but granted a certificate that the case was a fit one for appeal to the Supreme Court. This is how this appeal is before us. 4. It is clear even from the evidence of the respondent himself that he was one deputation in the Ministry of Rehabilitation, Government of India, though he sought to deny this fact. He admitted that he was a "permanent employee of the Punjab Government" in the "substantive rank of Superintendent" and that he had "lien in the Punjab State, Rehabilitation Department" even when he was working as Settlement Officer in the Central Rehabilitation Department. This shows that there was no basis for the view taken by the trial Court. Both the first appellate Court and the High Court thought that 15 days prior notice was necessary before the order of reversion was made though they differed on the consequences of non-service of the notice. The High Court relied on its earlier decision in the case of Mohan Singh Malhi v. State of Punjab, where the question was whether under Rule 5.32(c) of the Punjab Civil Service Rules, the Government could retire an employee on or after he attained the age of 55 years by giving him 3 months salary in lieu of 3 months notice. It appears that the decision relied on way by a single Judge who held that failure to give notice would not be cured by giving the employee his salary for the period. The question was ultimately referred to a Full Bench, and the Full Bench of the High Court took a contrary view. The case came up to this Court (Civil Appeal 1601 of 1970 decided on March 25, 1976 [Mohan Singh Malhi v. State of Punjab, (1976) 3 SCC 21 : 1976 SCC (L&S) 376]) and this Court agreeing with the Full Bench held that the validity of the order retiring the government servant was not affected if, instead of notice, a sum equivalent to the amount of his pay and allowances for the period of notice was paid to him. 5. Before us it was contended on behalf of the appellant. Union of India, (a) that the respondents conditions of service as Settlement Officer did not require that he would be given any prior notice before reverting him to his parent department, and (b) that, even assuming that the respondent was entitled to a prior notice of 15 days before his services were terminated, sending him back to the Directorate of Land Records where he held as substantive post did not amount to termination of his services as Settlement Officer. We do not think it necessary to consider the second question as to whether in the circumstance of the case reverting the respondent to the parent department amounted to termination of his services, because we have not been able to find any basis for the claim that prior notice of 15 days was required before the respondent could be reverted from his temporary post as Settlement Officer to the Directorate of Land Records. The terms of service on which the courts including the High Court proceeded were applicable to the respondent as Assistant Settlement Officer. No such term appears from the order appointing the respondent as Settlement Officer, nor there is anything on record to suggest that the terms and conditions which regulated the services of the respondent as Assistant Settlement Officer would continue to apply to him as Settlement Officer. 6. Reference to that term in this case, in our opinion, was misconceived. The appeal therefore must succeed. 7.
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1
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We do not think it necessary to consider the second question as to whether in the circumstance of the case reverting the respondent to the parent department amounted to termination of his services, because we have not been able to find any basis for the claim that prior notice of 15 days was required before the respondent could be reverted from his temporary post as Settlement Officer to the Directorate of Land Records. The terms of service on which the courts including the High Court proceeded were applicable to the respondent as Assistant Settlement Officer. No such term appears from the order appointing the respondent as Settlement Officer, nor there is anything on record to suggest that the terms and conditions which regulated the services of the respondent as Assistant Settlement Officer would continue to apply to him as Settlement Officer.Reference to that term in this case, in our opinion, was misconceived. The appeal therefore must succeedWe do not think it necessary to consider the second question as to whether in the circumstance of the case reverting the respondent to the parent department amounted to termination of his services, because we have not been able to find any basis for the claim that prior notice of 15 days was required before the respondent could be reverted from his temporary post as Settlement Officer to the Directorate of Land Records. The terms of service on which the courts including the High Court proceeded were applicable to the respondent as Assistant Settlement Officer. No such term appears from the order appointing the respondent as Settlement Officer, nor there is anything on record to suggest that the terms and conditions which regulated the services of the respondent as Assistant Settlement Officer would continue to apply to him as Settlement Officer.
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Md. Sharfuddin Vs. R. P. Singh And Others | him; after such vesting, the custodian manages the said property; if a Custodian wrongly or illegally declares a property to be evacuee property, the person aggrieved by his order can prefer an appeal to the appropriate authority prescribed under S. 24; the Custodian or the Custodian-General, as the case may be, in appropriate cases, can also, in exercise of his revisional jurisdiction, set aside that order; if a Custodian illegally or improperly releases a property on the ground that it is not evacuee property, it is liable to be revised by the Custodian or the Custodian-General, as the case may be, under S. 26 or S. 27 of the Act.6. Learned counsel for the respondents contends that the words "any person aggrieved" in S. 25 of the Act are comprehensive enough to include a Custodian and therefore, a Custodian can prefer an appeal against an order of a Custodian releasing properties under S. 7 of the Act. Realizing that an obvious anomaly is implicit in the argument, learned counsel concedes that an appeal can be filed only by a Custodian other than the Custodian who made the order releasing the properties. It is said that the Central Government may, under S. 6 of the Act, provide for the distribution of work among the various Custodians, namely, Additional, Deputy and Assistant Custodians, and in such allocation the power to inquire whether a property is an evacuee property or not may be conferred on one Custodian and the power to manage it on another, and that, in that event, the Custodian on whom the power to manage is conferred will be a person aggrieved within the meaning of s. 24 of the Act. In our view this argument is not consistent with the scheme of the Act. Though for the purpose of convenience of management or judicial determination of disputes the Act provides different categories of Custodians, all of them fall within the definition of "Custodian" in the Act. The Act further provides a hierarchy of tribunals under the superintendence and control of the Custodian-General. It would be anomalous were it to be held that a Custodian could prefer an appeal against the order of a Custodian. The Act does not contemplate one officer preferring appeals against the orders of another officer. If an Assistant Custodian or a Custodian went wrong in the matter of declaring a property to be an evacuee property the Act provides that the Custodian or the Custodian-General, as the case may be before 1956, and the Custodian-General thereafter, may set right the wrong. In the premises the words "any person aggrieved" in S. 24 of the Act can only mean a person whose properties have been declared to be evacuee properties by the Custodian, or a person who moved the Custodian to get the properties so declared or any other such aggrieved person. The words "any person aggrieved" in the context of the Act cannot include any Custodian as defined in the Act.7. Strong reliance is placed upon the decision of this Court in Ebrahim Aboobaker v. Custodian-General of Evacuee Property, (1952) SCR 696 : (AIR 1952 SC 319 ) in support of the contention of the respondents. In that case, on information supplied by one Tek Chand Dolwani to the Additional Custodian of Evacuee Property, the latter started proceedings under the Bombay Evacuees (Administration of Property) Act, 1949, against one Aboobaker. The Additional Custodian, after recording the statement of Aboobaker and examining the evidence produced by Tek Chand Dolwani, held that the said Aboobaker was not an evacuee. Tek Chand Dolwani filed an appeal against the said order to the Custodian-General of India. One of questions raised was whether the said Tek Chand Dolwani was a person aggrieved by the order of the Additional custodian within the meaning of S. 24 of the Central Ordinance XXVII of 1949 and was entitled to appeal against the said order. This Court held that the said person was a person aggrieved within the meaning of the said section. It was provided in R. 5(5) of the rules made under the Ordinance that any person or persons claiming to be interested in the inquiry or in the property being declared as evacuee property, might file a written statement in reply to the written statement filed by the persons interested in the property claiming that the property should not be declared as an evacuee property; and that the Custodian should proceed to hear the evidence, if any, which the party appearing to show cause might produce and also the evidence which the party claiming to be interested as mentioned above might adduce. The rule, therefore, authorized the Additional Custodian to adjudicate between the person moving the Custodian to declare a property as evacuee property and the person denying that fact. In that context, this Court held that the person moving the Custodian was a person aggrieved within the meaning of S. 24. This decision or the decisions relied upon by this Court in the aforesaid case in coming to the said conclusion are not relevant to the present enquiry. Where a statute or rules framed thereunder provide for a dispute between two parties to be decided by a tribunal, it is implicit in that provision that the defeated party is one aggrieved by that decision. But the same cannot be said of a Custodian and the party in whose favour he gave a decision; nor can another subordinate officer of the Custodian, who made the decision and who has no statutory duty to appear before the Custodian to put forward the case of the department or lead evidence in support thereof, be equated to a party in a lis. We, therefore, hold, having regard to the scheme of the Act, that the Assistant custodian Headquarters, Patna, is not a person aggrieved within the meaning of S. 24 of the Act. The appeal to the Custodian, therefore, was not competent.8. In this view, the second question does not fall to be considered. | 1[ds]Though learned counsel for the appellant raised all the four contentions before us, he seriously pressed only the first twoour view this argument is not consistent with the scheme of the Act. Though for the purpose of convenience of management or judicial determination of disputes the Act provides different categories of Custodians, all of them fall within the definition of "Custodian" in the Act. The Act further provides a hierarchy of tribunals under the superintendence and control of the Custodian-General. It would be anomalous were it to be held that a Custodian could prefer an appeal against the order of a Custodian. The Act does not contemplate one officer preferring appeals against the orders of another officer. If an Assistant Custodian or a Custodian went wrong in the matter of declaring a property to be an evacuee property the Act provides that the Custodian or the Custodian-General, as the case may be before 1956, and the Custodian-General thereafter, may set right the wrong. In the premises the words "any person aggrieved" in S. 24 of the Act can only mean a person whose properties have been declared to be evacuee properties by the Custodian, or a person who moved the Custodian to get the properties so declared or any other such aggrieved person. The words "any person aggrieved" in the context of the Act cannot include any Custodian as defined in thethat case, on information supplied by one Tek Chand Dolwani to the Additional Custodian of Evacuee Property, the latter started proceedings under the Bombay Evacuees (Administration of Property) Act, 1949, against one Aboobaker. The Additional Custodian, after recording the statement of Aboobaker and examining the evidence produced by Tek Chand Dolwani, held that the said Aboobaker was not an evacuee. Tek Chand Dolwani filed an appeal against the said order to the Custodian-General of India. One of questions raised was whether the said Tek Chand Dolwani was a person aggrieved by the order of the Additional custodian within the meaning of S. 24 of the Central Ordinance XXVII of 1949 and was entitled to appeal against the said order. This Court held that the said person was a person aggrieved within the meaning of the said section. It was provided in R. 5(5) of the rules made under the Ordinance that any person or persons claiming to be interested in the inquiry or in the property being declared as evacuee property, might file a written statement in reply to the written statement filed by the persons interested in the property claiming that the property should not be declared as an evacuee property; and that the Custodian should proceed to hear the evidence, if any, which the party appearing to show cause might produce and also the evidence which the party claiming to be interested as mentioned above might adduce. The rule, therefore, authorized the Additional Custodian to adjudicate between the person moving the Custodian to declare a property as evacuee property and the person denying that fact. In that context, this Court held that the person moving the Custodian was a person aggrieved within the meaning of S. 24. This decision or the decisions relied upon by this Court in the aforesaid case in coming to the said conclusion are not relevant to the present enquiry. Where a statute or rules framed thereunder provide for a dispute between two parties to be decided by a tribunal, it is implicit in that provision that the defeated party is one aggrieved by that decision. But the same cannot be said of a Custodian and the party in whose favour he gave a decision; nor can another subordinate officer of the Custodian, who made the decision and who has no statutory duty to appear before the Custodian to put forward the case of the department or lead evidence in support thereof, be equated to a party in a lis. We, therefore, hold, having regard to the scheme of the Act, that the Assistant custodian Headquarters, Patna, is not a person aggrieved within the meaning of S. 24 of the Act. The appeal to the Custodian, therefore, was not competent.8. In this view, the second question does not fall to be considered. | 1 | 2,342 | 769 | ### Instruction:
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him; after such vesting, the custodian manages the said property; if a Custodian wrongly or illegally declares a property to be evacuee property, the person aggrieved by his order can prefer an appeal to the appropriate authority prescribed under S. 24; the Custodian or the Custodian-General, as the case may be, in appropriate cases, can also, in exercise of his revisional jurisdiction, set aside that order; if a Custodian illegally or improperly releases a property on the ground that it is not evacuee property, it is liable to be revised by the Custodian or the Custodian-General, as the case may be, under S. 26 or S. 27 of the Act.6. Learned counsel for the respondents contends that the words "any person aggrieved" in S. 25 of the Act are comprehensive enough to include a Custodian and therefore, a Custodian can prefer an appeal against an order of a Custodian releasing properties under S. 7 of the Act. Realizing that an obvious anomaly is implicit in the argument, learned counsel concedes that an appeal can be filed only by a Custodian other than the Custodian who made the order releasing the properties. It is said that the Central Government may, under S. 6 of the Act, provide for the distribution of work among the various Custodians, namely, Additional, Deputy and Assistant Custodians, and in such allocation the power to inquire whether a property is an evacuee property or not may be conferred on one Custodian and the power to manage it on another, and that, in that event, the Custodian on whom the power to manage is conferred will be a person aggrieved within the meaning of s. 24 of the Act. In our view this argument is not consistent with the scheme of the Act. Though for the purpose of convenience of management or judicial determination of disputes the Act provides different categories of Custodians, all of them fall within the definition of "Custodian" in the Act. The Act further provides a hierarchy of tribunals under the superintendence and control of the Custodian-General. It would be anomalous were it to be held that a Custodian could prefer an appeal against the order of a Custodian. The Act does not contemplate one officer preferring appeals against the orders of another officer. If an Assistant Custodian or a Custodian went wrong in the matter of declaring a property to be an evacuee property the Act provides that the Custodian or the Custodian-General, as the case may be before 1956, and the Custodian-General thereafter, may set right the wrong. In the premises the words "any person aggrieved" in S. 24 of the Act can only mean a person whose properties have been declared to be evacuee properties by the Custodian, or a person who moved the Custodian to get the properties so declared or any other such aggrieved person. The words "any person aggrieved" in the context of the Act cannot include any Custodian as defined in the Act.7. Strong reliance is placed upon the decision of this Court in Ebrahim Aboobaker v. Custodian-General of Evacuee Property, (1952) SCR 696 : (AIR 1952 SC 319 ) in support of the contention of the respondents. In that case, on information supplied by one Tek Chand Dolwani to the Additional Custodian of Evacuee Property, the latter started proceedings under the Bombay Evacuees (Administration of Property) Act, 1949, against one Aboobaker. The Additional Custodian, after recording the statement of Aboobaker and examining the evidence produced by Tek Chand Dolwani, held that the said Aboobaker was not an evacuee. Tek Chand Dolwani filed an appeal against the said order to the Custodian-General of India. One of questions raised was whether the said Tek Chand Dolwani was a person aggrieved by the order of the Additional custodian within the meaning of S. 24 of the Central Ordinance XXVII of 1949 and was entitled to appeal against the said order. This Court held that the said person was a person aggrieved within the meaning of the said section. It was provided in R. 5(5) of the rules made under the Ordinance that any person or persons claiming to be interested in the inquiry or in the property being declared as evacuee property, might file a written statement in reply to the written statement filed by the persons interested in the property claiming that the property should not be declared as an evacuee property; and that the Custodian should proceed to hear the evidence, if any, which the party appearing to show cause might produce and also the evidence which the party claiming to be interested as mentioned above might adduce. The rule, therefore, authorized the Additional Custodian to adjudicate between the person moving the Custodian to declare a property as evacuee property and the person denying that fact. In that context, this Court held that the person moving the Custodian was a person aggrieved within the meaning of S. 24. This decision or the decisions relied upon by this Court in the aforesaid case in coming to the said conclusion are not relevant to the present enquiry. Where a statute or rules framed thereunder provide for a dispute between two parties to be decided by a tribunal, it is implicit in that provision that the defeated party is one aggrieved by that decision. But the same cannot be said of a Custodian and the party in whose favour he gave a decision; nor can another subordinate officer of the Custodian, who made the decision and who has no statutory duty to appear before the Custodian to put forward the case of the department or lead evidence in support thereof, be equated to a party in a lis. We, therefore, hold, having regard to the scheme of the Act, that the Assistant custodian Headquarters, Patna, is not a person aggrieved within the meaning of S. 24 of the Act. The appeal to the Custodian, therefore, was not competent.8. In this view, the second question does not fall to be considered.
### Response:
1
### Explanation:
Though learned counsel for the appellant raised all the four contentions before us, he seriously pressed only the first twoour view this argument is not consistent with the scheme of the Act. Though for the purpose of convenience of management or judicial determination of disputes the Act provides different categories of Custodians, all of them fall within the definition of "Custodian" in the Act. The Act further provides a hierarchy of tribunals under the superintendence and control of the Custodian-General. It would be anomalous were it to be held that a Custodian could prefer an appeal against the order of a Custodian. The Act does not contemplate one officer preferring appeals against the orders of another officer. If an Assistant Custodian or a Custodian went wrong in the matter of declaring a property to be an evacuee property the Act provides that the Custodian or the Custodian-General, as the case may be before 1956, and the Custodian-General thereafter, may set right the wrong. In the premises the words "any person aggrieved" in S. 24 of the Act can only mean a person whose properties have been declared to be evacuee properties by the Custodian, or a person who moved the Custodian to get the properties so declared or any other such aggrieved person. The words "any person aggrieved" in the context of the Act cannot include any Custodian as defined in thethat case, on information supplied by one Tek Chand Dolwani to the Additional Custodian of Evacuee Property, the latter started proceedings under the Bombay Evacuees (Administration of Property) Act, 1949, against one Aboobaker. The Additional Custodian, after recording the statement of Aboobaker and examining the evidence produced by Tek Chand Dolwani, held that the said Aboobaker was not an evacuee. Tek Chand Dolwani filed an appeal against the said order to the Custodian-General of India. One of questions raised was whether the said Tek Chand Dolwani was a person aggrieved by the order of the Additional custodian within the meaning of S. 24 of the Central Ordinance XXVII of 1949 and was entitled to appeal against the said order. This Court held that the said person was a person aggrieved within the meaning of the said section. It was provided in R. 5(5) of the rules made under the Ordinance that any person or persons claiming to be interested in the inquiry or in the property being declared as evacuee property, might file a written statement in reply to the written statement filed by the persons interested in the property claiming that the property should not be declared as an evacuee property; and that the Custodian should proceed to hear the evidence, if any, which the party appearing to show cause might produce and also the evidence which the party claiming to be interested as mentioned above might adduce. The rule, therefore, authorized the Additional Custodian to adjudicate between the person moving the Custodian to declare a property as evacuee property and the person denying that fact. In that context, this Court held that the person moving the Custodian was a person aggrieved within the meaning of S. 24. This decision or the decisions relied upon by this Court in the aforesaid case in coming to the said conclusion are not relevant to the present enquiry. Where a statute or rules framed thereunder provide for a dispute between two parties to be decided by a tribunal, it is implicit in that provision that the defeated party is one aggrieved by that decision. But the same cannot be said of a Custodian and the party in whose favour he gave a decision; nor can another subordinate officer of the Custodian, who made the decision and who has no statutory duty to appear before the Custodian to put forward the case of the department or lead evidence in support thereof, be equated to a party in a lis. We, therefore, hold, having regard to the scheme of the Act, that the Assistant custodian Headquarters, Patna, is not a person aggrieved within the meaning of S. 24 of the Act. The appeal to the Custodian, therefore, was not competent.8. In this view, the second question does not fall to be considered.
|
Electronics Corporation of India Ltd Vs. Union of India & Others | Company Operated Outlets. The assessee cleared the goods for sale at such outlets by determining the value of the goods cleared during the period February, 2000 to November, 2001 on the basis of the price at which such goods were sold from their warehouses to independent dealers, instead of determining it on the basis of the normal price and normal transaction value as per Section 4(4)(b)(iii) of Central Excise Act, 1944 ("1944 Act" for short) read with Rule 7 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. In short, the price adopted by the assessee which is a PSU in terms of Administered Pricing Mechanism ("APM") formulated by Government of India stood rejected. The Tribunal came to the conclusion that the APM adopted by the assessee was in terms of the price fixed by the Ministry of Petroleum and Natural Gas; that it was not possible for the assessee to adopt the price in terms of Section 4(1)(a) of the 1944 Act; and that it was not possible to arrive at the transaction value in terms of the said section. Accordingly, the Tribunal allowed the appeal of the assessee. Aggrieved by the decision of the Tribunal, CCE has come to this Court by way of Civil Appeal No. 1903 of 2008 in which the assessee has preferred I.A. No. 4 of 2009 requesting the Court to dismiss the above Civil Appeal No. 1903 of 2008 filed by the Department on the ground that CoD has declined permission to the Department to pursue the said appeal. 5. The above two instances are given only to highlight the fact that the mechanism set up by this Court in its Orders reported in (i) 1995 Suppl.(4) SCC 541 (ONGC v. CCE) dated 11.10.1991; (ii) 2004 (6) SCC 437 (ONGC v. CCE) dated 7.1.1994; and (iii) 2007 (7) SCC 39 (ONGC v. City & Industrial Development Corpn.) dated 20.7.2007 needs to be revisited. 6. Learned Attorney General has submitted that the above Orders have outlived their utility and in view of the changed scenario, as indicated hereinafter, the aforestated Orders are required to be recalled. We find merit in the submission made by the Attorney General of India on behalf of the Union of India for the following reasons. By Order dated 11.9.1991, reported in 1992 Supp (2) SCC 432 (ONGC and Anr. v. CCE), this Court noted that "Public Sector Undertakings of Central Government and the Union of India should not fight their litigations in Court". Consequently, the Cabinet Secretary, Government of India was "called upon to handle the matter personally". 7. This was followed by the order dated 11.10.1991 in ONGC-II case (supra) where this Court directed the Government of India "to set up a Committee consisting of representatives from the Ministry of Industry, Bureau of Public Enterprises and Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings between themselves, to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation". 8. Thereafter, in ONGC-III case (supra), this Court directed that in the absence of clearance from the "Committee of Secretaries" (CoS), any legal proceeding will not be proceeded with. This was subject to the rider that appeals and petitions filed without such clearance could be filed to save limitation. It was, however, directed that the needful should be done within one month from such filing, failing which the matter would not be proceeded with. By another order dated 20.7.2007 (ONGC-IVth case) this Court extended the concept of Dispute Resolution by High-Powered Committee to amicably resolve the disputes involving the State Governments and their Instrumentalities. 9. The idea behind setting up of this Committee, initially, called a "High-Powered Committee" (HPC), later on called as "Committee of Secretaries" (CoS) and finally termed as "Committee on Disputes" (CoD) was to ensure that resources of the State are not frittered away in inter se litigations between entities of the State, which could be best resolved, by an empowered CoD. The machinery contemplated was only to ensure that no litigation comes to Court without the parties having had an opportunity of conciliation before an in-house committee. [see : para 3 of the order dated 7.1.1994 (supra)] Whilst the principle and the object behind the aforestated Orders is unexceptionable and laudatory, experience has shown that despite best efforts of the CoD, the mechanism has not achieved the results for which it was constituted and has in fact led to delays in litigation. We have already given two examples hereinabove. They indicate that on same set of facts, clearance is given in one case and refused in the other. This has led a PSU to institute a SLP in this Court on the ground of discrimination. We need not multiply such illustrations. The mechanism was set up with a laudatory object. However, the mechanism has led to delay in filing of civil appeals causing loss of revenue. For example, in many cases of exemptions, the Industry Department gives exemption, while the same is denied by the Revenue Department. Similarly, with the enactment of regulatory laws in several cases there could be overlapping of jurisdictions between, let us say, SEBI and insurance regulators. Civil appeals lie to this Court. Stakes in such cases are huge. One cannot possibly expect timely clearance by CoD. In such cases, grant of clearance to one and not to the other may result in generation of more and more litigation. The mechanism has outlived its utility. In the changed scenario indicated above, we are of the view that time has come under the above circumstances to recall the directions of this Court in its various Orders reported as (i) 1995 Supp (4) SCC 541 dated 11.10.1991, (ii) (2004) 6 SCC 437 dated 7.1.1994 and (iii) (2007) 7 SCC 39 dated 20.7.2007. 10. In the circumstances, | 0[ds]9. The idea behind setting up of this Committee, initially, called a "High-Powered Committee" (HPC), later on called as "Committee of Secretaries" (CoS) and finally termed as "Committee on Disputes" (CoD) was to ensure that resources of the State are not frittered away in inter se litigations between entities of the State, which could be best resolved, by an empowered CoD. The machinery contemplated was only to ensure that no litigation comes to Court without the parties having had an opportunity of conciliation before an in-house committee. [see : para 3 of the order dated 7.1.1994 (supra)] Whilst the principle and the object behind the aforestated Orders is unexceptionable and laudatory, experience has shown that despite best efforts of the CoD, the mechanism has not achieved the results for which it was constituted and has in fact led to delays in litigation. We have already given two examples hereinabove. They indicate that on same set of facts, clearance is given in one case and refused in the other. This has led a PSU to institute a SLP in this Court on the ground of discrimination. We need not multiply such illustrations. The mechanism was set up with a laudatory object. However, the mechanism has led to delay in filing of civil appeals causing loss of revenue. For example, in many cases of exemptions, the Industry Department gives exemption, while the same is denied by the Revenue Department. Similarly, with the enactment of regulatory laws in several cases there could be overlapping of jurisdictions between, let us say, SEBI and insurance regulators. Civil appeals lie to this Court. Stakes in such cases are huge. One cannot possibly expect timely clearance by CoD. In such cases, grant of clearance to one and not to the other may result in generation of more and more litigation. The mechanism has outlived its utility. In the changed scenario indicated above, we are of the view that time has come under the above circumstances to recall the directions of this Court in its various Orders reported as (i) 1995 Supp (4) SCC 541 dated 11.10.1991, (ii) (2004) 6 SCC 437 dated(iii) (2007) 7 SCC 39 dated 20.7.2007. | 0 | 1,662 | 431 | ### 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:
Company Operated Outlets. The assessee cleared the goods for sale at such outlets by determining the value of the goods cleared during the period February, 2000 to November, 2001 on the basis of the price at which such goods were sold from their warehouses to independent dealers, instead of determining it on the basis of the normal price and normal transaction value as per Section 4(4)(b)(iii) of Central Excise Act, 1944 ("1944 Act" for short) read with Rule 7 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. In short, the price adopted by the assessee which is a PSU in terms of Administered Pricing Mechanism ("APM") formulated by Government of India stood rejected. The Tribunal came to the conclusion that the APM adopted by the assessee was in terms of the price fixed by the Ministry of Petroleum and Natural Gas; that it was not possible for the assessee to adopt the price in terms of Section 4(1)(a) of the 1944 Act; and that it was not possible to arrive at the transaction value in terms of the said section. Accordingly, the Tribunal allowed the appeal of the assessee. Aggrieved by the decision of the Tribunal, CCE has come to this Court by way of Civil Appeal No. 1903 of 2008 in which the assessee has preferred I.A. No. 4 of 2009 requesting the Court to dismiss the above Civil Appeal No. 1903 of 2008 filed by the Department on the ground that CoD has declined permission to the Department to pursue the said appeal. 5. The above two instances are given only to highlight the fact that the mechanism set up by this Court in its Orders reported in (i) 1995 Suppl.(4) SCC 541 (ONGC v. CCE) dated 11.10.1991; (ii) 2004 (6) SCC 437 (ONGC v. CCE) dated 7.1.1994; and (iii) 2007 (7) SCC 39 (ONGC v. City & Industrial Development Corpn.) dated 20.7.2007 needs to be revisited. 6. Learned Attorney General has submitted that the above Orders have outlived their utility and in view of the changed scenario, as indicated hereinafter, the aforestated Orders are required to be recalled. We find merit in the submission made by the Attorney General of India on behalf of the Union of India for the following reasons. By Order dated 11.9.1991, reported in 1992 Supp (2) SCC 432 (ONGC and Anr. v. CCE), this Court noted that "Public Sector Undertakings of Central Government and the Union of India should not fight their litigations in Court". Consequently, the Cabinet Secretary, Government of India was "called upon to handle the matter personally". 7. This was followed by the order dated 11.10.1991 in ONGC-II case (supra) where this Court directed the Government of India "to set up a Committee consisting of representatives from the Ministry of Industry, Bureau of Public Enterprises and Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings between themselves, to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the Committee and its clearance for litigation". 8. Thereafter, in ONGC-III case (supra), this Court directed that in the absence of clearance from the "Committee of Secretaries" (CoS), any legal proceeding will not be proceeded with. This was subject to the rider that appeals and petitions filed without such clearance could be filed to save limitation. It was, however, directed that the needful should be done within one month from such filing, failing which the matter would not be proceeded with. By another order dated 20.7.2007 (ONGC-IVth case) this Court extended the concept of Dispute Resolution by High-Powered Committee to amicably resolve the disputes involving the State Governments and their Instrumentalities. 9. The idea behind setting up of this Committee, initially, called a "High-Powered Committee" (HPC), later on called as "Committee of Secretaries" (CoS) and finally termed as "Committee on Disputes" (CoD) was to ensure that resources of the State are not frittered away in inter se litigations between entities of the State, which could be best resolved, by an empowered CoD. The machinery contemplated was only to ensure that no litigation comes to Court without the parties having had an opportunity of conciliation before an in-house committee. [see : para 3 of the order dated 7.1.1994 (supra)] Whilst the principle and the object behind the aforestated Orders is unexceptionable and laudatory, experience has shown that despite best efforts of the CoD, the mechanism has not achieved the results for which it was constituted and has in fact led to delays in litigation. We have already given two examples hereinabove. They indicate that on same set of facts, clearance is given in one case and refused in the other. This has led a PSU to institute a SLP in this Court on the ground of discrimination. We need not multiply such illustrations. The mechanism was set up with a laudatory object. However, the mechanism has led to delay in filing of civil appeals causing loss of revenue. For example, in many cases of exemptions, the Industry Department gives exemption, while the same is denied by the Revenue Department. Similarly, with the enactment of regulatory laws in several cases there could be overlapping of jurisdictions between, let us say, SEBI and insurance regulators. Civil appeals lie to this Court. Stakes in such cases are huge. One cannot possibly expect timely clearance by CoD. In such cases, grant of clearance to one and not to the other may result in generation of more and more litigation. The mechanism has outlived its utility. In the changed scenario indicated above, we are of the view that time has come under the above circumstances to recall the directions of this Court in its various Orders reported as (i) 1995 Supp (4) SCC 541 dated 11.10.1991, (ii) (2004) 6 SCC 437 dated 7.1.1994 and (iii) (2007) 7 SCC 39 dated 20.7.2007. 10. In the circumstances,
### Response:
0
### Explanation:
9. The idea behind setting up of this Committee, initially, called a "High-Powered Committee" (HPC), later on called as "Committee of Secretaries" (CoS) and finally termed as "Committee on Disputes" (CoD) was to ensure that resources of the State are not frittered away in inter se litigations between entities of the State, which could be best resolved, by an empowered CoD. The machinery contemplated was only to ensure that no litigation comes to Court without the parties having had an opportunity of conciliation before an in-house committee. [see : para 3 of the order dated 7.1.1994 (supra)] Whilst the principle and the object behind the aforestated Orders is unexceptionable and laudatory, experience has shown that despite best efforts of the CoD, the mechanism has not achieved the results for which it was constituted and has in fact led to delays in litigation. We have already given two examples hereinabove. They indicate that on same set of facts, clearance is given in one case and refused in the other. This has led a PSU to institute a SLP in this Court on the ground of discrimination. We need not multiply such illustrations. The mechanism was set up with a laudatory object. However, the mechanism has led to delay in filing of civil appeals causing loss of revenue. For example, in many cases of exemptions, the Industry Department gives exemption, while the same is denied by the Revenue Department. Similarly, with the enactment of regulatory laws in several cases there could be overlapping of jurisdictions between, let us say, SEBI and insurance regulators. Civil appeals lie to this Court. Stakes in such cases are huge. One cannot possibly expect timely clearance by CoD. In such cases, grant of clearance to one and not to the other may result in generation of more and more litigation. The mechanism has outlived its utility. In the changed scenario indicated above, we are of the view that time has come under the above circumstances to recall the directions of this Court in its various Orders reported as (i) 1995 Supp (4) SCC 541 dated 11.10.1991, (ii) (2004) 6 SCC 437 dated(iii) (2007) 7 SCC 39 dated 20.7.2007.
|
ANIL KUMAR Vs. BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD. | Abhay Manohar Sapre, J. 1. This appeal is filed by the claimant against the final judgment and order dated 19.03.2015 passed by the High Court of Karnataka Bench at Dharwad in Misc. First Appeal No. 24385 of 2011(MV) whereby the High Court dismissed the appeal filed by the claimant (appellant herein) and affirmed the judgment and award dated 12.04.2011 passed by the Member, MACTII, Bellary in M.V.C. No.711 of 2010. 2. Few relevant facts need to be mentioned hereinbelow to appreciate the question involved in the appeal. 3. The appellant was working as a cleaner in a lorry bearing Regn. No.AP21/ V4682 belonging to respondent No.2 herein. At the relevant time, it was insured with respondent No.1. On 05.12.2004, at about 1.00 p.m. near VGM Factory, Belgal Road, Bellary, when the appellant was standing in front of the abovementioned lorry for the purpose of loading iron ore, the driver of the lorry moved the vehicle without giving any signal or horn and dashed it against him. As a result of which, the appellant sustained facture of both pelvic bones with rapture of urethra and abdomen injuries and other grievous injuries all over his body. The appellant was then taken to VIMS Hospital, Bellary for the medical treatment. The appellant claimed to have spent a substantial sum towards his medical treatment. Due to the aforementioned injuries sustained by the appellant, he has become permanently disabled to do the work which he was doing before the accident. At the time of accident, the appellant was 25 years of age and earning Rs.4000/per month. 4. The appellant filed a claim petition bearing M.V.C. No.711 of 2010 before the MACTII at Bellary under Section 173 of the Motor Vehicles Act, 1988 and claimed compensation from the respondents. It was contested by the respondents. By award dated 12.04.2011, the Tribunal partly allowed the appellants claim petition. It was held that the monthly income of the appellant claimant was Rs.4000/, that the accident occurred due to sole negligence of the driver of offending vehicle, that the appellant sustained partial but permanent disability in the whole body to the extent of 25% and that the age of the appellant was 25 years on the date of accident. The Tribunal then applied the multiplier of 18 and accordingly awarded a sum of Rs.2,16,000/towards loss of future income, Rs.75,000/towards pain and sufferings, Rs.25,000/towards medical expenses, Rs.15,000/towards future medical expenses and Rs.12,000/towards loss of income during laid up period. So far as the liability was concerned, the Tribunal held that the policy was a package policy equivalent to comprehensive policy, which covers the risk of cleaner also. 5. The Tribunal accordingly awarded a total compensation of Rs.3,43,000/with interest payable at the rate of 8% p.a. from the date of claim petition till payment against the respondents jointly and severally. 6. Being aggrieved by the award passed by the Tribunal, the appellantClaimant filed M.F.A. No.24385 of 2011(MV) for enhancement of the compensation before the High Court. The Insurance Company (respondent No.1 herein) also felt aggrieved and filed M.F.A. No.23729 of 2011 (MV) before the High Court for setting aside the award passed by the Tribunal. 7. The High Court, by order dated 19.03.2015, dismissed both the appeals. 8. Aggrieved by the impugned order, the appellant claimant has filed this appeal by way of special leave in this Court. So far as the Insurance Company respondent No.1 herein is concerned, they have not filed any appeal against the impugned order. 9. The short question, which arises for consideration in this appeal, is whether any case is made out on facts/evidence for further enhancement of the compensation awarded by the Tribunal to the appellant (claimant). 10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and accordingly enhance the compensation awarded by the Tribunal to the extent indicated infra. 11. In our considered opinion, the High Court erred in dismissing the claimants appeal and thus committed an error in not further enhancing the compensation. In other words, the appellant was able to make out a case for further enhancement in the quantum of compensation awarded by the Tribunal and, therefore, he is entitled for enhancement in the award of compensation on the grounds mentioned below. 12. First, the appellant (claimant) was a young unmarried boy of 25 years at the time of accident and did not suffer with any kind of ailment; Second, the appellant had sustained fracture of both pelvic bones with rapture of urethra and abdomen injuries for which he underwent four operations and suffered partial but permanent disability in his body which reduced his movement capacity to a larger extent; Third, the appellant due to partial but permanent disability also lost his job; Fourth, he spent a substantial sum for his medical treatment; and lastly, since the appellant is not still able to move freely due to disabilities suffered by him, he is entitled to be suitably compensated by awarding him monetary compensation. 13. Learned counsel for the respondent (Insurance Company) urged that no case for any further enhancement in the compensation is made out and that the High Court was, therefore, justified in upholding the award of the Tribunal. 14. We do not agree with the submission urged by the learned counsel for respondent No.1Insurance Company for the abovementioned reasons given by us. 15. I | 1[ds]11. In our considered opinion, the High Court erred in dismissing the claimants appeal and thus committed an error in not further enhancing the compensation. In other words, the appellant was able to make out a case for further enhancement in the quantum of compensation awarded by the Tribunal and, therefore, he is entitled for enhancement in the award of compensation on the grounds mentioned below.First, the appellant (claimant) was a young unmarried boy of 25 years at the time of accident and did not suffer with any kind of ailment; Second, the appellant had sustained fracture of both pelvic bones with rapture of urethra and abdomen injuries for which he underwent four operations and suffered partial but permanent disability in his body which reduced his movement capacity to a larger extent; Third, the appellant due to partial but permanent disability also lost his job; Fourth, he spent a substantial sum for his medical treatment; and lastly, since the appellant is not still able to move freely due to disabilities suffered by him, he is entitled to be suitably compensated by awarding him monetary compensation.Learned counsel for the respondent (Insurance Company) urged that no case for any further enhancement in the compensation is made out and that the High Court was, therefore, justified in upholding the award of the Tribunal.We do not agree with the submission urged by the learned counsel for respondent No.1Insurance Company for the abovementioned reasons given by us.In our considered opinion, the High Court erred in dismissing the claimants appeal and thus committed an error in not further enhancing the compensation. In other words, the appellant was able to make out a case for further enhancement in the quantum of compensation awarded by the Tribunal and, therefore, he is entitled for enhancement in the award of compensation on the grounds mentioned below., the appellant (claimant) was a young unmarried boy of 25 years at the time of accident and did not suffer with any kind of ailment; Second, the appellant had sustained fracture of both pelvic bones with rapture of urethra and abdomen injuries for which he underwent four operations and suffered partial but permanent disability in his body which reduced his movement capacity to a larger extent; Third, the appellant due to partial but permanent disability also lost his job; Fourth, he spent a substantial sum for his medical treatment; and lastly, since the appellant is not still able to move freely due to disabilities suffered by him, he is entitled to be suitably compensated by awarding him monetary compensation.e do not agree with the submission urged by the learned counsel for respondent No.1Insurance Company for the abovementioned reasons given by us.In the light of the foregoing discussion and the grounds mentioned above, which found acceptance to the Tribunal, we are of the considered opinion that the appellant is entitled for a further sum of Rs.5,00,000/in lump sum in addition to what has been awarded by the Tribunal, i.e., Rs.3,43,000/.In other words, the appellant (claimant) is now entitled to claim a total sum of Rs.8,43,000/from the respondents jointly and severally by way of compensation for the injuries sustained, partial and permanent disability occurred, medical expenses incurred and loss occasioned due to injuries sustained by him in the accident.We, however, do not award interest on the enhanced sum of Rs.5,00,000/, which we have awarded to the appellant. In this view of the matter, the appellant is entitled to claim interest only on the sum of Rs.3,43,000/at the rate of 8 % awarded by the Tribunal. | 1 | 1,022 | 647 | ### 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:
Abhay Manohar Sapre, J. 1. This appeal is filed by the claimant against the final judgment and order dated 19.03.2015 passed by the High Court of Karnataka Bench at Dharwad in Misc. First Appeal No. 24385 of 2011(MV) whereby the High Court dismissed the appeal filed by the claimant (appellant herein) and affirmed the judgment and award dated 12.04.2011 passed by the Member, MACTII, Bellary in M.V.C. No.711 of 2010. 2. Few relevant facts need to be mentioned hereinbelow to appreciate the question involved in the appeal. 3. The appellant was working as a cleaner in a lorry bearing Regn. No.AP21/ V4682 belonging to respondent No.2 herein. At the relevant time, it was insured with respondent No.1. On 05.12.2004, at about 1.00 p.m. near VGM Factory, Belgal Road, Bellary, when the appellant was standing in front of the abovementioned lorry for the purpose of loading iron ore, the driver of the lorry moved the vehicle without giving any signal or horn and dashed it against him. As a result of which, the appellant sustained facture of both pelvic bones with rapture of urethra and abdomen injuries and other grievous injuries all over his body. The appellant was then taken to VIMS Hospital, Bellary for the medical treatment. The appellant claimed to have spent a substantial sum towards his medical treatment. Due to the aforementioned injuries sustained by the appellant, he has become permanently disabled to do the work which he was doing before the accident. At the time of accident, the appellant was 25 years of age and earning Rs.4000/per month. 4. The appellant filed a claim petition bearing M.V.C. No.711 of 2010 before the MACTII at Bellary under Section 173 of the Motor Vehicles Act, 1988 and claimed compensation from the respondents. It was contested by the respondents. By award dated 12.04.2011, the Tribunal partly allowed the appellants claim petition. It was held that the monthly income of the appellant claimant was Rs.4000/, that the accident occurred due to sole negligence of the driver of offending vehicle, that the appellant sustained partial but permanent disability in the whole body to the extent of 25% and that the age of the appellant was 25 years on the date of accident. The Tribunal then applied the multiplier of 18 and accordingly awarded a sum of Rs.2,16,000/towards loss of future income, Rs.75,000/towards pain and sufferings, Rs.25,000/towards medical expenses, Rs.15,000/towards future medical expenses and Rs.12,000/towards loss of income during laid up period. So far as the liability was concerned, the Tribunal held that the policy was a package policy equivalent to comprehensive policy, which covers the risk of cleaner also. 5. The Tribunal accordingly awarded a total compensation of Rs.3,43,000/with interest payable at the rate of 8% p.a. from the date of claim petition till payment against the respondents jointly and severally. 6. Being aggrieved by the award passed by the Tribunal, the appellantClaimant filed M.F.A. No.24385 of 2011(MV) for enhancement of the compensation before the High Court. The Insurance Company (respondent No.1 herein) also felt aggrieved and filed M.F.A. No.23729 of 2011 (MV) before the High Court for setting aside the award passed by the Tribunal. 7. The High Court, by order dated 19.03.2015, dismissed both the appeals. 8. Aggrieved by the impugned order, the appellant claimant has filed this appeal by way of special leave in this Court. So far as the Insurance Company respondent No.1 herein is concerned, they have not filed any appeal against the impugned order. 9. The short question, which arises for consideration in this appeal, is whether any case is made out on facts/evidence for further enhancement of the compensation awarded by the Tribunal to the appellant (claimant). 10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and accordingly enhance the compensation awarded by the Tribunal to the extent indicated infra. 11. In our considered opinion, the High Court erred in dismissing the claimants appeal and thus committed an error in not further enhancing the compensation. In other words, the appellant was able to make out a case for further enhancement in the quantum of compensation awarded by the Tribunal and, therefore, he is entitled for enhancement in the award of compensation on the grounds mentioned below. 12. First, the appellant (claimant) was a young unmarried boy of 25 years at the time of accident and did not suffer with any kind of ailment; Second, the appellant had sustained fracture of both pelvic bones with rapture of urethra and abdomen injuries for which he underwent four operations and suffered partial but permanent disability in his body which reduced his movement capacity to a larger extent; Third, the appellant due to partial but permanent disability also lost his job; Fourth, he spent a substantial sum for his medical treatment; and lastly, since the appellant is not still able to move freely due to disabilities suffered by him, he is entitled to be suitably compensated by awarding him monetary compensation. 13. Learned counsel for the respondent (Insurance Company) urged that no case for any further enhancement in the compensation is made out and that the High Court was, therefore, justified in upholding the award of the Tribunal. 14. We do not agree with the submission urged by the learned counsel for respondent No.1Insurance Company for the abovementioned reasons given by us. 15. I
### Response:
1
### Explanation:
11. In our considered opinion, the High Court erred in dismissing the claimants appeal and thus committed an error in not further enhancing the compensation. In other words, the appellant was able to make out a case for further enhancement in the quantum of compensation awarded by the Tribunal and, therefore, he is entitled for enhancement in the award of compensation on the grounds mentioned below.First, the appellant (claimant) was a young unmarried boy of 25 years at the time of accident and did not suffer with any kind of ailment; Second, the appellant had sustained fracture of both pelvic bones with rapture of urethra and abdomen injuries for which he underwent four operations and suffered partial but permanent disability in his body which reduced his movement capacity to a larger extent; Third, the appellant due to partial but permanent disability also lost his job; Fourth, he spent a substantial sum for his medical treatment; and lastly, since the appellant is not still able to move freely due to disabilities suffered by him, he is entitled to be suitably compensated by awarding him monetary compensation.Learned counsel for the respondent (Insurance Company) urged that no case for any further enhancement in the compensation is made out and that the High Court was, therefore, justified in upholding the award of the Tribunal.We do not agree with the submission urged by the learned counsel for respondent No.1Insurance Company for the abovementioned reasons given by us.In our considered opinion, the High Court erred in dismissing the claimants appeal and thus committed an error in not further enhancing the compensation. In other words, the appellant was able to make out a case for further enhancement in the quantum of compensation awarded by the Tribunal and, therefore, he is entitled for enhancement in the award of compensation on the grounds mentioned below., the appellant (claimant) was a young unmarried boy of 25 years at the time of accident and did not suffer with any kind of ailment; Second, the appellant had sustained fracture of both pelvic bones with rapture of urethra and abdomen injuries for which he underwent four operations and suffered partial but permanent disability in his body which reduced his movement capacity to a larger extent; Third, the appellant due to partial but permanent disability also lost his job; Fourth, he spent a substantial sum for his medical treatment; and lastly, since the appellant is not still able to move freely due to disabilities suffered by him, he is entitled to be suitably compensated by awarding him monetary compensation.e do not agree with the submission urged by the learned counsel for respondent No.1Insurance Company for the abovementioned reasons given by us.In the light of the foregoing discussion and the grounds mentioned above, which found acceptance to the Tribunal, we are of the considered opinion that the appellant is entitled for a further sum of Rs.5,00,000/in lump sum in addition to what has been awarded by the Tribunal, i.e., Rs.3,43,000/.In other words, the appellant (claimant) is now entitled to claim a total sum of Rs.8,43,000/from the respondents jointly and severally by way of compensation for the injuries sustained, partial and permanent disability occurred, medical expenses incurred and loss occasioned due to injuries sustained by him in the accident.We, however, do not award interest on the enhanced sum of Rs.5,00,000/, which we have awarded to the appellant. In this view of the matter, the appellant is entitled to claim interest only on the sum of Rs.3,43,000/at the rate of 8 % awarded by the Tribunal.
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Jagdish Chander Malik Vs. Manmohan Juneja | Kurian Joseph, J.1. Leave granted.2. The appellant approached this Court, aggrieved by the order dated 03.12.2014 passed by the High Court of Delhi in Cont. CAS (C) No. 574 of 2014. As per the said order, the High Court declined to grant any relief in the application for contempt filed by the appellant for the alleged violation of non-implementation of the order dated 11.01.2013. The order to the relevant extent reads as follows :-"On consideration of the material before us and the list of dates and events which is all that the petitioner appearing in person relied upon, we find no merit in the appeal. Learned single Judge made every endeavour to ensure that the documents are made available to the petitioner and towards that objective, even fixed a date, time and place vide order dated 16.08.2012. The petitioner, however, never visited the office of the standing counsel for Government of Delhi (counsel for ROC) on the said date or time, but went five days later. Obviously the records were not available when the petitioner so visited. The petitioner has been only insisting that the records should have been made available when he chose not to go to the counsel, an aspect dealt with by the learned single Judge in the order dated 03.10.2012. The petitioner has been unnecessarily obstinate inasmuch as even in the order dated 03.10.2012, it is noticed that the learned single Judge offered it to the petitioner that another date can be fixed, but the petitioner was not willing to indicate any other date. Despite this, the learned single Judge has granted liberty to the petitioner to approach the office of ROC so that direction dated 16.08.2012 could be complied with as and when the appellant chooses to go to the office of the ROC. The litigation is being carried out unnecessarily without any purpose."3. In the impugned order, the High Court noticed, at paragraphs 3 and 4, as follows :-"As a matter of fact, the Division Bench has observed that the petitioner has been unnecessarily obstinate inasmuch as even in the order dated 3.10.2012 it has been noticed that the learned single judge offered to the petitioner that another date can be fixed for the purpose of inspection of the record in the office of ROC, yet the petitioner was not willing to indicate the date. Despite all this, the learned single judge had granted liberty to the petitioner to approach the office of the ROC so that direction dated 16.8.2012 could be complied with by virtue of which the petitioner was to be provided certified copies of certain documents required by him.4. I do not find that there is any direction, order or judgment passed by the court of which there is any disobedience and consequently, the present contempt petition is totally misconceived. Accordingly, the same is dismissed and the contempt notice is discharged."4. Heard the learned counsel appearing for the appellant as well as the learned senior counsel appearing for the respondent. Having regard to the fact that the appellant only ultimately wants compliance of his application for which he had been granted date to approach the ROC, we are of the view that it is in the interests of justice that a further liberty is granted to the appellant. | 1[ds]4. Heard the learned counsel appearing for the appellant as well as the learned senior counsel appearing for the respondent. Having regard to the fact that the appellant only ultimately wants compliance of his application for which he had been granted date to approach the ROC, we are of the view that it is in the interests of justice that a further liberty is granted to the appellant. | 1 | 604 | 76 | ### 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:
Kurian Joseph, J.1. Leave granted.2. The appellant approached this Court, aggrieved by the order dated 03.12.2014 passed by the High Court of Delhi in Cont. CAS (C) No. 574 of 2014. As per the said order, the High Court declined to grant any relief in the application for contempt filed by the appellant for the alleged violation of non-implementation of the order dated 11.01.2013. The order to the relevant extent reads as follows :-"On consideration of the material before us and the list of dates and events which is all that the petitioner appearing in person relied upon, we find no merit in the appeal. Learned single Judge made every endeavour to ensure that the documents are made available to the petitioner and towards that objective, even fixed a date, time and place vide order dated 16.08.2012. The petitioner, however, never visited the office of the standing counsel for Government of Delhi (counsel for ROC) on the said date or time, but went five days later. Obviously the records were not available when the petitioner so visited. The petitioner has been only insisting that the records should have been made available when he chose not to go to the counsel, an aspect dealt with by the learned single Judge in the order dated 03.10.2012. The petitioner has been unnecessarily obstinate inasmuch as even in the order dated 03.10.2012, it is noticed that the learned single Judge offered it to the petitioner that another date can be fixed, but the petitioner was not willing to indicate any other date. Despite this, the learned single Judge has granted liberty to the petitioner to approach the office of ROC so that direction dated 16.08.2012 could be complied with as and when the appellant chooses to go to the office of the ROC. The litigation is being carried out unnecessarily without any purpose."3. In the impugned order, the High Court noticed, at paragraphs 3 and 4, as follows :-"As a matter of fact, the Division Bench has observed that the petitioner has been unnecessarily obstinate inasmuch as even in the order dated 3.10.2012 it has been noticed that the learned single judge offered to the petitioner that another date can be fixed for the purpose of inspection of the record in the office of ROC, yet the petitioner was not willing to indicate the date. Despite all this, the learned single judge had granted liberty to the petitioner to approach the office of the ROC so that direction dated 16.8.2012 could be complied with by virtue of which the petitioner was to be provided certified copies of certain documents required by him.4. I do not find that there is any direction, order or judgment passed by the court of which there is any disobedience and consequently, the present contempt petition is totally misconceived. Accordingly, the same is dismissed and the contempt notice is discharged."4. Heard the learned counsel appearing for the appellant as well as the learned senior counsel appearing for the respondent. Having regard to the fact that the appellant only ultimately wants compliance of his application for which he had been granted date to approach the ROC, we are of the view that it is in the interests of justice that a further liberty is granted to the appellant.
### Response:
1
### Explanation:
4. Heard the learned counsel appearing for the appellant as well as the learned senior counsel appearing for the respondent. Having regard to the fact that the appellant only ultimately wants compliance of his application for which he had been granted date to approach the ROC, we are of the view that it is in the interests of justice that a further liberty is granted to the appellant.
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Mohta Alloys Steel Works Vs. Mohta Finance & Leasing Co. & Others | 1. The appellant filed an application under S.33 of the Arbitration Act, 1940 challenging the existence and validity of the arbitration clause forming part of the lease agreement entered into between the first respondent and the appellant Company.2. The application was filed before the High Court of Delhi and the matter was dealt with by the learned Single Judge. The learned Judge raised several issues to be considered in the matter. So far as the present matter is concerned, it is not necessary for us to examine other aspects of the matter except to concentrate on the question of limitation and that issue reads as follows:"Whether the claim of the petitioner and the petition under S.33 of the Arbitration Act is barred by limitation?"3. On this aspect of the matter the learned Single Judge held that Art.137 of the Limitation Act would be attracted and that the period would commence when the right to apply under S.33 would accrue and recorded a finding that the application was filed in the month of March 1993 which is a period beyond the period of 3 years from the several dates referred to by the learned Judge. Firstly, he referred to certain claims made towards rent and certain legal notices exchanged between the parties. 4. It is unnecessary to refer to all these details if we take into consideration the claim put forth by Shri Gopal Subramanium, learned Senior Advocate appearing on behalf of the appellant that the cause of action would accrue under S.33 of the Arbitration Act when the clause for arbitration is disclosed to the appellant and the same is invoked. In the letter dated 8-1-1990 sent by the respondent to the Registrar, the Tribunal of Arbitration indeed invoked the clause relating to settlement of the disputes by arbitration under the Rules of Arbitration of the PHD Chamber of Commerce and Industry. It would be idle to contend that this notice did not disclose the intention to invoke the arbitration clause as provided in the lease deed. Therefore, reckoning the period as the date of receipt of the said notice, we have no hesitation to hold that the learned Single Judge is perfectly right in his order to state that the application filed by the appellant is barred by limitation.5. The learned Single Judge, however, proceeded further to examine certain other contentions raised by the parties which was wholly unnecessary for the purpose of the case having held that the application is barred by time. Those questions could be thrashed out only upon adducing proper evidence in the matter and such an opportunity was not available to the learned Single Judge to have examined the matter and reach a conclusion. Hence the conclusions reached by the learned Single Judge on other aspects of the matter cannot be sustained and the same shall stand vacated. It is, therefore, open to the PHD Chamber of Commerce and Industry -- | 1[ds]5. The learned Single Judge, however, proceeded further to examine certain other contentions raised by the parties which was wholly unnecessary for the purpose of the case having held that the application is barred by time. Those questions could be thrashed out only upon adducing proper evidence in the matter and such an opportunity was not available to the learned Single Judge to have examined the matter and reach a conclusion. Hence the conclusions reached by the learned Single Judge on other aspects of the matter cannot be sustained and the same shall stand vacated. It is, therefore, open to the PHD Chamber of Commerce and Industry | 1 | 520 | 120 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
1. The appellant filed an application under S.33 of the Arbitration Act, 1940 challenging the existence and validity of the arbitration clause forming part of the lease agreement entered into between the first respondent and the appellant Company.2. The application was filed before the High Court of Delhi and the matter was dealt with by the learned Single Judge. The learned Judge raised several issues to be considered in the matter. So far as the present matter is concerned, it is not necessary for us to examine other aspects of the matter except to concentrate on the question of limitation and that issue reads as follows:"Whether the claim of the petitioner and the petition under S.33 of the Arbitration Act is barred by limitation?"3. On this aspect of the matter the learned Single Judge held that Art.137 of the Limitation Act would be attracted and that the period would commence when the right to apply under S.33 would accrue and recorded a finding that the application was filed in the month of March 1993 which is a period beyond the period of 3 years from the several dates referred to by the learned Judge. Firstly, he referred to certain claims made towards rent and certain legal notices exchanged between the parties. 4. It is unnecessary to refer to all these details if we take into consideration the claim put forth by Shri Gopal Subramanium, learned Senior Advocate appearing on behalf of the appellant that the cause of action would accrue under S.33 of the Arbitration Act when the clause for arbitration is disclosed to the appellant and the same is invoked. In the letter dated 8-1-1990 sent by the respondent to the Registrar, the Tribunal of Arbitration indeed invoked the clause relating to settlement of the disputes by arbitration under the Rules of Arbitration of the PHD Chamber of Commerce and Industry. It would be idle to contend that this notice did not disclose the intention to invoke the arbitration clause as provided in the lease deed. Therefore, reckoning the period as the date of receipt of the said notice, we have no hesitation to hold that the learned Single Judge is perfectly right in his order to state that the application filed by the appellant is barred by limitation.5. The learned Single Judge, however, proceeded further to examine certain other contentions raised by the parties which was wholly unnecessary for the purpose of the case having held that the application is barred by time. Those questions could be thrashed out only upon adducing proper evidence in the matter and such an opportunity was not available to the learned Single Judge to have examined the matter and reach a conclusion. Hence the conclusions reached by the learned Single Judge on other aspects of the matter cannot be sustained and the same shall stand vacated. It is, therefore, open to the PHD Chamber of Commerce and Industry --
### Response:
1
### Explanation:
5. The learned Single Judge, however, proceeded further to examine certain other contentions raised by the parties which was wholly unnecessary for the purpose of the case having held that the application is barred by time. Those questions could be thrashed out only upon adducing proper evidence in the matter and such an opportunity was not available to the learned Single Judge to have examined the matter and reach a conclusion. Hence the conclusions reached by the learned Single Judge on other aspects of the matter cannot be sustained and the same shall stand vacated. It is, therefore, open to the PHD Chamber of Commerce and Industry
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State Of Uttar Pradesh Vs. M/S. Kores (India) Ltd | are macrated into a pulp, dried and pressed; it is used for writing. printing, or drawing on, for w rapping things in, for covering the interior of wails, etc."In Encyclopaedia Britannica, (Volume 13), (15th Edition), paper has been defined as the basic material used for written communication and t he dissemination of information." 5. In the Unabridged Edition of "The Randon House Dicitionary of the English Language", the word paper has been defined as "a substance made from rags, straw wood or other fibrous material, usually in thin sheets, used to bear writing or printing or for wrapping things, decorating walls etc." 6. From the above definitions, it is clear that in popular parlance, the word paper is understood as meaning a substance which is used for bearing, writing, or printing, or for packing, or for drawing on, or for decorating, or covering the walls. Now carbon paper which is manufactured by coating the tissue paper with a thermo-setting ink (made to a liquid consistency) based mainly on wax, non drying oils, pigments and dyes by means of a suitable coating roller and equalising rod and then passing it through chilled rolls cannot be used for the aforesaid purposes but is used. according to The Randon House Dictionary of the English Language between two sheets of plain paper in order to reproduce on the lower sheet that which is written or typed on the upper sheet i.e. making replicas or carbon copies cannot properly be described as paper. 7. It will be well at this stage to refer to a few decisions which confirm our view. 8. In Kilburn &Co. Ltd. v. Commissioner of Sales Tax U.P., Lucknow(31 S.T.C. 625.) a Bench of Allahabad High Court while examining the very same entry in the Notification with which we are concerned in the instant case and holding that "Ammonia paper and ferro paper used for obtaining prints and sketches of site plans are not paper us understood generally an d, therefore, will not come within the expression paper other than hand-made paper as used in Notification No. ST 3124/X-1012(4) dated 1st July, 1966, issued under section 3-A of the U.P. Sales Tax Act, 1948" observed:--"The word paper has not been defined in the Act or the Rules, and, as such, it has to be given the meaning which it has in ordinary parlance. Paper, as understood in common parlance, is the paper which is used for printing. writing and packing purposes." 9. In Sree Rama Trading Company v. State of Kerala(28 S.T.C. 469.) the High Court of Kerala after a good deal of research held that cellophane is not paper coming within entry 42 in the First Schedule to the Kerala General Sales Tax Act, 1963, as it stood at the time relevant to the year 1966-67. 10. In State of Orissa v. Gestetner Duplicators (P) Ltd. (33 S.T.C. 333.) the High Court of Orissa held that stencil paper was not paper within the meaning of serial No. 7-A of the Schedule to the Notification issued by the State Government under the first proviso to section 5(1)of the Orissa Sales Tax Act, 1947 and that sale of stencil paper was, therefore, not taxable at the rate of 7 per cent but is exigible to tax at the rate of 5 per cent. 11. In Commissioner of Sates Tax, U.P, v. S.N. Brothers (31 S.T.C. 302.) this Court while upholding the decision of the Allahabad High Court which held that food colours and syrup essences arc .edible goods while dyes and colours and compositions thereof and scents and perfume did not seem prima facie to connote that they are edible goods observed:"The words dyes and. colours used in entry No. 10 and the words: scents and perfumes used in entry No. 37 have to be construed in their own context and in the sense, as ordinarily understood and attributed to these words by people usually conversant with and dealing in such goods. Similarly, the words "food colours" and "syrup essences", which are descriptive of the class of goods the sales of which are to be taxed under the Act, have to be construed in the sense in which they are popularly understood by those who deal in them and who purchase and use them." Bearing in mind the ratio of the above mentioned decisions, it is quite clear that the mere fact that the word paper forms part of the denomination of a specialised article is not decisive of the question whether the article is paper as generally understood. the word paper in the common parlance or in the commercial sense means paper which is used for printing, writing or packing purposes. We are, therefore, clear of opinion that Carbon paper is not paper as envisaged by entry 2 of the aforesaid Notification. 12. Regarding ribbon also to which the above mentioned rule construction equally applies, we have no manner of doubt that it an accessory and not a part of the typewriter (unlike spool) though it may not be possible to use the latter without the former. Just as aviation petrol is not a part of the aero- plane nor diesel is a part of a bus in the same way, ribbon is not a part of the type- writer though it may not be possible to type o ut any matter without it. 13. The very same question with which we are here confronted came up for decision before the High Court of Mysore in State of Mysore v. Kores (India) Ltd. (26 S.T.C. 87.) where it was held:"Whether a typewriter ribbon is a part of a typewriter is to be considered in the light of what is meant by a typewriter in the commercial sense. Typewriters are being sold in the market without the typewriter ribbons and therefore typewriter ribbon is not an essential part of a typewriter so as to attract tax as per entry 18 of the Second Schedule to the Mysore Sales Tax Act, 1957." 14. | 0[ds]From the above definitions, it is clear that in popular parlance, the word paper is understood as meaning a substance which is used for bearing, writing, or printing, or for packing, or for drawing on, or for decorating, or covering the walls. Now carbon paper which is manufactured by coating the tissue paper with a thermo-setting ink (made to a liquid consistency) based mainly on wax, non drying oils, pigments and dyes by means of a suitable coating roller and equalising rod and then passing it through chilled rolls cannot be used for the aforesaid purposes but is used. according to The Randon House Dictionary of the English Language between two sheets of plain paper in order to reproduce on the lower sheet that which is written or typed on the upper sheet i.e. making replicas or carbon copies cannot properly be described as paperBearing in mind the ratio of the above mentioned decisions, it is quite clear that the mere fact that the word paper forms part of the denomination of a specialised article is not decisive of the question whether the article is paper as generally understood. the word paper in the common parlance or in the commercial sense means paper which is used for printing, writing or packing purposes. We are, therefore, clear of opinion that Carbon paper is not paper as envisaged by entry 2 of the aforesaid NotificationRegarding ribbon also to which the above mentioned rule construction equally applies, we have no manner of doubt that it an accessory and not a part of the typewriter (unlike spool) though it may not be possible to use the latter without the former. Just as aviation petrol is not a part of the aero- plane nor diesel is a part of a bus in the same way, ribbon is not a part of the type- writer though it may not be possible to type o ut any matter without it. | 0 | 2,118 | 356 | ### 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:
are macrated into a pulp, dried and pressed; it is used for writing. printing, or drawing on, for w rapping things in, for covering the interior of wails, etc."In Encyclopaedia Britannica, (Volume 13), (15th Edition), paper has been defined as the basic material used for written communication and t he dissemination of information." 5. In the Unabridged Edition of "The Randon House Dicitionary of the English Language", the word paper has been defined as "a substance made from rags, straw wood or other fibrous material, usually in thin sheets, used to bear writing or printing or for wrapping things, decorating walls etc." 6. From the above definitions, it is clear that in popular parlance, the word paper is understood as meaning a substance which is used for bearing, writing, or printing, or for packing, or for drawing on, or for decorating, or covering the walls. Now carbon paper which is manufactured by coating the tissue paper with a thermo-setting ink (made to a liquid consistency) based mainly on wax, non drying oils, pigments and dyes by means of a suitable coating roller and equalising rod and then passing it through chilled rolls cannot be used for the aforesaid purposes but is used. according to The Randon House Dictionary of the English Language between two sheets of plain paper in order to reproduce on the lower sheet that which is written or typed on the upper sheet i.e. making replicas or carbon copies cannot properly be described as paper. 7. It will be well at this stage to refer to a few decisions which confirm our view. 8. In Kilburn &Co. Ltd. v. Commissioner of Sales Tax U.P., Lucknow(31 S.T.C. 625.) a Bench of Allahabad High Court while examining the very same entry in the Notification with which we are concerned in the instant case and holding that "Ammonia paper and ferro paper used for obtaining prints and sketches of site plans are not paper us understood generally an d, therefore, will not come within the expression paper other than hand-made paper as used in Notification No. ST 3124/X-1012(4) dated 1st July, 1966, issued under section 3-A of the U.P. Sales Tax Act, 1948" observed:--"The word paper has not been defined in the Act or the Rules, and, as such, it has to be given the meaning which it has in ordinary parlance. Paper, as understood in common parlance, is the paper which is used for printing. writing and packing purposes." 9. In Sree Rama Trading Company v. State of Kerala(28 S.T.C. 469.) the High Court of Kerala after a good deal of research held that cellophane is not paper coming within entry 42 in the First Schedule to the Kerala General Sales Tax Act, 1963, as it stood at the time relevant to the year 1966-67. 10. In State of Orissa v. Gestetner Duplicators (P) Ltd. (33 S.T.C. 333.) the High Court of Orissa held that stencil paper was not paper within the meaning of serial No. 7-A of the Schedule to the Notification issued by the State Government under the first proviso to section 5(1)of the Orissa Sales Tax Act, 1947 and that sale of stencil paper was, therefore, not taxable at the rate of 7 per cent but is exigible to tax at the rate of 5 per cent. 11. In Commissioner of Sates Tax, U.P, v. S.N. Brothers (31 S.T.C. 302.) this Court while upholding the decision of the Allahabad High Court which held that food colours and syrup essences arc .edible goods while dyes and colours and compositions thereof and scents and perfume did not seem prima facie to connote that they are edible goods observed:"The words dyes and. colours used in entry No. 10 and the words: scents and perfumes used in entry No. 37 have to be construed in their own context and in the sense, as ordinarily understood and attributed to these words by people usually conversant with and dealing in such goods. Similarly, the words "food colours" and "syrup essences", which are descriptive of the class of goods the sales of which are to be taxed under the Act, have to be construed in the sense in which they are popularly understood by those who deal in them and who purchase and use them." Bearing in mind the ratio of the above mentioned decisions, it is quite clear that the mere fact that the word paper forms part of the denomination of a specialised article is not decisive of the question whether the article is paper as generally understood. the word paper in the common parlance or in the commercial sense means paper which is used for printing, writing or packing purposes. We are, therefore, clear of opinion that Carbon paper is not paper as envisaged by entry 2 of the aforesaid Notification. 12. Regarding ribbon also to which the above mentioned rule construction equally applies, we have no manner of doubt that it an accessory and not a part of the typewriter (unlike spool) though it may not be possible to use the latter without the former. Just as aviation petrol is not a part of the aero- plane nor diesel is a part of a bus in the same way, ribbon is not a part of the type- writer though it may not be possible to type o ut any matter without it. 13. The very same question with which we are here confronted came up for decision before the High Court of Mysore in State of Mysore v. Kores (India) Ltd. (26 S.T.C. 87.) where it was held:"Whether a typewriter ribbon is a part of a typewriter is to be considered in the light of what is meant by a typewriter in the commercial sense. Typewriters are being sold in the market without the typewriter ribbons and therefore typewriter ribbon is not an essential part of a typewriter so as to attract tax as per entry 18 of the Second Schedule to the Mysore Sales Tax Act, 1957." 14.
### Response:
0
### Explanation:
From the above definitions, it is clear that in popular parlance, the word paper is understood as meaning a substance which is used for bearing, writing, or printing, or for packing, or for drawing on, or for decorating, or covering the walls. Now carbon paper which is manufactured by coating the tissue paper with a thermo-setting ink (made to a liquid consistency) based mainly on wax, non drying oils, pigments and dyes by means of a suitable coating roller and equalising rod and then passing it through chilled rolls cannot be used for the aforesaid purposes but is used. according to The Randon House Dictionary of the English Language between two sheets of plain paper in order to reproduce on the lower sheet that which is written or typed on the upper sheet i.e. making replicas or carbon copies cannot properly be described as paperBearing in mind the ratio of the above mentioned decisions, it is quite clear that the mere fact that the word paper forms part of the denomination of a specialised article is not decisive of the question whether the article is paper as generally understood. the word paper in the common parlance or in the commercial sense means paper which is used for printing, writing or packing purposes. We are, therefore, clear of opinion that Carbon paper is not paper as envisaged by entry 2 of the aforesaid NotificationRegarding ribbon also to which the above mentioned rule construction equally applies, we have no manner of doubt that it an accessory and not a part of the typewriter (unlike spool) though it may not be possible to use the latter without the former. Just as aviation petrol is not a part of the aero- plane nor diesel is a part of a bus in the same way, ribbon is not a part of the type- writer though it may not be possible to type o ut any matter without it.
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Commissioner Of Income-Tax, West Bengal,Calcutta Vs. Shri Prem Bhai Parekh And Ors | Hegde, J.1. This is an appeal by certificate, granted by the High Court of Calcutta under S. 66A (2) of the Indian Income-tax Act, 1922 (to be hereinafter referred to as the Act) against the decision of that Court in a reference under S. 66(1) of that Act.2. The two questions of law referred to the High Court by the tribunal are:(1) Whether S. 16(3) of the Act was ultra vires the Central Legislature and(2) Whether on the facts and in the circumstances of the case, the income arising to the three minor sons of the assessee by the virtue of their admission to the benefits of the partnership of M/s. Ajitmal Kanhaiyalal was rightly included in the total income of the assessee under S. 16(3)(a)(iv) of the Act.3. The assessee at whose instance those questions were referred did not press for an answer in respect of question No.1. Therefore that question was not dealt with by the High Court. Hence we need not go into that question. The High Court answered the second question in favour of the assessee.4. The facts necessary for the purpose of deciding the point in dispute as set out in the statement of the case submitted by the tribunal are as follows:5. The assessee Shri Ajitmal Parekh was a partner of the firm M/s. Ajitmal Kanhaiyalal having 7 annas share therein. He continued to be a partner of that firm till July 1, 1954 which was the last date of the accounting year of the firm, relevant for the assessment year 1955-56. On July 1, 1954, the assessee retired from the firm. Thereafter he gifted to each of his four sons Rs. 75,000. Out of his four sons, three were minors at that time. There was a reconstitution of the firm with effect from July 2, 1954 as evidenced by the partnership deed dated July 5, 1954. The major son of the assessee became a partner of the reconstituted firm and his minor sons were admitted to the benefits of that partnership in the reconstituted firm. The major son had 2 annas share. His three minor brothers were admitted to the benefits of the partnership, each one of them having 2 annas share. In the assessment year 1956-57, the Income-tax Officer held that the income arising to he minors by virtue of their admission to the benefits of the partnership came within the purview of S. 16(3)(a)(iv) of the Act. He included that income in the total income of the assessee for that year. In appeal the Appellate Assistant Commissioner substantially upheld the order of assessment made by the Income-tax Officer but he held that the minors were entitled to only 1-9 pies share in the firm. The assessee took up the matter in appeal to the Income-tax Appellate Tribunal. The tribunal upheld the decision of the Appellate Assistant Commissioner.6. On the facts found by the tribunal, that High Court came to the conclusion that answer to question No. 2 should be in the negative and in favour of the assessee.7. The tribunal found that the capital invested by the minors in the firm came from the gift made in their favour by their father, the assessee. That finding was not open to question before the High Court nor did the High Court depart from that finding. But on an interpretation of S. 16(3)(a)(iv) the High Court opined that the answer to the question must be in favour of the assessee. Section 16(3)(a)(iv) reads:"In computing the total income of any individual for the purpose of assessment, there shall be included (a) so much of the income of a wife or minor child of such individual as arises directly or indirectly .......(iv) from assets transferred directly or indirectly to the minor child, not being a married daughter by such individual otherwise than for adequate consideration."8. Before any income of a minor child can be brought within the scope of S. 16(3)(a)(iv), it must be established that the said income arose directly or indirectly from assets transferred directly or indirectly by its father. There is no dispute that the assessee had transferred to each of his minor sons, a sum of Rs. 75,000. It may also be that the amount contributed by those minors as their share in the firm came from these amounts. But the question still remains whether it can be said that the income with which we are concerned in this case arises directly or indirectly from the assets transferred by the assessee to those minors. The connection between the gifts mentioned earlier and the income in question is a remote one. The income of the minors arose as a result of their admission to the benefits of the partnership. It is true that they were admitted to the benefits of the partnership because of the contribution made by them. But there is no nexus between the transfer of the assets and the income in question. It cannot be said that that income arose directly or indirectly from the transfer of the assets referred to earlier. Section 16(3) of the Act created an artificial income. That section must receive strict construction as observed by this Court in Commr. of Income-tax Gujarat v. Keshavlal Lallubhai Patel, (1965) 55 ITR 637 = (AIR 1965 SC 866 ).In our judgment before an income can be held to come within the ambit of Section 16(3), it must be proved to have arisen - directly or indirectly - from a transfer of assets made by the assessee in favour of his wife or minor children. The connection between the transfer of assets and the income must be proximate. The income in question must arise as a result of the transfer and not in some manner connected with it. | 0[ds]8. Before any income of a minor child can be brought within the scope of S. 16(3)(a)(iv), it must be established that the said income arose directly or indirectly from assets transferred directly or indirectly by its father. There is no dispute that the assessee had transferred to each of his minor sons, a sum of Rs. 75,000. It may also be that the amount contributed by those minors as their share in the firm came from these amounts. Butthe question still remains whether it can be said that the income with which we are concerned in this case arises directly or indirectly from the assets transferred by the assessee to thoseminors. The connection between the gifts mentioned earlier and the income in question is a remote one. The income of the minors arose as a result of their admission to the benefits of the partnership. It is true that they were admitted to the benefits of the partnership because of the contribution made by them. But there is no nexus between the transfer of the assets and the income in question. It cannot be said that that income arose directly or indirectly from the transfer of the assets referred to earlier. Section 16(3) of the Act created an artificial income. That section must receive strict construction as observed by this Court in Commr. of Income-tax Gujarat v. Keshavlal Lallubhai Patel, (1965) 55 ITR 637 = (AIR 1965 SC 866 ).In our judgment before an income can be held to come within the ambit of Section 16(3), it must be proved to have arisen - directly or indirectly - from a transfer of assets made by the assessee in favour of his wife or minor children. The connection between the transfer of assets and the income must be proximate. The income in question must arise as a result of the transfer and not in some manner connected with it. | 0 | 1,110 | 363 | ### 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:
Hegde, J.1. This is an appeal by certificate, granted by the High Court of Calcutta under S. 66A (2) of the Indian Income-tax Act, 1922 (to be hereinafter referred to as the Act) against the decision of that Court in a reference under S. 66(1) of that Act.2. The two questions of law referred to the High Court by the tribunal are:(1) Whether S. 16(3) of the Act was ultra vires the Central Legislature and(2) Whether on the facts and in the circumstances of the case, the income arising to the three minor sons of the assessee by the virtue of their admission to the benefits of the partnership of M/s. Ajitmal Kanhaiyalal was rightly included in the total income of the assessee under S. 16(3)(a)(iv) of the Act.3. The assessee at whose instance those questions were referred did not press for an answer in respect of question No.1. Therefore that question was not dealt with by the High Court. Hence we need not go into that question. The High Court answered the second question in favour of the assessee.4. The facts necessary for the purpose of deciding the point in dispute as set out in the statement of the case submitted by the tribunal are as follows:5. The assessee Shri Ajitmal Parekh was a partner of the firm M/s. Ajitmal Kanhaiyalal having 7 annas share therein. He continued to be a partner of that firm till July 1, 1954 which was the last date of the accounting year of the firm, relevant for the assessment year 1955-56. On July 1, 1954, the assessee retired from the firm. Thereafter he gifted to each of his four sons Rs. 75,000. Out of his four sons, three were minors at that time. There was a reconstitution of the firm with effect from July 2, 1954 as evidenced by the partnership deed dated July 5, 1954. The major son of the assessee became a partner of the reconstituted firm and his minor sons were admitted to the benefits of that partnership in the reconstituted firm. The major son had 2 annas share. His three minor brothers were admitted to the benefits of the partnership, each one of them having 2 annas share. In the assessment year 1956-57, the Income-tax Officer held that the income arising to he minors by virtue of their admission to the benefits of the partnership came within the purview of S. 16(3)(a)(iv) of the Act. He included that income in the total income of the assessee for that year. In appeal the Appellate Assistant Commissioner substantially upheld the order of assessment made by the Income-tax Officer but he held that the minors were entitled to only 1-9 pies share in the firm. The assessee took up the matter in appeal to the Income-tax Appellate Tribunal. The tribunal upheld the decision of the Appellate Assistant Commissioner.6. On the facts found by the tribunal, that High Court came to the conclusion that answer to question No. 2 should be in the negative and in favour of the assessee.7. The tribunal found that the capital invested by the minors in the firm came from the gift made in their favour by their father, the assessee. That finding was not open to question before the High Court nor did the High Court depart from that finding. But on an interpretation of S. 16(3)(a)(iv) the High Court opined that the answer to the question must be in favour of the assessee. Section 16(3)(a)(iv) reads:"In computing the total income of any individual for the purpose of assessment, there shall be included (a) so much of the income of a wife or minor child of such individual as arises directly or indirectly .......(iv) from assets transferred directly or indirectly to the minor child, not being a married daughter by such individual otherwise than for adequate consideration."8. Before any income of a minor child can be brought within the scope of S. 16(3)(a)(iv), it must be established that the said income arose directly or indirectly from assets transferred directly or indirectly by its father. There is no dispute that the assessee had transferred to each of his minor sons, a sum of Rs. 75,000. It may also be that the amount contributed by those minors as their share in the firm came from these amounts. But the question still remains whether it can be said that the income with which we are concerned in this case arises directly or indirectly from the assets transferred by the assessee to those minors. The connection between the gifts mentioned earlier and the income in question is a remote one. The income of the minors arose as a result of their admission to the benefits of the partnership. It is true that they were admitted to the benefits of the partnership because of the contribution made by them. But there is no nexus between the transfer of the assets and the income in question. It cannot be said that that income arose directly or indirectly from the transfer of the assets referred to earlier. Section 16(3) of the Act created an artificial income. That section must receive strict construction as observed by this Court in Commr. of Income-tax Gujarat v. Keshavlal Lallubhai Patel, (1965) 55 ITR 637 = (AIR 1965 SC 866 ).In our judgment before an income can be held to come within the ambit of Section 16(3), it must be proved to have arisen - directly or indirectly - from a transfer of assets made by the assessee in favour of his wife or minor children. The connection between the transfer of assets and the income must be proximate. The income in question must arise as a result of the transfer and not in some manner connected with it.
### Response:
0
### Explanation:
8. Before any income of a minor child can be brought within the scope of S. 16(3)(a)(iv), it must be established that the said income arose directly or indirectly from assets transferred directly or indirectly by its father. There is no dispute that the assessee had transferred to each of his minor sons, a sum of Rs. 75,000. It may also be that the amount contributed by those minors as their share in the firm came from these amounts. Butthe question still remains whether it can be said that the income with which we are concerned in this case arises directly or indirectly from the assets transferred by the assessee to thoseminors. The connection between the gifts mentioned earlier and the income in question is a remote one. The income of the minors arose as a result of their admission to the benefits of the partnership. It is true that they were admitted to the benefits of the partnership because of the contribution made by them. But there is no nexus between the transfer of the assets and the income in question. It cannot be said that that income arose directly or indirectly from the transfer of the assets referred to earlier. Section 16(3) of the Act created an artificial income. That section must receive strict construction as observed by this Court in Commr. of Income-tax Gujarat v. Keshavlal Lallubhai Patel, (1965) 55 ITR 637 = (AIR 1965 SC 866 ).In our judgment before an income can be held to come within the ambit of Section 16(3), it must be proved to have arisen - directly or indirectly - from a transfer of assets made by the assessee in favour of his wife or minor children. The connection between the transfer of assets and the income must be proximate. The income in question must arise as a result of the transfer and not in some manner connected with it.
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Tilak Chand Kureel Vs. Bhim Raj | Ramaswami, J.1. This appeal is brought by special leave from the judgment of the Allahabad High Court, dated February 3, 1965 in First Appeal No. 216 of 1954.2. The respondent along with three others filed suit No. 4 of 1950 in the Court of District Judge, Kanpur, alleging that the property in dispute belonged to the Kureel community and the appellant was trustee thereof; that the property had been purchased by the Panches of the community for its benefit and other charitable purposes; that since its purchase it was used for that purpose; that the appellant had started claiming his own rights and had misappropriated the property. The suit was contested by the appellant who denied that the property was trust property. He claimed that he was exclusive owner of the property along with members of his own family, that the buildings standing over the land were constructed by him with his own funds and that he did not take any help either from donations from the Municipal Board or from the members of the public. The suit came up for hearing before the Additional District Judge, Kanpur, who by his judgment, dated May 5, 1954, dismissed the same. The respondents preferred an appeal to the High Court against the judgment of the Additional District Judge, Kanpur. The appeal came for hearing before Mr. Justice Bishamber Dayal who by his judgment, dated February 9, 1965 allowed the appeal, holding that there was a public trust. The case was remanded to the Additional District Judge for framing a proper scheme for the management of the property and for other reliefs.3. On behalf of the appellant it was argued by Mr. C. B. Agarwala that the property was ancestral property of the appellant and there was no public trust as alleged by the respondents. The argument was stressed that the finding of the High Court was based on a misreading of the documentary evidence and was wrong in law. We are unable to accept the argument put forward on behalf of the appellant as correct. In the first place the sale deed, dated May 31, 1876 Ex. 1, proves that the property was purchased by the Panches of Kureel community. In the sale deed seven persons are mentioned as Panches of the community who purchased the property. Although the boundaries of the sale deed do not tally with the present boundaries of the disputed land there is the unrebutted statement of Jagannath Prasad, one of the plaintiffs witnesses, that this sale deed related to the property in dispute. The circumstance that the property was purchased expressly stating that it belongs to the Panches of the community is a very strong piece of evidence that the property was purchased for the Kureel community. There is also other documentary evidence to support this inference. In the Municipal assessment list for the year 1921 to 1927 Ex. 8 the property is mentioned in the name of Ram Dayal son of Debi, Madari and Kulasi and in Column 5 thereof it is described as Panchayati Dharamshala. In the assessment list Ex. 9 for the years 1938-43 the property is mentioned in the name of Tilakchand as manager and trustee, with a remark that the property was occupied by Sir Jwala Prasad Srivastava Public Library.4. On behalf of the appellant it was contended that Exs. 2, 18 and 19 were not admissible in evidence and the High Court was wrong in relying upon these documents. It was said that the presumption under Section 90 of the Evidence Act was not applicable as copies were produced and not the original documents. In our opinion this argument is well-founded. In Basant v. Brijraj(62 IA 180) it was held by the Privy Council that the presumption enacted in Section 90 of the Evidence Act can be applied only with regard to original documents and not copies thereof. The same view was taken by this Court in Harihar Prasad Singh v. Mst. of Munshi Nath Prasad(1956 SCR I at p. 9.). In view of the legal position it is manifest that the High Court ought not to have taken into consideration Exs. 2, 18 and 19. But even if Exs. 2, 18 and 19 are not taken into account the documentary and oral evidence produced on behalf of the respondents sufficiently establishes that the property in dispute was acquired by the Kureel community and has been used for charitable purposes for the benefit of the Kureel community.5. | 0[ds]In our opinion this argument is well-founded. In Basant v. Brijraj(62 IA 180) it was held by the Privy Council that the presumption enacted in Section 90 of the Evidence Act can be applied only with regard to original documents and not copies thereof. The same view was taken by this Court in Harihar Prasad Singh v. Mst. of Munshi Nath Prasad(1956 SCR I at p. 9.). In view of the legal position it is manifest that the High Court ought not to have taken into consideration Exs. 2, 18 and 19. But even if Exs. 2, 18 and 19 are not taken into account the documentary and oral evidence produced on behalf of the respondents sufficiently establishes that the property in dispute was acquired by the Kureel community and has been used for charitable purposes for the benefit of the Kureelare unable to accept the argument put forward on behalf of the appellant as correct. In the first place the sale deed, dated May 31, 1876 Ex. 1, proves that the property was purchased by the Panches of Kureel community. In the sale deed seven persons are mentioned as Panches of the community who purchased the property. Although the boundaries of the sale deed do not tally with the present boundaries of the disputed land there is the unrebutted statement of Jagannath Prasad, one of the plaintiffs witnesses, that this sale deed related to the property in dispute. The circumstance that the property was purchased expressly stating that it belongs to the Panches of the community is a very strong piece of evidence that the property was purchased for the Kureel community. There is also other documentary evidence to support this inference. In the Municipal assessment list for the year 1921 to 1927 Ex. 8 the property is mentioned in the name of Ram Dayal son of Debi, Madari and Kulasi and in Column 5 thereof it is described as Panchayati Dharamshala. In the assessment list Ex. 9 for the years 1938-43 the property is mentioned in the name of Tilakchand as manager and trustee, with a remark that the property was occupied by Sir Jwala Prasad Srivastava Public Library. | 0 | 816 | 399 | ### 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:
Ramaswami, J.1. This appeal is brought by special leave from the judgment of the Allahabad High Court, dated February 3, 1965 in First Appeal No. 216 of 1954.2. The respondent along with three others filed suit No. 4 of 1950 in the Court of District Judge, Kanpur, alleging that the property in dispute belonged to the Kureel community and the appellant was trustee thereof; that the property had been purchased by the Panches of the community for its benefit and other charitable purposes; that since its purchase it was used for that purpose; that the appellant had started claiming his own rights and had misappropriated the property. The suit was contested by the appellant who denied that the property was trust property. He claimed that he was exclusive owner of the property along with members of his own family, that the buildings standing over the land were constructed by him with his own funds and that he did not take any help either from donations from the Municipal Board or from the members of the public. The suit came up for hearing before the Additional District Judge, Kanpur, who by his judgment, dated May 5, 1954, dismissed the same. The respondents preferred an appeal to the High Court against the judgment of the Additional District Judge, Kanpur. The appeal came for hearing before Mr. Justice Bishamber Dayal who by his judgment, dated February 9, 1965 allowed the appeal, holding that there was a public trust. The case was remanded to the Additional District Judge for framing a proper scheme for the management of the property and for other reliefs.3. On behalf of the appellant it was argued by Mr. C. B. Agarwala that the property was ancestral property of the appellant and there was no public trust as alleged by the respondents. The argument was stressed that the finding of the High Court was based on a misreading of the documentary evidence and was wrong in law. We are unable to accept the argument put forward on behalf of the appellant as correct. In the first place the sale deed, dated May 31, 1876 Ex. 1, proves that the property was purchased by the Panches of Kureel community. In the sale deed seven persons are mentioned as Panches of the community who purchased the property. Although the boundaries of the sale deed do not tally with the present boundaries of the disputed land there is the unrebutted statement of Jagannath Prasad, one of the plaintiffs witnesses, that this sale deed related to the property in dispute. The circumstance that the property was purchased expressly stating that it belongs to the Panches of the community is a very strong piece of evidence that the property was purchased for the Kureel community. There is also other documentary evidence to support this inference. In the Municipal assessment list for the year 1921 to 1927 Ex. 8 the property is mentioned in the name of Ram Dayal son of Debi, Madari and Kulasi and in Column 5 thereof it is described as Panchayati Dharamshala. In the assessment list Ex. 9 for the years 1938-43 the property is mentioned in the name of Tilakchand as manager and trustee, with a remark that the property was occupied by Sir Jwala Prasad Srivastava Public Library.4. On behalf of the appellant it was contended that Exs. 2, 18 and 19 were not admissible in evidence and the High Court was wrong in relying upon these documents. It was said that the presumption under Section 90 of the Evidence Act was not applicable as copies were produced and not the original documents. In our opinion this argument is well-founded. In Basant v. Brijraj(62 IA 180) it was held by the Privy Council that the presumption enacted in Section 90 of the Evidence Act can be applied only with regard to original documents and not copies thereof. The same view was taken by this Court in Harihar Prasad Singh v. Mst. of Munshi Nath Prasad(1956 SCR I at p. 9.). In view of the legal position it is manifest that the High Court ought not to have taken into consideration Exs. 2, 18 and 19. But even if Exs. 2, 18 and 19 are not taken into account the documentary and oral evidence produced on behalf of the respondents sufficiently establishes that the property in dispute was acquired by the Kureel community and has been used for charitable purposes for the benefit of the Kureel community.5.
### Response:
0
### Explanation:
In our opinion this argument is well-founded. In Basant v. Brijraj(62 IA 180) it was held by the Privy Council that the presumption enacted in Section 90 of the Evidence Act can be applied only with regard to original documents and not copies thereof. The same view was taken by this Court in Harihar Prasad Singh v. Mst. of Munshi Nath Prasad(1956 SCR I at p. 9.). In view of the legal position it is manifest that the High Court ought not to have taken into consideration Exs. 2, 18 and 19. But even if Exs. 2, 18 and 19 are not taken into account the documentary and oral evidence produced on behalf of the respondents sufficiently establishes that the property in dispute was acquired by the Kureel community and has been used for charitable purposes for the benefit of the Kureelare unable to accept the argument put forward on behalf of the appellant as correct. In the first place the sale deed, dated May 31, 1876 Ex. 1, proves that the property was purchased by the Panches of Kureel community. In the sale deed seven persons are mentioned as Panches of the community who purchased the property. Although the boundaries of the sale deed do not tally with the present boundaries of the disputed land there is the unrebutted statement of Jagannath Prasad, one of the plaintiffs witnesses, that this sale deed related to the property in dispute. The circumstance that the property was purchased expressly stating that it belongs to the Panches of the community is a very strong piece of evidence that the property was purchased for the Kureel community. There is also other documentary evidence to support this inference. In the Municipal assessment list for the year 1921 to 1927 Ex. 8 the property is mentioned in the name of Ram Dayal son of Debi, Madari and Kulasi and in Column 5 thereof it is described as Panchayati Dharamshala. In the assessment list Ex. 9 for the years 1938-43 the property is mentioned in the name of Tilakchand as manager and trustee, with a remark that the property was occupied by Sir Jwala Prasad Srivastava Public Library.
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State of Uttar Pradesh Vs. Ram Swarup and Others | to a willing seller. So far as the sale deeds Exts. 1 and 2 are concerned, it is clear from the evidence that the purchaser could not have taken into account the benefit of the constructions when they offered to purchase at the prices agreed upon and incorporated in the sale-deeds. It seems that Dr. Nigam was keen to sell these plots, so that he could not expect any compensation for those constructions. In the circumstances, we cannot hold that the High Court committed any error in not deducting the price of the constructions when calculating the rate at which land was sold under these two sale-deeds. for the appellant referred us to two decisions In re South Eastern Railway Company v. London County Council, ((1915) 2 Ch D 252.) and Cedars RapidsManufacturing and Power Company v. Locoste and Others, ((1914) AC 569.) where it was held that when compensation is to be paid for compulsory acquisition, the price to the determined is that which the owner, whose land is acquired, would expect to be given to him. Relying on these cases, it was urged that, even when calculating the price of the exemplars Exts. 1 and 2, the price which Dr. Nigam expected should be taken into account and not the price which the purchasers in the two sale-deeds may have been expected to pay willingly. On the face of it, these two cases are not at all applicable for the principle sought to be supported on their basis. It is true that, when somebody is deprived of his land by compulsory acquisition, he must be paid the compensation by determining the value of the land to him, but that does not mean that, in calculating the market price, the value to the seller alone must be taken into account even in the case of a voluntary sale. Market value can only be properly ascertained by finding out what a willing purchaser would pay and what a willing seller would accept. The High Court, therefore, in adopting the principle and holding that the cost of constructions in the case of sales by Dr. Nigam must be ignored, did not commit any error. The High Court reduced the average rate worked out on the basis of the sale-deeds at Rs. 3.27 to Rs. 3/- on the basis that, after demolition of the constructions, the broken bricks available may represent benefit to such an extent as would cover price of that land at Rs. 27 per sq. ft. This decision, if at all, is favorable to the appellant inasmuch as it ignores the fact that, in order to get those broken bricks for use, the purchasers would have to spend money on labour required to dig out the existing constructions. In any case, the appellant can make no grievance at all that the High Court has ignored any deduction which should legitimately have been made in working out the rate.6. On the second point, we are unable to find any force in either of the two submissions made on behalf of the appellant. The argument was raised in the High Court as well as in this Court on the assumption that the land, which is being acquired, has a very large area, so that a number of roads, etc may have to be laid out in this land. In fact, the total area being acquired, as mentioned earlier is 84, 092 sq. ft. which is less than two acres. In order to develop land having an area of less than two acres, there can be no need for laying out extensive roads and lanes or a park. It is true that the Municipal Engineer, who appeared on behalf of the appellant, stated that, in case this area had been allowed to be developed privately, the Municipal Corporation would have required that a park should also be laid out; but we are unable to accept this statement from him, because, in a small area of less than two acres, only a few houses can be built and there would hardly be any need for leaving land for a park in order to avoid congestion. Of course, each house constructed may have to leave some open land within its compound when the land is divided into smaller plots for construction of separate houses. The roads and lanes also would not be required to be very extensive. In these circumstances, one road cutting across the first belt will surely be sufficient to enable traffic to go to the sub-plots in the second belt and, if that road be 20 ft. wide, it would only cover an area of 1, 000 sq. ft. out of the land comprised in the first belt. It may also be noticed that, according to the only map available on the record, the land acquired has not only Murtaza Hussain Road on one side of it, but it also has a ‘kachha’ road on another side, viz to the north of it. Access to the land in the second belt would also be, therefore, available by converting that ‘kachha’ road into a proper ‘pucca’ road, so that extra land will not be needed for construction of many roads or lanes. In the circumstances, we cannot say that he High Court committed any error in holding that an area of only 1, 000 sq. ft. out of the first belt and 25 per cent, of the land in the second belt should be left out for construction of roads, lanes, etc. We are also unable to accept that there is no principle which requires that, in calculating the market price of the land, account must be taken of the actual expenditure which will be incurred on construction of roads and lanes. That will be part of the development later which will naturally enhance the price of the land. Consequently, none of the points raised on behalf of the appellant for challenging the decree passed by the High Court has any force. | 0[ds]5. So far as the first point is concerned, it appears from the evidence that the constructions that were made by Dr. Nigam could not be of much use to the purchasers. On the other hand, as the evidence of Nand Kishore Avasthi, one of the purchasers, shows, he had actually to demolish part of the constructions and had to incur extra expenditure for that purpose. Shyam Lal, who is concerned with the other, also stated that the material used in the constructions would have to be dug out when he made his constructions in the land sold under the other. In calculating the rate for purpose of an exemplar, the courts have to determine the market price which a willing purchaser would be prepared to pay to a willing seller. So far as the sale deeds Exts. 1 and 2 are concerned, it is clear from the evidence that the purchaser could not have taken into account the benefit of the constructions when they offered to purchase at the prices agreed upon and incorporated in theit was urged that, even when calculating the price of the exemplars Exts. 1 and 2, the price which Dr. Nigam expected should be taken into account and not the price which the purchasers in the twos may have been expected to pay willingly.On the face of it, these two cases are not at all applicable for the principle sought to be supported on their basis. It is true that, when somebody is deprived of his land by compulsory acquisition, he must be paid the compensation by determining the value of the land to him, but that does not mean that, in calculating the market price, the value to the seller alone must be taken into account even in the case of a voluntary sale. Market value can only be properly ascertained by finding out what a willing purchaser would pay and what a willing seller would accept. The High Court, therefore, in adopting the principle and holding that the cost of constructions in the case of sales by Dr. Nigam must be ignored, did not commit any error. The High Court reduced the average rate worked out on the basis of thes at Rs. 3.27 to Rs. 3/on the basis that, after demolition of the constructions, the broken bricks available may represent benefit to such an extent as would cover price of that land at Rs. 27 per sq. ft. This decision, if at all, is favorable to the appellant inasmuch as it ignores the fact that, in order to get those broken bricks for use, the purchasers would have to spend money on labour required to dig out the existing constructions. In any case, the appellant can make no grievance at all that the High Court has ignored any deduction which should legitimately have been made in working out the rate.6. On the second point, we are unable to find any force inr of thetwo submissions made on behalf of the appellant. The argument was raised in the High Court as well as in this Court on the assumption that the land, which is being acquired, has a very large area, so that a number of roads, etc may have to be laid out in this land. In fact, the total area being acquired, as mentioned earlier is 84, 092 sq. ft. which is less than two acres. In order to develop land having an area of less than two acres, there can be no need for laying out extensive roads and lanes or a park. It is true that the Municipal Engineer, who appeared on behalf of the appellant, stated that, in case this area had been allowed to be developed privately, the Municipal Corporation would have required that a park should also be laid out; but we are unable to accept this statement from him, because, in a small area of less than two acres, only a few houses can be built and there would hardly be any need for leaving land for a park in order to avoid congestion. Of course, each house constructed may have to leave some open land within its compound when the land is divided into smaller plots for construction of separate houses. The roads and lanes also would not be required to be very extensive. In these circumstances, one road cutting across the first belt will surely be sufficient to enable traffic to go to thes in the second belt and, if that road be 20 ft. wide, it would only cover an area of 1, 000 sq. ft. out of the land comprised in the first belt. It may also be noticed that, according to the only map available on the record, the land acquired has not only Murtaza Hussain Road on one side of it, but it also has a ‘kachha’ road on another side, viz to the north of it. Access to the land in the second belt would also be, therefore, available by converting that ‘kachha’ road into a proper ‘pucca’ road, so that extra land will not be needed for construction of many roads or lanes. In the circumstances, we cannot say that he High Court committed any error in holding that an area of only 1, 000 sq. ft. out of the first belt and 25 per cent, of the land in the second belt should be left out for construction of roads, lanes, etc. We are also unable to accept that there is no principle which requires that, in calculating the market price of the land, account must be taken of the actual expenditure which will be incurred on construction of roads and lanes. That will be part of the development later which will naturally enhance the price of the land. Consequently, none of the points raised on behalf of the appellant for challenging the decree passed by the High Court has any force. | 0 | 2,656 | 1,091 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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to a willing seller. So far as the sale deeds Exts. 1 and 2 are concerned, it is clear from the evidence that the purchaser could not have taken into account the benefit of the constructions when they offered to purchase at the prices agreed upon and incorporated in the sale-deeds. It seems that Dr. Nigam was keen to sell these plots, so that he could not expect any compensation for those constructions. In the circumstances, we cannot hold that the High Court committed any error in not deducting the price of the constructions when calculating the rate at which land was sold under these two sale-deeds. for the appellant referred us to two decisions In re South Eastern Railway Company v. London County Council, ((1915) 2 Ch D 252.) and Cedars RapidsManufacturing and Power Company v. Locoste and Others, ((1914) AC 569.) where it was held that when compensation is to be paid for compulsory acquisition, the price to the determined is that which the owner, whose land is acquired, would expect to be given to him. Relying on these cases, it was urged that, even when calculating the price of the exemplars Exts. 1 and 2, the price which Dr. Nigam expected should be taken into account and not the price which the purchasers in the two sale-deeds may have been expected to pay willingly. On the face of it, these two cases are not at all applicable for the principle sought to be supported on their basis. It is true that, when somebody is deprived of his land by compulsory acquisition, he must be paid the compensation by determining the value of the land to him, but that does not mean that, in calculating the market price, the value to the seller alone must be taken into account even in the case of a voluntary sale. Market value can only be properly ascertained by finding out what a willing purchaser would pay and what a willing seller would accept. The High Court, therefore, in adopting the principle and holding that the cost of constructions in the case of sales by Dr. Nigam must be ignored, did not commit any error. The High Court reduced the average rate worked out on the basis of the sale-deeds at Rs. 3.27 to Rs. 3/- on the basis that, after demolition of the constructions, the broken bricks available may represent benefit to such an extent as would cover price of that land at Rs. 27 per sq. ft. This decision, if at all, is favorable to the appellant inasmuch as it ignores the fact that, in order to get those broken bricks for use, the purchasers would have to spend money on labour required to dig out the existing constructions. In any case, the appellant can make no grievance at all that the High Court has ignored any deduction which should legitimately have been made in working out the rate.6. On the second point, we are unable to find any force in either of the two submissions made on behalf of the appellant. The argument was raised in the High Court as well as in this Court on the assumption that the land, which is being acquired, has a very large area, so that a number of roads, etc may have to be laid out in this land. In fact, the total area being acquired, as mentioned earlier is 84, 092 sq. ft. which is less than two acres. In order to develop land having an area of less than two acres, there can be no need for laying out extensive roads and lanes or a park. It is true that the Municipal Engineer, who appeared on behalf of the appellant, stated that, in case this area had been allowed to be developed privately, the Municipal Corporation would have required that a park should also be laid out; but we are unable to accept this statement from him, because, in a small area of less than two acres, only a few houses can be built and there would hardly be any need for leaving land for a park in order to avoid congestion. Of course, each house constructed may have to leave some open land within its compound when the land is divided into smaller plots for construction of separate houses. The roads and lanes also would not be required to be very extensive. In these circumstances, one road cutting across the first belt will surely be sufficient to enable traffic to go to the sub-plots in the second belt and, if that road be 20 ft. wide, it would only cover an area of 1, 000 sq. ft. out of the land comprised in the first belt. It may also be noticed that, according to the only map available on the record, the land acquired has not only Murtaza Hussain Road on one side of it, but it also has a ‘kachha’ road on another side, viz to the north of it. Access to the land in the second belt would also be, therefore, available by converting that ‘kachha’ road into a proper ‘pucca’ road, so that extra land will not be needed for construction of many roads or lanes. In the circumstances, we cannot say that he High Court committed any error in holding that an area of only 1, 000 sq. ft. out of the first belt and 25 per cent, of the land in the second belt should be left out for construction of roads, lanes, etc. We are also unable to accept that there is no principle which requires that, in calculating the market price of the land, account must be taken of the actual expenditure which will be incurred on construction of roads and lanes. That will be part of the development later which will naturally enhance the price of the land. Consequently, none of the points raised on behalf of the appellant for challenging the decree passed by the High Court has any force.
### Response:
0
### Explanation:
5. So far as the first point is concerned, it appears from the evidence that the constructions that were made by Dr. Nigam could not be of much use to the purchasers. On the other hand, as the evidence of Nand Kishore Avasthi, one of the purchasers, shows, he had actually to demolish part of the constructions and had to incur extra expenditure for that purpose. Shyam Lal, who is concerned with the other, also stated that the material used in the constructions would have to be dug out when he made his constructions in the land sold under the other. In calculating the rate for purpose of an exemplar, the courts have to determine the market price which a willing purchaser would be prepared to pay to a willing seller. So far as the sale deeds Exts. 1 and 2 are concerned, it is clear from the evidence that the purchaser could not have taken into account the benefit of the constructions when they offered to purchase at the prices agreed upon and incorporated in theit was urged that, even when calculating the price of the exemplars Exts. 1 and 2, the price which Dr. Nigam expected should be taken into account and not the price which the purchasers in the twos may have been expected to pay willingly.On the face of it, these two cases are not at all applicable for the principle sought to be supported on their basis. It is true that, when somebody is deprived of his land by compulsory acquisition, he must be paid the compensation by determining the value of the land to him, but that does not mean that, in calculating the market price, the value to the seller alone must be taken into account even in the case of a voluntary sale. Market value can only be properly ascertained by finding out what a willing purchaser would pay and what a willing seller would accept. The High Court, therefore, in adopting the principle and holding that the cost of constructions in the case of sales by Dr. Nigam must be ignored, did not commit any error. The High Court reduced the average rate worked out on the basis of thes at Rs. 3.27 to Rs. 3/on the basis that, after demolition of the constructions, the broken bricks available may represent benefit to such an extent as would cover price of that land at Rs. 27 per sq. ft. This decision, if at all, is favorable to the appellant inasmuch as it ignores the fact that, in order to get those broken bricks for use, the purchasers would have to spend money on labour required to dig out the existing constructions. In any case, the appellant can make no grievance at all that the High Court has ignored any deduction which should legitimately have been made in working out the rate.6. On the second point, we are unable to find any force inr of thetwo submissions made on behalf of the appellant. The argument was raised in the High Court as well as in this Court on the assumption that the land, which is being acquired, has a very large area, so that a number of roads, etc may have to be laid out in this land. In fact, the total area being acquired, as mentioned earlier is 84, 092 sq. ft. which is less than two acres. In order to develop land having an area of less than two acres, there can be no need for laying out extensive roads and lanes or a park. It is true that the Municipal Engineer, who appeared on behalf of the appellant, stated that, in case this area had been allowed to be developed privately, the Municipal Corporation would have required that a park should also be laid out; but we are unable to accept this statement from him, because, in a small area of less than two acres, only a few houses can be built and there would hardly be any need for leaving land for a park in order to avoid congestion. Of course, each house constructed may have to leave some open land within its compound when the land is divided into smaller plots for construction of separate houses. The roads and lanes also would not be required to be very extensive. In these circumstances, one road cutting across the first belt will surely be sufficient to enable traffic to go to thes in the second belt and, if that road be 20 ft. wide, it would only cover an area of 1, 000 sq. ft. out of the land comprised in the first belt. It may also be noticed that, according to the only map available on the record, the land acquired has not only Murtaza Hussain Road on one side of it, but it also has a ‘kachha’ road on another side, viz to the north of it. Access to the land in the second belt would also be, therefore, available by converting that ‘kachha’ road into a proper ‘pucca’ road, so that extra land will not be needed for construction of many roads or lanes. In the circumstances, we cannot say that he High Court committed any error in holding that an area of only 1, 000 sq. ft. out of the first belt and 25 per cent, of the land in the second belt should be left out for construction of roads, lanes, etc. We are also unable to accept that there is no principle which requires that, in calculating the market price of the land, account must be taken of the actual expenditure which will be incurred on construction of roads and lanes. That will be part of the development later which will naturally enhance the price of the land. Consequently, none of the points raised on behalf of the appellant for challenging the decree passed by the High Court has any force.
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Indore Malwa United Mills Vs. Commissioner Of Income-Tax, (Central) Bombay | assessee by cheques, and this Court held that there was by necessary implication a request by the assessee to the debtor to send the cheques by post from Delhi, thus constituting the post office its agent for the purpose of receiving the payments. In the instant case, Cl. 9 of the terms and conditions of the contract read with the prescribed form of the bills and the instructions regarding payment show that the parties had agreed that the assessee would submit to the Government of India, Department of Supply, New Delhi, bills in the prescribed form requesting payment of the price of the supplies by cheques together with signed receipts and the Government of India would pay the price by crossed cheques drawn in favour of the assessee. Having regard to the fact that the assessee was at Indore and the Supply Department of the Government of India was at New Delhi, the parties must have intended that the Government would send the cheques to the assessee by post from New Delhi, and this inference is supported by the fact that the cheques used to be sent to the assessee by post. In the circumstances, there was an implied agreement between the parties that the Government of India would send the cheques to the assessee by post.9. Mr. Pathak argued that the assessee had requested the Government to pay money by cheques on a bank at Indore and as that request as not complied with and the Government of India sent instead cheques on the Reserve Bank of India, Bombay, there was no effective request by the assessee to the Government to send the cheque by post. But independently of any subsequent request by the assessee, the contract between the parties authorised the Government of India to pay the price by cheques drawn on the Reserve Bank of India, Bombay and imported a request by the assessee to the Government of India to send the cheques by post. The Government of India was entitled to ignore the subsequent request of the assessee for cheques on an Indore bank and the assessee received payments of the price as and when the cheques on the Reserve Bank of India, Bombay were posted in British India in accordance with the contract. In Thairlwall v. Great Northern Rly., (1910) 2 KB 509, Lord Coleridge, J., observed:"The real question is whether the posting of the warrant was payment of the amount of the dividend. To establish that it was, the defendants must prove a request by the plaintiff or an agreement between the plaintiff and the defendants that payment should be made by means of a warrant posted to the plaintiff. If such a request or agreement is proved, then payment is established by posting even although the instrument is lost in the post: (1886) 3 TLR 182.10. Mr. Pathak contended that the assessee and the Government of India had agreed that the sale proceeds would be paid to the assessee in Indore outside British India, and, therefore, the rule in M/s. Ogale Glass Works case, (1955) 1 SCR 185 : (AIR 1954 SC 429 ), did not apply, having regard to the decision in Commr. of Income-tax v. Patney and Co., (1959) 36 ITR 488 : (AIR 1959 SC 1070 ). We are not inclined to accept this contention. There is nothing on the record to show that there was any express agreement between the parties that the sale proceeds would be paid to the assessee at Indore.We are satisfied that the post office was the agent of the assessee for the purpose of receiving the cheques representing the sale proceeds and the assessee received the sale proceeds in British India where the cheques were posted, and consequently, the profits in respect of the sales were taxable under S. 4 (1) (a). The High Court, therefore, rightly answered the question in the affirmative.11. Mr. Pathak and following him Mr. Kolah submitted that the assessee would have led additional evidence to disprove the contention that the post office acted as its agent, had that contention been raised before the Tribunal, and the Revenue authorities should not, therefore, have been allowed by the High Court to raise the new contention. On being asked what additional evidence would have been led by the assessee, counsel said that the assessee would have led evidence to show (a) that the purchase orders were accepted by the assessee under compulsion of the Defence of India Act and Rules and consequently there was no voluntary request by the assessee for payment by cheques, and (b) the Imperial Bank of India, Indore, as the statutory agent of the Reserve Bank of India, Bombay, paid the amount of the cheques to the assessee at Indore. But counsel was unable to show any provision of the Defence of India Act or Rules under which the assessee was obliged to accept the purchase orders, and we need not, therefore, enquire into the correctness of counsels assumption that acceptance of the purchase orders under compulsion of law would have negatived the contention that the post office acted as the agent of the assessee. And if the assessee received payment by cheques posted in British India, the fact that subsequently the Imperial Bank of India, Indore, as the statutory agent of the Reserve Bank of India, Bombay paid the amount of the cheques at Indore would not take the case of the assessee out of the purview of Section 4 (1) (a).We are, therefore, satisfied that the assessee was not prevented from adducing any material evidence by reason of the omission of the Revenue authorities to argue the new point before the Tribunal. We do not, therefore, think it necessary to express any opinion on the question whether the Court should refuse to allow the Revenue authorities to raise a new contention where by reason of their omission to raise the contention before the Tribunal, the assessee had been prevented from adducing material evidence on the point.12 | 0[ds]Mr. Pathak contended that the assessee and the Government of India had agreed that the sale proceeds would be paid to the assessee in Indore outside British India, and, therefore, the rule in M/s. Ogale Glass Works case, (1955) 1 SCR 185 : (AIR 1954 SC 429 ), did not apply, having regard to the decision in Commr. of Income-tax v. Patney and Co., (1959) 36 ITR 488 : (AIR 1959 SC 1070 ). We are not inclined to accept this contention.There is nothing on the record to show that there was any express agreement between the parties that the sale proceeds would be paid to the assessee at Indore.We are satisfied that the post office was the agent of the assessee for the purpose of receiving the cheques representing the sale proceeds and the assessee received the sale proceeds in British India where the cheques were posted, and consequently, the profits in respect of the sales were taxable under S. 4 (1) (a). The High Court, therefore, rightly answered the question in the affirmative.11. Mr. Pathak and following him Mr. Kolah submitted that the assessee would have led additional evidence to disprove the contention that the post office acted as its agent, had that contention been raised before the Tribunal, and the Revenue authorities should not, therefore, have been allowed by the High Court to raise the new contention. On being asked what additional evidence would have been led by the assessee, counsel said that the assessee would have led evidence to show (a) that the purchase orders were accepted by the assessee under compulsion of the Defence of India Act and Rules and consequently there was no voluntary request by the assessee for payment by cheques, and (b) the Imperial Bank of India, Indore, as the statutory agent of the Reserve Bank of India, Bombay, paid the amount of the cheques to the assessee at Indore. But counsel was unable to show any provision of the Defence of India Act or Rules under which the assessee was obliged to accept the purchase orders, and we need not, therefore, enquire into the correctness of counsels assumption that acceptance of the purchase orders under compulsion of law would have negatived the contention that the post office acted as the agent of the assessee. And if the assessee received payment by cheques posted in British India, the fact that subsequently the Imperial Bank of India, Indore, as the statutory agent of the Reserve Bank of India, Bombay paid the amount of the cheques at Indore would not take the case of the assessee out of the purview of Section 4 (1) (a).We are, therefore, satisfied that the assessee was not prevented from adducing any material evidence by reason of the omission of the Revenue authorities to argue the new point before the Tribunal. We do not, therefore, think it necessary to express any opinion on the question whether the Court should refuse to allow the Revenue authorities to raise a new contention where by reason of their omission to raise the contention before the Tribunal, the assessee had been prevented from adducing material evidence on the point. | 0 | 3,335 | 592 | ### 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:
assessee by cheques, and this Court held that there was by necessary implication a request by the assessee to the debtor to send the cheques by post from Delhi, thus constituting the post office its agent for the purpose of receiving the payments. In the instant case, Cl. 9 of the terms and conditions of the contract read with the prescribed form of the bills and the instructions regarding payment show that the parties had agreed that the assessee would submit to the Government of India, Department of Supply, New Delhi, bills in the prescribed form requesting payment of the price of the supplies by cheques together with signed receipts and the Government of India would pay the price by crossed cheques drawn in favour of the assessee. Having regard to the fact that the assessee was at Indore and the Supply Department of the Government of India was at New Delhi, the parties must have intended that the Government would send the cheques to the assessee by post from New Delhi, and this inference is supported by the fact that the cheques used to be sent to the assessee by post. In the circumstances, there was an implied agreement between the parties that the Government of India would send the cheques to the assessee by post.9. Mr. Pathak argued that the assessee had requested the Government to pay money by cheques on a bank at Indore and as that request as not complied with and the Government of India sent instead cheques on the Reserve Bank of India, Bombay, there was no effective request by the assessee to the Government to send the cheque by post. But independently of any subsequent request by the assessee, the contract between the parties authorised the Government of India to pay the price by cheques drawn on the Reserve Bank of India, Bombay and imported a request by the assessee to the Government of India to send the cheques by post. The Government of India was entitled to ignore the subsequent request of the assessee for cheques on an Indore bank and the assessee received payments of the price as and when the cheques on the Reserve Bank of India, Bombay were posted in British India in accordance with the contract. In Thairlwall v. Great Northern Rly., (1910) 2 KB 509, Lord Coleridge, J., observed:"The real question is whether the posting of the warrant was payment of the amount of the dividend. To establish that it was, the defendants must prove a request by the plaintiff or an agreement between the plaintiff and the defendants that payment should be made by means of a warrant posted to the plaintiff. If such a request or agreement is proved, then payment is established by posting even although the instrument is lost in the post: (1886) 3 TLR 182.10. Mr. Pathak contended that the assessee and the Government of India had agreed that the sale proceeds would be paid to the assessee in Indore outside British India, and, therefore, the rule in M/s. Ogale Glass Works case, (1955) 1 SCR 185 : (AIR 1954 SC 429 ), did not apply, having regard to the decision in Commr. of Income-tax v. Patney and Co., (1959) 36 ITR 488 : (AIR 1959 SC 1070 ). We are not inclined to accept this contention. There is nothing on the record to show that there was any express agreement between the parties that the sale proceeds would be paid to the assessee at Indore.We are satisfied that the post office was the agent of the assessee for the purpose of receiving the cheques representing the sale proceeds and the assessee received the sale proceeds in British India where the cheques were posted, and consequently, the profits in respect of the sales were taxable under S. 4 (1) (a). The High Court, therefore, rightly answered the question in the affirmative.11. Mr. Pathak and following him Mr. Kolah submitted that the assessee would have led additional evidence to disprove the contention that the post office acted as its agent, had that contention been raised before the Tribunal, and the Revenue authorities should not, therefore, have been allowed by the High Court to raise the new contention. On being asked what additional evidence would have been led by the assessee, counsel said that the assessee would have led evidence to show (a) that the purchase orders were accepted by the assessee under compulsion of the Defence of India Act and Rules and consequently there was no voluntary request by the assessee for payment by cheques, and (b) the Imperial Bank of India, Indore, as the statutory agent of the Reserve Bank of India, Bombay, paid the amount of the cheques to the assessee at Indore. But counsel was unable to show any provision of the Defence of India Act or Rules under which the assessee was obliged to accept the purchase orders, and we need not, therefore, enquire into the correctness of counsels assumption that acceptance of the purchase orders under compulsion of law would have negatived the contention that the post office acted as the agent of the assessee. And if the assessee received payment by cheques posted in British India, the fact that subsequently the Imperial Bank of India, Indore, as the statutory agent of the Reserve Bank of India, Bombay paid the amount of the cheques at Indore would not take the case of the assessee out of the purview of Section 4 (1) (a).We are, therefore, satisfied that the assessee was not prevented from adducing any material evidence by reason of the omission of the Revenue authorities to argue the new point before the Tribunal. We do not, therefore, think it necessary to express any opinion on the question whether the Court should refuse to allow the Revenue authorities to raise a new contention where by reason of their omission to raise the contention before the Tribunal, the assessee had been prevented from adducing material evidence on the point.12
### Response:
0
### Explanation:
Mr. Pathak contended that the assessee and the Government of India had agreed that the sale proceeds would be paid to the assessee in Indore outside British India, and, therefore, the rule in M/s. Ogale Glass Works case, (1955) 1 SCR 185 : (AIR 1954 SC 429 ), did not apply, having regard to the decision in Commr. of Income-tax v. Patney and Co., (1959) 36 ITR 488 : (AIR 1959 SC 1070 ). We are not inclined to accept this contention.There is nothing on the record to show that there was any express agreement between the parties that the sale proceeds would be paid to the assessee at Indore.We are satisfied that the post office was the agent of the assessee for the purpose of receiving the cheques representing the sale proceeds and the assessee received the sale proceeds in British India where the cheques were posted, and consequently, the profits in respect of the sales were taxable under S. 4 (1) (a). The High Court, therefore, rightly answered the question in the affirmative.11. Mr. Pathak and following him Mr. Kolah submitted that the assessee would have led additional evidence to disprove the contention that the post office acted as its agent, had that contention been raised before the Tribunal, and the Revenue authorities should not, therefore, have been allowed by the High Court to raise the new contention. On being asked what additional evidence would have been led by the assessee, counsel said that the assessee would have led evidence to show (a) that the purchase orders were accepted by the assessee under compulsion of the Defence of India Act and Rules and consequently there was no voluntary request by the assessee for payment by cheques, and (b) the Imperial Bank of India, Indore, as the statutory agent of the Reserve Bank of India, Bombay, paid the amount of the cheques to the assessee at Indore. But counsel was unable to show any provision of the Defence of India Act or Rules under which the assessee was obliged to accept the purchase orders, and we need not, therefore, enquire into the correctness of counsels assumption that acceptance of the purchase orders under compulsion of law would have negatived the contention that the post office acted as the agent of the assessee. And if the assessee received payment by cheques posted in British India, the fact that subsequently the Imperial Bank of India, Indore, as the statutory agent of the Reserve Bank of India, Bombay paid the amount of the cheques at Indore would not take the case of the assessee out of the purview of Section 4 (1) (a).We are, therefore, satisfied that the assessee was not prevented from adducing any material evidence by reason of the omission of the Revenue authorities to argue the new point before the Tribunal. We do not, therefore, think it necessary to express any opinion on the question whether the Court should refuse to allow the Revenue authorities to raise a new contention where by reason of their omission to raise the contention before the Tribunal, the assessee had been prevented from adducing material evidence on the point.
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Sri Venkataramana Devaruand Others Vs. The State Of Mysore And Others(With Connected Petition) | to enter into a temple for purposes of worship, and that further it should be construed liberally in favour of the public. But it does not follow from this that that right is absolute and unlimited in character. No member of the Hindu public could, for example, claim as part of the rights protected by Art. 25 (2) (b) that a temple must be kept open for worship at all hours of the day and night, or that he should personally perform those services, which the Archakas alone could perform. It is again a well-known practice of religious institutions of all denominations to limit some of its services to persons who have been specially initiated, though at other times, the public in general are free to participate in the worship. Thus, the right recognised by Art. 25 (2) (b) must necessarily be subject to some limitations or regulations, and one such limitation or regulation must arise in the process of harmonizing the right conferred by Art. 25(2)(b) with that protected by Art. 26 (b). 32. We have held that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26 (b), must yield to the overriding right declared by Art.25(2)(b) in favour of the public to enter into a temple for worship.But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, then the question is not whether Art. 25 (2) (b) overrides that rights so as extinguish it, but whether it is possible - so to regulate rights of the persons protected by Art. 25 (2) (b) as to give effect to both the rights. If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25 (2) (b), then of course, on our conclusion that Art. 25 (2)(b) prevails as against Art. 26 (b), the denominational rights must vanish. But where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk of it, there is no reason why we should not so construe Art. 25 (2) (b) as to give effect to Art. 26 (b), and recognise the rights of the denomination in respect of matters which are strictly denominational, leaving the rights of the public in other respects unaffected. 33. The question then is one of fact as to whether the rights claimed by the appellants are strictly denominational in character, and whether after giving effect to them, what is left to the public of the right of worship is substantial.That the rights allowed by the High Court in favour of the appellants are purely denominational clearly appears from the evidence on record. P. W. 1 put forward two distinct rights on behalf of the Gowda Saraswath Brahmins. He firstly claimed that no one except members of his community had at any time the right to worship in the temple except with their permission; but he admitted that the members of the public were, in fact, worshipping and that permission had never been refused.This rights will be hit by Art. 25 (2) (b), and cannot be recognised. P. W. 1 put forward another and distinct right, namely, that during certain ceremonies and on special occasions, it was only members of the Gowda Saraswath Brahmin community that had the right to take part therein, and that on those occasions, all other persons would be excluded. This would clearly be a denominational right. Then, the question is whether if this right is recognised, what is left to the public of their rights under Art. 25 (2) (b) is substantial.The learned Solicitor-General himself conceded that even apart from the special occasions reserved for the Gowda Saraswath Brahmins, the other occasions of worship were sufficiently numerous and substantial, and we are in agreement with him. On the facts, therefore, it is possible to protect the rights of the appellants on those special occasions, without affecting the substance of the right declared by Art. 25 (2) (b); and, in our judgment, the decree passed by the High Court, strikes a just balance between the rights of the Hindu public under Art. 25 (2) (b), and those of the denomination of the appellants under Art. 26 (b) and is not open to objection. 34. Then, it is said that, the members of the public are not parties to the litigation, and that they, may not be bound by the result of it, and that, therefore, the matter should be set at large.Even if the members of the public are necessary parties to this litigation, that cannot stand in the way of the rights of the appellants being declared as against he parties to the action. Moreover, the suit was one to challenge the order of the Government holding that all classes of Hindus are entitled to worship in the suit temple. While the action was pending, the Constitution came into force, and as against the right claimed by the plaintiffs under Art. 26 (b), the Government put forward the rights of the Hindu public under Art. 25(2)(b). There has been a full trial of the issues involved, and a decision has been given, declaring the rights of the appellants and of the public. When the appellants applied for leave to appeal to this Court, that applications was resisted by the Government inter alia on the ground that the decree of the High Court was a proper decree reconising the rights there is no force in the objection that the public are not, as such, parties to the suit.It is their rights that have been agitated by the Government and not any of its rights. | 0[ds]We are unable to agree with this submission. The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a mater which was not in issue, and decide the rights of parties on the basis of that finding.We have accordingly declined to entertain this contention.We hold, agreeing with the Courts below, that the Sri Venkataramana Temple at Moolky is a public temple, and that it is within the operation of Act V of 1947Both the courts below have concurrently held that at the inception the temple was founded for the benefit of Gowda Saraswath Brahmins; but the Subordinate Judge held that as in course of time public endowments came to be made to the temple and all classes of Hindus were taking part freely in worship therein it might be presumed that they did so as a matter of right, and that, therefore, the temple must be held to have become dedicated to the Hindu public generally. The learned Judges of the High Court, however, came to a different conclusion. They followed the decision in Devarja Shenoy v. State of Madras (A) (supra), and held that the temple was a denominational oneNow, the facts found are that the members of this community migrated from Gowda Desa first to the Goa region and then to the south, that they carried with them their idols, and that when they were first settled in Moolky, a temple was founded and these idols were installed therein.We are therefore concerned with the Gowda Saraswath Brahmins not as a section of a community but as a sect associated with the foundation and maintenance of the Sri Venkataramana Temple,in other words, not as a mere denomination, but as a religious denomination. From the evidence of P. W. 1, it appears that the Gowda Saraswath Brahmins have three Gurus, that those in Moolky Petah are followers of the head of the Kashi Mutt, and that it is he that performs some of the important ceremonies in the temple. Exhibit A is a document of the year 1826-27. That shows that the head of the Kashi Mutt settled the disputes among the Archakas, and that they agreed to do the puja under his orders. The uncontradicted evidence of P. W. 1 also shows that during certain religious ceremonies, persons other than Gowda Saraswath Brahmins have been wholly excluded.This evidence leads irresistible to the conclusion that the temple is a denominational one, as contended for by the appellantsThe law on the subject is well settled.When there is a question as to the nature and extent of a dedication of a temple, that has to be determined on the terms of the deed of endowment if that is available, and where it is not, on other materials legally admissible, and proof of long and uninterrupted user would be cogent evidence of the terms thereof. Where, therefore, the original deed of endowment is not available and it is found that all persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right, and that the original foundation was for their benefit as well. But where it is proved by production of the deed of endowment or otherwise that the original dedication was for the benefit of a particular community, the fact that members of other communities were allowed freely to worship cannot lead to the inference that the dedication was for their benefit as well. For, as observed in Bhagwan Din v. Gir Har Saroop 67 Ind App 1 : (AIR 1940 PC 7 ) (B), "it would not in general be consonant with Hindus sentiments or practice that worshippers should be turned away". On the findings of the Court below that the foundation was originally for the benefit of the Gowda Saraswath Brahmin community, the fact that other classes of Hindus were admitted freely into the temple would not have the effect of enlarging the scope of the dedication into one for the public generally. On consideration of the evidence, we see no grounds for differing from the finding given by the learned Judges in the court below that the suit temple is a denominational temple founded for the benefit of the Gowda Saraswath Brahmins,supported as it is by the conclusion reached by another Bench of learned Judges in Devaraja Shenoy v. State of Madras (A) (supra). In this view, there is no need to discuss whether this issue is res judicata by reason of the decision in Writ Petition No. 668 of 195117. It being thus settled that matters of religion in Art. 26 (b) include even practices which are regarded by the community as part of its religion, we have now to consider whether exclusion of a person from entering into a temple for worship is a matter of religion according to Hindu Ceremonial Law. There has been difference of opinion among the writers as to whether image worship had a place in the religion of the Hindus, as revealed in the Vedas. On the one hand, we have hymns in praise of Gods, and on the other, we have highly philosophical passages in the Upanishads describing the Supreme Being as omnipotent, omniscient and omnipresent and transcending all names and forms. When we come to the Puranas, we find a marked change. The conception had become established of Trinity of Gods, Brahma, Vishnu and Siva as manifestations of the three aspects of creation, preservation and destruction attributed to the Supreme Being in the Upanishads, as, for example, in the following passage in the Taittiriya Upanishad, Brigu Valli, First Anuvaka :20. We have held that maters of religion in Art. 26 (b) include the right to exclude persons who are not entitled to participate in the worship according to the tenets of the institution. Under this Article, therefore, the appellants would be entitled to exclude all persons other than Gowda Saraswath Brahmins from entering into the temple for worship. Art. 25 (b) enacts that a law throwing open public temples to all classes of Hindus is valid. The word public includes, in its ordinary acceptation, any section of the public, and the suit temple would be a public institution within Art. 25 (2) (b), and S. 3 of the Act would therefore be within its protection. Thus, the two Articles appear to be apparently in conflict22. The true position, therefore, is that the excluded classes were all entitled to the benefit of the dedication, though their actual participation in the worship was insignificant. It was to remove this anomaly that legislation in Madras was directed for near a decade. First came the Malabar Temple Entry Act (Madras XX of 1938), Its object was stated to be "to remove the disabilities imposed by custom and usage on certain classes of Hindus in respect of their entry into, and offering worship in, Hindus temples". Section 2 (4) defined temple as "a place which is used as a place of public worship by the Hindu Community generally except excluded classes .........". Section 4 and 5 of the Act authorised the trustees to throw such temples open to person belonging to the excluded classes under certain conditions. This Act extended only to the District of Malabar. Next came the Madras Temple Entry Authorisation and Indemnity Act (Madras Act XXII of 1939). The preamble to the Act states that "there has been a growing volume of public opinion demanding the removal of disabilities imposed by custom and usage on certain classes of Hindus in respect of their entry into and offering worship in Hindu temples", and that "it is just and desirable to authorize the trustees in charge of such temples to throw them open to......the said classes". Section 3 of the Act authorised the trustees to throw open the temples to them. This Act extended to the whole of the Province of Madras. Then we come to the Act, which has given rise to this litigation, Act V of 1947. It has been already mentioned that, as originally passed, its object was to lift the ban on the entry into temples of communities which are excluded by custom from entering into them, and temple was also defined as a place dedicated to the Hindus generallyThere is considerable force in this argument. One of the problems which had been exercising the minds of the Hindu social reformers during the period preceding the Constitution was the existence in their midst of communities which were classed as untouchables. A custom which denied to large sections of Hindus the right to use public roads and institutions to which all the other Hindus had a right of access, purely on grounds of birth could not be considered reasonable and defended on any sound democratic principle, and efforts were being made to secure its abolition by legislation. This culminated in the enactment of Art. 17, which is as follows :" Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law."24. Construing Art. 25 (2) (b) in the light of Art. 17, it is arguable that its object was only to permit entry of the excluded classes into temples which were open to all other classes of Hindus, and that that would exclude its application to denominational temple25. The answer to this contention is that it is impossible to read any such limitation into the language of Art. 25 (2) (b).It applies in terms to all religious institutions of a public character without qualification or reserve. As already stated, public institutions would mean not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof, and denominational temples would be comprised therein. The language of the Article being plain and unambiguous, it is not open to us to read into it limitations which are not there, based on a priori reasoning as to the probable intention of the Legislature. Such intention can be gathered only from the words actually used in the statute; and in a Court of law, what is unexpressed has the same value as what is unintended. We must therefore hold that denominational institutions are within Art. 25 (2) (b)26. It is then said that if the expression "religious institutions of a public character" in Art. 25 (2) (b) is to be interpreted as including denominational institutions, it would clearly be in conflict with Art. 26 (b), and it is argued that in that situation, Art. 26 (b) must, on its true construction, be held to override Art. 25 (2) (b). Three grounds were urged in support of this contention, and they must now be examined. It was firstly argued that while Art. 25 was stated to be "subject to the other provisions of this Part" (Part III), there was no such limitation on the operation of Art. 26, and that, therefore, Art. 26 (b) must be held to prevail over Art. 25 (2) (b).But it has to be noticed that the limitation "subject to the other provisions of this Part" occurs only in Cl. (1) of Art. 25 and not in cl. (2). Clause (1) declares the rights of all persons to freedom of conscience and the right freely to profess, practise and propagate religion. It is this rights that is subject to the other provisions in the Fundamental Rights Chapter. One of the provisions to which the right declared in Art. 25 (1) is subject is Art. 25(2). A law, therefore, which falls within Art. 25(2)(b) will control the rights conferred by Art. 25(1), and the limitation in Art. 25(1) does not apply to that law27. It is next contended that while the right conferred under Art. 26 (d) is subject to any law which may be passed with reference thereto, there is no such restriction on the right conferred by Art. 26(b). It is accordingly argued that any law which infringes the right under Art. 26 (b) is invalid, and that S. 3 of Act V of 1947, must accordingly be held to have become void. Reliance is placed on the observations of this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (C) (supra) at page 1023 (of SCR) : (at pp. 289-290 of AIR), in support of this position.It is undoubtedly true that the right conferred under Art. 26 (b) cannot be abridged by any legislation, but the validity of S. 3 of Act V of 1947, does not depend on its own force but on Art. 25 (2) (b) of the Constitution. The very Constitution which is claimed to have rendered S. 3 of the Madras Act void as being repugnant to Art. 26 (b) has, in Art. 25 (2) (b), invested it with validity, and, therefore, the appellants can succeed only by establishing that Art. 25 (2) (b) itself is inoperative as against Art.26 (b)28. And lastly, it is argued that whereas Art. 25 deals with the rights of individuals, Art. 26 protects the rights of denominations, and that as what the appellants claim is the right of the Gowda Saraswath Brahmins to exclude those who do not belong to that denomination, that would remain unaffected by Art. 25 (2) (b). This contention ignores the true nature of the rights conferred by Art. 25 (2) (b).That, is a right conferred on "all classes and sections of Hindus" to enter into a public temple, and on the unqualified terms of that Article, that right must be available, whether it is sought to be exercised against an individual under Art. 25 (1) or against a denomination under Art. 26 (b). The fact is that though Art. 25 (1) deals with rights of individuals. Art. 25 (2) is much wider in its contents and has reference to the rights of communities, and controls both Art. 25 (1) and Art. 26 (b)29. The result then is that there are two provisions of equal authority, neither of them being subject to the otherThe rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect could be given to both. This is what is known as the rule of harmonious construction. Applying this rule, if the contention of the appellants is to be accepted, then Art. 25 (2) (b) will become wholly nugatory in its application to denominational temples, though, as stated above, the language of that Article includes them. On the other hand, if the contention of the respondents is accepted, then full effect can be given to Art. 26 (b) in all matters of religion, subject only to this that as regards one aspect of them, entry into a temple for worship, the rights declared under Art. 25 (2) (b) will prevail. While, in the former case, Art. 25 (2) (b) will be put wholly out of operation in the latter, effect can be given to both that provision and Art 26 (b).We must accordingly hold that Art. 26 (b) must be read subject to Art. 25 (2) (b)Those modifications refer to various ceremonies relating to the worship of the deity at specified times each day and on specified occasions. The evidence of P. W. 1 establishes that on those occasions, all persons other than Gowda Saraswath Brahmins were excluded from participation thereof. That evidence remains uncontradicted, and has been accepted by the learned Judges, and the correctness of their finding on this point has not been challenged before us. It is not in dispute that the modifications aforesaid relate, according to the view taken by this Court in Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar (C) (supra), to matters of religion, being intimately connected with the worship of the deity. On the finding that the suit temple is a denominational one, the modifications made in the High Court decree would be within the protection of Art. 26 (b)We agree that the right protected by Art. 25 (2) (b) is a right to enter into a temple for purposes of worship, and that further it should be construed liberally in favour of the public. But it does not follow from this that that right is absolute and unlimited in character. No member of the Hindu public could, for example, claim as part of the rights protected by Art. 25 (2) (b) that a temple must be kept open for worship at all hours of the day and night, or that he should personally perform those services, which the Archakas alone could perform. It is again a well-known practice of religious institutions of all denominations to limit some of its services to persons who have been specially initiated, though at other times, the public in general are free to participate in the worship. Thus, the right recognised by Art. 25 (2) (b) must necessarily be subject to some limitations or regulations, and one such limitation or regulation must arise in the process of harmonizing the right conferred by Art. 25(2)(b) with that protected by Art. 26 (b)32. We have held that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26 (b), must yield to the overriding right declared by Art.25(2)(b) in favour of the public to enter into a temple for worship.But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, then the question is not whether Art. 25 (2) (b) overrides that rights so as extinguish it, but whether it is possible - so to regulate rights of the persons protected by Art. 25 (2) (b) as to give effect to both the rights. If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25 (2) (b), then of course, on our conclusion that Art. 25 (2)(b) prevails as against Art. 26 (b), the denominational rights must vanish. But where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk of it, there is no reason why we should not so construe Art. 25 (2) (b) as to give effect to Art. 26 (b), and recognise the rights of the denomination in respect of matters which are strictly denominational, leaving the rights of the public in other respects unaffectedThat the rights allowed by the High Court in favour of the appellants are purely denominational clearly appears from the evidence on record. P. W. 1 put forward two distinct rights on behalf of the Gowda Saraswath Brahmins. He firstly claimed that no one except members of his community had at any time the right to worship in the temple except with their permission; but he admitted that the members of the public were, in fact, worshipping and that permission had never been refused.This rights will be hit by Art. 25 (2) (b), and cannot be recognised. P. W. 1 put forward another and distinct right, namely, that during certain ceremonies and on special occasions, it was only members of the Gowda Saraswath Brahmin community that had the right to take part therein, and that on those occasions, all other persons would be excluded. This would clearly be a denominational right. Then, the question is whether if this right is recognised, what is left to the public of their rights under Art. 25 (2) (b) is substantial.The learned Solicitor-General himself conceded that even apart from the special occasions reserved for the Gowda Saraswath Brahmins, the other occasions of worship were sufficiently numerous and substantial, and we are in agreement with him. On the facts, therefore, it is possible to protect the rights of the appellants on those special occasions, without affecting the substance of the right declared by Art. 25 (2) (b); and, in our judgment, the decree passed by the High Court, strikes a just balance between the rights of the Hindu public under Art. 25 (2) (b), and those of the denomination of the appellants under Art. 26 (b) and is not open to objection34. Then, it is said that, the members of the public are not parties to the litigation, and that they, may not be bound by the result of it, and that, therefore, the matter should be set at large.Even if the members of the public are necessary parties to this litigation, that cannot stand in the way of the rights of the appellants being declared as against he parties to the action. Moreover, the suit was one to challenge the order of the Government holding that all classes of Hindus are entitled to worship in the suit temple. While the action was pending, the Constitution came into force, and as against the right claimed by the plaintiffs under Art. 26 (b), the Government put forward the rights of the Hindu public under Art. 25(2)(b). There has been a full trial of the issues involved, and a decision has been given, declaring the rights of the appellants and of the public. When the appellants applied for leave to appeal to this Court, that applications was resisted by the Government inter alia on the ground that the decree of the High Court was a proper decree reconising the rights there is no force in the objection that the public are not, as such, parties to the suit.It is their rights that have been agitated by the Government and not any of its rights18. According to the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship, and purificatory ceremonies (known as Samprokashana) have to be performed for restoring the sanctity of the shrine : Vide Judgment of Sadasiva Aiyar, J., in Gopala Muppanar v. Subramania Aiyar (D) (supra). In Sankaralinga Nadan v. Raja Rajeswara Dorai, 35 Ind App 176 (PC) (E), it was held by the Privy Council affirming the judgment of the Madras High Court that a trustee who agreed to admit into the temple persons who were not entitled to worship therein, according to the Agamas and the custom of the temple was guilty of breach of trust.Thus, under the ceremonial law pertaining to temples, who are entitled to enter into them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion. The conclusion is also implicit in Art. 25 which after declaring that all persons are entitled freely to profess, practise and propagate religion, enacts that this should not affect the operation of any law throwing open Hindu religious institutions of a public character to all classes and sections of Hindu. We have dealt with this question at some length in view of the argument of the learned Solicitor-General that exclusion of persons from temple has not been shown to be a matter of religion with reference to the tenets of Hinduism. We must accordingly hold that if the rights of the appellants have to be determined solely with reference to Art. 26 (b),then S. 3 of Act V of 1947, should be held to be bad as infringing it17. It being thus settled that matters of religion in Art. 26 (b) include even practices which are regarded by the community as part of its religion, we have now to consider whether exclusion of a person from entering into a temple for worship is a matter of religion according to Hindu Ceremonial Law. There has been difference of opinion among the writers as to whether image worship had a place in the religion of the Hindus, as revealed in the Vedas. On the one hand, we have hymns in praise of Gods, and on the other, we have highly philosophical passages in the Upanishads describing the Supreme Being as omnipotent, omniscient and omnipresent and transcending all names and forms. When we come to the Puranas, we find a marked change. The conception had become established of Trinity of Gods, Brahma, Vishnu and Siva as manifestations of the three aspects of creation, preservation and destruction attributed to the Supreme Being in the Upanishads, as, for example, in the following passage in the Taittiriya Upanishad, Brigu Valli, First Anuvaka :"That from which all beings are born, by which they live and into which they enter and merge."The Gods have distinct forms ascribed to them and their worship at home and in temples is ordained as certain means of attaining salvation. These injunctions have had such a powerful hold over the minds of the people that daily worship of the deity in temple came to be regarded as one of the obligatory duties of a Hindu. It was during this period that temples were constructed all over the country dedicated to Vishnu, Rudra, Devi, Skanda, Ganesha and so forth, and worship in the temple can be said to have become the practical religion of all sections of the Hindus ever since. With the growth in importance of temples and of worship therein, more and more attention came to be devoted to the ceremonial law relating to the construction of temples, installation of idols therein and conduct of worship of the deity, and numerous are the treatises that came to be written for its exposition. These are known as Agamas, and there are as many as 28 of them relating to the Saiva temples, the most important of them being the Kamikagama, the Karanagama and the Suprabhedagama, while the Vikhanasa and the Pancharatra are the chief Agamas of the Vaishnavas. These Agamas, contain elaborate rules as to how the temple is to be constructed, where the principal deity is to be consecrated, and where the other Devatas are to be installed and where the several classes of worshippers are to stand and worship. | 0 | 10,684 | 5,161 | ### Instruction:
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to enter into a temple for purposes of worship, and that further it should be construed liberally in favour of the public. But it does not follow from this that that right is absolute and unlimited in character. No member of the Hindu public could, for example, claim as part of the rights protected by Art. 25 (2) (b) that a temple must be kept open for worship at all hours of the day and night, or that he should personally perform those services, which the Archakas alone could perform. It is again a well-known practice of religious institutions of all denominations to limit some of its services to persons who have been specially initiated, though at other times, the public in general are free to participate in the worship. Thus, the right recognised by Art. 25 (2) (b) must necessarily be subject to some limitations or regulations, and one such limitation or regulation must arise in the process of harmonizing the right conferred by Art. 25(2)(b) with that protected by Art. 26 (b). 32. We have held that the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26 (b), must yield to the overriding right declared by Art.25(2)(b) in favour of the public to enter into a temple for worship.But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, then the question is not whether Art. 25 (2) (b) overrides that rights so as extinguish it, but whether it is possible - so to regulate rights of the persons protected by Art. 25 (2) (b) as to give effect to both the rights. If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25 (2) (b), then of course, on our conclusion that Art. 25 (2)(b) prevails as against Art. 26 (b), the denominational rights must vanish. But where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk of it, there is no reason why we should not so construe Art. 25 (2) (b) as to give effect to Art. 26 (b), and recognise the rights of the denomination in respect of matters which are strictly denominational, leaving the rights of the public in other respects unaffected. 33. The question then is one of fact as to whether the rights claimed by the appellants are strictly denominational in character, and whether after giving effect to them, what is left to the public of the right of worship is substantial.That the rights allowed by the High Court in favour of the appellants are purely denominational clearly appears from the evidence on record. P. W. 1 put forward two distinct rights on behalf of the Gowda Saraswath Brahmins. He firstly claimed that no one except members of his community had at any time the right to worship in the temple except with their permission; but he admitted that the members of the public were, in fact, worshipping and that permission had never been refused.This rights will be hit by Art. 25 (2) (b), and cannot be recognised. P. W. 1 put forward another and distinct right, namely, that during certain ceremonies and on special occasions, it was only members of the Gowda Saraswath Brahmin community that had the right to take part therein, and that on those occasions, all other persons would be excluded. This would clearly be a denominational right. Then, the question is whether if this right is recognised, what is left to the public of their rights under Art. 25 (2) (b) is substantial.The learned Solicitor-General himself conceded that even apart from the special occasions reserved for the Gowda Saraswath Brahmins, the other occasions of worship were sufficiently numerous and substantial, and we are in agreement with him. On the facts, therefore, it is possible to protect the rights of the appellants on those special occasions, without affecting the substance of the right declared by Art. 25 (2) (b); and, in our judgment, the decree passed by the High Court, strikes a just balance between the rights of the Hindu public under Art. 25 (2) (b), and those of the denomination of the appellants under Art. 26 (b) and is not open to objection. 34. Then, it is said that, the members of the public are not parties to the litigation, and that they, may not be bound by the result of it, and that, therefore, the matter should be set at large.Even if the members of the public are necessary parties to this litigation, that cannot stand in the way of the rights of the appellants being declared as against he parties to the action. Moreover, the suit was one to challenge the order of the Government holding that all classes of Hindus are entitled to worship in the suit temple. While the action was pending, the Constitution came into force, and as against the right claimed by the plaintiffs under Art. 26 (b), the Government put forward the rights of the Hindu public under Art. 25(2)(b). There has been a full trial of the issues involved, and a decision has been given, declaring the rights of the appellants and of the public. When the appellants applied for leave to appeal to this Court, that applications was resisted by the Government inter alia on the ground that the decree of the High Court was a proper decree reconising the rights there is no force in the objection that the public are not, as such, parties to the suit.It is their rights that have been agitated by the Government and not any of its rights.
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(2) (b); and, in our judgment, the decree passed by the High Court, strikes a just balance between the rights of the Hindu public under Art. 25 (2) (b), and those of the denomination of the appellants under Art. 26 (b) and is not open to objection34. Then, it is said that, the members of the public are not parties to the litigation, and that they, may not be bound by the result of it, and that, therefore, the matter should be set at large.Even if the members of the public are necessary parties to this litigation, that cannot stand in the way of the rights of the appellants being declared as against he parties to the action. Moreover, the suit was one to challenge the order of the Government holding that all classes of Hindus are entitled to worship in the suit temple. While the action was pending, the Constitution came into force, and as against the right claimed by the plaintiffs under Art. 26 (b), the Government put forward the rights of the Hindu public under Art. 25(2)(b). There has been a full trial of the issues involved, and a decision has been given, declaring the rights of the appellants and of the public. When the appellants applied for leave to appeal to this Court, that applications was resisted by the Government inter alia on the ground that the decree of the High Court was a proper decree reconising the rights there is no force in the objection that the public are not, as such, parties to the suit.It is their rights that have been agitated by the Government and not any of its rights18. According to the Agamas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship, and purificatory ceremonies (known as Samprokashana) have to be performed for restoring the sanctity of the shrine : Vide Judgment of Sadasiva Aiyar, J., in Gopala Muppanar v. Subramania Aiyar (D) (supra). In Sankaralinga Nadan v. Raja Rajeswara Dorai, 35 Ind App 176 (PC) (E), it was held by the Privy Council affirming the judgment of the Madras High Court that a trustee who agreed to admit into the temple persons who were not entitled to worship therein, according to the Agamas and the custom of the temple was guilty of breach of trust.Thus, under the ceremonial law pertaining to temples, who are entitled to enter into them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion. The conclusion is also implicit in Art. 25 which after declaring that all persons are entitled freely to profess, practise and propagate religion, enacts that this should not affect the operation of any law throwing open Hindu religious institutions of a public character to all classes and sections of Hindu. We have dealt with this question at some length in view of the argument of the learned Solicitor-General that exclusion of persons from temple has not been shown to be a matter of religion with reference to the tenets of Hinduism. We must accordingly hold that if the rights of the appellants have to be determined solely with reference to Art. 26 (b),then S. 3 of Act V of 1947, should be held to be bad as infringing it17. It being thus settled that matters of religion in Art. 26 (b) include even practices which are regarded by the community as part of its religion, we have now to consider whether exclusion of a person from entering into a temple for worship is a matter of religion according to Hindu Ceremonial Law. There has been difference of opinion among the writers as to whether image worship had a place in the religion of the Hindus, as revealed in the Vedas. On the one hand, we have hymns in praise of Gods, and on the other, we have highly philosophical passages in the Upanishads describing the Supreme Being as omnipotent, omniscient and omnipresent and transcending all names and forms. When we come to the Puranas, we find a marked change. The conception had become established of Trinity of Gods, Brahma, Vishnu and Siva as manifestations of the three aspects of creation, preservation and destruction attributed to the Supreme Being in the Upanishads, as, for example, in the following passage in the Taittiriya Upanishad, Brigu Valli, First Anuvaka :"That from which all beings are born, by which they live and into which they enter and merge."The Gods have distinct forms ascribed to them and their worship at home and in temples is ordained as certain means of attaining salvation. These injunctions have had such a powerful hold over the minds of the people that daily worship of the deity in temple came to be regarded as one of the obligatory duties of a Hindu. It was during this period that temples were constructed all over the country dedicated to Vishnu, Rudra, Devi, Skanda, Ganesha and so forth, and worship in the temple can be said to have become the practical religion of all sections of the Hindus ever since. With the growth in importance of temples and of worship therein, more and more attention came to be devoted to the ceremonial law relating to the construction of temples, installation of idols therein and conduct of worship of the deity, and numerous are the treatises that came to be written for its exposition. These are known as Agamas, and there are as many as 28 of them relating to the Saiva temples, the most important of them being the Kamikagama, the Karanagama and the Suprabhedagama, while the Vikhanasa and the Pancharatra are the chief Agamas of the Vaishnavas. These Agamas, contain elaborate rules as to how the temple is to be constructed, where the principal deity is to be consecrated, and where the other Devatas are to be installed and where the several classes of worshippers are to stand and worship.
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State Of Karnataka Vs. Azad Coach Builders Pvt. Ltd. | was no direct linkage or causal connection between the export by foreign exporter and the receipt of the imported goods in India by the local users and hence the integrity of the entire transaction got disrupted and substituted by two independent transactions, one between the canalizing agency and the foreign exporter which made the canalizing agency the owner of the goods imported and the other between the canalizing agency and the local users for whose benefit the goods were imported by the canalizing agency. In such a situation, the Court held that the sale by the canalizing agency to the local users would not be a sale in the course of import but would be a sale because of or by import which would not be covered by the exemption provision of Section 5(2) of the Central Sales Tax Act. The Court further noticed that a sale or purchase can be treated to be in the course of import if there is a direct privity of contract between the Indian importer and the foreign exporter and the intermediary through which such import is effected merely acts as an agent or a contractor for and on behalf of Indian importer. 23. When we analyze all these decisions in the light of the Statement of Objects and Reasons of the Amending Act 103 of 1976 and on the interpretation placed on Section 5(3) of the CST Act, the following principles emerge:- To constitute a sale in the course of export there must be an intention on the part of both the buyer and the seller to export;- There must be obligation to export, and there must be an actual export.- The obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export.- To occasion export there must exist such a bond between the contract of sale and the actual exportation, that each link is inextricably connected with the one immediately preceding it, without which a transaction sale cannot be called a sale in the course of export of goods out of the territory of India.24. The phrase sale in the course of export comprises in itself three essentials: (i) that there must be a sale: (ii) that goods must actually be exported and (iii) that the sale must be a part and parcel of the export. The word `occasion is used as a verb and means to cause or to be the immediate cause of. Therefore, the words `occasioning the export mean the factors, which were immediate course of export. The words `to comply with the agreement or order mean all transactions which are inextricably linked with the agreement or order occasioning that export. The expression `in relation to are words of comprehensiveness, which might both have a direct significance as well as an indirect significance, depending on the context in which it is used and they are not words of restrictive content and ought not be so construed. 25. Therefore, the test to be applied is, whether there is an in-severable link between the local sale or purchase on export and if it is clear that the local sale or purchase between the parties is inextricably linked with the export of the goods, then a claim under Section 5(3) for exemption from State Sales Tax is justified, in which case, the same goods theory has no application. 26. The facts of this case clearly reveal that the transaction between the assessee and the exporter is inextricably connected with the export of the goods to Sri Lanka. The communication between the foreign buyer and the exporter reveals that the foreign buyer wanted the bus bodies to be manufactured by the assessee under the specifications stipulated by the foreign buyer. The bus bodies constructed and manufactured by the assessee could not be of any use in the local market, but were specifically manufactured to suit the specifications and requirements of the foreign buyer. In the Purchase Order placed on the assessee by the exporter, it is specifically indicated that the bus bodies have to be manufactured in accordance with the specifications provided by the foreign buyer, failure to do so might result in cancellation of the export order. The assessee in this case has succeeded in showing that the sale of bus bodies have occasioned the export of goods. When the transaction between the assessee and the exporter and the transaction between the exporter and foreign buyer are inextricably connected with each other, in our view, the `same goods theory has no application. We may also indicate that the burden is entirely on the assessee to establish the link in transactions relating to sale or purchase of goods and to establish that the penultimate sale is inextricably connected with the export of goods by the exporter to the foreign buyer, which in this case the assessee has succeeded in establishing. 27. Mr. T. S. Narasimha, learned counsel appearing for Respondent No. 2 contended that any penultimate sale made in furtherance of export, irrespective of the nature of the goods, would also be covered, is too tall a proposition to be accepted. It all depends on the question as to whether the sale or purchase is inextricably connected with the export of goods and not a remote connection as tried to be projected by the counsel. The connection between the penultimate sale and the export of goods should not be casual, accidental or fortuitous, but real, intimate and inter linked, which depends upon the nature of the agreement the exporter has with the foreign buyer and the local manufacturer, the integrated nature of the transactions and the nexus between the penultimate sale and the export sale. In the facts and circumstances of this case, we are satisfied that the assessee has succeeded in satisfying those tests and hence, eligible for exemption under sub-section (3) of Section 5 of the CST Act. 28. | 0[ds]In this connection, it is useful to refer to the judgment of this Court in Deputy Commissioner of Agricultural Income Tax and Sales Tax, Ernakulam v. Indian Explosives Ltd. (1985) 4 SCC 119 , wherein this Court was dealing with the question whether the respondent-assessee was concerned with sale transactions in the course of import of chemicals, dyes etc. The modus operandi of the assessee in that case was to the effect that local purchasers used to place orders with the respondent quoting their Import Licence Numbers in accordance with their pre-existing contracts with the respondent. The respondent then placed orders with the foreign supplier for the supply of the goods and in such orders the name of the local purchaser who required the goods as also its licence numbers, were specified; the actual import was done on the strength of two documents like (a) the Actual Users Import Licence and (b) Letter of Authority issued by Chief Controller of Imports and Exports whereunder the local purchaser was authorized to permit the respondent-assessee on his behalf to import the goods, to open letters of credit and make remittance of foreign exchange against the said licence to the extent of value specified therein. The Court held that there was an integral connection between the sale to the local purchaser and the actual import of the goods from the foreign supplier. The movement of goods from foreign country like United States to India was in pursuance of the conditions of the pre-existing contract of sale between the respondent-assessee and the local purchaser. It was noticed that the import of the goods by the respondent assessee was for and on behalf of the local purchaser and the respondent-assessee could not, without committing a breach of the contract, divert the goods so imported for any other purpose. The Court, therefore, concluded that in order that the sale should be one in the course of import it must occasion the import and to occasion the import there must be integral connection or inextricable link between the first sale following the import and the actual import provided by an obligation to import arising from statute, contract or mutual understanding or nature of the transaction which links the sale to import which cannot, without committing a breach of statute or contract or mutual understanding, be snapped.When we analyze all these decisions in the light of the Statement of Objects and Reasons of the Amending Act 103 of 1976 and on the interpretation placed on Section 5(3) of the CST Act, the following principles emerge:- To constitute a sale in the course of export there must be an intention on the part of both the buyer and the seller to export;- There must be obligation to export, and there must be an actual export.- The obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export.- To occasion export there must exist such a bond between the contract of sale and the actual exportation, that each link is inextricably connected with the one immediately preceding it, without which a transaction sale cannot be called a sale in the course of export of goods out of the territory of India.24. The phrase sale in the course of export comprises in itself three essentials: (i) that there must be a sale: (ii) that goods must actually be exported and (iii) that the sale must be a part and parcel of the export. The word `occasion is used as a verb and means to cause or to be the immediate cause of. Therefore, the words `occasioning the export mean the factors, which were immediate course of export. The words `to comply with the agreement or order mean all transactions which are inextricably linked with the agreement or order occasioning that export. The expression `in relation to are words of comprehensiveness, which might both have a direct significance as well as an indirect significance, depending on the context in which it is used and they are not words of restrictive content and ought not be so construed.Therefore, the test to be applied is, whether there is an in-severable link between the local sale or purchase on export and if it is clear that the local sale or purchase between the parties is inextricably linked with the export of the goods, then a claim under Section 5(3) for exemption from State Sales Tax is justified, in which case, the same goods theory has no application.The facts of this case clearly reveal that the transaction between the assessee and the exporter is inextricably connected with the export of the goods to Sri Lanka. The communication between the foreign buyer and the exporter reveals that the foreign buyer wanted the bus bodies to be manufactured by the assessee under the specifications stipulated by the foreign buyer. The bus bodies constructed and manufactured by the assessee could not be of any use in the local market, but were specifically manufactured to suit the specifications and requirements of the foreign buyer. In the Purchase Order placed on the assessee by the exporter, it is specifically indicated that the bus bodies have to be manufactured in accordance with the specifications provided by the foreign buyer, failure to do so might result in cancellation of the export order. The assessee in this case has succeeded in showing that the sale of bus bodies have occasioned the export of goods. When the transaction between the assessee and the exporter and the transaction between the exporter and foreign buyer are inextricably connected with each other, in our view, the `same goods theory has no application.We may also indicate that the burden is entirely on the assessee to establish the link in transactions relating to sale or purchase of goods and to establish that the penultimate sale is inextricably connected with the export of goods by the exporter to the foreign buyer, which in this case the assessee has succeeded in establishing.In the facts and circumstances of this case, we are satisfied that the assessee has succeeded in satisfying those tests and hence, eligible for exemption under sub-section (3) of Section 5 of the CST | 0 | 5,067 | 1,135 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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was no direct linkage or causal connection between the export by foreign exporter and the receipt of the imported goods in India by the local users and hence the integrity of the entire transaction got disrupted and substituted by two independent transactions, one between the canalizing agency and the foreign exporter which made the canalizing agency the owner of the goods imported and the other between the canalizing agency and the local users for whose benefit the goods were imported by the canalizing agency. In such a situation, the Court held that the sale by the canalizing agency to the local users would not be a sale in the course of import but would be a sale because of or by import which would not be covered by the exemption provision of Section 5(2) of the Central Sales Tax Act. The Court further noticed that a sale or purchase can be treated to be in the course of import if there is a direct privity of contract between the Indian importer and the foreign exporter and the intermediary through which such import is effected merely acts as an agent or a contractor for and on behalf of Indian importer. 23. When we analyze all these decisions in the light of the Statement of Objects and Reasons of the Amending Act 103 of 1976 and on the interpretation placed on Section 5(3) of the CST Act, the following principles emerge:- To constitute a sale in the course of export there must be an intention on the part of both the buyer and the seller to export;- There must be obligation to export, and there must be an actual export.- The obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export.- To occasion export there must exist such a bond between the contract of sale and the actual exportation, that each link is inextricably connected with the one immediately preceding it, without which a transaction sale cannot be called a sale in the course of export of goods out of the territory of India.24. The phrase sale in the course of export comprises in itself three essentials: (i) that there must be a sale: (ii) that goods must actually be exported and (iii) that the sale must be a part and parcel of the export. The word `occasion is used as a verb and means to cause or to be the immediate cause of. Therefore, the words `occasioning the export mean the factors, which were immediate course of export. The words `to comply with the agreement or order mean all transactions which are inextricably linked with the agreement or order occasioning that export. The expression `in relation to are words of comprehensiveness, which might both have a direct significance as well as an indirect significance, depending on the context in which it is used and they are not words of restrictive content and ought not be so construed. 25. Therefore, the test to be applied is, whether there is an in-severable link between the local sale or purchase on export and if it is clear that the local sale or purchase between the parties is inextricably linked with the export of the goods, then a claim under Section 5(3) for exemption from State Sales Tax is justified, in which case, the same goods theory has no application. 26. The facts of this case clearly reveal that the transaction between the assessee and the exporter is inextricably connected with the export of the goods to Sri Lanka. The communication between the foreign buyer and the exporter reveals that the foreign buyer wanted the bus bodies to be manufactured by the assessee under the specifications stipulated by the foreign buyer. The bus bodies constructed and manufactured by the assessee could not be of any use in the local market, but were specifically manufactured to suit the specifications and requirements of the foreign buyer. In the Purchase Order placed on the assessee by the exporter, it is specifically indicated that the bus bodies have to be manufactured in accordance with the specifications provided by the foreign buyer, failure to do so might result in cancellation of the export order. The assessee in this case has succeeded in showing that the sale of bus bodies have occasioned the export of goods. When the transaction between the assessee and the exporter and the transaction between the exporter and foreign buyer are inextricably connected with each other, in our view, the `same goods theory has no application. We may also indicate that the burden is entirely on the assessee to establish the link in transactions relating to sale or purchase of goods and to establish that the penultimate sale is inextricably connected with the export of goods by the exporter to the foreign buyer, which in this case the assessee has succeeded in establishing. 27. Mr. T. S. Narasimha, learned counsel appearing for Respondent No. 2 contended that any penultimate sale made in furtherance of export, irrespective of the nature of the goods, would also be covered, is too tall a proposition to be accepted. It all depends on the question as to whether the sale or purchase is inextricably connected with the export of goods and not a remote connection as tried to be projected by the counsel. The connection between the penultimate sale and the export of goods should not be casual, accidental or fortuitous, but real, intimate and inter linked, which depends upon the nature of the agreement the exporter has with the foreign buyer and the local manufacturer, the integrated nature of the transactions and the nexus between the penultimate sale and the export sale. In the facts and circumstances of this case, we are satisfied that the assessee has succeeded in satisfying those tests and hence, eligible for exemption under sub-section (3) of Section 5 of the CST Act. 28.
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was concerned with sale transactions in the course of import of chemicals, dyes etc. The modus operandi of the assessee in that case was to the effect that local purchasers used to place orders with the respondent quoting their Import Licence Numbers in accordance with their pre-existing contracts with the respondent. The respondent then placed orders with the foreign supplier for the supply of the goods and in such orders the name of the local purchaser who required the goods as also its licence numbers, were specified; the actual import was done on the strength of two documents like (a) the Actual Users Import Licence and (b) Letter of Authority issued by Chief Controller of Imports and Exports whereunder the local purchaser was authorized to permit the respondent-assessee on his behalf to import the goods, to open letters of credit and make remittance of foreign exchange against the said licence to the extent of value specified therein. The Court held that there was an integral connection between the sale to the local purchaser and the actual import of the goods from the foreign supplier. The movement of goods from foreign country like United States to India was in pursuance of the conditions of the pre-existing contract of sale between the respondent-assessee and the local purchaser. It was noticed that the import of the goods by the respondent assessee was for and on behalf of the local purchaser and the respondent-assessee could not, without committing a breach of the contract, divert the goods so imported for any other purpose. The Court, therefore, concluded that in order that the sale should be one in the course of import it must occasion the import and to occasion the import there must be integral connection or inextricable link between the first sale following the import and the actual import provided by an obligation to import arising from statute, contract or mutual understanding or nature of the transaction which links the sale to import which cannot, without committing a breach of statute or contract or mutual understanding, be snapped.When we analyze all these decisions in the light of the Statement of Objects and Reasons of the Amending Act 103 of 1976 and on the interpretation placed on Section 5(3) of the CST Act, the following principles emerge:- To constitute a sale in the course of export there must be an intention on the part of both the buyer and the seller to export;- There must be obligation to export, and there must be an actual export.- The obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export.- To occasion export there must exist such a bond between the contract of sale and the actual exportation, that each link is inextricably connected with the one immediately preceding it, without which a transaction sale cannot be called a sale in the course of export of goods out of the territory of India.24. The phrase sale in the course of export comprises in itself three essentials: (i) that there must be a sale: (ii) that goods must actually be exported and (iii) that the sale must be a part and parcel of the export. The word `occasion is used as a verb and means to cause or to be the immediate cause of. Therefore, the words `occasioning the export mean the factors, which were immediate course of export. The words `to comply with the agreement or order mean all transactions which are inextricably linked with the agreement or order occasioning that export. The expression `in relation to are words of comprehensiveness, which might both have a direct significance as well as an indirect significance, depending on the context in which it is used and they are not words of restrictive content and ought not be so construed.Therefore, the test to be applied is, whether there is an in-severable link between the local sale or purchase on export and if it is clear that the local sale or purchase between the parties is inextricably linked with the export of the goods, then a claim under Section 5(3) for exemption from State Sales Tax is justified, in which case, the same goods theory has no application.The facts of this case clearly reveal that the transaction between the assessee and the exporter is inextricably connected with the export of the goods to Sri Lanka. The communication between the foreign buyer and the exporter reveals that the foreign buyer wanted the bus bodies to be manufactured by the assessee under the specifications stipulated by the foreign buyer. The bus bodies constructed and manufactured by the assessee could not be of any use in the local market, but were specifically manufactured to suit the specifications and requirements of the foreign buyer. In the Purchase Order placed on the assessee by the exporter, it is specifically indicated that the bus bodies have to be manufactured in accordance with the specifications provided by the foreign buyer, failure to do so might result in cancellation of the export order. The assessee in this case has succeeded in showing that the sale of bus bodies have occasioned the export of goods. When the transaction between the assessee and the exporter and the transaction between the exporter and foreign buyer are inextricably connected with each other, in our view, the `same goods theory has no application.We may also indicate that the burden is entirely on the assessee to establish the link in transactions relating to sale or purchase of goods and to establish that the penultimate sale is inextricably connected with the export of goods by the exporter to the foreign buyer, which in this case the assessee has succeeded in establishing.In the facts and circumstances of this case, we are satisfied that the assessee has succeeded in satisfying those tests and hence, eligible for exemption under sub-section (3) of Section 5 of the CST
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Royal Orchid Hotels Ltd Vs. Kamat Hotels (India) Ltd. & Others | consideration the Deputy Registrar concluded that the petitioner was not the first user of the logo/mark Royal Orchid as claimed and, in fact, the mark/logo Orchid was being used by the respondent No.1 from an anterior date.6. The similarity of the two logos/marks was also taken into account by the Deputy Registrar in refusing registration to the petitioner.7. The IPAB, in appeal, reversed the aforesaid conclusion of the Deputy Registrar primarily on the ground that the petitioner-company had been incorporated as Royal Orchid Hotels Limited after effecting a change of its name in the year 1997 pursuant to the companys resolution dated 30.09.1996 which is prior in point of time to the use of the mark of the respondent no.1.8. The IPAB also was of the view that considering the class of customers that would be serviced by the parties before it, no confusion is likely to be caused by use of two logos/marks i.e. Royal Orchid Hotels Limited and Orchid respectively. This is an additional ground on which the petitioners claim for registration in class 42 was allowed by the learned IPAB.9. In appeal by the respondents, the High Court framed the following two questions for decision ;1. Who is the prior user of the word "Orchid/Royal Orchid" ?2. Whether the trademark "Orchid" of the third respondent are deceptively similar and the adoption of the said trademark by the third respondent is dishonest ?"10. A reading of the discussions on question No.1 by the High Court goes to show that the conclusion recorded in the impugned order of the High Court dated 11.02.2015 is based on a detailed consideration of the materials brought on record by both the parties. The conclusion that the petitioner had not demonstrated that it was the first user of the logo/mark and that it is the respondent who is the first user was arrived at on such consideration. In fact, from the very application for registration filed by the petitioner on 22.06.2004 it is evident that the petitioner had claimed user since 03.11.1999. The High Court also came to the conclusion that Royal Orchid Hotels Limited though came to be incorporated on 10.04.1997 on the basis of the companys resolution dated 30.09.1996 had, in fact, commenced its business in the year 2001 in which year the flagship hotel of the petitioner company i.e. Royal Orchid Hotels Limited was set up on land leased by the Karnataka State Tourism Development Corporation. The claim of use of a banquet hall in hotel Harsha by naming it as Orchid in the year 1990 and use thereof till the year 1993 was also considered by the High Court. The said plea urged was rejected on the ground that there was no evidence brought on record to show continuous use of the aforesaid banquet hall by use of the word/mark `Orchid.11. How far and to what extent the order of the High Court dated 07-02-2014 in favour of the present petitioner in the earlier litigation between the parties relating to registration in class 16 would foreclose the dispute with regard to registration in class 42 was also considered by the High Court. In this regard, the High Court took note of the order of this Court dated 01-09-2014 in Special Leave Petition (C) Nos. 8902-8903 of 2014 filed by the present respondent No.1 against the said order of the High Court (dated 07.02.2014) to hold that there was no embargo imposed on the High Court by the order of this Court in so far the issue relating to registration of class 42 is concerned.12. The order of this Court dated 01.09.2014 in Special Leave Petition (C) Nos. 8902-8903 of 2014 is in the following terms:"We are not inclined to interfere with the order impugned herein. The Special Leave Petitions are dismissed. Moreover, the Division Bench has already made it very clear in paragraph 31 that whatever observations made by it in the judgment would not have any bearing on the appeals pending before the Appellate Board or any decision taken therein. We make it clear that the said observations will be applicable even to any other civil suit pending between the parties."13. If the High Court, in view of the above, understood to be uninhibited in deciding the rival claims so far as registration in Class 42 is concerned, such an understanding and the decision on basis thereof cannot be faulted.14. The High Court was also of the view that notwithstanding the class of customers serviced by the parties before it, it cannot be said that the two logos/marks would not give rise to confusion amongst the customers using the Hotels. In this regard, the High Court observed that the view expressed by the IPAB that having regard to the class of customers serviced by the hotels (High Income) there could be no possibility of being misled cannot be accepted as a general proposition and will always depend on individual customers. As the marks/logos were largely similar, the High Court took the view that even on the second question formulated by it the writ petition has to be allowed and the order of the IPAB set aside.15. If the High Court on an elaborate consideration of the materials and evidence adduced by the parties before it had thought it proper to reach a conclusion consistent with the findings of the primary authority i.e. the Deputy Registrar and the reasons for reversal of the view of the primary authority by the IPAB being summary, as noticed, the present petition really turns on the question of appreciation of the evidence on record. Having considered the matter we are of the view that the conclusions reached by the High Court cannot be said to be, in anyway, unreasonable and/or unacceptable. Rather, we are inclined to hold that the view recorded by the High Court is a perfectly possible and justified view of the matter and the conclusion(s) reached can reasonably flow from a balanced consideration of the evidence and materials on record. | 0[ds]After hearing the matter elaborately we arrive at the conclusion that the Special Leave Petition ought not to be entertained. However, in view of the extensive arguments at the Bar we deem it appropriate to support our aforesaid conclusion with the reasons therefor.The order of this Court dated 01.09.2014 in Special Leave Petition (C) Nos.of 2014 is in the followingare not inclined to interfere with the order impugned herein. The Special Leave Petitions are dismissed. Moreover, the Division Bench has already made it very clear in paragraph 31 that whatever observations made by it in the judgment would not have any bearing on the appeals pending before the Appellate Board or any decision taken therein. We make it clear that the said observations will be applicable even to any other civil suit pending between the parties.If the High Court, in view of the above, understood to be uninhibited in deciding the rival claims so far as registration in Class 42 is concerned, such an understanding and the decision on basis thereof cannot be faulted.14. The High Court was also of the view that notwithstanding the class of customers serviced by the parties before it, it cannot be said that the two logos/marks would not give rise to confusion amongst the customers using the Hotels. In this regard, the High Court observed that the view expressed by the IPAB that having regard to the class of customers serviced by the hotels (High Income) there could be no possibility of being misled cannot be accepted as a general proposition and will always depend on individual customers. As the marks/logos were largely similar, the High Court took the view that even on the second question formulated by it the writ petition has to be allowed and the order of the IPAB set aside.15. If the High Court on an elaborate consideration of the materials and evidence adduced by the parties before it had thought it proper to reach a conclusion consistent with the findings of the primary authority i.e. the Deputy Registrar and the reasons for reversal of the view of the primary authority by the IPAB being summary, as noticed,the present petition really turns on the question of appreciation of the evidence on record.Having considered the matter we are of the view that the conclusions reached by the High Court cannot be said to be, in anyway, unreasonable and/or unacceptable. Rather, we are inclined to hold that the view recorded by the High Court is a perfectly possible and justified view of the matter and the conclusion(s) reached can reasonably flow from a balanced consideration of the evidence and materials on | 0 | 1,468 | 478 | ### 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.
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consideration the Deputy Registrar concluded that the petitioner was not the first user of the logo/mark Royal Orchid as claimed and, in fact, the mark/logo Orchid was being used by the respondent No.1 from an anterior date.6. The similarity of the two logos/marks was also taken into account by the Deputy Registrar in refusing registration to the petitioner.7. The IPAB, in appeal, reversed the aforesaid conclusion of the Deputy Registrar primarily on the ground that the petitioner-company had been incorporated as Royal Orchid Hotels Limited after effecting a change of its name in the year 1997 pursuant to the companys resolution dated 30.09.1996 which is prior in point of time to the use of the mark of the respondent no.1.8. The IPAB also was of the view that considering the class of customers that would be serviced by the parties before it, no confusion is likely to be caused by use of two logos/marks i.e. Royal Orchid Hotels Limited and Orchid respectively. This is an additional ground on which the petitioners claim for registration in class 42 was allowed by the learned IPAB.9. In appeal by the respondents, the High Court framed the following two questions for decision ;1. Who is the prior user of the word "Orchid/Royal Orchid" ?2. Whether the trademark "Orchid" of the third respondent are deceptively similar and the adoption of the said trademark by the third respondent is dishonest ?"10. A reading of the discussions on question No.1 by the High Court goes to show that the conclusion recorded in the impugned order of the High Court dated 11.02.2015 is based on a detailed consideration of the materials brought on record by both the parties. The conclusion that the petitioner had not demonstrated that it was the first user of the logo/mark and that it is the respondent who is the first user was arrived at on such consideration. In fact, from the very application for registration filed by the petitioner on 22.06.2004 it is evident that the petitioner had claimed user since 03.11.1999. The High Court also came to the conclusion that Royal Orchid Hotels Limited though came to be incorporated on 10.04.1997 on the basis of the companys resolution dated 30.09.1996 had, in fact, commenced its business in the year 2001 in which year the flagship hotel of the petitioner company i.e. Royal Orchid Hotels Limited was set up on land leased by the Karnataka State Tourism Development Corporation. The claim of use of a banquet hall in hotel Harsha by naming it as Orchid in the year 1990 and use thereof till the year 1993 was also considered by the High Court. The said plea urged was rejected on the ground that there was no evidence brought on record to show continuous use of the aforesaid banquet hall by use of the word/mark `Orchid.11. How far and to what extent the order of the High Court dated 07-02-2014 in favour of the present petitioner in the earlier litigation between the parties relating to registration in class 16 would foreclose the dispute with regard to registration in class 42 was also considered by the High Court. In this regard, the High Court took note of the order of this Court dated 01-09-2014 in Special Leave Petition (C) Nos. 8902-8903 of 2014 filed by the present respondent No.1 against the said order of the High Court (dated 07.02.2014) to hold that there was no embargo imposed on the High Court by the order of this Court in so far the issue relating to registration of class 42 is concerned.12. The order of this Court dated 01.09.2014 in Special Leave Petition (C) Nos. 8902-8903 of 2014 is in the following terms:"We are not inclined to interfere with the order impugned herein. The Special Leave Petitions are dismissed. Moreover, the Division Bench has already made it very clear in paragraph 31 that whatever observations made by it in the judgment would not have any bearing on the appeals pending before the Appellate Board or any decision taken therein. We make it clear that the said observations will be applicable even to any other civil suit pending between the parties."13. If the High Court, in view of the above, understood to be uninhibited in deciding the rival claims so far as registration in Class 42 is concerned, such an understanding and the decision on basis thereof cannot be faulted.14. The High Court was also of the view that notwithstanding the class of customers serviced by the parties before it, it cannot be said that the two logos/marks would not give rise to confusion amongst the customers using the Hotels. In this regard, the High Court observed that the view expressed by the IPAB that having regard to the class of customers serviced by the hotels (High Income) there could be no possibility of being misled cannot be accepted as a general proposition and will always depend on individual customers. As the marks/logos were largely similar, the High Court took the view that even on the second question formulated by it the writ petition has to be allowed and the order of the IPAB set aside.15. If the High Court on an elaborate consideration of the materials and evidence adduced by the parties before it had thought it proper to reach a conclusion consistent with the findings of the primary authority i.e. the Deputy Registrar and the reasons for reversal of the view of the primary authority by the IPAB being summary, as noticed, the present petition really turns on the question of appreciation of the evidence on record. Having considered the matter we are of the view that the conclusions reached by the High Court cannot be said to be, in anyway, unreasonable and/or unacceptable. Rather, we are inclined to hold that the view recorded by the High Court is a perfectly possible and justified view of the matter and the conclusion(s) reached can reasonably flow from a balanced consideration of the evidence and materials on record.
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After hearing the matter elaborately we arrive at the conclusion that the Special Leave Petition ought not to be entertained. However, in view of the extensive arguments at the Bar we deem it appropriate to support our aforesaid conclusion with the reasons therefor.The order of this Court dated 01.09.2014 in Special Leave Petition (C) Nos.of 2014 is in the followingare not inclined to interfere with the order impugned herein. The Special Leave Petitions are dismissed. Moreover, the Division Bench has already made it very clear in paragraph 31 that whatever observations made by it in the judgment would not have any bearing on the appeals pending before the Appellate Board or any decision taken therein. We make it clear that the said observations will be applicable even to any other civil suit pending between the parties.If the High Court, in view of the above, understood to be uninhibited in deciding the rival claims so far as registration in Class 42 is concerned, such an understanding and the decision on basis thereof cannot be faulted.14. The High Court was also of the view that notwithstanding the class of customers serviced by the parties before it, it cannot be said that the two logos/marks would not give rise to confusion amongst the customers using the Hotels. In this regard, the High Court observed that the view expressed by the IPAB that having regard to the class of customers serviced by the hotels (High Income) there could be no possibility of being misled cannot be accepted as a general proposition and will always depend on individual customers. As the marks/logos were largely similar, the High Court took the view that even on the second question formulated by it the writ petition has to be allowed and the order of the IPAB set aside.15. If the High Court on an elaborate consideration of the materials and evidence adduced by the parties before it had thought it proper to reach a conclusion consistent with the findings of the primary authority i.e. the Deputy Registrar and the reasons for reversal of the view of the primary authority by the IPAB being summary, as noticed,the present petition really turns on the question of appreciation of the evidence on record.Having considered the matter we are of the view that the conclusions reached by the High Court cannot be said to be, in anyway, unreasonable and/or unacceptable. Rather, we are inclined to hold that the view recorded by the High Court is a perfectly possible and justified view of the matter and the conclusion(s) reached can reasonably flow from a balanced consideration of the evidence and materials on
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I T C Ltd Vs. Person Incharge, Agrl Mkt.Commtt. | notification could be issued by the State Government under Section 3 of the Act. 6. To test the argument it will be convenient to reproduce the meaning of the word animal, prawn and fish given in some standard dictionaries which is as under: Animal: An organised being having life, sensation and voluntary motion; typically distinguished from a plant, which is organised and has life, but apparently not sensation or voluntary motion. Prawn: 1. A small long-tailed decapod marine crustacean (palxmon senatus), larger than a shrimp, common off the coast of Britain and used as food.2. Any of numerous decapod crustaceans that have slender legs, long antennae, a large strong compressed abdomen, and a prominent serrated rostrum, are widely distributed in fresh and salt waters in warm and temperate regions and highly esteemed as food, and vary in size from an inch or so to the size of lobster. Fish: A vertebrate cold-blooded animal with gills and fins living wholly in water. An animal living wholly in water e.g. cuttlefish, shellfish, jellyfish. Section 2(b) of The Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981 also defines fish, which is as under: "2(b) Fish means any aquatic animal, whether piscine or not, and includes shell fish, crustacean, molluses, turtle (chelonia), aquatic mammal (the young, fry, eggs and spawn thereof), holothurians, coelenterates, sea weed, coral (Porifera) and any, other aquatic life." Normally, in common parlance animal is understood as a quadruped creature but fish is also an animal but of different kind. Prawn in included in the definition of fish as given in the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act and has all the essential attributes of an animal, viz., life, sensation and voluntary motion. It is therefore, not possible to accept the contention that prawn is not a livestock. The State Government is thus fully competent to issue a notification regarding prawns under Section 3 of the Act. 7. Shri Ganesh has also referred to a decision of this Court in Royal Hatcheries Pvt. Ltd. vs. State of A.P. 1994 Supp. (1) SCC 429 in support of his submission that prawns with or without life cannot be treated as livestock. The case turned on the interpretation of Rule 5(2)(xxvi) of A.P. General Sales Tax Rules, 1957 which used the expression livestock, that is to say, all domestic animals such as, oxen, bulls, cows, buffaloes, goats, sheep, horses etc." This Court held that the words that is to say are words of limitation and, therefore, the livestock contemplated by the said clause becomes confined to the domestic animals referred to in the said clause and would not include day-old chicks sold by the hatcheries. In fact after Referring to Peterborough Royal Foxhound Show Society vs. I.R.C. 1936 (1) All ER 813, wherein it was held that the word livestock takes within its fold animals of any description, it was observed that ordinarily speaking livestock is not confined to domestic animals. Therefore, the authority cited by the learned counsel does not support his contention in any manner. 8. Learned counsel has lastly submitted that in Shri Lashmi Dry Fish Traders vs. State of A.P. AIR 1986 AP 330 , a Division Bench of Andhra Pradesh High Court had held that even if fish is considered to be an animal, dry fish cannot fall within the sweep of the definition of livestock and, therefore, dry fish could not be included in Schedule II thereof. Learned counsel has urged that the State of Andhra Pradesh accepted the verdict of the High Court and did not choose to file an appeal against the said decision and, therefore, it is not open to the State Government to contend now that prawn with or without life is livestock. In support of this submission, reliance is placed upon Union of India vs. Kaumudini Narayan Dalal 249 ITR 219 and Commissioner of Income Tax vs. Narendra Doshi 254 ITR 606 . In these cases, it was held that where the High Court decides the matter on the basis of an earlier judgment, which decision had not been challenged by the Revenue by filing an appeal, the Revenue must, therefore, be bound by the principle laid down therein and it is not open to the Revenue to accept that judgment in the case of the assessee in that case and challenge its correctness in the case of other assessee without just cause. On the aforesaid principle this Court declined to consider the correctness of the decision of the High Court in the matter before it. 9. In our opinion, the principle laid down in the aforesaid decisions has no application here. Firstly, in Sri Lashmi Dry Fish Traders (supra), the challenge was to the notification by which dry fish was included in the Schedule and did not relate to prawns with or without life. Secondly, the High Court in the present case has considered this contention and has expressly rejected it holding in favour of State Government and it is the appellant which is coming up in appeal to this Court. In State of Maharashtra vs. Digambar (1995(4) SCC 683, a three Judge Bench had expressly repelled such a contention and had held that non filing of an appeal is one matter would not act as a bar against the State in filing appeal in another matter where similar point may be involved. The Court ruled as under: "The circumstances of the non-filing of the appeals by the State in some similar matters or the rejection of some SLPs in limine by the Supreme Court in some other similar matters by itself, cannot be held as a bar against the State in filing an SLP or SLPs in other similar matter/s where it is considered on behalf of the State that non-filing of such SLP or SLPs and pursuing them is likely to seriously jeopardise the interest of the State or public interest." 10. Therefore, the contention raised has absolutely no substance. 11. | 0[ds]Therefore, the authority cited by the learned counsel does not support his contention in any manner.In our opinion, the principle laid down in the aforesaid decisions has no application here. Firstly, in Sri Lashmi Dry Fish Traders (supra), the challenge was to the notification by which dry fish was included in the Schedule and did not relate to prawns with or without life. Secondly, the High Court in the present case has considered this contention and has expressly rejected it holding in favour of State Government and it is the appellant which is coming up in appeal to this Court. In State of Maharashtra vs. Digambar (1995(4) SCC 683, a three Judge Bench had expressly repelled such a contention and had held that non filing of an appeal is one matter would not act as a bar against the State in filing appeal in another matter where similar point may be involved.the contention raised has absolutely no substance. | 0 | 2,556 | 178 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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notification could be issued by the State Government under Section 3 of the Act. 6. To test the argument it will be convenient to reproduce the meaning of the word animal, prawn and fish given in some standard dictionaries which is as under: Animal: An organised being having life, sensation and voluntary motion; typically distinguished from a plant, which is organised and has life, but apparently not sensation or voluntary motion. Prawn: 1. A small long-tailed decapod marine crustacean (palxmon senatus), larger than a shrimp, common off the coast of Britain and used as food.2. Any of numerous decapod crustaceans that have slender legs, long antennae, a large strong compressed abdomen, and a prominent serrated rostrum, are widely distributed in fresh and salt waters in warm and temperate regions and highly esteemed as food, and vary in size from an inch or so to the size of lobster. Fish: A vertebrate cold-blooded animal with gills and fins living wholly in water. An animal living wholly in water e.g. cuttlefish, shellfish, jellyfish. Section 2(b) of The Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981 also defines fish, which is as under: "2(b) Fish means any aquatic animal, whether piscine or not, and includes shell fish, crustacean, molluses, turtle (chelonia), aquatic mammal (the young, fry, eggs and spawn thereof), holothurians, coelenterates, sea weed, coral (Porifera) and any, other aquatic life." Normally, in common parlance animal is understood as a quadruped creature but fish is also an animal but of different kind. Prawn in included in the definition of fish as given in the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act and has all the essential attributes of an animal, viz., life, sensation and voluntary motion. It is therefore, not possible to accept the contention that prawn is not a livestock. The State Government is thus fully competent to issue a notification regarding prawns under Section 3 of the Act. 7. Shri Ganesh has also referred to a decision of this Court in Royal Hatcheries Pvt. Ltd. vs. State of A.P. 1994 Supp. (1) SCC 429 in support of his submission that prawns with or without life cannot be treated as livestock. The case turned on the interpretation of Rule 5(2)(xxvi) of A.P. General Sales Tax Rules, 1957 which used the expression livestock, that is to say, all domestic animals such as, oxen, bulls, cows, buffaloes, goats, sheep, horses etc." This Court held that the words that is to say are words of limitation and, therefore, the livestock contemplated by the said clause becomes confined to the domestic animals referred to in the said clause and would not include day-old chicks sold by the hatcheries. In fact after Referring to Peterborough Royal Foxhound Show Society vs. I.R.C. 1936 (1) All ER 813, wherein it was held that the word livestock takes within its fold animals of any description, it was observed that ordinarily speaking livestock is not confined to domestic animals. Therefore, the authority cited by the learned counsel does not support his contention in any manner. 8. Learned counsel has lastly submitted that in Shri Lashmi Dry Fish Traders vs. State of A.P. AIR 1986 AP 330 , a Division Bench of Andhra Pradesh High Court had held that even if fish is considered to be an animal, dry fish cannot fall within the sweep of the definition of livestock and, therefore, dry fish could not be included in Schedule II thereof. Learned counsel has urged that the State of Andhra Pradesh accepted the verdict of the High Court and did not choose to file an appeal against the said decision and, therefore, it is not open to the State Government to contend now that prawn with or without life is livestock. In support of this submission, reliance is placed upon Union of India vs. Kaumudini Narayan Dalal 249 ITR 219 and Commissioner of Income Tax vs. Narendra Doshi 254 ITR 606 . In these cases, it was held that where the High Court decides the matter on the basis of an earlier judgment, which decision had not been challenged by the Revenue by filing an appeal, the Revenue must, therefore, be bound by the principle laid down therein and it is not open to the Revenue to accept that judgment in the case of the assessee in that case and challenge its correctness in the case of other assessee without just cause. On the aforesaid principle this Court declined to consider the correctness of the decision of the High Court in the matter before it. 9. In our opinion, the principle laid down in the aforesaid decisions has no application here. Firstly, in Sri Lashmi Dry Fish Traders (supra), the challenge was to the notification by which dry fish was included in the Schedule and did not relate to prawns with or without life. Secondly, the High Court in the present case has considered this contention and has expressly rejected it holding in favour of State Government and it is the appellant which is coming up in appeal to this Court. In State of Maharashtra vs. Digambar (1995(4) SCC 683, a three Judge Bench had expressly repelled such a contention and had held that non filing of an appeal is one matter would not act as a bar against the State in filing appeal in another matter where similar point may be involved. The Court ruled as under: "The circumstances of the non-filing of the appeals by the State in some similar matters or the rejection of some SLPs in limine by the Supreme Court in some other similar matters by itself, cannot be held as a bar against the State in filing an SLP or SLPs in other similar matter/s where it is considered on behalf of the State that non-filing of such SLP or SLPs and pursuing them is likely to seriously jeopardise the interest of the State or public interest." 10. Therefore, the contention raised has absolutely no substance. 11.
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Therefore, the authority cited by the learned counsel does not support his contention in any manner.In our opinion, the principle laid down in the aforesaid decisions has no application here. Firstly, in Sri Lashmi Dry Fish Traders (supra), the challenge was to the notification by which dry fish was included in the Schedule and did not relate to prawns with or without life. Secondly, the High Court in the present case has considered this contention and has expressly rejected it holding in favour of State Government and it is the appellant which is coming up in appeal to this Court. In State of Maharashtra vs. Digambar (1995(4) SCC 683, a three Judge Bench had expressly repelled such a contention and had held that non filing of an appeal is one matter would not act as a bar against the State in filing appeal in another matter where similar point may be involved.the contention raised has absolutely no substance.
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Standard Chartard Bank Vs. Andhra Bank Financial Services Ltd. & Others | including the purchase of the suit bonds on 27.2.1992. 68. Although, SCB raised this point in the arguments and pointed out that this letter belies the stand of CMF, the Special Court brushed it aside by saying that it did not find any merit in the argument and observing: "merely because letter is dated 26.2.1992 one cannot assume that HPD knew about the transactions one day prior to 27.2.1992. The remark indicating pay order number and the date of 27.2.1992 shows that the instructions were specifically given on 27.2.1992." Moreover, if we accept the finding of the Special Court that the transaction of the suit bonds between HPD and CMF on 27.2.1992 did take place, then there is no explanation for the suit bonds being sold to and purchased from other parties during the period 27.2.1992 to 9.5.1992 as shown in Exhibit-11. The pleadings of CMF on the issue of consideration appear to be most confusing and shifty. The exercise carried out by the Special Court of analysing several transactions and discharge of BRs, shows transactions of payments back and forth between CMF and HPD. The ledger folio produced by CMF in support of its stand is also hardly reliable. The ledger entry pertaining to the purchase of 13% NLC bonds discloses a very curious state of affairs. The entry pertaining to 20.11.1991 is hand written after the entry of 30.11.1991. When the witness of CMF, Nandita Rao (DW-1), was cross- examined as to how the entry of 20.11.1991 could have been written in the ledger folio after the entry of 30.11.1991, she had hardly any explanation for that except professing ignorance. 69. The said witness was also asked as to whether she came across any document from ABFSL in support of the transactions of 20.11.1991 on the basis of which she had prepared the vouchers and ledger entries. She admitted that she had not seen any document from ABFSL on the basis of which such entries were made. Under cross-examination, the said witness also stated that she did not remember whether any documents were received from ABFSL in support of the four general vouchers dated 27.2.1992 and she further admitted that, irrespective of whether a cheque was received or not, it was a routine practice to write "RBI cheque received from ABFSL" in the transactions with ABFSL. Considering the evidence as a whole, it appears that the initial stand taken by the learned counsel of CMF in the first round of the litigation, that there was no credible evidence on which payment of consideration by CMF could be proved, was fully justified. The attempt of CMF on picking up and putting forward some of the documents, out of the several transactions entered into by them to patch up the story of consideration, in our opinion, has miserably failed. There was no cause for being charitable to CMF by saying that they could prove only a part of the consideration, ergo, rest of the transactions must be deemed to have been proved. We are of the view that every one of the arguments put forward by SCB to impugn the story of CMF that it had paid consideration is justified and the Special Court was wrong in rejecting the arguments of SCB on this count. 70. We, therefore, hold that CMF has utterly failed to prove its story that it had paid consideration for purchase of the suit bonds on 27.2.1992. Conclusion: Finally, it appears that there is not much to choose between the two contending banks, namely, SCB and CMF. Both the banks have been tarred by the same brush by the Janakiraman Committee Report about fudging their accounts. However, it appears to us that the issue of the ownership of the suit bonds could not have been decided on any basis other than what the legal evidence showed. The situation is somewhat like a game of musical chairs; the one who is sitting on the chair when the music stops, wins. Similarly, the situation before us. Once we eliminate the conjectural findings, we find that all the material evidence on record shows that SCB had purchased the suit bonds from NPCL by paying good money. The original LOA for purchase of the suit bonds along with the transfer deed was handed over to SCB. As to how it went out of its possession, it appears to be the subject matter of the FIR filed by SCB. SCB alleges that, it was pilfered or misappropriated by some officer in conspiracy with HPD, but that is a matter which will be tried by an appropriate criminal court. Turning to the other side of the story, CMF claims acquisition of the suit bonds on 27.2.1992 by paying consideration for them. It is not shown as to who was the counter-party from whom the purchase was made, as CMFs stand on its counter-party keeps changing from beginning to end. The documents produced on record do not bear out the stand of CMF. In spite of exercise of our imagination, we are not able to support the conclusion that CMF had paid consideration for acquisition of the suit bonds from HPD; or that HPD became the owner of the suit bonds merely because of the existence of the 15% arrangement, the details of which were thoroughly analysed by the Janakiraman Committee Report and the Joint Parliamentary Committee Report. That such an agreement was not against public policy was clearly held by the previous judgment of this Court in Civil Appeal No. 4456/95 . 71. In these circumstances, we are not satisfied that the evidence on record proves that HPD became the owner of the suit bonds or that CMF legitimately acquired the suit bonds from HPD or any other person by paying bona fide purchase value for them. Consequently, we must hold that CMF acquired no right, whatsoever, to the suit bonds. The suit bonds always remained the property of SCB irrespective of how they found their way into the hands of CMF. | 1[ds]26. Thus, it is clear that the appeal has been brought on the footing that SCB had fully proved its title to the suit bonds and that the Special Court had erroneously held against SCB. Looked at from any point of view, we are not satisfied that the Suit was a mere declaratory suit, it must be regarded as a title suit27. We shall now turn to the nature of the proceedings in Misc. Petition No. 81/95. This petition was presented under Section 111 of the Companies Act, 1956. Section 111(1) provides for the power of refusal by a company to register the transfer of debentures to a transferee. The transferor or the transferee has a right of appeal to the Tribunal (then, the CLB) under subsection (2) of Section 111. The nature of proceedings under Section 111 are slightly different from a title suit, although,n (7) of Section 111 gives to the Tribunal the jurisdiction to decide any question relating to the title of any person who is a party to the application, to have his name entered in or omitted from the register and also the general jurisdiction to decide any question which it is necessary or expedient to decide in connection with such an application. It has been held in M/s Ammonia Supplies Corporation (P) Ltd. v. M/s Modern Plastic Containers Pvt. Ltd. and Ors. that the jurisdiction exercised by the Company Court under Section 155 of the Companies Act, 1956 (corresponding to Section 111 of the present Act, before its amendment by Act 31 of 1988) was somewhat summary in nature and that if a seriously disputed question of title arose, the Company Court should relegate the parties to a suit, which was the more appropriate remedy for investigation and adjudication of such seriously disputed question of title.Mr. Kapadia, learned counsel for CMF, contended that as far as the petition of CMF was concerned, it merely invoked the summary remedy under Section 111 of the Companies Act. The only prayer made by CMF before the CLB was that it had purchased the suit bonds from ABFSL and, therefore, it was entitled to be registered as the owner of the suit bonds in the register of NPCL. Relying on Mannalal Khetan v. Kedar Nath Khetan and Ors. he contended that the provisions of Section 108 of the Companies Act, 1956 were mandatory and unless they were fulfilled, a registration of the transfer of the bonds could not be done. Further, he relied on the exemption granted from certain provisions of Section 108(1) in respect of bonds issued by a Government company29. Even if the petition filed under Section 111 of the Companies Act, 1956 was only for this limited relief of registering theF as the holder of the suit bonds, we cannot accept the contention of Mr. Kapadia for two reasons. In the first place, whatever might have been the limited jurisdiction of the CLB under Section 111 of the Companies Act, 1956, while entertaining the petition, the fact that the said petition was transferred to the Special Court by an order of this Court needs to be reckoned with. The order of this Court is specific and requires the trial of Special Court Suit No. 11/96 along with Misc. Petition No. 81/95. The limitation of the jurisdiction of the CLB, if any, does not apply to the Special Court, which is clothed with all the jurisdiction of a civil court. Secondly, merely by filing a petition under Section 111 of the Companies Act, 1956 and by placing reliance on Section 108 of the Companies Act, 1956 theF cannot succeed. It would have to go further and prove that it is validly a transferee of the suit bonds, if that question is put in issue. Thus, in our view, each of the two contesting parties, i.e. SCB and CMF, would have to prove their rights and show how they are entitled to the suit bonds before any relief could be granted either in the Suit or in the Misc. Petition32. These were expressly approved by this Court in the judgment. It appears to us that much of the controversy about the nature of the 15% arrangement could have been avoided if the judgment in the Canara Bank case (supra) had been kept in mind. We notice from the impugned judgment that the decision of this Court in Canara Bank (supra) was specifically brought to the notice of the Special Court, but it appears to have been brushed aside on the grounds, first, that the doctrine of res judicata would not apply as Section 13 of the Act had an overriding effect; second, the exact scope of the 15% arrangement was not determined by evidence in the previous suit; and third, that an arrangement by which banks and public financial institutions are enabled to earn a return higher than what is stipulated by the government/RBI, would cause inflation and the government would not be able to control its deficit, hence it was opposed to public policy. The Special Court said: "In the economic sense, they are not legitimate. On this point also, therefore, there is no merit in the arguments advanced on behalf of SCB."33. We are afraid that the Special Court was wrong on all the counts. On the question of res judicata, the Special Court failed to notice that the doctrine of res judicata is not merely a matter of procedure but a doctrine evolved by the courts in larger public interest. What is enacted in Section 11 of the Civil Procedure Code ("CPC") is not thed of the doctrine, but merely the statutory recognition of the doctrine, which rests on public policy. (See in this connection Daryao and Ors. v. The State of U.P. and Ors. , Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry and Hope Plantations Ltd. v. Taluk Land Board, Peermade and Anr. ) In the previous suit to which both SCB and Canara Bank were parties, the same issue with regard to 15% arrangement with HPD was urged by CMF as ag factor, but was negatived both by the Special Court and by this Court34. This was an issue raised by CMF which was defendant no. 1 in that suit (Special Court Suit No. 13/94). The burden of proving this issue was on the defendant and the Special Court answered the issue in the negative and observed that the counsel for defendant no. 1 had admitted that there was no evidence to support this issue. Consequently, the Special Court held that the issue was answered in the negative i.e. against defendant no. 1. Since the Special Court findings were finally upheld by this Court in the judgment reported in Canara Bank (supra) and a review petition thereagainst was also dismissed, we are of the view that it is not open for this Court to again raise the issue and take a view contrary to what had already been decided in the previous suit, particularly in view of the fact that there has been no new revelatory evidence on this issue35. We are not in agreement with the view taken by the Special Court that Section 13 of the Act overrides the doctrine of res judicata. Section 13 of the Act provides: "The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree or order of any Court, tribunal or other authority". This was certainly not intended to abrogate all the established principles of law, unless they were directly in conflict with the express provisions of the Act itself. There is nothing in the Act which is inconsistent with the doctrine of res judicata, per se, as seems to have been assumed by the Special Court36. We are also unable to appreciate the thinking of the Special Court that there was something morally or economically reprehensible in the arrangement which was brought about between HPD and SCB as a result of which SCB was able to earn higher returnB. Evidence on Record:The evidence as to the nature of the 15% arrangement was SCBs replies to interrogatories in previous suits, tendered by CMF as Exhibits 5, 6, 8 and 9 as evidence in the present suit, the Janakiraman Committee Report and the JPC Report, which recognise and explain the 15% arrangement. There is nothing in all the said evidence to suggest that by entering into such a contractual transaction with HPD, HPD became the owner of the bonds. The evidence, on the other hand, clearly brings out that at all times the securities transactions would be between SCB and the, the legal relationship always being between the said two parties. In our view, therefore, the Special Court grossly erred in drawing a conclusion based on no evidence and attributing to the said arrangement a legal character, which was not proved on record. It also erred in ignoring the finding on the issue given in the previous Special Court Suit No. 13/94 as upheld by the judgment of this Court in Canara Bank (supra). The Special Court has also observed that under the 15% arrangement SCB was "maintaining brokers position". While this may be appropriate jargon in a stock exchange, what exactly is the legal implication, if any, of such an expression is unclear. We find no evidence on record to suggest that merely because of the 15% arrangement the legal ownership of the securities was transferred to HPD in any manner, since all the transactions appear to be between SCB and. This would be evident from the fact that if the counters failed to deliver the securities or failed to pay for the securities delivered, the legal action could only be between SCB and the counters with which the transaction took place and not by or against HPD37. We are unable to accept the conclusions drawn by the Special Court with regard to some of the documents produced by CMF as defendant, about which no evidence by way of explanation was led by either party38. In the absence of proper explanation, it was not open to the Special Court to make inferences or assumptions with regard to terms used in the documents, for example, SCBs securities ledger in relation to the suit bonds, which pertains to the sale and purchase of the suit bonds with different. This document as such does not contain the description portfolio, but the said appellation has been given to it by the Special Court on its own. The Special Court has observed thereupon: "Therefore, all such transactions were entered into by the bank on behalf of HPD. Therefore, they were transactions of HPD. This is amply illustrated by. A portfolio represents stock held by SCB on behalf of HPD. HPD was entitled to enter into buy transactions and sale transactions in respect of securities coming under that portfolio. The portfolio was built up by SCB by purchasing securities at the instance of HPD. This is also called as building up of position. The suit contract comes under. By the suit contract, the LoA came within the portfolio of HPD. He was allowed to deal with the LoA under the portfolio." We are afraid that this inference is not readily available ex facie from the document; nor was there any other evidence given by any witness explaining the document, suggesting it42. While it may be true that the Special Court has been given a certain amount of latitude in the matter of procedure, it surely cannot fly away from established legal principles while deciding the cases before it. As to what inference arises from a document, is always a matter of evidence unless the document is. We do not think that any of the documents placed on record during the trial were; nor were they explained by any competent witness on either side. In the absence of any such explanation, it was not open to the Special Court to come up with its own explanations and decide the fate of the Suit on the basis of its inference based on such assumed explanations. In fact, these inferences run contrary to the oral evidence given by Kalyana Raman) in relation to the transaction of 26.2.199243. The Special Court has also adversely commented on the conduct of SCB in not leading evidence to prove what the 15% arrangement was. We fail to see how a party could be called upon to lead evidence with regard to an issue which was no part of its case. The 15% arrangement was brought on record at the instance of CMF and the burden, if any, of proving its details lay on CMF. Although, a number of documents were produced on record as called for by CMF, there was no obligation on SCB to explain any of them50. The force of the words "belonging to any person notified" used inn (3) of Section 3 of the Act are wide enough to result in attachment of the property which belongs to the notified person irrespective of in whose name the property stands. The provisions of Section 13 of the Act give an overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Even assuming that the argument of Mr. Jethmalani based on Section 4(2) of The Benami Transactions (Prohibition) Act, 1988 is a plausible one, we are of the view that the combined effect of Sections 3(3) and 13 of the Act would give an overriding effect to the provisions of the Act. It is rightly urged by Mr. Kapadia, learned counsel for CMF, that, if that were not so, then the whole purpose of the Act would be defeated since the objective of the Act was to reach out and attach the property in whichever hands it was, irrespective of in whose names the property stood, as long it was property belonging to a notified person. Thus, the contention based on Section 4(2) of the Benami Transactions (Prohibition) Act, 1988 has been rightly rejected by the Special Court51. Much was said by the learned counsel for CMF about the manner in which SCB has hedged its replies. The learned counsel criticised the attempt of SCB to hide the true facts and contended that SCB kept on changing its stand from time to time. He highlighted that the stand taken by SCB in the Suit, the stand taken by it in the reply to the Petition and the stand taken by it before this Court was wholly inconsistent and, therefore, urged that the claims of SCB should fail. We think that this is a classic case of the pot calling the kettle black. When we look at the defence taken by CMF, the same criticism can be validly levied against it. CMF started by saying that it had bought the suit bonds from ABFSL. When it found that the evidence was against it, it shifted its stand and said it had bought them from HPD with HPD acting on behalf of ABFSL or SCB as the broker, or on his own behalf. We do not think that on the question of bona fides and consistency, there is anything to choose between SCB and CMF. Since both parties are tarred by the same brush, the issue will have to be resolved purely on the basis of what the legal evidence demonstratesIII. Did SCB get any title to the suit bonds:It is the case of SCB that it had the title to the suit bonds as it obtained the suit bonds under a contractual agreement by paying consideration for the suit bonds. This transaction is based on documentary evidence on record. The Cost Memo) dated 26.2.1992 issued by ABFSL evidences that the suit bonds were offered to SCB at the consideration indicated in the document. The Cost Memo indicates the details of the transactions such as the description of the bonds, the number of bonds sold, the rate at which they were sold and the total consideration payable. This is accompanied by a BR. Against this, there is a pay order dated 26.2.1992 issued by SCB in favour of ABFSL in the sum of Rs.42,52,50,000/evidencing that such consideration had been paid. The BR No. 23728 dated 26.2.1992 evidences that upon receipt of the agreed consideration, being the cost of the suit bonds sold to SCB, the BR was issued to undertake that bonds of the face value of Rs. 50 crores would be delivered when ready, in exchange for the BR duly discharged and that in the meantime the suit bonds would be held on account of SCB. The letter dated 26.2.1992 from ABFSL to SCB shows that the LOA of the suit bonds was forwarded to SCB inter alia with a request for discharging the corresponding BR No. 23728 on receipt of the LOA. The register of SCB shows that with reference to BR No. 23728, the bonds had been received, although, the word photocopies appears to have been inserted therein. It is the case of SCB that one of its employees, Mulgaonkar, had acted fraudulently by inserting this word and causing misappropriation of the suit bonds. We find that this part of the case was not part of the pleadings of SCB either in its plaint or in the written statement filed in reply to CMFs petition. There was also no reference to it at any time when evidence was led by the parties. The first time this part of the case appears is in the copy of the charge sheet filed by CBI against certain employees of SCB and HPD for several criminal offences. Mr. Jethmalani contended that since this charge sheet was produced on record at the instance of CMF, the averments in the charge sheet must be taken to have been proved before the court. Even assuming Mr. Jethmalani is right in characterising the charge sheet as a public document within the meaning of Section 35 of the Indian Evidence Act, 1872, we cannot accept all that is stated in the charge sheet as having been proved. All that we can say is that it is proved that the police had laid a charge sheet in which such allegations have been made against the accused. We need not delve further into it since the criminal proceedings against HPD and others are still pending and it will be up to the appropriate court to decide the correctness or otherwise of the charges in the chargesheet. All that can be said at this stage is that there were serious allegations that the original LOA went out of the possession of SCB by some nefarious means52. Learned counsel for CMF contended that even as on 26.2.1992 SCB had no title to the suit bonds since the suit bonds were under the 15% arrangement and that under the 15% arrangement the transaction was one merely of funding; in other words, that there was no real buyer or seller and it was mere paper work intended as a cover for lending money to HPD. We are unable to accept this argument for more than one. The documents which we have referred to above clearly evidence a transaction of sale and purchase of the suit bonds by SCB upon payment of consideration. Secondly, ABFSL, who was the other party to the transaction, has come forward and accepted the transaction unhesitatingly. There is no reason why all this evidence should be discarded by choosing the chimera of the 15% arrangement theory. We, therefore, hold that SCB validly acquired title to the suit bonds as a result of the transaction entered into between itself and ABFSL on 26.2.1992. And that the suit bonds were in fact handed over to SCB although, it is not evident as to how the suit bonds went out of the possession of SCB. Therefore, the contention of CMF that SCB never acquired title to the suit bonds cannot be accepted. Even the Special Court finds that the contract of 26.2.1992 with regard to the suit bonds had been proved by the evidence on record. However, the Special Court goes on to say that merely proving the suit contract was not sufficient because it had to be further proved that the suit bonds had been acquired by SCB, as, in its view, the mystique of the 15% arrangement made HPD the real owner of the bondsWe are, therefore, satisfied that there was transfer of the property in the suit bonds to SCB and the evidence on record is sufficient to arrive at such a conclusion. It was wholly unnecessary for SCB to go further and prove how the BR was discharged and how the LOA went out of its possession, which were the facts emphasised on behalf of CMF. Nor was it necessary for SCB to lead evidence as to how HPD had intercepted the original LOA, when and in what manner. Turning to the argument that SCB could not be permitted to make an argument inconsistent with the pleadings on record, we need to see an order dated 2.7.1997 made by the Special Court. On that day the learned counsel for SCB made a statement that he was not pressing for relief of monetary claim in terms of prayer (b) of its plaint. While settling the issues between SCB and CMF and SCB and NPCL, the learned counsel for SCB made a statement that he would not be pressing the contention that the original LOA had not been received by SCB. In view thereof, the Special Court did not permit the issue proposed to be raised by CMF on the said point. CMF proposed another issue as to whether SCB was not aware of the circumstances in which the original LOA was taken away from it. This issue was held by the Special Court to be irrelevant for the purposes of the Suit on the ground that, as the plaintiff was not pressing the contention that they have not received the original LOA; it was not necessary59. We respectfully concur with the said observations and reject the contention of Mr. Kapadia that SCB could not be permitted to rely on its changed stand. There is one minor issue with regard to the date of the letter written by ABFSL, namely, whether it was 26.2.1992 or 27.2.1992. The evidence of Kalyana Raman makes it clear that mentioning the date of the letter as 26.2.1992 was a mistake and that the actual date of the letter was 27.2.1992We think that this criticism is justified. While the Special Courts inferences are based upon its understanding of what the 15% arrangement was and its analysis of, it totally fails to give any reason as to why the evidence of a witness from AB about there being no such transaction on 9.5.1992, backed by the purchase register of AB, should be rejected. In our view, in the face of the positive evidence of AB that no such transactions were there, there was no justification for not accepting the stand of SCB that entry dated 9.5.1992 pertaining to the suit bonds was a sham entry intended to introduce the money into the books of SCB to cover a wide gap. The Janakiraman Committee Report is also clinching on this issue of the so called sale of the suit bonds on 9.5.1992 to ABFSL. Both sides have relied on the Janakiraman Committee Report, which is admitted in evidence as. In the Fourth Interim Report dated March 1993, in Paragraph 3.1(h) there is a discussion of this entry in the Report. The Janakiraman Report says:"(h) On 9.5.1992, Stanchart as per deal slip purchased units of Cantriple of face value of Rs. 45.5 crores @ Rs. 58.50 per unit from Andhra Bank for an aggregate cost of Rs. 266.18 crores. There is no record of this transaction in the books of Andhra Bank nor are there any cost memos available and no securities were received from Andhra Bank. On the same day, Stanchart as per deal slips sold PSU bonds aggregating Rs. 266.12 crores to Andhra Bank. (Refer paragraph 3.4 below). There is no record of these transactions in the books of Andhra Bank and no securities were delivered. A pay order No. 257131 for the difference of Rs. 0.06 crore was prepared but not delivered to Andhra Bank. These transactions appear to have been put through merely to cover up a gap in respect of various earlier purchase deals for which neither securities nor BRs. were available. The details of these earlier transactions are explained in paragraphs 3.3 and 3.4 below."We need not delve further into the issue as we have already stated that the issue is immaterial. It is the stand of CMF that SCB lost its title to the suit bonds as a result of sale of the suit bonds on 9.5.1992 as consideration for its purchase of Cantriple Units worth Rs. 205 crores. While answering issue no. 6, the Special Court has clearly held that purchase of the Cantriple Units on 9.5.1992 had been proved but CMF had not been able to prove that the said purchase was against sale of the suit bonds on 9.5.1992. In the face of this finding, the argument of CMF that SCB lost title because it had sold the suit bonds in lieu of which it purchased Cantriple Units, has been rejected by the Special Court itself. For these reasons, we are clearly of the view that whatever might have been the conjectures on the part of the Special Court, whatever might have been the suspicion generated on account of sham entries made by one or the other party, when it came to the crux of the issue, the Special Court has correctly answered it and negatived the case of CMF that SCB lost title of the suit bonds because the suit bonds were sold in consideration of purchase of Cantriple Units67. Thus, according to the evidence led by CMF, CMF had to pay to ABFSL on 20.11.1991 a large sum as a result of their deals which took place on 20.11.1991. Surprisingly, instead of CMF paying ABFSL the aforesaid amount, on the same day, two sums of Rs. 2,75,18,571.04 and Rs. 4,56,70,000.00 as evidenced by letter dated 20.11.1991 written by HPD to AB, came to be paid to CMF by HPD. It is evident that some of the existing documents with regard to various deals have been put together by CMF to patch up the story of consideration put forward by it. Another strange document which shakes the credibility of the story of consideration set up by CMF is the letter dated 26.2.1992 from HPD to AB instructing AB to issue a bankers cheque in favour of CMF for a sum of Rs. 3,87,46,575.35 and debit his account. The actual number of the cheque is also shown on the document as 143941 dated 27.2.1992. There is also a statement of the RBI account of HPD with AB showing the debit of the aforesaid amount to the books of HPD in AB. The Special Court relies on this letter as evidencing the netting of the transactions between CMF and HPD on 27.2.1992. Mr. Jethmalani legitimately criticised the story of consideration put forward by CMF by urging that, if the aforesaid amount of Rs. 3,87,46,575.35 was the amount after netting, which had been arrived at on 27.2.1992, it was impossible to believe that HPD had the prescience on 26.2.1992 to know the exact amount that would be arrived at after netting of transactions including the purchase of the suit bonds on 27.2.199268. Although, SCB raised this point in the arguments and pointed out that this letter belies the stand of CMF, the Special Court brushed it aside by saying that it did not find any merit in the argument and observing: "merely because letter is dated 26.2.1992 one cannot assume that HPD knew about the transactions one day prior to 27.2.1992. The remark indicating pay order number and the date of 27.2.1992 shows that the instructions were specifically given on 27.2.1992." Moreover, if we accept the finding of the Special Court that the transaction of the suit bonds between HPD and CMF on 27.2.1992 did take place, then there is no explanation for the suit bonds being sold to and purchased from other parties during the period 27.2.1992 to 9.5.1992 as shown in Exhibit-11. The pleadings of CMF on the issue of consideration appear to be most confusing and shifty. The exercise carried out by the Special Court of analysing several transactions and discharge of BRs, shows transactions of payments back and forth between CMF and HPD. The ledger folio produced by CMF in support of its stand is also hardly reliable. The ledger entry pertaining to the purchase of 13% NLC bonds discloses a very curious state of affairs. The entry pertaining to 20.11.1991 is hand written after the entry of 30.11.1991. When the witness of CMF, Nandita Rao (DW-1), was cross- examined as to how the entry of 20.11.1991 could have been written in the ledger folio after the entry of 30.11.1991, she had hardly any explanation for that except professing ignorance69. The said witness was also asked as to whether she came across any document from ABFSL in support of the transactions of 20.11.1991 on the basis of which she had prepared the vouchers and ledger entries. She admitted that she had not seen any document from ABFSL on the basis of which such entries were made. Under cross-examination, the said witness also stated that she did not remember whether any documents were received from ABFSL in support of the four general vouchers dated 27.2.1992 and she further admitted that, irrespective of whether a cheque was received or not, it was a routine practice to write "RBI cheque received from ABFSL" in the transactions with ABFSL. Considering the evidence as a whole, it appears that the initial stand taken by the learned counsel of CMF in the first round of the litigation, that there was no credible evidence on which payment of consideration by CMF could be proved, was fully justified. The attempt of CMF on picking up and putting forward some of the documents, out of the several transactions entered into by them to patch up the story of consideration, in our opinion, has miserably failed. There was no cause for being charitable to CMF by saying that they could prove only a part of the consideration, ergo, rest of the transactions must be deemed to have been proved. We are of the view that every one of the arguments put forward by SCB to impugn the story of CMF that it had paid consideration is justified and the Special Court was wrong in rejecting the arguments of SCB on this count70. We, therefore, hold that CMF has utterly failed to prove its story that it had paid consideration for purchase of the suit bonds on 27.2.1992. Conclusion: Finally, it appears that there is not much to choose between the two contending banks, namely, SCB and CMF. Both the banks have been tarred by the same brush by the Janakiraman Committee Report about fudging their accounts. However, it appears to us that the issue of the ownership of the suit bonds could not have been decided on any basis other than what the legal evidence showed. The situation is somewhat like a game of musical chairs; the one who is sitting on the chair when the music stops, wins. Similarly, the situation before us. Once we eliminate the conjectural findings, we find that all the material evidence on record shows that SCB had purchased the suit bonds from NPCL by paying good money. The original LOA for purchase of the suit bonds along with the transfer deed was handed over to SCB. As to how it went out of its possession, it appears to be the subject matter of the FIR filed by SCB. SCB alleges that, it was pilfered or misappropriated by some officer in conspiracy with HPD, but that is a matter which will be tried by an appropriate criminal court. Turning to the other side of the story, CMF claims acquisition of the suit bonds on 27.2.1992 by paying consideration for them. It is not shown as to who was the counter-party from whom the purchase was made, as CMFs stand on its counter-party keeps changing from beginning to end. The documents produced on record do not bear out the stand of CMF. In spite of exercise of our imagination, we are not able to support the conclusion that CMF had paid consideration for acquisition of the suit bonds from HPD; or that HPD became the owner of the suit bonds merely because of the existence of the 15% arrangement, the details of which were thoroughly analysed by the Janakiraman Committee Report and the Joint Parliamentary Committee Report. That such an agreement was not against public policy was clearly held by the previous judgment of this Court in Civil Appeal No. 4456/9571. In these circumstances, we are not satisfied that the evidence on record proves that HPD became the owner of the suit bonds or that CMF legitimately acquired the suit bonds from HPD or any other person by paying bona fide purchase value for them. Consequently, we must hold that CMF acquired no right, whatsoever, to the suit bonds. 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including the purchase of the suit bonds on 27.2.1992. 68. Although, SCB raised this point in the arguments and pointed out that this letter belies the stand of CMF, the Special Court brushed it aside by saying that it did not find any merit in the argument and observing: "merely because letter is dated 26.2.1992 one cannot assume that HPD knew about the transactions one day prior to 27.2.1992. The remark indicating pay order number and the date of 27.2.1992 shows that the instructions were specifically given on 27.2.1992." Moreover, if we accept the finding of the Special Court that the transaction of the suit bonds between HPD and CMF on 27.2.1992 did take place, then there is no explanation for the suit bonds being sold to and purchased from other parties during the period 27.2.1992 to 9.5.1992 as shown in Exhibit-11. The pleadings of CMF on the issue of consideration appear to be most confusing and shifty. The exercise carried out by the Special Court of analysing several transactions and discharge of BRs, shows transactions of payments back and forth between CMF and HPD. The ledger folio produced by CMF in support of its stand is also hardly reliable. The ledger entry pertaining to the purchase of 13% NLC bonds discloses a very curious state of affairs. The entry pertaining to 20.11.1991 is hand written after the entry of 30.11.1991. When the witness of CMF, Nandita Rao (DW-1), was cross- examined as to how the entry of 20.11.1991 could have been written in the ledger folio after the entry of 30.11.1991, she had hardly any explanation for that except professing ignorance. 69. The said witness was also asked as to whether she came across any document from ABFSL in support of the transactions of 20.11.1991 on the basis of which she had prepared the vouchers and ledger entries. She admitted that she had not seen any document from ABFSL on the basis of which such entries were made. Under cross-examination, the said witness also stated that she did not remember whether any documents were received from ABFSL in support of the four general vouchers dated 27.2.1992 and she further admitted that, irrespective of whether a cheque was received or not, it was a routine practice to write "RBI cheque received from ABFSL" in the transactions with ABFSL. Considering the evidence as a whole, it appears that the initial stand taken by the learned counsel of CMF in the first round of the litigation, that there was no credible evidence on which payment of consideration by CMF could be proved, was fully justified. The attempt of CMF on picking up and putting forward some of the documents, out of the several transactions entered into by them to patch up the story of consideration, in our opinion, has miserably failed. There was no cause for being charitable to CMF by saying that they could prove only a part of the consideration, ergo, rest of the transactions must be deemed to have been proved. We are of the view that every one of the arguments put forward by SCB to impugn the story of CMF that it had paid consideration is justified and the Special Court was wrong in rejecting the arguments of SCB on this count. 70. We, therefore, hold that CMF has utterly failed to prove its story that it had paid consideration for purchase of the suit bonds on 27.2.1992. Conclusion: Finally, it appears that there is not much to choose between the two contending banks, namely, SCB and CMF. Both the banks have been tarred by the same brush by the Janakiraman Committee Report about fudging their accounts. However, it appears to us that the issue of the ownership of the suit bonds could not have been decided on any basis other than what the legal evidence showed. The situation is somewhat like a game of musical chairs; the one who is sitting on the chair when the music stops, wins. Similarly, the situation before us. Once we eliminate the conjectural findings, we find that all the material evidence on record shows that SCB had purchased the suit bonds from NPCL by paying good money. The original LOA for purchase of the suit bonds along with the transfer deed was handed over to SCB. As to how it went out of its possession, it appears to be the subject matter of the FIR filed by SCB. SCB alleges that, it was pilfered or misappropriated by some officer in conspiracy with HPD, but that is a matter which will be tried by an appropriate criminal court. Turning to the other side of the story, CMF claims acquisition of the suit bonds on 27.2.1992 by paying consideration for them. It is not shown as to who was the counter-party from whom the purchase was made, as CMFs stand on its counter-party keeps changing from beginning to end. The documents produced on record do not bear out the stand of CMF. In spite of exercise of our imagination, we are not able to support the conclusion that CMF had paid consideration for acquisition of the suit bonds from HPD; or that HPD became the owner of the suit bonds merely because of the existence of the 15% arrangement, the details of which were thoroughly analysed by the Janakiraman Committee Report and the Joint Parliamentary Committee Report. That such an agreement was not against public policy was clearly held by the previous judgment of this Court in Civil Appeal No. 4456/95 . 71. In these circumstances, we are not satisfied that the evidence on record proves that HPD became the owner of the suit bonds or that CMF legitimately acquired the suit bonds from HPD or any other person by paying bona fide purchase value for them. Consequently, we must hold that CMF acquired no right, whatsoever, to the suit bonds. The suit bonds always remained the property of SCB irrespective of how they found their way into the hands of CMF.
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at after netting of transactions including the purchase of the suit bonds on 27.2.199268. Although, SCB raised this point in the arguments and pointed out that this letter belies the stand of CMF, the Special Court brushed it aside by saying that it did not find any merit in the argument and observing: "merely because letter is dated 26.2.1992 one cannot assume that HPD knew about the transactions one day prior to 27.2.1992. The remark indicating pay order number and the date of 27.2.1992 shows that the instructions were specifically given on 27.2.1992." Moreover, if we accept the finding of the Special Court that the transaction of the suit bonds between HPD and CMF on 27.2.1992 did take place, then there is no explanation for the suit bonds being sold to and purchased from other parties during the period 27.2.1992 to 9.5.1992 as shown in Exhibit-11. The pleadings of CMF on the issue of consideration appear to be most confusing and shifty. The exercise carried out by the Special Court of analysing several transactions and discharge of BRs, shows transactions of payments back and forth between CMF and HPD. The ledger folio produced by CMF in support of its stand is also hardly reliable. The ledger entry pertaining to the purchase of 13% NLC bonds discloses a very curious state of affairs. The entry pertaining to 20.11.1991 is hand written after the entry of 30.11.1991. When the witness of CMF, Nandita Rao (DW-1), was cross- examined as to how the entry of 20.11.1991 could have been written in the ledger folio after the entry of 30.11.1991, she had hardly any explanation for that except professing ignorance69. The said witness was also asked as to whether she came across any document from ABFSL in support of the transactions of 20.11.1991 on the basis of which she had prepared the vouchers and ledger entries. She admitted that she had not seen any document from ABFSL on the basis of which such entries were made. Under cross-examination, the said witness also stated that she did not remember whether any documents were received from ABFSL in support of the four general vouchers dated 27.2.1992 and she further admitted that, irrespective of whether a cheque was received or not, it was a routine practice to write "RBI cheque received from ABFSL" in the transactions with ABFSL. Considering the evidence as a whole, it appears that the initial stand taken by the learned counsel of CMF in the first round of the litigation, that there was no credible evidence on which payment of consideration by CMF could be proved, was fully justified. The attempt of CMF on picking up and putting forward some of the documents, out of the several transactions entered into by them to patch up the story of consideration, in our opinion, has miserably failed. There was no cause for being charitable to CMF by saying that they could prove only a part of the consideration, ergo, rest of the transactions must be deemed to have been proved. We are of the view that every one of the arguments put forward by SCB to impugn the story of CMF that it had paid consideration is justified and the Special Court was wrong in rejecting the arguments of SCB on this count70. We, therefore, hold that CMF has utterly failed to prove its story that it had paid consideration for purchase of the suit bonds on 27.2.1992. Conclusion: Finally, it appears that there is not much to choose between the two contending banks, namely, SCB and CMF. Both the banks have been tarred by the same brush by the Janakiraman Committee Report about fudging their accounts. However, it appears to us that the issue of the ownership of the suit bonds could not have been decided on any basis other than what the legal evidence showed. The situation is somewhat like a game of musical chairs; the one who is sitting on the chair when the music stops, wins. Similarly, the situation before us. Once we eliminate the conjectural findings, we find that all the material evidence on record shows that SCB had purchased the suit bonds from NPCL by paying good money. The original LOA for purchase of the suit bonds along with the transfer deed was handed over to SCB. As to how it went out of its possession, it appears to be the subject matter of the FIR filed by SCB. SCB alleges that, it was pilfered or misappropriated by some officer in conspiracy with HPD, but that is a matter which will be tried by an appropriate criminal court. Turning to the other side of the story, CMF claims acquisition of the suit bonds on 27.2.1992 by paying consideration for them. It is not shown as to who was the counter-party from whom the purchase was made, as CMFs stand on its counter-party keeps changing from beginning to end. The documents produced on record do not bear out the stand of CMF. In spite of exercise of our imagination, we are not able to support the conclusion that CMF had paid consideration for acquisition of the suit bonds from HPD; or that HPD became the owner of the suit bonds merely because of the existence of the 15% arrangement, the details of which were thoroughly analysed by the Janakiraman Committee Report and the Joint Parliamentary Committee Report. That such an agreement was not against public policy was clearly held by the previous judgment of this Court in Civil Appeal No. 4456/9571. In these circumstances, we are not satisfied that the evidence on record proves that HPD became the owner of the suit bonds or that CMF legitimately acquired the suit bonds from HPD or any other person by paying bona fide purchase value for them. Consequently, we must hold that CMF acquired no right, whatsoever, to the suit bonds. The suit bonds always remained the property of SCB irrespective of how they found their way into the hands of CMF
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Dewan Singh Vs. Champat Singh & Ors | the arbitration agreement did not specifically empower the arbitrators to decide the disputes referred to them on the basis of their personal knowledge; they having utilized their personal knowledge in deciding the disputes, they were guilty of legal misconduct and consequently the award made by them is vitiated. It also came to the conclusion that the disputes in question could not have been referred to arbitration in view of the provisions of U. P. Act 1 of 1951. If overruled the decision of the Appellate Court that the defendants had not taken their objections to the award within the prescribed time.5. We may at this stage mention that the contention that the suit was barred by time was not pressed before the Trial Court or in any other Court.6. There is no basis for the finding of the appellate Court that the objection taken by the defendants to the award was barred by time. As seen earlier, the suit to make the award a rule of the Court was brought by one of the parties to the arbitration agreement and not by any arbitrator. The plaint filed does not disclose that the award given had been produced along with it. There was some controversy as to whether that award was produced along with the plaint. There is no need to go into that question as we shall presently see. It is not said that along with the plaint copy, a copy of the award had been sent to the defendants. Nor is it said that notice of the suit sent to the defendants mentioned the fact that the award had been filed into Court along with the plaint.Article 158 of the Limitation Act, 1908 gives to party 30 days time for applying to set aside an award or get an award remitted for reconsideration from the date of the service of the notice of filing of the award. There is absolutely no proof in this case that a notice of the filing of the award into Court had ever been given to the defendants. Hence the objections taken by the defendants to the award could not have been rejected on the ground of limitation.7. Now coming to the question of misconduct on the part of the arbitrators, that allegation is founded on the fact that the arbitrators decided the disputes referred to them on the basis of their personal knowledge. That allegation has been accepted as true both by the Trial Court as well as the Appellate Court. In fact the award says:"We gave our consideration to the entire dispute which is in full knowledge of us, the panchas".Therefore there is hardly any room to contest the allegation that the arbitrators had decided the disputes referred to them primarily on the basis of their personal knowledge. Under these circumstances all that we have to see is whether the appellate Court was right in concluding that under the arbitration agreement, the arbitrators had been empowered to decide the disputes referred to them on the basis of their personal knowledge.8. The material portion of the arbitration agreement which is in Hindi translated into English reads thus:"All the panchas and Sarpanchas are residents of village Keli Pargana Sarawa. The power is given to them that the said Panchas and Sarpanchas whatever decision in whatever manner will give in relation to our land described below, whatever land may be given to any party or whatever party may be decided to be the tenant of the entire land, whatever compensation they may decide to be given to any party, whatever decision they will give that will be final and acceptable and they will have the right to inform us of their decision, unanimous or of majority and get the same registered and we will fully comply with their decision."9. This agreement does not empower the arbitrators either specifically or by necessary implication to decide the disputes referred to them on the basis of their personal knowledge.The recital in that agreement that the arbitrators may decide the disputes referred to them in "whatever manner" they think does not mean that they can decide those disputes on the basis of their personal knowledge. The proceedings before the arbitrators are quasi-judicial proceedings. They must be conducted in accordance with the principles of natural justice. The parties to the submission may be in the dark as regards the personal knowledge of the arbitrators. There may be misconceptions or wrong assumptions in the mind of the arbitrators. If the parties are not given opportunity to correct those misconceptions or wrong assumptions, grave injustice may result.It is nobodys case that the parties to the submission were informed about the nature of the personal knowledge, the arbitrators had and that they were given opportunity to correct any misconception or wrong assumption. Further in the present case there were as many as five arbitrators. It is not known whether the award was made on the basis of the personal knowledge of all of them or only some of them.Arbitration is a reference of a dispute for hearing in a judicial manner. It is true that parties to an agreement of reference may include in it such clauses as they think fit unless prohibited by law. It is normally an implied term of an arbitration agreement that the arbitrators must decide the dispute in accordance with the ordinary law: see Chandris v. Isbrandtsen Moller Co., 1951-1 KB 240 that rule can be departed from only if specifically provided for in the submission.10. The Appellate Court, in our opinion, has misread the arbitration agreement and hence it erroneously came to the conclusion that the arbitrators had been empowered to decide the dispute on the basis of their personal knowledge.11. It was contended on behalf of the appellant that in exercise of its powers under Section 115 of the Code of Civil Procedure, the High Court could not have corrected the erroneous interpretation placed by the Appellate Court as to the scope of the arbitration agreement. | 0[ds]7. Now coming to the question of misconduct on the part of the arbitrators, that allegation is founded on the fact that the arbitrators decided the disputes referred to them on the basis of their personal knowledge. That allegation has been accepted as true both by the Trial Court as well as the Appellate Court. In fact the awardgave our consideration to the entire dispute which is in full knowledge of us, thethere is hardly any room to contest the allegation that the arbitrators had decided the disputes referred to them primarily on the basis of their personal knowledge. Under these circumstances all that we have to see is whether the appellate Court was right in concluding that under the arbitration agreement, the arbitrators had been empowered to decide the disputes referred to them on the basis of their personal knowledge.Now coming to the question of misconduct on the part of the arbitrators, that allegation is founded on the fact that the arbitrators decided the disputes referred to them on the basis of their personal knowledge. That allegation has been accepted as true both by the Trial Court as well as the Appellate Court. In fact the awarde our consideration to the entire dispute which is in full knowledge of us, thethere is hardly any room to contest the allegation that the arbitrators had decided the disputes referred to them primarily on the basis of their personal knowledge. Under these circumstances all that we have to see is whether the appellate Court was right in concluding that under the arbitration agreement, the arbitrators had been empowered to decide the disputes referred to them on the basis of their personal knowledge.The Appellate Court, in our opinion, has misread the arbitration agreement and hence it erroneously came to the conclusion that the arbitrators had been empowered to decide the dispute on the basis of their personal knowledge.There is no basis for the finding of the appellate Court that the objection taken by the defendants to the award was barred by time. As seen earlier, the suit to make the award a rule of the Court was brought by one of the parties to the arbitration agreement and not by any arbitrator. The plaint filed does not disclose that the award given had been produced along with it. There was some controversy as to whether that award was produced along with the plaint. There is no need to go into that question as we shall presently see. It is not said that along with the plaint copy, a copy of the award had been sent to the defendants. Nor is it said that notice of the suit sent to the defendants mentioned the fact that the award had been filed into Court along with the plaint.Article 158 of the Limitation Act, 1908 gives to party 30 days time for applying to set aside an award or get an award remitted for reconsideration from the date of the service of the notice of filing of the award. There is absolutely no proof in this case that a notice of the filing of the award into Court had ever been given to the defendants. Hence the objections taken by the defendants to the award could not have been rejected on the ground of limitation. | 0 | 1,621 | 580 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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the arbitration agreement did not specifically empower the arbitrators to decide the disputes referred to them on the basis of their personal knowledge; they having utilized their personal knowledge in deciding the disputes, they were guilty of legal misconduct and consequently the award made by them is vitiated. It also came to the conclusion that the disputes in question could not have been referred to arbitration in view of the provisions of U. P. Act 1 of 1951. If overruled the decision of the Appellate Court that the defendants had not taken their objections to the award within the prescribed time.5. We may at this stage mention that the contention that the suit was barred by time was not pressed before the Trial Court or in any other Court.6. There is no basis for the finding of the appellate Court that the objection taken by the defendants to the award was barred by time. As seen earlier, the suit to make the award a rule of the Court was brought by one of the parties to the arbitration agreement and not by any arbitrator. The plaint filed does not disclose that the award given had been produced along with it. There was some controversy as to whether that award was produced along with the plaint. There is no need to go into that question as we shall presently see. It is not said that along with the plaint copy, a copy of the award had been sent to the defendants. Nor is it said that notice of the suit sent to the defendants mentioned the fact that the award had been filed into Court along with the plaint.Article 158 of the Limitation Act, 1908 gives to party 30 days time for applying to set aside an award or get an award remitted for reconsideration from the date of the service of the notice of filing of the award. There is absolutely no proof in this case that a notice of the filing of the award into Court had ever been given to the defendants. Hence the objections taken by the defendants to the award could not have been rejected on the ground of limitation.7. Now coming to the question of misconduct on the part of the arbitrators, that allegation is founded on the fact that the arbitrators decided the disputes referred to them on the basis of their personal knowledge. That allegation has been accepted as true both by the Trial Court as well as the Appellate Court. In fact the award says:"We gave our consideration to the entire dispute which is in full knowledge of us, the panchas".Therefore there is hardly any room to contest the allegation that the arbitrators had decided the disputes referred to them primarily on the basis of their personal knowledge. Under these circumstances all that we have to see is whether the appellate Court was right in concluding that under the arbitration agreement, the arbitrators had been empowered to decide the disputes referred to them on the basis of their personal knowledge.8. The material portion of the arbitration agreement which is in Hindi translated into English reads thus:"All the panchas and Sarpanchas are residents of village Keli Pargana Sarawa. The power is given to them that the said Panchas and Sarpanchas whatever decision in whatever manner will give in relation to our land described below, whatever land may be given to any party or whatever party may be decided to be the tenant of the entire land, whatever compensation they may decide to be given to any party, whatever decision they will give that will be final and acceptable and they will have the right to inform us of their decision, unanimous or of majority and get the same registered and we will fully comply with their decision."9. This agreement does not empower the arbitrators either specifically or by necessary implication to decide the disputes referred to them on the basis of their personal knowledge.The recital in that agreement that the arbitrators may decide the disputes referred to them in "whatever manner" they think does not mean that they can decide those disputes on the basis of their personal knowledge. The proceedings before the arbitrators are quasi-judicial proceedings. They must be conducted in accordance with the principles of natural justice. The parties to the submission may be in the dark as regards the personal knowledge of the arbitrators. There may be misconceptions or wrong assumptions in the mind of the arbitrators. If the parties are not given opportunity to correct those misconceptions or wrong assumptions, grave injustice may result.It is nobodys case that the parties to the submission were informed about the nature of the personal knowledge, the arbitrators had and that they were given opportunity to correct any misconception or wrong assumption. Further in the present case there were as many as five arbitrators. It is not known whether the award was made on the basis of the personal knowledge of all of them or only some of them.Arbitration is a reference of a dispute for hearing in a judicial manner. It is true that parties to an agreement of reference may include in it such clauses as they think fit unless prohibited by law. It is normally an implied term of an arbitration agreement that the arbitrators must decide the dispute in accordance with the ordinary law: see Chandris v. Isbrandtsen Moller Co., 1951-1 KB 240 that rule can be departed from only if specifically provided for in the submission.10. The Appellate Court, in our opinion, has misread the arbitration agreement and hence it erroneously came to the conclusion that the arbitrators had been empowered to decide the dispute on the basis of their personal knowledge.11. It was contended on behalf of the appellant that in exercise of its powers under Section 115 of the Code of Civil Procedure, the High Court could not have corrected the erroneous interpretation placed by the Appellate Court as to the scope of the arbitration agreement.
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7. Now coming to the question of misconduct on the part of the arbitrators, that allegation is founded on the fact that the arbitrators decided the disputes referred to them on the basis of their personal knowledge. That allegation has been accepted as true both by the Trial Court as well as the Appellate Court. In fact the awardgave our consideration to the entire dispute which is in full knowledge of us, thethere is hardly any room to contest the allegation that the arbitrators had decided the disputes referred to them primarily on the basis of their personal knowledge. Under these circumstances all that we have to see is whether the appellate Court was right in concluding that under the arbitration agreement, the arbitrators had been empowered to decide the disputes referred to them on the basis of their personal knowledge.Now coming to the question of misconduct on the part of the arbitrators, that allegation is founded on the fact that the arbitrators decided the disputes referred to them on the basis of their personal knowledge. That allegation has been accepted as true both by the Trial Court as well as the Appellate Court. In fact the awarde our consideration to the entire dispute which is in full knowledge of us, thethere is hardly any room to contest the allegation that the arbitrators had decided the disputes referred to them primarily on the basis of their personal knowledge. Under these circumstances all that we have to see is whether the appellate Court was right in concluding that under the arbitration agreement, the arbitrators had been empowered to decide the disputes referred to them on the basis of their personal knowledge.The Appellate Court, in our opinion, has misread the arbitration agreement and hence it erroneously came to the conclusion that the arbitrators had been empowered to decide the dispute on the basis of their personal knowledge.There is no basis for the finding of the appellate Court that the objection taken by the defendants to the award was barred by time. As seen earlier, the suit to make the award a rule of the Court was brought by one of the parties to the arbitration agreement and not by any arbitrator. The plaint filed does not disclose that the award given had been produced along with it. There was some controversy as to whether that award was produced along with the plaint. There is no need to go into that question as we shall presently see. It is not said that along with the plaint copy, a copy of the award had been sent to the defendants. Nor is it said that notice of the suit sent to the defendants mentioned the fact that the award had been filed into Court along with the plaint.Article 158 of the Limitation Act, 1908 gives to party 30 days time for applying to set aside an award or get an award remitted for reconsideration from the date of the service of the notice of filing of the award. There is absolutely no proof in this case that a notice of the filing of the award into Court had ever been given to the defendants. Hence the objections taken by the defendants to the award could not have been rejected on the ground of limitation.
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State Of U.P Vs. Raj Kumar Rukmani Raman Brahma | family property the members of the family can claim four rights (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity (3) the right of maintenance; and (4) the right of survivorship. It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist. The second is also incompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rani Sartaj Kuari v. Deorai Kuari. (1887-1888) 15 Ind App 51 (PC) and the First Pittapur case (1899) 26 Ind App 83 (PC).The right of maintenance and the right of survivorship however, still remain and is by reference to these rights that the property though impartible has, in the eve of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successions. Unlike spes successionis the right of survivorship can be renounced or surrendered. It was held by the Judicial Committee in Collector of Gorakhpur v. Ram Sunder Mal 61 Ind App 286 = (AIR 1934 PC 157 ) the right of maintenance to junior members out of an importable estate was based on joint ownership of the junior members of the family. In that case Lord Blanesburgh after stating that the judgment of Lord Dunedin in Baijnath Prasad Singh v. Tej Bali Singh, 48 Ind App 195=(AIR 1921 PC 62) had definitely negatived the view that the decisions of the Board in Sartai Kuaris case (1887-l888) l5 Ind App 51(PC) and the First Pittapur case, (1899) 26 Ind App 83 (PC) were destructive of the doctrine that an impartible zamindari could be in any sense joint family property went on to observe :"One result is at length clearly shown to be that there is no reason why the earlier judgments of the Board should not be followed, such as for instance the Challapalli case, (Raja Yarlagadda Mallikarjuna Prasad Nayadu v. Raja Yarlagadda Durga Prasad Nayadu, (1900) 27 Ind App 151 (PC) ) which regarded their right to maintenance, however limited, out of an impartible estate as being based upon the joint ownership of the junior members of the family, with the result that these members holding zamindari lands for maintenance could still be considered as joint in estate with the zamindar in possession."9. Lord Blanesburgh said:"The recent decisions of the Board constitute a further landmark in the judicial exposition of the question at issue here. While the power of the holder of an impartible raj to dispose of the same by deed, (Sartaj Kuaris case, (1887-1888) 15 Ind App 51 (PC) ) or by will (the First Pittapur case, (1899) 26 Ind App 83 (PC) and Protap Chandra Deo v. Jagdish Chandra Deo, 54 Ind App 289 = (AIR 1927 PC 159 ) remains definitely established the right of the junior branch to succeed by survivorship to the raj on the extinction of the senior branch has also been definitely and emphatically re-affirmed. Nor must this right be whittled away. It cannot be regarded as merely visionary. As pointed out in Bajinath Prasad Singhs case, 48 Ind App 195 = (AIR 192l PC 62) when before the Allahabad High Court the junior members of a great zamindari enjoy a high degree of consideration, being known as babus, the different branches holding babuana grants out of the zamindari. Their enjoyment of these grants is attributable to their membership of the joint family, and until the decisions above referred to beginning in 1888 supervened, they had no reason to believe that their rights of succession were being imperilled by their estrangement from the zamindari in possession."10. In the present case there is the statement of Raja Anand Brahma Shah in the Gujaranama deed that according to the law and custom of the estate, the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and that the "younger sons have right to maintenance and they are given reasonable share of the estate in lieu of right of maintenance."In view of this admission of Raja Anand Brahma Shah it is not possible to hold that the transfer of the properties in the Gujaranama deed was a transfer by way of gift. It is also not possible to contend that it was a sale of the properties for there is no money consideration. It is manifest that the transaction is by way of a settlement to the respondent by Raja Anand Brahma Shah in lieu of the right of maintenance of the respondent which is obligatory upon the holder of impartible estate. In our opinion, the Gujaranama deed dated October 5, 1949 is not hit by the provision of Section 23 of the Act and the argument of the appellant on this aspect of the case must be rejected.11. It was contended on behalf of the appellant that the case should be remanded to the Rehabilitation Grants Officer on account of certain procedural irregularities. It was pointed out that the Rehabilitation Grants Officer did not follow the provisions of the Civil Procedure Code by treating the application under Section 79 as a plaint and the objection of the State Government as a written statement. It was said that the Rehabilitation Grants Officer was bound to frame proper issues and to take evidence of the parties on those issues as in the civil suit. But no case has been made out for remand because the appellant has not denied in the written statement that there was the customary right of maintenance of the junior members of the family of Raja Arand Brahma Shah. No disputed question of fact was raised on behalf of the appellant before the Rehabilitation Grants Officer, the award of the Rehabilitation Grants Officer was challenged only on a question of law. | 0[ds]In our opinion there is no warrant for this argument.Since the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Debi, 59 Ind App 331 = (AIR 1932 PC 216 ) it must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family. In the case of an ordinary joint family property the members of the family can claim four rights (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity (3) the right of maintenance; and (4) the right of survivorship. It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist. The second is also incompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rani Sartaj Kuari v. Deorai Kuari. (1887-1888) 15 Ind App 51 (PC) and the First Pittapur case (1899) 26 Ind App 83 (PC).The right of maintenance and the right of survivorship however, still remain and is by reference to these rights that the property though impartible has, in the eve of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successions. Unlike spes successionis the right of survivorship can be renounced or surrendered.In the present case there is the statement of Raja Anand Brahma Shah in the Gujaranama deed that according to the law and custom of the estate, the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and that the "younger sons have right to maintenance and they are given reasonable share of the estate in lieu of right of maintenance."In view of this admission of Raja Anand Brahma Shah it is not possible to hold that the transfer of the properties in the Gujaranama deed was a transfer by way of gift. It is also not possible to contend that it was a sale of the properties for there is no money consideration. It is manifest that the transaction is by way of a settlement to the respondent by Raja Anand Brahma Shah in lieu of the right of maintenance of the respondent which is obligatory upon the holder of impartible estate. In our opinion, the Gujaranama deed dated October 5, 1949 is not hit by the provision of Section 23 of the Act and the argument of the appellant on this aspect of the case must beno case has been made out for remand because the appellant has not denied in the written statement that there was the customary right of maintenance of the junior members of the family of Raja Arand Brahma Shah. No disputed question of fact was raised on behalf of the appellant before the Rehabilitation Grants Officer, the award of the Rehabilitation Grants Officer was challenged only on a question ofour opinion there is no warrant for this argument.The relevant portion of the Gujaranama deed dated October 5, 1949I Shri Raja Anand Brahma Shah son of Shri Raja Sharda Mahesh Prasad Singh Shah of Agori Barhar Raj, Rampur Estate pargana Barhar, Tehsil Robertsganj, District Mirzapur, am the proprietor of Angori Raj District Mirzapur which is an impartible estate. That according to law and custom the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and the younger sons have a right to maintenance and they are given a reasonable share of the estate in lieu of the right of maintenance so as to enable them to pass their life in accordance with their status. The estate is under an obligation to provide maintenance of this type. Therefore it is obligatory upon me also to make some provision for the maintenance of my younger brother Shri Rukmini Raman Brahmas by giving him some property. He also desires that some maintenance should be provided for him. Therefore I out of my sweet will and willingness do hereby execute this document in the terms following:1. That from todays date I give the property detailed below to my younger brother Shri Rukmini Raman Brahma in lieu of his right of maintenance and I deliver to him the proprietary possession of the propertiesThat the transferee for maintenance shall pay land revenue and other customary dues and taxes to the Government. The jagir shall not be responsible for the payment of the same.5. That the transferee for maintenance may get his name entered in the revenue papers. We shall have no objection in this regard.In the present case there is the statement of Raja Anand Brahma Shah in the Gujaranama deed that according to the law and custom of the estate, the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and that the "younger sons have right to maintenance and they are given reasonable share of the estate in lieu of right of maintenance."In view of this admission of Raja Anand Brahma Shah it is not possible to hold that the transfer of the properties in the Gujaranama deed was a transfer by way of gift. It is also not possible to contend that it was a sale of the properties for there is no money consideration. It is manifest that the transaction is by way of a settlement to the respondent by Raja Anand Brahma Shah in lieu of the right of maintenance of the respondent which is obligatory upon the holder of impartible estate. In our opinion, the Gujaranama deed dated October 5, 1949 is not hit by the provision of Section 23 of the Act and the argument of the appellant on this aspect of the case must be | 0 | 2,620 | 1,105 | ### 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:
family property the members of the family can claim four rights (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity (3) the right of maintenance; and (4) the right of survivorship. It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist. The second is also incompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rani Sartaj Kuari v. Deorai Kuari. (1887-1888) 15 Ind App 51 (PC) and the First Pittapur case (1899) 26 Ind App 83 (PC).The right of maintenance and the right of survivorship however, still remain and is by reference to these rights that the property though impartible has, in the eve of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successions. Unlike spes successionis the right of survivorship can be renounced or surrendered. It was held by the Judicial Committee in Collector of Gorakhpur v. Ram Sunder Mal 61 Ind App 286 = (AIR 1934 PC 157 ) the right of maintenance to junior members out of an importable estate was based on joint ownership of the junior members of the family. In that case Lord Blanesburgh after stating that the judgment of Lord Dunedin in Baijnath Prasad Singh v. Tej Bali Singh, 48 Ind App 195=(AIR 1921 PC 62) had definitely negatived the view that the decisions of the Board in Sartai Kuaris case (1887-l888) l5 Ind App 51(PC) and the First Pittapur case, (1899) 26 Ind App 83 (PC) were destructive of the doctrine that an impartible zamindari could be in any sense joint family property went on to observe :"One result is at length clearly shown to be that there is no reason why the earlier judgments of the Board should not be followed, such as for instance the Challapalli case, (Raja Yarlagadda Mallikarjuna Prasad Nayadu v. Raja Yarlagadda Durga Prasad Nayadu, (1900) 27 Ind App 151 (PC) ) which regarded their right to maintenance, however limited, out of an impartible estate as being based upon the joint ownership of the junior members of the family, with the result that these members holding zamindari lands for maintenance could still be considered as joint in estate with the zamindar in possession."9. Lord Blanesburgh said:"The recent decisions of the Board constitute a further landmark in the judicial exposition of the question at issue here. While the power of the holder of an impartible raj to dispose of the same by deed, (Sartaj Kuaris case, (1887-1888) 15 Ind App 51 (PC) ) or by will (the First Pittapur case, (1899) 26 Ind App 83 (PC) and Protap Chandra Deo v. Jagdish Chandra Deo, 54 Ind App 289 = (AIR 1927 PC 159 ) remains definitely established the right of the junior branch to succeed by survivorship to the raj on the extinction of the senior branch has also been definitely and emphatically re-affirmed. Nor must this right be whittled away. It cannot be regarded as merely visionary. As pointed out in Bajinath Prasad Singhs case, 48 Ind App 195 = (AIR 192l PC 62) when before the Allahabad High Court the junior members of a great zamindari enjoy a high degree of consideration, being known as babus, the different branches holding babuana grants out of the zamindari. Their enjoyment of these grants is attributable to their membership of the joint family, and until the decisions above referred to beginning in 1888 supervened, they had no reason to believe that their rights of succession were being imperilled by their estrangement from the zamindari in possession."10. In the present case there is the statement of Raja Anand Brahma Shah in the Gujaranama deed that according to the law and custom of the estate, the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and that the "younger sons have right to maintenance and they are given reasonable share of the estate in lieu of right of maintenance."In view of this admission of Raja Anand Brahma Shah it is not possible to hold that the transfer of the properties in the Gujaranama deed was a transfer by way of gift. It is also not possible to contend that it was a sale of the properties for there is no money consideration. It is manifest that the transaction is by way of a settlement to the respondent by Raja Anand Brahma Shah in lieu of the right of maintenance of the respondent which is obligatory upon the holder of impartible estate. In our opinion, the Gujaranama deed dated October 5, 1949 is not hit by the provision of Section 23 of the Act and the argument of the appellant on this aspect of the case must be rejected.11. It was contended on behalf of the appellant that the case should be remanded to the Rehabilitation Grants Officer on account of certain procedural irregularities. It was pointed out that the Rehabilitation Grants Officer did not follow the provisions of the Civil Procedure Code by treating the application under Section 79 as a plaint and the objection of the State Government as a written statement. It was said that the Rehabilitation Grants Officer was bound to frame proper issues and to take evidence of the parties on those issues as in the civil suit. But no case has been made out for remand because the appellant has not denied in the written statement that there was the customary right of maintenance of the junior members of the family of Raja Arand Brahma Shah. No disputed question of fact was raised on behalf of the appellant before the Rehabilitation Grants Officer, the award of the Rehabilitation Grants Officer was challenged only on a question of law.
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PC 216 ) it must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family. In the case of an ordinary joint family property the members of the family can claim four rights (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity (3) the right of maintenance; and (4) the right of survivorship. It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist. The second is also incompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rani Sartaj Kuari v. Deorai Kuari. (1887-1888) 15 Ind App 51 (PC) and the First Pittapur case (1899) 26 Ind App 83 (PC).The right of maintenance and the right of survivorship however, still remain and is by reference to these rights that the property though impartible has, in the eve of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successions. Unlike spes successionis the right of survivorship can be renounced or surrendered.In the present case there is the statement of Raja Anand Brahma Shah in the Gujaranama deed that according to the law and custom of the estate, the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and that the "younger sons have right to maintenance and they are given reasonable share of the estate in lieu of right of maintenance."In view of this admission of Raja Anand Brahma Shah it is not possible to hold that the transfer of the properties in the Gujaranama deed was a transfer by way of gift. It is also not possible to contend that it was a sale of the properties for there is no money consideration. It is manifest that the transaction is by way of a settlement to the respondent by Raja Anand Brahma Shah in lieu of the right of maintenance of the respondent which is obligatory upon the holder of impartible estate. In our opinion, the Gujaranama deed dated October 5, 1949 is not hit by the provision of Section 23 of the Act and the argument of the appellant on this aspect of the case must beno case has been made out for remand because the appellant has not denied in the written statement that there was the customary right of maintenance of the junior members of the family of Raja Arand Brahma Shah. No disputed question of fact was raised on behalf of the appellant before the Rehabilitation Grants Officer, the award of the Rehabilitation Grants Officer was challenged only on a question ofour opinion there is no warrant for this argument.The relevant portion of the Gujaranama deed dated October 5, 1949I Shri Raja Anand Brahma Shah son of Shri Raja Sharda Mahesh Prasad Singh Shah of Agori Barhar Raj, Rampur Estate pargana Barhar, Tehsil Robertsganj, District Mirzapur, am the proprietor of Angori Raj District Mirzapur which is an impartible estate. That according to law and custom the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and the younger sons have a right to maintenance and they are given a reasonable share of the estate in lieu of the right of maintenance so as to enable them to pass their life in accordance with their status. The estate is under an obligation to provide maintenance of this type. Therefore it is obligatory upon me also to make some provision for the maintenance of my younger brother Shri Rukmini Raman Brahmas by giving him some property. He also desires that some maintenance should be provided for him. Therefore I out of my sweet will and willingness do hereby execute this document in the terms following:1. That from todays date I give the property detailed below to my younger brother Shri Rukmini Raman Brahma in lieu of his right of maintenance and I deliver to him the proprietary possession of the propertiesThat the transferee for maintenance shall pay land revenue and other customary dues and taxes to the Government. The jagir shall not be responsible for the payment of the same.5. That the transferee for maintenance may get his name entered in the revenue papers. We shall have no objection in this regard.In the present case there is the statement of Raja Anand Brahma Shah in the Gujaranama deed that according to the law and custom of the estate, the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and that the "younger sons have right to maintenance and they are given reasonable share of the estate in lieu of right of maintenance."In view of this admission of Raja Anand Brahma Shah it is not possible to hold that the transfer of the properties in the Gujaranama deed was a transfer by way of gift. It is also not possible to contend that it was a sale of the properties for there is no money consideration. It is manifest that the transaction is by way of a settlement to the respondent by Raja Anand Brahma Shah in lieu of the right of maintenance of the respondent which is obligatory upon the holder of impartible estate. In our opinion, the Gujaranama deed dated October 5, 1949 is not hit by the provision of Section 23 of the Act and the argument of the appellant on this aspect of the case must be
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THE STATE OF BIHAR Vs. KIRTI NARAYAN PRASAD | employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates." (Emphasis supplied) 14. However, in paragraph 53 an exception is made to the general principles against regularisation as a one-time measure which is as under: "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 15. In some of the LPAs the Division Bench appears to have followed paragraph 11 in M.L. Kesari (supra) for directing regularisation of service without considering the observations contained in paragraph 7 of the judgment. In paragraph 11, it was observed that "the true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation within six months of the decision in Umadevi (3) as a one-time measure …………". However, in paragraph 7 after considering Umadevi (supra) this Court has categorically held that for regularisation, the appointment of employee should not be illegal even if irregular. "7. It is evident from the above that there is an exception to the general principles against ?regularisation? enunciated in Umadevi (3), if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular." (Emphasis supplied) 16. In State of Orissa and Anr. v. Mamata Mohanty, (2011) 3 SCC 436 , this Court has held that once an order of appointment itself had been bad at the time of initial appointment, it cannot be sanctified at a later stage. It was held thus: "68(i) The procedure prescribed under the 1974 Rules has not been followed in all the cases while making the appointment of the respondents/ teachers at initial stage. Some of the persons had admittedly been appointed merely by putting some note on the notice board of the College. Some of these teachers did not face the interview test before the Selection Board. Once an order of appointment itself had been bad at the time of initial appointment, it cannot be sanctified at a later stage". (Emphasis supplied) 17. In the instant cases the writ petitioners have filed the petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been inducted in Government service surreptitiously by concerned Civil Surgeon-cum-Chief Medical Officer by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical Officer. They were given notice to establish the genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio. We do not find any ground to disagree with the finding of the State Committee. | 0[ds]13. In Umadevi (supra) the Constitution Bench has held that unless appointment is made in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it was an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. A temporary employee could not claim to be made permanent on the expiry of his term of appointment. It was also clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.In the instant cases the writ petitioners have filed the petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been inducted in Government service surreptitiously by concerned CivilMedical Officer by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the CivilMedical Officer. They were given notice to establish the genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio. We do not find any ground to disagree with the finding of the State Committee. | 0 | 3,711 | 367 | ### 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:
employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates." (Emphasis supplied) 14. However, in paragraph 53 an exception is made to the general principles against regularisation as a one-time measure which is as under: "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 15. In some of the LPAs the Division Bench appears to have followed paragraph 11 in M.L. Kesari (supra) for directing regularisation of service without considering the observations contained in paragraph 7 of the judgment. In paragraph 11, it was observed that "the true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation within six months of the decision in Umadevi (3) as a one-time measure …………". However, in paragraph 7 after considering Umadevi (supra) this Court has categorically held that for regularisation, the appointment of employee should not be illegal even if irregular. "7. It is evident from the above that there is an exception to the general principles against ?regularisation? enunciated in Umadevi (3), if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular." (Emphasis supplied) 16. In State of Orissa and Anr. v. Mamata Mohanty, (2011) 3 SCC 436 , this Court has held that once an order of appointment itself had been bad at the time of initial appointment, it cannot be sanctified at a later stage. It was held thus: "68(i) The procedure prescribed under the 1974 Rules has not been followed in all the cases while making the appointment of the respondents/ teachers at initial stage. Some of the persons had admittedly been appointed merely by putting some note on the notice board of the College. Some of these teachers did not face the interview test before the Selection Board. Once an order of appointment itself had been bad at the time of initial appointment, it cannot be sanctified at a later stage". (Emphasis supplied) 17. In the instant cases the writ petitioners have filed the petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been inducted in Government service surreptitiously by concerned Civil Surgeon-cum-Chief Medical Officer by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical Officer. They were given notice to establish the genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio. We do not find any ground to disagree with the finding of the State Committee.
### Response:
0
### Explanation:
13. In Umadevi (supra) the Constitution Bench has held that unless appointment is made in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it was an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. A temporary employee could not claim to be made permanent on the expiry of his term of appointment. It was also clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.In the instant cases the writ petitioners have filed the petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed. The finding of the State Committee is that many writ petitioners had secured appointment by producing fake or forged appointment letter or had been inducted in Government service surreptitiously by concerned CivilMedical Officer by issuing a posting order. The writ petitioners are the beneficiaries of illegal orders made by the CivilMedical Officer. They were given notice to establish the genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio. We do not find any ground to disagree with the finding of the State Committee.
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Electrosteel Castings Limited Vs. UV Asset Reconstruction Company Limited & Ors | that except the words used fraud/fraudulent there are no specific particulars pleaded with respect to the fraud. It appears that by a clever drafting and using the words fraud/fraudulent without any specific particulars with respect to the fraud, the plaintiff – appellant herein intends to get out of the bar under Section 34 of the SARFAESI Act and wants the suit to be maintainable. As per the settled preposition of law mere mentioning and using the word fraud/fraudulent is not sufficient to satisfy the test of fraud. As per the settled preposition of law such a pleading/using the word fraud/ fraudulent without any material particulars would not tantamount to pleading of fraud. In case of Bishundeo Narain and Anr. (Supra) in para 28, it is observed and held as under:- .... Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order 6, Rule 4, Civil Procedure Code. 7.3 Similar view has been expressed in the case of Ladli Parshad Jaiswal (Supra) and after considering the decision of the Privy Council in Bharat Dharma Syndicate vs. Harish Chandra (64 IA 146), it is held that a litigant who prefers allegation of fraud or other improper conduct must place on record precise and specific details of these charges. Even as per Order VI Rule 4 in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the pleading. Similarly in the case of K.C Sharma & Company (Supra) it is held that fraud has to be pleaded with necessary particulars. In the case of Ram Singh and Ors. (Supra), it is observed and held by this Court that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances by which the suit is barred by law of limitation. 7.4 In the case of T. Arivandandam vs. T.V. Satyapal & Anr. (1977) 4 SCC 467, it is observed and held in para 5 as under:- 5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsifs Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. 7.5 A similar view has been expressed by this court in the recent decision in the case of P. Selathal & Ors. (Supra). 8. Having considered the pleadings and averments in the suit more particularly the use of word fraud even considering the case on behalf of the plaintiff, we find that the allegations of fraud are made without any particulars and only with a view to get out of the bar under Section 34 of the SARFAESI Act and by such a clever drafting the plaintiff intends to bring the suit maintainable despite the bar under Section 34 of the SARFAESI Act, which is not permissible at all and which cannot be approved. Even otherwise it is required to be noted that it is the case on behalf of the plaintiff – appellant herein that in view of the approved resolution plan under IBC and thereafter the original corporate debtor being discharged there shall not be any debt so far as the plaintiff – appellant herein is concerned and therefore the assignment deed can be said to be fraudulent. The aforesaid cannot be accepted. By that itself the assignment deed cannot be said to be fraudulent. In any case, whether there shall be legally enforceable debt so far as the plaintiff – appellant herein is concerned even after the approved resolution plan against the corporate debtor still there shall be the liability of the plaintiff and/or the assignee can be said to be secured creditor and/or whether any amount is due and payable by the plaintiff, are all questions which are required to be dealt with and considered by the DRT in the proceedings initiated under the SARFAESI Act. It is required to be noted that as such in the present case the assignee has already initiated the proceedings under Section 13 which can be challenged by the plaintiff – appellant herein by way of application under Section 17 of the SARFAESI Act before the DRT on whatever the legally available defences which may be available to it. We are of the firm opinion that the suit filed by the plaintiff – appellant herein was absolutely not maintainable in view of the bar contained under Section 34 of the SARFAESI Act. Therefore, as such the courts below have not committed any error in rejecting the plaint/dismissing the suit in view of the bar under Section 34 of the SARFAESI Act. | 0[ds]In case of Bishundeo Narain and Anr. (Supra) in para 28, it is observed and held as under:-.... Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order 6, Rule 4, Civil Procedure Code.7.3 Similar view has been expressed in the case of Ladli Parshad Jaiswal (Supra) and after considering the decision of the Privy Council in Bharat Dharma Syndicate vs. Harish Chandra (64 IA 146), it is held that a litigant who prefers allegation of fraud or other improper conduct must place on record precise and specific details of these charges. Even as per Order VI Rule 4 in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the pleading. Similarly in the case of K.C Sharma & Company (Supra) it is held that fraud has to be pleaded with necessary particulars. In the case of Ram Singh and Ors. (Supra), it is observed and held by this Court that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances by which the suit is barred by law of limitation.7.5 A similar view has been expressed by this court in the recent decision in the case of P. Selathal & Ors. (Supra).8. Having considered the pleadings and averments in the suit more particularly the use of word fraud even considering the case on behalf of the plaintiff, we find that the allegations of fraud are made without any particulars and only with a view to get out of the bar under Section 34 of the SARFAESI Act and by such a clever drafting the plaintiff intends to bring the suit maintainable despite the bar under Section 34 of the SARFAESI Act, which is not permissible at all and which cannot be approved. Even otherwise it is required to be noted that it is the case on behalf of the plaintiff – appellant herein that in view of the approved resolution plan under IBC and thereafter the original corporate debtor being discharged there shall not be any debt so far as the plaintiff – appellant herein is concerned and therefore the assignment deed can be said to be fraudulent. The aforesaid cannot be accepted. By that itself the assignment deed cannot be said to be fraudulent. In any case, whether there shall be legally enforceable debt so far as the plaintiff – appellant herein is concerned even after the approved resolution plan against the corporate debtor still there shall be the liability of the plaintiff and/or the assignee can be said to be secured creditor and/or whether any amount is due and payable by the plaintiff, are all questions which are required to be dealt with and considered by the DRT in the proceedings initiated under the SARFAESI Act. It is required to be noted that as such in the present case the assignee has already initiated the proceedings under Section 13 which can be challenged by the plaintiff – appellant herein by way of application under Section 17 of the SARFAESI Act before the DRT on whatever the legally available defences which may be available to it. We are of the firm opinion that the suit filed by the plaintiff – appellant herein was absolutely not maintainable in view of the bar contained under Section 34 of the SARFAESI Act. Therefore, as such the courts below have not committed any error in rejecting the plaint/dismissing the suit in view of the bar under Section 34 of the SARFAESI Act. | 0 | 4,214 | 754 | ### 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:
that except the words used fraud/fraudulent there are no specific particulars pleaded with respect to the fraud. It appears that by a clever drafting and using the words fraud/fraudulent without any specific particulars with respect to the fraud, the plaintiff – appellant herein intends to get out of the bar under Section 34 of the SARFAESI Act and wants the suit to be maintainable. As per the settled preposition of law mere mentioning and using the word fraud/fraudulent is not sufficient to satisfy the test of fraud. As per the settled preposition of law such a pleading/using the word fraud/ fraudulent without any material particulars would not tantamount to pleading of fraud. In case of Bishundeo Narain and Anr. (Supra) in para 28, it is observed and held as under:- .... Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order 6, Rule 4, Civil Procedure Code. 7.3 Similar view has been expressed in the case of Ladli Parshad Jaiswal (Supra) and after considering the decision of the Privy Council in Bharat Dharma Syndicate vs. Harish Chandra (64 IA 146), it is held that a litigant who prefers allegation of fraud or other improper conduct must place on record precise and specific details of these charges. Even as per Order VI Rule 4 in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the pleading. Similarly in the case of K.C Sharma & Company (Supra) it is held that fraud has to be pleaded with necessary particulars. In the case of Ram Singh and Ors. (Supra), it is observed and held by this Court that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances by which the suit is barred by law of limitation. 7.4 In the case of T. Arivandandam vs. T.V. Satyapal & Anr. (1977) 4 SCC 467, it is observed and held in para 5 as under:- 5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsifs Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. 7.5 A similar view has been expressed by this court in the recent decision in the case of P. Selathal & Ors. (Supra). 8. Having considered the pleadings and averments in the suit more particularly the use of word fraud even considering the case on behalf of the plaintiff, we find that the allegations of fraud are made without any particulars and only with a view to get out of the bar under Section 34 of the SARFAESI Act and by such a clever drafting the plaintiff intends to bring the suit maintainable despite the bar under Section 34 of the SARFAESI Act, which is not permissible at all and which cannot be approved. Even otherwise it is required to be noted that it is the case on behalf of the plaintiff – appellant herein that in view of the approved resolution plan under IBC and thereafter the original corporate debtor being discharged there shall not be any debt so far as the plaintiff – appellant herein is concerned and therefore the assignment deed can be said to be fraudulent. The aforesaid cannot be accepted. By that itself the assignment deed cannot be said to be fraudulent. In any case, whether there shall be legally enforceable debt so far as the plaintiff – appellant herein is concerned even after the approved resolution plan against the corporate debtor still there shall be the liability of the plaintiff and/or the assignee can be said to be secured creditor and/or whether any amount is due and payable by the plaintiff, are all questions which are required to be dealt with and considered by the DRT in the proceedings initiated under the SARFAESI Act. It is required to be noted that as such in the present case the assignee has already initiated the proceedings under Section 13 which can be challenged by the plaintiff – appellant herein by way of application under Section 17 of the SARFAESI Act before the DRT on whatever the legally available defences which may be available to it. We are of the firm opinion that the suit filed by the plaintiff – appellant herein was absolutely not maintainable in view of the bar contained under Section 34 of the SARFAESI Act. Therefore, as such the courts below have not committed any error in rejecting the plaint/dismissing the suit in view of the bar under Section 34 of the SARFAESI Act.
### Response:
0
### Explanation:
In case of Bishundeo Narain and Anr. (Supra) in para 28, it is observed and held as under:-.... Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order 6, Rule 4, Civil Procedure Code.7.3 Similar view has been expressed in the case of Ladli Parshad Jaiswal (Supra) and after considering the decision of the Privy Council in Bharat Dharma Syndicate vs. Harish Chandra (64 IA 146), it is held that a litigant who prefers allegation of fraud or other improper conduct must place on record precise and specific details of these charges. Even as per Order VI Rule 4 in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the pleading. Similarly in the case of K.C Sharma & Company (Supra) it is held that fraud has to be pleaded with necessary particulars. In the case of Ram Singh and Ors. (Supra), it is observed and held by this Court that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances by which the suit is barred by law of limitation.7.5 A similar view has been expressed by this court in the recent decision in the case of P. Selathal & Ors. (Supra).8. Having considered the pleadings and averments in the suit more particularly the use of word fraud even considering the case on behalf of the plaintiff, we find that the allegations of fraud are made without any particulars and only with a view to get out of the bar under Section 34 of the SARFAESI Act and by such a clever drafting the plaintiff intends to bring the suit maintainable despite the bar under Section 34 of the SARFAESI Act, which is not permissible at all and which cannot be approved. Even otherwise it is required to be noted that it is the case on behalf of the plaintiff – appellant herein that in view of the approved resolution plan under IBC and thereafter the original corporate debtor being discharged there shall not be any debt so far as the plaintiff – appellant herein is concerned and therefore the assignment deed can be said to be fraudulent. The aforesaid cannot be accepted. By that itself the assignment deed cannot be said to be fraudulent. In any case, whether there shall be legally enforceable debt so far as the plaintiff – appellant herein is concerned even after the approved resolution plan against the corporate debtor still there shall be the liability of the plaintiff and/or the assignee can be said to be secured creditor and/or whether any amount is due and payable by the plaintiff, are all questions which are required to be dealt with and considered by the DRT in the proceedings initiated under the SARFAESI Act. It is required to be noted that as such in the present case the assignee has already initiated the proceedings under Section 13 which can be challenged by the plaintiff – appellant herein by way of application under Section 17 of the SARFAESI Act before the DRT on whatever the legally available defences which may be available to it. We are of the firm opinion that the suit filed by the plaintiff – appellant herein was absolutely not maintainable in view of the bar contained under Section 34 of the SARFAESI Act. Therefore, as such the courts below have not committed any error in rejecting the plaint/dismissing the suit in view of the bar under Section 34 of the SARFAESI Act.
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Prabhudas Damodar Kotecha & Others Vs. Manhabala Jeram Damodar & Another | the PSCC Act. The purpose is evidently to make it more wide so as to cover gratuitous licensee as well with an object to avoid multiplicity of proceedings in different courts causing unnecessary delay, waste of money and time etc. The object is to see that all suits and proceedings between a landlord and a tenant or a licensor and a licensee for recovery of possession of premises or for recovery of rent or licence fee irrespective of the value of the subject matter should go to and be disposed of by Small Cause Court. The object behind bringing the licensor and the licencee within the purview of Section 41(1) by the 1976 Amendment was to curb any mischief of unscrupulous elements using dilatory tactics in prolonging the cases for recovery of possession instituted by the landlord/licensor and to defeat their right of approaching the Court for quick relief and to avoid multiplicity of litigation with an issue of jurisdiction thereby lingering the disputes for years and years. 48. We may in this connection also refer to the judgment of this Court in Km. Sonia Bhatia v. State of U.P. and Ors. (1981) 2 SCC 585 , wherein this Court was concerned with the ambit of expression “transfer” and “consideration” occurring in U.P. Imposition of Ceiling on Land Holdings Act. Both the expressions were not defined in the Act. In such circumstances, this Court observed that the word “transfer” has been used by the legislature in general sense of the term as defined in the Transfer of Property Act. This Court also observed that the word “transfer” being a term of well known legal significance having well ascertained incidents, the legislature did not think it necessary to define the term “transfer” separately. The ratio laid down by the apex court in the above-mentioned judgment in our view is also applicable when we interpret the provisions of the PSCC Act because the object of the Act is to suppress the mischief and advance the remedy. 49. The interpretation of the expressions licensor and licensee which we find in Section 41(1), in our view, is in tune with the objects and reasons reflected in the amendment of the PSCC Act by the Maharashtra Act (XIX) of 1976 which we have already extracted in the earlier part of the judgment. The objects and reasons as such may not be admissible as an aid of construction to the statute but it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time of introduction of the bill and the extent and urgency of the evil which was sought to be remedied. The legal position has been well settled by the judgment of this Court in M.K. Ranganathan and Anr. v. Government of Madras and Ors. AIR 1955 SC 604 . It is trite law that the statement of objects and reasons is a key to unlock the mind of legislature in relation to substantive provisions of statutes and it is also well settled that a statute is best interpreted when we know why it was enacted. This Court in Bhaiji v. Sub Divisional Officer, Thandla and Ors. (2003) 1 SCC 692 stated that the weight of the judicial authority leans in favour of the view that the statement of objects and reasons cannot be utilized for the purpose of restricting and controlling statute and excluding from its operation such transactions which it plainly covers. Applying the above-mentioned principle, we cannot restrict the meaning and expression licensee occurring in Section 41(1) of the PSCC Act to mean the licensee with monetary consideration as defined under Section 5(4A) of the Rent Act. ONE UMBERALLA POLICY 50. We are of the considered view that the High Court has correctly noticed that the clubbing of the expression “licensor and licensee” with “landlord and tenant” in Section 41(1) of the PSCC Act and clubbing of causes relating to recovery of licence fee is only with a view to bring all suits between the “landlord and tenant” and the “licensor and licensee” under one umberalla to avoid unnecessary delay, expenses and hardship. The act of the legislature was to bring all suits between “landlord and tenant” and “licensor and licensee” whether under the Rent Act or under the PSCC Act under one roof. We find it difficult to accept the proposition that the legislature after having conferred exclusive jurisdiction in one Court in all the suits between licensee and licensor should have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. The various amendments made to Rent Act as well the Objects and Reasons of the Maharashtra Act XIX of 1976 would clearly indicate that the intention of the legislature was to avoid unnecessary delay, expense and hardship to the suitor or else they have to move from the one court to the other not only on the question of jurisdiction but also getting reliefs.51. We are of the view that in such a situation the court also should give a liberal construction and attempt should be to achieve the purpose and object of the legislature and not to frustrate it. In such circumstances, we are of the considered opinion that the expression licensee employed in Section 41 is used in general sense of term as defined in Section 52 of the Indian Easement Act. 52. We have elaborately discussed the various legal principles and indicated that the expression ‘licensee’ in Section 41(1) of the PSCC Act would take a gratuitous licensee as well. The reason for such an interpretation has been elaborately discussed in the earlier part of the judgment. Looking from all angles in our view the expression ‘licensee’ used in the PSCC Act does not derive its meaning from the expression ‘licensee’ as used in Sub-section (4A) of Section 5 of the Rent Act and that the expression “licensee” used in Section 41(1) is a term of wider import intended to bring in a gratuitous licensee as well. 53. | 0[ds]We find the expressionin Section 41 of the PSCC Act has been used to fully achieve the object and purpose especially of 1976 Amendment Act and legislature has used clear and plain language and the principle noscitur a sociis is inapplicable when intention is clear and unequivocal. It is only where the intention of the legislature in associating wider words with words of a narrow significance is doubtful or otherwise not clear, the rule of Noscitur a Sociis can be applied. When the intention of the legislature in using the expressionin Section 41(1) of the PSCC Act is clear and unambiguous, the principle of Noscitur a Sociis is not to benotice in the instant case that the concept of licence and lease were dealt with by contemporary statutes - Indian Easement Act, Transfer of Property Act and Section 41 of the PSCC Act and, as already indicated, all those statutes were enacted in the year 1882. Therefore, Section 41(1) of the PSCC Act could not have been contemplated any other meaning of the termbut only the permission as contemplated by Section 52 of the Indian Easements Act. The PSCC Act is a procedural law and as already indicated, the expressionused in Section 41 of the PSCC Act (as amended by Maharashtra Act No. XIX of 1976) relate to immovable property and Section 52 of the Indian Easements Act which defines a licence has an inseparable connection to immovable property and property law. Legislature was well aware of those contemporaneous statutes, that was the reason, why the expression licence as such has not been defined in the PSCC Act with the idea that the expression used in a contemporaneous statutes would be employed so as to interpret Section 41 of the PSCC Act. Above-mentioned principle, in our view, would apply to the instantare of the considered view that the High Court has correctly noticed that the clubbing of the expressionrd andin Section 41(1) of the PSCC Act and clubbing of causes relating to recovery of licence fee is only with a view to bring all suits between theand theunder one umberalla to avoid unnecessary delay, expenses and hardship. The act of the legislature was to bring all suits betweenor andwhether under the Rent Act or under the PSCC Act under one roof. We find it difficult to accept the proposition that the legislature after having conferred exclusive jurisdiction in one Court in all the suits between licensee and licensor should have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. The various amendments made to Rent Act as well the Objects and Reasons of the Maharashtra Act XIX of 1976 would clearly indicate that the intention of the legislature was to avoid unnecessary delay, expense and hardship to the suitor or else they have to move from the one court to the other not only on the question of jurisdiction but also getting reliefs.51. We are of the view that in such a situation the court also should give a liberal construction and attempt should be to achieve the purpose and object of the legislature and not to frustrate it. In such circumstances, we are of the considered opinion that the expression licensee employed in Section 41 is used in general sense of term as defined in Section 52 of the Indian Easementhave elaborately discussed the various legal principles and indicated that the expressionin Section 41(1) of the PSCC Act would take a gratuitous licensee as well. The reason for such an interpretation has been elaborately discussed in the earlier part of the judgment. Looking from all angles in our view the expressionused in the PSCC Act does not derive its meaning from the expressionas used in Sub-section (4A) of Section 5 of the Rent Act and that the expressionused in Section 41(1) is a term of wider import intended to bring in a gratuitous licensee as well. | 0 | 9,772 | 702 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the PSCC Act. The purpose is evidently to make it more wide so as to cover gratuitous licensee as well with an object to avoid multiplicity of proceedings in different courts causing unnecessary delay, waste of money and time etc. The object is to see that all suits and proceedings between a landlord and a tenant or a licensor and a licensee for recovery of possession of premises or for recovery of rent or licence fee irrespective of the value of the subject matter should go to and be disposed of by Small Cause Court. The object behind bringing the licensor and the licencee within the purview of Section 41(1) by the 1976 Amendment was to curb any mischief of unscrupulous elements using dilatory tactics in prolonging the cases for recovery of possession instituted by the landlord/licensor and to defeat their right of approaching the Court for quick relief and to avoid multiplicity of litigation with an issue of jurisdiction thereby lingering the disputes for years and years. 48. We may in this connection also refer to the judgment of this Court in Km. Sonia Bhatia v. State of U.P. and Ors. (1981) 2 SCC 585 , wherein this Court was concerned with the ambit of expression “transfer” and “consideration” occurring in U.P. Imposition of Ceiling on Land Holdings Act. Both the expressions were not defined in the Act. In such circumstances, this Court observed that the word “transfer” has been used by the legislature in general sense of the term as defined in the Transfer of Property Act. This Court also observed that the word “transfer” being a term of well known legal significance having well ascertained incidents, the legislature did not think it necessary to define the term “transfer” separately. The ratio laid down by the apex court in the above-mentioned judgment in our view is also applicable when we interpret the provisions of the PSCC Act because the object of the Act is to suppress the mischief and advance the remedy. 49. The interpretation of the expressions licensor and licensee which we find in Section 41(1), in our view, is in tune with the objects and reasons reflected in the amendment of the PSCC Act by the Maharashtra Act (XIX) of 1976 which we have already extracted in the earlier part of the judgment. The objects and reasons as such may not be admissible as an aid of construction to the statute but it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time of introduction of the bill and the extent and urgency of the evil which was sought to be remedied. The legal position has been well settled by the judgment of this Court in M.K. Ranganathan and Anr. v. Government of Madras and Ors. AIR 1955 SC 604 . It is trite law that the statement of objects and reasons is a key to unlock the mind of legislature in relation to substantive provisions of statutes and it is also well settled that a statute is best interpreted when we know why it was enacted. This Court in Bhaiji v. Sub Divisional Officer, Thandla and Ors. (2003) 1 SCC 692 stated that the weight of the judicial authority leans in favour of the view that the statement of objects and reasons cannot be utilized for the purpose of restricting and controlling statute and excluding from its operation such transactions which it plainly covers. Applying the above-mentioned principle, we cannot restrict the meaning and expression licensee occurring in Section 41(1) of the PSCC Act to mean the licensee with monetary consideration as defined under Section 5(4A) of the Rent Act. ONE UMBERALLA POLICY 50. We are of the considered view that the High Court has correctly noticed that the clubbing of the expression “licensor and licensee” with “landlord and tenant” in Section 41(1) of the PSCC Act and clubbing of causes relating to recovery of licence fee is only with a view to bring all suits between the “landlord and tenant” and the “licensor and licensee” under one umberalla to avoid unnecessary delay, expenses and hardship. The act of the legislature was to bring all suits between “landlord and tenant” and “licensor and licensee” whether under the Rent Act or under the PSCC Act under one roof. We find it difficult to accept the proposition that the legislature after having conferred exclusive jurisdiction in one Court in all the suits between licensee and licensor should have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. The various amendments made to Rent Act as well the Objects and Reasons of the Maharashtra Act XIX of 1976 would clearly indicate that the intention of the legislature was to avoid unnecessary delay, expense and hardship to the suitor or else they have to move from the one court to the other not only on the question of jurisdiction but also getting reliefs.51. We are of the view that in such a situation the court also should give a liberal construction and attempt should be to achieve the purpose and object of the legislature and not to frustrate it. In such circumstances, we are of the considered opinion that the expression licensee employed in Section 41 is used in general sense of term as defined in Section 52 of the Indian Easement Act. 52. We have elaborately discussed the various legal principles and indicated that the expression ‘licensee’ in Section 41(1) of the PSCC Act would take a gratuitous licensee as well. The reason for such an interpretation has been elaborately discussed in the earlier part of the judgment. Looking from all angles in our view the expression ‘licensee’ used in the PSCC Act does not derive its meaning from the expression ‘licensee’ as used in Sub-section (4A) of Section 5 of the Rent Act and that the expression “licensee” used in Section 41(1) is a term of wider import intended to bring in a gratuitous licensee as well. 53.
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### Explanation:
We find the expressionin Section 41 of the PSCC Act has been used to fully achieve the object and purpose especially of 1976 Amendment Act and legislature has used clear and plain language and the principle noscitur a sociis is inapplicable when intention is clear and unequivocal. It is only where the intention of the legislature in associating wider words with words of a narrow significance is doubtful or otherwise not clear, the rule of Noscitur a Sociis can be applied. When the intention of the legislature in using the expressionin Section 41(1) of the PSCC Act is clear and unambiguous, the principle of Noscitur a Sociis is not to benotice in the instant case that the concept of licence and lease were dealt with by contemporary statutes - Indian Easement Act, Transfer of Property Act and Section 41 of the PSCC Act and, as already indicated, all those statutes were enacted in the year 1882. Therefore, Section 41(1) of the PSCC Act could not have been contemplated any other meaning of the termbut only the permission as contemplated by Section 52 of the Indian Easements Act. The PSCC Act is a procedural law and as already indicated, the expressionused in Section 41 of the PSCC Act (as amended by Maharashtra Act No. XIX of 1976) relate to immovable property and Section 52 of the Indian Easements Act which defines a licence has an inseparable connection to immovable property and property law. Legislature was well aware of those contemporaneous statutes, that was the reason, why the expression licence as such has not been defined in the PSCC Act with the idea that the expression used in a contemporaneous statutes would be employed so as to interpret Section 41 of the PSCC Act. Above-mentioned principle, in our view, would apply to the instantare of the considered view that the High Court has correctly noticed that the clubbing of the expressionrd andin Section 41(1) of the PSCC Act and clubbing of causes relating to recovery of licence fee is only with a view to bring all suits between theand theunder one umberalla to avoid unnecessary delay, expenses and hardship. The act of the legislature was to bring all suits betweenor andwhether under the Rent Act or under the PSCC Act under one roof. We find it difficult to accept the proposition that the legislature after having conferred exclusive jurisdiction in one Court in all the suits between licensee and licensor should have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. The various amendments made to Rent Act as well the Objects and Reasons of the Maharashtra Act XIX of 1976 would clearly indicate that the intention of the legislature was to avoid unnecessary delay, expense and hardship to the suitor or else they have to move from the one court to the other not only on the question of jurisdiction but also getting reliefs.51. We are of the view that in such a situation the court also should give a liberal construction and attempt should be to achieve the purpose and object of the legislature and not to frustrate it. In such circumstances, we are of the considered opinion that the expression licensee employed in Section 41 is used in general sense of term as defined in Section 52 of the Indian Easementhave elaborately discussed the various legal principles and indicated that the expressionin Section 41(1) of the PSCC Act would take a gratuitous licensee as well. The reason for such an interpretation has been elaborately discussed in the earlier part of the judgment. Looking from all angles in our view the expressionused in the PSCC Act does not derive its meaning from the expressionas used in Sub-section (4A) of Section 5 of the Rent Act and that the expressionused in Section 41(1) is a term of wider import intended to bring in a gratuitous licensee as well.
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K.N. Farms Industries (Pvt.) Ltd Vs. State Of Bihar | second is the role of the object of the Act while interpreting its provisions. It is true that one of the objects of the Act is to take over surplus land from large land-holders, and distribute such excess land among landless. But it does not follow therefrom that only land that could be distributed among landless for agricultural/horticultural purposes, can be considered as land and not other lands. The courts, while interpreting the provisions of any Act should, no doubt, adopt an object oriented approach keeping in mind the principle that legislative futility is to be avoided so long as interpretative possibility permits. But at the same time, the courts will have to keep in mind that the object oriented approach, cannot be carried to the extent of doing violence to the plain language used in the statute, by re-writing the words of a statute in place of the actual words used, or by ignoring definite words used in the statue. (See : the observations of this court in Commissioner of Income Tax v. Budhraja and Company – 1994 Supp. (1) SCC 208 and Justice G.P. Singhs Principles of Statutory Interpretation - 11th Edition, Page 116-117). Therefore the decision in S. Naganatha Ayyar (supra) relied on by the appellant will be of no assistance.10. The third is the emphasis on the general meaning of the word tank and the consequential contention that no one would think of a tank as land. The argument is sea is not considered as land, river is not land and therefore tank also cannot be land. It is pointed out that if the determining factor is existence of land or level surface beneath the water to say tank is land, then even sea and rivers also will have to be treated as land. It is submitted that when land is perennially covered with water, such land cease to be land as ordinarily understood, and become water bodies which may be an ocean, sea, river, lake, tank or pond, depending upon the size, situation and nature of the water body. Reliance is placed on the decision of Arsed Ali (supra) where it was held that a pond abounding with fish was not land. But general meanings and perceptions, or decisions rendered with reference to statutes containing different definitions will not be of any assistance in interpreting a word which is clearly, specially and exhaustively defined in the Act itself. We will have to find out the meaning of the word, with reference to its definition in the Act. While the object of the Act can be one of the indicators used in interpretation, clear and specific words used cannot be ignored. In fact the learned Single Judge keeping in view the object of the Act, has held that only tanks used for agricultural purposes will be land for purposes of the Act and not all tanks in general. Let us now examine the provisions of the Act to find out whether a tank used for agricultural purposes is land, as held by the High Court, keeping the above principles in view. 11. It is no doubt true that the word land would not have included a tank, in the normal sense, but for its definition specifically including "even land perennially submerged under water". The word tank is defined in P. Ramanatha Aiyars Advanced Law Lexicon, (Third Edition, Vol. 4, page 4608) as follows : "Tank". - A pond or pool, or lake; a tank is often of many acres in extent; an irrigation reservoir, a dammed up ravine or other suitable place for collecting the water............ All the following three together, namely (i) the underground or the land underneath, on which water is stored (ii) the embankment or the bandh which serves the purpose of keeping the water confined within its boundary and (iii) the bed or pet of the tank, is known as tank. 12. As noticed above, the definition of "land" includes homestead of the land-holder. Explanation (I) to section 2(f) defines "homestead" as including any tank appurtenant to the dwelling house. If a tank appurtenant to the dwelling house is land, it follows that any tank appurtenant to agricultural/horticultural land used to irrigate or water such agricultural/horticultural land, will also be land. When tank is specifically referred to as land in Explanation-I to the definition of the word land in section 2(f), it is not possible to accept the contention that no tank can be land.13. Explanation (II) to the definition of land states that "land perennially submerged under water" shall not include "submerged in the bed of a river" . This clearly implies that in the State of Bihar/Jharkhand, all land perennially submerged under water, except riverbeds, is land. The apparent legislative intention is that not only the land actually used for agriculture or horticulture but any or every land which is used incidental or appurtenant to agriculture or horticulture, is also land. This is evident from the definition of homestead. Any dwelling house which is situated in an agricultural or horticultural land, which is intended for the dwelling of persons is a homestead and is included in the definition of land. Further, any outbuilding used for the purposes connected with agriculture or horticulture is also part of homestead and therefore, land. Any artificial or natural body of water, situated in private holdings, which irrigates or supplies water for the agricultural or horticultural purposes is also land. The word even land with reference to the land submerged under water shows that what is excluded is riverbeds or ravines filled with water. The use of the words even land perennially submerged under water in the definition of land would thus indicate that a tank also is land. What is excluded from the definition of land is the riverbed, or a tank which is a dammed ravine. Section 4(f) of the Act which prescribes the ceiling area in regard to Class VI lands also reiterates that even land perennially submerged under water, is land. | 0[ds]6. At the outset, we should notice that we are not concerned with the validity of the Act or the validity of the definition of land in the Act. We are concerned only with the true meaning of the word land as defined in the Act. When a particular word is defined in an Act with reference to its ordinary and normal meaning, and then includes certain additional meaning which would not normally follow but for the specific inclusion, it is not possible to contend that that the extended meaning is contrary to the general or normal meaning and therefore it should be ignored. To put it differently, if a word is defined as A and B and includes C, D, E and F, the word includes is used in order to enlarge the meaning of the words A and B; and when it is so used, those words must be construed as comprehending not only what they signify according to their natural import (that is A and B) but also those things which the interpretation clause declares that they shall include (that is C, D, E & F). (See : generally the observations in Justice G.P. Singhs Principles of Statutory Interpretation11th (2008) Edition PageAt the outset we should clear certainFirst is the amendment to the Act in Bihar whereby the words "even land" has been substituted by the words "also the land" in the year 2002. The said amendment cannot be applied or extended to the State of Jharkhand as that State has not made such amendment. Secondly, it is not possible to treat the said amendment as mere clarification orent position. There are sufficient indications in the Act to show that the word even was not used to mean also. The Hindi version of the Act uses the words "Barhaon mahine jalmagan Samtal Bhoomi" for the English words "even land perennially submerged under water". The use of the word Samtal for even shows the word even was not intended to mean "also" , but to mean "level surface". Further, section 4(f) lists "even land perennially submerged under water" as one of the categories of land to be considered as class VI land along with hilly, sandy, forest land. Therefore, the words "even land perennially submerged under water" refer to "level land perennially submerged under water" as contrasted from river beds covered with water or ravines filled with water.9. The second is the role of the object of the Act while interpreting its provisions. It is true that one of the objects of the Act is to take over surplus land from largeand distribute such excess land among landless. But it does not follow therefrom that only land that could be distributed among landless for agricultural/horticultural purposes, can be considered as land and not other lands. The courts, while interpreting the provisions of any Act should, no doubt, adopt an object oriented approach keeping in mind the principle that legislative futility is to be avoided so long as interpretative possibility permits. But at the same time, the courts will have to keep in mind that the object oriented approach, cannot be carried to the extent of doing violence to the plain language used in the statute, bythe words of a statute in place of the actual words used, or by ignoring definite words used in the statue. (See : the observations of this court in Commissioner of Income Tax v. Budhraja and Company – 1994 Supp. (1) SCC 208 and Justice G.P. Singhs Principles of Statutory Interpretation11th Edition, PageTherefore the decision in S. Naganatha Ayyar (supra) relied on by the appellant will be of no assistance.10. The third is the emphasis on the general meaning of the word tank and the consequential contention that no one would think of a tank as land. The argument is sea is not considered as land, river is not land and therefore tank also cannot be land. It is pointed out that if the determining factor is existence of land or level surface beneath the water to say tank is land, then even sea and rivers also will have to be treated as land. It is submitted that when land is perennially covered with water, such land cease to be land as ordinarily understood, and become water bodies which may be an ocean, sea, river, lake, tank or pond, depending upon the size, situation and nature of the water body. Reliance is placed on the decision of Arsed Ali (supra) where it was held that a pond abounding with fish was not land. But general meanings and perceptions, or decisions rendered with reference to statutes containing different definitions will not be of any assistance in interpreting a word which is clearly, specially and exhaustively defined in the Act itself. We will have to find out the meaning of the word, with reference to its definition in the Act. While the object of the Act can be one of the indicators used in interpretation, clear and specific words used cannot be ignored. In fact the learned Single Judge keeping in view the object of the Act, has held that only tanks used for agricultural purposes will be land for purposes of the Act and not all tanks in general. Let us now examine the provisions of the Act to find out whether a tank used for agricultural purposes is land, as held by the High Court, keeping the above principles in view.As noticed above, the definition of "land" includes homestead of theExplanation (I) to section 2(f) defines "homestead" as including any tank appurtenant to the dwelling house. If a tank appurtenant to the dwelling house is land, it follows that any tank appurtenant to agricultural/horticultural land used to irrigate or water such agricultural/horticultural land, will also be land. When tank is specifically referred to as land into the definition of the word land in section 2(f), it is not possible to accept the contention that no tank can be land.13. Explanation (II) to the definition of land states that "land perennially submerged under water" shall not include "submerged in the bed of a river" . This clearly implies that in the State of Bihar/Jharkhand, all land perennially submerged under water, except riverbeds, is land. The apparent legislative intention is that not only the land actually used for agriculture or horticulture but any or every land which is used incidental or appurtenant to agriculture or horticulture, is also land. This is evident from the definition of homestead. Any dwelling house which is situated in an agricultural or horticultural land, which is intended for the dwelling of persons is a homestead and is included in the definition of land. Further, any outbuilding used for the purposes connected with agriculture or horticulture is also part of homestead and therefore, land. Any artificial or natural body of water, situated in private holdings, which irrigates or supplies water for the agricultural or horticultural purposes is also land. The word even land with reference to the land submerged under water shows that what is excluded is riverbeds or ravines filled with water. The use of the words even land perennially submerged under water in the definition of land would thus indicate that a tank also is land. What is excluded from the definition of land is the riverbed, or a tank which is a dammed ravine. Section 4(f) of the Act which prescribes the ceiling area in regard to Class VI lands also reiterates that even land perennially submerged under water, is land. | 0 | 3,602 | 1,418 | ### 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:
second is the role of the object of the Act while interpreting its provisions. It is true that one of the objects of the Act is to take over surplus land from large land-holders, and distribute such excess land among landless. But it does not follow therefrom that only land that could be distributed among landless for agricultural/horticultural purposes, can be considered as land and not other lands. The courts, while interpreting the provisions of any Act should, no doubt, adopt an object oriented approach keeping in mind the principle that legislative futility is to be avoided so long as interpretative possibility permits. But at the same time, the courts will have to keep in mind that the object oriented approach, cannot be carried to the extent of doing violence to the plain language used in the statute, by re-writing the words of a statute in place of the actual words used, or by ignoring definite words used in the statue. (See : the observations of this court in Commissioner of Income Tax v. Budhraja and Company – 1994 Supp. (1) SCC 208 and Justice G.P. Singhs Principles of Statutory Interpretation - 11th Edition, Page 116-117). Therefore the decision in S. Naganatha Ayyar (supra) relied on by the appellant will be of no assistance.10. The third is the emphasis on the general meaning of the word tank and the consequential contention that no one would think of a tank as land. The argument is sea is not considered as land, river is not land and therefore tank also cannot be land. It is pointed out that if the determining factor is existence of land or level surface beneath the water to say tank is land, then even sea and rivers also will have to be treated as land. It is submitted that when land is perennially covered with water, such land cease to be land as ordinarily understood, and become water bodies which may be an ocean, sea, river, lake, tank or pond, depending upon the size, situation and nature of the water body. Reliance is placed on the decision of Arsed Ali (supra) where it was held that a pond abounding with fish was not land. But general meanings and perceptions, or decisions rendered with reference to statutes containing different definitions will not be of any assistance in interpreting a word which is clearly, specially and exhaustively defined in the Act itself. We will have to find out the meaning of the word, with reference to its definition in the Act. While the object of the Act can be one of the indicators used in interpretation, clear and specific words used cannot be ignored. In fact the learned Single Judge keeping in view the object of the Act, has held that only tanks used for agricultural purposes will be land for purposes of the Act and not all tanks in general. Let us now examine the provisions of the Act to find out whether a tank used for agricultural purposes is land, as held by the High Court, keeping the above principles in view. 11. It is no doubt true that the word land would not have included a tank, in the normal sense, but for its definition specifically including "even land perennially submerged under water". The word tank is defined in P. Ramanatha Aiyars Advanced Law Lexicon, (Third Edition, Vol. 4, page 4608) as follows : "Tank". - A pond or pool, or lake; a tank is often of many acres in extent; an irrigation reservoir, a dammed up ravine or other suitable place for collecting the water............ All the following three together, namely (i) the underground or the land underneath, on which water is stored (ii) the embankment or the bandh which serves the purpose of keeping the water confined within its boundary and (iii) the bed or pet of the tank, is known as tank. 12. As noticed above, the definition of "land" includes homestead of the land-holder. Explanation (I) to section 2(f) defines "homestead" as including any tank appurtenant to the dwelling house. If a tank appurtenant to the dwelling house is land, it follows that any tank appurtenant to agricultural/horticultural land used to irrigate or water such agricultural/horticultural land, will also be land. When tank is specifically referred to as land in Explanation-I to the definition of the word land in section 2(f), it is not possible to accept the contention that no tank can be land.13. Explanation (II) to the definition of land states that "land perennially submerged under water" shall not include "submerged in the bed of a river" . This clearly implies that in the State of Bihar/Jharkhand, all land perennially submerged under water, except riverbeds, is land. The apparent legislative intention is that not only the land actually used for agriculture or horticulture but any or every land which is used incidental or appurtenant to agriculture or horticulture, is also land. This is evident from the definition of homestead. Any dwelling house which is situated in an agricultural or horticultural land, which is intended for the dwelling of persons is a homestead and is included in the definition of land. Further, any outbuilding used for the purposes connected with agriculture or horticulture is also part of homestead and therefore, land. Any artificial or natural body of water, situated in private holdings, which irrigates or supplies water for the agricultural or horticultural purposes is also land. The word even land with reference to the land submerged under water shows that what is excluded is riverbeds or ravines filled with water. The use of the words even land perennially submerged under water in the definition of land would thus indicate that a tank also is land. What is excluded from the definition of land is the riverbed, or a tank which is a dammed ravine. Section 4(f) of the Act which prescribes the ceiling area in regard to Class VI lands also reiterates that even land perennially submerged under water, is land.
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0
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has not made such amendment. Secondly, it is not possible to treat the said amendment as mere clarification orent position. There are sufficient indications in the Act to show that the word even was not used to mean also. The Hindi version of the Act uses the words "Barhaon mahine jalmagan Samtal Bhoomi" for the English words "even land perennially submerged under water". The use of the word Samtal for even shows the word even was not intended to mean "also" , but to mean "level surface". Further, section 4(f) lists "even land perennially submerged under water" as one of the categories of land to be considered as class VI land along with hilly, sandy, forest land. Therefore, the words "even land perennially submerged under water" refer to "level land perennially submerged under water" as contrasted from river beds covered with water or ravines filled with water.9. The second is the role of the object of the Act while interpreting its provisions. It is true that one of the objects of the Act is to take over surplus land from largeand distribute such excess land among landless. But it does not follow therefrom that only land that could be distributed among landless for agricultural/horticultural purposes, can be considered as land and not other lands. The courts, while interpreting the provisions of any Act should, no doubt, adopt an object oriented approach keeping in mind the principle that legislative futility is to be avoided so long as interpretative possibility permits. But at the same time, the courts will have to keep in mind that the object oriented approach, cannot be carried to the extent of doing violence to the plain language used in the statute, bythe words of a statute in place of the actual words used, or by ignoring definite words used in the statue. (See : the observations of this court in Commissioner of Income Tax v. Budhraja and Company – 1994 Supp. (1) SCC 208 and Justice G.P. Singhs Principles of Statutory Interpretation11th Edition, PageTherefore the decision in S. Naganatha Ayyar (supra) relied on by the appellant will be of no assistance.10. The third is the emphasis on the general meaning of the word tank and the consequential contention that no one would think of a tank as land. The argument is sea is not considered as land, river is not land and therefore tank also cannot be land. It is pointed out that if the determining factor is existence of land or level surface beneath the water to say tank is land, then even sea and rivers also will have to be treated as land. It is submitted that when land is perennially covered with water, such land cease to be land as ordinarily understood, and become water bodies which may be an ocean, sea, river, lake, tank or pond, depending upon the size, situation and nature of the water body. Reliance is placed on the decision of Arsed Ali (supra) where it was held that a pond abounding with fish was not land. But general meanings and perceptions, or decisions rendered with reference to statutes containing different definitions will not be of any assistance in interpreting a word which is clearly, specially and exhaustively defined in the Act itself. We will have to find out the meaning of the word, with reference to its definition in the Act. While the object of the Act can be one of the indicators used in interpretation, clear and specific words used cannot be ignored. In fact the learned Single Judge keeping in view the object of the Act, has held that only tanks used for agricultural purposes will be land for purposes of the Act and not all tanks in general. Let us now examine the provisions of the Act to find out whether a tank used for agricultural purposes is land, as held by the High Court, keeping the above principles in view.As noticed above, the definition of "land" includes homestead of theExplanation (I) to section 2(f) defines "homestead" as including any tank appurtenant to the dwelling house. If a tank appurtenant to the dwelling house is land, it follows that any tank appurtenant to agricultural/horticultural land used to irrigate or water such agricultural/horticultural land, will also be land. When tank is specifically referred to as land into the definition of the word land in section 2(f), it is not possible to accept the contention that no tank can be land.13. Explanation (II) to the definition of land states that "land perennially submerged under water" shall not include "submerged in the bed of a river" . This clearly implies that in the State of Bihar/Jharkhand, all land perennially submerged under water, except riverbeds, is land. The apparent legislative intention is that not only the land actually used for agriculture or horticulture but any or every land which is used incidental or appurtenant to agriculture or horticulture, is also land. This is evident from the definition of homestead. Any dwelling house which is situated in an agricultural or horticultural land, which is intended for the dwelling of persons is a homestead and is included in the definition of land. Further, any outbuilding used for the purposes connected with agriculture or horticulture is also part of homestead and therefore, land. Any artificial or natural body of water, situated in private holdings, which irrigates or supplies water for the agricultural or horticultural purposes is also land. The word even land with reference to the land submerged under water shows that what is excluded is riverbeds or ravines filled with water. The use of the words even land perennially submerged under water in the definition of land would thus indicate that a tank also is land. What is excluded from the definition of land is the riverbed, or a tank which is a dammed ravine. Section 4(f) of the Act which prescribes the ceiling area in regard to Class VI lands also reiterates that even land perennially submerged under water, is land.
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A. S. Krishnappa Chettiar & Ors Vs. Nachiappa Chettiar & Ors | therefor within one week after the receipt of this notice. Further you have till now collected Rs. 17,500 as per the scheme of arrangement and though you have not paid to the creditors their dividend amounts, you are bound by law and equity to pay interest to the aforesaid amounts. You are hereby informed that as you have not paid to the creditors the dividend amounts my client is put to a heavy loss and that you are bound to bear all the losses that may be caused thereby and make good the losses; you should immediately pay off the creditors the dividends and in default my client will have to launch proceedings against you an seek reliefs through Court".15. This letter was written by the vakil of the second defendant to the Trustees demanding payment of the maintenance allowance due to the second defendant. The second object of this letter was to require the trustees to pay out of the funds in their hands dividends due to the various creditors under the composition scheme. Mr. Sastri contends that this letter contains a definite admission of the jural relationship between the defendant on the one hand and the creditors on the one hand and the creditors on the other-i.e., the relationship of the creditor and, debtor and, therefore, this is an admission of liability under the decrees. Relying upon the decision of this Court in Shapoor Freedom Mazda v. Durga Prasad Chamaria, (1962) 1 SCR 140 : (AIR 1961 SC 1236 ), he says that the essential requirement for sustaining a plea of acknowledgment under S. 19 of the Limitation Act is that the statement on which it is sought to be founded must relate to a subsisting liability, indicate the existence of jural relationship and must be intended, either expressly or impliedly, to admit that jural relationship. Where such jural relationship is admitted expressly or impliedly, he contends, that the mere fact that the precise nature of the liability is not mentioned would not prevent the acknowledgment from falling within S. 19. That was a case in which the mortgagor had written to his creditor a letter to the following effect :"My dear Durgaprasad,Chandni Bazar is again advertised for sale on Friday the 11th inst. I am afraid it will go very cheap. I had a private offer of Rs. 2,75,000 a few days ago but as soon as they heard it was advertised by the Register they withdrew. As you are interested why do you not take up the whole. There is only about 70,000 due to the mortgagee-a payment of 10,000 will stop the saleYours sincerely,Sd/ J. C. Galstaun.The question to be considered was whether this amounted to an acknowledgment of the mortgagees rights. This Court held that it did amount to an acknowledgment and observed thus:"It is thus clear that acknowledgment as prescribed by S. 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgment of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate, the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admissions made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions, contained in S. 19, and there is really no substantial difference between the parties as to the true legal position in this matter".16. In our opinion, this case is not of assistance to the appellants. In the appeals before us though there was a personal liability on the defendants under the various decrees, their liability which was created by the composition deed was only on properties in which they had, consequent on the creation of a trust under the composition deed, only a beneficial interest. This new liability had to be discharged by the trustees in whom the legal title to the property vested. Thus there were two different sets of persons who were liable, the defendants and the Trustees and their respective liabilities were distinct. What the defendant No. 2 has referred to is the liability of the Trustees arising under the terms of the deed of composition and could be enforced only against them. To refer to a liability resting on someone else is not to acknowledge ones own liability within the meaning of the word in S. 19. The defendant No. 2 has not even indirectly referred to the decree much less to the liability arising under any of them. In the circumstances we must hold that this letter does not extend the period of limitation. | 0[ds]The Limitation Act is a consolidating and amending statute relating to the limitation of suits, appeals and certain types of applications to courts and must, therefore, be regarded as an exhaustive Code. It is a piece of adjective or procedural law and not of substantive law. Rules of procedure, whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressly or by necessary implication. They cannot be extended by necessary implication. They cannot be extended by analogy or reference to proceedings of which they do not expressly apply or could be said to apply by necessary implication. It would, therefore, not be correct to apply any of the provisions of the Limitation Act to matters which do not strictly fall within the purview of those provisions. Thus for instance, period of limitation for various kinds of suits, appeals and applications are prescribed in the First Schedule. A proceeding which does not fall under any of the articles in that schedule could not be said to be barred by time on the analogy of a matter which is governed by a particular article. For the same reasons the provisions of Sections 3 to 28 of the Limitation Act cannot be applied to situations which fall outside theirprovisions do not adumbrate any general principles of substantive law nor do they confer any substantive rights on litigants and, therefore, cannot be permitted to have greater application than what is explicit or implicit in them. Suspension of limitation in circumstances of the kind obtaining in these appeals is neither explicit nor implicit in S. 15 upon which reliance is placed on behalf of the appellants. We are, therefore, unable to accept the first argument of Mr.our opinion, this case is not of assistance to the appellants. In the appeals before us though there was a personal liability on the defendants under the various decrees, their liability which was created by the composition deed was only on properties in which they had, consequent on the creation of a trust under the composition deed, only a beneficial interest. This new liability had to be discharged by the trustees in whom the legal title to the property vested. Thus there were two different sets of persons who were liable, the defendants and the Trustees and their respective liabilities were distinct. What the defendant No. 2 has referred to is the liability of the Trustees arising under the terms of the deed of composition and could be enforced only against them. To refer to a liability resting on someone else is not to acknowledge ones own liability within the meaning of the word in S. 19. The defendant No. 2 has not even indirectly referred to the decree much less to the liability arising under any of them. In the circumstances we must hold that this letter does not extend the period of limitation. | 0 | 5,247 | 532 | ### 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.
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therefor within one week after the receipt of this notice. Further you have till now collected Rs. 17,500 as per the scheme of arrangement and though you have not paid to the creditors their dividend amounts, you are bound by law and equity to pay interest to the aforesaid amounts. You are hereby informed that as you have not paid to the creditors the dividend amounts my client is put to a heavy loss and that you are bound to bear all the losses that may be caused thereby and make good the losses; you should immediately pay off the creditors the dividends and in default my client will have to launch proceedings against you an seek reliefs through Court".15. This letter was written by the vakil of the second defendant to the Trustees demanding payment of the maintenance allowance due to the second defendant. The second object of this letter was to require the trustees to pay out of the funds in their hands dividends due to the various creditors under the composition scheme. Mr. Sastri contends that this letter contains a definite admission of the jural relationship between the defendant on the one hand and the creditors on the one hand and the creditors on the other-i.e., the relationship of the creditor and, debtor and, therefore, this is an admission of liability under the decrees. Relying upon the decision of this Court in Shapoor Freedom Mazda v. Durga Prasad Chamaria, (1962) 1 SCR 140 : (AIR 1961 SC 1236 ), he says that the essential requirement for sustaining a plea of acknowledgment under S. 19 of the Limitation Act is that the statement on which it is sought to be founded must relate to a subsisting liability, indicate the existence of jural relationship and must be intended, either expressly or impliedly, to admit that jural relationship. Where such jural relationship is admitted expressly or impliedly, he contends, that the mere fact that the precise nature of the liability is not mentioned would not prevent the acknowledgment from falling within S. 19. That was a case in which the mortgagor had written to his creditor a letter to the following effect :"My dear Durgaprasad,Chandni Bazar is again advertised for sale on Friday the 11th inst. I am afraid it will go very cheap. I had a private offer of Rs. 2,75,000 a few days ago but as soon as they heard it was advertised by the Register they withdrew. As you are interested why do you not take up the whole. There is only about 70,000 due to the mortgagee-a payment of 10,000 will stop the saleYours sincerely,Sd/ J. C. Galstaun.The question to be considered was whether this amounted to an acknowledgment of the mortgagees rights. This Court held that it did amount to an acknowledgment and observed thus:"It is thus clear that acknowledgment as prescribed by S. 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgment of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate, the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admissions made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions, contained in S. 19, and there is really no substantial difference between the parties as to the true legal position in this matter".16. In our opinion, this case is not of assistance to the appellants. In the appeals before us though there was a personal liability on the defendants under the various decrees, their liability which was created by the composition deed was only on properties in which they had, consequent on the creation of a trust under the composition deed, only a beneficial interest. This new liability had to be discharged by the trustees in whom the legal title to the property vested. Thus there were two different sets of persons who were liable, the defendants and the Trustees and their respective liabilities were distinct. What the defendant No. 2 has referred to is the liability of the Trustees arising under the terms of the deed of composition and could be enforced only against them. To refer to a liability resting on someone else is not to acknowledge ones own liability within the meaning of the word in S. 19. The defendant No. 2 has not even indirectly referred to the decree much less to the liability arising under any of them. In the circumstances we must hold that this letter does not extend the period of limitation.
### Response:
0
### Explanation:
The Limitation Act is a consolidating and amending statute relating to the limitation of suits, appeals and certain types of applications to courts and must, therefore, be regarded as an exhaustive Code. It is a piece of adjective or procedural law and not of substantive law. Rules of procedure, whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressly or by necessary implication. They cannot be extended by necessary implication. They cannot be extended by analogy or reference to proceedings of which they do not expressly apply or could be said to apply by necessary implication. It would, therefore, not be correct to apply any of the provisions of the Limitation Act to matters which do not strictly fall within the purview of those provisions. Thus for instance, period of limitation for various kinds of suits, appeals and applications are prescribed in the First Schedule. A proceeding which does not fall under any of the articles in that schedule could not be said to be barred by time on the analogy of a matter which is governed by a particular article. For the same reasons the provisions of Sections 3 to 28 of the Limitation Act cannot be applied to situations which fall outside theirprovisions do not adumbrate any general principles of substantive law nor do they confer any substantive rights on litigants and, therefore, cannot be permitted to have greater application than what is explicit or implicit in them. Suspension of limitation in circumstances of the kind obtaining in these appeals is neither explicit nor implicit in S. 15 upon which reliance is placed on behalf of the appellants. We are, therefore, unable to accept the first argument of Mr.our opinion, this case is not of assistance to the appellants. In the appeals before us though there was a personal liability on the defendants under the various decrees, their liability which was created by the composition deed was only on properties in which they had, consequent on the creation of a trust under the composition deed, only a beneficial interest. This new liability had to be discharged by the trustees in whom the legal title to the property vested. Thus there were two different sets of persons who were liable, the defendants and the Trustees and their respective liabilities were distinct. What the defendant No. 2 has referred to is the liability of the Trustees arising under the terms of the deed of composition and could be enforced only against them. To refer to a liability resting on someone else is not to acknowledge ones own liability within the meaning of the word in S. 19. The defendant No. 2 has not even indirectly referred to the decree much less to the liability arising under any of them. In the circumstances we must hold that this letter does not extend the period of limitation.
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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:
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.
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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.
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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.
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Ajay Hasia Etc Vs. Khalid Mujib Sehravardi & Ors. Etc | awarded at the interview are by and large in inverse proposition to the marks obtained by the candidates at the qualifying examination and are also, in a large number of cases, not commensurate with the marks obtained in the written test. The chart does create a strong suspicion in our mind that the marks awarded at the viva voce examination might have been manipulated with a view to favouring the candidates who ultimately came to be selected, but suspicion cannot take the place of proof and we cannot hold the plea of mala fides to be established. We need much more cogent material before we can hold that the Committee deliberately manipulated the marks at the viva voce examination with a view to favouring certain candidates as against the petitioners. We cannot, however, fail to mention that this is a matter which requires to be looked into very carefully and not only the State Government, but also the Central Government which is equally responsible for the proper running of the College, must take care to see that proper persons are appointed on the interviewing committee and there is no executive interference with their decision-making process. We may also caution the authorities that though, in the present case, for reasons which we have already given we are not interfering with the selection for the academic year 1979-80, the selections made for the subsequent academic years would run the risk of invalidation if such a high percentage of marks is allocated for the oral interview. We are of the view that, under the existing circumstances, allocation of more than 15 per cent. of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid."27. The petitioners, arguing under the last ground of challenge, urged that the oral interview as conducted in the present case was a mere pretence or farce, as it did not last for more than 2 or 3 minutes per candidate on an average and the questions which were asked were formal questions relating to parentage and residence of the candidate and hardly any question was asked which had relevance to assessment of the suitability of the candidate with reference to any of the four factors required to be considered by the Committee. When the time spent on each candidate was not more than 2 or 3 minutes on an average, contended the petitioners, how could the suitability of the candidate be assessed on a consideration of the relevant factors by holding such an interview and how could the Committee possibly judge the merit of the candidate with reference to these factors when no questions bearing on these factors were asked to the candidate. Now there can be no doubt that if the interview did not take more than 2 or 3 minutes on an average and the questions asked had no bearing on the factors required to be taken into account, the oral interview test would be vitiated, because it would be impossible in such an interview to assess the merit of a candidate with reference to these factors. This allegation of the petitioners has been denied in the affidavit in reply filed by H. L. Chowdhury on behalf of the College and it has been stated that each candidate was interviewed for 6 to 8 minutes and "only the relevant questions on the aforesaid subjects were asked." If this statement of H. L. Chowdhury is correct, we cannot find much fault with the oral interview test held by the Committee. But we do not think we can act on this statement made by H. L. Chowdhury, because there is nothing to show that he was present at the interviews and none of the three Committee members has come forward to make an affidavit denying the allegation of the petitioners and stating that each candidate was interviewed for 6 to 8 minutes and only the relevant questions were asked. We must therefore, proceed on the basis that the interview of each candidate did not last for more than 2 or 3 minutes on an average and hardly any questions were asked having bearing on the relevant factors. If that be so, the oral interview test must be held to be vitiated and the selection made on the basis of such test must be held to be arbitrary. We are, however, not inclined for reasons already given, to set aside the selection made for the academic year 1979-80, though we may caution the State Government and the Society that for the future academic years, selections may be made on the basis of observations made by us in this judgment lest they might run the risk of being struck down. We may point out that, in our opinion, if the marks allocated for the oral interview do not exceed 15 per cent. of the total marks and the candidates are property interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral interview test would satisfy the criterion of reasonableness and non-arbitrariness. We think that it would also be desirable if the interview of the candidates is tape-recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee.28. We may point out that the State Government, the Society and the College have agreed before us that the best fifty students, out of those who applied for admission for the academic year 1979-80 and who have failed to secure admission so far, will be granted admission for the academic year 1981-82 and the seats allocated to them will be in addition to the normal intake of students in the College. We order accordingly. | 0[ds]Not it is obvious that the only ground on which the validity of the admissions to the College can be assailed is that the Society adopted an arbitrary procedure for selecting candidates for admission to the College and this resulted in denial of equality to the petitioners in the matter of admission violative of Article 14 of the Constitution. It would appear that prima facie protection against infraction of Article 14 is available only against the State and complaint of arbitrariness and denial of equality can therefore be sustained against the Society only if the Society can be shown to be State for purpose of Article 14. Now State is defined in Article 12 to include inter alia the Government of India and the Government of each of the States and all local or other authorities within the territory of India or under the control of the Government of India and the question therefore is whether the Society can be said to be State within the meaning of this definition. Obviously the Society cannot be equated with the Government of India or the Government of any State nor can it be said to be a local authority and therefore, it must come within the expression "other authorities" if it is to fall within the definition of State. That immediately leads us to a consideration of the question as to what are the "other authorities" contemplated in the definition of State in Sectionmust therefore give such an interpretation to the expression "other authorities" as will not stultify the operation and reach of the fundamental rights by enabling the government to its obligation in relation to the fundamental rights by setting up an authority to act as its instrumentality or agency for carrying out its functions. Where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form. Now it is obvious that the government may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days when the government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge governmental functions which were of traditional vintage. But as the tasks of the government multiplied with the advent of the welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often specialised and highly technical in character and which called for flexibility of approach and quick decision making. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the corporation came into being as the third arm of the government and over the years it has been increasingly utilised by the government for setting up and running public enterprises and carrying out other public functions. Today with increasing assumption by the government of commercial ventures and economic projects, the corporation has become an effective legal contrivance in the hands of the government for carrying out its activities, for it is found that this legal facility of corporate instrument provides considerable flexibility and elasticity and facilities proper and efficient management with professional skills and on business principles and it is blissfully free from "departmental rigidity, slow motion procedure and hierarchy of officers". The government in many of its commercial ventures and public enterprises is resorting to more and more frequently to this resourceful legal contrivance of a corporation because it has many practical advantages and at the same time does not involve the slightest diminution in its ownership and control of the undertaking. In such cases "the true owner is the State, the real operator is the State and the effective controllorate is the State and accountability for its actions to the community and to Parliament is of the State." It is undoubtedly true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles with a certain amount of autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality is very much the deeply pervasive presence of the government. It is really the government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the government. Now it is obvious that if a corporation is an instrumentality or agency of the government, it must be subject to the same limitations in the field of constitutional law as the government itself, though in the eye of the law it would be a distinct and independent legal entity. If the government acting through its officers is subject to certain constitutional limitations, it must follow a fortiorari that the government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations. If such a corporation were to be free from the basic obligations to obey the Fundamental Rights, it would lead to considerable erosion of the efficiency of the Fundamental Rights, for in that event the government would be enabled to override the fundamental rights by adopting the stratagem of carrying out its functions through the instrumentality or agency of a corporation, while retaining control over it. The Fundamental Rights would then be reduced to little more than an idle dream or a promise of unreality. It must be remembered that the Fundamental Rights are constitutional guarantees given to the people of India and are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they should not be allowed to be emasculated in their application by a narrow and constricted judicial interpretation. The courts should be anxious to enlarge the scope and width of the Fundamental Rights by bringing within their sweep every authority which is an instrumentality or agency of the government or through the corporate personality of which the government is acting, so as to subject the government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the Fundamental Rights. The constitutional philosophy of a democratic socialist republic requires the government to undertake a multitude of socio-economic operations and the government, having regard to the practical advantages of functioning through the legal device of a corporation, embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the government from implicit obedience to the Fundamental Rights. To use the corporate methodology is not to liberate the government from its basic obligation to respect the Fundamental Rights and not to override them. The mantle of a corporation may be adopted in order to free the government from the inevitable constraints of red tapism and slow motion but by doing so, the government cannot be allowed to play truant with the basic human rights. Otherwise it would be the easiest thing for the government to assign to a plurality of corporations almost every State business such as Post and Telegraph, TV and Radio, Rail Road and Telephones - in short every economic activity - and thereby cheat the people of India out of the Fundamental Rights guaranteed to them. That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because, though apparently the corporation will be carrying out these functions, it will in truth and reality be the government which will be controlling the corporation and carrying out these functions through the instrumentality or agency of the corporation. We cannot by a process of judicial construction allow the Fundamental Rights to be rendered futile and meaningless and thereby wipe out Chapter III from the Constitution. That would be contrary to the constitutional faith of the post-Maneka Gandhi (Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (1978) 2 SCR 621 ) era. It is the Fundamental Rights which along with the Directive Principles constitute the life force of the Constitution and they must be quickened into effective action by meaningful and purposive interpretation. If a corporation is found to be a mere agency or surrogate of the government, "in fact owned by the government, in truth controlled by the government and in effect and incarnation of the government, " the court, must not allow the enforcement of Fundamental Rights to be frustrated by taking the view that it is not the government and therefore not subject to the constitutional limitations. We are clearly of the view that where a corporation is an instrumentality or agency of the government, it must be held to be an authority within the meaning of Article 12 and hence subject to the same basic obligation to obey the Fundamental Rights as the government.The tests for determining as to when a corporation can be said to be an instrumentality or agency of government may not be culled out from the judgment in the International Airport Authority case ((1979) 3 SCC 489 ). These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities", it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority case ((1979) 3 SCC 489 ) asOne thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government) (SCC p. 507, para 14)(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p. 508, para 15)(3) It may also be a relevant factor ...... where the corporation enjoys monopoly status which is State conferred or State protected. (SCC p. 508, para 15)(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15)(5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16)(6) "Specifically, if a department of Government is transferred to a corporation, it would be a strong supportive of this inference" of the corporation being an instrumentality or agency of Government. (SCC p. 510, paraon a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airport Authority case ((1979) 3 SCC 489 ), be an authority and, therefore, State within the meaning of the expression in Article 1210. We find that the same view has been taken by Chinnappa Reddy, J. in a subsequent decision of this Court in the U.P. Warehousing Corporation v. Vijay Narayan ((1980) 3 SCC 459 : 1980 SCC (L&S) 453) and the observations made by the learned Judge in that case strongly reinforced the view we are taking particularly in the matrix of our constitutional system.11. We may point out that it is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies Registration Act, 1860 or any other similar statute. Whatever be its genetical origin, it would be an "authority" within the meaning of Article 12 if it is an instrumentality of agency of the government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the government so as to come within the meaning of the expression "authority" in Article 12.12. It is also necessary to add that merely because a juristic entity may be an "authority" and therefore "State" within the meaning of Article 12, it may not be elevated to the position of "State" for the purpose of Article 309, 310 and 311 which find a place in Part XIV. The definition of "State" in Article 12 which includes an "authority" within the territory of India or under the control of the Government of India is limited in its application only to Part III and by virtue of Article 36, to Part IV : it does not extend to the other provisions of the Constitution and hence a juristic entity which may be "State" for the purpose of Parts III and IV would not be so for the purpose of Part XIV or any other provision of the Constitution. That is why the decisions of this Court in S. L. Aggarwal v. Hindustan Steel Ltd. ((1970) 3 SCR 363 : (1970) 1 SCC 177 ) and other cases involving the applicability of Article 311 have no relevance to the issue beforebeing a decision given by a Bench of five Judges of this Court is undoubtedly binding upon us but we do not think it lays down any such proposition as is contended on behalf of the respondents. The question which arose in this case was as to whether the Council of Scientific and Industrial Research which was juridically a society registered under the Societies Registration Act, 1860 was an "authority" within the meaning of Article 12. The test which the court applied for determining this question was the same as the one laid down in the International Airport Authority case ((1979) 3 SCC 489 ) and approved by us, namely, whether the council was an instrumentality or agency of the government. The court implicitly assented to the proposition that if the council were an agency of the government, it would undoubtedly be an "authority". But, having regard to the various features enumerated in the judgment, the court held that the council was not an agency of the government and hence could not be regarded as an "authority". The court did not rest its conclusion on the ground that the council was a society registered under the Societies Registration Act, 1860, but proceeded to consider various other features of the council for arriving at the conclusion that it was not an agency of the government and therefore not an "authority". This would have been totally unnecessary if the view of the court were that a society registered under the Societies Registration Act can never be an "authority" within the meaning of Article 12.14. The decision in Sukhdev Singh v. Bhagatram ((1975) 3 SCR 619 , 658 : (1975) 1 SCC 421 , 454 : 1975 SCC (L&S) 101, 134) was also strongly relied upon by the learned counsel for respondents 6 to 8 but we fail to see how this decision can assist the respondents in repelling the reasoning in the International Airport Authority case ((1979) 3 SCC 489 ) or contending that a company or society formed under a statute can never come within the meaning of the expression "authority" in Article 12. That was a case relating to three juristic bodies, namely the Oil and Natural Gas Commission, the Industrial Finance Corporation and the Life Insurance Corporation and the question was whether they were "State" under Article 12. Each of these three juristic bodies was a corporation created by a statute and the court by majority held that they were "authorities" and therefore "State" within the meaning of Article 12. The court in this case was not concerned with the question whether a company of society formed under a statute can be an "authority" or not and this decision does not therefore contain anything which might have been (sic) remotely suggest that such a company or society can never be an "authority". On the contrary, the thrust of the logic in the decision, far from being restrictive, applies to all juristic persons alike, irrespective whether they are created by a statute or formed under a statute.answer must obviously be in the affirmative if we have regard to the Memorandum of Association and the Rules of the Society. The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu and Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government. The monies required for running the College are provided entirely by the Central Government and the Government of Jammu & Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments. The rules to be made by the Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the governments for their scrutiny and satisfaction. The Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the Society can be disposed of in any manner without the approval of both the governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or the Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is in charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominees of the State and the Central Governments. It will thus be seen that the State Government and by reason of the provision for approval, the Central Government also, have full control of the working of the Society and it would not be incorrect to say that the Society is merely a projection of the State and the Central Governments and to use the words of Ray, C.J. in Sukhdev Singh case ((1975) 3 SCR 619 , 658 : (1975) 1 SCC 421 , 454 : 1975 SCC (L&S) 101, 134), the voice is that of the State and the Central Governments and the hands are also of the State and the Central Governments. We must, therefore, hold that the Society is an instrumentality or the agency of the State and the Central Governments and it is an authority within the meaning of Articleis sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that that article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executivemust therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase of Article 14 nor is it the objective and end of that article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an authority under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of theso far as the challenge on the first count is concerned, we do not think it is at all well founded. It is difficult to appreciate how a procedure for admission which does not take into account the marks obtained at the qualifying examination, but prefers to test the comparative merit of the candidates by insisting on an entrance examination can ever be said to be arbitrary. It has been pointed out in the counter-affidavit filed by H. L. Chowdhury on behalf of the College that there are two universities (sic) on two different dates and the examination by the Board of Secondary Education for Jammu is also held on a different date than the examination by the Board of Secondary Education for Kashmir and the results of these examinations are not always declared before the admissions to the College can be decided. The College being the only institution for education in engineering courses in the State of Jammu & Kashmir has to cater to the needs of both the regions and it has, therefore, found it necessary and expedient to regulate admissions by holding an entrance test, so that the admission process may not be held up on account of late declaration of results of the qualifying examination in either of the two regions. The entrance test also facilitates the assessment of the comparative talent of the candidates by application of a uniform standard and is always preferable to evaluation of comparative merit on the basis of marks obtained at the qualifying examination, when the qualifying examination is held by two or more different authorities, because lack of uniformity is bound to creep into the assessment of candidates by different authorities with different modes of examination. We would not, therefore, regard the procedure adopted by the society as arbitrary merely because it refused to take into account the marks obtained by the candidates at the qualifying examination, but chose to regulate the admissions by relying on the entrancethis criticism cannot be said to be wholly unfounded and it reflects a point of view which has certainly some validity. We may quote the following passage from the book on PUBLIC ADMINISTRATION IN THEORY AND PRACTICE by M. P. Sharma which voices a far and balanced criticism of the oral interview method.The oral examination has failed in the past in direct proportion to the extent of its misuse. It is a delicate instrument and, in inexpert hands, a dangerous one. The first condition of its successful use is the full recognition of its limitations. One of the most prolific sources of error in the oral test has been the failure on the part of examiners to understand the nature of evidence and to discriminate between that which was relevant, material and reliable and that which was not. It also must be remembered that the best oral interview provides opportunity for analysis of only a very small part of a persons total behaviour. Generalizations from a single interview regarding an individuals total personality pattern have been proved repeatedly to be wrong. 23. But, despite all this criticism, the oral interview method continues to be very much in vogue as a supplementary test for assessing the suitability of candidates wherever test of personal traits is considered essential. Its relevance as a test for determining suitability based on personal characteristics has been recognised in a number of decisions of this Court which are binding upon us. In the first case on the point which came before this Court, namely, R. Chitralekha v. State of Mysore ((1964) 6 SCR 368 : AIR 1964 SC 1823 ) this Court pointedIn the field of education there are divergent views as regards the mode of testing the capacity and calibre of students in the matter of admissions to colleges. Orthodox educationists stand by the marks obtained by a student in the annual examination. The modern trend of opinion insists upon other additional tests, such as interview, performance in extracurricular activities, personality test, psychiatric tests etc. Obviously we are not in a position to judge which method is preferable or which test is the correct one .... The scheme of selection, however, perfect it may be a on paper, may be abused in practice. That it is capable of abuse is not a ground for quashing it. So long as the order lays down relevant objective criteria the business of selection to qualified persons, this Court cannot obviously have any say in the matter and on this view refused to hold the oral interview test as irrelevant or arbitrary. It was also pointed out by this Court in A. Peeriakaruppan v. State of Tamil Nadu ((1971) 2 SCR 430 : (1971) 1 SCC 38 ) (SCC p. 44, para 13)most cases, the first impression need not necessarily be the best impression. But under the existing conditions, we are unable to accede to the contentions of the petitioners that the system of interview as in vogue in this country is so defective as to make it useless.It is therefore not possible to accept the contentions of the petitioners that the oral interview test is so defective that selecting candidates for admission on the basis of oral interview in addition to written test must be regarded as arbitrary. The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test of measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. We would, however, like to point out that in the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification26. So far as the third ground of challenge is concerned, we do not think it can be dismissed asmarks allocated for the oral interview were 50 as against 100 allocated for the written test, so that the marks allocated for the oral interview came to 33 1/3 per cent. of the total number of marks taken into account for the purpose of making the selection. This, contended the petitioners, was beyond all reasonable proportion and rendered the selection of the candidates arbitrary and violative of the equality clause of the Constitution. Now there can be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, cannot be accepted by the court as free from the vice of arbitrariness. It may be pointed out that even in Peeriakaruppan case ((1971) 2 SCR 430 : (1971) 1 SCC 38 ), where 75 marks out of a total of 275 marks were allocated for the oral interview, this Court observed that the marks allocated for interview were on the high side. This Court also observed in Nishi Maghu case ((1980) 4 SCC 95 )50 marks for interview out of a total of 150 .... does seen excessive, especially when the time spent was not more than 4 minutes on each candidate". There can be no doubt that allocating 33 1/3 per cent. of the total marks for oral interview is plainly arbitrary and unreasonable. It is significant to note that even for selection of candidates for the Indian Administrative Service, the Indian Foreign Service and the Indian Police Service, where the personality of the candidate and his personal characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for oral interview are 250 as against 1800 marks for the written examination, constituting only 12.2 per cent. of the total marks taken into consideration for the purpose of making the selection. We must, therefore, regard the allocation of as high a percentage as 33 1/3 of the total marks for the oral interview as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure cannot be sustained. But we do not think we would be justified in the exercise of our discretion in setting aside the selection made for the academic year 1979-80 after the lapse of a period of about 18 months, since to do so would be to cause immense hardship to those students in whose case the validity of the selection cannot otherwise be questioned and who have nearly completed three semesters and, moreover, even if the petitioners are ultimately found to be deserving of selection on the application of the proper test, it would not be possible to restore them to the position as if they were admitted for the academic year 1979-80, which has run out long since. It is true there is an allegations of mala fides against the Committee which interviewed the candidates and we may concede that if this allegation were established, we might have been inclined to interfere with the selection even after the lapse of a period of 18 months, because the writ petitions were filed as early as October-November 1979 and merely because the court could not take up the hearing of the writ petitions for such a long time should be no ground for denying relief to the petitioners, if they are otherwise so entitled. But we do not think that on the material placed before us we can sustain the allegation of mala fides against the Committee. It is true, and this is a rather disturbing feature of the present cases, that a large number of successful candidates succeeded in obtaining admission to the college by virtue of very high marks obtained by them at the viva voce examination tilted the balance in their favour, though the marks secured by them at the qualifying examination were much less obtained by the petitioners and even in the written test, they had fared much worse than the petitioners. it is clear from the chart submitted to us on behalf of the petitioners that the marks awarded at the interview are by and large in inverse proposition to the marks obtained by the candidates at the qualifying examination and are also, in a large number of cases, not commensurate with the marks obtained in the written test. The chart does create a strong suspicion in our mind that the marks awarded at the viva voce examination might have been manipulated with a view to favouring the candidates who ultimately came to be selected, but suspicion cannot take the place of proof and we cannot hold the plea of mala fides to be established. We need much more cogent material before we can hold that the Committee deliberately manipulated the marks at the viva voce examination with a view to favouring certain candidates as against the petitioners. We cannot, however, fail to mention that this is a matter which requires to be looked into very carefully and not only the State Government, but also the Central Government which is equally responsible for the proper running of the College, must take care to see that proper persons are appointed on the interviewing committee and there is no executive interference with their decision-making process. We may also caution the authorities that though, in the present case, for reasons which we have already given we are not interfering with the selection for the academic year 1979-80, the selections made for the subsequent academic years would run the risk of invalidation if such a high percentage of marks is allocated for the oral interview. We are of the view that, under the existing circumstances, allocation of more than 15 per cent. of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionallythe time spent on each candidate was not more than 2 or 3 minutes on an average, contended the petitioners, how could the suitability of the candidate be assessed on a consideration of the relevant factors by holding such an interview and how could the Committee possibly judge the merit of the candidate with reference to these factors when no questions bearing on these factors were asked to the candidate. Now there can be no doubt that if the interview did not take more than 2 or 3 minutes on an average and the questions asked had no bearing on the factors required to be taken into account, the oral interview test would be vitiated, because it would be impossible in such an interview to assess the merit of a candidate with reference to these factors. This allegation of the petitioners has been denied in the affidavit in reply filed by H. L. Chowdhury on behalf of the College and it has been stated that each candidate was interviewed for 6 to 8 minutes and "only the relevant questions on the aforesaid subjects were asked." If this statement of H. L. Chowdhury is correct, we cannot find much fault with the oral interview test held by the Committee. But we do not think we can act on this statement made by H. L. Chowdhury, because there is nothing to show that he was present at the interviews and none of the three Committee members has come forward to make an affidavit denying the allegation of the petitioners and stating that each candidate was interviewed for 6 to 8 minutes and only the relevant questions were asked. We must therefore, proceed on the basis that the interview of each candidate did not last for more than 2 or 3 minutes on an average and hardly any questions were asked having bearing on the relevant factors. If that be so, the oral interview test must be held to be vitiated and the selection made on the basis of such test must be held to be arbitrary. We are, however, not inclined for reasons already given, to set aside the selection made for the academic year 1979-80, though we may caution the State Government and the Society that for the future academic years, selections may be made on the basis of observations made by us in this judgment lest they might run the risk of being struck down. We may point out that, in our opinion, if the marks allocated for the oral interview do not exceed 15 per cent. of the total marks and the candidates are property interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral interview test would satisfy the criterion of reasonableness and non-arbitrariness. We think that it would also be desirable if the interview of the candidates is tape-recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee.28. We may point out that the State Government, the Society and the College have agreed before us that the best fifty students, out of those who applied for admission for the academic year 1979-80 and who have failed to secure admission so far, will be granted admission for the academic year 1981-82 and the seats allocated to them will be in addition to the normal intake of students in the College. We order accordingly. | 0 | 12,787 | 6,899 | ### Instruction:
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awarded at the interview are by and large in inverse proposition to the marks obtained by the candidates at the qualifying examination and are also, in a large number of cases, not commensurate with the marks obtained in the written test. The chart does create a strong suspicion in our mind that the marks awarded at the viva voce examination might have been manipulated with a view to favouring the candidates who ultimately came to be selected, but suspicion cannot take the place of proof and we cannot hold the plea of mala fides to be established. We need much more cogent material before we can hold that the Committee deliberately manipulated the marks at the viva voce examination with a view to favouring certain candidates as against the petitioners. We cannot, however, fail to mention that this is a matter which requires to be looked into very carefully and not only the State Government, but also the Central Government which is equally responsible for the proper running of the College, must take care to see that proper persons are appointed on the interviewing committee and there is no executive interference with their decision-making process. We may also caution the authorities that though, in the present case, for reasons which we have already given we are not interfering with the selection for the academic year 1979-80, the selections made for the subsequent academic years would run the risk of invalidation if such a high percentage of marks is allocated for the oral interview. We are of the view that, under the existing circumstances, allocation of more than 15 per cent. of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid."27. The petitioners, arguing under the last ground of challenge, urged that the oral interview as conducted in the present case was a mere pretence or farce, as it did not last for more than 2 or 3 minutes per candidate on an average and the questions which were asked were formal questions relating to parentage and residence of the candidate and hardly any question was asked which had relevance to assessment of the suitability of the candidate with reference to any of the four factors required to be considered by the Committee. When the time spent on each candidate was not more than 2 or 3 minutes on an average, contended the petitioners, how could the suitability of the candidate be assessed on a consideration of the relevant factors by holding such an interview and how could the Committee possibly judge the merit of the candidate with reference to these factors when no questions bearing on these factors were asked to the candidate. Now there can be no doubt that if the interview did not take more than 2 or 3 minutes on an average and the questions asked had no bearing on the factors required to be taken into account, the oral interview test would be vitiated, because it would be impossible in such an interview to assess the merit of a candidate with reference to these factors. This allegation of the petitioners has been denied in the affidavit in reply filed by H. L. Chowdhury on behalf of the College and it has been stated that each candidate was interviewed for 6 to 8 minutes and "only the relevant questions on the aforesaid subjects were asked." If this statement of H. L. Chowdhury is correct, we cannot find much fault with the oral interview test held by the Committee. But we do not think we can act on this statement made by H. L. Chowdhury, because there is nothing to show that he was present at the interviews and none of the three Committee members has come forward to make an affidavit denying the allegation of the petitioners and stating that each candidate was interviewed for 6 to 8 minutes and only the relevant questions were asked. We must therefore, proceed on the basis that the interview of each candidate did not last for more than 2 or 3 minutes on an average and hardly any questions were asked having bearing on the relevant factors. If that be so, the oral interview test must be held to be vitiated and the selection made on the basis of such test must be held to be arbitrary. We are, however, not inclined for reasons already given, to set aside the selection made for the academic year 1979-80, though we may caution the State Government and the Society that for the future academic years, selections may be made on the basis of observations made by us in this judgment lest they might run the risk of being struck down. We may point out that, in our opinion, if the marks allocated for the oral interview do not exceed 15 per cent. of the total marks and the candidates are property interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral interview test would satisfy the criterion of reasonableness and non-arbitrariness. We think that it would also be desirable if the interview of the candidates is tape-recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee.28. We may point out that the State Government, the Society and the College have agreed before us that the best fifty students, out of those who applied for admission for the academic year 1979-80 and who have failed to secure admission so far, will be granted admission for the academic year 1981-82 and the seats allocated to them will be in addition to the normal intake of students in the College. We order accordingly.
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0
### Explanation:
is true, and this is a rather disturbing feature of the present cases, that a large number of successful candidates succeeded in obtaining admission to the college by virtue of very high marks obtained by them at the viva voce examination tilted the balance in their favour, though the marks secured by them at the qualifying examination were much less obtained by the petitioners and even in the written test, they had fared much worse than the petitioners. it is clear from the chart submitted to us on behalf of the petitioners that the marks awarded at the interview are by and large in inverse proposition to the marks obtained by the candidates at the qualifying examination and are also, in a large number of cases, not commensurate with the marks obtained in the written test. The chart does create a strong suspicion in our mind that the marks awarded at the viva voce examination might have been manipulated with a view to favouring the candidates who ultimately came to be selected, but suspicion cannot take the place of proof and we cannot hold the plea of mala fides to be established. We need much more cogent material before we can hold that the Committee deliberately manipulated the marks at the viva voce examination with a view to favouring certain candidates as against the petitioners. We cannot, however, fail to mention that this is a matter which requires to be looked into very carefully and not only the State Government, but also the Central Government which is equally responsible for the proper running of the College, must take care to see that proper persons are appointed on the interviewing committee and there is no executive interference with their decision-making process. We may also caution the authorities that though, in the present case, for reasons which we have already given we are not interfering with the selection for the academic year 1979-80, the selections made for the subsequent academic years would run the risk of invalidation if such a high percentage of marks is allocated for the oral interview. We are of the view that, under the existing circumstances, allocation of more than 15 per cent. of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionallythe time spent on each candidate was not more than 2 or 3 minutes on an average, contended the petitioners, how could the suitability of the candidate be assessed on a consideration of the relevant factors by holding such an interview and how could the Committee possibly judge the merit of the candidate with reference to these factors when no questions bearing on these factors were asked to the candidate. Now there can be no doubt that if the interview did not take more than 2 or 3 minutes on an average and the questions asked had no bearing on the factors required to be taken into account, the oral interview test would be vitiated, because it would be impossible in such an interview to assess the merit of a candidate with reference to these factors. This allegation of the petitioners has been denied in the affidavit in reply filed by H. L. Chowdhury on behalf of the College and it has been stated that each candidate was interviewed for 6 to 8 minutes and "only the relevant questions on the aforesaid subjects were asked." If this statement of H. L. Chowdhury is correct, we cannot find much fault with the oral interview test held by the Committee. But we do not think we can act on this statement made by H. L. Chowdhury, because there is nothing to show that he was present at the interviews and none of the three Committee members has come forward to make an affidavit denying the allegation of the petitioners and stating that each candidate was interviewed for 6 to 8 minutes and only the relevant questions were asked. We must therefore, proceed on the basis that the interview of each candidate did not last for more than 2 or 3 minutes on an average and hardly any questions were asked having bearing on the relevant factors. If that be so, the oral interview test must be held to be vitiated and the selection made on the basis of such test must be held to be arbitrary. We are, however, not inclined for reasons already given, to set aside the selection made for the academic year 1979-80, though we may caution the State Government and the Society that for the future academic years, selections may be made on the basis of observations made by us in this judgment lest they might run the risk of being struck down. We may point out that, in our opinion, if the marks allocated for the oral interview do not exceed 15 per cent. of the total marks and the candidates are property interviewed and relevant questions are asked with a view to assessing their suitability with reference to the factors required to be taken into consideration, the oral interview test would satisfy the criterion of reasonableness and non-arbitrariness. We think that it would also be desirable if the interview of the candidates is tape-recorded, for in that event there will be contemporaneous evidence to show what were the questions asked to the candidates by the interviewing committee and what were the answers given and that will eliminate a lot of unnecessary controversy besides acting as a check on the possible arbitrariness of the interviewing committee.28. We may point out that the State Government, the Society and the College have agreed before us that the best fifty students, out of those who applied for admission for the academic year 1979-80 and who have failed to secure admission so far, will be granted admission for the academic year 1981-82 and the seats allocated to them will be in addition to the normal intake of students in the College. We order accordingly.
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M/S BHARAT COKING COAL LIMITED Vs. SHYAM KISHORE SINGH | the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ). 12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P . Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book. 10. The learned Additional Solicitor General has also relied upon the decision of this Court in the case of Factory Manager Kirloskar Brothers Ltd. vs. Laxman in SLP (C) Nos.2592-2593/2018 dated 25.04.2019 wherein the belated claim was not entertained. Further reliance is also placed on the decision of this Court in the case of M/s Eastern Coalfields Ltd. & Ors. vs. Ram Samugh Yadav & Ors. in C.A.No.7724 of 2011 dated 27.05.2019 wherein this Court has held as hereunder: Nothing is on record that in the year 1987 when the opportunity was given to Respondent No.1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, Respondent No.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue. The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of Respondent No.1 in the service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier. 11. The learned counsel for the respondent, on the other hand, has relied upon the decision of this Court relating the very same employer namely, the appellants herein in the case of Bharat Coking Coal Ltd. & Ors. vs. Chhota Birasa Uranw (2014) 12 SCC 570 wherein this Court with reference to the earlier decisions of this Court has upheld the order of the High Court wherein a direction had been issued to effect the change in the date of birth. Having perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement (iii) was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, fathers name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him. 12. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the Nomination Form and rectify the defect if any, he had indicated the date of birth as 04.03.1950 and had further reiterated the same when Provident Fund Nomination Form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified. 13. Hence, the order dated 13.10.2017 passed by the learned Single Judge in WP(S) No.6172 of 2014 and the order dated 19.02.2019 passed by the Division Bench in LPA No.115 of 2018 are not sustainable. | 1[ds]6. The fact that the respondent had joined the services of the appellants on 01.03.1982 is the accepted position. Though the respondent relies on the matriculation certificate to indicate that the date of birth stated therein is 20.01.1955, there is no material on record to indicate that the said document had been produced before the employer at the time of joining employment. In that background, the service record maintained by the appellants will disclose that the date of birth indicated in the document is 04.03.1950 which had been furnished by the respondent himself as the relevant forms under his signature contain the said date. Though the learned counsel for the respondent contended that the High Court had noticed certain alteration of the date of birth as indicated in Form B the relevance of the said document cannot be considered without reference to the other documents in the service records. The very fact that the respondent through his representation made in the year 2009 was seeking for change of the entry relating to date of birth will indicate that what was contained in the service records is 04.03.1950, which was the position from 27.02.1982Though such reference is made, in our opinion, the same was not appropriate in the present facts when three decades had elapsed from the date of employment. The position is well established that if a particular date of birth is entered in the service register, a change sought cannot be entertained at the fag end of service after accepting the same to be correct during entire service. In the instant facts the position is that the respondent entered service on 01.03.1982. The date of birth entered as 04.03.1950 has remained on record from the said date. The requirement to submit the nomination form indicating the particulars of the family and the nominee was complied and it was submitted by the respondent on 25.05.1998. In the said Nomination Form the date of birth of the employee was required to be mentioned, wherein the respondent in his own handwriting has indicated the date of birth as 04.03.19508. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainableHaving perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement (iii) was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, fathers name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him12. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the Nomination Form and rectify the defect if any, he had indicated the date of birth as 04.03.1950 and had further reiterated the same when Provident Fund Nomination Form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified13. Hence, the order dated 13.10.2017 passed by the learned Single Judge in WP(S) No.6172 of 2014 and the order dated 19.02.2019 passed by the Division Bench in LPA No.115 of 2018 are not sustainable. | 1 | 3,414 | 794 | ### Instruction:
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the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ). 12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P . Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book. 10. The learned Additional Solicitor General has also relied upon the decision of this Court in the case of Factory Manager Kirloskar Brothers Ltd. vs. Laxman in SLP (C) Nos.2592-2593/2018 dated 25.04.2019 wherein the belated claim was not entertained. Further reliance is also placed on the decision of this Court in the case of M/s Eastern Coalfields Ltd. & Ors. vs. Ram Samugh Yadav & Ors. in C.A.No.7724 of 2011 dated 27.05.2019 wherein this Court has held as hereunder: Nothing is on record that in the year 1987 when the opportunity was given to Respondent No.1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, Respondent No.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue. The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of Respondent No.1 in the service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier. 11. The learned counsel for the respondent, on the other hand, has relied upon the decision of this Court relating the very same employer namely, the appellants herein in the case of Bharat Coking Coal Ltd. & Ors. vs. Chhota Birasa Uranw (2014) 12 SCC 570 wherein this Court with reference to the earlier decisions of this Court has upheld the order of the High Court wherein a direction had been issued to effect the change in the date of birth. Having perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement (iii) was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, fathers name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him. 12. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the Nomination Form and rectify the defect if any, he had indicated the date of birth as 04.03.1950 and had further reiterated the same when Provident Fund Nomination Form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified. 13. Hence, the order dated 13.10.2017 passed by the learned Single Judge in WP(S) No.6172 of 2014 and the order dated 19.02.2019 passed by the Division Bench in LPA No.115 of 2018 are not sustainable.
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### Explanation:
6. The fact that the respondent had joined the services of the appellants on 01.03.1982 is the accepted position. Though the respondent relies on the matriculation certificate to indicate that the date of birth stated therein is 20.01.1955, there is no material on record to indicate that the said document had been produced before the employer at the time of joining employment. In that background, the service record maintained by the appellants will disclose that the date of birth indicated in the document is 04.03.1950 which had been furnished by the respondent himself as the relevant forms under his signature contain the said date. Though the learned counsel for the respondent contended that the High Court had noticed certain alteration of the date of birth as indicated in Form B the relevance of the said document cannot be considered without reference to the other documents in the service records. The very fact that the respondent through his representation made in the year 2009 was seeking for change of the entry relating to date of birth will indicate that what was contained in the service records is 04.03.1950, which was the position from 27.02.1982Though such reference is made, in our opinion, the same was not appropriate in the present facts when three decades had elapsed from the date of employment. The position is well established that if a particular date of birth is entered in the service register, a change sought cannot be entertained at the fag end of service after accepting the same to be correct during entire service. In the instant facts the position is that the respondent entered service on 01.03.1982. The date of birth entered as 04.03.1950 has remained on record from the said date. The requirement to submit the nomination form indicating the particulars of the family and the nominee was complied and it was submitted by the respondent on 25.05.1998. In the said Nomination Form the date of birth of the employee was required to be mentioned, wherein the respondent in his own handwriting has indicated the date of birth as 04.03.19508. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainableHaving perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement (iii) was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, fathers name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him12. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the Nomination Form and rectify the defect if any, he had indicated the date of birth as 04.03.1950 and had further reiterated the same when Provident Fund Nomination Form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified13. Hence, the order dated 13.10.2017 passed by the learned Single Judge in WP(S) No.6172 of 2014 and the order dated 19.02.2019 passed by the Division Bench in LPA No.115 of 2018 are not sustainable.
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K. AMARNATH REDDY Vs. CHAIRMAN & M.D. A.P.S.P.D.C.L.LTD.&ORS.E | of the government vide letter No.565/Ser/2011 dated 15.6.2011 is illegal and the same are set aside. c). The respondents are directed to review the entire selection process strictly in terms of this judgment and the afore said declarations and pass appropriate orders in accordance with law within a period of eight weeks from the date of receipt of copy of this order. d). The respondents are directed to fill up 7319 posts of JLM that arose pursuant to the permission of the government vide letter No. 565/Ser/2011 dated 15.6.2011 by issuing the notifications / calling for applications from the eligible candidates, of course, by giving preference to the contract labour as per rules.? Aggrieved by the said judgment, the above appeals are filed. 8. We have heard the learned counsel for the parties. The selection and appointment to 7114 posts of Junior Linemen were approved by a judgment dated 10.11.2009 of the Division Bench in Writ Appeal 1434 of 2008 and Batch. Their services have also been regularized. The directions issued by the High Court in the impugned judgment pertaining to the selection of 7114 Junior Linemen pursuant to the advertisement dated 08.06.2006/ 20.10.2006 is not justified. No such directions could be issued especially after the judgment of another Division Bench approving appointments of 7114 Junior Linemen became final. The High Court is right in holding that appointments could not have been made to posts beyond the 7114 posts that were advertised. However, the High Court ought to have considered that the submission made by the learned Advocate General regarding the imminent disruption of essential services was taken into account by an earlier Division Bench which permitted the filling up of posts beyond the 7114 posts which were advertised. On the basis of the submission of the learned Advocate General and the judgment of the High Court in Writ Appeal 1434 of 2008 and Batch, persons who participated in the selections but could not be appointed in view of condition mentioned in Clause 6 (iv)(c) of the amended notification dated 20.10.2006 were also appointed as contract labourers and their services were regularised. 9. A perusal of the declarations and directions in the impugned judgment would show that the High Court conducted a scrutiny of the selections made pursuant to the notifications dated 08.06.2006/20.10.2006 to 7114 posts of Junior Linemen. The submission made by the learned Senior Counsel appearing for the parties is that the appointments made to posts beyond 7114 posts that were advertised on 08.06.2006/20.10.2006 were by way of implementation of the directions issued by a Division Bench of the High Court on 10.11.2009 in Writ Appeal 1434 of 2008 and Batch. Therefore, according to them, the finding of the High Court that appointments made to posts beyond those that were advertised is not correct. The directions issued by the High Court are:- ?Therefore, taking the aforesaid undertakings of the Appellant-Distribution Companies on record, we direct the Appellant Companies to appoint all the Respondents/Writ Petitioners, who submitted their applications pursuant to the notifications dated 8.6.2006 and the other dates, issued by the various appellant companies, and who have passed the pole climbing test and fulfilled the other eligibility criterion for appointment as Junior Linemen, without reference to and without insisting upon the fulfillment of Condition No.6 (iv) (c) of the revised notification dated 20.10.2006 within two months from the date of receipt of a copy of this order. We also make it clear that this direction would be applicable to all those candidates, who have not approached this Court but who had applied in pursuance of the aforementioned notifications, subject to passing of the pole climbing test and fulfillment of eligibility criteria. We however make it clear that the persons who have not applied in pursuance of the notifications dated 8.6.2006 and the other dates and who have not subjected themselves to the selection process have no right whatsoever to claim that they are entitled for such appointment. We also make it clear that all the selected and appointed respondents-Writ Petitioners and others similarly situated would be entitled for all benefits on par with the persons who have been appointed as Junior Linemen as per Condition No.6 (iv)(c) of the revised notification, including regularization of their service as per rules and policy.? 10. The said judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch was referred to in the impugned judgment. However, the High Court proceeded to adjudicate the correctness of the selections made pursuant to the notification dated 08.06.2006/20.10.2006. The judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch became final and appointments were made pursuant to the directions issued. The High Court committed a serious error in re-examining the selections to 7114 posts of Junior Linemen and other appointments made beyond the posts that were advertised, made pursuant to the advertisement dated 08.06.2006/20.10.2006. Therefore, the declarations and directions which have a bearing on the selections and appointments that are already made are not sustainable. 11. Ms. Prerna Singh, learned counsel appearing for the persons who are similarly situated to those who were directed to be appointed by the Division Bench in Writ Appeal No.1434 of 2008 and Batch submitted that some of the eligible candidates have not been appointed till date. Mr. R. Venkataramani, learned Senior Counsel appearing for the DISCOMS fairly submitted that if persons who applied for selection as Junior Lineman in 2006 were not appointed due to condition 6(iv) (c) of the revised notification dated 20.10.2006, they shall be considered for appointment. 12. Keeping in mind that appointments to the posts of Junior Linemen have been made long back and the services of those appointed were regularised, any interference with such appointments will cause irreparable loss to them apart from adversely affecting the smooth functioning of the A.P . TRANSCO and the DISCOMS. 13. Needless to say that, any future recruitment to the post of Junior Lineman shall be done strictly in accordance with the law. | 1[ds]8. We have heard the learned counsel for the parties. The selection and appointment to 7114 posts of Junior Linemen were approved by a judgment dated 10.11.2009 of the Division Bench in Writ Appeal 1434 of 2008 and Batch. Their services have also been regularized. The directions issued by the High Court in the impugned judgment pertaining to the selection of 7114 Junior Linemen pursuant to the advertisement dated 08.06.2006/ 20.10.2006 is not justified. No such directions could be issued especially after the judgment of another Division Bench approving appointments of 7114 Junior Linemen became final. The High Court is right in holding that appointments could not have been made to posts beyond the 7114 posts that were advertised. However, the High Court ought to have considered that the submission made by the learned Advocate General regarding the imminent disruption of essential services was taken into account by an earlier Division Bench which permitted the filling up of posts beyond the 7114 posts which were advertised. On the basis of the submission of the learned Advocate General and the judgment of the High Court in Writ Appeal 1434 of 2008 and Batch, persons who participated in the selections but could not be appointed in view of condition mentioned in Clause 6 (iv)(c) of the amended notification dated 20.10.2006 were also appointed as contract labourers and their services were regularised.A perusal of the declarations and directions in the impugned judgment would show that the High Court conducted a scrutiny of the selections made pursuant to the notifications dated 08.06.2006/20.10.2006 to 7114 posts of Junior Linemen.The said judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch was referred to in the impugned judgment. However, the High Court proceeded to adjudicate the correctness of the selections made pursuant to the notification dated 08.06.2006/20.10.2006. The judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch became final and appointments were made pursuant to the directions issued. The High Court committed a serious error in re-examining the selections to 7114 posts of Junior Linemen and other appointments made beyond the posts that were advertised, made pursuant to the advertisement dated 08.06.2006/20.10.2006. Therefore, the declarations and directions which have a bearing on the selections and appointments that are already made are not sustainable.Keeping in mind that appointments to the posts of Junior Linemen have been made long back and the services of those appointed were regularised, any interference with such appointments will cause irreparable loss to them apart from adversely affecting the smooth functioning of the A.P . TRANSCO and the DISCOMS.Needless to say that, any future recruitment to the post of Junior Lineman shall be done strictly in accordance with the | 1 | 3,274 | 481 | ### 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 the government vide letter No.565/Ser/2011 dated 15.6.2011 is illegal and the same are set aside. c). The respondents are directed to review the entire selection process strictly in terms of this judgment and the afore said declarations and pass appropriate orders in accordance with law within a period of eight weeks from the date of receipt of copy of this order. d). The respondents are directed to fill up 7319 posts of JLM that arose pursuant to the permission of the government vide letter No. 565/Ser/2011 dated 15.6.2011 by issuing the notifications / calling for applications from the eligible candidates, of course, by giving preference to the contract labour as per rules.? Aggrieved by the said judgment, the above appeals are filed. 8. We have heard the learned counsel for the parties. The selection and appointment to 7114 posts of Junior Linemen were approved by a judgment dated 10.11.2009 of the Division Bench in Writ Appeal 1434 of 2008 and Batch. Their services have also been regularized. The directions issued by the High Court in the impugned judgment pertaining to the selection of 7114 Junior Linemen pursuant to the advertisement dated 08.06.2006/ 20.10.2006 is not justified. No such directions could be issued especially after the judgment of another Division Bench approving appointments of 7114 Junior Linemen became final. The High Court is right in holding that appointments could not have been made to posts beyond the 7114 posts that were advertised. However, the High Court ought to have considered that the submission made by the learned Advocate General regarding the imminent disruption of essential services was taken into account by an earlier Division Bench which permitted the filling up of posts beyond the 7114 posts which were advertised. On the basis of the submission of the learned Advocate General and the judgment of the High Court in Writ Appeal 1434 of 2008 and Batch, persons who participated in the selections but could not be appointed in view of condition mentioned in Clause 6 (iv)(c) of the amended notification dated 20.10.2006 were also appointed as contract labourers and their services were regularised. 9. A perusal of the declarations and directions in the impugned judgment would show that the High Court conducted a scrutiny of the selections made pursuant to the notifications dated 08.06.2006/20.10.2006 to 7114 posts of Junior Linemen. The submission made by the learned Senior Counsel appearing for the parties is that the appointments made to posts beyond 7114 posts that were advertised on 08.06.2006/20.10.2006 were by way of implementation of the directions issued by a Division Bench of the High Court on 10.11.2009 in Writ Appeal 1434 of 2008 and Batch. Therefore, according to them, the finding of the High Court that appointments made to posts beyond those that were advertised is not correct. The directions issued by the High Court are:- ?Therefore, taking the aforesaid undertakings of the Appellant-Distribution Companies on record, we direct the Appellant Companies to appoint all the Respondents/Writ Petitioners, who submitted their applications pursuant to the notifications dated 8.6.2006 and the other dates, issued by the various appellant companies, and who have passed the pole climbing test and fulfilled the other eligibility criterion for appointment as Junior Linemen, without reference to and without insisting upon the fulfillment of Condition No.6 (iv) (c) of the revised notification dated 20.10.2006 within two months from the date of receipt of a copy of this order. We also make it clear that this direction would be applicable to all those candidates, who have not approached this Court but who had applied in pursuance of the aforementioned notifications, subject to passing of the pole climbing test and fulfillment of eligibility criteria. We however make it clear that the persons who have not applied in pursuance of the notifications dated 8.6.2006 and the other dates and who have not subjected themselves to the selection process have no right whatsoever to claim that they are entitled for such appointment. We also make it clear that all the selected and appointed respondents-Writ Petitioners and others similarly situated would be entitled for all benefits on par with the persons who have been appointed as Junior Linemen as per Condition No.6 (iv)(c) of the revised notification, including regularization of their service as per rules and policy.? 10. The said judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch was referred to in the impugned judgment. However, the High Court proceeded to adjudicate the correctness of the selections made pursuant to the notification dated 08.06.2006/20.10.2006. The judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch became final and appointments were made pursuant to the directions issued. The High Court committed a serious error in re-examining the selections to 7114 posts of Junior Linemen and other appointments made beyond the posts that were advertised, made pursuant to the advertisement dated 08.06.2006/20.10.2006. Therefore, the declarations and directions which have a bearing on the selections and appointments that are already made are not sustainable. 11. Ms. Prerna Singh, learned counsel appearing for the persons who are similarly situated to those who were directed to be appointed by the Division Bench in Writ Appeal No.1434 of 2008 and Batch submitted that some of the eligible candidates have not been appointed till date. Mr. R. Venkataramani, learned Senior Counsel appearing for the DISCOMS fairly submitted that if persons who applied for selection as Junior Lineman in 2006 were not appointed due to condition 6(iv) (c) of the revised notification dated 20.10.2006, they shall be considered for appointment. 12. Keeping in mind that appointments to the posts of Junior Linemen have been made long back and the services of those appointed were regularised, any interference with such appointments will cause irreparable loss to them apart from adversely affecting the smooth functioning of the A.P . TRANSCO and the DISCOMS. 13. Needless to say that, any future recruitment to the post of Junior Lineman shall be done strictly in accordance with the law.
### Response:
1
### Explanation:
8. We have heard the learned counsel for the parties. The selection and appointment to 7114 posts of Junior Linemen were approved by a judgment dated 10.11.2009 of the Division Bench in Writ Appeal 1434 of 2008 and Batch. Their services have also been regularized. The directions issued by the High Court in the impugned judgment pertaining to the selection of 7114 Junior Linemen pursuant to the advertisement dated 08.06.2006/ 20.10.2006 is not justified. No such directions could be issued especially after the judgment of another Division Bench approving appointments of 7114 Junior Linemen became final. The High Court is right in holding that appointments could not have been made to posts beyond the 7114 posts that were advertised. However, the High Court ought to have considered that the submission made by the learned Advocate General regarding the imminent disruption of essential services was taken into account by an earlier Division Bench which permitted the filling up of posts beyond the 7114 posts which were advertised. On the basis of the submission of the learned Advocate General and the judgment of the High Court in Writ Appeal 1434 of 2008 and Batch, persons who participated in the selections but could not be appointed in view of condition mentioned in Clause 6 (iv)(c) of the amended notification dated 20.10.2006 were also appointed as contract labourers and their services were regularised.A perusal of the declarations and directions in the impugned judgment would show that the High Court conducted a scrutiny of the selections made pursuant to the notifications dated 08.06.2006/20.10.2006 to 7114 posts of Junior Linemen.The said judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch was referred to in the impugned judgment. However, the High Court proceeded to adjudicate the correctness of the selections made pursuant to the notification dated 08.06.2006/20.10.2006. The judgment of the High Court in Writ Appeal No.1434 of 2008 and Batch became final and appointments were made pursuant to the directions issued. The High Court committed a serious error in re-examining the selections to 7114 posts of Junior Linemen and other appointments made beyond the posts that were advertised, made pursuant to the advertisement dated 08.06.2006/20.10.2006. Therefore, the declarations and directions which have a bearing on the selections and appointments that are already made are not sustainable.Keeping in mind that appointments to the posts of Junior Linemen have been made long back and the services of those appointed were regularised, any interference with such appointments will cause irreparable loss to them apart from adversely affecting the smooth functioning of the A.P . TRANSCO and the DISCOMS.Needless to say that, any future recruitment to the post of Junior Lineman shall be done strictly in accordance with the
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Textile Labour Association, Bhadra Ahmedabad Vs. Ahmedabad Mill Owners Association, Ahmedabad | Hidayatullah, C.J.1. On September 19, 1969 the Textile Labour Association, Ahmedabad and the Ahmedabad Mill-owners Association, Ahmedabad entered into a compromise in Civil Appeal No. 1605 of 1966. This compromise was recorded by us, but we left it over for consideration as Civil Appeal No. 1606 of 1966 was to be heard. The two appeals have been filed by different parties against the same award and the party in Civil Appeal No. 1606 of 1966 was not agreeable to the compromise and did not wish to implement it. Civil Appeal No. 1606 of 1966 was set down today for hearing.2. A question has been raised whether the compromise entered into the Textile Labour Association, Ahmedabad is binding upon the party in Civil Appeal No. 1606 of 1966. On an examination of the provisions of the Bombay Industrial Relations Act, 1946, we are of opinion that the compromise is binding upon all the employees who are holding out and who are parties to Civil Appeal No. 1606 of 1966. Under Section 27-A of the Bombay Industrial Relations Act, it is provided that except as provided in Sections 32 and 33, no employee shall be allowed to appear or act in any proceedings under the Act except through the representative of the employees. The expression Representative of employees is defined in Section 30 of the Act and it gives in preferential order the persons who can be said to be representative of employees. The first in the list in the representative Union for such industry. Mr. Gokhale appearing on behalf of the 13 persons who are not accepting the compromise and who wish to press Civil Appeal No. 1606 of 1966, admits that the Textile Labour Association is the representative Union for his industry. He contends, however, that his clients can press their claim in spite of the compromise entered into by the representative union of the industry and he relies upon the provisions of Section 32 and 33 of the Act which are excepted from the operation of Section 27-A. Reading these two sections, we find that it is quite clearly stated in the provisos to the two sections that no individual is allowed to appeal in any proceeding in which the representative Union has appeared as the representative of the employees. It is not necessary to quote the two sections. Each of them contains an identical proviso, i.e., the character of the representative Union and the binding force of any agreement or action taken by the representative Union. In this case the Textile Labour Association has appeared before us and therefore we are of opinion that the provision to Section 32 and 33 do not entitle any other employee to come before us and plead against the action of the representative Union in accepting the compromise; nor do we think that they can press their claim when once the representative union of the employees has entered into a valid compromise which has been accepted by this Court. | 0[ds]On an examination of the provisions of the Bombay Industrial Relations Act, 1946, we are of opinion that the compromise is binding upon all the employees who are holding out and who are parties to Civil Appeal No. 1606 of 1966. Under Sectionof the Bombay Industrial Relations Act, it is provided that except as provided in Sections 32 and 33, no employee shall be allowed to appear or act in any proceedings under the Act except through the representative of the employees. The expression Representative of employees is defined in Section 30 of the Act and it gives in preferential order the persons who can be said to be representative of employees. The first in the list in the representative Union for such industry.Mr. Gokhale appearing on behalf of the 13 persons who are not accepting the compromise and who wish to press Civil Appeal No. 1606 of 1966, admits that the Textile Labour Association is the representative Union for his industry. He contends, however, that his clients can press their claim in spite of the compromise entered into by the representative union of the industry and he relies upon the provisions of Section 32 and 33 of the Act which are excepted from the operation of SectionReading these two sections, we find that it is quite clearly stated in the provisos to the two sections that no individual is allowed to appeal in any proceeding in which the representative Union has appeared as the representative of the employees. It is not necessary to quote the two sections. Each of them contains an identical proviso, i.e., the character of the representative Union and the binding force of any agreement or action taken by the representative Union. In this case the Textile Labour Association has appeared before us and therefore we are of opinion that the provision to Section 32 and 33 do not entitle any other employee to come before us and plead against the action of the representative Union in accepting the compromise; nor do we think that they can press their claim when once the representative union of the employees has entered into a valid compromise which has been accepted by this Court. | 0 | 537 | 391 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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Hidayatullah, C.J.1. On September 19, 1969 the Textile Labour Association, Ahmedabad and the Ahmedabad Mill-owners Association, Ahmedabad entered into a compromise in Civil Appeal No. 1605 of 1966. This compromise was recorded by us, but we left it over for consideration as Civil Appeal No. 1606 of 1966 was to be heard. The two appeals have been filed by different parties against the same award and the party in Civil Appeal No. 1606 of 1966 was not agreeable to the compromise and did not wish to implement it. Civil Appeal No. 1606 of 1966 was set down today for hearing.2. A question has been raised whether the compromise entered into the Textile Labour Association, Ahmedabad is binding upon the party in Civil Appeal No. 1606 of 1966. On an examination of the provisions of the Bombay Industrial Relations Act, 1946, we are of opinion that the compromise is binding upon all the employees who are holding out and who are parties to Civil Appeal No. 1606 of 1966. Under Section 27-A of the Bombay Industrial Relations Act, it is provided that except as provided in Sections 32 and 33, no employee shall be allowed to appear or act in any proceedings under the Act except through the representative of the employees. The expression Representative of employees is defined in Section 30 of the Act and it gives in preferential order the persons who can be said to be representative of employees. The first in the list in the representative Union for such industry. Mr. Gokhale appearing on behalf of the 13 persons who are not accepting the compromise and who wish to press Civil Appeal No. 1606 of 1966, admits that the Textile Labour Association is the representative Union for his industry. He contends, however, that his clients can press their claim in spite of the compromise entered into by the representative union of the industry and he relies upon the provisions of Section 32 and 33 of the Act which are excepted from the operation of Section 27-A. Reading these two sections, we find that it is quite clearly stated in the provisos to the two sections that no individual is allowed to appeal in any proceeding in which the representative Union has appeared as the representative of the employees. It is not necessary to quote the two sections. Each of them contains an identical proviso, i.e., the character of the representative Union and the binding force of any agreement or action taken by the representative Union. In this case the Textile Labour Association has appeared before us and therefore we are of opinion that the provision to Section 32 and 33 do not entitle any other employee to come before us and plead against the action of the representative Union in accepting the compromise; nor do we think that they can press their claim when once the representative union of the employees has entered into a valid compromise which has been accepted by this Court.
### Response:
0
### Explanation:
On an examination of the provisions of the Bombay Industrial Relations Act, 1946, we are of opinion that the compromise is binding upon all the employees who are holding out and who are parties to Civil Appeal No. 1606 of 1966. Under Sectionof the Bombay Industrial Relations Act, it is provided that except as provided in Sections 32 and 33, no employee shall be allowed to appear or act in any proceedings under the Act except through the representative of the employees. The expression Representative of employees is defined in Section 30 of the Act and it gives in preferential order the persons who can be said to be representative of employees. The first in the list in the representative Union for such industry.Mr. Gokhale appearing on behalf of the 13 persons who are not accepting the compromise and who wish to press Civil Appeal No. 1606 of 1966, admits that the Textile Labour Association is the representative Union for his industry. He contends, however, that his clients can press their claim in spite of the compromise entered into by the representative union of the industry and he relies upon the provisions of Section 32 and 33 of the Act which are excepted from the operation of SectionReading these two sections, we find that it is quite clearly stated in the provisos to the two sections that no individual is allowed to appeal in any proceeding in which the representative Union has appeared as the representative of the employees. It is not necessary to quote the two sections. Each of them contains an identical proviso, i.e., the character of the representative Union and the binding force of any agreement or action taken by the representative Union. In this case the Textile Labour Association has appeared before us and therefore we are of opinion that the provision to Section 32 and 33 do not entitle any other employee to come before us and plead against the action of the representative Union in accepting the compromise; nor do we think that they can press their claim when once the representative union of the employees has entered into a valid compromise which has been accepted by this Court.
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State Of Mysore Vs. S. R. Jayaram | candidate should be appointed. But the more fundamental question is whether that portion of Rule 9 (2) which vests in the Government this power of selection is valid. The contention of the respondent is that this portion of the Rule is violative of Articles 14 and 16 of the Constitution. 4. The Rules make provisions for the direct recruitment to several cadres in the State Services on the basis of the result of a competitive examination. The examination is held annually. It is open to all eligible candidates. The result of the examination is announced and the list of successful candidates in the order of merit is published. Subject to the reservations for Scheduled Castes, Scheduled Tribes and Backward Classes, the successful candidates are entitled to be appointed as probationers to Class I posts in the order of merit and thereafter to Class II posts in the order of merit. If there are vacancies in a number of Class I or Class II cadres Rule 9 (2) comes into play. The candidates are required to indicate in their applications their preferences for the cadres they wish to join. Had there been nothing more in Rule 9 (2), the successful candidates would have the preferential claim in the order of merit to appointment in the cadres for which they indicated their preferences. Thus if there are 20 vacancies in cadre A and 7 vacancies in cadre B, a successful candidate ranking fourth in order of merit would be appointed as a matter of course to cadre A For which he indicated his preference. 5. But the last part of Rule 9 (2) reserves to the Government the right of appointing to any particular cadre any candidate whom it considers more suitable for such cadre. The Rules are silent on the question as to how the Government is to find out the suitability of a candidate for a particular cadre. A single competitive examination is held to test the suitability of candidates for several cadres. Those who succeed in the examination are found suitable for all the cadres and their list in order of merit is published under Rule 8. No separate examination is held to test the suitability of the candidate for any particular cadre. The list of successful candidates published under Rule 8 does not indicate that any candidate is more suitable for cadre A rather than for cadre B. The Rules do not give the Public Service Commission the power to test the suitability of a candidate for a particular cadre or to recommend that he is more suitable for it. Nor is there any provision in the Rules under which the Government can test the suitability of a candidate for any cadre after the result of the examination is published. The result is that the recommendation of the Public Service Commission is not a relevant material nor is there any other material on the basis of which the Government can find that a candidate is more suitable for a particular cadre. It follows that under the last part of Rule 9 (2) it is open to the Government to say at its sweet will that a candidate is more suitable for a particular cadre and to deprive him of his opportunity to join the cadre for which he indicated his preference.Take the present case. An open competitive examination was held for recruitment to the posts of Assistant Commissioners in the Mysore Administrative Service and Assistant Controllers in the Mysore State Accounts Service. Though both are Class I posts the post of Assistant Commissioner has better prospects. But for the last part of R. 9 (2) the successful candidates would have the preferential claim for appointment as probationers to the posts of Assistant Commissioners in order of merit and thereafter to the posts of Assistant Controllers in the order of merit. As a matter of fact, there were 20 vacancies in the posts of Assistant Commissioners. The respondent ranked fourth in the order of merit. He indicated his preference for the post of Assistant Commissioner and had a preferential claim for appointment to that post. The candidates ranking 1st, 2nd, 3rd and 5th were appointed as Assistant Commissioners. The respondent though ranking fourth in order of merit was singled out and was debarred from the post of Assistant Commissioner. It is because of the arbitrary power under the last part of Rule 9 (2) that the Government could make this unjust discrimination. 6. The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidates. Rules 1 to 8, 9 (1) and the first part of Rule 9 (2) seek to achieve this aim. The last part of Rule 9 (2) subverts and destroys the basic objectives of the preceding rules. It vests in the Government an arbitrary power of patronage. Though R. 9(1) requires the appointment of successful candidates to Class I posts in the order of merit and thereafter to Class II posts in the order of merit, Rule 9 (1) is subject to Rule 9 (2), and under the cover of Rule 9 (2) the Government can even arrogate to itself the power of assigning a Class I post to a less meritorious and a Class II post to a more meritorious candidate. We hold that the last part of Rule 9 (2) gives the Government an arbitrary power of ignoring the just claims of successful candidates for recruitment to offices under the State. It is violative of Articles 14 and 16 (1) of the Constitution and must be struck down. 7. Having regard to his rank in order of merits, the respondent had the right to be appointed to the post of Assistant Commissioner. As the offending part of R. 9(2) is invalid, the State Government had no power to withhold the post from him. The High Court should, therefore, have directed the Government to appoint him to that post. | 0[ds].Take the present case. An open competitive examination was held for recruitment to the posts of Assistant Commissioners in the Mysore Administrative Service and Assistant Controllers in the Mysore State Accounts Service. Though both are Class I posts the post of Assistant Commissioner has better prospects. But for the last part of R. 9 (2) the successful candidates would have the preferential claim for appointment as probationers to the posts of Assistant Commissioners in order of merit and thereafter to the posts of Assistant Controllers in the order of merit. As a matter of fact, there were 20 vacancies in the posts of Assistant Commissioners. The respondent ranked fourth in the order of merit. He indicated his preference for the post of Assistant Commissioner and had a preferential claim for appointment to that post. The candidates ranking 1st, 2nd, 3rd and 5th were appointed as Assistant Commissioners. The respondent though ranking fourth in order of merit was singled out and was debarred from the post of Assistant Commissioner. It is because of the arbitrary power under the last part of Rule 9 (2) that the Government could make this unjust discrimination6. The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidates. Rules 1 to 8, 9 (1) and the first part of Rule 9 (2) seek to achieve this aim. The last part of Rule 9 (2) subverts and destroys the basic objectives of the preceding rules. It vests in the Government an arbitrary power of patronage. Though R. 9(1) requires the appointment of successful candidates to Class I posts in the order of merit and thereafter to Class II posts in the order of merit, Rule 9 (1) is subject to Rule 9 (2), and under the cover of Rule 9 (2) the Government can even arrogate to itself the power of assigning a Class I post to a less meritorious and a Class II post to a more meritorious candidate. We hold that the last part of Rule 9 (2) gives the Government an arbitrary power of ignoring the just claims of successful candidates for recruitment to offices under the State. It is violative of Articles 14 and 16 (1) of the Constitution and must be struck down7. Having regard to his rank in order of merits, the respondent had the right to be appointed to the post of Assistant Commissioner. As the offending part of R. 9(2) is invalid, the State Government had no power to withhold the post from him. The High Court should, therefore, have directed the Government to appoint him to that post. | 0 | 2,167 | 506 | ### 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:
candidate should be appointed. But the more fundamental question is whether that portion of Rule 9 (2) which vests in the Government this power of selection is valid. The contention of the respondent is that this portion of the Rule is violative of Articles 14 and 16 of the Constitution. 4. The Rules make provisions for the direct recruitment to several cadres in the State Services on the basis of the result of a competitive examination. The examination is held annually. It is open to all eligible candidates. The result of the examination is announced and the list of successful candidates in the order of merit is published. Subject to the reservations for Scheduled Castes, Scheduled Tribes and Backward Classes, the successful candidates are entitled to be appointed as probationers to Class I posts in the order of merit and thereafter to Class II posts in the order of merit. If there are vacancies in a number of Class I or Class II cadres Rule 9 (2) comes into play. The candidates are required to indicate in their applications their preferences for the cadres they wish to join. Had there been nothing more in Rule 9 (2), the successful candidates would have the preferential claim in the order of merit to appointment in the cadres for which they indicated their preferences. Thus if there are 20 vacancies in cadre A and 7 vacancies in cadre B, a successful candidate ranking fourth in order of merit would be appointed as a matter of course to cadre A For which he indicated his preference. 5. But the last part of Rule 9 (2) reserves to the Government the right of appointing to any particular cadre any candidate whom it considers more suitable for such cadre. The Rules are silent on the question as to how the Government is to find out the suitability of a candidate for a particular cadre. A single competitive examination is held to test the suitability of candidates for several cadres. Those who succeed in the examination are found suitable for all the cadres and their list in order of merit is published under Rule 8. No separate examination is held to test the suitability of the candidate for any particular cadre. The list of successful candidates published under Rule 8 does not indicate that any candidate is more suitable for cadre A rather than for cadre B. The Rules do not give the Public Service Commission the power to test the suitability of a candidate for a particular cadre or to recommend that he is more suitable for it. Nor is there any provision in the Rules under which the Government can test the suitability of a candidate for any cadre after the result of the examination is published. The result is that the recommendation of the Public Service Commission is not a relevant material nor is there any other material on the basis of which the Government can find that a candidate is more suitable for a particular cadre. It follows that under the last part of Rule 9 (2) it is open to the Government to say at its sweet will that a candidate is more suitable for a particular cadre and to deprive him of his opportunity to join the cadre for which he indicated his preference.Take the present case. An open competitive examination was held for recruitment to the posts of Assistant Commissioners in the Mysore Administrative Service and Assistant Controllers in the Mysore State Accounts Service. Though both are Class I posts the post of Assistant Commissioner has better prospects. But for the last part of R. 9 (2) the successful candidates would have the preferential claim for appointment as probationers to the posts of Assistant Commissioners in order of merit and thereafter to the posts of Assistant Controllers in the order of merit. As a matter of fact, there were 20 vacancies in the posts of Assistant Commissioners. The respondent ranked fourth in the order of merit. He indicated his preference for the post of Assistant Commissioner and had a preferential claim for appointment to that post. The candidates ranking 1st, 2nd, 3rd and 5th were appointed as Assistant Commissioners. The respondent though ranking fourth in order of merit was singled out and was debarred from the post of Assistant Commissioner. It is because of the arbitrary power under the last part of Rule 9 (2) that the Government could make this unjust discrimination. 6. The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidates. Rules 1 to 8, 9 (1) and the first part of Rule 9 (2) seek to achieve this aim. The last part of Rule 9 (2) subverts and destroys the basic objectives of the preceding rules. It vests in the Government an arbitrary power of patronage. Though R. 9(1) requires the appointment of successful candidates to Class I posts in the order of merit and thereafter to Class II posts in the order of merit, Rule 9 (1) is subject to Rule 9 (2), and under the cover of Rule 9 (2) the Government can even arrogate to itself the power of assigning a Class I post to a less meritorious and a Class II post to a more meritorious candidate. We hold that the last part of Rule 9 (2) gives the Government an arbitrary power of ignoring the just claims of successful candidates for recruitment to offices under the State. It is violative of Articles 14 and 16 (1) of the Constitution and must be struck down. 7. Having regard to his rank in order of merits, the respondent had the right to be appointed to the post of Assistant Commissioner. As the offending part of R. 9(2) is invalid, the State Government had no power to withhold the post from him. The High Court should, therefore, have directed the Government to appoint him to that post.
### Response:
0
### Explanation:
.Take the present case. An open competitive examination was held for recruitment to the posts of Assistant Commissioners in the Mysore Administrative Service and Assistant Controllers in the Mysore State Accounts Service. Though both are Class I posts the post of Assistant Commissioner has better prospects. But for the last part of R. 9 (2) the successful candidates would have the preferential claim for appointment as probationers to the posts of Assistant Commissioners in order of merit and thereafter to the posts of Assistant Controllers in the order of merit. As a matter of fact, there were 20 vacancies in the posts of Assistant Commissioners. The respondent ranked fourth in the order of merit. He indicated his preference for the post of Assistant Commissioner and had a preferential claim for appointment to that post. The candidates ranking 1st, 2nd, 3rd and 5th were appointed as Assistant Commissioners. The respondent though ranking fourth in order of merit was singled out and was debarred from the post of Assistant Commissioner. It is because of the arbitrary power under the last part of Rule 9 (2) that the Government could make this unjust discrimination6. The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidates. Rules 1 to 8, 9 (1) and the first part of Rule 9 (2) seek to achieve this aim. The last part of Rule 9 (2) subverts and destroys the basic objectives of the preceding rules. It vests in the Government an arbitrary power of patronage. Though R. 9(1) requires the appointment of successful candidates to Class I posts in the order of merit and thereafter to Class II posts in the order of merit, Rule 9 (1) is subject to Rule 9 (2), and under the cover of Rule 9 (2) the Government can even arrogate to itself the power of assigning a Class I post to a less meritorious and a Class II post to a more meritorious candidate. We hold that the last part of Rule 9 (2) gives the Government an arbitrary power of ignoring the just claims of successful candidates for recruitment to offices under the State. It is violative of Articles 14 and 16 (1) of the Constitution and must be struck down7. Having regard to his rank in order of merits, the respondent had the right to be appointed to the post of Assistant Commissioner. As the offending part of R. 9(2) is invalid, the State Government had no power to withhold the post from him. The High Court should, therefore, have directed the Government to appoint him to that post.
|
Deputy Commissioner Of Income Tax Vs. M/S. Core Health Care Ltd | computation of income under the head "Profits and Gains of Business". Section 43(1) defines "actual cost". The definition of "actual cost" has been amplified by excluding such portion of the cost as is met directly or indirectly by any other person or authority. Explanation 8 has been inserted in Section 43(1) by Finance Act, 1986 (23 of 1986), with retrospective effect from 1.4.74. It is important to note that the word "actual cost" would mean the whole cost and not the estimate of cost. "Actual cost" means nothing more than the cost accurately ascertained. The determination of actual cost in Section 43(1) has relevancy in relation to Section 32(depreciation allowance), Section 32A(investment allowance), Section 33 (development rebate allowance), and Section 41(balancing charge). "Actual cost" of an asset has no relevancy in relation to Section 36(1)(iii) of the 1961 Act. This reasoning flows from a bare reading of Section 43(1). Section 43 defines certain terms relevant to income from profits and gains of business and, therefore, the said section commences with the words "In Sections 28 to 41 and unless the context otherwise requires" "actual cost" shall mean the actual cost of the assets to the assessee, reducing by that portion of the cost thereof, if any, as has been met directly or indirectly by any other person or authority. In other words, Explanation 8 applies only to those Sections like Sections 32, 32A, 33 and 41 which deal with concepts like Depreciation. The concept of Depreciation is not there in Section 36(1)(iii). That is why the legislature has used the words "unless the context otherwise requires". Hence, Explanation 8 has no relevancy to Section 36(1)(iii). It has relevancy to the aforementioned enumerated sections. Therefore, in our view Explanation 8 has no application to the facts of the present case. 11. Before concluding on this point we may state that in this batch of civil appeals we are concerned with the assessment years 1992-93, 1993-94, 1995-96 and 1997-98. A proviso has since been inserted in Section 36(1)(iii) of the 1961 Act. That proviso has been inserted by Finance Act, 2003 w.e.f. 1.4.2004. Hence, the said proviso will not apply to the facts of the present case. Further, in our view the said proviso would operate prospectively. In this connection it may be noted that by the same Finance Act, 2003 insertions have been made by way of proviso in Section 36(1)(viia) by the same Finance Act which is also made with effect from 1.4.2004. Same is the position with regard to insertion of a sub-section after Section 90(2) and before the Explanation. This insertion also operates w.e.f. 1.4.04. In short, the above amendments have been made by Finance Act, 2003 and all the said amendments have been made operational w.e.f. 1.4.04. Therefore, the proviso inserted in Section 36(1)(iii) has to be read as prospectively and w.e.f. 1.4.04. In this case, we are concerned with the law as it existed prior to 1.4.2004. As stated above, we are not concerned with the interpretation or applicability of the said proviso to Section 36(1)(iii) w.e.f. 1.4.04 in the present case.12. In the case of Challapalli Sugars Ltd. (supra) this Court observed that interest paid on the borrowing utilized to bring into existence a fixed asset which has not gone into production, goes to add to the cost of installation of that asset. It was further observed that if the said borrowing was not "for the purpose of business" inasmuch as no business had come into existence, it must follow that it was made for the purpose of acquiring an asset which could be put to use for doing business, and hence interest paid on such borrowing would go to add to the cost of the assets so acquired.13. In our view the above observations have to be confined to the facts in the case of Challapalli Sugars Ltd. (supra). It was a case where the company had not yet started production when it borrowed the amount in question. The more appropriate decision applicable to the present case would be the judgment of this court in the case of India Cements Ltd. v. Commissioner of Income-tax, Madras - (1966) 60 ITR 52 in which it has been observed that, for considering whether payment of interest on borrowing is revenue expenditure or not, the purpose for which the borrowing is made is irrelevant. In our view, Section 36(1)(iii) of the 1961 Act has to be read on its own terms. It is a Code by itself. Section 36(1)(iii) is attracted when the assessee borrows the capital for the purpose of his business. It does not matter whether the capital is borrowed in order to acquire a revenue asset or a capital asset, because of that the section requires is that the assessee must borrow the capital for the purpose of his business. This dichotomy between the borrowing of a loan and actual application thereof in the purchase of a capital asset, seems to proceed on the basis that a mere transaction of borrowing does not, by itself bring any new asset of enduring nature into existence, and that it is the transaction of investment of the borrowed capital in the purchase of a new asset which brings that asset into existence. The transaction of borrowing is not the same as the transaction of investment. If this dichotomy is kept in mind it becomes clear that the transaction of borrowing attracts the provisions of Section 36(1)(iii). Thus, the decision of the Bombay High Court in Calico Dyeing & Printing Works (supra) and the judgment of the Supreme Court India Cements Ltd. (supra) have been given with reference to the borrowings made for the purposes of a running business, while the decision of the Supreme Court in Challapalli Sugars Ltd. (supra) was given with reference to the borrowings which could not be treated as made for the purposes of business as no business had commenced in that case. Therefore, there is no inconsistency between the above decisions. CONCLUSIONS | 1[ds]11. Before concluding on this point we may state that in this batch of civil appeals we are concerned with the assessment years 1992-93, 1993-94, 1995-96 and 1997-98. A proviso has since been inserted in Section 36(1)(iii) of the 1961 Act. That proviso has been inserted by Finance Act, 2003 w.e.f. 1.4.2004. Hence, the said proviso will not apply to the facts of the present case. Further, in our view the said proviso would operate prospectively. In this connection it may be noted that by the same Finance Act, 2003 insertions have been made by way of proviso in Section 36(1)(viia) by the same Finance Act which is also made with effect from 1.4.2004. Same is the position with regard to insertion of a sub-section after Section 90(2) and before the Explanation. This insertion also operates w.e.f. 1.4.04. In short, the above amendments have been made by Finance Act, 2003 and all the said amendments have been made operational w.e.f. 1.4.04. Therefore, the proviso inserted in Section 36(1)(iii) has to be read as prospectively and w.e.f. 1.4.04. In this case, we are concerned with the law as it existed prior to 1.4.2004. As stated above, we are not concerned with the interpretation or applicability of the said proviso to Section 36(1)(iii) w.e.f. 1.4.04 in the present case.12. In the case of Challapalli Sugars Ltd. (supra) this Court observed that interest paid on the borrowing utilized to bring into existence a fixed asset which has not gone into production, goes to add to the cost of installation of that asset. It was further observed that if the said borrowing was not "for the purpose of business" inasmuch as no business had come into existence, it must follow that it was made for the purpose of acquiring an asset which could be put to use for doing business, and hence interest paid on such borrowing would go to add to the cost of the assets so acquired.13. In our view the above observations have to be confined to the facts in the case of Challapalli Sugars Ltd. (supra). It was a case where the company had not yet started production when it borrowed the amount in question. The more appropriate decision applicable to the present case would be the judgment of this court in the case of India Cements Ltd. v. Commissioner of Income-tax, Madras - (1966) 60 ITR 52 in which it has been observed that, for considering whether payment of interest on borrowing is revenue expenditure or not, the purpose for which the borrowing is made is irrelevant. In our view, Section 36(1)(iii) of the 1961 Act has to be read on its own terms. It is a Code by itself. Section 36(1)(iii) is attracted when the assessee borrows the capital for the purpose of his business. It does not matter whether the capital is borrowed in order to acquire a revenue asset or a capital asset, because of that the section requires is that the assessee must borrow the capital for the purpose of his business. This dichotomy between the borrowing of a loan and actual application thereof in the purchase of a capital asset, seems to proceed on the basis that a mere transaction of borrowing does not, by itself bring any new asset of enduring nature into existence, and that it is the transaction of investment of the borrowed capital in the purchase of a new asset which brings that asset into existence. The transaction of borrowing is not the same as the transaction of investment. If this dichotomy is kept in mind it becomes clear that the transaction of borrowing attracts the provisions of Section 36(1)(iii). Thus, the decision of the Bombay High Court in Calico Dyeing & Printing Works (supra) and the judgment of the Supreme Court India Cements Ltd. (supra) have been given with reference to the borrowings made for the purposes of a running business, while the decision of the Supreme Court in Challapalli Sugars Ltd. (supra) was given with reference to the borrowings which could not be treated as made for the purposes of business as no business had commenced in that case. Therefore, there is no inconsistency between the abovelegislature has, therefore, made no distinction in Section 36(1)(iii) between "capital borrowed for a revenue purpose" and "capital borrowed for a capital purpose". An assessee is entitled to claim interest paid on borrowed capital provided that capital is used for business purpose irrespective of what may be the result of using the capital which the assessee has borrowed. Further, the words "actual cost" do not find place in Section 36(1)(iii) of the 1961 Act which otherwise find place in Sections 32, 32A etc of the 1961 Act. The expression "actual cost" is defined in Section 43(1) of the 1961 Act which is essentially a definition section which is subject to the context to the contrary. | 1 | 3,031 | 963 | ### 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:
computation of income under the head "Profits and Gains of Business". Section 43(1) defines "actual cost". The definition of "actual cost" has been amplified by excluding such portion of the cost as is met directly or indirectly by any other person or authority. Explanation 8 has been inserted in Section 43(1) by Finance Act, 1986 (23 of 1986), with retrospective effect from 1.4.74. It is important to note that the word "actual cost" would mean the whole cost and not the estimate of cost. "Actual cost" means nothing more than the cost accurately ascertained. The determination of actual cost in Section 43(1) has relevancy in relation to Section 32(depreciation allowance), Section 32A(investment allowance), Section 33 (development rebate allowance), and Section 41(balancing charge). "Actual cost" of an asset has no relevancy in relation to Section 36(1)(iii) of the 1961 Act. This reasoning flows from a bare reading of Section 43(1). Section 43 defines certain terms relevant to income from profits and gains of business and, therefore, the said section commences with the words "In Sections 28 to 41 and unless the context otherwise requires" "actual cost" shall mean the actual cost of the assets to the assessee, reducing by that portion of the cost thereof, if any, as has been met directly or indirectly by any other person or authority. In other words, Explanation 8 applies only to those Sections like Sections 32, 32A, 33 and 41 which deal with concepts like Depreciation. The concept of Depreciation is not there in Section 36(1)(iii). That is why the legislature has used the words "unless the context otherwise requires". Hence, Explanation 8 has no relevancy to Section 36(1)(iii). It has relevancy to the aforementioned enumerated sections. Therefore, in our view Explanation 8 has no application to the facts of the present case. 11. Before concluding on this point we may state that in this batch of civil appeals we are concerned with the assessment years 1992-93, 1993-94, 1995-96 and 1997-98. A proviso has since been inserted in Section 36(1)(iii) of the 1961 Act. That proviso has been inserted by Finance Act, 2003 w.e.f. 1.4.2004. Hence, the said proviso will not apply to the facts of the present case. Further, in our view the said proviso would operate prospectively. In this connection it may be noted that by the same Finance Act, 2003 insertions have been made by way of proviso in Section 36(1)(viia) by the same Finance Act which is also made with effect from 1.4.2004. Same is the position with regard to insertion of a sub-section after Section 90(2) and before the Explanation. This insertion also operates w.e.f. 1.4.04. In short, the above amendments have been made by Finance Act, 2003 and all the said amendments have been made operational w.e.f. 1.4.04. Therefore, the proviso inserted in Section 36(1)(iii) has to be read as prospectively and w.e.f. 1.4.04. In this case, we are concerned with the law as it existed prior to 1.4.2004. As stated above, we are not concerned with the interpretation or applicability of the said proviso to Section 36(1)(iii) w.e.f. 1.4.04 in the present case.12. In the case of Challapalli Sugars Ltd. (supra) this Court observed that interest paid on the borrowing utilized to bring into existence a fixed asset which has not gone into production, goes to add to the cost of installation of that asset. It was further observed that if the said borrowing was not "for the purpose of business" inasmuch as no business had come into existence, it must follow that it was made for the purpose of acquiring an asset which could be put to use for doing business, and hence interest paid on such borrowing would go to add to the cost of the assets so acquired.13. In our view the above observations have to be confined to the facts in the case of Challapalli Sugars Ltd. (supra). It was a case where the company had not yet started production when it borrowed the amount in question. The more appropriate decision applicable to the present case would be the judgment of this court in the case of India Cements Ltd. v. Commissioner of Income-tax, Madras - (1966) 60 ITR 52 in which it has been observed that, for considering whether payment of interest on borrowing is revenue expenditure or not, the purpose for which the borrowing is made is irrelevant. In our view, Section 36(1)(iii) of the 1961 Act has to be read on its own terms. It is a Code by itself. Section 36(1)(iii) is attracted when the assessee borrows the capital for the purpose of his business. It does not matter whether the capital is borrowed in order to acquire a revenue asset or a capital asset, because of that the section requires is that the assessee must borrow the capital for the purpose of his business. This dichotomy between the borrowing of a loan and actual application thereof in the purchase of a capital asset, seems to proceed on the basis that a mere transaction of borrowing does not, by itself bring any new asset of enduring nature into existence, and that it is the transaction of investment of the borrowed capital in the purchase of a new asset which brings that asset into existence. The transaction of borrowing is not the same as the transaction of investment. If this dichotomy is kept in mind it becomes clear that the transaction of borrowing attracts the provisions of Section 36(1)(iii). Thus, the decision of the Bombay High Court in Calico Dyeing & Printing Works (supra) and the judgment of the Supreme Court India Cements Ltd. (supra) have been given with reference to the borrowings made for the purposes of a running business, while the decision of the Supreme Court in Challapalli Sugars Ltd. (supra) was given with reference to the borrowings which could not be treated as made for the purposes of business as no business had commenced in that case. Therefore, there is no inconsistency between the above decisions. CONCLUSIONS
### Response:
1
### Explanation:
11. Before concluding on this point we may state that in this batch of civil appeals we are concerned with the assessment years 1992-93, 1993-94, 1995-96 and 1997-98. A proviso has since been inserted in Section 36(1)(iii) of the 1961 Act. That proviso has been inserted by Finance Act, 2003 w.e.f. 1.4.2004. Hence, the said proviso will not apply to the facts of the present case. Further, in our view the said proviso would operate prospectively. In this connection it may be noted that by the same Finance Act, 2003 insertions have been made by way of proviso in Section 36(1)(viia) by the same Finance Act which is also made with effect from 1.4.2004. Same is the position with regard to insertion of a sub-section after Section 90(2) and before the Explanation. This insertion also operates w.e.f. 1.4.04. In short, the above amendments have been made by Finance Act, 2003 and all the said amendments have been made operational w.e.f. 1.4.04. Therefore, the proviso inserted in Section 36(1)(iii) has to be read as prospectively and w.e.f. 1.4.04. In this case, we are concerned with the law as it existed prior to 1.4.2004. As stated above, we are not concerned with the interpretation or applicability of the said proviso to Section 36(1)(iii) w.e.f. 1.4.04 in the present case.12. In the case of Challapalli Sugars Ltd. (supra) this Court observed that interest paid on the borrowing utilized to bring into existence a fixed asset which has not gone into production, goes to add to the cost of installation of that asset. It was further observed that if the said borrowing was not "for the purpose of business" inasmuch as no business had come into existence, it must follow that it was made for the purpose of acquiring an asset which could be put to use for doing business, and hence interest paid on such borrowing would go to add to the cost of the assets so acquired.13. In our view the above observations have to be confined to the facts in the case of Challapalli Sugars Ltd. (supra). It was a case where the company had not yet started production when it borrowed the amount in question. The more appropriate decision applicable to the present case would be the judgment of this court in the case of India Cements Ltd. v. Commissioner of Income-tax, Madras - (1966) 60 ITR 52 in which it has been observed that, for considering whether payment of interest on borrowing is revenue expenditure or not, the purpose for which the borrowing is made is irrelevant. In our view, Section 36(1)(iii) of the 1961 Act has to be read on its own terms. It is a Code by itself. Section 36(1)(iii) is attracted when the assessee borrows the capital for the purpose of his business. It does not matter whether the capital is borrowed in order to acquire a revenue asset or a capital asset, because of that the section requires is that the assessee must borrow the capital for the purpose of his business. This dichotomy between the borrowing of a loan and actual application thereof in the purchase of a capital asset, seems to proceed on the basis that a mere transaction of borrowing does not, by itself bring any new asset of enduring nature into existence, and that it is the transaction of investment of the borrowed capital in the purchase of a new asset which brings that asset into existence. The transaction of borrowing is not the same as the transaction of investment. If this dichotomy is kept in mind it becomes clear that the transaction of borrowing attracts the provisions of Section 36(1)(iii). Thus, the decision of the Bombay High Court in Calico Dyeing & Printing Works (supra) and the judgment of the Supreme Court India Cements Ltd. (supra) have been given with reference to the borrowings made for the purposes of a running business, while the decision of the Supreme Court in Challapalli Sugars Ltd. (supra) was given with reference to the borrowings which could not be treated as made for the purposes of business as no business had commenced in that case. Therefore, there is no inconsistency between the abovelegislature has, therefore, made no distinction in Section 36(1)(iii) between "capital borrowed for a revenue purpose" and "capital borrowed for a capital purpose". An assessee is entitled to claim interest paid on borrowed capital provided that capital is used for business purpose irrespective of what may be the result of using the capital which the assessee has borrowed. Further, the words "actual cost" do not find place in Section 36(1)(iii) of the 1961 Act which otherwise find place in Sections 32, 32A etc of the 1961 Act. The expression "actual cost" is defined in Section 43(1) of the 1961 Act which is essentially a definition section which is subject to the context to the contrary.
|
M/S. Duncans Industries Ltd., Calcutta Vs. Commissioner Of Central Excise,New Delhi | issue before the Commissioner of Central Excise, Delhi was also for determination of the assessable value of the goods for the period September, 1981 to February, 1983, the period covered by show cause notice dated 1.10.1986. The show cause notice dated 1.10.1986 was issued against 20 persons including the assessee company. As regards the assessee, for the period September, 1981 to February, 1983, the Commissioner of Central Excise passed the order dated 27.3.1991 directing the Assistant Commissioner to determine the assessable value taking into consideration the materials contained in show cause notice dated 1.10.1986. This he did by noticing the correct position of law laid down by this Court in the case of Union of India vs. Godrej & Boyce Mfg. Co. (Pvt.) Ltd., (Civil Appeal No.12824 of 1989 decided on 8.3.90). The Assistant Collector Central Excise, Kharda Division, Calcutta thereafter issued addendum dated 20.2.992 incorporating the allegations made in show cause notice dated 1.10.1986 in the show-cause notice dated 8.5.1984. The effect of the order passed by the commissioner of Central Excise, Delhi was that the Assistant Collector Central Excise, Kharda Division, Calcutta alone had the jurisdiction to finally adjudicate and determine the assessable value of the goods cleared from the assessees factory for the entire period and the consequent duty liability. Either party wishing to dispute the determination made by the Assistant Collector Central Excise, Kharda Division, Calcutta had to do so by invoking the right of appeal to the Commissioner of Appeals, Tribunal and the Supreme Court. In addition the Department could have invoked the short levy provision under Section 11-A within a period of six months or invoked the extended period of limitation of 5 years under proviso to Section 11-A provided the conditions laid down in the proviso were satisfied. The two show-cause notices were finally adjudicated by the Assistant Collector Central Excise, Kharda Division, Calcutta on 11.01.1996. The assessable value determined and consequent demand was raised by finalizing assessments for the entire period July 1973 to February, 1983. If the revenue was aggrieved by the above proceedings it was incumbent upon them to either invoke the right of appeal against that order under Section 35 E (2) or issue a short levy notice under Section 11-A within six months. Neither of these two options having been invoked, the order attained finality as against the revenue.23. It need not be emphasized that there could not be two assessments for the same period.24. This apart finally determined as due for the entire period of 10 years from the assessee having been settled under the Kar Vivad Samadan Scheme, 1998, there is no scope for any further review or determination of that issue by any authority under the Act. 25. In Hira Lal Hari Lal Bhagwati vs. CBI. 2003 (5) SCC 257 , at page 274 this Court observed: "We have carefully gone through the Kar Vivad Samadhan Scheme, 1998 and the certificate issued by the Customs Authorities. In our opinion, the GCS is immune from any criminal proceedings pursuant to the certificates issued under the said Scheme and the appellants are being prosecuted in their capacity as office-bearers of the GCS. As the customs duty has already been paid, the Central Government has not suffered any financial loss. Moreover, as per the Kar Vivad Samadhan Scheme, 1998, whoever is granted the benefit under the said Scheme is granted immunity from prosecution from any offence under the Customs Act, 1962 including the offence of evasion of duty. In the circumstances, the complaint filed against the appellants is unsustainable." 26. And at page 280 it was observed: "The Kar Vivad Samadhan Scheme certificate along with CBI v. Duncans Agro Industgries Ltd., 1996 (5) SCC 591 , and Sushila Rani v. C.I.T., 2002 (2) SCC 697 , judgments clearly absolve the appellants herein from all charges and allegations under any other law once the duty so demanded has been paid and the alleged offence has been compounded. It is also settled law that once a civil case has been compromised and the alleged offence has been compounded, to continue the criminal proceedings thereafter would be an abuse of the judicial process." 27. Thus, after the grant of certificate under the Kar Vivad Samadan Scheme, 1998 as having settled the dispute and payment of the amount determined no further proceedings could be initiated or proceeded with for the period in question.28. For the reasons stated above, we do not find any substance in the appeals filed by the Revenue. Accordingly, Civil Appeal Nos. 4075-4076 of 2001 are dismissed and the order passed by the Tribunal in this respect is affirmed. 29. Taking up the appeal of the assessee, it may be noted that the proposed penalty was under Rule 9(2) and 52-A. This Court in N.B. Sanjana vs. Elphinstone Spg. & Wvg. Mills Co. Ltd., 1971 (1) SCC 337 , at page 348 held as under: ".....To attract sub-rule (2) of Rule 9, the goods should have been removed in contravention of sub-rule (1). It is not the case of the appellants that the respondents have not complied with the provisions of sub-rule (1). We are of the opinion that in order to attract sub- rule (2), the goods should have been removed clandestinely and without assessment. In this case there is no such clandestine removal without assessment. On the other hand, goods had been removed with the express permission of the Excise authorities and after order of assessment was made. No doubt the duty payable under the assessment order was nil. That, in our opinion, will not bring the case under sub-rule (2). " 30. In the present case there is not even an allegation much less finding by the department that there has been any clandestine removal of goods without assessment. As such the penalty is liable to be set aside. The matter having been settled in the Kar Vivad Samadan Scheme, 1998 the question of determination of the duty payable or levy of penalty did not arise. | 1[ds]22. The issue before the Assistant Collector Central Excise, Kharda Division, Calcutta was for the determination of the assessable value of the goods for the period July, 1973 to February, 1983 i.e. the period covered by the show cause notice dated 8.5.84. The issue before the Commissioner of Central Excise, Delhi was also for determination of the assessable value of the goods for the period September, 1981 to February, 1983, the period covered by show cause notice dated 1.10.1986. The show cause notice dated 1.10.1986 was issued against 20 persons including the assessee company. As regards the assessee, for the period September, 1981 to February, 1983, the Commissioner of Central Excise passed the order dated 27.3.1991 directing the Assistant Commissioner to determine the assessable value taking into consideration the materials contained in show cause notice dated 1.10.1986. This he did by noticing the correct position of law laid down by this Court in the case of Union of India vs. Godrej & Boyce Mfg. Co. (Pvt.) Ltd., (Civil Appeal No.12824 of 1989 decided on 8.3.90). The Assistant Collector Central Excise, Kharda Division, Calcutta thereafter issued addendum dated 20.2.992 incorporating the allegations made in show cause notice dated 1.10.1986 in the show-cause notice dated 8.5.1984. The effect of the order passed by the commissioner of Central Excise, Delhi was that the Assistant Collector Central Excise, Kharda Division, Calcutta alone had the jurisdiction to finally adjudicate and determine the assessable value of the goods cleared from the assessees factory for the entire period and the consequent duty liability. Either party wishing to dispute the determination made by the Assistant Collector Central Excise, Kharda Division, Calcutta had to do so by invoking the right of appeal to the Commissioner of Appeals, Tribunal and the Supreme Court. In addition the Department could have invoked the short levy provision under Section 11-A within a period of six months or invoked the extended period of limitation of 5 years under proviso to Section 11-A provided the conditions laid down in the proviso were satisfied. The two show-cause notices were finally adjudicated by the Assistant Collector Central Excise, Kharda Division, Calcutta on 11.01.1996. The assessable value determined and consequent demand was raised by finalizing assessments for the entire period July 1973 to February, 1983. If the revenue was aggrieved by the above proceedings it was incumbent upon them to either invoke the right of appeal against that order under Section 35 E (2) or issue a short levy notice under Section 11-A within six months. Neither of these two options having been invoked, the order attained finality as against the revenue.23. It need not be emphasized that there could not be two assessments for the same period.24. This apart finally determined as due for the entire period of 10 years from the assessee having been settled under the Kar Vivad Samadan Scheme, 1998, there is no scope for any further review or determination of that issue by any authority under the Act.Thus, after the grant of certificate under the Kar Vivad Samadan Scheme, 1998 as having settled the dispute and payment of the amount determined no further proceedings could be initiated or proceeded with for the period in question.28. For the reasons stated above, we do not find any substance in the appeals filed by the Revenue. Accordingly, Civil Appeal Nos. 4075-4076 of 2001 are dismissed and the order passed by the Tribunal in this respect is affirmed.In the present case there is not even an allegation much less finding by the department that there has been any clandestine removal of goods without assessment. As such the penalty is liable to be set aside. The matter having been settled in the Kar Vivad Samadan Scheme, 1998 the question of determination of the duty payable or levy of penalty did not arise. | 1 | 3,739 | 701 | ### 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:
issue before the Commissioner of Central Excise, Delhi was also for determination of the assessable value of the goods for the period September, 1981 to February, 1983, the period covered by show cause notice dated 1.10.1986. The show cause notice dated 1.10.1986 was issued against 20 persons including the assessee company. As regards the assessee, for the period September, 1981 to February, 1983, the Commissioner of Central Excise passed the order dated 27.3.1991 directing the Assistant Commissioner to determine the assessable value taking into consideration the materials contained in show cause notice dated 1.10.1986. This he did by noticing the correct position of law laid down by this Court in the case of Union of India vs. Godrej & Boyce Mfg. Co. (Pvt.) Ltd., (Civil Appeal No.12824 of 1989 decided on 8.3.90). The Assistant Collector Central Excise, Kharda Division, Calcutta thereafter issued addendum dated 20.2.992 incorporating the allegations made in show cause notice dated 1.10.1986 in the show-cause notice dated 8.5.1984. The effect of the order passed by the commissioner of Central Excise, Delhi was that the Assistant Collector Central Excise, Kharda Division, Calcutta alone had the jurisdiction to finally adjudicate and determine the assessable value of the goods cleared from the assessees factory for the entire period and the consequent duty liability. Either party wishing to dispute the determination made by the Assistant Collector Central Excise, Kharda Division, Calcutta had to do so by invoking the right of appeal to the Commissioner of Appeals, Tribunal and the Supreme Court. In addition the Department could have invoked the short levy provision under Section 11-A within a period of six months or invoked the extended period of limitation of 5 years under proviso to Section 11-A provided the conditions laid down in the proviso were satisfied. The two show-cause notices were finally adjudicated by the Assistant Collector Central Excise, Kharda Division, Calcutta on 11.01.1996. The assessable value determined and consequent demand was raised by finalizing assessments for the entire period July 1973 to February, 1983. If the revenue was aggrieved by the above proceedings it was incumbent upon them to either invoke the right of appeal against that order under Section 35 E (2) or issue a short levy notice under Section 11-A within six months. Neither of these two options having been invoked, the order attained finality as against the revenue.23. It need not be emphasized that there could not be two assessments for the same period.24. This apart finally determined as due for the entire period of 10 years from the assessee having been settled under the Kar Vivad Samadan Scheme, 1998, there is no scope for any further review or determination of that issue by any authority under the Act. 25. In Hira Lal Hari Lal Bhagwati vs. CBI. 2003 (5) SCC 257 , at page 274 this Court observed: "We have carefully gone through the Kar Vivad Samadhan Scheme, 1998 and the certificate issued by the Customs Authorities. In our opinion, the GCS is immune from any criminal proceedings pursuant to the certificates issued under the said Scheme and the appellants are being prosecuted in their capacity as office-bearers of the GCS. As the customs duty has already been paid, the Central Government has not suffered any financial loss. Moreover, as per the Kar Vivad Samadhan Scheme, 1998, whoever is granted the benefit under the said Scheme is granted immunity from prosecution from any offence under the Customs Act, 1962 including the offence of evasion of duty. In the circumstances, the complaint filed against the appellants is unsustainable." 26. And at page 280 it was observed: "The Kar Vivad Samadhan Scheme certificate along with CBI v. Duncans Agro Industgries Ltd., 1996 (5) SCC 591 , and Sushila Rani v. C.I.T., 2002 (2) SCC 697 , judgments clearly absolve the appellants herein from all charges and allegations under any other law once the duty so demanded has been paid and the alleged offence has been compounded. It is also settled law that once a civil case has been compromised and the alleged offence has been compounded, to continue the criminal proceedings thereafter would be an abuse of the judicial process." 27. Thus, after the grant of certificate under the Kar Vivad Samadan Scheme, 1998 as having settled the dispute and payment of the amount determined no further proceedings could be initiated or proceeded with for the period in question.28. For the reasons stated above, we do not find any substance in the appeals filed by the Revenue. Accordingly, Civil Appeal Nos. 4075-4076 of 2001 are dismissed and the order passed by the Tribunal in this respect is affirmed. 29. Taking up the appeal of the assessee, it may be noted that the proposed penalty was under Rule 9(2) and 52-A. This Court in N.B. Sanjana vs. Elphinstone Spg. & Wvg. Mills Co. Ltd., 1971 (1) SCC 337 , at page 348 held as under: ".....To attract sub-rule (2) of Rule 9, the goods should have been removed in contravention of sub-rule (1). It is not the case of the appellants that the respondents have not complied with the provisions of sub-rule (1). We are of the opinion that in order to attract sub- rule (2), the goods should have been removed clandestinely and without assessment. In this case there is no such clandestine removal without assessment. On the other hand, goods had been removed with the express permission of the Excise authorities and after order of assessment was made. No doubt the duty payable under the assessment order was nil. That, in our opinion, will not bring the case under sub-rule (2). " 30. In the present case there is not even an allegation much less finding by the department that there has been any clandestine removal of goods without assessment. As such the penalty is liable to be set aside. The matter having been settled in the Kar Vivad Samadan Scheme, 1998 the question of determination of the duty payable or levy of penalty did not arise.
### Response:
1
### Explanation:
22. The issue before the Assistant Collector Central Excise, Kharda Division, Calcutta was for the determination of the assessable value of the goods for the period July, 1973 to February, 1983 i.e. the period covered by the show cause notice dated 8.5.84. The issue before the Commissioner of Central Excise, Delhi was also for determination of the assessable value of the goods for the period September, 1981 to February, 1983, the period covered by show cause notice dated 1.10.1986. The show cause notice dated 1.10.1986 was issued against 20 persons including the assessee company. As regards the assessee, for the period September, 1981 to February, 1983, the Commissioner of Central Excise passed the order dated 27.3.1991 directing the Assistant Commissioner to determine the assessable value taking into consideration the materials contained in show cause notice dated 1.10.1986. This he did by noticing the correct position of law laid down by this Court in the case of Union of India vs. Godrej & Boyce Mfg. Co. (Pvt.) Ltd., (Civil Appeal No.12824 of 1989 decided on 8.3.90). The Assistant Collector Central Excise, Kharda Division, Calcutta thereafter issued addendum dated 20.2.992 incorporating the allegations made in show cause notice dated 1.10.1986 in the show-cause notice dated 8.5.1984. The effect of the order passed by the commissioner of Central Excise, Delhi was that the Assistant Collector Central Excise, Kharda Division, Calcutta alone had the jurisdiction to finally adjudicate and determine the assessable value of the goods cleared from the assessees factory for the entire period and the consequent duty liability. Either party wishing to dispute the determination made by the Assistant Collector Central Excise, Kharda Division, Calcutta had to do so by invoking the right of appeal to the Commissioner of Appeals, Tribunal and the Supreme Court. In addition the Department could have invoked the short levy provision under Section 11-A within a period of six months or invoked the extended period of limitation of 5 years under proviso to Section 11-A provided the conditions laid down in the proviso were satisfied. The two show-cause notices were finally adjudicated by the Assistant Collector Central Excise, Kharda Division, Calcutta on 11.01.1996. The assessable value determined and consequent demand was raised by finalizing assessments for the entire period July 1973 to February, 1983. If the revenue was aggrieved by the above proceedings it was incumbent upon them to either invoke the right of appeal against that order under Section 35 E (2) or issue a short levy notice under Section 11-A within six months. Neither of these two options having been invoked, the order attained finality as against the revenue.23. It need not be emphasized that there could not be two assessments for the same period.24. This apart finally determined as due for the entire period of 10 years from the assessee having been settled under the Kar Vivad Samadan Scheme, 1998, there is no scope for any further review or determination of that issue by any authority under the Act.Thus, after the grant of certificate under the Kar Vivad Samadan Scheme, 1998 as having settled the dispute and payment of the amount determined no further proceedings could be initiated or proceeded with for the period in question.28. For the reasons stated above, we do not find any substance in the appeals filed by the Revenue. Accordingly, Civil Appeal Nos. 4075-4076 of 2001 are dismissed and the order passed by the Tribunal in this respect is affirmed.In the present case there is not even an allegation much less finding by the department that there has been any clandestine removal of goods without assessment. As such the penalty is liable to be set aside. The matter having been settled in the Kar Vivad Samadan Scheme, 1998 the question of determination of the duty payable or levy of penalty did not arise.
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Navinchandra N. Majithia Vs. State Of Maharashtra | amendment is thus aimed at widening the width of the area for reaching the writs issued by different High Courts"Cause of action" is a phenomenon well understood in legal parlance. Mohapatra, J. has well delineated the import of the said expression by referring to the celebrated lexicographies. The collocation of the words "cause of action, wholly or in part, arises" seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspect of the courts. As per that section the suit could be instituted in a court within the legal limits of whose jurisdiction the "cause of action wholly or in part arises". Judicial pronouncements have accorded almost a uniform interpretation to the said compendious expression even prior to the Fifteenth Amendment of the Constitution as to mean" *the bundle of facts which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court"In Read v. Brown ((1888) 22 QBD 128 : 58 LJQB 120 : 60 LT 250 (CA)) Lord Esher, M.R., adopted the definition for the phrase "cause of action" that it meant" *every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved"The Privy Council has noted in Mohd. Khalil Khan v. Mahbub Ali Mian 1949 AIR(PC) 78 : 75 IA 121) that the aforesaid definition adopted by Lord Esher M.R. had been followed in India. Even thereafter the courts in India have consistently followed the said interpretation without exception for understanding the scope of the expression "cause of action"Even in the context of Article 226(2) of the Constitution this Court adopted the same interpretation to the expression "cause of action, wholly or in part, arises" vide State of Rajasthan v. Swaika Properties (1985 SC 229). A three-Judge Bench of this Court in Oil and Natural Gas Commission v. Utpal Kumar Basu (1994 SC 1574) observed that it is well settled that the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed to entitle him to a judgment in his favour. Having given such a wide interpretation to the expression Ahmadi, J. (as the learned Chief Justice then was) speaking for M. N. Venkatachaliah, C.J. and B. P. Jeevan Reddy, J., utilised the opportunity to caution the High Courts against transgressing into the jurisdiction of the other High Courts merely on the ground of some insignificant event connected with the cause of action taking place within the territorial limits of the High Court to which the litigant approaches at his own choice or convenience. The following are such observations. (SCC p. 722, para 12)" *If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution on and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation."The above observations are sufficient to take care of the apprehension expressed by the Division Bench of the Bombay High Court in the impugned judgment that" *if that be so, then no investigation by any police officer in India can be successfully carried out because any absconding accused can go to any corner of India and challenge the prosecution where he has staying"We make it clear that the mere fact that FIR was registered in a particular State, is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor are we to be understood that any person can create a fake cause of action or even concoct one by simply jutting into the territorial limits of another State or by making a sojourn or even a permanent residence therein. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action in that particular writ petition. The High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the facts in each caseIn the present case, a large number of events have taken place at Bombay in respect of the allegations contained in the FIR registered at Shillong. If the averments in the writ petition are correct then the major portion of the facts which led to the registering of the FIR have taken place at Bombay. It is unnecessary to repeat those events over again as Mohapatra, J. has adverted to them with precision and the needed detailsIn the aforesaid situation it is almost impossible to hold that not even a part of the cause of action has arisen at Bombay so as to deprive the High Court of Bombay of total jurisdiction to entertain the writ petition filed by the petitioner. Even the very fact that a major portion of the investigation of the case under the FIR has to be conducted at Bombay itself, shows that the cause of action cannot escape from the territorial limits of the Bombay High Court Hence I too agree that | 1[ds]Considering the peculiar fact-situation of the case we are of the view that setting aside the impugned judgment and remitting the case to the High Court for fresh disposal will cause further delay in investigation of the matter and may create other complications. Instead, it will be apt and proper to direct that further investigation relating to complaint filed by J.B. Holdings Ltd. should be made by the Mumbai Police. Accordingly, we allow the appeal, set aside the judgment under challenge and dispose of the writ petition with the direction that the complaint lodged by J.B. Holdings Ltd. at Shillong which is presently being investigated by the Special Superintendent of Police, CID, Shillong shall be transferred to the Mumbai Police for further investigation through its Economic Offences Wing, General Branch, CID, or any other branch as the competent authority of the Mumbai Police may decide in accordance with law | 1 | 6,592 | 163 | ### 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:
amendment is thus aimed at widening the width of the area for reaching the writs issued by different High Courts"Cause of action" is a phenomenon well understood in legal parlance. Mohapatra, J. has well delineated the import of the said expression by referring to the celebrated lexicographies. The collocation of the words "cause of action, wholly or in part, arises" seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspect of the courts. As per that section the suit could be instituted in a court within the legal limits of whose jurisdiction the "cause of action wholly or in part arises". Judicial pronouncements have accorded almost a uniform interpretation to the said compendious expression even prior to the Fifteenth Amendment of the Constitution as to mean" *the bundle of facts which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court"In Read v. Brown ((1888) 22 QBD 128 : 58 LJQB 120 : 60 LT 250 (CA)) Lord Esher, M.R., adopted the definition for the phrase "cause of action" that it meant" *every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved"The Privy Council has noted in Mohd. Khalil Khan v. Mahbub Ali Mian 1949 AIR(PC) 78 : 75 IA 121) that the aforesaid definition adopted by Lord Esher M.R. had been followed in India. Even thereafter the courts in India have consistently followed the said interpretation without exception for understanding the scope of the expression "cause of action"Even in the context of Article 226(2) of the Constitution this Court adopted the same interpretation to the expression "cause of action, wholly or in part, arises" vide State of Rajasthan v. Swaika Properties (1985 SC 229). A three-Judge Bench of this Court in Oil and Natural Gas Commission v. Utpal Kumar Basu (1994 SC 1574) observed that it is well settled that the expression "cause of action" means that bundle of facts which the petitioner must prove, if traversed to entitle him to a judgment in his favour. Having given such a wide interpretation to the expression Ahmadi, J. (as the learned Chief Justice then was) speaking for M. N. Venkatachaliah, C.J. and B. P. Jeevan Reddy, J., utilised the opportunity to caution the High Courts against transgressing into the jurisdiction of the other High Courts merely on the ground of some insignificant event connected with the cause of action taking place within the territorial limits of the High Court to which the litigant approaches at his own choice or convenience. The following are such observations. (SCC p. 722, para 12)" *If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the court, certain members of the court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to ridicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution on and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation."The above observations are sufficient to take care of the apprehension expressed by the Division Bench of the Bombay High Court in the impugned judgment that" *if that be so, then no investigation by any police officer in India can be successfully carried out because any absconding accused can go to any corner of India and challenge the prosecution where he has staying"We make it clear that the mere fact that FIR was registered in a particular State, is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor are we to be understood that any person can create a fake cause of action or even concoct one by simply jutting into the territorial limits of another State or by making a sojourn or even a permanent residence therein. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action in that particular writ petition. The High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the facts in each caseIn the present case, a large number of events have taken place at Bombay in respect of the allegations contained in the FIR registered at Shillong. If the averments in the writ petition are correct then the major portion of the facts which led to the registering of the FIR have taken place at Bombay. It is unnecessary to repeat those events over again as Mohapatra, J. has adverted to them with precision and the needed detailsIn the aforesaid situation it is almost impossible to hold that not even a part of the cause of action has arisen at Bombay so as to deprive the High Court of Bombay of total jurisdiction to entertain the writ petition filed by the petitioner. Even the very fact that a major portion of the investigation of the case under the FIR has to be conducted at Bombay itself, shows that the cause of action cannot escape from the territorial limits of the Bombay High Court Hence I too agree that
### Response:
1
### Explanation:
Considering the peculiar fact-situation of the case we are of the view that setting aside the impugned judgment and remitting the case to the High Court for fresh disposal will cause further delay in investigation of the matter and may create other complications. Instead, it will be apt and proper to direct that further investigation relating to complaint filed by J.B. Holdings Ltd. should be made by the Mumbai Police. Accordingly, we allow the appeal, set aside the judgment under challenge and dispose of the writ petition with the direction that the complaint lodged by J.B. Holdings Ltd. at Shillong which is presently being investigated by the Special Superintendent of Police, CID, Shillong shall be transferred to the Mumbai Police for further investigation through its Economic Offences Wing, General Branch, CID, or any other branch as the competent authority of the Mumbai Police may decide in accordance with law
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RAMESH NIVRUTTI BHAGWAT Vs. SURENDRA MANOHAR PARAKHE | applications, as in the Limitation Act, 1963. The court held in Kerala State Electricity Board (supra) that: The words any other application under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period. -------- ------ ----- 22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two- judge bench of this Court in Athani Municipal Council case and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. 14. Applying the ratio in Kerala Electricity Board (supra), the court, in Kunvarjeet Singh Khandpur (supra) observed that: the crucial expression in the petition is right to apply. In view of what has been stated by this Court, Article 137 is clearly applicable to the petition for grant of letters of administration. As rightly observed by the High Court in such proceedings the application merely seeks recognition from the Court to perform a duty because of the nature of the proceedings it is a continuing right. The court then concluded that the right to apply for probate accrues on the date of death of the testator. 15. Recently, in Sameer Kapoor and Another v. State through Sub-Divisional Magistrate South, New Delhi and Others, 2019 Online SCC 630 (SC), the context was slightly different; the probate was issued by a foreign court. The executor sought letters of administration in an Indian court (like in the present case), under Section 228. The court dealt with the objection of limitation, and noticed, firstly, that Kunvarjeet Singh Khadapur (supra) had ruled about applicability of Article 137 for grant of probate in the first instance. Drawing a distinction from the grant of probate (or letters of administration) and the recognition of that, under Section 228, the court (in Sameer Kapoor (supra)) held as follows: it can be said that in a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the court to perform a duty. Probate or letters of administration issued by a competent court is conclusive proof of the legal character throughout the world. That the proceedings filed for grant of probate or letters of administration is not an action in law but it is an action in rem. As held by this Court in the case of Kunvarjeet Singh Khandpur (supra), an application for grant of probate or letters of administration is for the courts permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. 16. The decision in Lynette Fernandes v. Gertie Mathias, (2018) 1 SCC 271 , dealt with the precise issue of the period of limitation applicable for an application for cancellation of a probate or letters of administration. This court held as follows: One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation Under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the Appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed Under Article 137 runs from the date of the Appellant attaining the age of majority i.e. three years from 09.09.1965. The Appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the Appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the Appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remained un- challenged until the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate. 17. In the present case, the letters of administration were granted in ancillary proceedings on 25.11.1994. The High Court took note of the fact that the notice of motion (in the disposed of proceeding) was filed on 29.03.1997; it was withdrawn on 01.04.1998. The petition for revocation of the letters of administration were filed on 29.7.1999. Proceedings were clearly time barred, given that the original grant of the ancillary letters took place on 25.11.1994; they constituted notice to all concerned. Clearly, the petition for revocation of letters of administration was time barred. | 0[ds]17. In the present case, the letters of administration were granted in ancillary proceedings on 25.11.1994. The High Court took note of the fact that the notice of motion (in the disposed of proceeding) was filed on 29.03.1997; it was withdrawn on 01.04.1998. The petition for revocation of the letters of administration were filed on 29.7.1999. Proceedings were clearly time barred, given that the original grant of the ancillary letters took place on 25.11.1994; they constituted notice to all concerned. Clearly, the petition for revocation of letters of administration was time barred12. The Indian Succession Act, 1925 does not prescribe a specific period of limitation for the grant of probate, or for moving an application for cancellation of probate or letters of administration. The residuary entry Article 137 of the Act, which covers proceedings for which no period of limitation is stipulated in the Act, provides for a three-year period of limitation13. This issue was considered in Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Ors., (2008) 8 SCC 463. This court negatived the plea that since the Act prescribes no period of limitation in regard to matters concerning grant of probate or letters of administration, there is no time limit. The court followed the decision in the Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, (1977) 1 SCR 996 which took note of the change in the collocation of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the Limitation Act, 1908, and held that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure, 1908. In the older Limitation Act of 1908, there was no division between applications in specified cases and other applications, as in the Limitation Act, 1963. The court held in Kerala State Electricity Board (supra) that:The words any other application under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two- judge bench of this Court in Athani Municipal Council case and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure16. The decision in Lynette Fernandes v. Gertie Mathias, (2018) 1 SCC 271 , dealt with the precise issue of the period of limitation applicable for an application for cancellation of a probate or letters of administration. This court held as follows:One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation Under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the Appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed Under Article 137 runs from the date of the Appellant attaining the age of majority i.e. three years from 09.09.1965. The Appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the Appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the Appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remained un- challenged until the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate. | 0 | 3,773 | 866 | ### 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:
applications, as in the Limitation Act, 1963. The court held in Kerala State Electricity Board (supra) that: The words any other application under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period. -------- ------ ----- 22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two- judge bench of this Court in Athani Municipal Council case and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. 14. Applying the ratio in Kerala Electricity Board (supra), the court, in Kunvarjeet Singh Khandpur (supra) observed that: the crucial expression in the petition is right to apply. In view of what has been stated by this Court, Article 137 is clearly applicable to the petition for grant of letters of administration. As rightly observed by the High Court in such proceedings the application merely seeks recognition from the Court to perform a duty because of the nature of the proceedings it is a continuing right. The court then concluded that the right to apply for probate accrues on the date of death of the testator. 15. Recently, in Sameer Kapoor and Another v. State through Sub-Divisional Magistrate South, New Delhi and Others, 2019 Online SCC 630 (SC), the context was slightly different; the probate was issued by a foreign court. The executor sought letters of administration in an Indian court (like in the present case), under Section 228. The court dealt with the objection of limitation, and noticed, firstly, that Kunvarjeet Singh Khadapur (supra) had ruled about applicability of Article 137 for grant of probate in the first instance. Drawing a distinction from the grant of probate (or letters of administration) and the recognition of that, under Section 228, the court (in Sameer Kapoor (supra)) held as follows: it can be said that in a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the court to perform a duty. Probate or letters of administration issued by a competent court is conclusive proof of the legal character throughout the world. That the proceedings filed for grant of probate or letters of administration is not an action in law but it is an action in rem. As held by this Court in the case of Kunvarjeet Singh Khandpur (supra), an application for grant of probate or letters of administration is for the courts permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. 16. The decision in Lynette Fernandes v. Gertie Mathias, (2018) 1 SCC 271 , dealt with the precise issue of the period of limitation applicable for an application for cancellation of a probate or letters of administration. This court held as follows: One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation Under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the Appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed Under Article 137 runs from the date of the Appellant attaining the age of majority i.e. three years from 09.09.1965. The Appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the Appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the Appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remained un- challenged until the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate. 17. In the present case, the letters of administration were granted in ancillary proceedings on 25.11.1994. The High Court took note of the fact that the notice of motion (in the disposed of proceeding) was filed on 29.03.1997; it was withdrawn on 01.04.1998. The petition for revocation of the letters of administration were filed on 29.7.1999. Proceedings were clearly time barred, given that the original grant of the ancillary letters took place on 25.11.1994; they constituted notice to all concerned. Clearly, the petition for revocation of letters of administration was time barred.
### Response:
0
### Explanation:
17. In the present case, the letters of administration were granted in ancillary proceedings on 25.11.1994. The High Court took note of the fact that the notice of motion (in the disposed of proceeding) was filed on 29.03.1997; it was withdrawn on 01.04.1998. The petition for revocation of the letters of administration were filed on 29.7.1999. Proceedings were clearly time barred, given that the original grant of the ancillary letters took place on 25.11.1994; they constituted notice to all concerned. Clearly, the petition for revocation of letters of administration was time barred12. The Indian Succession Act, 1925 does not prescribe a specific period of limitation for the grant of probate, or for moving an application for cancellation of probate or letters of administration. The residuary entry Article 137 of the Act, which covers proceedings for which no period of limitation is stipulated in the Act, provides for a three-year period of limitation13. This issue was considered in Kunvarjeet Singh Khandpur v. Kirandeep Kaur & Ors., (2008) 8 SCC 463. This court negatived the plea that since the Act prescribes no period of limitation in regard to matters concerning grant of probate or letters of administration, there is no time limit. The court followed the decision in the Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, (1977) 1 SCR 996 which took note of the change in the collocation of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the Limitation Act, 1908, and held that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure, 1908. In the older Limitation Act of 1908, there was no division between applications in specified cases and other applications, as in the Limitation Act, 1963. The court held in Kerala State Electricity Board (supra) that:The words any other application under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for not preferring the appeal or making the application during such period.22. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two- judge bench of this Court in Athani Municipal Council case and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure16. The decision in Lynette Fernandes v. Gertie Mathias, (2018) 1 SCC 271 , dealt with the precise issue of the period of limitation applicable for an application for cancellation of a probate or letters of administration. This court held as follows:One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation Under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the Appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed Under Article 137 runs from the date of the Appellant attaining the age of majority i.e. three years from 09.09.1965. The Appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the Appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the Appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remained un- challenged until the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate.
|
LALITHA R NATH AND OTHERS Vs. KANNUR MEDICAL COLLEGE AND OTHERS | Middle class parents do not have the luxury of resources. We must form a robust understanding of the circumstances in which the father of the petitioner withdrew his complaint. The Committee has in fact recorded a finding of fact that the withdrawal was not voluntary and was occasioned by the serious impediment in receiving a refund of fees. Hence, the petitioner would be entitled to the benefit of the principle which was formulated in the orders of this Court dated 29 August 2018 and 4 October 2018. Since the issue has been remitted back to the Committee by a coordinate bench, following the norm of judicial discipline, we are inclined to follow the same course of action. 28. In order not to prejudice the case of the petitioner, we leave it open to her to pursue her claim before the Committee. The petitioner would be at liberty to pursue her claim before the Committee in terms of Clause 1 of the order dated 29 August 2018 passed by this Court as clarified by the subsequent order dated 4 October 2018. We request the Admissions Committee to take a decision expeditiously and within a period of three months of the receipt of a certified copy of this judgment. All the rights and contentions of the parties are kept open. 22. The impugned order dated 22nd November, 2019 does not refer to or examine the order dated 21st February, 2019 passed by this Court in the case of Riya George. This apart, it was accepted during the course of arguments before us that KMC has paid a total amount of Rs.38,35,63,000/- to the guardians/students. Rs.36,09,87,000/- has been paid to the guardians/students for refund of the actual tuition fee and other amounts which were admittedly paid. These payments were made on or before 4th October, 2018, i.e. the date on which the second order was passed by this Court with the observations that there is a factual dispute as to the total amount paid by the students to KMC. After 4th October, 2018, KMC has, in its affidavit filed on or about 3rd February, 2021, accepted that it had remitted an amount of Rs.2,25,76,000/- to the students who had settled their disputes before the ASC. These payments have been made through demand drafts. It is also accepted that KMC is still to make payment of Rs.15,72,89,020/- which is an undisputed figure payable to guardians/students as per the amount determined by the High Court or ASC. This is the final and undisputed figure as it refers to the amount payable to about 55 students in terms of the orders passed by the High Court and the ASC, which direction and computation has not been challenged by the KMC before this Court or before the High Court. 23. Once we accept the appeal against the impugned order dated 22nd November, 2019, we have to also accept the appeal against the second impugned order dated 29th May, 2020. The latter order that directs the College to furnish a bank guarantee of Rs.10 crores is predicated on the assumption that no further amounts would be due and payable in respect of 92 students as the notices issued by the ASC to these students have been quashed. Further, the impugned order does not notice that KMC had failed to make payment even in cases where it had accepted the orders passed by the ASC or the High Court. As noticed above, KMC, before us, has accepted that they had to make payment of Rs.15,72,89,020/- as per the amount finally awarded by the High Court or the ASC. KMC has not filed any appeal to question and challenge these orders. Therefore, this amount of Rs.15,72,89,020/- must be immediately paid to the students/guardians. This figure of Rs.15,72,89,020/- gives us an indication and is the basis of the directions that we propose to issue to secure the interests and rights of the 92 students, while permitting admission/affiliation in the College. 24. We have already referred to the two orders passed by this Court on 29th August, 2018 and 4th October, 2018 which had inter alia directed that double the fee paid by the guardians/students would be refunded by KMC through electronic mode. Obviously, the intent being that the payment must be made. In order to ensure that payment is actually made, specific directions were issued that the amount would be remitted to the bank account of each student. Further, a compliance report including bank statement, bank account numbers with the names of the students was to be filed before this Court and also the ASC. The ASC was thereupon to ascertain and submit the report to this Court as to refund of the amounts to the students in their bank accounts. In order to ensure prompt payment and also by way of penalty, KMC was directed to not admit even a single student for the year 2019-20 other than the students allotted by the CEE in their counselling to be held on 4th and 5th of September 2018. It was further directed that in case of violation of the order, i.e. non-refund of double the amount of fee paid, the entire order shall be withdrawn. Paragraph 2 of the order dated 29th August, 2018 had, by consent, recorded that KMC had agreed that the order of the ASC for withdrawal of the affiliation shall not be acted upon if the directions given for refund of double the fee, etc. by way of consent were complied with. It obviously means that the order of withdrawal of affiliation would remain in operation until and unless there was full compliance by KMC. In case of non-compliance, the order passed by the ASC for withdrawal of the affiliation would continue. We do not, therefore, find anything wrong in the letter dated 29th April, 2020 whereby KUHS has rejected KMCs application for continuation of affiliation for the academic year 2020-21 as it is a necessary sequitur and consequence of the two orders passed by this Court. | 1[ds]21. The impugned order dated 22nd November, 2019 quashing the re- opening notices issued by the ASC in the case of 92 students for several reasons is liable to be set aside. The said 92 students were not made parties to the writ petition preferred by KMC before the High Court and were not heard on the stand and stance with regard to receipts or No Dues Certificates signed by them. This Court in its order dated 4th October, 2018 had referred to the report of the ASC inter alia recording that KMC had collected different amounts ranging from Rs.35 lakhs to Rs. 1 crore from most of the 150 students. The report referred to one particular case of Ms. Rehna Banu who had paid Rs.35 lakhs for admission. The report also noticed that the tuition fee to be paid was regulated by the Fee Regulatory Committee, albeit the students had paid different amounts in addition to the tuition fee for securing admission. Accordingly, on account of the seriously disputed facts, this Court had directed that these aspects would be examined by the ASC. Liberty was given to the guardians/ students to place relevant material before the ASC. This Court did not consider it appropriate to conduct a factual inquiry into the disputed facts on the aspect of total amount paid and adequacy of the refund. The Division Bench of the High Court, by allowing the writ petition filed by KMC and by quashing the notices issued by the ASC to 92 students, has virtually made this Courts order dated 4th October, 2018, a dead letter in the case of those 92 students. In the aforementioned case of Riya George, a Division Bench of this Court had dealt with an identical controversy – as in its defence, KMC had relied on the No Dues Certificate, along with the application and affidavit of the father of Riya George withdrawing all claims in lieu of payment of Rs. 20 lacs, and the order of the Chairperson of the Admission Fee Regulatory Committee allowing withdrawal of the complaint. The court also lamented failure of Riya George to make fair and candid disclosure of full facts in the writ petition. In spite of observing that there were sufficient indications to hold that Riya George/ her father had knowledge of what had transpired, the judges took notice of the contention that the claim was withdrawn under duress, since the petitioner therein required refund of fee as she had taken admission elsewhere. Referring to the two orders dated 29th August, 2018 and 4th October, 2018, it was held that it would be inappropriate for this court to compute damages. Accordingly, given that the ASC had already issued notice to examine facts, it was held:27. There can be no manner of doubt that the petitioner is entitled to be compensated for the loss of a valuable year which was occasioned by the misdemeanours of the first respondent. A student who has been deprived of a valuable year in pursuing her studies, cannot be left in the lurch. It is in this background, that the explanation that the complaints made by the father of the petitioner were withdrawn only because there was an urgent need to obtain a refund of the fee, to enable the petitioner to secure admission to the Amrita Institute of Medical Sciences must be understood. Middle class parents do not have the luxury of resources. We must form a robust understanding of the circumstances in which the father of the petitioner withdrew his complaint. The Committee has in fact recorded a finding of fact that the withdrawal was not voluntary and was occasioned by the serious impediment in receiving a refund of fees. Hence, the petitioner would be entitled to the benefit of the principle which was formulated in the orders of this Court dated 29 August 2018 and 4 October 2018. Since the issue has been remitted back to the Committee by a coordinate bench, following the norm of judicial discipline, we are inclined to follow the same course of action.28. In order not to prejudice the case of the petitioner, we leave it open to her to pursue her claim before the Committee. The petitioner would be at liberty to pursue her claim before the Committee in terms of Clause 1 of the order dated 29 August 2018 passed by this Court as clarified by the subsequent order dated 4 October 2018. We request the Admissions Committee to take a decision expeditiously and within a period of three months of the receipt of a certified copy of this judgment. All the rights and contentions of the parties are kept open.22. The impugned order dated 22nd November, 2019 does not refer to or examine the order dated 21st February, 2019 passed by this Court in the case of Riya George. This apart, it was accepted during the course of arguments before us that KMC has paid a total amount of Rs.38,35,63,000/- to the guardians/students. Rs.36,09,87,000/- has been paid to the guardians/students for refund of the actual tuition fee and other amounts which were admittedly paid. These payments were made on or before 4th October, 2018, i.e. the date on which the second order was passed by this Court with the observations that there is a factual dispute as to the total amount paid by the students to KMC. After 4th October, 2018, KMC has, in its affidavit filed on or about 3rd February, 2021, accepted that it had remitted an amount of Rs.2,25,76,000/- to the students who had settled their disputes before the ASC. These payments have been made through demand drafts. It is also accepted that KMC is still to make payment of Rs.15,72,89,020/- which is an undisputed figure payable to guardians/students as per the amount determined by the High Court or ASC. This is the final and undisputed figure as it refers to the amount payable to about 55 students in terms of the orders passed by the High Court and the ASC, which direction and computation has not been challenged by the KMC before this Court or before the High Court.23. Once we accept the appeal against the impugned order dated 22nd November, 2019, we have to also accept the appeal against the second impugned order dated 29th May, 2020. The latter order that directs the College to furnish a bank guarantee of Rs.10 crores is predicated on the assumption that no further amounts would be due and payable in respect of 92 students as the notices issued by the ASC to these students have been quashed. Further, the impugned order does not notice that KMC had failed to make payment even in cases where it had accepted the orders passed by the ASC or the High Court. As noticed above, KMC, before us, has accepted that they had to make payment of Rs.15,72,89,020/- as per the amount finally awarded by the High Court or the ASC. KMC has not filed any appeal to question and challenge these orders. Therefore, this amount of Rs.15,72,89,020/- must be immediately paid to the students/guardians. This figure of Rs.15,72,89,020/- gives us an indication and is the basis of the directions that we propose to issue to secure the interests and rights of the 92 students, while permitting admission/affiliation in the College.24. We have already referred to the two orders passed by this Court on 29th August, 2018 and 4th October, 2018 which had inter alia directed that double the fee paid by the guardians/students would be refunded by KMC through electronic mode. Obviously, the intent being that the payment must be made. In order to ensure that payment is actually made, specific directions were issued that the amount would be remitted to the bank account of each student. Further, a compliance report including bank statement, bank account numbers with the names of the students was to be filed before this Court and also the ASC. The ASC was thereupon to ascertain and submit the report to this Court as to refund of the amounts to the students in their bank accounts. In order to ensure prompt payment and also by way of penalty, KMC was directed to not admit even a single student for the year 2019-20 other than the students allotted by the CEE in their counselling to be held on 4th and 5th of September 2018. It was further directed that in case of violation of the order, i.e. non-refund of double the amount of fee paid, the entire order shall be withdrawn. Paragraph 2 of the order dated 29th August, 2018 had, by consent, recorded that KMC had agreed that the order of the ASC for withdrawal of the affiliation shall not be acted upon if the directions given for refund of double the fee, etc. by way of consent were complied with. It obviously means that the order of withdrawal of affiliation would remain in operation until and unless there was full compliance by KMC. In case of non-compliance, the order passed by the ASC for withdrawal of the affiliation would continue. We do not, therefore, find anything wrong in the letter dated 29th April, 2020 whereby KUHS has rejected KMCs application for continuation of affiliation for the academic year 2020-21 as it is a necessary sequitur and consequence of the two orders passed by this Court. | 1 | 6,468 | 1,684 | ### 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:
Middle class parents do not have the luxury of resources. We must form a robust understanding of the circumstances in which the father of the petitioner withdrew his complaint. The Committee has in fact recorded a finding of fact that the withdrawal was not voluntary and was occasioned by the serious impediment in receiving a refund of fees. Hence, the petitioner would be entitled to the benefit of the principle which was formulated in the orders of this Court dated 29 August 2018 and 4 October 2018. Since the issue has been remitted back to the Committee by a coordinate bench, following the norm of judicial discipline, we are inclined to follow the same course of action. 28. In order not to prejudice the case of the petitioner, we leave it open to her to pursue her claim before the Committee. The petitioner would be at liberty to pursue her claim before the Committee in terms of Clause 1 of the order dated 29 August 2018 passed by this Court as clarified by the subsequent order dated 4 October 2018. We request the Admissions Committee to take a decision expeditiously and within a period of three months of the receipt of a certified copy of this judgment. All the rights and contentions of the parties are kept open. 22. The impugned order dated 22nd November, 2019 does not refer to or examine the order dated 21st February, 2019 passed by this Court in the case of Riya George. This apart, it was accepted during the course of arguments before us that KMC has paid a total amount of Rs.38,35,63,000/- to the guardians/students. Rs.36,09,87,000/- has been paid to the guardians/students for refund of the actual tuition fee and other amounts which were admittedly paid. These payments were made on or before 4th October, 2018, i.e. the date on which the second order was passed by this Court with the observations that there is a factual dispute as to the total amount paid by the students to KMC. After 4th October, 2018, KMC has, in its affidavit filed on or about 3rd February, 2021, accepted that it had remitted an amount of Rs.2,25,76,000/- to the students who had settled their disputes before the ASC. These payments have been made through demand drafts. It is also accepted that KMC is still to make payment of Rs.15,72,89,020/- which is an undisputed figure payable to guardians/students as per the amount determined by the High Court or ASC. This is the final and undisputed figure as it refers to the amount payable to about 55 students in terms of the orders passed by the High Court and the ASC, which direction and computation has not been challenged by the KMC before this Court or before the High Court. 23. Once we accept the appeal against the impugned order dated 22nd November, 2019, we have to also accept the appeal against the second impugned order dated 29th May, 2020. The latter order that directs the College to furnish a bank guarantee of Rs.10 crores is predicated on the assumption that no further amounts would be due and payable in respect of 92 students as the notices issued by the ASC to these students have been quashed. Further, the impugned order does not notice that KMC had failed to make payment even in cases where it had accepted the orders passed by the ASC or the High Court. As noticed above, KMC, before us, has accepted that they had to make payment of Rs.15,72,89,020/- as per the amount finally awarded by the High Court or the ASC. KMC has not filed any appeal to question and challenge these orders. Therefore, this amount of Rs.15,72,89,020/- must be immediately paid to the students/guardians. This figure of Rs.15,72,89,020/- gives us an indication and is the basis of the directions that we propose to issue to secure the interests and rights of the 92 students, while permitting admission/affiliation in the College. 24. We have already referred to the two orders passed by this Court on 29th August, 2018 and 4th October, 2018 which had inter alia directed that double the fee paid by the guardians/students would be refunded by KMC through electronic mode. Obviously, the intent being that the payment must be made. In order to ensure that payment is actually made, specific directions were issued that the amount would be remitted to the bank account of each student. Further, a compliance report including bank statement, bank account numbers with the names of the students was to be filed before this Court and also the ASC. The ASC was thereupon to ascertain and submit the report to this Court as to refund of the amounts to the students in their bank accounts. In order to ensure prompt payment and also by way of penalty, KMC was directed to not admit even a single student for the year 2019-20 other than the students allotted by the CEE in their counselling to be held on 4th and 5th of September 2018. It was further directed that in case of violation of the order, i.e. non-refund of double the amount of fee paid, the entire order shall be withdrawn. Paragraph 2 of the order dated 29th August, 2018 had, by consent, recorded that KMC had agreed that the order of the ASC for withdrawal of the affiliation shall not be acted upon if the directions given for refund of double the fee, etc. by way of consent were complied with. It obviously means that the order of withdrawal of affiliation would remain in operation until and unless there was full compliance by KMC. In case of non-compliance, the order passed by the ASC for withdrawal of the affiliation would continue. We do not, therefore, find anything wrong in the letter dated 29th April, 2020 whereby KUHS has rejected KMCs application for continuation of affiliation for the academic year 2020-21 as it is a necessary sequitur and consequence of the two orders passed by this Court.
### Response:
1
### Explanation:
Sciences must be understood. Middle class parents do not have the luxury of resources. We must form a robust understanding of the circumstances in which the father of the petitioner withdrew his complaint. The Committee has in fact recorded a finding of fact that the withdrawal was not voluntary and was occasioned by the serious impediment in receiving a refund of fees. Hence, the petitioner would be entitled to the benefit of the principle which was formulated in the orders of this Court dated 29 August 2018 and 4 October 2018. Since the issue has been remitted back to the Committee by a coordinate bench, following the norm of judicial discipline, we are inclined to follow the same course of action.28. In order not to prejudice the case of the petitioner, we leave it open to her to pursue her claim before the Committee. The petitioner would be at liberty to pursue her claim before the Committee in terms of Clause 1 of the order dated 29 August 2018 passed by this Court as clarified by the subsequent order dated 4 October 2018. We request the Admissions Committee to take a decision expeditiously and within a period of three months of the receipt of a certified copy of this judgment. All the rights and contentions of the parties are kept open.22. The impugned order dated 22nd November, 2019 does not refer to or examine the order dated 21st February, 2019 passed by this Court in the case of Riya George. This apart, it was accepted during the course of arguments before us that KMC has paid a total amount of Rs.38,35,63,000/- to the guardians/students. Rs.36,09,87,000/- has been paid to the guardians/students for refund of the actual tuition fee and other amounts which were admittedly paid. These payments were made on or before 4th October, 2018, i.e. the date on which the second order was passed by this Court with the observations that there is a factual dispute as to the total amount paid by the students to KMC. After 4th October, 2018, KMC has, in its affidavit filed on or about 3rd February, 2021, accepted that it had remitted an amount of Rs.2,25,76,000/- to the students who had settled their disputes before the ASC. These payments have been made through demand drafts. It is also accepted that KMC is still to make payment of Rs.15,72,89,020/- which is an undisputed figure payable to guardians/students as per the amount determined by the High Court or ASC. This is the final and undisputed figure as it refers to the amount payable to about 55 students in terms of the orders passed by the High Court and the ASC, which direction and computation has not been challenged by the KMC before this Court or before the High Court.23. Once we accept the appeal against the impugned order dated 22nd November, 2019, we have to also accept the appeal against the second impugned order dated 29th May, 2020. The latter order that directs the College to furnish a bank guarantee of Rs.10 crores is predicated on the assumption that no further amounts would be due and payable in respect of 92 students as the notices issued by the ASC to these students have been quashed. Further, the impugned order does not notice that KMC had failed to make payment even in cases where it had accepted the orders passed by the ASC or the High Court. As noticed above, KMC, before us, has accepted that they had to make payment of Rs.15,72,89,020/- as per the amount finally awarded by the High Court or the ASC. KMC has not filed any appeal to question and challenge these orders. Therefore, this amount of Rs.15,72,89,020/- must be immediately paid to the students/guardians. This figure of Rs.15,72,89,020/- gives us an indication and is the basis of the directions that we propose to issue to secure the interests and rights of the 92 students, while permitting admission/affiliation in the College.24. We have already referred to the two orders passed by this Court on 29th August, 2018 and 4th October, 2018 which had inter alia directed that double the fee paid by the guardians/students would be refunded by KMC through electronic mode. Obviously, the intent being that the payment must be made. In order to ensure that payment is actually made, specific directions were issued that the amount would be remitted to the bank account of each student. Further, a compliance report including bank statement, bank account numbers with the names of the students was to be filed before this Court and also the ASC. The ASC was thereupon to ascertain and submit the report to this Court as to refund of the amounts to the students in their bank accounts. In order to ensure prompt payment and also by way of penalty, KMC was directed to not admit even a single student for the year 2019-20 other than the students allotted by the CEE in their counselling to be held on 4th and 5th of September 2018. It was further directed that in case of violation of the order, i.e. non-refund of double the amount of fee paid, the entire order shall be withdrawn. Paragraph 2 of the order dated 29th August, 2018 had, by consent, recorded that KMC had agreed that the order of the ASC for withdrawal of the affiliation shall not be acted upon if the directions given for refund of double the fee, etc. by way of consent were complied with. It obviously means that the order of withdrawal of affiliation would remain in operation until and unless there was full compliance by KMC. In case of non-compliance, the order passed by the ASC for withdrawal of the affiliation would continue. We do not, therefore, find anything wrong in the letter dated 29th April, 2020 whereby KUHS has rejected KMCs application for continuation of affiliation for the academic year 2020-21 as it is a necessary sequitur and consequence of the two orders passed by this Court.
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Corn Products Refining Company Vs. Shangrila Food Products Limited | question whether the two marks are likely to give rise to confusion or not is a question of first impression. It is for the court to decide that question. English cases proceeding on the English way of pronouncing an English word by Englishmen, which it may be stated is not always the same, may not be of much assistance in our country in deciding questions of phonetic similarity. It cannot be overlooked that the word is an English word which to the mass of the Indian people is a foreign word. It is well recognised that in deciding a question of similarity between two marks, the marks have to be considered as a whole. So considered, we are inclined to agree with Desai J. that the marks with which this case is concerned are similar. Apart from the syllable co in the appellants mark, the two marks are identical. That syllable is not in our opinion such as would enable the buyers in our country to distinguish the one mark from the other.18. We also agree with Desai J. that the idea of the two marks is the same. The marks convey the ideas of glucose and life giving properties or vitamins. The Aquamatic case (Harry Reynolds v. Laffeatys Ld.) 1958 RPC 387 is a recent case where the test of the commonness of the idea between two marks was applied in deciding the question of similarity between them.Again, in deciding the question of similarity between the two marks we have to approach it from the point of view of a man of average intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them.19. It was then said that the goods were not of the same description and that therefore in spite of the similarity of the two marks there would be no risk of confusion or deception. We are unable to accept this contention. It is true that we have to proceed on the basis that the goods are not of the same description for the purposes of S. 10(1) of the Act. But there is evidence that glucose is used in the manufacture of biscuits. That would establish a trade connection between the two commodities, namely, glucose manufactured by the appellant and the biscuits produced by the respondent. An average purchaser would therefore be likely to think that the respondents Gluvita Biscuits were made with the appellants Glucovita glucose. This was the kind of trade connection between different goods which in the "Black Magic" case (In re: an Application by Edward Hack) 1940-58 RPC 91 was taken into consideration in arriving at the conclusion that there was likelihood of confusion or deception. The goods in this case were chocolates and laxatives and it was proved that laxatives were often made with chocolate coatings. We may also refer to the "Panda" case (In re: an application by Ladislas Jellinek) 1946-63 RPC 59. The goods there concerned were shoes and shoe polishes. It was observed that shoe polishes being used for shoes, there was trade connection between them and that this might lead to confusion or deception though the goods were different. The application for registration was however refused under that Section of the English Act which corresponds to S. 8 of our Act on the ground that the opponents, the manufacturers of shoes, has not established a reputation for their trademark among the public.20. It is true that in both the above mentioned cases the two competing trade marks were absolutely identical which is not the case here. But that in our opinion makes no difference.The absolute identity of the two competing marks or their close resemblance is only one of the tests for determining the question of likelihood of deception or confusion. Trade connection between different goods is another such test. Ex hypothesi, this latter test applies only when the goods are different. These tests are independent tests. There is no reason why the test of trade connection between different goods should not apply where the competing marks closely resemble each other just as much as it applies, as held in the "Black Magic" and "Panda" cases, where the competing marks were identical. Whether by applying these tests in a particular case the conclusion that there is likelihood of deception or confusion should be arrived at would depend on all the facts of the case.21. It is then said that biscuits containing glucose are manufactured with liquid glucose whereas the appellants mark only concerns powder glucose. We will assume that only liquid glucose is used in the manufacture of biscuits with glucose. But there is nothing to show that an average buyer knows with what kind of glucose, biscuits containing glucose are or can be made. That there is trade connection between glucose and biscuits and a likelihood of confusion or deception arising therefrom would appear from the fact stated by the appellant that it received from a tradesman an enquiry for biscuits manufactured by it under its mark Glucovita. The tradesman making the enquiry apparently thought that the manufacturer of Glucovita glucose was likely to manufacture biscuits with glucose; he did not worry whether biscuits were made with powder or liquid glucose. Then again it is stated in one of the affidavits filed by the appellant that the respondents director told the appellants manager that the respondent had adopted the name Gluvita to indicate that in the manufacture of its biscuits glucose was used. These statements on behalf of the appellant are not denied by the respondent. So, a trade connection between glucose and biscuits would appear to be established. We are therefore of opinion that the commodities concerned in the present case are so connected as to make confusion or deception likely in view of the similarity of the two trade marks. We think that the decision of Desai J. was right. | 1[ds]9. In our judgment the view of the appellate Judges of the High Court that there was no evidence that the appellants trade mark had acquired a reputation among the public cannot be sustained.In coming to this view, they relied on the affidavits filed by the appellant wherein it was stated that "Glucovita is amark in the trade" and denoted only the products of the appellant. We think that the learned appellate Judges put too strict a meaning on the words "in the trade" in thinking that they referred only to the trades people. In our view, these words may refer also to the public.If they do, then, of course, that would be evidence that the appellants mark had acquired a reputation among theevidence provided by these affidavits make it perfectly clear that the appellants mark had acquired a reputation among the general buying public. We think it right in this connection also to refer to the respondents grounds of appeal against the judgment of Desai J. In these the respondent does not dispute, and in fact it assumes, that the appellants mark had acquired a reputation among the public. We are, therefore, fully satisfied that the appellant has established that its mark has acquired a reputation among the buyingseems clear to us that what is necessary is that the reputation should attach to the trade mark; it should appear that the public associated that trade mark with certain goods. The reputation with which we are concerned in the present case is the reputation of the trade mark and not that of the maker of the goods bearing that of trade mark. A trade mark may acquire a reputation in connection with the goods in respect of which it is used though a buyer may not know who the manufacturer of the goods is.12. In our view, therefore it would be wrong in this case to say that the appellants trade mark had not acquired any reputation among the general public and that hence there is no reasonable apprehension of their being confused or deceived by the use of the respondents proposedthe applicant can seek to derive assistance for the success of his application from the presence of a number of marks having one or more common features which occur in his mark also, he has to prove that these marks had acquired a reputation by user in theWe think that the view taken by Desai J., is right.It is well known that the question whether the two marks are likely to give rise to confusion or not is a question of first impression. It is for the court to decide that question. English cases proceeding on the English way of pronouncing an English word by Englishmen, which it may be stated is not always the same, may not be of much assistance in our country in deciding questions of phonetic similarity. It cannot be overlooked that the word is an English word which to the mass of the Indian people is a foreign word. It is well recognised that in deciding a question of similarity between two marks, the marks have to be considered as a whole. So considered, we are inclined to agree with Desai J. that the marks with which this case is concerned are similar. Apart from the syllable co in the appellants mark, the two marks are identical. That syllable is not in our opinion such as would enable the buyers in our country to distinguish the one mark from the other.18. We also agree with Desai J. that the idea of the two marks is the same. The marks convey the ideas of glucose and life giving properties or vitamins. The Aquamatic case (Harry Reynolds v. Laffeatys Ld.) 1958 RPC 387 is a recent case where the test of the commonness of the idea between two marks was applied in deciding the question of similarity between them.Again, in deciding the question of similarity between the two marks we have to approach it from the point of view of a man of average intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion betweenis true that we have to proceed on the basis that the goods are not of the same description for the purposes of S. 10(1) of the Act. But there is evidence that glucose is used in the manufacture of biscuits. That would establish a trade connection between the two commodities, namely, glucose manufactured by the appellant and the biscuits produced by the respondent. An average purchaser would therefore be likely to think that the respondents Gluvita Biscuits were made with the appellants Glucovita glucose. This was the kind of trade connection between different goods which in the "Black Magic" case (Inre: an Application by Edward Hack)RPC 91 was taken into consideration in arriving at the conclusion that there was likelihood of confusion or deception. The goods in this case were chocolates and laxatives and it was proved that laxatives were often made with chocolate coatings. We may also refer to the "Panda" casere: an application by Ladislas Jellinek)RPC 59. The goods there concerned were shoes and shoe polishes. It was observed that shoe polishes being used for shoes, there was trade connection between them and that this might lead to confusion or deception though the goods were different. The application for registration was however refused under that Section of the English Act which corresponds to S. 8 of our Act on the ground that the opponents, the manufacturers of shoes, has not established a reputation for their trademark among the public.20. It is true that in both the above mentioned cases the two competing trade marks were absolutely identical which is not the case here. But that in our opinion makes no difference.The absolute identity of the two competing marks or their close resemblance is only one of the tests for determining the question of likelihood of deception or confusion. Trade connection between different goods is another such test. Ex hypothesi, this latter test applies only when the goods are different. These tests are independent tests. There is no reason why the test of trade connection between different goods should not apply where the competing marks closely resemble each other just as much as it applies, as held in the "Black Magic" and "Panda" cases, where the competing marks were identical. Whether by applying these tests in a particular case the conclusion that there is likelihood of deception or confusion should be arrived at would depend on all the facts of thewill assume that only liquid glucose is used in the manufacture of biscuits with glucose. But there is nothing to show that an average buyer knows with what kind of glucose, biscuits containing glucose are or can be made. That there is trade connection between glucose and biscuits and a likelihood of confusion or deception arising therefrom would appear from the fact stated by the appellant that it received from a tradesman an enquiry for biscuits manufactured by it under its mark Glucovita. The tradesman making the enquiry apparently thought that the manufacturer of Glucovita glucose was likely to manufacture biscuits with glucose; he did not worry whether biscuits were made with powder or liquid glucose. Then again it is stated in one of the affidavits filed by the appellant that the respondents director told the appellants manager that the respondent had adopted the name Gluvita to indicate that in the manufacture of its biscuits glucose was used. These statements on behalf of the appellant are not denied by the respondent. So, a trade connection between glucose and biscuits would appear to be established. We are therefore of opinion that the commodities concerned in the present case are so connected as to make confusion or deception likely in view of the similarity of the two trade marks. We think that the decision of Desai J. was right. | 1 | 4,648 | 1,445 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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question whether the two marks are likely to give rise to confusion or not is a question of first impression. It is for the court to decide that question. English cases proceeding on the English way of pronouncing an English word by Englishmen, which it may be stated is not always the same, may not be of much assistance in our country in deciding questions of phonetic similarity. It cannot be overlooked that the word is an English word which to the mass of the Indian people is a foreign word. It is well recognised that in deciding a question of similarity between two marks, the marks have to be considered as a whole. So considered, we are inclined to agree with Desai J. that the marks with which this case is concerned are similar. Apart from the syllable co in the appellants mark, the two marks are identical. That syllable is not in our opinion such as would enable the buyers in our country to distinguish the one mark from the other.18. We also agree with Desai J. that the idea of the two marks is the same. The marks convey the ideas of glucose and life giving properties or vitamins. The Aquamatic case (Harry Reynolds v. Laffeatys Ld.) 1958 RPC 387 is a recent case where the test of the commonness of the idea between two marks was applied in deciding the question of similarity between them.Again, in deciding the question of similarity between the two marks we have to approach it from the point of view of a man of average intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them.19. It was then said that the goods were not of the same description and that therefore in spite of the similarity of the two marks there would be no risk of confusion or deception. We are unable to accept this contention. It is true that we have to proceed on the basis that the goods are not of the same description for the purposes of S. 10(1) of the Act. But there is evidence that glucose is used in the manufacture of biscuits. That would establish a trade connection between the two commodities, namely, glucose manufactured by the appellant and the biscuits produced by the respondent. An average purchaser would therefore be likely to think that the respondents Gluvita Biscuits were made with the appellants Glucovita glucose. This was the kind of trade connection between different goods which in the "Black Magic" case (In re: an Application by Edward Hack) 1940-58 RPC 91 was taken into consideration in arriving at the conclusion that there was likelihood of confusion or deception. The goods in this case were chocolates and laxatives and it was proved that laxatives were often made with chocolate coatings. We may also refer to the "Panda" case (In re: an application by Ladislas Jellinek) 1946-63 RPC 59. The goods there concerned were shoes and shoe polishes. It was observed that shoe polishes being used for shoes, there was trade connection between them and that this might lead to confusion or deception though the goods were different. The application for registration was however refused under that Section of the English Act which corresponds to S. 8 of our Act on the ground that the opponents, the manufacturers of shoes, has not established a reputation for their trademark among the public.20. It is true that in both the above mentioned cases the two competing trade marks were absolutely identical which is not the case here. But that in our opinion makes no difference.The absolute identity of the two competing marks or their close resemblance is only one of the tests for determining the question of likelihood of deception or confusion. Trade connection between different goods is another such test. Ex hypothesi, this latter test applies only when the goods are different. These tests are independent tests. There is no reason why the test of trade connection between different goods should not apply where the competing marks closely resemble each other just as much as it applies, as held in the "Black Magic" and "Panda" cases, where the competing marks were identical. Whether by applying these tests in a particular case the conclusion that there is likelihood of deception or confusion should be arrived at would depend on all the facts of the case.21. It is then said that biscuits containing glucose are manufactured with liquid glucose whereas the appellants mark only concerns powder glucose. We will assume that only liquid glucose is used in the manufacture of biscuits with glucose. But there is nothing to show that an average buyer knows with what kind of glucose, biscuits containing glucose are or can be made. That there is trade connection between glucose and biscuits and a likelihood of confusion or deception arising therefrom would appear from the fact stated by the appellant that it received from a tradesman an enquiry for biscuits manufactured by it under its mark Glucovita. The tradesman making the enquiry apparently thought that the manufacturer of Glucovita glucose was likely to manufacture biscuits with glucose; he did not worry whether biscuits were made with powder or liquid glucose. Then again it is stated in one of the affidavits filed by the appellant that the respondents director told the appellants manager that the respondent had adopted the name Gluvita to indicate that in the manufacture of its biscuits glucose was used. These statements on behalf of the appellant are not denied by the respondent. So, a trade connection between glucose and biscuits would appear to be established. We are therefore of opinion that the commodities concerned in the present case are so connected as to make confusion or deception likely in view of the similarity of the two trade marks. We think that the decision of Desai J. was right.
### Response:
1
### Explanation:
of their being confused or deceived by the use of the respondents proposedthe applicant can seek to derive assistance for the success of his application from the presence of a number of marks having one or more common features which occur in his mark also, he has to prove that these marks had acquired a reputation by user in theWe think that the view taken by Desai J., is right.It is well known that the question whether the two marks are likely to give rise to confusion or not is a question of first impression. It is for the court to decide that question. English cases proceeding on the English way of pronouncing an English word by Englishmen, which it may be stated is not always the same, may not be of much assistance in our country in deciding questions of phonetic similarity. It cannot be overlooked that the word is an English word which to the mass of the Indian people is a foreign word. It is well recognised that in deciding a question of similarity between two marks, the marks have to be considered as a whole. So considered, we are inclined to agree with Desai J. that the marks with which this case is concerned are similar. Apart from the syllable co in the appellants mark, the two marks are identical. That syllable is not in our opinion such as would enable the buyers in our country to distinguish the one mark from the other.18. We also agree with Desai J. that the idea of the two marks is the same. The marks convey the ideas of glucose and life giving properties or vitamins. The Aquamatic case (Harry Reynolds v. Laffeatys Ld.) 1958 RPC 387 is a recent case where the test of the commonness of the idea between two marks was applied in deciding the question of similarity between them.Again, in deciding the question of similarity between the two marks we have to approach it from the point of view of a man of average intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion betweenis true that we have to proceed on the basis that the goods are not of the same description for the purposes of S. 10(1) of the Act. But there is evidence that glucose is used in the manufacture of biscuits. That would establish a trade connection between the two commodities, namely, glucose manufactured by the appellant and the biscuits produced by the respondent. An average purchaser would therefore be likely to think that the respondents Gluvita Biscuits were made with the appellants Glucovita glucose. This was the kind of trade connection between different goods which in the "Black Magic" case (Inre: an Application by Edward Hack)RPC 91 was taken into consideration in arriving at the conclusion that there was likelihood of confusion or deception. The goods in this case were chocolates and laxatives and it was proved that laxatives were often made with chocolate coatings. We may also refer to the "Panda" casere: an application by Ladislas Jellinek)RPC 59. The goods there concerned were shoes and shoe polishes. It was observed that shoe polishes being used for shoes, there was trade connection between them and that this might lead to confusion or deception though the goods were different. The application for registration was however refused under that Section of the English Act which corresponds to S. 8 of our Act on the ground that the opponents, the manufacturers of shoes, has not established a reputation for their trademark among the public.20. It is true that in both the above mentioned cases the two competing trade marks were absolutely identical which is not the case here. But that in our opinion makes no difference.The absolute identity of the two competing marks or their close resemblance is only one of the tests for determining the question of likelihood of deception or confusion. Trade connection between different goods is another such test. Ex hypothesi, this latter test applies only when the goods are different. These tests are independent tests. There is no reason why the test of trade connection between different goods should not apply where the competing marks closely resemble each other just as much as it applies, as held in the "Black Magic" and "Panda" cases, where the competing marks were identical. Whether by applying these tests in a particular case the conclusion that there is likelihood of deception or confusion should be arrived at would depend on all the facts of thewill assume that only liquid glucose is used in the manufacture of biscuits with glucose. But there is nothing to show that an average buyer knows with what kind of glucose, biscuits containing glucose are or can be made. That there is trade connection between glucose and biscuits and a likelihood of confusion or deception arising therefrom would appear from the fact stated by the appellant that it received from a tradesman an enquiry for biscuits manufactured by it under its mark Glucovita. The tradesman making the enquiry apparently thought that the manufacturer of Glucovita glucose was likely to manufacture biscuits with glucose; he did not worry whether biscuits were made with powder or liquid glucose. Then again it is stated in one of the affidavits filed by the appellant that the respondents director told the appellants manager that the respondent had adopted the name Gluvita to indicate that in the manufacture of its biscuits glucose was used. These statements on behalf of the appellant are not denied by the respondent. So, a trade connection between glucose and biscuits would appear to be established. We are therefore of opinion that the commodities concerned in the present case are so connected as to make confusion or deception likely in view of the similarity of the two trade marks. We think that the decision of Desai J. was right.
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Union of India & Others Vs. Maj. Gen. Manomoy Ganguly, VSM | supposed to restrict it to the ACR alone. It also needs no elaboration that Board Members are the three Chiefs of Services and it can very well be presumed that they would assess an officer in an objective manner. Indubitably, higher degree of trust can be reposed in them and their assessment is not to be interdicted unless very weighty and overwhelming material is produced warranting interference while undertaking judicial review of such an exercise.18. We may mention here that the appellants had placed strong reliance upon the earlier judgment of the AFT dated 16th January, 2015 rendered in OA No. 120 of 2014 entitled Major General S.K. Chakravorty v. Union of India and Others. In that case, the AFT had held that the allocation of system of marks, i.e., award of marks by the Board Members out of two (02) marks allotted to the Board, is based on value judgment. In the impugned judgment, the AFT distinguished the said judgment with the remarks that that case was not in respect of the Armed Medical Corps wherein the assessment is based on quantified check marks. This basis of distinguishing the judgment in S.K. Chakravorty is clearly erroneous. We may note that the provision for assessment for promotion to Lt. General is same whether it is Army per se or Armed Medical Corps. The principle enunciated in S.K. Chakravorty is based on the judgments of this Court in Air Vice Marshal S.L. Chabbra, VSM (Retd.) v. Union of India & Anr., 1993(3) S.C.T. 507 : (1993) Supp (4) SCC 441, Major General I.P.S. Dewan v. Union of India & Ors., (1995) 3 SCC 383 , Dalpat Abasaheb Solunke & Ors. v. Dr. B.S. Mahajan & Ors., (1990) 1 SCC 305 , and Surinder Shukla v. Union of India & Ors., 2008(1) S.C.T. 582 : (2008) 2 SCC 649. 19. Having said that, insofar as the present case is concerned, we find it difficult to disagree with the ultimate conclusion arrived at by the AFT in the facts of this case, even if some of the observations of the AFT may not be correct. Most important feature which is noted by the AFT and could not be disputed by the appellant is the manner in which exercise was undertaken while holding SPB meeting on 20th January, 2016. Even when the Board Members were entitled to give marks to the candidates on the basis of overall profile that was not done. On the contrary, the marks given to those officers who were considered in that SPB, were strictly on the basis of marks obtained by them out of 93 marks.20. That becomes clear from the record produced by the learned ASG for our perusal at the time of hearing. This is the case in respect of all officers, without any exception. The AFT is right in observing that in the meeting held on 20th January, 2016 Board Marks to all officers who are considered commensurate with the quantified marks of the candidates. Thus, the Board Members adopted the criteria of looking into the quantified marks as the yardstick for assessing overall profile.21. In the original SPB meeting, Major General Sanjeev Chopra was awarded 1.70 out of 2 marks whereas the respondent was awarded 1.50 marks. Lesser marks given to the respondent were because of the reason that marks awarded to him out of 93 were lesser than Mr. Sanjeev Chopra. Result of the redressal was that the marks of the respondent became higher than Mr. Sanjeev Chopra which necessitated Review SPB. This Review SPB meeting has to be on the same standards which were adopted in original SPB meeting. It has to be on the assumption as if case of the respondent is considered in the original SPB, but with revised profile. In the SPB held on 20th January, 2016, had the revised marks of the respondent available, which were more than the quantified marks of Sanjeev Chopra, the respondent would have certainly got 1.70 out of 2 marks by the Board. It is stated at the cost of repetition that was the criteria adopted by the Members of the Board itself viz. awarding the marks (out of 2) in line with the quantified marks. Having not undertaken the independent exercise of looking into the "overall profile" in the SPB held on 20th January, 2016 and instead assigning the marks to all the officers out of 2 marks, on the basis of quantified marks of the candidates which they had received out of 93 marks by treating the same as "overall profile", when it comes to Review SPB the appellant is supposed to stick to the same criteria. Only that would show fairness in approach, which would also be in conformity with the principles of equality enshrined in Article 14 of the Constitution. It is because of the reason that Review SPB is nothing but extension of original SPB, wherein the respondent was supposed to be considered on the same parameters as if he was participating in promotion process undertaken in original SPB.22. Other aspect which is highlighted by the AFT in the impugned judgment is equally significant, viz., Noting No. 3 of the Board proceedings was factually incorrect. As pointed out above, as per Noting No.3, the respondents CR merit in chance one changed from 16th position to 15th position among 18 officers considered for only 6 vacancies. This Noting gave the impression that even after the redress, the chances of promotion of the respondent hardly improved. On the contrary, fact is that after the redress, position of the respondent had jumped from 16th to 7th. Another significant aspect which was omitted was that with this jump, his quantified check marks (i.e. out of 93) became more than Major General Sanjeev Chopra, who was promoted after his assessment in the original SPB even when he was junior to the respondent. But for this error, there was a possibility of different outcome even on value judgment of the respondent by the Board Members. | 0[ds]9. From the aforesaid facts, it is clear that insofar as award of 93 marks, out of 95 marks, is concerned that can be calculated arithmetically on the basis of ACR, academic qualifications as well as military awards and decorations. Discretion is given to the Board to give weightage out of 2 marks and while exercising these discretions the Members of the Board are supposed to keep in mind the overall profile of the concerned officer, exceptional achievements, appointments held, medical category, disciplinary background, fieldarea posting.10. Insofar as the respondent is concerned, he was assigned 87.90 marks on the basis of ACR, i.e., against extrapolated out of 90 marks, when his case was considered for promotion originally by the SPB on 20th January, 2016. However, after redressal of his statutory complaint which resulted in expunging of some adverse remarks in ACR of the year 2014, these extrapolated out of 90 marks stood enhanced to 88.50. However, in the Review SPB, the Board stuck to the same marks which were awarded by the first Promotion Board. In this manner, though there was some increase in the total marks awarded to the respondent (as a result of increase in marks on account of ACRs). The final marks awarded to him were still below themarks because of which he was not empanelled for promotion by the Review Board as well. The entire controversy before the AFT, thus, pertained to the award of marks by the Board Members in the Review SPB.There is no dispute insofar as legal propositions advanced by the learned ASG are concerned. Undoubtedly, the Members of the Board are empowered to award marks out of the two marks which are reserved for them. For this purpose, it is not the ACR alone but the entire profile of an officer which is to be looked into. Insofar as, marks for ACR are concerned these have already been awarded under the head `average marks of ACR extrapolated out of 90. It shows that significant importance is attached to the ACRs inasmuch as 90 marks out of 95 marks are to be assigned on the basis of ACRs. Therefore, it cannot be disputed that while awarding marks out of the two marks reserved for the Members of the Board, they can examine the overall profile of the officer and are not supposed to restrict it to the ACR alone. It also needs no elaboration that Board Members are the three Chiefs of Services and it can very well be presumed that they would assess an officer in an objective manner. Indubitably, higher degree of trust can be reposed in them and their assessment is not to be interdicted unless very weighty and overwhelming material is produced warranting interference while undertaking judicial review of such an exercise.Having said that, insofar as the present case is concerned, we find it difficult to disagree with the ultimate conclusion arrived at by the AFT in the facts of this case, even if some of the observations of the AFT may not be correct. Most important feature which is noted by the AFT and could not be disputed by the appellant is the manner in which exercise was undertaken while holding SPB meeting on 20th January, 2016. Even when the Board Members were entitled to give marks to the candidates on the basis of overall profile that was not done. On the contrary, the marks given to those officers who were considered in that SPB, were strictly on the basis of marks obtained by them out of 93 marks.20. That becomes clear from the record produced by the learned ASG for our perusal at the time of hearing. This is the case in respect of all officers, without any exception. The AFT is right in observing that in the meeting held on 20th January, 2016 Board Marks to all officers who are considered commensurate with the quantified marks of the candidates. Thus, the Board Members adopted the criteria of looking into the quantified marks as the yardstick for assessing overall profile.21. In the original SPB meeting, Major General Sanjeev Chopra was awarded 1.70 out of 2 marks whereas the respondent was awarded 1.50 marks. Lesser marks given to the respondent were because of the reason that marks awarded to him out of 93 were lesser than Mr. Sanjeev Chopra. Result of the redressal was that the marks of the respondent became higher than Mr. Sanjeev Chopra which necessitated Review SPB. This Review SPB meeting has to be on the same standards which were adopted in original SPB meeting. It has to be on the assumption as if case of the respondent is considered in the original SPB, but with revised profile. In the SPB held on 20th January, 2016, had the revised marks of the respondent available, which were more than the quantified marks of Sanjeev Chopra, the respondent would have certainly got 1.70 out of 2 marks by the Board. It is stated at the cost of repetition that was the criteria adopted by the Members of the Board itself viz. awarding the marks (out of 2) in line with the quantified marks. Having not undertaken the independent exercise of looking into the "overall profile" in the SPB held on 20th January, 2016 and instead assigning the marks to all the officers out of 2 marks, on the basis of quantified marks of the candidates which they had received out of 93 marks by treating the same as "overall profile", when it comes to Review SPB the appellant is supposed to stick to the same criteria. Only that would show fairness in approach, which would also be in conformity with the principles of equality enshrined in Article 14 of the Constitution. It is because of the reason that Review SPB is nothing but extension of original SPB, wherein the respondent was supposed to be considered on the same parameters as if he was participating in promotion process undertaken in original SPB.22. Other aspect which is highlighted by the AFT in the impugned judgment is equally significant, viz., Noting No. 3 of the Board proceedings was factually incorrect. As pointed out above, as per Noting No.3, the respondents CR merit in chance one changed from 16th position to 15th position among 18 officers considered for only 6 vacancies. This Noting gave the impression that even after the redress, the chances of promotion of the respondent hardly improved. On the contrary, fact is that after the redress, position of the respondent had jumped from 16th to 7th. Another significant aspect which was omitted was that with this jump, his quantified check marks (i.e. out of 93) became more than Major General Sanjeev Chopra, who was promoted after his assessment in the original SPB even when he was junior to the respondent. But for this error, there was a possibility of different outcome even on value judgment of the respondent by the Board Members. | 0 | 3,539 | 1,269 | ### 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:
supposed to restrict it to the ACR alone. It also needs no elaboration that Board Members are the three Chiefs of Services and it can very well be presumed that they would assess an officer in an objective manner. Indubitably, higher degree of trust can be reposed in them and their assessment is not to be interdicted unless very weighty and overwhelming material is produced warranting interference while undertaking judicial review of such an exercise.18. We may mention here that the appellants had placed strong reliance upon the earlier judgment of the AFT dated 16th January, 2015 rendered in OA No. 120 of 2014 entitled Major General S.K. Chakravorty v. Union of India and Others. In that case, the AFT had held that the allocation of system of marks, i.e., award of marks by the Board Members out of two (02) marks allotted to the Board, is based on value judgment. In the impugned judgment, the AFT distinguished the said judgment with the remarks that that case was not in respect of the Armed Medical Corps wherein the assessment is based on quantified check marks. This basis of distinguishing the judgment in S.K. Chakravorty is clearly erroneous. We may note that the provision for assessment for promotion to Lt. General is same whether it is Army per se or Armed Medical Corps. The principle enunciated in S.K. Chakravorty is based on the judgments of this Court in Air Vice Marshal S.L. Chabbra, VSM (Retd.) v. Union of India & Anr., 1993(3) S.C.T. 507 : (1993) Supp (4) SCC 441, Major General I.P.S. Dewan v. Union of India & Ors., (1995) 3 SCC 383 , Dalpat Abasaheb Solunke & Ors. v. Dr. B.S. Mahajan & Ors., (1990) 1 SCC 305 , and Surinder Shukla v. Union of India & Ors., 2008(1) S.C.T. 582 : (2008) 2 SCC 649. 19. Having said that, insofar as the present case is concerned, we find it difficult to disagree with the ultimate conclusion arrived at by the AFT in the facts of this case, even if some of the observations of the AFT may not be correct. Most important feature which is noted by the AFT and could not be disputed by the appellant is the manner in which exercise was undertaken while holding SPB meeting on 20th January, 2016. Even when the Board Members were entitled to give marks to the candidates on the basis of overall profile that was not done. On the contrary, the marks given to those officers who were considered in that SPB, were strictly on the basis of marks obtained by them out of 93 marks.20. That becomes clear from the record produced by the learned ASG for our perusal at the time of hearing. This is the case in respect of all officers, without any exception. The AFT is right in observing that in the meeting held on 20th January, 2016 Board Marks to all officers who are considered commensurate with the quantified marks of the candidates. Thus, the Board Members adopted the criteria of looking into the quantified marks as the yardstick for assessing overall profile.21. In the original SPB meeting, Major General Sanjeev Chopra was awarded 1.70 out of 2 marks whereas the respondent was awarded 1.50 marks. Lesser marks given to the respondent were because of the reason that marks awarded to him out of 93 were lesser than Mr. Sanjeev Chopra. Result of the redressal was that the marks of the respondent became higher than Mr. Sanjeev Chopra which necessitated Review SPB. This Review SPB meeting has to be on the same standards which were adopted in original SPB meeting. It has to be on the assumption as if case of the respondent is considered in the original SPB, but with revised profile. In the SPB held on 20th January, 2016, had the revised marks of the respondent available, which were more than the quantified marks of Sanjeev Chopra, the respondent would have certainly got 1.70 out of 2 marks by the Board. It is stated at the cost of repetition that was the criteria adopted by the Members of the Board itself viz. awarding the marks (out of 2) in line with the quantified marks. Having not undertaken the independent exercise of looking into the "overall profile" in the SPB held on 20th January, 2016 and instead assigning the marks to all the officers out of 2 marks, on the basis of quantified marks of the candidates which they had received out of 93 marks by treating the same as "overall profile", when it comes to Review SPB the appellant is supposed to stick to the same criteria. Only that would show fairness in approach, which would also be in conformity with the principles of equality enshrined in Article 14 of the Constitution. It is because of the reason that Review SPB is nothing but extension of original SPB, wherein the respondent was supposed to be considered on the same parameters as if he was participating in promotion process undertaken in original SPB.22. Other aspect which is highlighted by the AFT in the impugned judgment is equally significant, viz., Noting No. 3 of the Board proceedings was factually incorrect. As pointed out above, as per Noting No.3, the respondents CR merit in chance one changed from 16th position to 15th position among 18 officers considered for only 6 vacancies. This Noting gave the impression that even after the redress, the chances of promotion of the respondent hardly improved. On the contrary, fact is that after the redress, position of the respondent had jumped from 16th to 7th. Another significant aspect which was omitted was that with this jump, his quantified check marks (i.e. out of 93) became more than Major General Sanjeev Chopra, who was promoted after his assessment in the original SPB even when he was junior to the respondent. But for this error, there was a possibility of different outcome even on value judgment of the respondent by the Board Members.
### Response:
0
### Explanation:
88.50. However, in the Review SPB, the Board stuck to the same marks which were awarded by the first Promotion Board. In this manner, though there was some increase in the total marks awarded to the respondent (as a result of increase in marks on account of ACRs). The final marks awarded to him were still below themarks because of which he was not empanelled for promotion by the Review Board as well. The entire controversy before the AFT, thus, pertained to the award of marks by the Board Members in the Review SPB.There is no dispute insofar as legal propositions advanced by the learned ASG are concerned. Undoubtedly, the Members of the Board are empowered to award marks out of the two marks which are reserved for them. For this purpose, it is not the ACR alone but the entire profile of an officer which is to be looked into. Insofar as, marks for ACR are concerned these have already been awarded under the head `average marks of ACR extrapolated out of 90. It shows that significant importance is attached to the ACRs inasmuch as 90 marks out of 95 marks are to be assigned on the basis of ACRs. Therefore, it cannot be disputed that while awarding marks out of the two marks reserved for the Members of the Board, they can examine the overall profile of the officer and are not supposed to restrict it to the ACR alone. It also needs no elaboration that Board Members are the three Chiefs of Services and it can very well be presumed that they would assess an officer in an objective manner. Indubitably, higher degree of trust can be reposed in them and their assessment is not to be interdicted unless very weighty and overwhelming material is produced warranting interference while undertaking judicial review of such an exercise.Having said that, insofar as the present case is concerned, we find it difficult to disagree with the ultimate conclusion arrived at by the AFT in the facts of this case, even if some of the observations of the AFT may not be correct. Most important feature which is noted by the AFT and could not be disputed by the appellant is the manner in which exercise was undertaken while holding SPB meeting on 20th January, 2016. Even when the Board Members were entitled to give marks to the candidates on the basis of overall profile that was not done. On the contrary, the marks given to those officers who were considered in that SPB, were strictly on the basis of marks obtained by them out of 93 marks.20. That becomes clear from the record produced by the learned ASG for our perusal at the time of hearing. This is the case in respect of all officers, without any exception. The AFT is right in observing that in the meeting held on 20th January, 2016 Board Marks to all officers who are considered commensurate with the quantified marks of the candidates. Thus, the Board Members adopted the criteria of looking into the quantified marks as the yardstick for assessing overall profile.21. In the original SPB meeting, Major General Sanjeev Chopra was awarded 1.70 out of 2 marks whereas the respondent was awarded 1.50 marks. Lesser marks given to the respondent were because of the reason that marks awarded to him out of 93 were lesser than Mr. Sanjeev Chopra. Result of the redressal was that the marks of the respondent became higher than Mr. Sanjeev Chopra which necessitated Review SPB. This Review SPB meeting has to be on the same standards which were adopted in original SPB meeting. It has to be on the assumption as if case of the respondent is considered in the original SPB, but with revised profile. In the SPB held on 20th January, 2016, had the revised marks of the respondent available, which were more than the quantified marks of Sanjeev Chopra, the respondent would have certainly got 1.70 out of 2 marks by the Board. It is stated at the cost of repetition that was the criteria adopted by the Members of the Board itself viz. awarding the marks (out of 2) in line with the quantified marks. Having not undertaken the independent exercise of looking into the "overall profile" in the SPB held on 20th January, 2016 and instead assigning the marks to all the officers out of 2 marks, on the basis of quantified marks of the candidates which they had received out of 93 marks by treating the same as "overall profile", when it comes to Review SPB the appellant is supposed to stick to the same criteria. Only that would show fairness in approach, which would also be in conformity with the principles of equality enshrined in Article 14 of the Constitution. It is because of the reason that Review SPB is nothing but extension of original SPB, wherein the respondent was supposed to be considered on the same parameters as if he was participating in promotion process undertaken in original SPB.22. Other aspect which is highlighted by the AFT in the impugned judgment is equally significant, viz., Noting No. 3 of the Board proceedings was factually incorrect. As pointed out above, as per Noting No.3, the respondents CR merit in chance one changed from 16th position to 15th position among 18 officers considered for only 6 vacancies. This Noting gave the impression that even after the redress, the chances of promotion of the respondent hardly improved. On the contrary, fact is that after the redress, position of the respondent had jumped from 16th to 7th. Another significant aspect which was omitted was that with this jump, his quantified check marks (i.e. out of 93) became more than Major General Sanjeev Chopra, who was promoted after his assessment in the original SPB even when he was junior to the respondent. But for this error, there was a possibility of different outcome even on value judgment of the respondent by the Board Members.
|
Bihar State Electricity Board, Patna Vs. Their Workmen | met without undue strain on the financial position of the employer, that bur den must be borne by the employer. It will certainly result in some reduction in profits; but if the industry is in a stable condition and the burden of provident fund and gratuity does not result in loss to the employer that burden will have to be borne by the employer like the burden of wage-structure in the interest of social justice. While on the one hand casting of this burden reduces the margin of profit, on the other hand it will result in the reduction of taxation in the shape of income-tax."4. That case was a case of an ordinary commercial concern. Even so it was noticed that the stability of the industry as well as the fact that the burden of provident fund and gratuity does not result in loss to the employer are to be taken into consideration. the actual burden was calculated and it was pointed out that 63 per cent of it would be met by reduction in taxation. Nothing of the sort has been done by the Tribunal in this case. It is true that in that case it was said that the amounts to be provided for taxation and for development rebate reserve could not be deducted in order to ascertain the financial capacity of the employer. Nothing was said there about the depreciation reserve which is obligatory under s. 68 of the Electricity (Supply) Act the Electricity Board is not an ordinary commercial concern. It is a public service institution. It is not expected to make and profit. It is expected to extend the supply of electricity to unserved areas without reference to considerations of loss that might be incurred as a result of such extension. The Government makes subventions to the Board for the purposes of the Act. Section 59 of the Electricity supply Act, 1948 provides that as far as practicable and after taking credit for any subventions from the State Government the Board shall carry on its operations so as not to incur a loss. Under s. 64 the State Government may advance loans to the Board and under s. 65 the Board itself has the power to borrow. Under s. 66 the State Government may guarantee the payment of principal and interest of any loan proposed to be raised by the Board. Under s. 67 after meeting its operating maintenance and management expenses and after provision has been made for the payment of taxes on its income and profits the revenues of the Board have to be distributed as far as they are available in the following order, namely:-(i) interest on bonds not guaranteed under section 66;(ii) interest on stock not so guaranteed;(iii)credits to depreciation reserve under section 68;(iv) interest on bonds guaranteed under section 66:(v) interest on stock so guaranteed;(vi) interest on sums paid by the State Government under guarantees under section 66;(vii)the write-down of amounts paid from capital under the proviso to sections 59;(viii)the write-down of amounts in respect of intangible assets to the extent to which they are actually appropriated in any year for the purpose in the books of the Board;(ix) contribution to general reserve of an a mount not exceeding one half of one per centum per annum of the original cost of fixed assets employed by the Board so however that the total standing to the credit of such reserve shall not exceed fifteen per centum of the original cost of such fixed assets;(x) interest on loans advanced or deemed to be advanced to the Board under section 64, including arrears of such interest:(xi) the balance to be appropriated to a fund to be called the Development Fund to be utilised for-(a) purposes beneficial, in the opinion of the Board, to electrical development in the State;(b) repayment of loans advanced to the Board under section 64 and required to be repaid:Provided that where no such loan is outstanding, one half of the balance aforesaid shall be credited to the Consolidated Fund of the State.Section 68 lays an obligation on the Board to make a credit to the depreciation reserve in the prescribed manner.5. The facile assumption by the Tribunal that the interest should no. be taken into account in working out the profits is no t borne out by the provisions of the statute. Indeed the Tribunal did not look into the Act at all. Whether in view of the statutory obligations laid on ii under the various sections just now referred to in analysing the capacity of the Board to bear any additional burden in the matter of provident fund or other amenities the same considerations that applied in the case of private commercial concerns could be applied is a rather difficult question. In fact the decision might very often depend on a close analysis of the financial condition of the Board. We do not want at present to express one view or the other. one thing at least is obvious, that the various sums payable under the provisions of s. 67 have to be deducted before the profits could he ascertained. Even with regard to the depreciation reserve the provisions of s. 68 may have to be taken into account. If it is not it would have to be met by loans on which interest will have to be paid and deduction of interest so paid will have to be taken into account in calculating the profits. The contribution to the depreciation reserve is a statutory obligation and is a definite proportion whereas it is open to an ordinary commercial concern to credit any amount to the depreciation reserve. These and other matters cannot be properly decided in the absence of a detailed examination of the finances of the Board. That is why we said that the Tribunal has dealt with the matter in a perfunctory way. It should be directed to dispose of the matter afresh in the light of the observations made in this judgment. | 1[ds]5. The facile assumption by the Tribunal that the interest should no. be taken into account in working out the profits is no t borne out by the provisions of the statute. Indeed the Tribunal did not look into the Act at all. Whether in view of the statutory obligations laid on ii under the various sections just now referred to in analysing the capacity of the Board to bear any additional burden in the matter of provident fund or other amenities the same considerations that applied in the case of private commercial concerns could be applied is a rather difficult question. In fact the decision might very often depend on a close analysis of the financial condition of the Board. We do not want at present to express one view or the other. one thing at least is obvious, that the various sums payable under the provisions of s. 67 have to be deducted before the profits could he ascertained. Even with regard to the depreciation reserve the provisions of s. 68 may have to be taken into account. If it is not it would have to be met by loans on which interest will have to be paid and deduction of interest so paid will have to be taken into account in calculating the profits. The contribution to the depreciation reserve is a statutory obligation and is a definite proportion whereas it is open to an ordinary commercial concern to credit any amount to the depreciation reserve. These and other matters cannot be properly decided in the absence of a detailed examination of the finances of the Board. That is why we said that the Tribunal has dealt with the matter in a perfunctory way. It should be directed to dispose of the matter afresh in the light of the observations made in this judgment. | 1 | 2,289 | 327 | ### 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:
met without undue strain on the financial position of the employer, that bur den must be borne by the employer. It will certainly result in some reduction in profits; but if the industry is in a stable condition and the burden of provident fund and gratuity does not result in loss to the employer that burden will have to be borne by the employer like the burden of wage-structure in the interest of social justice. While on the one hand casting of this burden reduces the margin of profit, on the other hand it will result in the reduction of taxation in the shape of income-tax."4. That case was a case of an ordinary commercial concern. Even so it was noticed that the stability of the industry as well as the fact that the burden of provident fund and gratuity does not result in loss to the employer are to be taken into consideration. the actual burden was calculated and it was pointed out that 63 per cent of it would be met by reduction in taxation. Nothing of the sort has been done by the Tribunal in this case. It is true that in that case it was said that the amounts to be provided for taxation and for development rebate reserve could not be deducted in order to ascertain the financial capacity of the employer. Nothing was said there about the depreciation reserve which is obligatory under s. 68 of the Electricity (Supply) Act the Electricity Board is not an ordinary commercial concern. It is a public service institution. It is not expected to make and profit. It is expected to extend the supply of electricity to unserved areas without reference to considerations of loss that might be incurred as a result of such extension. The Government makes subventions to the Board for the purposes of the Act. Section 59 of the Electricity supply Act, 1948 provides that as far as practicable and after taking credit for any subventions from the State Government the Board shall carry on its operations so as not to incur a loss. Under s. 64 the State Government may advance loans to the Board and under s. 65 the Board itself has the power to borrow. Under s. 66 the State Government may guarantee the payment of principal and interest of any loan proposed to be raised by the Board. Under s. 67 after meeting its operating maintenance and management expenses and after provision has been made for the payment of taxes on its income and profits the revenues of the Board have to be distributed as far as they are available in the following order, namely:-(i) interest on bonds not guaranteed under section 66;(ii) interest on stock not so guaranteed;(iii)credits to depreciation reserve under section 68;(iv) interest on bonds guaranteed under section 66:(v) interest on stock so guaranteed;(vi) interest on sums paid by the State Government under guarantees under section 66;(vii)the write-down of amounts paid from capital under the proviso to sections 59;(viii)the write-down of amounts in respect of intangible assets to the extent to which they are actually appropriated in any year for the purpose in the books of the Board;(ix) contribution to general reserve of an a mount not exceeding one half of one per centum per annum of the original cost of fixed assets employed by the Board so however that the total standing to the credit of such reserve shall not exceed fifteen per centum of the original cost of such fixed assets;(x) interest on loans advanced or deemed to be advanced to the Board under section 64, including arrears of such interest:(xi) the balance to be appropriated to a fund to be called the Development Fund to be utilised for-(a) purposes beneficial, in the opinion of the Board, to electrical development in the State;(b) repayment of loans advanced to the Board under section 64 and required to be repaid:Provided that where no such loan is outstanding, one half of the balance aforesaid shall be credited to the Consolidated Fund of the State.Section 68 lays an obligation on the Board to make a credit to the depreciation reserve in the prescribed manner.5. The facile assumption by the Tribunal that the interest should no. be taken into account in working out the profits is no t borne out by the provisions of the statute. Indeed the Tribunal did not look into the Act at all. Whether in view of the statutory obligations laid on ii under the various sections just now referred to in analysing the capacity of the Board to bear any additional burden in the matter of provident fund or other amenities the same considerations that applied in the case of private commercial concerns could be applied is a rather difficult question. In fact the decision might very often depend on a close analysis of the financial condition of the Board. We do not want at present to express one view or the other. one thing at least is obvious, that the various sums payable under the provisions of s. 67 have to be deducted before the profits could he ascertained. Even with regard to the depreciation reserve the provisions of s. 68 may have to be taken into account. If it is not it would have to be met by loans on which interest will have to be paid and deduction of interest so paid will have to be taken into account in calculating the profits. The contribution to the depreciation reserve is a statutory obligation and is a definite proportion whereas it is open to an ordinary commercial concern to credit any amount to the depreciation reserve. These and other matters cannot be properly decided in the absence of a detailed examination of the finances of the Board. That is why we said that the Tribunal has dealt with the matter in a perfunctory way. It should be directed to dispose of the matter afresh in the light of the observations made in this judgment.
### Response:
1
### Explanation:
5. The facile assumption by the Tribunal that the interest should no. be taken into account in working out the profits is no t borne out by the provisions of the statute. Indeed the Tribunal did not look into the Act at all. Whether in view of the statutory obligations laid on ii under the various sections just now referred to in analysing the capacity of the Board to bear any additional burden in the matter of provident fund or other amenities the same considerations that applied in the case of private commercial concerns could be applied is a rather difficult question. In fact the decision might very often depend on a close analysis of the financial condition of the Board. We do not want at present to express one view or the other. one thing at least is obvious, that the various sums payable under the provisions of s. 67 have to be deducted before the profits could he ascertained. Even with regard to the depreciation reserve the provisions of s. 68 may have to be taken into account. If it is not it would have to be met by loans on which interest will have to be paid and deduction of interest so paid will have to be taken into account in calculating the profits. The contribution to the depreciation reserve is a statutory obligation and is a definite proportion whereas it is open to an ordinary commercial concern to credit any amount to the depreciation reserve. These and other matters cannot be properly decided in the absence of a detailed examination of the finances of the Board. That is why we said that the Tribunal has dealt with the matter in a perfunctory way. It should be directed to dispose of the matter afresh in the light of the observations made in this judgment.
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Satya Deo Prasad Gupta Vs. State of Bihar & Others | from the Court. This only shows how cavalierly and irresponsibly the executive authorities in the present case seem inclined to view questions concerning personal liberty and betrays complete lack of candour and frankness with the Court. No words can be too strong to condemn such irresponsible attitude.7. We have already referred to the original record of the case and that clearly shows that though the representation of the petitioner was received by the State Government on 16th August, 1974 and the Advisory Board, after considering the case of the petitioner and taking into account his representation, give its opinion on 20th August, 1974, the State Government slept over the matter for a period of about three months and considered the representation of the petitioner only on 15th November, 1974 after the hearing of the petition had been adjourned on 11th November, 1974. There was obviously inordinate delay on the part of the State Government in considering the representation of the petitioner. There is no explanation for this inordinate delay offered by the State Government. We asked Mr. U.P. Singh whether he was in a position on behalf of the State Government to offer an explanation for this apparently unreasonable delay, but he confessed his inability to do so. We fail to see why the State Government should not have been able to consider the representation of the petitioner for about three months. This only shows callous disregard of the constitutional provision which requires that the representation of a detenu must be considered without avoidable delay. The constitutional requirement of affording an opportunity to a detenu to make a representation against the order of detention is intended to provide a safeguard against improper or unjustified exercise of the power of detention and it is for this reason that the decisions of this Court have always insisted that the representation of the detenu should be considered promptly and without undue delay, so that if it is found by the detaining authority, on considering the representation, that the grounds on which the order of detention has been made are incorrect or non-existent or irrelevant, the detaining authority itself may cancel the order of detention and the detenu may be freed from unjustified detention at the earliest opportunity. Here there was absolutely no justification - at least none could be pointed out - why the State Government could not consider the representation of the petitioner for about three months. It is now well settled by the decision of a Bench of five Judges of this Court in Jayanarayan Sakul v. State of West Bengal, (1970) 3 SCR 225 = (AIR 1970 SC 675 ) that where there is inordinate delay on the part of the State Government in considering the representation of a detenu and no satisfactory explanation is offered by the State Government for such delay, the constitutional obligation is violated and the detention is rendered invalid. Ray, J., as he then was, speaking on behalf of the Court, pointed out in that case :"In the present case, the State of West Bengal is guilty of infraction of the constitutional provision not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional obligation by inactivity and lack of independent judgment."Therefore, on this ground alone, the detention of the petitioner must be held to be invalid.8. There is also another ground which must result in invalidation of the detention of the petitioner. The law is now well settled as a result of a decision of this Court in D. S. Roy v. State of West Bengal, AIR 1972 SC 1924 that on a proper interpretation of Article 22, clause (4) of the Constitution, the confirmation of the detention with a view to continue it beyond a period of three months, on receipt of the opinion of the Advisory Board, must be within three months from the date of detention. The confirmation of the detention must, therefore, follow within three months from the date of detention. Here, in the present case, the petitioner was detained pursuant to the order of detention on 11th July, 1974 and the order confirming the detention should, therefore, have been passed at the latest on 11th October, 1974. But the State Government, though it received the opinion of the Advisory Board as far back as 20th August, 1974, did not bestir itself for well nigh three months and it was only on 15th November, 1974 that it suddenly woke up to make the order of confirmation. The order of confirmation was clearly made beyond three months from the date of detention and there is, therefore, no escape from the conclusion that the order of detention must be held to be invalid.We may point out that the decision of this Court in AIR 1972 SC 1924 was given as far back as 7th December, 1971 and yet the State Government in the present case acted in contravention of the constitutional mandate enunciated and explained in that decision. Taking a charitable view of the matter we may presume that the State Government was not aware of this decision. But that can hardly be an excuse for violation of the law. We think it would be desirable if some machinery is set up by the Government of India or the State Governments by which the decisions of this Court in cases of preventive detention are brought to the notice of the executive authorities so soon as they are handed down so that the executive authorities know what is the law laid down by this Court and they can conform to it. | 1[ds]7. We have already referred to the original record of the case and that clearly shows that though the representation of the petitioner was received by the State Government on 16th August, 1974 and the Advisory Board, after considering the case of the petitioner and taking into account his representation, give its opinion on 20th August, 1974, the State Government slept over the matter for a period of about three months and considered the representation of the petitioner only on 15th November, 1974 after the hearing of the petition had been adjourned on 11th November, 1974. There was obviously inordinate delay on the part of the State Government in considering the representation of the petitioner. There is no explanation for this inordinate delay offered by the State Government. We asked Mr. U.P. Singh whether he was in a position on behalf of the State Government to offer an explanation for this apparently unreasonable delay, but he confessed his inability to do so. We fail to see why the State Government should not have been able to consider the representation of the petitioner for about three months. This only shows callous disregard of the constitutional provision which requires that the representation of a detenu must be considered without avoidable delay. The constitutional requirement of affording an opportunity to a detenu to make a representation against the order of detention is intended to provide a safeguard against improper or unjustified exercise of the power of detention and it is for this reason that the decisions of this Court have always insisted that the representation of the detenu should be considered promptly and without undue delay, so that if it is found by the detaining authority, on considering the representation, that the grounds on which the order of detention has been made are incorrect or non-existent or irrelevant, the detaining authority itself may cancel the order of detention and the detenu may be freed from unjustified detention at the earliest opportunity. Here there was absolutely no justification - at least none could be pointed out - why the State Government could not consider the representation of the petitioner for about threeon this ground alone, the detention of the petitioner must be held to be invalid.8. There is also another ground which must result in invalidation of the detention of the petitioner. The law is now well settled as a result of a decision of this Court in D. S. Roy v. State of West Bengal, AIR 1972 SC 1924 that on a proper interpretation of Article 22, clause (4) of the Constitution, the confirmation of the detention with a view to continue it beyond a period of three months, on receipt of the opinion of the Advisory Board, must be within three months from the date of detention. The confirmation of the detention must, therefore, follow within three months from the date of detention. Here, in the present case, the petitioner was detained pursuant to the order of detention on 11th July, 1974 and the order confirming the detention should, therefore, have been passed at the latest on 11th October, 1974. But the State Government, though it received the opinion of the Advisory Board as far back as 20th August, 1974, did not bestir itself for well nigh three months and it was only on 15th November, 1974 that it suddenly woke up to make the order of confirmation. The order of confirmation was clearly made beyond three months from the date of detention and there is, therefore, no escape from the conclusion that the order of detention must be held to be invalid.We may point out that the decision of this Court in AIR 1972 SC 1924 was given as far back as 7th December, 1971 and yet the State Government in the present case acted in contravention of the constitutional mandate enunciated and explained in that decision. Taking a charitable view of the matter we may presume that the State Government was not aware of this decision. But that can hardly be an excuse for violation of the law. We think it would be desirable if some machinery is set up by the Government of India or the State Governments by which the decisions of this Court in cases of preventive detention are brought to the notice of the executive authorities so soon as they are handed down so that the executive authorities know what is the law laid down by this Court and they can conform to it. | 1 | 3,040 | 806 | ### Instruction:
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from the Court. This only shows how cavalierly and irresponsibly the executive authorities in the present case seem inclined to view questions concerning personal liberty and betrays complete lack of candour and frankness with the Court. No words can be too strong to condemn such irresponsible attitude.7. We have already referred to the original record of the case and that clearly shows that though the representation of the petitioner was received by the State Government on 16th August, 1974 and the Advisory Board, after considering the case of the petitioner and taking into account his representation, give its opinion on 20th August, 1974, the State Government slept over the matter for a period of about three months and considered the representation of the petitioner only on 15th November, 1974 after the hearing of the petition had been adjourned on 11th November, 1974. There was obviously inordinate delay on the part of the State Government in considering the representation of the petitioner. There is no explanation for this inordinate delay offered by the State Government. We asked Mr. U.P. Singh whether he was in a position on behalf of the State Government to offer an explanation for this apparently unreasonable delay, but he confessed his inability to do so. We fail to see why the State Government should not have been able to consider the representation of the petitioner for about three months. This only shows callous disregard of the constitutional provision which requires that the representation of a detenu must be considered without avoidable delay. The constitutional requirement of affording an opportunity to a detenu to make a representation against the order of detention is intended to provide a safeguard against improper or unjustified exercise of the power of detention and it is for this reason that the decisions of this Court have always insisted that the representation of the detenu should be considered promptly and without undue delay, so that if it is found by the detaining authority, on considering the representation, that the grounds on which the order of detention has been made are incorrect or non-existent or irrelevant, the detaining authority itself may cancel the order of detention and the detenu may be freed from unjustified detention at the earliest opportunity. Here there was absolutely no justification - at least none could be pointed out - why the State Government could not consider the representation of the petitioner for about three months. It is now well settled by the decision of a Bench of five Judges of this Court in Jayanarayan Sakul v. State of West Bengal, (1970) 3 SCR 225 = (AIR 1970 SC 675 ) that where there is inordinate delay on the part of the State Government in considering the representation of a detenu and no satisfactory explanation is offered by the State Government for such delay, the constitutional obligation is violated and the detention is rendered invalid. Ray, J., as he then was, speaking on behalf of the Court, pointed out in that case :"In the present case, the State of West Bengal is guilty of infraction of the constitutional provision not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional obligation by inactivity and lack of independent judgment."Therefore, on this ground alone, the detention of the petitioner must be held to be invalid.8. There is also another ground which must result in invalidation of the detention of the petitioner. The law is now well settled as a result of a decision of this Court in D. S. Roy v. State of West Bengal, AIR 1972 SC 1924 that on a proper interpretation of Article 22, clause (4) of the Constitution, the confirmation of the detention with a view to continue it beyond a period of three months, on receipt of the opinion of the Advisory Board, must be within three months from the date of detention. The confirmation of the detention must, therefore, follow within three months from the date of detention. Here, in the present case, the petitioner was detained pursuant to the order of detention on 11th July, 1974 and the order confirming the detention should, therefore, have been passed at the latest on 11th October, 1974. But the State Government, though it received the opinion of the Advisory Board as far back as 20th August, 1974, did not bestir itself for well nigh three months and it was only on 15th November, 1974 that it suddenly woke up to make the order of confirmation. The order of confirmation was clearly made beyond three months from the date of detention and there is, therefore, no escape from the conclusion that the order of detention must be held to be invalid.We may point out that the decision of this Court in AIR 1972 SC 1924 was given as far back as 7th December, 1971 and yet the State Government in the present case acted in contravention of the constitutional mandate enunciated and explained in that decision. Taking a charitable view of the matter we may presume that the State Government was not aware of this decision. But that can hardly be an excuse for violation of the law. We think it would be desirable if some machinery is set up by the Government of India or the State Governments by which the decisions of this Court in cases of preventive detention are brought to the notice of the executive authorities so soon as they are handed down so that the executive authorities know what is the law laid down by this Court and they can conform to it.
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7. We have already referred to the original record of the case and that clearly shows that though the representation of the petitioner was received by the State Government on 16th August, 1974 and the Advisory Board, after considering the case of the petitioner and taking into account his representation, give its opinion on 20th August, 1974, the State Government slept over the matter for a period of about three months and considered the representation of the petitioner only on 15th November, 1974 after the hearing of the petition had been adjourned on 11th November, 1974. There was obviously inordinate delay on the part of the State Government in considering the representation of the petitioner. There is no explanation for this inordinate delay offered by the State Government. We asked Mr. U.P. Singh whether he was in a position on behalf of the State Government to offer an explanation for this apparently unreasonable delay, but he confessed his inability to do so. We fail to see why the State Government should not have been able to consider the representation of the petitioner for about three months. This only shows callous disregard of the constitutional provision which requires that the representation of a detenu must be considered without avoidable delay. The constitutional requirement of affording an opportunity to a detenu to make a representation against the order of detention is intended to provide a safeguard against improper or unjustified exercise of the power of detention and it is for this reason that the decisions of this Court have always insisted that the representation of the detenu should be considered promptly and without undue delay, so that if it is found by the detaining authority, on considering the representation, that the grounds on which the order of detention has been made are incorrect or non-existent or irrelevant, the detaining authority itself may cancel the order of detention and the detenu may be freed from unjustified detention at the earliest opportunity. Here there was absolutely no justification - at least none could be pointed out - why the State Government could not consider the representation of the petitioner for about threeon this ground alone, the detention of the petitioner must be held to be invalid.8. There is also another ground which must result in invalidation of the detention of the petitioner. The law is now well settled as a result of a decision of this Court in D. S. Roy v. State of West Bengal, AIR 1972 SC 1924 that on a proper interpretation of Article 22, clause (4) of the Constitution, the confirmation of the detention with a view to continue it beyond a period of three months, on receipt of the opinion of the Advisory Board, must be within three months from the date of detention. The confirmation of the detention must, therefore, follow within three months from the date of detention. Here, in the present case, the petitioner was detained pursuant to the order of detention on 11th July, 1974 and the order confirming the detention should, therefore, have been passed at the latest on 11th October, 1974. But the State Government, though it received the opinion of the Advisory Board as far back as 20th August, 1974, did not bestir itself for well nigh three months and it was only on 15th November, 1974 that it suddenly woke up to make the order of confirmation. The order of confirmation was clearly made beyond three months from the date of detention and there is, therefore, no escape from the conclusion that the order of detention must be held to be invalid.We may point out that the decision of this Court in AIR 1972 SC 1924 was given as far back as 7th December, 1971 and yet the State Government in the present case acted in contravention of the constitutional mandate enunciated and explained in that decision. Taking a charitable view of the matter we may presume that the State Government was not aware of this decision. But that can hardly be an excuse for violation of the law. We think it would be desirable if some machinery is set up by the Government of India or the State Governments by which the decisions of this Court in cases of preventive detention are brought to the notice of the executive authorities so soon as they are handed down so that the executive authorities know what is the law laid down by this Court and they can conform to it.
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Bharat Coking Coal Ltd. Vs. Madanlal Agrawal | between the owner of the coal mine and such managing contractor, in such proportions as may be agreed upon by or between the owner and such managing contractor, and in the event of there being no such agreement, in such proportions as may be determined by the Court on a reference made to it by the Commissioner. (5) Where any machinery, equipment or other property in a Coal Mine has vested in the Central Government, or a Government company under this Act, but such machinery equipment or other property does not belong to the owner of such coal mine, the amount specified in the fifth column of the Schedule against such coal mine shall, on a reference made to it by the commissioner, be apportioned by the Court between the owner of such coal mine and the owner of such machinery, equipment or other property having due regard to the value of such machinery, equipment or other property on the appointed day. (6) Where the amount specified in the fifty column of the Schedule is relatable to a group of coal mines, the Commissioner shall have power to apportion such amount among the owners of such group, and in making such apportionment, the Commissioner shall have regard to the highest annual production in the coal mine during the three years immediately preceding the appointed day. 34. Sub-section (1) speaks of monies paid to him in relation to a coal mine. The money payable to an owner shall be utilised first to pay to secured and unsecured creditOrs. If any balance is left thereafter, it shall be disbursed to the owners. Sub-section (2) provides that before making any payment to the owner, the Commissioner has further to satisfy himself as to the right of the person to receive the whole or any part of such amount. In other words, merely because the name of a colliery owner is shown in the 4th column as the owner will not enable him to get the entire amount allocated in column 5. Other parties may claim a portion of that amount. In such a situation, the Commissioner has to refer the dispute to the court for decision. For the removal of doubts, Sub-section (3) has declared that the entries in the 4th column of the Schedule shall not be deemed to be conclusive as to the right, title and interest of any person in relation to any coal mine. Any other claimant may adduce evidence to establish his right, title and interest in relation to such coal mine. These provisions clearly go to show that the colliery company named in the 4th column is not the only person who will be paid the compensation money. If plants, machinery and building which come within the definition of mine are not owned by the person named in the 4th column, then the Commissioner will have to satisfy himself as to the right of any other person who owns such plants or machineries or buildings and divide the amount of compensation among such persons and the persons in the 4th column. 35. The controversy has been put beyond any doubt by Sub-section (5) of Section 26 which specifically provides for apportionment of the compensation money when any machinery, equipment or other property which does not belong to the owner of the mine has vested in the Central Government. The amount may be apportioned between the person named in the 4th column and the owner of machinery, equipment or other property by a court. All these provisions clearly go to show: (1) Mere mention of the name of the owner of a coal mine in 4th column is not conclusive of its right to get the entire amount of compensation specified in the 5th column. (2) There may be other claimants for the amount. The dispute may be resolved by a court on reference by the Commissioner. (3) Machinery, equipment or other property in a coal mine which does not belong to the owners specified in the 4th column may vest in the Central Government or a Government Company. (4) If such vesting takes place, then the owner of such machinery equipment or property may be compensated out of amounts specified in the 5th column. (5) The claim of such owners as against the owners named in the 4th column may be referred to a court and the compensation money may be apportioned by the court between the owner of the coal mine and the owner of machinery, equipment or other property. 36. In the context of Section 3 and also Section 26, the owner has to be understood as owner of a mine in the extended sense given in Section 2(h). The limited definition of the word mine given in the Mines Act, 1952 has not been designedly adopted by the Coal Mines (Nationalisation) Act. All these provisions go to show that it was not only the interest of the owners of the coal mine specified in the fourth column, but also the ownership of all other persons in the properties enumerated in Section 2(h) vested in the Central Government by virtue of the provisions of Section 3 of the Act. 37. That means that things which did not belong to the mine owners mentioned in column 4 of the Schedule but fall within Sub-clauses (i) to (xii) of Section 2(h) of the Nationalisation Act will vest in the Central Government free from all encumbrances. If the mine owner had located staff quarters and offices on rented buildings, these will also vest in the Central Government. 38. In view of the aforesaid, we hold that the suit premises fall within the ambit of the definition of mine in Section 2(h) of the Coal Mines (Nationalisation) Act, 1973 and as such had vested in the Central Government on the appointed day by virtue of the provision of Section 3 of the Act, even though these premises might not have been in the ownership of the United Mining Company. | 1[ds]In the Schedule annexed to the Act, names and addresses of the mines, management of which was taken over as well as the names of the owners of the mines were given. Victory P.O. Dhansar was mentioned at Serial No. 68 and United Mining Company Limited has been shown as the owner of the mine. By virtue of Section 3 read with the extended definition of mine given in the Act, not only the colliery, but the buildings which are being utilised for location of the management and the office of the mine as also for residence of the officers and staff of the mine were brought under the management of the Central Government. If the office building belonged to a person other than the Colliery Company which owned the mine, then it was his duty to draw the attention of the Central Government to the fact that these building even though included in the definition of mine, actually did not belong to United Mining Company Limited which was described generally as the owner. In such a case, the description of the owner might have been corrected. But even if such an error took place which required correction, the owner of the lands and buildings falling within Sub-clause (xi) of Clause (g) of Section 2 could not get back the management or control over these lands and buildings. It is of significance to note that Madanlal Agrawal who is a Director of United Mining Company Limited did not raise any objection to the description of United Mining Company Limited as the owner of the coal mine at any point of time and did not seek for any correction. It is not his case that he was unaware of the wide definition of mine given in this Act.20. By virtue of Section 3, the right, title and interest of owners in relation to the coal mines specified in the Schedule stood transferred to and vested absolutely in the Central Government free from all encumbrances from the appointed day, 1st May, 1973. The idea behind the Nationalisation Act appears to be that the Government wanted to take over and run the coal mines so as to ensure rational, co-ordinated and scientific development and utilisation of coal resources. The object of the Act was to subserve the common good and for matters connected therewith or incidental thereto. The Act should not be construed in a way to frustrate the working of the coal mines altogether and thereby stop or bring down production of coal by the nationalisation of coal mines. The extended meaning given to mine was to ensure that the activity of mining of coal could be carried on in an uninterrupted fashion. Not only the lands, buildings and equipments belonging to the owners of the mine but other lands and buildings which were solely used for the purposes of office or residence of the officers and staff of the mine also vested in the Central Government. The words of Sub-clause (xi) are very clear and there is no ambiguity in them.22. If this argument is upheld, it will make the extended meaning given to mine in Sub-section (h) of Section 2 nugatory and of no effect. Coal Mine has been defined by Section 2(b) to mean a mine in which there exists one or more seams of coal. Mine has been defined to include amongst others all conveyers or aerial ropeways provided for the bringing into or removal from a mine of minerals or other articles or for the removal of refuse therefrom, all lands, buildings works, vehicles, railways, tramways and sidings in, or adjacent to a mine and used for the purpose of the mine, all workshops (including buildings, machinery, instruments, stores, equipment of such workshops and the lands on which such workshop stands) in or, adjacent to, a mine and used substantially for the purposes of the mine, all power stations in a mine or operated primarily for supplying electricity for the purpose of working the mine. All these things may not belong to the owner to come within the ambit of the Nationalisation Act. The extended definition of mine has been given in order to ensure that after taking over of the mine, the Central Government is in a position to operate the mine and extract coal and do everything that is needful for the purpose of working the mine. In fact, the phrase belonging to the owner of the mine is to be found only in Sub-clauses (viii), (x) and (xii). That clearly goes to show that the other assets, movable or immovable, which were being actually used and utilised for operation of the mining activity were all being taken over by the Central Government even though these did not belong to the owners. There is no sense in giving this extended meaning to mine if the intention of the Act was not to acquire the right of ownership in these assets falling within the definition of Mine.23. It is also of significance that Section 3 speaks of vesting of right, title and interest of the owners in relation to the coal mines specified in the Schedule. All ownership rights not only of, but in relation to, the coal mines were being taken over by the Central Government free from all encumbrances from the appointed day. The Section also does not speak of the right, title and interest of the owners specified in the Schedule. On the contrary, it speaks of coal mines specified in the Schedule. In other words, the coal mines specified in the Schedule are being brought under the ownership of the Central Government which will take in everything included in the definition of mine. The ambit of the coal mine has to be understood in the sense as given in the Act. The fact that the name of the company has been given as the owner and the amount of compensation has also been fixed in the Schedule does not mean that the vesting was confined only to the assets of the company in the mine. The Schedule contains a list of the mines which have vested in the Central Government. In order to ascertain exactly what has vested in the Central Government, the definition of mine given in Section 2(h) will have to be taken into account. What the Schedule has done is to give the names and location of the mines, the names and addresses of the owners of the mines and also the amounts of compensation to be paid. It is not in dispute that United Mining Company was named as the owner of Victory coal mine. From this, however, it does not follow that all assets, lands, buildings and equipments which fall within the ambit of the definition of mine as given in Section 2(h) will not vest in the Central Government unless they belong to the Company. If Section 3 is read with Section 2(h) and also Sub-sections (3) and (5) of Section 26, it will be clear that vesting under Section 3 was not confined to the interest of the owner named in column 4 of the Schedule.24. The contention that Section 3 was of limited application and only took away the rights of the owners specified in the Schedule is not borne out of the scheme of the Act and also the wording of Section 3.25. Section 3 of the Act which deals with acquisition of the rights of owners of coal mines in relation to the coal mines, requires to be interpreted in the light of the objects for which the Coal Mines (Nationalisation) Act, 1973 was enacted. As set out in the Preamble, the purpose is reorganizing and reconstructing such coal mines so as to ensure a rational, coordinated and scientific development and utilisation of coal resources. Therefore, all assets required for functioning of coal mines are to be acquired.27. That is why under Section 2(n) and 2(o) read together, the term owner would carry a wider meaning assigned to that term under the Mines Act of 1952 which would cover, depending on the context, even the rights of a lessee or occupier of the mine or any part thereof. Thus the entire interest in the properties which are covered under the definition of a mine is to be acquired so that the mines can be reorganised and run efficiently.28. In this context, therefore, Section 3 refers to the acquisition of the rights of owners in respect of all the properties which are covered by the definition of a mine.29. Regarding those properties which are not of the ownership of the coal mine, it is clear from the definition of mine that only properties which are required for a proper functioning of the mine and which are covered by the definition would be acquired. Any and every property belonging to another person which happens to be on the surface of the mine or adjacent to it is not taken away. Only those properties of another person which fall within the definition of a mine and which are necessary for a proper functioning of the mine are to be taken away. The definition itself takes care of this aspect by stipulating wherever necessary that such properties must be used for the purpose of the mine, whether the purpose is specified or general.31. In the light of the definition of an owner which also includes a lessee or an occupier apart from the immediate proprietor, and the definition of mine, one can conclude that even assets of which the mine or the mining company may not be the proprietor, but which are leased by the mine or which are in the possession of a mine over a period of time, are also acquired. A temporary acquisition, or a short term lease, or even some special additional amenities which the mine may provide but which are not required for the purposes of the mine may not be covered. It will depend upon the facts of each case. In the Madhya Pradesh case, for example, the equipment in question was only temporarily in the possession of the mine to meet certain exigencies. This was held to be not covered by the definition of mine. In the Calcutta case, however, the weigh bridge which was leased by the company was a necessary equipment for the proper functioning of the mine and was installed in the mine for a period of time. It was held as falling within the definition of a mine. Thus it is quite possible that property which is temporarily in or adjacent to a mine, and which does not belong to the mine, or certain machinery and equipment which does not belong to the mining company but may be temporarily leased to meet some special temporary requirements, would not be covered by the definition of a mine. But the present case is not such a case.32. The scheme of payment of compensation also goes to show that apart from the owners named in the Schedule, other persons may have to be compensated. Sections 8 of the Coal Mines (Nationalisation) Act lays down that the owner of every coal mine or group of coal mines specified in the second column of the Schedule shall be given by the Central Government, in cash and in the manner specified in Chapter VI for the vesting in it, under Section 3, of the right, title and interest of the owner in relation to such coal mine or group of coal mines, an account equal to the amount specified against it in the corresponding entry in the fifty column of the Schedule. The Commissioner of payments to be appointed under Section 17 for the purpose of disbursement of the amounts specified in the Schedule has to consider and investigate the claim of every person against the owner and decide the validity of the claim. The Commissioner may transfer the claim for settlement to an authorised person.These provisions clearly go to show that the colliery company named in the 4th column is not the only person who will be paid the compensation money. If plants, machinery and building which come within the definition of mine are not owned by the person named in the 4th column, then the Commissioner will have to satisfy himself as to the right of any other person who owns such plants or machineries or buildings and divide the amount of compensation among such persons and the persons in the 4th column.These provisions clearly go to show that the colliery company named in the 4th column is not the only person who will be paid the compensation money. If plants, machinery and building which come within the definition of mine are not owned by the person named in the 4th column, then the Commissioner will have to satisfy himself as to the right of any other person who owns such plants or machineries or buildings and divide the amount of compensation among such persons and the persons in the 4th column.35. The controversy has been put beyond any doubt by Sub-section (5) of Section 26 which specifically provides for apportionment of the compensation money when any machinery, equipment or other property which does not belong to the owner of the mine has vested in the Central Government. The amount may be apportioned between the person named in the 4th column and the owner of machinery, equipment or other property by a court. All these provisions clearly go to show:(1) Mere mention of the name of the owner of a coal mine in 4th column is not conclusive of its right to get the entire amount of compensation specified in the 5th column.(2) There may be other claimants for the amount. The dispute may be resolved by a court on reference by the Commissioner.(3) Machinery, equipment or other property in a coal mine which does not belong to the owners specified in the 4th column may vest in the Central Government or a Government Company.(4) If such vesting takes place, then the owner of such machinery equipment or property may be compensated out of amounts specified in the 5th column.(5) The claim of such owners as against the owners named in the 4th column may be referred to a court and the compensation money may be apportioned by the court between the owner of the coal mine and the owner of machinery, equipment or other property.36. In the context of Section 3 and also Section 26, the owner has to be understood as owner of a mine in the extended sense given in Section 2(h). The limited definition of the word mine given in the Mines Act, 1952 has not been designedly adopted by the Coal Mines (Nationalisation) Act. All these provisions go to show that it was not only the interest of the owners of the coal mine specified in the fourth column, but also the ownership of all other persons in the properties enumerated in Section 2(h) vested in the Central Government by virtue of the provisions of Section 3 of the Act.37. That means that things which did not belong to the mine owners mentioned in column 4 of the Schedule but fall within Sub-clauses (i) to (xii) of Section 2(h) of the Nationalisation Act will vest in the Central Government free from all encumbrances. If the mine owner had located staff quarters and offices on rented buildings, these will also vest in the Central Government.38. In view of the aforesaid, we hold that the suit premises fall within the ambit of the definition of mine in Section 2(h) of the Coal Mines (Nationalisation) Act, 1973 and as such had vested in the Central Government on the appointed day by virtue of the provision of Section 3 of the Act, even though these premises might not have been in the ownership of the United Mining Company. | 1 | 8,569 | 2,906 | ### 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:
between the owner of the coal mine and such managing contractor, in such proportions as may be agreed upon by or between the owner and such managing contractor, and in the event of there being no such agreement, in such proportions as may be determined by the Court on a reference made to it by the Commissioner. (5) Where any machinery, equipment or other property in a Coal Mine has vested in the Central Government, or a Government company under this Act, but such machinery equipment or other property does not belong to the owner of such coal mine, the amount specified in the fifth column of the Schedule against such coal mine shall, on a reference made to it by the commissioner, be apportioned by the Court between the owner of such coal mine and the owner of such machinery, equipment or other property having due regard to the value of such machinery, equipment or other property on the appointed day. (6) Where the amount specified in the fifty column of the Schedule is relatable to a group of coal mines, the Commissioner shall have power to apportion such amount among the owners of such group, and in making such apportionment, the Commissioner shall have regard to the highest annual production in the coal mine during the three years immediately preceding the appointed day. 34. Sub-section (1) speaks of monies paid to him in relation to a coal mine. The money payable to an owner shall be utilised first to pay to secured and unsecured creditOrs. If any balance is left thereafter, it shall be disbursed to the owners. Sub-section (2) provides that before making any payment to the owner, the Commissioner has further to satisfy himself as to the right of the person to receive the whole or any part of such amount. In other words, merely because the name of a colliery owner is shown in the 4th column as the owner will not enable him to get the entire amount allocated in column 5. Other parties may claim a portion of that amount. In such a situation, the Commissioner has to refer the dispute to the court for decision. For the removal of doubts, Sub-section (3) has declared that the entries in the 4th column of the Schedule shall not be deemed to be conclusive as to the right, title and interest of any person in relation to any coal mine. Any other claimant may adduce evidence to establish his right, title and interest in relation to such coal mine. These provisions clearly go to show that the colliery company named in the 4th column is not the only person who will be paid the compensation money. If plants, machinery and building which come within the definition of mine are not owned by the person named in the 4th column, then the Commissioner will have to satisfy himself as to the right of any other person who owns such plants or machineries or buildings and divide the amount of compensation among such persons and the persons in the 4th column. 35. The controversy has been put beyond any doubt by Sub-section (5) of Section 26 which specifically provides for apportionment of the compensation money when any machinery, equipment or other property which does not belong to the owner of the mine has vested in the Central Government. The amount may be apportioned between the person named in the 4th column and the owner of machinery, equipment or other property by a court. All these provisions clearly go to show: (1) Mere mention of the name of the owner of a coal mine in 4th column is not conclusive of its right to get the entire amount of compensation specified in the 5th column. (2) There may be other claimants for the amount. The dispute may be resolved by a court on reference by the Commissioner. (3) Machinery, equipment or other property in a coal mine which does not belong to the owners specified in the 4th column may vest in the Central Government or a Government Company. (4) If such vesting takes place, then the owner of such machinery equipment or property may be compensated out of amounts specified in the 5th column. (5) The claim of such owners as against the owners named in the 4th column may be referred to a court and the compensation money may be apportioned by the court between the owner of the coal mine and the owner of machinery, equipment or other property. 36. In the context of Section 3 and also Section 26, the owner has to be understood as owner of a mine in the extended sense given in Section 2(h). The limited definition of the word mine given in the Mines Act, 1952 has not been designedly adopted by the Coal Mines (Nationalisation) Act. All these provisions go to show that it was not only the interest of the owners of the coal mine specified in the fourth column, but also the ownership of all other persons in the properties enumerated in Section 2(h) vested in the Central Government by virtue of the provisions of Section 3 of the Act. 37. That means that things which did not belong to the mine owners mentioned in column 4 of the Schedule but fall within Sub-clauses (i) to (xii) of Section 2(h) of the Nationalisation Act will vest in the Central Government free from all encumbrances. If the mine owner had located staff quarters and offices on rented buildings, these will also vest in the Central Government. 38. In view of the aforesaid, we hold that the suit premises fall within the ambit of the definition of mine in Section 2(h) of the Coal Mines (Nationalisation) Act, 1973 and as such had vested in the Central Government on the appointed day by virtue of the provision of Section 3 of the Act, even though these premises might not have been in the ownership of the United Mining Company.
### Response:
1
### Explanation:
required for the purposes of the mine may not be covered. It will depend upon the facts of each case. In the Madhya Pradesh case, for example, the equipment in question was only temporarily in the possession of the mine to meet certain exigencies. This was held to be not covered by the definition of mine. In the Calcutta case, however, the weigh bridge which was leased by the company was a necessary equipment for the proper functioning of the mine and was installed in the mine for a period of time. It was held as falling within the definition of a mine. Thus it is quite possible that property which is temporarily in or adjacent to a mine, and which does not belong to the mine, or certain machinery and equipment which does not belong to the mining company but may be temporarily leased to meet some special temporary requirements, would not be covered by the definition of a mine. But the present case is not such a case.32. The scheme of payment of compensation also goes to show that apart from the owners named in the Schedule, other persons may have to be compensated. Sections 8 of the Coal Mines (Nationalisation) Act lays down that the owner of every coal mine or group of coal mines specified in the second column of the Schedule shall be given by the Central Government, in cash and in the manner specified in Chapter VI for the vesting in it, under Section 3, of the right, title and interest of the owner in relation to such coal mine or group of coal mines, an account equal to the amount specified against it in the corresponding entry in the fifty column of the Schedule. The Commissioner of payments to be appointed under Section 17 for the purpose of disbursement of the amounts specified in the Schedule has to consider and investigate the claim of every person against the owner and decide the validity of the claim. The Commissioner may transfer the claim for settlement to an authorised person.These provisions clearly go to show that the colliery company named in the 4th column is not the only person who will be paid the compensation money. If plants, machinery and building which come within the definition of mine are not owned by the person named in the 4th column, then the Commissioner will have to satisfy himself as to the right of any other person who owns such plants or machineries or buildings and divide the amount of compensation among such persons and the persons in the 4th column.These provisions clearly go to show that the colliery company named in the 4th column is not the only person who will be paid the compensation money. If plants, machinery and building which come within the definition of mine are not owned by the person named in the 4th column, then the Commissioner will have to satisfy himself as to the right of any other person who owns such plants or machineries or buildings and divide the amount of compensation among such persons and the persons in the 4th column.35. The controversy has been put beyond any doubt by Sub-section (5) of Section 26 which specifically provides for apportionment of the compensation money when any machinery, equipment or other property which does not belong to the owner of the mine has vested in the Central Government. The amount may be apportioned between the person named in the 4th column and the owner of machinery, equipment or other property by a court. All these provisions clearly go to show:(1) Mere mention of the name of the owner of a coal mine in 4th column is not conclusive of its right to get the entire amount of compensation specified in the 5th column.(2) There may be other claimants for the amount. The dispute may be resolved by a court on reference by the Commissioner.(3) Machinery, equipment or other property in a coal mine which does not belong to the owners specified in the 4th column may vest in the Central Government or a Government Company.(4) If such vesting takes place, then the owner of such machinery equipment or property may be compensated out of amounts specified in the 5th column.(5) The claim of such owners as against the owners named in the 4th column may be referred to a court and the compensation money may be apportioned by the court between the owner of the coal mine and the owner of machinery, equipment or other property.36. In the context of Section 3 and also Section 26, the owner has to be understood as owner of a mine in the extended sense given in Section 2(h). The limited definition of the word mine given in the Mines Act, 1952 has not been designedly adopted by the Coal Mines (Nationalisation) Act. All these provisions go to show that it was not only the interest of the owners of the coal mine specified in the fourth column, but also the ownership of all other persons in the properties enumerated in Section 2(h) vested in the Central Government by virtue of the provisions of Section 3 of the Act.37. That means that things which did not belong to the mine owners mentioned in column 4 of the Schedule but fall within Sub-clauses (i) to (xii) of Section 2(h) of the Nationalisation Act will vest in the Central Government free from all encumbrances. If the mine owner had located staff quarters and offices on rented buildings, these will also vest in the Central Government.38. In view of the aforesaid, we hold that the suit premises fall within the ambit of the definition of mine in Section 2(h) of the Coal Mines (Nationalisation) Act, 1973 and as such had vested in the Central Government on the appointed day by virtue of the provision of Section 3 of the Act, even though these premises might not have been in the ownership of the United Mining Company.
|
M/s. Grid Corporation of Orissa Ltd Vs. M/s AES Corporation & Others | third arbitrator cannot be said to be a judicial act. In the Constitution Bench decision of this Court in Konkan Railway (supra) the principles laid down in Jaswant Sugar Mills Ltd. (supra) have been reiterated and it has been held that the appointment of an arbitrator by the Chief Justice under Section 11(6) of the Act is not an adjudicatory order and cannot be said to be discharging of a judicial function. That being so, the appointment of the third arbitrator by two arbitrators can certainly not be a judicial act. Shri P. Chidambarm, the learned senior counsel further referred to the provisions contained in Section 7(3), 7(4)(a), 12(1), 12(2), 31(1) of the Act and submitted that the Legislature has taken care to use the word writing or in writing wherever it intended any act or function to be performed in writing but the Legislature has not chosen to engraft the requirement of writing into Section 11(3), and therefore, by process of interpretation or by attributing an intention to Legislature which the legislative drafting does not, the requirement of the appointment of third arbitrator by the two arbitrators being necessarily in writing cannot be spelled out. There is substance in the submission so made.23. In my opinion, it is not necessary within the meaning of Section 11(3) that the presiding arbitrator must be appointed by the two appointed arbitrators in writing nor it is necessary that the two appointed arbitrators must necessarily sit at one place, deliberate jointly and take a decision the presence of each other in regard to the appointment of the presiding arbitrator. It it enough if they have actually consulted or conferred with each other and if both or any of them communicates to the parties the appointment of the presiding arbitrator as having taken place by the joint deliberation of the two. It is clearly spelled out from the correspondence between the two arbitrators reproduced hereinabove that the two arbitrator had agreed on principle that the third arbitrator shall be of a nationality different from the one to which either of the parties belongs. They had also agreed upon the appointment of Mr. Williams. the communication of such appointment though made by Mr. donovan is on behalf of himself and Mr. Verma. The correctness of such consultation having preceded the appointment is not doubted in the correspondence and has also no been disputed by the learned senior counsel for the petitioners during the course of hearing. Mr. Vermas protest to appointment of Mr. Williams was based on re-consideration of the issue, that is, on second thoughts. The practice adopted by the two arbitrators is consistent with the practice of International Commercial Arbitration and conducive to the convenience of the parties and also saves them from avoidable expenditure. When an effective consultation can be achieved by resort to electronic media and remote conferencing it is not necessary that the two persons required to act in consultation with each other must necessarily sit together at one place unless it is the requirement of law or of the ruling contract between the parties. The appointment need not necessarily be by a writing signed by the two arbitrators; it satisfies the requirement of law if the appointment (i) has been actually made, (ii) is preceded by such consultation as to amount to appointment by the two, and (iii) is communicated. It is not essential to the validity of the appointment that the parties should be consulted, or involved in the process of appointment or given a previous notice of the proposed appointment. 24. The next question is : whether it can be said that Mr. K.B. Verma while agreeing for appointment of Mr. Williams as third arbitrator was under a mistake as to Indian law, and if so, ten it effect? Shri G.L. Sanghi, the learned senior counsel, referred to the order passed by M. Jagannadha Rao, J. acting as designate of the Chief Justice deciding an application under Section 11(5) of the Act in Malaysian Airlines Systems BHD (II) Vs. M/s Stic Travels (P) Ltd. 2000 (7) SCALE 724 . Vide paras 26 and 28, His Lordship has held that Section 11(9) of the Act is not mandatory and the word may therein cannot be read as shall and to appoint an arbitrator not belonging to the nationality of either of the parties is not mandatory. T here is no quarrel with the abovesaid proposition. Yet, there is noting wrong in the two arbitrators having formed an opinion in consultation with each other that a person of third nationality would be preferable as presiding arbitrator. The submission based on "mistake of law" doctrine is unwarranted and besides the point. 25. In Konkan Railway Corporation Ltd. and Ors. (supra) it has been held (vide para 21)that in spite of an appointment having been made by the Chief Justice or his designate an objection as to the constitution of the arbitral tribunal being improper or without jurisdiction is capable of being raised before the arbitral tribunal itself under Section 16 of the Act, for an objection not only as to the width of jurisdiction but also one going to the very root of its jurisdiction is entertained by the arbitral tribunal under Section 16. That being so assuming without holding that there is any substance in the plea of the petitioners it is open for them to raise the same before the arbitral tribunal. Once the arbitral tribunal has come into existence, as it has - in my opinion in the facts and circumstances of the case, a petition under Section 11 (6) of the Act is not an appropriate remedy which the petitioners have chosen. None of the grounds contemplated by clauses (a), (b) and (c) of sub-section (6) of Section 11 exists. There is no deficiency in the constitution of the arbitral tribunal attributable to any of the parties or the arbitrators. There is no occasion for filing a request petition under Section 11(6) of the Act. 26. | 0[ds]Primarily it is for the parties to agree upon a procedure for appointing the arbitrator or arbitrators. Failing such agreement,(3) of the Section 11 of the Act provides that in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. The law nowhere contemplates such appointment being necessarily in writing. The requirement of the law is that there should be an appointment and the appointment should be by the two appointedbeing so, the appointment of the third arbitrator by two arbitrators can certainly not be a judicial act. Shri P. Chidambarm, the learned senior counsel further referred to the provisions contained in Section 7(3), 7(4)(a), 12(1), 12(2), 31(1) of the Act and submitted that the Legislature has taken care to use the word writing or in writing wherever it intended any act or function to be performed in writing but the Legislature has not chosen to engraft the requirement of writing into Section 11(3), and therefore, by process of interpretation or by attributing an intention to Legislature which the legislative drafting does not, the requirement of the appointment of third arbitrator by the two arbitrators being necessarily in writing cannot be spelled out. There is substance in the submission so made.23. In my opinion, it is not necessary within the meaning of Section 11(3) that the presiding arbitrator must be appointed by the two appointed arbitrators in writing nor it is necessary that the two appointed arbitrators must necessarily sit at one place, deliberate jointly and take a decision the presence of each other in regard to the appointment of the presiding arbitrator. It it enough if they have actually consulted or conferred with each other and if both or any of them communicates to the parties the appointment of the presiding arbitrator as having taken place by the joint deliberation of the two. It is clearly spelled out from the correspondence between the two arbitrators reproduced hereinabove that the two arbitrator had agreed on principle that the third arbitrator shall be of a nationality different from the one to which either of the parties belongs. They had also agreed upon the appointment of Mr. Williams. the communication of such appointment though made by Mr. donovan is on behalf of himself and Mr. Verma. The correctness of such consultation having preceded the appointment is not doubted in the correspondence and has also no been disputed by the learned senior counsel for the petitioners during the course of hearing. Mr. Vermas protest to appointment of Mr. Williams was based onof the issue, that is, on second thoughts. The practice adopted by the two arbitrators is consistent with the practice of International Commercial Arbitration and conducive to the convenience of the parties and also saves them from avoidable expenditure. When an effective consultation can be achieved by resort to electronic media and remote conferencing it is not necessary that the two persons required to act in consultation with each other must necessarily sit together at one place unless it is the requirement of law or of the ruling contract between the parties. The appointment need not necessarily be by a writing signed by the two arbitrators; it satisfies the requirement of law if the appointment (i) has been actually made, (ii) is preceded by such consultation as to amount to appointment by the two, and (iii) is communicated. It is not essential to the validity of the appointment that the parties should be consulted, or involved in the process of appointment or given a previous notice of the proposedG.L. Sanghi, the learned senior counsel, referred to the order passed by M. Jagannadha Rao, J. acting as designate of the Chief Justice deciding an application under Section 11(5) of the Act in Malaysian Airlines Systems BHD (II) Vs. M/s Stic Travels (P) Ltd. 2000 (7) SCALE 724 . Vide paras 26 and 28, His Lordship has held that Section 11(9) of the Act is not mandatory and the word may therein cannot be read as shall and to appoint an arbitrator not belonging to the nationality of either of the parties is not mandatory. T here is no quarrel with the abovesaid proposition. Yet, there is noting wrong in the two arbitrators having formed an opinion in consultation with each other that a person of third nationality would be preferable as presiding arbitrator. The submission based on "mistake of law" doctrine is unwarranted and besides thebeing so assuming without holding that there is any substance in the plea of the petitioners it is open for them to raise the same before the arbitral tribunal. Once the arbitral tribunal has come into existence, as it hasin my opinion in the facts and circumstances of the case, a petition under Section 11 (6) of the Act is not an appropriate remedy which the petitioners have chosen. None of the grounds contemplated by clauses (a), (b) and (c) of(6) of Section 11 exists. There is no deficiency in the constitution of the arbitral tribunal attributable to any of the parties or the arbitrators. There is no occasion for filing a request petition under Section 11(6) of the Act. | 0 | 4,610 | 990 | ### 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:
third arbitrator cannot be said to be a judicial act. In the Constitution Bench decision of this Court in Konkan Railway (supra) the principles laid down in Jaswant Sugar Mills Ltd. (supra) have been reiterated and it has been held that the appointment of an arbitrator by the Chief Justice under Section 11(6) of the Act is not an adjudicatory order and cannot be said to be discharging of a judicial function. That being so, the appointment of the third arbitrator by two arbitrators can certainly not be a judicial act. Shri P. Chidambarm, the learned senior counsel further referred to the provisions contained in Section 7(3), 7(4)(a), 12(1), 12(2), 31(1) of the Act and submitted that the Legislature has taken care to use the word writing or in writing wherever it intended any act or function to be performed in writing but the Legislature has not chosen to engraft the requirement of writing into Section 11(3), and therefore, by process of interpretation or by attributing an intention to Legislature which the legislative drafting does not, the requirement of the appointment of third arbitrator by the two arbitrators being necessarily in writing cannot be spelled out. There is substance in the submission so made.23. In my opinion, it is not necessary within the meaning of Section 11(3) that the presiding arbitrator must be appointed by the two appointed arbitrators in writing nor it is necessary that the two appointed arbitrators must necessarily sit at one place, deliberate jointly and take a decision the presence of each other in regard to the appointment of the presiding arbitrator. It it enough if they have actually consulted or conferred with each other and if both or any of them communicates to the parties the appointment of the presiding arbitrator as having taken place by the joint deliberation of the two. It is clearly spelled out from the correspondence between the two arbitrators reproduced hereinabove that the two arbitrator had agreed on principle that the third arbitrator shall be of a nationality different from the one to which either of the parties belongs. They had also agreed upon the appointment of Mr. Williams. the communication of such appointment though made by Mr. donovan is on behalf of himself and Mr. Verma. The correctness of such consultation having preceded the appointment is not doubted in the correspondence and has also no been disputed by the learned senior counsel for the petitioners during the course of hearing. Mr. Vermas protest to appointment of Mr. Williams was based on re-consideration of the issue, that is, on second thoughts. The practice adopted by the two arbitrators is consistent with the practice of International Commercial Arbitration and conducive to the convenience of the parties and also saves them from avoidable expenditure. When an effective consultation can be achieved by resort to electronic media and remote conferencing it is not necessary that the two persons required to act in consultation with each other must necessarily sit together at one place unless it is the requirement of law or of the ruling contract between the parties. The appointment need not necessarily be by a writing signed by the two arbitrators; it satisfies the requirement of law if the appointment (i) has been actually made, (ii) is preceded by such consultation as to amount to appointment by the two, and (iii) is communicated. It is not essential to the validity of the appointment that the parties should be consulted, or involved in the process of appointment or given a previous notice of the proposed appointment. 24. The next question is : whether it can be said that Mr. K.B. Verma while agreeing for appointment of Mr. Williams as third arbitrator was under a mistake as to Indian law, and if so, ten it effect? Shri G.L. Sanghi, the learned senior counsel, referred to the order passed by M. Jagannadha Rao, J. acting as designate of the Chief Justice deciding an application under Section 11(5) of the Act in Malaysian Airlines Systems BHD (II) Vs. M/s Stic Travels (P) Ltd. 2000 (7) SCALE 724 . Vide paras 26 and 28, His Lordship has held that Section 11(9) of the Act is not mandatory and the word may therein cannot be read as shall and to appoint an arbitrator not belonging to the nationality of either of the parties is not mandatory. T here is no quarrel with the abovesaid proposition. Yet, there is noting wrong in the two arbitrators having formed an opinion in consultation with each other that a person of third nationality would be preferable as presiding arbitrator. The submission based on "mistake of law" doctrine is unwarranted and besides the point. 25. In Konkan Railway Corporation Ltd. and Ors. (supra) it has been held (vide para 21)that in spite of an appointment having been made by the Chief Justice or his designate an objection as to the constitution of the arbitral tribunal being improper or without jurisdiction is capable of being raised before the arbitral tribunal itself under Section 16 of the Act, for an objection not only as to the width of jurisdiction but also one going to the very root of its jurisdiction is entertained by the arbitral tribunal under Section 16. That being so assuming without holding that there is any substance in the plea of the petitioners it is open for them to raise the same before the arbitral tribunal. Once the arbitral tribunal has come into existence, as it has - in my opinion in the facts and circumstances of the case, a petition under Section 11 (6) of the Act is not an appropriate remedy which the petitioners have chosen. None of the grounds contemplated by clauses (a), (b) and (c) of sub-section (6) of Section 11 exists. There is no deficiency in the constitution of the arbitral tribunal attributable to any of the parties or the arbitrators. There is no occasion for filing a request petition under Section 11(6) of the Act. 26.
### Response:
0
### Explanation:
Primarily it is for the parties to agree upon a procedure for appointing the arbitrator or arbitrators. Failing such agreement,(3) of the Section 11 of the Act provides that in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. The law nowhere contemplates such appointment being necessarily in writing. The requirement of the law is that there should be an appointment and the appointment should be by the two appointedbeing so, the appointment of the third arbitrator by two arbitrators can certainly not be a judicial act. Shri P. Chidambarm, the learned senior counsel further referred to the provisions contained in Section 7(3), 7(4)(a), 12(1), 12(2), 31(1) of the Act and submitted that the Legislature has taken care to use the word writing or in writing wherever it intended any act or function to be performed in writing but the Legislature has not chosen to engraft the requirement of writing into Section 11(3), and therefore, by process of interpretation or by attributing an intention to Legislature which the legislative drafting does not, the requirement of the appointment of third arbitrator by the two arbitrators being necessarily in writing cannot be spelled out. There is substance in the submission so made.23. In my opinion, it is not necessary within the meaning of Section 11(3) that the presiding arbitrator must be appointed by the two appointed arbitrators in writing nor it is necessary that the two appointed arbitrators must necessarily sit at one place, deliberate jointly and take a decision the presence of each other in regard to the appointment of the presiding arbitrator. It it enough if they have actually consulted or conferred with each other and if both or any of them communicates to the parties the appointment of the presiding arbitrator as having taken place by the joint deliberation of the two. It is clearly spelled out from the correspondence between the two arbitrators reproduced hereinabove that the two arbitrator had agreed on principle that the third arbitrator shall be of a nationality different from the one to which either of the parties belongs. They had also agreed upon the appointment of Mr. Williams. the communication of such appointment though made by Mr. donovan is on behalf of himself and Mr. Verma. The correctness of such consultation having preceded the appointment is not doubted in the correspondence and has also no been disputed by the learned senior counsel for the petitioners during the course of hearing. Mr. Vermas protest to appointment of Mr. Williams was based onof the issue, that is, on second thoughts. The practice adopted by the two arbitrators is consistent with the practice of International Commercial Arbitration and conducive to the convenience of the parties and also saves them from avoidable expenditure. When an effective consultation can be achieved by resort to electronic media and remote conferencing it is not necessary that the two persons required to act in consultation with each other must necessarily sit together at one place unless it is the requirement of law or of the ruling contract between the parties. The appointment need not necessarily be by a writing signed by the two arbitrators; it satisfies the requirement of law if the appointment (i) has been actually made, (ii) is preceded by such consultation as to amount to appointment by the two, and (iii) is communicated. It is not essential to the validity of the appointment that the parties should be consulted, or involved in the process of appointment or given a previous notice of the proposedG.L. Sanghi, the learned senior counsel, referred to the order passed by M. Jagannadha Rao, J. acting as designate of the Chief Justice deciding an application under Section 11(5) of the Act in Malaysian Airlines Systems BHD (II) Vs. M/s Stic Travels (P) Ltd. 2000 (7) SCALE 724 . Vide paras 26 and 28, His Lordship has held that Section 11(9) of the Act is not mandatory and the word may therein cannot be read as shall and to appoint an arbitrator not belonging to the nationality of either of the parties is not mandatory. T here is no quarrel with the abovesaid proposition. Yet, there is noting wrong in the two arbitrators having formed an opinion in consultation with each other that a person of third nationality would be preferable as presiding arbitrator. The submission based on "mistake of law" doctrine is unwarranted and besides thebeing so assuming without holding that there is any substance in the plea of the petitioners it is open for them to raise the same before the arbitral tribunal. Once the arbitral tribunal has come into existence, as it hasin my opinion in the facts and circumstances of the case, a petition under Section 11 (6) of the Act is not an appropriate remedy which the petitioners have chosen. None of the grounds contemplated by clauses (a), (b) and (c) of(6) of Section 11 exists. There is no deficiency in the constitution of the arbitral tribunal attributable to any of the parties or the arbitrators. There is no occasion for filing a request petition under Section 11(6) of the Act.
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M/S. Sitalpur Sugar Works Ltd Vs. Commissioner Of Income-Tax, Bihar And Orissa | old to the new yard and for re-erecting the cranes in the latter yard. It was held that the Company was not entitled to a deduction for these expenses. It was said that the expenses were of the same kind as those which might have been incurred in the buying of new cranes. Lord MacLaren said (p. 17IL "I think that the cost of transferring plant from one set of premises to another more commodious set of premises is not an expense incurred for the year in which the thing is done, but for the general interests of the business. It is said, no doubt, that this transference does not add to the capital value of the plant, but I think that is not the criterion." Lord MacLarens observation is completely against the view advocated by Mr. Pathak that to constitute an enduring benefit a material asset or a right must be created.6. The above case, furthermore, is indistinguishable from the case in hand. Mr. Pathak sought to distinguish the present case from the Granite Supply Association Ltd. case ((1905) 5 T.C. 168.), on the ground that there the business was not running at a loss in the old yard and the expenses were incurred only to enlarge the business and hence were on capital account. We find it difficult to. appreciate this distinction. Whether an expense is on capital account or not would not depend on whether it was incurred for earning larger profits than before nor would an expenditure be on revenue account because it was incurred for turning a losing concern into a profitable one.The other case to which we will refer is Bean v. Doncaster Amalgamated Collieries Ltd.((1946) 27 T.C. 296, ). The Colliery Company was required by a statute to incur expenses for remedial works necessary to obviate loss of efficiency in an existing drainage system due to subsidence caused by the Companys workings. The Drainage Board formed a general drainage improvement scheme and the Company paid a part of the expenses of the new drainage constructed under the scheme. As a result of the new drainage the Company was enabled to work its seams without incurring the liability under the statute as the new drainage system had been so constructed as to remain unaffected by the Companys workings. It was contended by the company that the payment for the new drainage was a revenue expenditure as it had not resulted in the acquisition of any-capital asset, but this contention was rejected and it was held that the expenditure was on capital account and no deduction for it was allowable. Viscount Simon said (p. 312), that the expenses had been incurred "to secure an enduring advantage within the proper application of Lord Caves phrase in Atherton v. British Insulated and Helsby Cables Ltd. (10 T.C. 155, at page 192)". He also quoted (p.312) with approval the observation of Uthwatt J. in the Court of Appeal that, "The result of the transaction clearly was that the value of the particular coal measures--a capital asset remaining unchanged in character--was increased both for use and exchange. There was, therefore, as the result of the transaction, brought into existence, not indeed an asset, but an advantage for the enduring benefit of the trade of the Company." Obviously, therefore, there can be an enduring advantage acquired without an addition to or increase in the value of any capital asset.It is no doubt true that the distinction between revenue expenditure and expenditure on capital is very fine and often it is difficult to decide under which class an expenditure properly falls. No such difficulty, however, arises in the present ease. We think, for the reasons earlier mentioned, that the present is a plain ease and we feel no doubt that the expenses for shifting and re-erection were incurred on capital account. The first question referred was clearly correctly answered by the High Court.7. The appellants ease is even weaker with regard to the other question which was this: "Whether the assessee was entitled to claim depreciation on the said expenditure of Rs. 3, 19, 766/-?"8. This question was raised presumably on the basis that if in respect of the first question it was held that the expenditure was on capital account, then depreciation should be payable on the amount of the expenditure in the same way as depreciation is allowed on capital. The claim for depreciation was made under s. 10 (2) (vi) of the Income- tax Act. But as the High Court rightly pointed out, no such depreciation could be claimed because no tangible asset had been acquired by the expenditure which could be said to have depreciated.9. Mr. Pathak, therefore, put the case of the appellant from a slightly different point of view. He referred us to Part V of the Form of Return given in the Rules framed under the Act. That Part deals with a claim for depreciation. Column 3 of this Part requires a statement to be made for "Capital expenditure during the year for additions, alternations, improvements and extensions". Mr. Pathak contended that this Part showed that depreciation is allowable on capital expenditure for improvements, and that in view of our answer to question No. 1. the appellant would be entitled to depreciation on the expense as capital expenses incurred for improvement. This is an obviously fallacious argument. In order to be entitled to deduction on account of depreciation under this Part of the Form, there has to be an improvement of the capital asset, an increase in its value. All that we have here is an expense incurred for acquiring an advantage for the trade. That may or may not be an improvement in the capital assets. The appellant cannot claim depreciation on the amount spent for acquiring an advantage. Whether it could claim depreciation on improvements effected to capital assets is not a question referred to the Court. The second question, therefore, was also correctly answered in the negative by the High Court. | 0[ds]We think, for the reasons earlier mentioned, that the present is a plain ease and we feel no doubt that the expenses for shifting and re-erection were incurred on capital account. The first question referred was clearly correctly answered by the Highappellants ease is even weaker with regard to the other question which was this: "Whether the assessee was entitled to claim depreciation on the said expenditure of Rs. 3, 19,question was raised presumably on the basis that if in respect of the first question it was held that the expenditure was on capital account, then depreciation should be payable on the amount of the expenditure in the same way as depreciation is allowed on capital. The claim for depreciation was made under s. 10 (2) (vi) of the Income- tax Act. But as the High Court rightly pointed out, no such depreciation could be claimed because no tangible asset had been acquired by the expenditure which could be said to have depreciated.Pathak, therefore, put the case of the appellant from a slightly different point of view. He referred us to Part V of the Form of Return given in the Rules framed under the Act. That Part deals with a claim for depreciation. Column 3 of this Part requires a statement to be made for "Capital expenditure during the year for additions, alternations, improvements and extensions". Mr. Pathak contended that this Part showed that depreciation is allowable on capital expenditure for improvements, and that in view of our answer to question No. 1. the appellant would be entitled to depreciation on the expense as capital expenses incurred for improvement. This is an obviously fallacious argument. In order to be entitled to deduction on account of depreciation under this Part of the Form, there has to be an improvement of the capital asset, an increase in its value. All that we have here is an expense incurred for acquiring an advantage for the trade. That may or may not be an improvement in the capital assets. The appellant cannot claim depreciation on the amount spent for acquiring an advantage. Whether it could claim depreciation on improvements effected to capital assets is not a question referred to the Court. The second question, therefore, was also correctly answered in the negative by the High Court. | 0 | 2,112 | 429 | ### Instruction:
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old to the new yard and for re-erecting the cranes in the latter yard. It was held that the Company was not entitled to a deduction for these expenses. It was said that the expenses were of the same kind as those which might have been incurred in the buying of new cranes. Lord MacLaren said (p. 17IL "I think that the cost of transferring plant from one set of premises to another more commodious set of premises is not an expense incurred for the year in which the thing is done, but for the general interests of the business. It is said, no doubt, that this transference does not add to the capital value of the plant, but I think that is not the criterion." Lord MacLarens observation is completely against the view advocated by Mr. Pathak that to constitute an enduring benefit a material asset or a right must be created.6. The above case, furthermore, is indistinguishable from the case in hand. Mr. Pathak sought to distinguish the present case from the Granite Supply Association Ltd. case ((1905) 5 T.C. 168.), on the ground that there the business was not running at a loss in the old yard and the expenses were incurred only to enlarge the business and hence were on capital account. We find it difficult to. appreciate this distinction. Whether an expense is on capital account or not would not depend on whether it was incurred for earning larger profits than before nor would an expenditure be on revenue account because it was incurred for turning a losing concern into a profitable one.The other case to which we will refer is Bean v. Doncaster Amalgamated Collieries Ltd.((1946) 27 T.C. 296, ). The Colliery Company was required by a statute to incur expenses for remedial works necessary to obviate loss of efficiency in an existing drainage system due to subsidence caused by the Companys workings. The Drainage Board formed a general drainage improvement scheme and the Company paid a part of the expenses of the new drainage constructed under the scheme. As a result of the new drainage the Company was enabled to work its seams without incurring the liability under the statute as the new drainage system had been so constructed as to remain unaffected by the Companys workings. It was contended by the company that the payment for the new drainage was a revenue expenditure as it had not resulted in the acquisition of any-capital asset, but this contention was rejected and it was held that the expenditure was on capital account and no deduction for it was allowable. Viscount Simon said (p. 312), that the expenses had been incurred "to secure an enduring advantage within the proper application of Lord Caves phrase in Atherton v. British Insulated and Helsby Cables Ltd. (10 T.C. 155, at page 192)". He also quoted (p.312) with approval the observation of Uthwatt J. in the Court of Appeal that, "The result of the transaction clearly was that the value of the particular coal measures--a capital asset remaining unchanged in character--was increased both for use and exchange. There was, therefore, as the result of the transaction, brought into existence, not indeed an asset, but an advantage for the enduring benefit of the trade of the Company." Obviously, therefore, there can be an enduring advantage acquired without an addition to or increase in the value of any capital asset.It is no doubt true that the distinction between revenue expenditure and expenditure on capital is very fine and often it is difficult to decide under which class an expenditure properly falls. No such difficulty, however, arises in the present ease. We think, for the reasons earlier mentioned, that the present is a plain ease and we feel no doubt that the expenses for shifting and re-erection were incurred on capital account. The first question referred was clearly correctly answered by the High Court.7. The appellants ease is even weaker with regard to the other question which was this: "Whether the assessee was entitled to claim depreciation on the said expenditure of Rs. 3, 19, 766/-?"8. This question was raised presumably on the basis that if in respect of the first question it was held that the expenditure was on capital account, then depreciation should be payable on the amount of the expenditure in the same way as depreciation is allowed on capital. The claim for depreciation was made under s. 10 (2) (vi) of the Income- tax Act. But as the High Court rightly pointed out, no such depreciation could be claimed because no tangible asset had been acquired by the expenditure which could be said to have depreciated.9. Mr. Pathak, therefore, put the case of the appellant from a slightly different point of view. He referred us to Part V of the Form of Return given in the Rules framed under the Act. That Part deals with a claim for depreciation. Column 3 of this Part requires a statement to be made for "Capital expenditure during the year for additions, alternations, improvements and extensions". Mr. Pathak contended that this Part showed that depreciation is allowable on capital expenditure for improvements, and that in view of our answer to question No. 1. the appellant would be entitled to depreciation on the expense as capital expenses incurred for improvement. This is an obviously fallacious argument. In order to be entitled to deduction on account of depreciation under this Part of the Form, there has to be an improvement of the capital asset, an increase in its value. All that we have here is an expense incurred for acquiring an advantage for the trade. That may or may not be an improvement in the capital assets. The appellant cannot claim depreciation on the amount spent for acquiring an advantage. Whether it could claim depreciation on improvements effected to capital assets is not a question referred to the Court. The second question, therefore, was also correctly answered in the negative by the High Court.
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We think, for the reasons earlier mentioned, that the present is a plain ease and we feel no doubt that the expenses for shifting and re-erection were incurred on capital account. The first question referred was clearly correctly answered by the Highappellants ease is even weaker with regard to the other question which was this: "Whether the assessee was entitled to claim depreciation on the said expenditure of Rs. 3, 19,question was raised presumably on the basis that if in respect of the first question it was held that the expenditure was on capital account, then depreciation should be payable on the amount of the expenditure in the same way as depreciation is allowed on capital. The claim for depreciation was made under s. 10 (2) (vi) of the Income- tax Act. But as the High Court rightly pointed out, no such depreciation could be claimed because no tangible asset had been acquired by the expenditure which could be said to have depreciated.Pathak, therefore, put the case of the appellant from a slightly different point of view. He referred us to Part V of the Form of Return given in the Rules framed under the Act. That Part deals with a claim for depreciation. Column 3 of this Part requires a statement to be made for "Capital expenditure during the year for additions, alternations, improvements and extensions". Mr. Pathak contended that this Part showed that depreciation is allowable on capital expenditure for improvements, and that in view of our answer to question No. 1. the appellant would be entitled to depreciation on the expense as capital expenses incurred for improvement. This is an obviously fallacious argument. In order to be entitled to deduction on account of depreciation under this Part of the Form, there has to be an improvement of the capital asset, an increase in its value. All that we have here is an expense incurred for acquiring an advantage for the trade. That may or may not be an improvement in the capital assets. The appellant cannot claim depreciation on the amount spent for acquiring an advantage. Whether it could claim depreciation on improvements effected to capital assets is not a question referred to the Court. The second question, therefore, was also correctly answered in the negative by the High Court.
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V. KALYANASWAMY (D) BY LRS. Vs. L. BAKTHAVATSALAM (D) THR. LRS. | facts of this case in view of the finding that the properties bequeathed under the Will and which are the plaint scheduled properties are not the separate properties of Rangaswamy Naidu, She would have the right to the properties under Section 3(2) of the 1937 Act. This we observe for the reason that when the Hindu Succession Act came into force, R. Krishnammal had lost her tussle under the proceedings under Section 145 of the CrPC. We have also seen the nature of the pleading which she made in O.S. No. 71 of 1958. She specifically states it that she is entitled to recover possession of the property. No doubt, she does aver that she is entitled to treat herself as in joint possession. We may however notice the decision in Kotturuswami case (supra), in fact, came to be considered by another three Judge Bench of this Court in Mangal Singh and Others v. Smt. Rattno (Dead) by her legal representatives and another reported in AIR 1967 SC 1786 . Therein, this Court held as follows:- It was urged on behalf of the appellants that, in order to attract the provisions of S.14(1) of the Act, it must be shown that the female Hindu was either in actual physical possession, or constructive possession of the disputed property. On the other side, it was urged that even if a female Hindu be, in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights in that property still exist and, in exercise of those ownership rights, she is capable of obtaining actual possession of it. It appears to us that, on the language used in S.14(1) of the Act, the latter interpretation must be accepted. Noticing Section 14 (1) of the Act and that it covered property possessed by a female Hindu whether acquired before or after the commencement of the Act the Court proceeded to explain the circumstances in which the decision in Kotturuswami case (supra) was rendered. And thereafter the Court laid down as follows: …The Court was not laying down any general principle that S.14(1) will not be attracted at all to cases where the female Hindu was not possessed of the property at the date of the commencement of the Act. In fact, there are no words used in S.14(1) which would lead to the interpretation that the property must be possessed by the female Hindu at the date of the commencement of the Act. It appears to us that the relevant date on which the female Hindu should be possessed of the property in dispute, must be the date on which the question of applying the provisions of S.14(1) arises. If, on that date, when the provisions of this Section are sought to be applied, the property is possessed by a female Hindu, it would be held that she is full owner of it and not merely a limited owner. Such a question may arise in her own lifetime, or may arise subsequently when succession to her property opens on her death. The case before us falls in the second category, because Smt. Harnam Kaur was a limited owner of the property before the commencement of the Act, and the question that has arisen is whether Smt. Rattno was entitled to succeed to her rights in this disputed property on her death which took place in the year 1958 after the commencement of the Act…. In fact, we notice that this decision was not referred to by the two Judge Bench which rendered the decision in Sadhu Singh (supra). However, we find that it has been adverted to in AIR 1996 SC 172 (see para 14) and a very recent judgment of this Court in Shyam Narayan Sigh and Ors. vs. Rama Kant Singh and Ors. reported in 2018(1) RCR (Civil)981 rendered again by a Bench of two learned Judges. Therein, this Court held inter alia as follows: In other words, all that has to be shown by her is that she had acquired the property and that she was possessed of the property at the point of time when her title was called into question. In view of the dicta in Mangal Singh (supra), we feel reassured of our view that Section 14(1) applies. 174. Incidentally, we may notice what DW1, the witness on behalf of the appellants-legatees himself says: ..When Cr.PC 145 proceedings was conducted the properties were handed over to Latchumaiah and his sons by the receiver. From that onwards the properties are under their possession till today. We never being in the possession of the properties. CIVIL APPEAL NOS. 1045-1050 of 2013 175. The appellants claim on the basis of sale deeds executed by A. Alagiriswami, who is the First Defendant in both the Suits. The case, which is sought to be set- up is that, there was a partition among the Legatees of the plaint schedule properties and the properties purchased by them, was among the properties allotted to the First Defendant. Their entire case is based on A. Alagiriswami having rights in the property. We have already come to the conclusion that A. Alagiriswami has no rights, for the reasons which we have given. The arguments based on the compromise Decree in O.S. No. 71 of 1958, barring the Lakshmiah branch from questioning the partition or the Will, cannot be upheld. Insofar as we have held that R. Krishnammal had become the absolute owner under Section 14(1) of the Hindu Succession Act, and having regard to the compromise Decree in O.S. No. 71 of 1958 by which she had given-up all her rights in favour of the respondents, no right vested with A. Alagiriswami which he could have passed to the appellants. The plaintiffs in O.S. No. 649 of 1985, having sought a declaration of their right, and which they were entitled to. The contention that there was no challenge to the sale deeds, may not advance the case of the appellants. | 0[ds]44. The property in dispute, in both the Suits, is the same. In the Will dated 10.05.1955, there were sixteen items. In O.S. No. 71 of 1958, R. Krishnammal was conferred with absolute rights in respect of seven items. The property involved in O.S. No. 36 of 1963 also related to the seven items, which figured in compromise Decree in O.S. No. 71 of 1958, wherein R. Krishnammal was conferred absolute rights. O.S. No. 632 of 1981 relates to items Nos. 5 and 6, in O.S. No. 36 of 1963. The items which are scheduled in the present Suits are the items covered by the Will dated 10.05.1955 other than the seven items, out of which, four were alienated and one was acquired. As far as O.S. No. 71 of 1958, filed by R. Krishnammal, is concerned, since she had an alternate relief claiming partition, it encompassed the entire property belonging to the coparcenary consisting of 93 items.45. The extent of property involved in the cases before us is a little over 36 acres.We notice that similar views have been expressed in the decision of this Court in Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. 2013 (1) SCC 625. In paragraph 9, it was held as follows:9. Order 2 Rule 1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2 Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order 2 Rule 2 CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order 2 Rule 2(2) does not contemplate omission or relinquishment of any portion of the plaintiffs claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the court is contemplated by Order 2 Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order 2 Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order 2 Rule 2 contemplate two different situations, viz., where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the court in the first suit.. In this case, it is true that when O.S. No. 36 of 1963 was instituted, the earlier Suit brought by R. Krishnammal, viz., O.S. No. 71 of 1958, had culminated in a compromise Decree. A perusal of the plaint itself would show that the plaintiffs in O.S. No. 36 of 1963 have adverted to the compromise in O.S. No. 71 of 1958. They have averred in paragraph 7 of the plaint that under the compromise, R. Krishnammal was given the property scheduled in the said Suit (Suit No. O.S. No. 36 of 1963) in lieu of the properties comprised in the Will and some cash. The rest of the properties comprised in the Will were given-up by her in favour of the respondents (the sons of Lakshmiah Naidu) it is averred. Thereafter, it is averred that the defendants claim, i.e., R. Krishnammal claimed absolute title to the properties scheduled in the plaint and which was unsustainable both in law and facts. It is contended further that the entire compromise Decree, more especially, conferring the absolute title to the suit properties therein in R. Krishnammal, was not valid and binding on the two plaintiffs and Defendants 3 and 4, who are the appellants before us. It is further averred that the appellants have vested rights in the properties. They were not impleaded in the suit (apparently, O.S. No. 71 of 1958). It was averred that R. Krishnammal did not represent the interest of the appellants. In paragraph-8 of the Plaint, it is averred that R. Krishnammal could not enlarge her rights by any compromise to which the plaint items were, only some items of the properties comprised in the Will and R. Krishnammal would, in law, be entitled to and could claim only the same interest, i.e., a life estate that she had under the Will. Thereafter, there is reference to a Notice dated 05.10.1959 to R. Krishnammal that she had only a life estate and to desist from alienating them. R. Krishnammal is alleged to have sent a reply containing untenable allegations. It is averred that she claimed, inter alia, that the appellants would not be entitled to claim anything under the Will and she was entitled to deal with the properties in any manner she liked. It is further averred that R. Krishnammal was then attempting to create nominal documents in respect of the suit properties to defeat the rights of the appellants. Paragraph-11 of the Plaint being significant, may be noticed:11. The Will of R.V. Rangaswami Naidu comprised other properties also other than those described herein which under the compromise decree have been given by the 1 st defendant to her husbands brothers sons. The plaintiffs reserve their rights to respect of those properties to a separate action.. It is accordingly that O.S. No. 36 of 1963 was filed seeking a declaration that R. Krishnammal had only a life estate without any powers of alienation and the appellants have a vested remainder in the said properties under the Will. The word said obviously refers to the items scheduled in OS No.36 of 1963.50. The Suit (O.S. No. 89 of 1983) is fundamentally premised on the death of R. Krishnammal in 1977 and the blossoming of the full rights of the appellants under the Will. In other words, R. Krishnammal having a life estate under the Will was alive when O.S. No. 36 of 1963 was filed. The absolute right under the Will, in favour of the appellants, dawned only with the death of the life estate holder. In this context, no doubt, we must clarify one aspect. Section 119 of the Indian Succession Act, 1925 (hereinafter referred to as the Indian Succession Act, for short) deals with the date of vesting of legacy when, inter alia, possession is postponed.52. Vested interest is different from the contingent interest. The two have vastly different consequences. The death of R. Krishnammal being a certain event, the interest of the remaindermen is a vested interest. The commonality between Section 19 of the TP Act and Section 119 of the Indian Succession Act, and which is apposite to the facts of this case, is as follows:When under the Will, a life estate was created in favour of R. Krishnammal with an absolute remainder in favour of the appellants, the legacy in favour of the appellants became vested from the time of death of the testator. The possession and the enjoyment of the property, however, under the Will, was the domain of the life estate holder, viz., R. Krishnammal as long as she was alive. She, however, had no right to enlarge the boundaries of her right under the Will. This is, no doubt, subject to the impact of supervening Legislation which will be discussed later. By her unilateral act or by even joining together with the third party, it would not be open to life estate holder to defeat the rights of the remainder men. The significance of a case being covered under Section 119 Illustration (III), of the Indian Succession Act, is that with the death of the Testator, the right in the property becomes vested with the remainder men, from the time of death of the Testator. In other words, upon the death of the legatee under the Will, in whom the absolute right is vested after the transient possession and enjoyment of the life estate holder, a heritable right, which, in fact, arose at the time of the death of the testator, would confer legal rights upon the heirs of the absolute owner under the Will when succession to his estate opens, should he not wish to leave a Will behind. Though the right is vested in the property, the enjoyment of the property with the absoluteness of a full owner under the Will could be done by the appellants only after the death of R. Krishnammal. Having thrown light upon the words absolute rights in the context of Section 119 of the Indian Succession Act, 1925, it is this right which was sought to be made subject matter of a Decree for declaration and partition. It is clear that in the year 1963 or till the death of R. Krishnammal, the rights as sought to be enforced, did not inhere with the appellants as explained. They could not have sought a partition of the plaint scheduled properties while R. Krishnammal was alive.54. Thus, be it the omission or intentional relinquishment of a claim arising out of a cause of action under Order II Rule 2(2) or not seeking a relief under Order II Rule 2 (3), the fatal consequences they pose, will arise only if the cause of action is the same. Though we are not oblivious to the fact that the plaintiffs in O.S. No. 36 of 1963 could have sought a declaration about the compromise Decree in O.S. No. 71 of 1958, qua all the properties covered under the Will, we would think that, in the facts of this case, the cause of Action in O.S. No. 36 of 1963 and the present Suit (O.S. No. 1989 of 1983) are clearly distinct, having regard to what we have discussed and having regard to the factum of the date of the death of R. Krishnammal. It is significant to note that the cause of action in OS No.36 of 1963 was the threat of alienation of the items scheduled therein. We would perceive O.S. No. 36 of 1963 more as a protective action by persons who had vested interest in the property under Section 119 of the Indian Succession Act, 1925 (hereinafter referred to as the Indian Succession Act, for short). We must also not be unmindful of the principle that cause of action is not to be confused with the relief which is sought. It has more to do with the basis for the relief which is sought. We are only reiterating in this regard, what the Privy Council has laid down, when it said it refers to the media upon which the plaintiff asked the court to arrive at a conclusion in his favour (See Mohammad Khalil Khan v. Mahbub Ali Mian AIR 1949 PC 78 ).THE IMPACT OF THE PROCCEDINGS AND THE DECREE PASSED IN O.S. NO. 1971 OF 1958 AND O.S. NO. 36 OF 1963 AND O.S NO. 732 OF 1981ESTOPPEL, WAIVER, ACQUIESCENCE55. O.S. No. 71 of 1958 was a Suit filed by R. Krishnammal. Defendants Nos. 1 to 4 were sons of Lakshmiah Naidu. The Fifth Defendant was the Executor of the Will. R. Krishnammal lay store by the Will executed by her late husband V. Rangaswami Naidu. In the alternate, she also claimed a Decree for Partition, virtually giving-up her right under the Will and on the basis that V. Rangaswami Naidu died intestate. The matter did not go to trial. It ended in a compromise. The substance of the compromise is, a few of the items mentioned in the Will, seven items were recognised as absolute properties of R. Krishnammal even though, under the Will, she had only a limited right over those items. R. Krishnammal, for her part, under the compromise Decree gave-up her rights in respect of the rest of the properties. We notice the argument of V. Raghavachari, learned Senior Counsel for the respondents, that there were ninety-three items which would have been impacted if a Partition Decree, as sought by R. Krishnammal, had been passed. In other words, there was a larger body of properties, apparently which belonged to the joint family of the V. Rangaswami Naidu and Lakshmiah Naidu. The properties covered by the Will were only a much smaller part of the larger body of property, which belonged to the joint family. There is evidence to suggest that as found by the First Appellate Court that R. Krishnammal may not have been in a position to demand her full rights as such and she was satisfied with what she could get. But what is far more relevant is, the appellants were not parties to the compromise. Appellants were not tracing their rights under R. Krishnammal. Appellants were given an absolute right under the Will executed by their uncle V. Rangaswami Naidu. The bequest in their favour created a vested interest within the meaning of Section 119 of the Indian Succession Act, 1925. Of course, the enjoyment and possession of the property was to await the death of R. Krishnammal under the Will. It is quite clear that R. Krishnammal could not have also enlarged the rights of the branch of Lakshmiah Naidu, once she accepted the Will, for she had only a life estate over the properties covered under the Will. The appellants were also not bound by her acts in entering into a compromise seeking to confer absolute rights qua those properties, which were subject matter of the Will, in respect of which, they had the right to be enjoyed after the death of R. Krishnammal.56. O.S. No. 36 of 1963 came to be filed by two out of the appellants, who are Legatees under the Will. They sought a declaration to the effect that R. Krishnammal could not enlarge her right and she could not alienate the properties (the very seven items, which, under the compromise Decree of O.S. NO. 71 of 1958, were recognised as her absolute properties). It is true that the plaintiffs in O.S. No. 36 of 1963 did not choose to include the plaint schedule properties in the present Suit and seek a declaration qua them. There are two aspects to it, which we must bear in mind. Firstly, the cause of action for filing O.S. No. 36 of 1963 was alleged to be the apprehension that R. Krishnammal was about to alienate the seven items over which she acquired absolute rights under O.S. No. 71 of 1958 (In fact, it was alleged that one item was alienated). Secondly, we have already noticed paragraph-11 of the Plaint. Therein, the plaintiffs have revealed their mind to be that they intend to pursue their right qua other properties apparently which are the plaint schedule properties in O.S. No. 89 of 1983. We have already indicated that the bar of Order II Rule 2 of the CPC will not apply. There is some merit in the contention of the appellants that the Decree passed in O.S. No. 36 of 1963 did involve watering down the terms of the compromise Decree in O.S. No. 71 of 1958. As on the date of the compromise in O.S. No. 36 of 1963, the position was that four, out of the seven items, had been alienated by R. Krishnammal, whereas, one property had been acquired by the Government. As regards Item Nos. 5 and 6 in the plaint schedule in O.S. No. 36 of 1963, the terms of the Will dated 10.05.1955, came to be reiterated. This is for the reason that in departure from the terms of the Decree in O.S. No. 71 of 1958, under which R. Krishnammal was conferred with the absolute rights in respect of Item Nos. 5 and 6, in regard to the very same items, under the compromise Decree in O.S. No. 36 of 1963, R. Krishnammal was only to enjoy the properties during her lifetime and without the power of alienation. In other words, the terms of the Will dated 10.05.1955 are seen reflected and reinforced by the compromise Decree in O.S. No. 36 of 1963. Both, in O.S. No. 71 of 1958 and O.S. No. 36 of 1963, there is no adjudication by the court. As to what is the expediency which led the parties to enter into the compromise Decree, may not be decisive of the legal rights of the parties which we are called upon to pronounce. The action of the branch of Lakshmiah Naidu, who had also joined as parties in O.S. No. 36 of 1963, and who were represented by the Counsel, may not obviate the need for proving the Will on the part of the appellants.This conduct is emphasised before us, to point out that it would constitute a bar by way of principles, including estoppel and acquiescence for the appellants in instituting O.S. No. 89 of 1983 in regard to the plaint schedule properties over which R. Krishnammal had give-up all her rights in O.S. No. 71 of 1958. It is in this regard, we must bear in mind that even in the Plaint, in O.S. No. 36 of 1963, the properties, other than the seven items, were admittedly not the subject matter of the Suit. More importantly, what is stated in the compromise is that no relief is claimed against the other Defendants in the said Suit. It is equally true that by the passing of the Decree in O.S. No. 36 of 1963, the interest of the Lakshmiah branch was not imperilled. This is for the reason that in regard to Item Nos. 5 and 6 in O.S. No. 36 of 1963, over which the rights of R. Krishnammal were limited to a life estate with a taboo against alienation bringing it in tune with the terms of the Will under the Compromise did not matter for the branch of Lakshmiah Naidu. This is for the reason that as far as they were concerned, they were already bound by the compromise Decree in O.S. No. 71 of 1958 whereunder R. Krishnammal had been conferred absolute rights in regard to Item nos. 5 and 6, inter alia, and they had lost all their rights. Therefore, the arrangement inter se between the appellants and R. Krishnammal, qua those properties, was of no concern to them. What they were interested in was the rest of the properties over which they were given absolute rights under the compromise Decree in O.S. No. 71 of 1958. The result is that on the one hand the terms of the Will came to be reiterated under the compromise Decree in O.S. No. 36 of 1963 qua Item Nos. 5 and 6. The Decree in O.S. No. 71 of 1958 was otherwise left untouched. We would, therefore, conclude that the passing of a Decree in O.S. No. 36 of 1963, is a matter which is entirely between the appellants and R. Krishnammal. In fact, the Lakshmiah Naidu branch, though made parties to the compromise, were not actually parties to the Decree. They have not signed as parties to the compromise Decree. Therefore, neither the appellants nor the respondents can derive any advantage from either the filing of O.S. No. 36 of 1963 or the passing of the compromise Decree therein. The plaintiffs in O.S. No. 36 of 1963 have also filed O.S. No. 732 of 1981. The Lakshmiah branch (among the respondents in the appeals) were not parties. It was a Suit for partition of items 5 and 6 scheduled to O.S. No. 36 of 1963. It is obvious that they cannot rely upon principles of res judicata or constructive res judicata based on O.S. No.732 of 1981, being not parties to the said Suit. What, however, is sought to be urged, is that the premise, on the basis of which the Decree in O.S. No. 732 of 1981 was passed, is completely incongruous with the cause of action in the present Suit. In other words, it is pointed out that in O.S. No. 732 of 1981, the case set-up was R. Krishnammal had rights over the property and this was inconsistent with the case set-up in the present Suit. It was contended that the appellants were estopped from undertaking such a course of action. We could also deduce the following conduct. The cause of action in O.S. No. 732 of 1981 did involve drawing upon the rights secured (qua Item Nos. 5 and 6 in O.S. No. 36 of 1963) in O.S. No. 71 of 1958 whereunder the Lakshmiah branch acknowledged rights of R. Krishnammal who also gave-up her rights to properties which included the plaint schedule items in the case. Though, we are not oblivious to the dimensions projected, we would not think that Right to Property, if otherwise is established in favour of the appellants, it would be lost. It cannot be treated as a case of abandonment of rights qua the plaint schedule properties (See in this regard Sha Mulchand & Co. Ltd. (In Liquidation), By Official Receiver, High Court, Madras v. Jawahar Mills Limited, Salem AIR 1953 SC 98 and Dr. Karan Singh v. State of J&K and another (2004) 5 SCC 698 . The respondents who were not parties to O.S. No. 732 of 1981,cannot set-up a case of estoppel.58. The Will in question is an unprivileged Will. The mode of making an unprivileged Will is provided in Section 63 of the Indian Succession Act. In order that a valid Will be made not only, it is necessary that the Testator must execute the document but also the execution must be attested by at least two witnesses. What is required is not ordinary witnessing of a document but attestation which is as is provided in Section 63 of the Indian Succession Act.59. Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act, for short) deals with proof of execution of a document required by the law to be attested. A perusal of the same makes it clear that in the case of a Will, being a document which is required to be attested by Section 63 of the Indian Succession Act, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence, then, the Will can be proved only if one of the attesting witness is called for proving its execution.64. In this case, there is no dispute that both the attesting witnessing were not alive at the relevant time.66. The contention of the respondents appears to be only that, in the proceeding under Section 145 of the CrPC, the tussle was between R. Krishnammal and the Executor of the Will who were styled as A Party Nos. 1 and 2 and the B Party, viz., the respondents. The present appellants were not parties. Therefore, the proceeding was not between the same. The other limb of the first proviso to Section 33, viz., that in order that Section 33 of the Evidence Act applies, the proceeding is between their representatives in interest is not fulfilled. The contention seen raised is that the appellants, who are the remainder men under the Will, cannot be treated as representatives in interest of R. Krishnammal.68. The word representative in interest, in other words, is to be understood liberally and not confined to cases where there is privity of estate and succession of title. He is be such representative of the party in the later proceedings. Answering the two tests, which have been evolved in the facts of this case, the respondents cannot contend that the interest of the appellants was inconsistent with the interest of R. Krishnammal and in particular the executor of the Will. It was certainly not antagonistic to their interest. The Will was indeed set-up by R. Krishnammal and the executor. Therefore, it can be safely concluded that the interest of both persons comprised of A Party, which was the protection of the possession, was also in the interest of the appellants. It may be true that the appellants do not derive their title under R. Krishnammal. But the requirements under Section 33 of the Evidence Act are not to be confused with the ingredients to be fulfilled even in a case under Section 11 of the CPC. It cannot be contended that the interest of the appellants lay in answering the question posed in Section 145 of the CrPC proceedings against R. Krishnammal and the Executor in favour of the respondents, who were parties before the Magistrate. The case of the Will was explicitly set up as also the declaration dated 10.5.1955 and further developments. Therefore, the contention based on the third proviso also does not appeal to us. Also not only was there opportunity to cross examine to the B party, it was availed of. The applicability of Section 33 of the Evidence Act also does not depend upon the nature of the decision which is rendered in the earlier proceeding. We would think that on this basis, as Exhibit-B7 and even B13 (deposition by the Executor) indeed is evidence which was tendered in the previous proceeding before the Magistrate who was certainly authorised by law to take evidence, which is relevant for proving the truth of the facts contained therein under Section 33.This Court has taken the view that while it is open to prove the will and the attestation by examining a single attesting witness, it is incumbent upon him to prove attestation not only by himself but also attestation by the other attesting witness.70. We are of the view that Section 69 of the Evidence Act manifests a departure from the requirement embodied in Section 68 of the Evidence Act. In the case of a Will, which is required to be executed in the mode provided in Section 63 of the Indian Succession Act, when there is an attesting witness available, the Will is to be proved by examining him. He must not only prove that the attestation was done by him but he must also prove the attestation by the other attesting witness. This is, no doubt, subject to the situation which is contemplated in Section 71 of the Evidence Act which allows other evidence to be adduced in proof of the Will among other documents where the attesting witness denies or does not recollect the execution of the Will or the other document. In other words, the fate of the transferee or a legatee under a document, which is required by law to be attested, is not placed at the mercy of the attesting witness and the law enables proof to be effected of the document despite denial of the execution of the document by the attesting witness.71. Reverting back to Section 69 of the Evidence Act, we are of the view that the requirement therein would be if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting. In other words, in a case covered under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act. In short, in a case covered under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act.We say this to clarify. In a case, where there is evidence which appears to conform to the requirement under Section 69, the Court is not relieved of its burden to apply its mind to the evidence and find whether the requirements of Section 69 are proved. In other words, the reliability of the evidence or the credibility of the witnesses is a matter for the Court to still ponder over. As far as this case is concerned, the evidence of one of the attesting witnesses is contained in B7 and which we have found relevant under Section 33, establishes that he was an Income Tax Practitioner. He was beckoned by Rangaswami Naidu, informing him that he had written a Will and it was to be attested. He was asked to in fact to attest even upon going there on that day. He speaks about the testator signing on every page and also, he has spoken about him signing. He, no doubt, therefore the establishes requirement of Section 69 in regard to the signature of one of the attesting witnesses being proved in his handwriting. We see no reason to doubt the testimony. As far as signature of the testator is concerned, apart from B7 in B13, the executor has spoken of the testator signing. Also, PW1 has deposed that the Will was shown to him he admitted that every page is contained with the paternal uncle signature. Thus, the requirement of proof of Will under Section 69 are fulfilled.The Trial court has found that B68 is the original Will which was produced before the Magistrate in the proceedings under Section 145 of the CrPC This is after over-ruling the contention of the respondents that B68 was not the original Will. The Trial Court has found little merit in the objection against secondary evidence of the Will, viz., certified copy of the registered Will being produced. We have in fact evidence in the form of B7 and X1 to show that the Will came to be registered.76. The original of the Will according to the case of the appellants continued to be with the executor who was in fact the nephew of R. Krishnammal, the widow of Rangaswami Naidu. An attempt was made to get the original Will produced at the relevant time when the executor had passed away, on the basis that his son was in possession of the original Will. He was called upon to produce the Will by C1. He responded by pointing out that he was not having the original Will with him. The finding of the Trial court as affirmed by the First Appellate Court is that circumstances warranted admission of secondary evidence to prove the Will. We see no reason to take a different view and the view taken by the High Court cannot be sustained.77. It may be true that in the proceedings in O.S. No. 71 of 1958 and O.S. No. 36 of 1963, the Will was projected first by R. Krishnammal and thereafter, the plantiffs in O.S. No. 36 of 1963 who are among the appellants before us. However, the matter did not go to trial. We are also of the view that the Will must be proved under the Evidence Act and not with reference to plea of estoppel as taken by the appellants based on the decree in O.S. No. 36 of 1963, being based on the Will and the respondents having participated not as parties even to the compromise but it is a far cry from finding that the facts of the case did not warrant admission of secondary evidence regarding the Will.79. It will be seen from the Will that the Testator has recited in the Will that he owns the immovable properties set out in Schedule A exclusively and in his own right. The said properties are alleged to include properties purchased by him and properties allotted to him in his family partition between him and his brother in 1932. He further states that he has been a divided member from 1932 onwards and has continued to be so till the date of the Will. Finally, he states that, he, in order to avoid any uncertainties, made an open declaration of his divided status today. The Will further refers to amounts which he is entitled to as set out in Schedule B. Entire properties in Schedule A, including his house, is set out for his wife without powers of alienation. He further states that he expects his wife to make use of the income from the landed properties to be used to meet the expense of presents on ceremonial and special occasions in his sisters families after meeting her own family expense, maintenance of the house. There is a remainder, absolute in nature, given to his four Legatees, i.e., his Nephews through his four sisters. He expressed his earnest wish that the four Legatees should keep the properties for their respective families and should not dispose them off, but in case of need, they should sell them in the first instance to any of the other sharers. The last portion to be noted is the statement that he has already made other provisions for his wife apart from the properties under the Will.81. In regard to the aspect about incorrect statement in the will, it is to be noticed that making a totally incorrect statement in a will arouses suspicion. This is on the principle that the testator would not make an incorrect statement when he makes a will. If he makes a rank incorrect statement the inference is that he would not have made that will. This principle will not be applicable in the facts of this case. Making the statement that there was a partition in 1932 and that the properties were allotted to him, is apparently the understanding of the testator. This issue generated debate in the courts. The view expressed by the testator did not find favour with the courts but that is a far cry from describing it as an outright false statement. As long as it is a part of the will which is made by the testator and he believed in it the finding given by the court in this regard will not advance the case of the respondent.82. We further notice the following aspects:Rangaswami Naidu was an educated man. He was a former M.L.C.. He was an affluent man. He has no issues. He was affectionate towards his sisters. He has chosen to favour each branch of his sisters by selecting one son out of each branch to be the legatees in whom the property were to vest. In fact, he has also provided that the properties are to remain in the family and should any of the legatees wish to sell, it should be offered to the other legatees. As far as his health is concerned, it is well settled that the requirement of sound disposing capacity is not to be confused with physical well-being. A person who is having a physical ailment may not therefore berobbed of his sound disposing capacity. The fact that a person is afflicted with a physical illness or that he is in excruciating pain will not deprive him of his capacity to make a will. What is important is whether he is conscious of what he is doing and the will reflects what he has chosen to decide. While it may be true that he was suffering from cancer of the throat there is nothing to indicate in the evidence that he was incapable of making up of his own mind in the matter in leaving a will behind. The fact that he was being fed by a tube could hardly have deprived him of his capacity to make a will. We further notice that the will is a registered will. The Registrar came home. Exhibit X1 would show that Rangaswami Naidu on being asked to put his thumb impression, he insisted on signing. This course of conduct, in our view, has been correctly appreciated by the first appellate court, the final court on facts. The inference to the contrary sought to be drawn does not appeal to us. From the evidence, it is also clear that the other attesting witness was Dr. C.S. Ramaswamy Iyer a fairly renowned Physician and family friend. PW1, the witness on behalf of the respondent has himself admitted publishing the obituary on the passing away of the said doctor. PW1 speaks about him as a gentleman and he wont act illegal manner. In B7 the other attesting witness has also spoken about the doctor remaining there and no doubt leaving before the Registrar came. We have already held that the requirement of Section 69 of the Evidence Act stands fulfilled otherwise. The fact that no bequest is made in favour of the sons of Lakshmiah Naidu cannot be treated as a suspicious circumstance. It is clear that Lakshmiah Naidu was extremely wealthy. Making the nephew of his wife executor of the will, in fact, does assure us of the absence of any foul play on the part of the legatees. In his evidence [B13 which is the evidence given by the Executor in 145 proceedings], he has spoken about the testator expressing his desire on 2-3 occasions about wanting to executing a will. From the evidence adduced by PW1 also, we would think that the view taken by the first appellate court regarding the will cannot be characterized as a perverse one warranting interference in the second appeal.83. Lastly, while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same. The evidence of PW1 would show that the respondents have failed to prove that the will is vitiated in this regard . Therefore, we would arrive at the conclusion that the will was indeed executed by R. Naidu and was his last will.84. Undoubtedly, Rangaswami Naidu and Lakshmiah Naidu who were brothers, were co-parceners in a Hindu Coparcenary.85. The case of the appellants is based, in fact, on their having been an oral partition between the two brothers in the year 1932. Three Courts have found no merit in this contention. In fact, the appellants also did not pursue this line of argument before us.In Kalyani(dead) by LRs v. Narayanan and others AIR 1980 SC 1173 , a Bench of three learned Judges, laid down as follows:-10. The next stage in the unfolding of the case is whether Ex. P-1 is effective as a partition. Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in- common. Such partition has an impact on devolution of shares of such members. It goes to his heirs displacing survivorship. Such partition irrespective of whether it is accompanied or followed by division of properties by metes and bounds covers both a division of right and division of property (see Appovier v. Rama Subba Aiyan [(1886) 11 MIA 75 : 2 Sar 218 : 8 WR PC 1] quoted with approval in Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar [(1979) 4 SCC 60, 68] ). A disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right, although not immediately followed by a de facto actual division of the subject-matter. This may at any time, be claimed by virtue of the separate right (see Girja Bai v. Sadashiv [AIR 1916 PC 104 : 43 IA 151 : 18 Bom LR 621] ). A physical and actual division of property by metes and bounds follows from disruption of status and would be termed partition in a broadere may notice paragraph 18 also which reads as follows:-18. One thing is crystal clear that Ex. P-1 is not a deed of partition in the sense it does not purport to divide the property amongst various coparceners by metes and bounds. However, in Hindu law qua joint family and joint family property the word partition is understood in a special sense. If severance of joint status is brought about by a deed, a writing or an unequivocal declaration of intention to bring about such disruption, qua the joint family, it constitutes partition (see Raghavamma v. Chenchamma [AIR 1964 SC 136 : (1964) 2 SCR 933 : (1964) 1 SCA 593] ). To constitute a partition all that is necessary is a definite and unequivocal indication of intention by a member of a joint family to separate himself from the family. What form such intimation, indication or representation of such interest should take would depend upon the circumstances of each case. A further requirement is that this unequivocal indication of intention to separate must be to the knowledge of the persons affected by such declaration. A review of the decisions shows that this intention to separate may be manifested in diverse ways. It may be by notice or by filing a suit. Undoubtedly, indication or intimation must be to members of the joint family likely to be affected by such a declaration.This Court in Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe and others (supra) held as under:14 ……The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.95. In Kalyani (supra), one Karappan who had two wives and children through them was governed in the matter of inheritance and succession essentially by customary law and in the absence of any specified custom, he was governed by the Hindu Mitakshara Law. He had executed a registered deed P1 which was variously described as a Will or as a deed of partition or evidencing a family arrangement. The Suit from which the case arose was filed by the Widow of one of his sons from his first wife. This Court went on to find that P1 could not be supported as Will insofar as Karappan had no power to devise by Will ancestral property. The Court further went on to consider whether B1 was effective as a partition. It was in this context that the observations in paragraph-10 of the judgment came to be made. The Court, after making the observations in paragraph-10, found that there was no effective partition by metes and bounds by B1 though the shares of sons were specified as also the provisions for the female members were made. Thereafter it is that the Court posed the question that if B1 is not effective as a Deed of Partition, its effect on the continued Joint Family status had to be examined. It is thereafter that when the court went on to make the observations in para 18 which we have set out. The Court further proceeded to find that by specifying of the share in Exhibit P1 there was first a disruption in the joint family by specifying the shares. Once a disruption took place, it was held, in a joint family status, the coparceners ceased to hold the property as joint tenants but they held as tenants in common. It was further the view of the court that the fact that the coparceners continued to stay under the same roof or enjoy the properties without division by metes and bound, did not matter. They did not hold as joint tenants unless reunion was pleaded and established. We are, in this case, also called upon to reconcile what has been laid down in this case with what has been laid down in a later Judgment in. The later decision Bhagwant P. Sulakhe (supra) was also rendered by a bench of three learned Judges.96. We may briefly notice the facts involved in the said case. The appellant, who was the plaintiff in the Suit along with the Second Defendant therein and two of his brothers, were members of a Joint Hindu Family. There was a public limited company and also a firm. The appellant had acted as a Managing Agent. He had also acted as a Managing Director of the Company. In regard to the same, he had earned remuneration. The question which essentially arose before this Court was whether it was to be treated as the personal income of the appellant or whether it belonged to the joint family. After considering the partnership deed and other materials, the Court, inter alia, observed as follows:14 …The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.. The Trial Court, in this case, has laid store by the observations of this Court to the effect that as long as joint family property is in existence and is not in partitioned, the character of the joint family property does not change. It concluded that even if division is brought about by issuance of B1, the properties of the joint family consisting of V. Rangaswami Naidu and his brother remained joint and it could not be arrogated by V. Rangaswami Naidu as his and they bequeathed, as done. The first appellate court distinguished the decision by stating that it turned on in facts.98. We would think that there is really no conflict as such. We have already noticed what has already been laid down by the Privy Council in Appovier (supra). The Court has laid down, inter alia, that when members of the Hindu Undivided Family agree among themselves that a particular property shall be thereafter be subject of ownership in certain defined shares, then, the character of the undivided property and joint enjoyment is taken away from it and each member will thereafter have a definite and certain share, even though the property itself has not been severed and divided.99. It must be remembered that the said case actually involved an Undivided Hindu Joint Family wherein there was a deed of division and the contention, which had to be considered by the Court, was that, it was ineffectual to convert the undivided property into divided property until it had been completed by an actual partition by metes and bounds. The Court was essentially not considering the effect of a declaration by a coparcener to separate causing a division in a joint family status. The Court was also not considering the question as to whether, on such division in status, the rights of the coparcener, over specific items of properties, will be transformed into exclusive and absolute rights even without an agreement or partition, by metes and bounds.100. In Girja Bai v. Sadashiv Dhundiraj AIR 1916 PC 104 , the Privy Council was dealing with a situation where the appellants husband had served a registered notice on the Manager of a Mitakshara Joint Family expressing his desire to get partition and which was followed-up by a Suit for partition. We have noticed paragraph 25 and 28 therein.101. Therefore, on a conspectus of the discussion we would hold as follows:Partition has two shades of meaning in Hindu Law we are dealing with. In the one sense, partition is the first step which would ordinarily culminate in a metes and bounds partition. In a coparcenary, there is joint tenancy. A Hindu Coparcenary, which cannot be created by agreement between parties but is the creation of law, can be disrupted or a division is caused by a unilateral declaration by a coparcener to put an end to the joint family. What the coparcener has before the division is produced, is an interest, as has been referred to in both Sections 6 and 30 of the Hindu Succession Act. Upon a declaration being made, expressing intent to separate without anything more but no doubt on communication of the same to the other coparcener/coparceners, partition in the above sense viz. causing a division of title takes place. As already noticed, the partition in the aforesaid sense has far-reaching consequences. The joint tenancy, which includes the concept of Right to Inherit by Survivorship, is terminated with the partition being effected in the first sense. If the coparcener dies after causing such a partition, as the right on the basis of Doctrine of Survivorship is annihilated, his death, after such partition, would result in his heirs becoming entitled to succeed. In that sense, joint tenancy would be replaced by tenancy in common but that is not the same as saying that the properties of the family, where there has been a partition in the first sense, will without anything more stand transformed into the separate and exclusive properties of the divided members. This is the view, which is taken by this Court in Bhagwant P. Sulakhe. We are unable to subscribe to the view taken by the First Appellate Court that the principles of law, which are contained in paragraph-14 of the Judgment, as extracted by us, are merely to be understood in the special facts of the said case. Partition, in a broader sense and as is commonly understood, is the division of the properties in accord with the shares.we may refer to the decision of full Bench of the Mysore High Court in Sundara Adapa v. Girija AIR 1962 (Mysore) 72 . Justice K.S. Hegde as his Lordship then was speaking for the Bench held:-15. It is well known that till the Act came into force, the interest of a coparcener in a Hindu joint family, be it a Mitakshara family or an Aliyasantana family, could not be disposed of by means of a testament, as by the time his will took effect his interest in the undivided family would have been taken by survivorship by the other coparceners. The Indian Succession Act did not make any inroad into that position. The relevant provisions of the Indian Succession Act are found in Part VI (Provisions relating to testamentary succession) read with the rules found in Schedule III. But they are also subject to the restrictions and modifications specified in that schedule. Restriction No. 1 in Schedule III says:—Nothing therein contained shall authorise a testator to bequeath property which he could not have alienated inter vivos, or to deprive any persons of any right of maintenance of which, but for the application of this section, he could not deprive them by will.17. Neither under the customary law nor under the Aliyasantana Act nor under the Indian Succession Act the interest of a coparcener in an Aliyasantana Kutumba could have been disposed of by testamentary disposition. In that regard a definite change in the law was made by means of the Explanation to Sec. 30(1) of the Act. There is no dispute that at present a member of an undivided Aliyasantana kutumba could dispose of his interest in the kutumba properties by means of a will. But we are unable to agree with Srli G.K. Govind Bhat when he says that Explanation to Sec. 30(1) enlarged the rights of a divided coparcener. The object of Section 30 is clear. That section neither directly nor by necessary Implication deals with the devolution of divided interest. As mentioned earlier, its purpose is limited. The language employed is plain and therefore no question of interpretation arises. It is not correct to contend, a, done by Sri Bhat, that it the Explanation to S. 30(1) is understood in the manner the respondents want us to understand, a coparcener who dies undivided would leave a more valuable estate to his heirs than one who dies divided. In most cases, the share taken by a nissanthathi kavaru though limited to the duration of the life of kavaru would be larger in extent than one unprovided under Sec. 7(2) of the Act.We find that this Court in Jalaja Shedthi & Ors. v. Lakshmi Shedthi & Ors.; 1973(2) SCC 773 has approved of view taken by the High court in the aforesaid case. In other words, as we have already noted in the case of property of the joint family as long as the property is joint, the right of the coparcener can be described as an interest. The reason why we are saying this is as long as the family remains joint, a coparcener or even a person who is entitled to share when there is a partition cannot predicate or describe his right in terms of his share. The share remains shrouded and emerges only with division in title or status in the joint family. Once there is a division the share of a coparcener is laid bare. In this regard we may notice the judgment of this Court in Hardeo Rai v. Sakuntala Devi and others 2008 (7) SCC 46 in paragraphs 22 and 23. It reads as under:22. For the purpose of assigning ones interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as joint tenants but as tenants-in-common. The decision of this Court in SBI [(1969) 2 SCC 33 : AIR 1969 SC 1330 ] , therefore, is not applicable to the present case.23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.It is important to notice that what this Court has laid down that he becomes owner of that share and he can alienate the same. It is different from saying that he is owner of the property in the sense of being the exclusive owner. [See also in this regard the law as laid down in Appovier case (supra) in para 4 thereof].107. We may also notice that even under the law prior to Hindu Succession Act there could be four situations. In regard to a member of a joint Hindu family who also has his separate property he could bequeath his separate property. As far as joint family property is concerned, there could be three situations. The first situation is where the family remains joint in which case the coparcener would have an interest. As far as this interest is concerned, it could not be the subject matter of the will prior to the Hindu Succession Act. The second situation is in a case where there is a disruption in title or a division in status. What we mean is there is a partition in the sense of a division in the joint family status caused by any unequivocal declaration by a coparcener which is communicated. It can be by words. It can be by conduct. It can also embrace the very filing of a suit for partition. When such disruption takes place then the share of the coparcener in the joint family property becomes a reality and takes concrete shape in accordance with law and the rights of the members of the family. As already noticed, this may or may not be accompanied simultaneously with a metes and bounds partition. In such a scenario under the law prior to the Hindu Succession Act, having achieved disruption in the joint family, the right based on the principle of survivorship perishes. The share of the coparcener becomes undeniable. Should he die intestate the share would go not to the other coparceners by survivorship but to his heirs. It also opens the door to the coparcener to exercise his right to bequeath his share in accordance with his wishes. This power was certainly available to a Hindu even prior to Section 30 of the Hindu Succession Act. The third scenario would be a situation where following a division in title or status in the family there is also a metes and bounds partition of the properties of the family in accordance with the share. It cannot be open to doubt that in fact, capacity of a Hindu to bequeath such property existed even prior to the Hindu Succession Act. In fact, the property obtained as a share on a partition by a coparcener who has no male issues is treated as his separate property. As regards the effect of a son born after partition we need not pronounce on the same. After the amendment to the Succession Act 2005 including the daughters of a coparcener as coparceners in their own right, if a Hindu has a female issue then the property allotted to him on partition will partake of the nature of coparcenary property.108. After the passage of the Hindu Succession Act even without there being a partition in the sense of a declaration communicated by one coparcener to another to bring about the division it is open to a Hindu to bequeath his interest in the joint family. In other words, the words interest in coparcenary property can be predicated only when there is a joint family which is in tact in status and not when there is a partition in the sense of there being a disruption in status in the family. Thus, the right of a Hindu in the coparcenary joint family is an interest. Upon disruption or division, it assumes the form of a definite share. When there is a metes and bounds partition then the share translates into absolute rights qua specific properties.As can be seen, Section 3 of the 1937 Act applies when a Hindu dies intestate.It is important to notice that Section 3(1) of the 1937 Act deals with the case of the Hindu dying intestate leaving behind separate property. In such a situation, should there be one widow, she became entitled in respect of the property to the same share as the son. This was made subject to sub-Section (3) which declares that, the interest devolving on her, would be a limited interest known as Hindu Womans Estate. The more important change that was brought about is located in Section 3(2). Thereunder, when a Hindu governed by any School of Law, other than Dayabagha or Customary Law, dies, leaving behind at the time of his death, an interest in a Hindu Joint Family property, his widow is conferred the same interest as her husband had. This is again made subject to the provision of sub-Section (3) which makes it a limited interest known as the Hindu Womans Estate. It will be, at once, noticed that the Legislature had not used the words dies intestate in Section 3(2), whereas, in Section 3(1), the Legislature contemplated a situation, where a Hindu could bequeath his separate property and has taken care to provide only for a contingency where he died intestate. No doubt Section 2 proclaimed that Section 3 was to be applied when a Hindu died intestate. When it comes to Section 3(2), in regard to a case covered by Mitakshara law, the Legislature has, in keeping with the law as then prevailing, recognised that a Hindu could not execute a Will in regard to his interest in a Hindu Joint Family. It is this concept, which has been swept away by enacting the Explanation to Section 30 of the Hindu Succession Act, whereunder, it is open to a Hindu to even bequeath his interest in the Hindu Joint Family property. Coming back to Section 3(2) of the Hindu Womens Right to Property Act, the Legislature has advisedly chosen the words interest in the Hindu Joint Family property, which may be contrasted with the provisions under Section 3(1), which contemplates the Hindu leaving behind separate property. Therefore, Section 3(2) contemplates the situation, where, at the time when the Hindu dies after the enactment of the Act in 1937 (it came into force on 14 th April, 1937 and it was repealed by Section 31 of the Hindu Succession Act 1956), in order that the widow acquires the same interest as her husband had under Section 3(2), the Hindu must die when he is not separated from the joint property. If a Hindu, when he dies, is separated and, at least, qua him, there is no Hindu Joint Family, it would not be a case where Section 3(2) would apply. It is to be noted that, a Hindu when he dies intestate he may have an interest in a Hindu joint family and at the same time also have separate properties. Then qua his separate properties, Section 3(1) would apply whereas in regard to his interest in the joint family, Section 3(2) would govern. Section 3(1) cannot apply as the properties in dispute were not his separate properties.The position at law may therefore, may be culled out as follows:With the passing of the 1937 Act, in areas to which it applied, an intrusion was indeed made upon a coparceners right to set-up a claim to the property of a deceased coparcener based on the Doctrine of Survivorship but the Act did not annhilate the said Right. The Right to claim by Survivorship came to be suspended but not extinguished. The widow, though not a coparcener, was like a coparcener in most respects. She was also conferred with the right to claim partition. As long as she did not claim partition and the property remained intact upon her death, the Right to Claim by Survivorship which stood eclipsed, revived and the coparceners would become entitled to the property on the basis that succession opened as if the coparcener died when the widow died. On the other hand, if the widow claimed partition, her interest transformed into a defined interest and the Right to Claim by Survivorship, which stood suspended, was destroyed. The property would then enure to the heirs of the husband. It is also to be noted that, by virtue of Section 3(2), there is no rupture in the coparcenary. There is no division brought about by Section 3 (2) of the 1937 Act, in other words.We must also not be oblivious to two developments which took place after succession opened to the estate of V. Rangaswami Naidu on 01.06.1955. The Hindu Succession Act, 1956 containing Section 14 came to be passed, the effect of which will be discussed later. Secondly, we may also notice that R. Krishnammal the widow, filed O.S. No. 71 of 1958 wherein as an alternate prayer, she sought partition. We have already noticed the principle which has been laid down about the effect of a demand for partition by a widow in whom the Right came to be vested under Section 3(2) of the 1937 Act. But, as we have noticed, the supervening Legislation in the form of the Hindu Succession Act, if it did confer absolute rights under Section 14(1), it is a matter of law as to what was the nature of the Right R. Krishnammal possessed, even when she instituted O.S. No. 71 of 1958. It is clear than when succession opened to the estate on 1.6.1955 if Section 3(2) applied, then Lakshmiah Naidu would have only a suspended right of survivorship. There is the compromise decree in OS 71 of 1958 under which R. Krishnammal has given up all her rights in the plaint schedule properties in favour of the Lakshmiah branch.109. We find legislative recognition of this concept of interest in joint family in Section 6 of the Hindu Succession Act. Section 6 prior to its substitution by Amending Act 39 of 2005 provided that in the case of male Hindu dying after the Act possessing an interest in Mitakshara coparcenary property, the property was to devolve by survivorship, subject to the proviso.110. Therefore, the concept that what a coparcener in a Mitakshara family had prior to partition, is an interest, is reiterated. For the purpose of Section 6, however, in order to determine the extent of that interest it is deemed to be the share which he would get if there was a notional partition just prior to his death. Partition in the sense of a disruption however determines the extent of share which would devolve under Section 8 of the Act. We make it clear that we must not treated as having pronounced that the notional partition contemplated under the explanation to Section 6 is meant to bring about the demise of the coparcenary as such. The Explanation to Section (30) also speaks of interest as being property which a Hindu could after the Hindu Succession Act bequeath.111. O.S. No. 89 of 1983 is a Suit where there is a declaration of the plaintiffs right sought and also a Decree of Partition. The cause of action is based on the remainder right traced from the terms of the Will dated 10.05.1955. It is apposite to bear in mind one aspect. In a proceeding instituted to obtain probate of a Will, if a contention is raised about the title of the Testator, it would be foreign to the scope of the inquiry to enquire into the title of the Testator. The court, considering the grant or refusal of the probate is only to deal with the question as to whether the Will was the last and genuine Will executed by the Testator. Questions relating to title would have to be pursued before the appropriate Forum (See Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon (2007) 1 SCC 357 ). Would that be the position in the case of the title Suit wherein a plaintiff invites the court to pass a Decree for partition and qua the partition suit, Defendants 1 to 3 who are among the appellants before us, would stand in the shoes of a plaintiff. We would think that O.S. No. 89 of 1983 and even O.S. No. 649 of 1985, are Suits based on title. The question relating to the right to the property involved must be gone into and decided.112. We have already found that in the claim that V. Rangawami Naidu acquired title to the properties by way of oral partition, cannot be accepted. The claim that he had acquired properties by way of self-acquisition, also may not stand. If there has been a disruption in the family status, partition in the narrow sense of a division in title takes place. We have also found that the mere fact that there is a division effected in the joint family, would not mean that, in law, V. Rangaswami Naidu could claim exclusive and absolute ownership qua the items covered under the Will. The plaint schedule properties are, admittedly, part of the properties scheduled to the Will. The result would be that, in terms of the legal principles applicable, we would find that V. Rangaswami Naidu did not have exclusive right as such qua the properties scheduled under the Will.114. The entire reasoning of the Appellate Court is that while one coparcener, even after there is a division, cannot unilaterally appropriate any specific property as his exclusive property, in view of the conduct of the respondents in not challenging the said allotment in O.S. No. 71 of 1958 and O.S. No. 36 of 1963, they cannot be permitted to challenge the nature of the right to the properties. The Appellate Court also relied on the fact that the plaint schedule properties (less than 37 acres) is a small part compared to the large extent of properties which belonged to the coparcenary consisting of the two brothers.115. As far as O.S. No. 71 of 1958 is concerned, the respondents have produced A1-Plaint. As already noted, there was no occasion for adjudication of the matter as the case was compromised. The appellants, in fact, would claim that they are not even bound by the said Decree. This is for the reason that under the said Decree, the plaint schedule properties herein have been recognised as the absolute properties of the respondents. If any reliance is to be placed on the said Decree, then, the fact that under the compromise Decree, the entire rights have been given-up by the life estate holder R. Krishnammal, stares one in his face. A2 is the compromise Decree. It is dated 21.07.1958. The Suit was filed on 10.04.1958. It apparently may have suited the respondents to not allow the matter to go to trial. The testimony of PW1 shows, inter alia, as follows:R. Krishnammal has informed as how much you can give me. R. Krishnammal has asked for one house to live and land for food, otherwise, she did not ask for equal share in the property.116. As far as O.S. No. 36 of 1963 is concerned, A3 is the Plaint. In A4-Written Statement filed by R. Krishnammal-First Defendant, she disputed the case about the compromise and she defended the compromise in O.S. No. 71 of 1958. The respondents were, in fact, initially not parties. We have already noticed that the compromise Decree, which ensued even in the said case, modifying the absolute estate of R. Krishnammal and limiting it to a life estate in regard to Item Nos. 5 and 6, did involve reiteration of the Will.117. It is to be remembered that while on the one hand, R. Krishnammal, in O.S. No. 71 of 1958, set-up the Will, as also the case of oral partition and exclusive ownership of her late husband, she also was willing to adopt the stand of the Lakshmiah branch that her late husband and his brother were not separated. On the said basis, she had also laid a claim based on the Hindu Womens Right to Property Act, 1937, and what is more, also relied upon the Hindu Succession Act. It is this Suit which was compromised. It is certainly not possible to predicate on what basis Lakshmiah branch became amenable for the compromise. It might have been different if the cause of action of R. Krishnammal was based solely on the basis of the Will. In this case, having regard to the alternate case set-up based on the rights available to her, as aforesaid, and noticing that some items out the Will were recognised as her own, and the other items which included items which were included in the Will and also part of the larger joint family property, she has given-up her rights, it cannot be characterised as not using of the opportunity by the Lakshmiah branch to challenge the unilateral allocation by V. Rangaswami Naidu.118. In O.S. No. 36 of 1963 also, as we have already discussed, at the time of the compromise in 1974, the Lakshmiah branch was already party to the compromise in O.S. No. 71 of 1958, under which they had, in fact, recognised the absolute rights in regard to Item Nos. 5 and 6 in favour of R. Krishnammal. It mattered little to them that under the compromise Decree in O.S. No. 36 of 1963, it was to be enjoyed as a life estate by R. Krishnammal and to be not alienated by her. We have noticed that it was stated that no relief was claimed against the other Defendants in the said Suit. The inference drawn by the First Appellate Court based on not making use of the opportunity to challenge the unilateral allocation, in such circumstance, does not appeal to us.119. Coming to the second aspect, the First Appellate Court has noticed the fact that the property belonging to the family, was much bigger, as a result of which the unilateral allotment could not be treated as unjust. It does not address the legal issues. On the basis that there is a division in the joint family status, undoubtedly, V. Rangaswami Naidu would be freed from the stranglehold of the principle that a Hindu could not bequeath his interest in the undivided family. As we have noticed, the moment there is a division, what emerges is the share of the erstwhile coparcener. In this case, there are only two coparceners, viz., V. Rangaswami Naidu and Lakshmiah Naidu. They would have one-half share between themselves. Undoubtedly, if V. Rangaswami Naidu had bequeathed his one-half share, it could not have generated legal controversy. We emphasise that this is subject to there having been a disruption. We have also noticed that if there is a disruption in the Joint Family status and partition in the narrow sense, it produces the consequence that as regards the share of the separated coparcener, his share becomes immune from any claim based on the Doctrine of Survivorship. We have also noticed that a bequest by a member of his interest in an undivided family, was juridically anathema, as under the Doctrine of Survivorship, persons claiming under the birth right over the property, would be preferred to those claiming under a Will. Once, this obstruction over the right of the legal heir is removed in the case of intestate succession, it would be the heirs, who would succeed. If that be so, can not a Hindu, be it before the Hindu Succession Act, bequeath specific properties over which he would have undoubtedly joint rights?We have noticed that during the interregnum, the properties of the family would continue to remain joint[See 1986(1) SCC 366]. In other words, unless there is a partition, qua, the properties, though the shares are ascertained by the partition in the sense of a division in the joint family, no coparcener could point to any specific item and claim it to be his.A Full Bench of the Madras High Court has dealt with this question in the decision reported in Aiyyagari Venkataramayya and another v. Aiyyagari Ramayya (1902) ILR 25 Madras 690 . The pointed question which actually arose before the Court on a reference to the Full Bench was, the effect of the death of the vendor after he effects sale of his interest in the Hindu Undivided Family. The contention apparently raised was, having regard to the Doctrine of Survivorship, if the vendee did not institute a Suit to enforce his rights, while the vendor was alive, the vendee would have no right at all to enforce. Justice Bashyam Ayyangar has authored a separate Judgement wherein he has surveyed exhaustively the entire case law. The learned Judge holds inter alia as follows:The question of a member of an undivided Hindu family alienating family property for his own purposes is not a topic dealt with, as far as I am aware, by any texts of Hindu law or by the commentators. No express authority on the subject can therefore be found in the Hindu law books, and it is questionable whether an alienation by a co-parcener of his undivided share and interest was recognised by Hindu jurists. As observed by the Judicial Committee there can be little doubt that all such alienations, whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided Hindu family and the law as established in Madras and Bombay has been one of gradual growth, founded upon the equity which a purchaser for value has to be allowed to stand in his vendors shoes and work out his rights by means of a partition Suraj Bunsi Koer v. Sheo Persad I.L.R. 5 Calc.e learned Judge further goes on to state the law in the following terms:A co-parcener may profess to alienate either his undivided share in the whole of the family property or his undivided share in some specified portion of the family property-as in the present case-or the whole of a specified portion of the family property-as in the case in Venkatachella Pillai v. Chinnaiya Mudaliar 5 M.H.C.R. 166. The same thing may take place in the case of involuntary sales also. In all these cases, the sale operates upon the interest and share of the transferor as the same existed at the date of the transfer and the transferee must work out the transfer by bringing a suit for ascertaining what the share and interest of the transferor was at the date of the transfer. Such a suit is not technically a suit for partition and the decree which he may obtain enforcing the transfer, either in whole or in part, by a partition of the family property will not by itself break up the joint ownership of the members of the family in the remaining property, nor the corporate character of the, however, notice also the following:The claim of a transferee from a co- parcener to work out the transfer is no doubt an equitable claim in the sense that he must be a transferee for value and in cases where the transfer relates to a specific portion of the family property, he has no legal right, any more than his transferor himself, to insist on that specific portion being allotted to the share of the vendor. Being a purchaser for value he will have an equity to have such portion or so much thereof as is practicable so allotted, if that can be done without prejudice to the interests of the other sharers. In any suit which may be brought by him to enforce the sale, all the members of the family should be joined as parties as in a partition suit, the subject-matter of the suit being the family property as it existed at the date of the transfer.It appears there is no uniformity in regard to the power of a coparcener to sell his undivided interest.123. Thus, in the case of an alienation by a Hindu, even if it is of a specific property belonging to the joint property, it would be dealt with on an equitable basis, should the alienee bring an action to enforce the same in a properly constituted Suit. The conclusion we would arrive at is that the sale of such a right even over specific immovable property by a coparcener in a Mitakshara Hindu Joint Family does take effect in law where it is permitted and it would not be a case of a void transaction. The purpose of undertaking this discussion is to appreciate the law relating to the power of the coparcener to transfer specific items even if there has been no partition in the sense of a division of title so that we are in a better position to appreciate the question as to whether in a case where a Hindu executes a Will prior to the Hindu Succession Act could, he, by a Will, after a division is brought about in the family bequeath specific immovable property.124. In order to understand this problem in its proper perspective, we must advert to certain vital dimensions. The real principle on the basis of which the interest of a coparcener in a Joint Hindu Family could not be the subject matter of a valid bequest was that the bequest would come into collision with the right to claim property by survivorship vested in the other coparceners upon their birth. Thus, it is a case of a prior right taking precedence over the bequest which can come into force only not from the date of the making of the Will but upon the death of the Testator. This distinction, has apparently allowed courts to recognise an inter-vivos alienation which is possible only when the coparcener is alive of his interest in the Joint Hindu Family as it does not involve a conflict between the right by survivorship and rights sought to be created by the coparcener. However once there is a division, then right by survivorship ceases and there can be objection to said principle applying to a bequest of a specified immovable property. In fact, the case of a will made after division of specific immovable property stands on a different footing and the objection that the sale is by a coparcener when the joint family exists does not hold good.125. The second point of distinction which we may notice is that as noted by Justice Bashyam Ayyangar in Aiyyagari Venkataramayya and another (supra) is that, the right was recognised as an equitable right in favour of an alienee who has purported to purchase the property for valuable consideration. A bequest may be subject to an onerous condition and the rights of the Legatee may become subject to the Doctrine of Election. A bequest, on the other hand, may involve no liability for the Legatee, in which case, he may not bear resemblance to an alienee under the inter-vivos transfer who purchases property for valuable consideration.126. At least, as an equitable claim, can not appellants enforce their right and claim to be allotted the items on the basis that they could be allotted to the share of the Testator as in the case of a transferee from a Hindu of specific immovable property, even when the joint family continues to exist? We have noticed that the law does not render such transferee helpless. No doubt, one of the conditions which has been evolved in by Justice Bashyam Ayyangar in the decision in Aiyyagari Venkataramayya (supra) is that all the sharers must be on the party array. In this case, the said requirement is fulfilled as they are represented as Defendants 4 to 11 is O.S. No. 89 of 1983. No doubt, we notice that another requirement, in such a case, would be that all the properties of the joint family are scheduled. This requirement is not seen fulfilled and the frame of the Suit is based on exclusive title of the plaintiff and Defendants 1 to 3 which is based on bequest.127. About the extent of property belonging to the family, it is relevant to notice that PW1 has deposed, inter alia, as follow:My brother Baktachalam gave an extent of 750 acres of land in Kollegal Village, Satyamangalam to his father in the name of Government assignment in the year 1944. Those 750 acres of land are under our family possession. My father had purchased an extent of 150 acres of land in Coimbatore from 1932 to 1958 in my name and Ramathal. More than 1,000 acres of land were purchased from 1944 to 1958 in their family. V. Rangaswami Naidu is having right upon 1,000 acres of land purchased in Kollagal, Kollangodu, Coimbatore and Tanjore. I know that R. Krishnammal has right over 1,000 acres of land. R. Krishnammal did not claim share in 1000 acres of land in A1. When we settled the matter and gave the share to R. Krishnammal, we did not take into account of an extent of 1,400 acres of land. R. Krishnammal did not claim share as she is having right over more than 700 acres of land.Above is the picture regarding the availability of the family properties. They are of course not scheduled in the Plaint. We are not exactly aware of the value of these lands.128. We would certainly think that the Legatee under the Will, left behind by a Hindu after there is division in the family status in regard to specific properties belonging to the family, would indeed have rights qua the property but limited to the share of the Testator. It cannot be a principle of law in the region of controversy that a man cannot ordinarily transfer a right greater than what he himself has. Even under the Indian Succession Act, under Section 59, there could be no prohibition in V. Ranagaswami Naidu bequeathing his share, if there was division. We have already noticed that in a bequest, the equitable consideration available to a transferee by an intra-vivos transaction, wherein he has paid valuable consideration, may not apply. But this cannot mean that, if everything else is proved, the legatee shouldbe left remediless. We did toy with the idea of considering holding in favour of the appellants even treating it to be an exercise of powers under Article 142 of the Constitution of India in the special facts of this case as brought out by the testimony of PW1 as regards the inequity involved. No doubt, we find the frame of the Suit hardly helpful to the appellants. But having regard to the fact that the appellants must fail otherwise, we need not explore this matter further.We do not think there is any merit in this argument. It may be true that though no issue as such was raised, the trial court was indeed called upon by the parties to answer this question. What is involved essentially is the reading the contents of the will so as to ascertain whether it has the impact of being the declaration of an unequivocal intent of the coparcener to separate.In order that Section 3(2) of the 1937 Act applies, V. Rangaswami Naidu must have died intestate, leaving behind an interest in the Hindu Undivided Family. What the appellants are calling upon us to do is to take a part of the Will which allegedly contains the declaration which in law, effects division. But if the Will is to be acted upon, then the conundrum which exists is, it could not be said that V. Rangaswami Naidu died intestate qua the properties which are the plaint scheduled properties. In fact, Section 5 of the 1937 Act has defined the words die intestate to mean that a person shall be deemed to die intestate in respect of all property of which he has not made a testamantary deposition which is capable of take effect . On the one hand, the appellants would require this Court to hold that B10-Will should govern the rights of the parties and that it is capable of taking effect. If it is not found capable of taking effect, the cause of action would fail. If, therefore, we proceed on the basis that there is a will Section 3(2) did not apply, and R. Krishnammal, the widow, would get no right under Section 3(2). If she did not get any right under the Act with regard to the properties governed by the Will, then, the law relating to survivorship, under which Lakshmiah Naidu would succeed to the estate of his brother, would spring into being immediately on the death of V. Rangaswami Naidu on 01.06.1955.We may also, in this regard, turn to the contents of the Will, which we have already extracted in paragraph-77 hereinbefore. It will be noted that the Will starts off with the statement by the Testator that he owned the properties which included properties allotted in a partition and also which he acquired by independent purchases. Thereafter, he states that he had been a divided member since 1932 onwards. None of these statements would constitute a declaration. We have found that the case of partition in 1932 and independent purchases have been found against the appellants by three courts. Thereafter, there is only the statement that he has, in order to avoid any uncertainties, made an open declaration of his divided status today. It may be difficult for us to accept this statement as a declaration sufficient in law to cause a division. However even for a moment that it would work out as a declaration, we would think that the law laid down by this Court in Addagada Raghavamma (supra), may pose obstacles insuperable in nature, for the appellants.While it may be true that under the Doctrine of Relation Back and proceeding on the basis that the contents, as noted in the Will, amounted to a clear declaration to separate and that it would have effect from 10.05.1955, we cannot be oblivious to the creation of the vested rights. If the matter is to be governed under Section 3(2) of the 1937 Act, as already noted, it must be a case where V. Rangaswami Naidu died intestate. Therefore, if we proceed on the basis that there is a Will as indeed we must to accept the case of the appellants, Section 3(2) will not apply. If Section 3(2) does not apply, the claim to the property by survivorship, would arise, which would be fatal to the appellants case, for the reason put forth by Shri Guru Krishnakumar, learned Senior Counsel, as noted above. That is to say, in the facts of this case, in view of the division being communicated through the Will only after the succession had opened, and even allowing for the division to have effect from 10.5.1955 when the will was made, the vested right of Lakshmiah Naidu to claim by survivorship would spring into existence on 01.06.1955 when his brother died and the subsequent communication based on the Will cannot take away vested right which became available proceeding on the basis of the Will relating to the plaint schedule properties (see in this regard para 34 of Addagada Raghavamma (supra).134. In O.S. No. 649 of 1985, filed by the respondents, it is averred that the plaint scheduled properties were joint family properties of the two brothers and it is further averred that there was no partition between them and they were living as joint family till the death of V. Rangaswami Naidu in 1955. In paragraph-5 of the Plaint, it is specifically averred that, till the death of V. Rangaswami Naidu, he and his brother constituted a joint family and there was no division in status between them, and on the death of V. Rangaswami Naidu, the surviving coparcener took all the properties by survivorship. In the Written Statement, which is filed on the appellants side (viz., the Second Defendant), we notice the following pleading in paragraph-3 of the Plaint:3. R.V. Lakshmiah Naidu and V. Rangaswami Naidu were brothers. They were divided and living separately. They were cultivating their lands separately. The claim of the plaintiffs that R.V. Lakshmiah Naidu and V. Rangaswami Naidu were living as joint family and that there was no division in status till the death of V. Rangaswami Naidu is false. The joint family status between the brothers was duly disrupted and put an end to. There was also division of properties, and each was enjoying his respective properties separately. V. Rangaswami Naidu also purchased lands independently.135. No doubt, in O.S. No. 89 of 1983, what is averred is that the properties belonged to one V. Rangaswami Naidu. It was further averred in paragraph-9 of the Plaint that the brothers had divided the properties as early as in 1932. Out of the nine items scheduled in the Plaint (viz., O.S. No. 89 of 1983), Item Nos. 1 to 3 and Item Nos. 6 to 9 were allotted to the share of V. Rangaswami Naidu and were in his possession. Item Nos. 4 and 5 were purchased by V. Rangaswami Naidu long after the partition and belonged to him absolutely. We must also not lose sight of the fact that the averments in the later Suit (viz. O.S. No. 89 of 1983), makes reference to the allegations in O.S. No. 649 of 1985 (the number of the Suit after renumbering). Still further, we notice that when the issues were framed, the first issue was whether the Will executed by V. Rangaswami Naidu is true and valid and whether it came into force. A separate issue (Issue no. 2) was framed as to whether there was an oral partition. It is also noticed that in the discussion, the matter was debated before the Trial Court on the basis that by the publication of notice on 12.05.1955 in Navva India newspaper, there was division of the property. | 0 | 60,332 | 17,320 | ### Instruction:
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facts of this case in view of the finding that the properties bequeathed under the Will and which are the plaint scheduled properties are not the separate properties of Rangaswamy Naidu, She would have the right to the properties under Section 3(2) of the 1937 Act. This we observe for the reason that when the Hindu Succession Act came into force, R. Krishnammal had lost her tussle under the proceedings under Section 145 of the CrPC. We have also seen the nature of the pleading which she made in O.S. No. 71 of 1958. She specifically states it that she is entitled to recover possession of the property. No doubt, she does aver that she is entitled to treat herself as in joint possession. We may however notice the decision in Kotturuswami case (supra), in fact, came to be considered by another three Judge Bench of this Court in Mangal Singh and Others v. Smt. Rattno (Dead) by her legal representatives and another reported in AIR 1967 SC 1786 . Therein, this Court held as follows:- It was urged on behalf of the appellants that, in order to attract the provisions of S.14(1) of the Act, it must be shown that the female Hindu was either in actual physical possession, or constructive possession of the disputed property. On the other side, it was urged that even if a female Hindu be, in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights in that property still exist and, in exercise of those ownership rights, she is capable of obtaining actual possession of it. It appears to us that, on the language used in S.14(1) of the Act, the latter interpretation must be accepted. Noticing Section 14 (1) of the Act and that it covered property possessed by a female Hindu whether acquired before or after the commencement of the Act the Court proceeded to explain the circumstances in which the decision in Kotturuswami case (supra) was rendered. And thereafter the Court laid down as follows: …The Court was not laying down any general principle that S.14(1) will not be attracted at all to cases where the female Hindu was not possessed of the property at the date of the commencement of the Act. In fact, there are no words used in S.14(1) which would lead to the interpretation that the property must be possessed by the female Hindu at the date of the commencement of the Act. It appears to us that the relevant date on which the female Hindu should be possessed of the property in dispute, must be the date on which the question of applying the provisions of S.14(1) arises. If, on that date, when the provisions of this Section are sought to be applied, the property is possessed by a female Hindu, it would be held that she is full owner of it and not merely a limited owner. Such a question may arise in her own lifetime, or may arise subsequently when succession to her property opens on her death. The case before us falls in the second category, because Smt. Harnam Kaur was a limited owner of the property before the commencement of the Act, and the question that has arisen is whether Smt. Rattno was entitled to succeed to her rights in this disputed property on her death which took place in the year 1958 after the commencement of the Act…. In fact, we notice that this decision was not referred to by the two Judge Bench which rendered the decision in Sadhu Singh (supra). However, we find that it has been adverted to in AIR 1996 SC 172 (see para 14) and a very recent judgment of this Court in Shyam Narayan Sigh and Ors. vs. Rama Kant Singh and Ors. reported in 2018(1) RCR (Civil)981 rendered again by a Bench of two learned Judges. Therein, this Court held inter alia as follows: In other words, all that has to be shown by her is that she had acquired the property and that she was possessed of the property at the point of time when her title was called into question. In view of the dicta in Mangal Singh (supra), we feel reassured of our view that Section 14(1) applies. 174. Incidentally, we may notice what DW1, the witness on behalf of the appellants-legatees himself says: ..When Cr.PC 145 proceedings was conducted the properties were handed over to Latchumaiah and his sons by the receiver. From that onwards the properties are under their possession till today. We never being in the possession of the properties. CIVIL APPEAL NOS. 1045-1050 of 2013 175. The appellants claim on the basis of sale deeds executed by A. Alagiriswami, who is the First Defendant in both the Suits. The case, which is sought to be set- up is that, there was a partition among the Legatees of the plaint schedule properties and the properties purchased by them, was among the properties allotted to the First Defendant. Their entire case is based on A. Alagiriswami having rights in the property. We have already come to the conclusion that A. Alagiriswami has no rights, for the reasons which we have given. The arguments based on the compromise Decree in O.S. No. 71 of 1958, barring the Lakshmiah branch from questioning the partition or the Will, cannot be upheld. Insofar as we have held that R. Krishnammal had become the absolute owner under Section 14(1) of the Hindu Succession Act, and having regard to the compromise Decree in O.S. No. 71 of 1958 by which she had given-up all her rights in favour of the respondents, no right vested with A. Alagiriswami which he could have passed to the appellants. The plaintiffs in O.S. No. 649 of 1985, having sought a declaration of their right, and which they were entitled to. The contention that there was no challenge to the sale deeds, may not advance the case of the appellants.
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take effect . On the one hand, the appellants would require this Court to hold that B10-Will should govern the rights of the parties and that it is capable of taking effect. If it is not found capable of taking effect, the cause of action would fail. If, therefore, we proceed on the basis that there is a will Section 3(2) did not apply, and R. Krishnammal, the widow, would get no right under Section 3(2). If she did not get any right under the Act with regard to the properties governed by the Will, then, the law relating to survivorship, under which Lakshmiah Naidu would succeed to the estate of his brother, would spring into being immediately on the death of V. Rangaswami Naidu on 01.06.1955.We may also, in this regard, turn to the contents of the Will, which we have already extracted in paragraph-77 hereinbefore. It will be noted that the Will starts off with the statement by the Testator that he owned the properties which included properties allotted in a partition and also which he acquired by independent purchases. Thereafter, he states that he had been a divided member since 1932 onwards. None of these statements would constitute a declaration. We have found that the case of partition in 1932 and independent purchases have been found against the appellants by three courts. Thereafter, there is only the statement that he has, in order to avoid any uncertainties, made an open declaration of his divided status today. It may be difficult for us to accept this statement as a declaration sufficient in law to cause a division. However even for a moment that it would work out as a declaration, we would think that the law laid down by this Court in Addagada Raghavamma (supra), may pose obstacles insuperable in nature, for the appellants.While it may be true that under the Doctrine of Relation Back and proceeding on the basis that the contents, as noted in the Will, amounted to a clear declaration to separate and that it would have effect from 10.05.1955, we cannot be oblivious to the creation of the vested rights. If the matter is to be governed under Section 3(2) of the 1937 Act, as already noted, it must be a case where V. Rangaswami Naidu died intestate. Therefore, if we proceed on the basis that there is a Will as indeed we must to accept the case of the appellants, Section 3(2) will not apply. If Section 3(2) does not apply, the claim to the property by survivorship, would arise, which would be fatal to the appellants case, for the reason put forth by Shri Guru Krishnakumar, learned Senior Counsel, as noted above. That is to say, in the facts of this case, in view of the division being communicated through the Will only after the succession had opened, and even allowing for the division to have effect from 10.5.1955 when the will was made, the vested right of Lakshmiah Naidu to claim by survivorship would spring into existence on 01.06.1955 when his brother died and the subsequent communication based on the Will cannot take away vested right which became available proceeding on the basis of the Will relating to the plaint schedule properties (see in this regard para 34 of Addagada Raghavamma (supra).134. In O.S. No. 649 of 1985, filed by the respondents, it is averred that the plaint scheduled properties were joint family properties of the two brothers and it is further averred that there was no partition between them and they were living as joint family till the death of V. Rangaswami Naidu in 1955. In paragraph-5 of the Plaint, it is specifically averred that, till the death of V. Rangaswami Naidu, he and his brother constituted a joint family and there was no division in status between them, and on the death of V. Rangaswami Naidu, the surviving coparcener took all the properties by survivorship. In the Written Statement, which is filed on the appellants side (viz., the Second Defendant), we notice the following pleading in paragraph-3 of the Plaint:3. R.V. Lakshmiah Naidu and V. Rangaswami Naidu were brothers. They were divided and living separately. They were cultivating their lands separately. The claim of the plaintiffs that R.V. Lakshmiah Naidu and V. Rangaswami Naidu were living as joint family and that there was no division in status till the death of V. Rangaswami Naidu is false. The joint family status between the brothers was duly disrupted and put an end to. There was also division of properties, and each was enjoying his respective properties separately. V. Rangaswami Naidu also purchased lands independently.135. No doubt, in O.S. No. 89 of 1983, what is averred is that the properties belonged to one V. Rangaswami Naidu. It was further averred in paragraph-9 of the Plaint that the brothers had divided the properties as early as in 1932. Out of the nine items scheduled in the Plaint (viz., O.S. No. 89 of 1983), Item Nos. 1 to 3 and Item Nos. 6 to 9 were allotted to the share of V. Rangaswami Naidu and were in his possession. Item Nos. 4 and 5 were purchased by V. Rangaswami Naidu long after the partition and belonged to him absolutely. We must also not lose sight of the fact that the averments in the later Suit (viz. O.S. No. 89 of 1983), makes reference to the allegations in O.S. No. 649 of 1985 (the number of the Suit after renumbering). Still further, we notice that when the issues were framed, the first issue was whether the Will executed by V. Rangaswami Naidu is true and valid and whether it came into force. A separate issue (Issue no. 2) was framed as to whether there was an oral partition. It is also noticed that in the discussion, the matter was debated before the Trial Court on the basis that by the publication of notice on 12.05.1955 in Navva India newspaper, there was division of the property.
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Rm. Ar., Ar. Rm. Ar. Ramanathan Chettiar Vs. Commissioner Of Income-Tax, Madras | of land compulsorily acquired is interest paid for the delayed payment of the compensation and is therefore a revenue receipt liable to tax under the Act. It was held that the amount was not compensation for land acquired or for depriving the claimant of his right to possession but was paid to the claimant for the use of his money by the State and the statutory interest paid was, therefore a revenue receipt liable to income-tax. The principle of this decision applies to the present case also and we are of opinion that the interest paid to the assessee under the decree of the Supreme Court of Ceylon on the amount of Estate Duty directed to be refunded was income liable to be taxed under the Act.5. We shall proceed to consider the next question whether the receipt of interest, even if it constituted income, was exempt under S. 4 (3) (vii) of the Act as receipt of a casual and nor-recurring nature. Section 4 (3) (vii) of the Act is in the following: terms:"4. (3) Any income, profits or gains falling within the following classes shall not be included in total income of the person receiving them:* * * * *(vii) Any receipts not being capital gains chargable according to the provisions of S. 12-B and not being receipts arising from business or the exercise of a profession, vocation or occupation which are of a casual and non-recurring nature, or are not by way of addition to the remuneration of an employee."It was argued on behalf of the appellant that the amount in question was a lumpsum payment awarded under the decree of the Court and there was no quality of recurrence about it. We do not think that this submission is correct. It is true that the appellant received lump-sum payment on account of interest. That does not, however necessarily mean that the amount of interest is not a receipt of a recurring nature. On the other hand, the interest was granted under the decree of the Court from the date of the institution of the proceedings in the District Court and was calcu1ated upon the footing that it accrued de die in diem, and hence it has the essential quality of recurrence which is sufficient to bring it within the scope of the Act. It was also contended that the receipt of interest was casual in its character. The expression casual has not been defined in the Act and must therefore be construed in its plain and ordinary sense. According to the Shorter Oxford English Dictionary the word casual is defined to mean: (i) Subject to or produced by chance; accidental, fortuitous, (ii) Coming at uncertain times, not to be calculated on, unsettled". A receipt of interest which is foreseen and anticipated cannot be regarded as casual even if it is not likely to recur again. When the action was commenced by way of a petition in the District Court of Ceylon, it was well within the contemplation and anticipation of the person representing the estate that a successful termination of the action would not merely result in a decree for the tax illegally collected, but would also make the Crown liable to pay interest on that amount from the date of the petition till the date of the payment. The receipt of interest in the present case by virtue of the decree of the Supreme Court of Ceylon bears no semblance, therefore, to a receipt of a casual character. It is not therefore possible to accept the argument of the appellant that the receipt of interest obtained under the decree of the Supreme Court of Ceylon was of a casual or non-recurring nature. We accordingly reject the submission of the appellant on this aspect of the case.6. It was lastly submitted on behalf of the appellant that the payment interest under the decree of the Supreme Court of Ceylon was made by the Ceylon Estate Duty Authorities to the estate of Arunachalam Chettiar(senior) and what was received by the appellant for his one-third share, namely, Rs. 1,93,328 was a share in the estate of the deceased and therefore was received by the appellant as part of the estate. In other words, the contention of the appellant was that the receipt was a capital receipt and was not assessable in his hands. It is not, however open to the appellant to advance this argument at this stage because the question did not arise out of the order of the Tribunal and no such question was referred by the appellate Tribunal for the decision of the High Court. Mr. A.K.Sen for the appellant also referred to the decision of the Madras High Court in Commissioner of Revenue, Madras v. Veerappa Chettiar, 1966-61 ITR256 (Mad) which dealt with `a share of the same income by another branch of the family. It was decided by the Madras High Court in that case that the receipt of interest prior to February 17, 1947 should be regarded as capital and the rest should be regarded as income receipt. But the question of the disruption of the status of joint family on February 17. 1947 and the effect of that disruption upon the character of the interest receipt was never raised before the appellate Tribunal and was not decided by it in the appeal before us. In Commissioner of Income-tax, :Bombay v. Scindia Steam Navigation Co. Ltd., 1961-42 ITR.589: (AIR 1961 SC 1633 ) it was pointed out by this Court that in hearing a reference under S. 66 of the Act the High Court acts purely in an advisory capacity, and it is of the essence of such a jurisdiction that the court can decide only question which are referred to it and not any other questions. In the present case, the High Court has rightly pointed out that the question did not arise out of the order of the Tribunal and was not the subject-matter of reference to the High Court. | 0[ds]Under the provisions of the Estate Duty Act of Ceylon, as it stood at the material time any person aggrieved by the assessment of estate duty could appeal to the appropriate District Court naming the Attorney-General as the respondent. After the Attorney-General is served in the matter the appeal is proceeded with as an action between the assessee as plaintiff and the Crown as defendant. The statute specifically provides that the provisions of the Civil Procedure Code and of the Stamp Ordinance shall apply to the proceeding. The petition of appeal should be stamped as though it were a plaint filed for the purpose of originating the action, and if it is not stamped with the requisite stamps it may be dealt with in the same manner as if it is a plaint which is insufficiently stamped. Any party aggrieved by any decree or order of the District Court may further appeal to the Supreme Court in accordance with the provisions of the Civil Procedureprovision corresponds to S. 34 of the Civil Procedure Code in India. Section 192 of the Ceylon Ordinance II of 1889 expressly uses the word interest in contrast to principal sum adjudged and we do not see any reason why the expression should not be given the natural meaning it bears. In its judgment, dated October 12, 1953 the Supreme Court of Ceylon acted under this Section and ordered the Crown to refund to the appellant the sum of Rs. 7,00,402.65 with legal interest thereon from the date of the institution of the proceedings in the District Court. We see no warrant for accepting the submission of the appellant that the interest awarded by the Supreme Court of Ceylon under S. 192 of Ordinance II of 1889 should be taken to be a capital receipt being in the nature of damages for wrongful retention of money. In WestminsterBank Ltd. v. Riches, (1947) 28 Tax Cas 159(HL), the question at issue was whether the amount of interest awarded by the Court in exercise of its discretionary power under S. 8 of the Law Reform (Miscellaneous Provisions) Act, 1934 was interest of money within the meaning of Sch. D and General Rule 21 of the Income-tax Act, 1918 and whether income-tax was accordingly deductible therefrom. It was contended in that case on behalf of the respondent that the amount though awarded under a power to add interest to the amount of debt and though called interest in the judgment, was not really interest such as attracts income-tax but was damages. This argument was rejected by the House of Lords and it was held that there was no incompatibility between the two conceptions and that the amount was taxable as interest of money with Sch. D and General Rule 21 of the Income-tax Act, 1918. It was pointed out that the real question in cases of this type was not whether the amount received was interest proper or damages but whether it had the quality of income or it was a capital sum estimated in terms ofpassage was quoted with approval by this Court in Dr. Shamlal Narula v. Commissioner of Income-tax Punjab, Jammu and Kashmir. Himachal Pradesh and Patiala 1964-53 ITR (SC) 151: (AIR 1964 SC 1878 ) in which a question arose whether the statutory interest paid under S. 34 of the Land Acquisition Act, 1894, on the amount of compensation awarded for the period from the date the Collector has taken possession of land compulsorily acquired is interest paid for the delayed payment of the compensation and is therefore a revenue receipt liable to tax under the Act. It was held that the amount was not compensation for land acquired or for depriving the claimant of his right to possession but was paid to the claimant for the use of his money by the State and the statutory interest paid was, therefore a revenue receipt liable to income-tax. The principle of this decision applies to the present case also and we are of opinion that the interest paid to the assessee under the decree of the Supreme Court of Ceylon on the amount of Estate Duty directed to be refunded was income liable to be taxed under theis true that the appellant received lump-sum payment on account of interest. That does not, however necessarily mean that the amount of interest is not a receipt of a recurring nature. On the other hand, the interest was granted under the decree of the Court from the date of the institution of the proceedings in the District Court and was calcu1ated upon the footing that it accrued de die in diem, and hence it has the essential quality of recurrence which is sufficient to bring it within the scope of the Act. It was also contended that the receipt of interest was casual in its character. The expression casual has not been defined in the Act and must therefore be construed in its plain and ordinary sense. According to the Shorter Oxford English Dictionary the word casual is defined to mean: (i) Subject to or produced by chance; accidental, fortuitous, (ii) Coming at uncertain times, not to be calculated on, unsettled". A receipt of interest which is foreseen and anticipated cannot be regarded as casual even if it is not likely to recur again. When the action was commenced by way of a petition in the District Court of Ceylon, it was well within the contemplation and anticipation of the person representing the estate that a successful termination of the action would not merely result in a decree for the tax illegally collected, but would also make the Crown liable to pay interest on that amount from the date of the petition till the date of the payment. The receipt of interest in the present case by virtue of the decree of the Supreme Court of Ceylon bears no semblance, therefore, to a receipt of a casual character. It is not therefore possible to accept the argument of the appellant that the receipt of interest obtained under the decree of the Supreme Court of Ceylon was of a casual or non-recurring nature. We accordingly reject the submission of the appellant on this aspect of theother words, the contention of the appellant was that the receipt was a capital receipt and was not assessable in his hands. It is not, however open to the appellant to advance this argument at this stage because the question did not arise out of the order of the Tribunal and no such question was referred by the appellate Tribunal for the decision of the High Court. Mr. A.K.Sen for the appellant also referred to the decision of the Madras High Court in Commissioner of Revenue, Madras v. Veerappa Chettiar, 1966-61 ITR256 (Mad) which dealt with `a share of the same income by another branch of the family. It was decided by the Madras High Court in that case that the receipt of interest prior to February 17, 1947 should be regarded as capital and the rest should be regarded as income receipt. But the question of the disruption of the status of joint family on February 17. 1947 and the effect of that disruption upon the character of the interest receipt was never raised before the appellate Tribunal and was not decided by it in the appeal before us. In Commissioner of Income-tax, :Bombay v. Scindia Steam Navigation Co. Ltd., 1961-42 ITR.589: (AIR 1961 SC 1633 ) it was pointed out by this Court that in hearing a reference under S. 66 of the Act the High Court acts purely in an advisory capacity, and it is of the essence of such a jurisdiction that the court can decide only question which are referred to it and not any other questions. In the present case, the High Court has rightly pointed out that the question did not arise out of the order of the Tribunal and was not the subject-matter of reference to the Highdo not think there is any justification for this argument. The amount was paid by the Ceylon Estate Duty Authorities under the judgment and decree of the Supreme Court of Ceylon the relevant portion of which reads aswould, therefore, set aside the order under appeal and substitute a decree (a) declaring that no Estate Duty was payable under Estate Duty Ordinance (Cap. 187) in respect of the estate of Arunachalam Chettiar (senior) and (b) ordering the Crown to refund to the appellants the sum of Rs. 7,00,402.65 P. with legal interest thereon from the date on which these proceedings were instituted in the District Court. The appellants are also entitled to their costs in this Court and in the Courtdo not think that this submission is correct. | 0 | 3,554 | 1,569 | ### Instruction:
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of land compulsorily acquired is interest paid for the delayed payment of the compensation and is therefore a revenue receipt liable to tax under the Act. It was held that the amount was not compensation for land acquired or for depriving the claimant of his right to possession but was paid to the claimant for the use of his money by the State and the statutory interest paid was, therefore a revenue receipt liable to income-tax. The principle of this decision applies to the present case also and we are of opinion that the interest paid to the assessee under the decree of the Supreme Court of Ceylon on the amount of Estate Duty directed to be refunded was income liable to be taxed under the Act.5. We shall proceed to consider the next question whether the receipt of interest, even if it constituted income, was exempt under S. 4 (3) (vii) of the Act as receipt of a casual and nor-recurring nature. Section 4 (3) (vii) of the Act is in the following: terms:"4. (3) Any income, profits or gains falling within the following classes shall not be included in total income of the person receiving them:* * * * *(vii) Any receipts not being capital gains chargable according to the provisions of S. 12-B and not being receipts arising from business or the exercise of a profession, vocation or occupation which are of a casual and non-recurring nature, or are not by way of addition to the remuneration of an employee."It was argued on behalf of the appellant that the amount in question was a lumpsum payment awarded under the decree of the Court and there was no quality of recurrence about it. We do not think that this submission is correct. It is true that the appellant received lump-sum payment on account of interest. That does not, however necessarily mean that the amount of interest is not a receipt of a recurring nature. On the other hand, the interest was granted under the decree of the Court from the date of the institution of the proceedings in the District Court and was calcu1ated upon the footing that it accrued de die in diem, and hence it has the essential quality of recurrence which is sufficient to bring it within the scope of the Act. It was also contended that the receipt of interest was casual in its character. The expression casual has not been defined in the Act and must therefore be construed in its plain and ordinary sense. According to the Shorter Oxford English Dictionary the word casual is defined to mean: (i) Subject to or produced by chance; accidental, fortuitous, (ii) Coming at uncertain times, not to be calculated on, unsettled". A receipt of interest which is foreseen and anticipated cannot be regarded as casual even if it is not likely to recur again. When the action was commenced by way of a petition in the District Court of Ceylon, it was well within the contemplation and anticipation of the person representing the estate that a successful termination of the action would not merely result in a decree for the tax illegally collected, but would also make the Crown liable to pay interest on that amount from the date of the petition till the date of the payment. The receipt of interest in the present case by virtue of the decree of the Supreme Court of Ceylon bears no semblance, therefore, to a receipt of a casual character. It is not therefore possible to accept the argument of the appellant that the receipt of interest obtained under the decree of the Supreme Court of Ceylon was of a casual or non-recurring nature. We accordingly reject the submission of the appellant on this aspect of the case.6. It was lastly submitted on behalf of the appellant that the payment interest under the decree of the Supreme Court of Ceylon was made by the Ceylon Estate Duty Authorities to the estate of Arunachalam Chettiar(senior) and what was received by the appellant for his one-third share, namely, Rs. 1,93,328 was a share in the estate of the deceased and therefore was received by the appellant as part of the estate. In other words, the contention of the appellant was that the receipt was a capital receipt and was not assessable in his hands. It is not, however open to the appellant to advance this argument at this stage because the question did not arise out of the order of the Tribunal and no such question was referred by the appellate Tribunal for the decision of the High Court. Mr. A.K.Sen for the appellant also referred to the decision of the Madras High Court in Commissioner of Revenue, Madras v. Veerappa Chettiar, 1966-61 ITR256 (Mad) which dealt with `a share of the same income by another branch of the family. It was decided by the Madras High Court in that case that the receipt of interest prior to February 17, 1947 should be regarded as capital and the rest should be regarded as income receipt. But the question of the disruption of the status of joint family on February 17. 1947 and the effect of that disruption upon the character of the interest receipt was never raised before the appellate Tribunal and was not decided by it in the appeal before us. In Commissioner of Income-tax, :Bombay v. Scindia Steam Navigation Co. Ltd., 1961-42 ITR.589: (AIR 1961 SC 1633 ) it was pointed out by this Court that in hearing a reference under S. 66 of the Act the High Court acts purely in an advisory capacity, and it is of the essence of such a jurisdiction that the court can decide only question which are referred to it and not any other questions. In the present case, the High Court has rightly pointed out that the question did not arise out of the order of the Tribunal and was not the subject-matter of reference to the High Court.
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0
### Explanation:
Rule 21 of the Income-tax Act, 1918. It was pointed out that the real question in cases of this type was not whether the amount received was interest proper or damages but whether it had the quality of income or it was a capital sum estimated in terms ofpassage was quoted with approval by this Court in Dr. Shamlal Narula v. Commissioner of Income-tax Punjab, Jammu and Kashmir. Himachal Pradesh and Patiala 1964-53 ITR (SC) 151: (AIR 1964 SC 1878 ) in which a question arose whether the statutory interest paid under S. 34 of the Land Acquisition Act, 1894, on the amount of compensation awarded for the period from the date the Collector has taken possession of land compulsorily acquired is interest paid for the delayed payment of the compensation and is therefore a revenue receipt liable to tax under the Act. It was held that the amount was not compensation for land acquired or for depriving the claimant of his right to possession but was paid to the claimant for the use of his money by the State and the statutory interest paid was, therefore a revenue receipt liable to income-tax. The principle of this decision applies to the present case also and we are of opinion that the interest paid to the assessee under the decree of the Supreme Court of Ceylon on the amount of Estate Duty directed to be refunded was income liable to be taxed under theis true that the appellant received lump-sum payment on account of interest. That does not, however necessarily mean that the amount of interest is not a receipt of a recurring nature. On the other hand, the interest was granted under the decree of the Court from the date of the institution of the proceedings in the District Court and was calcu1ated upon the footing that it accrued de die in diem, and hence it has the essential quality of recurrence which is sufficient to bring it within the scope of the Act. It was also contended that the receipt of interest was casual in its character. The expression casual has not been defined in the Act and must therefore be construed in its plain and ordinary sense. According to the Shorter Oxford English Dictionary the word casual is defined to mean: (i) Subject to or produced by chance; accidental, fortuitous, (ii) Coming at uncertain times, not to be calculated on, unsettled". A receipt of interest which is foreseen and anticipated cannot be regarded as casual even if it is not likely to recur again. When the action was commenced by way of a petition in the District Court of Ceylon, it was well within the contemplation and anticipation of the person representing the estate that a successful termination of the action would not merely result in a decree for the tax illegally collected, but would also make the Crown liable to pay interest on that amount from the date of the petition till the date of the payment. The receipt of interest in the present case by virtue of the decree of the Supreme Court of Ceylon bears no semblance, therefore, to a receipt of a casual character. It is not therefore possible to accept the argument of the appellant that the receipt of interest obtained under the decree of the Supreme Court of Ceylon was of a casual or non-recurring nature. We accordingly reject the submission of the appellant on this aspect of theother words, the contention of the appellant was that the receipt was a capital receipt and was not assessable in his hands. It is not, however open to the appellant to advance this argument at this stage because the question did not arise out of the order of the Tribunal and no such question was referred by the appellate Tribunal for the decision of the High Court. Mr. A.K.Sen for the appellant also referred to the decision of the Madras High Court in Commissioner of Revenue, Madras v. Veerappa Chettiar, 1966-61 ITR256 (Mad) which dealt with `a share of the same income by another branch of the family. It was decided by the Madras High Court in that case that the receipt of interest prior to February 17, 1947 should be regarded as capital and the rest should be regarded as income receipt. But the question of the disruption of the status of joint family on February 17. 1947 and the effect of that disruption upon the character of the interest receipt was never raised before the appellate Tribunal and was not decided by it in the appeal before us. In Commissioner of Income-tax, :Bombay v. Scindia Steam Navigation Co. Ltd., 1961-42 ITR.589: (AIR 1961 SC 1633 ) it was pointed out by this Court that in hearing a reference under S. 66 of the Act the High Court acts purely in an advisory capacity, and it is of the essence of such a jurisdiction that the court can decide only question which are referred to it and not any other questions. In the present case, the High Court has rightly pointed out that the question did not arise out of the order of the Tribunal and was not the subject-matter of reference to the Highdo not think there is any justification for this argument. The amount was paid by the Ceylon Estate Duty Authorities under the judgment and decree of the Supreme Court of Ceylon the relevant portion of which reads aswould, therefore, set aside the order under appeal and substitute a decree (a) declaring that no Estate Duty was payable under Estate Duty Ordinance (Cap. 187) in respect of the estate of Arunachalam Chettiar (senior) and (b) ordering the Crown to refund to the appellants the sum of Rs. 7,00,402.65 P. with legal interest thereon from the date on which these proceedings were instituted in the District Court. The appellants are also entitled to their costs in this Court and in the Courtdo not think that this submission is correct.
|
Municipal Board, Saharanpur Vs. Imperial Tabacco of India Ltd | the following restrictions namely, -(a) that the tax shall not be imposed on land exclusively used for agricultural purposes, or, where the unit of assessment is a plot of land or a building as hereinafter defined on any such plot or building of which no part is within a radius, to be fixed by rule in this behalf for each municipality, from the nearest stand-pipe or other water-work whereat water is made available to the public by the board; and(b) that the tax is imposed solely with the object of defraying the expenses connected with the construction, maintenance, extension of improvement of municipal water-works and that all moneys derived therefrom shall be expended solely on aforesaid object.Explanation - In this section -(a) "building" shall include the compound (if any) thereof, and, where there are several buildings in common compound, all such buildings and the common compound;(b) "a plot of land" means any piece of land held by a single occupier, or held in common by several co-occupiers; whereof no one portion is entirely separated from any other portion by the land of another occupier or of other co-occupiers or by public property." A mere look at the said provisions shows that in 1957 the Act authorised the appellant Municipality to impose water-tax under Section 128(1) clause (x) subject to the restriction that the tax shall not be imposed on any plot or building of which no part is within the radius prescribed for the municipality from the nearest stand-pipe or other water work. The rules framed by the appellant Municipality which came into force on 12th September, 1958 amongst others, as noted earlier, included Rule 8 which with reference to Section 129(a) of the Act permitted the appellant Municipality to impose water-tax on lands or buildings which were within the radius of 600 feet from the nearest water stand pipe. A conjoint reading of Section 129 (1)(a) and the aforesaid rule 8 of the appellants Rules leaves no room for doubt that after 1958 the appellant Municipality imposed water-tax on lands and buildings which fell within the radius of 600 ft. from the nearest water stand pipe. There was no restriction under these rules to show that the radius of 600 ft. was confined only to residential buildings as tried to be suggested by learned senior counsel Shri Nariman for the respondent. It is of course true that the District Magistrate in his order at page 24 of Volume II and the High Court in the impugned judgment at page 6 have referred to notification dated 12th September, 1958 pertaining to only residential buildings. But when the copy of the original notification as produced with the additional affidavit of Shri Badaru Zaman aforesaid is seen along with the relevant rules no doubt is left in our mind that the said notification entitled the appellant Municipality to impose water-tax on lands and buildings of all types situated within the municipal limits and which were in the radius of 600 ft. from the nearest water stand pipe. Shri Nariman, learned senior counsel for the respondent submitted that when the High Court has referred to notification dated 12th September, 1958 the copy of the notification relied upon in this additional affidavit may refer to some other notification. The aforesaid contention cannot be sustained for the simple reason that a close look at the said notification shows that the sanction for imposition of water-tax is pursuant to the Government Order dated 12th September, 1958 but the draft rules appeared to have been framed on 12th September, 1956. The High Court and the District Magistrate seem to have referred to 12th September, 1958 as the date on which the relevant rules came into force. As the disputed assessment is for a period after 12th September, 1958, the objection raised by Shri Nariman about any inconsistency regarding date of the rules pales into insignificance. Shri Nariman, learned senior counsel for the respondent then submitted that the Gazette Notification is still not produced and only a booklet is produced. But when we turn to the printed booklet, we do not find that what is printed at page 9 of the booklet does refer to the relevant Notification as in terms the number of the relevant notification has been mentioned. There is nothing to indicate that the said notification would not have been gazetted in the same form in which it is printed in the booklet. Presumption under Section 114 of the Indian Evidence Act regarding the performance of Officials Act therefore, would clearly get attracted in the facts of the present case. Nothing was pointed out to us by learned senior counsel for the respondent to indicate that there was any contrary gazette notification or that the gazette notification was laying down any different scheme as compared to the one which is printed in the booklet of 1973 which has stood the test of time for all these years. Consequently, point No. 5 is answered against the respondent and in favour of the appellant by holding that the notification of 12th September, 1958 also brought the factory premises of the respondent company within the tax net of water-tax and the said notification did not cover only the residential buildings. This point is, therefore, answered in favour of the appellant and against the respondent. Point No. (6) : 20. As a result of the aforesaid finding on the relevant points, we set aside the order of the Division Bench and confirm the order of the learned single Judge and allow the writ petition of the appellant Municipality on the reasoning indicated herein-above. It is held that the impugned levy of water-tax on residential and non-residential buildings of the respondent company was perfectly justified in the facts and circumstances of the case. As the levy of the water-tax for the relevant period is found to be well sustained there will remain no question of refunding any amount collected by the appellant towards the said levy from the respondent. 21. | 1[ds]The learned senior counsel for the respondent company, Shri Nariman rightly invited our attention to the various decisions taking the view that for taxing purpose, if two views are possible on the construction of the provisions, the view which supports the case of the tax-payer should be preferred as compared to the view which support the taxing authority. However, on the express language of Section 129 Explanation (a) it must be held that no two views are possible, but only one view is possible, namely, that the connotation of the term "common compound" is entirely different and wider in nature as compared to the connotation of "compound" as defined in Section 2, sub-section (5) as seen earlier. It is unfortunate that this express provisions in all its aspect was not noticed by any of the courts below, though the Explanation to Section 129 was referred to both by the learned single Judge as well as the Division Bench of the High Court. We may mention at this stage that it was not the case of the respondent company at any time that the occupants of the buildings situated in the Bungalow Park Area or factory area had no common right to pass and re-pass from or to use the open land in which the said structures were situated or that the occupants of the residential bungalows could not use the common childrens park or swimming pool or kitchen etc. Their only contention was that because this common area was not an adjunct of or an area appurtenant to each of these buildings, the buildings that came within the radius of 600 feet from water stand pipe only attracted the water- tax levy. As we have discussed earlier, it is not possible to agree with this contention canvassed by learned senior counsel of the respondent company on the scheme of the Act. As a result of the aforesaid discussion, point No. 1 has to be answered in the affirmative, and point No. 2 in the negative. Thus, the answers on both these points shall be in favour of the appellant and against themere look at the reasoning of the appellate authority shows that it suffered from a patent error of law; while considering Explanation (a) to Section 129 which defines "building" the second part of the Explanation was completely ignored by the appellate authority. As seen earlier, the second part goes beyond the question of "compound" and embraces a wider field, namely, "common compound". As that part of the Explanation was completely ignored and as the appellate authority wrongly concentrated on the definition of the term "compound" as found under Section 2, sub-section (5), the entire reasoning adopted by the learned appellate authority became patently erroneous in law. The said glaring error of law, therefore, was rightly required to be set aside in writ jurisdiction by the learned single Judge. Once this conclusion is reached, the preliminary objection of Shri Nariman to the certificate issued by the High Court does not survive. The question also about the correct connotation of the term "common compound" would certainly give rise to a substantial question of law. However, we may mention that the reasoning adopted by the learned single Judge for upsetting the finding of the appellate authority is not accurate as the learned single Judge also wrongly involved the restricted definition of the term "compound" as found in Section 2, sub- section (5) and assuming that this definition applied, he went in search of appurtenant land being attached to such bungalows. Such exercise was not necessary on the clear scheme of second part of the Explanation (a) to Section 129 as seen earlier. However, by a wrong process of reasoning, ultimately the learned single Judge reached the correct conclusion that a part of the "common compound" land which was to be termed as "building", for the purpose of Section 129, belonging to the respondent company was within the permissible limits of 600 feet from the water stand pipe so as to entitle the appellant Municipality to impose water-tax on the entire complex of the buildings situated in common land belonging to the respondent company. This point for consideration is, therefore, to be answered in the affirmative in favour of appellant and against the respondent.This point for consideration strictly does not arise out of the certificate issued by the High Court in favour of the appellant Municipality. We, therefore, do not deem it fit to consider this point. We are inclined to take this view for a more substantial and practical reason, namely, that this appeal is pending since 1976 in this Court on the Certificate of fitness granted by the High Court. Even assuming that the learned counsel for the appellant is right that the special appeal was not maintainable under the Letters Patent applicable to the High Court of Judicature at Allahabad, respondent would be entitled to urge before us that they may be permitted to challenge the order of the learned single Judge directly before us under Article 136 of the Constitution since the entire period spent by them in the High Court and this Court up till now will get excluded under Section 14 of the Limitation Act. Consequently, at this late stage, we do not deem it fit to allow the appellant to take up this contention for voiding the decision of the Division Bench. Point No. 4, is, therefore, disposed of as not entertained and, therefore, notthe disputed assessment is for a period after 12th September, 1958, the objection raised by Shri Nariman about any inconsistency regarding date of the rules pales into insignificance. Shri Nariman, learned senior counsel for the respondent then submitted that the Gazette Notification is still not produced and only a booklet is produced. But when we turn to the printed booklet, we do not find that what is printed at page 9 of the booklet does refer to the relevant Notification as in terms the number of the relevant notification has been mentioned. There is nothing to indicate that the said notification would not have been gazetted in the same form in which it is printed in the booklet. Presumption under Section 114 of the Indian Evidence Act regarding the performance of Officials Act therefore, would clearly get attracted in the facts of the present case. Nothing was pointed out to us by learned senior counsel for the respondent to indicate that there was any contrary gazette notification or that the gazette notification was laying down any different scheme as compared to the one which is printed in the booklet of 1973 which has stood the test of time for all these years. Consequently, point No. 5 is answered against the respondent and in favour of the appellant by holding that the notification of 12th September, 1958 also brought the factory premises of the respondent company within the tax net of water-tax and the said notification did not cover only the residential buildings. This point is, therefore, answered in favour of the appellant and against the respondent.As a result of the aforesaid finding on the relevant points, we set aside the order of the Division Bench and confirm the order of the learned single Judge and allow the writ petition of the appellant Municipality on the reasoning indicated herein-above. It is held that the impugned levy of water-tax on residential and non-residential buildings of the respondent company was perfectly justified in the facts and circumstances of the case. As the levy of the water-tax for the relevant period is found to be well sustained there will remain no question of refunding any amount collected by the appellant towards the said levy from the respondent. | 1 | 9,506 | 1,406 | ### Instruction:
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the following restrictions namely, -(a) that the tax shall not be imposed on land exclusively used for agricultural purposes, or, where the unit of assessment is a plot of land or a building as hereinafter defined on any such plot or building of which no part is within a radius, to be fixed by rule in this behalf for each municipality, from the nearest stand-pipe or other water-work whereat water is made available to the public by the board; and(b) that the tax is imposed solely with the object of defraying the expenses connected with the construction, maintenance, extension of improvement of municipal water-works and that all moneys derived therefrom shall be expended solely on aforesaid object.Explanation - In this section -(a) "building" shall include the compound (if any) thereof, and, where there are several buildings in common compound, all such buildings and the common compound;(b) "a plot of land" means any piece of land held by a single occupier, or held in common by several co-occupiers; whereof no one portion is entirely separated from any other portion by the land of another occupier or of other co-occupiers or by public property." A mere look at the said provisions shows that in 1957 the Act authorised the appellant Municipality to impose water-tax under Section 128(1) clause (x) subject to the restriction that the tax shall not be imposed on any plot or building of which no part is within the radius prescribed for the municipality from the nearest stand-pipe or other water work. The rules framed by the appellant Municipality which came into force on 12th September, 1958 amongst others, as noted earlier, included Rule 8 which with reference to Section 129(a) of the Act permitted the appellant Municipality to impose water-tax on lands or buildings which were within the radius of 600 feet from the nearest water stand pipe. A conjoint reading of Section 129 (1)(a) and the aforesaid rule 8 of the appellants Rules leaves no room for doubt that after 1958 the appellant Municipality imposed water-tax on lands and buildings which fell within the radius of 600 ft. from the nearest water stand pipe. There was no restriction under these rules to show that the radius of 600 ft. was confined only to residential buildings as tried to be suggested by learned senior counsel Shri Nariman for the respondent. It is of course true that the District Magistrate in his order at page 24 of Volume II and the High Court in the impugned judgment at page 6 have referred to notification dated 12th September, 1958 pertaining to only residential buildings. But when the copy of the original notification as produced with the additional affidavit of Shri Badaru Zaman aforesaid is seen along with the relevant rules no doubt is left in our mind that the said notification entitled the appellant Municipality to impose water-tax on lands and buildings of all types situated within the municipal limits and which were in the radius of 600 ft. from the nearest water stand pipe. Shri Nariman, learned senior counsel for the respondent submitted that when the High Court has referred to notification dated 12th September, 1958 the copy of the notification relied upon in this additional affidavit may refer to some other notification. The aforesaid contention cannot be sustained for the simple reason that a close look at the said notification shows that the sanction for imposition of water-tax is pursuant to the Government Order dated 12th September, 1958 but the draft rules appeared to have been framed on 12th September, 1956. The High Court and the District Magistrate seem to have referred to 12th September, 1958 as the date on which the relevant rules came into force. As the disputed assessment is for a period after 12th September, 1958, the objection raised by Shri Nariman about any inconsistency regarding date of the rules pales into insignificance. Shri Nariman, learned senior counsel for the respondent then submitted that the Gazette Notification is still not produced and only a booklet is produced. But when we turn to the printed booklet, we do not find that what is printed at page 9 of the booklet does refer to the relevant Notification as in terms the number of the relevant notification has been mentioned. There is nothing to indicate that the said notification would not have been gazetted in the same form in which it is printed in the booklet. Presumption under Section 114 of the Indian Evidence Act regarding the performance of Officials Act therefore, would clearly get attracted in the facts of the present case. Nothing was pointed out to us by learned senior counsel for the respondent to indicate that there was any contrary gazette notification or that the gazette notification was laying down any different scheme as compared to the one which is printed in the booklet of 1973 which has stood the test of time for all these years. Consequently, point No. 5 is answered against the respondent and in favour of the appellant by holding that the notification of 12th September, 1958 also brought the factory premises of the respondent company within the tax net of water-tax and the said notification did not cover only the residential buildings. This point is, therefore, answered in favour of the appellant and against the respondent. Point No. (6) : 20. As a result of the aforesaid finding on the relevant points, we set aside the order of the Division Bench and confirm the order of the learned single Judge and allow the writ petition of the appellant Municipality on the reasoning indicated herein-above. It is held that the impugned levy of water-tax on residential and non-residential buildings of the respondent company was perfectly justified in the facts and circumstances of the case. As the levy of the water-tax for the relevant period is found to be well sustained there will remain no question of refunding any amount collected by the appellant towards the said levy from the respondent. 21.
### Response:
1
### Explanation:
levy. As we have discussed earlier, it is not possible to agree with this contention canvassed by learned senior counsel of the respondent company on the scheme of the Act. As a result of the aforesaid discussion, point No. 1 has to be answered in the affirmative, and point No. 2 in the negative. Thus, the answers on both these points shall be in favour of the appellant and against themere look at the reasoning of the appellate authority shows that it suffered from a patent error of law; while considering Explanation (a) to Section 129 which defines "building" the second part of the Explanation was completely ignored by the appellate authority. As seen earlier, the second part goes beyond the question of "compound" and embraces a wider field, namely, "common compound". As that part of the Explanation was completely ignored and as the appellate authority wrongly concentrated on the definition of the term "compound" as found under Section 2, sub-section (5), the entire reasoning adopted by the learned appellate authority became patently erroneous in law. The said glaring error of law, therefore, was rightly required to be set aside in writ jurisdiction by the learned single Judge. Once this conclusion is reached, the preliminary objection of Shri Nariman to the certificate issued by the High Court does not survive. The question also about the correct connotation of the term "common compound" would certainly give rise to a substantial question of law. However, we may mention that the reasoning adopted by the learned single Judge for upsetting the finding of the appellate authority is not accurate as the learned single Judge also wrongly involved the restricted definition of the term "compound" as found in Section 2, sub- section (5) and assuming that this definition applied, he went in search of appurtenant land being attached to such bungalows. Such exercise was not necessary on the clear scheme of second part of the Explanation (a) to Section 129 as seen earlier. However, by a wrong process of reasoning, ultimately the learned single Judge reached the correct conclusion that a part of the "common compound" land which was to be termed as "building", for the purpose of Section 129, belonging to the respondent company was within the permissible limits of 600 feet from the water stand pipe so as to entitle the appellant Municipality to impose water-tax on the entire complex of the buildings situated in common land belonging to the respondent company. This point for consideration is, therefore, to be answered in the affirmative in favour of appellant and against the respondent.This point for consideration strictly does not arise out of the certificate issued by the High Court in favour of the appellant Municipality. We, therefore, do not deem it fit to consider this point. We are inclined to take this view for a more substantial and practical reason, namely, that this appeal is pending since 1976 in this Court on the Certificate of fitness granted by the High Court. Even assuming that the learned counsel for the appellant is right that the special appeal was not maintainable under the Letters Patent applicable to the High Court of Judicature at Allahabad, respondent would be entitled to urge before us that they may be permitted to challenge the order of the learned single Judge directly before us under Article 136 of the Constitution since the entire period spent by them in the High Court and this Court up till now will get excluded under Section 14 of the Limitation Act. Consequently, at this late stage, we do not deem it fit to allow the appellant to take up this contention for voiding the decision of the Division Bench. Point No. 4, is, therefore, disposed of as not entertained and, therefore, notthe disputed assessment is for a period after 12th September, 1958, the objection raised by Shri Nariman about any inconsistency regarding date of the rules pales into insignificance. Shri Nariman, learned senior counsel for the respondent then submitted that the Gazette Notification is still not produced and only a booklet is produced. But when we turn to the printed booklet, we do not find that what is printed at page 9 of the booklet does refer to the relevant Notification as in terms the number of the relevant notification has been mentioned. There is nothing to indicate that the said notification would not have been gazetted in the same form in which it is printed in the booklet. Presumption under Section 114 of the Indian Evidence Act regarding the performance of Officials Act therefore, would clearly get attracted in the facts of the present case. Nothing was pointed out to us by learned senior counsel for the respondent to indicate that there was any contrary gazette notification or that the gazette notification was laying down any different scheme as compared to the one which is printed in the booklet of 1973 which has stood the test of time for all these years. Consequently, point No. 5 is answered against the respondent and in favour of the appellant by holding that the notification of 12th September, 1958 also brought the factory premises of the respondent company within the tax net of water-tax and the said notification did not cover only the residential buildings. This point is, therefore, answered in favour of the appellant and against the respondent.As a result of the aforesaid finding on the relevant points, we set aside the order of the Division Bench and confirm the order of the learned single Judge and allow the writ petition of the appellant Municipality on the reasoning indicated herein-above. It is held that the impugned levy of water-tax on residential and non-residential buildings of the respondent company was perfectly justified in the facts and circumstances of the case. As the levy of the water-tax for the relevant period is found to be well sustained there will remain no question of refunding any amount collected by the appellant towards the said levy from the respondent.
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Mumbai Mazdoor Sangh Vs. Regional Provident Fund Commissioner Maharashtra & Goa & Others | observations made by the Apex Court in the case of Dharamsi Morarji Chemical Co. Ltd. (Supra):It is true that if an establishment is found, as a fact, to consist of different departments or branches and if the departments and branches are located at different places, the establishment would still be covered by the net of Section 2A and the branches and departments cannot be said to be only on that ground not a part and parcel of the parent establishment. However, on the facts of the present case, the only connecting link which could be pressed in service by the learned counsel for the appellant was the fact that the respondent- Company was the owner not only of the Ambarnath factory but also of Roha factory. On the basis of common ownership it was submitted that necessarily the Board of Directors could control and supervise the working of Roha factory also and, therefore, according to the learned counsel, it could be said that there was interconnection between Ambarnath factory and Roha factory and it could be said that there was supervisory, financial or managerial control of of the same Board of Directors. So far as this contention is concerned the finding reached by the High Court, as extracted earlier, clearly shows that there was no evidence to indicate any such interconnection between the two factories in the matter of supervisory, financial or managerial control. Nothing could be pointed out to us to contraindicate this finding. Therefore, the net result is that the only connecting link which could be effectively pressed in service by the learned counsel for the appellant for culling out interconnection between Ambarnath factory and Roha factory was that both of them were owned by a common owner, namely, the respondent Company and the Board of Directors were common. That by itself cannot be sufficient unless there is clear evidence to show that there was interconnection between these two units and there was common supervisory, financial or managerial control. As there is no such evidence in the present case, on the peculiar facts of this case, it is not possible to agree with the learned counsel for the appellant that Roha factory was a part and parcel of Ambarnath factory or it was an adjunct of the main parent establishment functioning at Ambarnath since 1921.In the above case as well, the Company had established a new concern at Roha in Kolaba District of Maharashtra State on 9/7/1977, while it had an existing factory at Ambarnath in Thane District right from the year 1921 and it was held that the new unit at Roha could not be held to be a branch or department of the Company at Ambarnath within the meaning of Section 2A of the P.F. Act. A similar view was taken by the Supreme Court in the case of Rajs Continental Exports (P) Ltd. (Supra) by relying upon the earlier decision in the case of Pratap Press. In the case of Pratap Press (Supra), the Supreme Court held,The question whether the two activities in which the single owner is engaged are one industrial unit or two distinct industrial units is not always easy of solution. No hard-and-fast rule can be laid down for the decision of the question and each case has to be decided on its own peculiar facts. In some cases the two activities each of which by itself comes within the definition of industry are so closely linked together that no reasonable man would consider them as independent industries. There may be other cases where the connection between the two activities is not by itself sufficient to justify an answer one way or the other, but the employers own conduct in mixing up or not mixing up the capital, staff and management may often provide a certain answer.11. In the instant case, as noted earlier, there was no inter transfer of the staff between two units and in addition there was no evidence to point out that the supervision and control was done by a common management team or by a common manager of both the units. The employees of respondent no.3 were appointed by it alone and they were subject to the disciplinary action by the manager of that unit. We, therefore, do not find any material to hold that the concurrent findings recorded earlier suffer from any error on the face of the record so as to cause interference in this intra court appeal and the findings of facts recorded by the respondent no.1 to hold that the respondent no.3 is not a branch/department of respondent no.2 have been confirmed by the learned Single Judge and rightly so.12. However, before we part with this judgment, we have noted with concern that the list of scheduled industries has not been updated for a considerably long time. Some of the industries like respondent no.3 or the IT industries employ a large workforce and still they do not find place in the schedule to the Act and the employees working therein and who are eligible to be given the benefits of the Act and the scheme thereunder are deprived of the such benefits. Section 4 of the Act empowers the Central Government by notification in the Official Gazette to add to Schedule-I any other industry in respect of the employees whereof it is of opinion that a Provident Fund Scheme should be framed under the Act and thereupon the industry so added shall be deemed to be an industry specified in Schedule-I for the purposes of the Act. It would be, therefore, necessary for respondent no.1 to undertake a survey of all such non scheduled industries in the State of Maharashtra and take appropriate steps to submit its recommendations to the Central Government through the Ministry of Labour. We hope that such an exercise would be undertaken as expeditiously as possible and a report thereof is submitted to the Central Government along with a copy to be submitted to the Registry of this Court. | 0[ds]11. In the instant case, as noted earlier, there was no inter transfer of the staff between two units and in addition there was no evidence to point out that the supervision and control was done by a common management team or by a common manager of both the units. The employees of respondent no.3 were appointed by it alone and they were subject to the disciplinary action by the manager of that unit. We, therefore, do not find any material to hold that the concurrent findings recorded earlier suffer from any error on the face of the record so as to cause interference in this intra court appeal and the findings of facts recorded by the respondent no.1 to hold thatthe respondent no.3is not a branch/department of respondent no.2 have been confirmed by the learned Single Judge and rightly so.12. However, before we part with this judgment, we have noted with concern that the list of scheduled industries has not been updated for a considerably long time. Some of the industries like respondent no.3 or the IT industries employ a large workforce and still they do not find place in the schedule to the Act and the employees working therein and who are eligible to be given the benefits of the Act and the scheme thereunder are deprived of the such benefits. Section 4 of the Act empowers the Central Government by notification in the Official Gazette to add toany other industry in respect of the employees whereof it is of opinion that a Provident Fund Scheme should be framed under the Act and thereupon the industry so added shall be deemed to be an industry specified infor the purposes of the Act. It would be, therefore, necessary for respondent no.1 to undertake a survey of all such non scheduled industries in the State of Maharashtra and take appropriate steps to submit its recommendations to the Central Government through the Ministry of Labour. We hope that such an exercise would be undertaken as expeditiously as possible and a report thereof is submitted to the Central Government along with a copy to be submitted to the Registry of this Court. | 0 | 3,877 | 381 | ### 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:
observations made by the Apex Court in the case of Dharamsi Morarji Chemical Co. Ltd. (Supra):It is true that if an establishment is found, as a fact, to consist of different departments or branches and if the departments and branches are located at different places, the establishment would still be covered by the net of Section 2A and the branches and departments cannot be said to be only on that ground not a part and parcel of the parent establishment. However, on the facts of the present case, the only connecting link which could be pressed in service by the learned counsel for the appellant was the fact that the respondent- Company was the owner not only of the Ambarnath factory but also of Roha factory. On the basis of common ownership it was submitted that necessarily the Board of Directors could control and supervise the working of Roha factory also and, therefore, according to the learned counsel, it could be said that there was interconnection between Ambarnath factory and Roha factory and it could be said that there was supervisory, financial or managerial control of of the same Board of Directors. So far as this contention is concerned the finding reached by the High Court, as extracted earlier, clearly shows that there was no evidence to indicate any such interconnection between the two factories in the matter of supervisory, financial or managerial control. Nothing could be pointed out to us to contraindicate this finding. Therefore, the net result is that the only connecting link which could be effectively pressed in service by the learned counsel for the appellant for culling out interconnection between Ambarnath factory and Roha factory was that both of them were owned by a common owner, namely, the respondent Company and the Board of Directors were common. That by itself cannot be sufficient unless there is clear evidence to show that there was interconnection between these two units and there was common supervisory, financial or managerial control. As there is no such evidence in the present case, on the peculiar facts of this case, it is not possible to agree with the learned counsel for the appellant that Roha factory was a part and parcel of Ambarnath factory or it was an adjunct of the main parent establishment functioning at Ambarnath since 1921.In the above case as well, the Company had established a new concern at Roha in Kolaba District of Maharashtra State on 9/7/1977, while it had an existing factory at Ambarnath in Thane District right from the year 1921 and it was held that the new unit at Roha could not be held to be a branch or department of the Company at Ambarnath within the meaning of Section 2A of the P.F. Act. A similar view was taken by the Supreme Court in the case of Rajs Continental Exports (P) Ltd. (Supra) by relying upon the earlier decision in the case of Pratap Press. In the case of Pratap Press (Supra), the Supreme Court held,The question whether the two activities in which the single owner is engaged are one industrial unit or two distinct industrial units is not always easy of solution. No hard-and-fast rule can be laid down for the decision of the question and each case has to be decided on its own peculiar facts. In some cases the two activities each of which by itself comes within the definition of industry are so closely linked together that no reasonable man would consider them as independent industries. There may be other cases where the connection between the two activities is not by itself sufficient to justify an answer one way or the other, but the employers own conduct in mixing up or not mixing up the capital, staff and management may often provide a certain answer.11. In the instant case, as noted earlier, there was no inter transfer of the staff between two units and in addition there was no evidence to point out that the supervision and control was done by a common management team or by a common manager of both the units. The employees of respondent no.3 were appointed by it alone and they were subject to the disciplinary action by the manager of that unit. We, therefore, do not find any material to hold that the concurrent findings recorded earlier suffer from any error on the face of the record so as to cause interference in this intra court appeal and the findings of facts recorded by the respondent no.1 to hold that the respondent no.3 is not a branch/department of respondent no.2 have been confirmed by the learned Single Judge and rightly so.12. However, before we part with this judgment, we have noted with concern that the list of scheduled industries has not been updated for a considerably long time. Some of the industries like respondent no.3 or the IT industries employ a large workforce and still they do not find place in the schedule to the Act and the employees working therein and who are eligible to be given the benefits of the Act and the scheme thereunder are deprived of the such benefits. Section 4 of the Act empowers the Central Government by notification in the Official Gazette to add to Schedule-I any other industry in respect of the employees whereof it is of opinion that a Provident Fund Scheme should be framed under the Act and thereupon the industry so added shall be deemed to be an industry specified in Schedule-I for the purposes of the Act. It would be, therefore, necessary for respondent no.1 to undertake a survey of all such non scheduled industries in the State of Maharashtra and take appropriate steps to submit its recommendations to the Central Government through the Ministry of Labour. We hope that such an exercise would be undertaken as expeditiously as possible and a report thereof is submitted to the Central Government along with a copy to be submitted to the Registry of this Court.
### Response:
0
### Explanation:
11. In the instant case, as noted earlier, there was no inter transfer of the staff between two units and in addition there was no evidence to point out that the supervision and control was done by a common management team or by a common manager of both the units. The employees of respondent no.3 were appointed by it alone and they were subject to the disciplinary action by the manager of that unit. We, therefore, do not find any material to hold that the concurrent findings recorded earlier suffer from any error on the face of the record so as to cause interference in this intra court appeal and the findings of facts recorded by the respondent no.1 to hold thatthe respondent no.3is not a branch/department of respondent no.2 have been confirmed by the learned Single Judge and rightly so.12. However, before we part with this judgment, we have noted with concern that the list of scheduled industries has not been updated for a considerably long time. Some of the industries like respondent no.3 or the IT industries employ a large workforce and still they do not find place in the schedule to the Act and the employees working therein and who are eligible to be given the benefits of the Act and the scheme thereunder are deprived of the such benefits. Section 4 of the Act empowers the Central Government by notification in the Official Gazette to add toany other industry in respect of the employees whereof it is of opinion that a Provident Fund Scheme should be framed under the Act and thereupon the industry so added shall be deemed to be an industry specified infor the purposes of the Act. It would be, therefore, necessary for respondent no.1 to undertake a survey of all such non scheduled industries in the State of Maharashtra and take appropriate steps to submit its recommendations to the Central Government through the Ministry of Labour. We hope that such an exercise would be undertaken as expeditiously as possible and a report thereof is submitted to the Central Government along with a copy to be submitted to the Registry of this Court.
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Agarwal Tracom Pvt. Ltd Vs. Punjab National Bank & Others | We also notice that Rule 9(5) confers express power on the secured creditor to forfeit the deposit made by the auction purchaser in case the auction purchaser commits any default in paying installment of sale money to the secured creditor. Such action taken by the secured creditor is, in our opinion, a part of the measures specified in Section 13(4) and, therefore, it is regarded as a measure taken under Section 13(4) read with Rule 9(5). In our view, the measures taken under Section 13(4) commence with any of the action taken in clauses (a) to (d) and end with measures specified in Rule 9.30. In our view, therefore, the expression "any of the measures referred to in Section 13(4) taken by secured creditor or his authorized officer" in Section 17(1) would include all actions taken by the secured creditor under the Rules which relate to the measures specified in Section13(4).31. The auction purchaser (appellant herein) is one such person, who is aggrieved by the action of the secured creditor in forfeiting their money. The appellant, therefore, falls within the expression "any person" as specified under Section 17(1) and hence is entitled to challenge the action of the secured creditor (PNB) before the DRT by filing an application under Section 17(1) of the SARFAESI Act.32. Learned counsel for the appellant placed reliance on the decision of the Division Bench of High Court of Bombay in Umang Sugars Pvt. Ltd. v. State of Maharashtra & Anr., 2014(4) Mh.L.J. 113 which, according to him, supports his submission. We have gone through the decision and unable to agree with the view taken therein. Their Lordships, while holding that Section 17(1) does not apply to auction purchaser and, therefore, writ petition filed by him can be entertained in such cases, did not notice the Rules, which deal with the measures taken under Section 13(4) and nor considered its effect on the measures.33. In United Bank of India v. Satyawati Tondon & Ors., 2010(3) R.C.R.(Civil) 963 : 2010(4) Recent Apex Judgments (R.A.J.) 660 : (2010) 8 SCC 110 , this Court had the occasion to examine in detail the provisions of the SARFAESI Act and the question regarding invocation of the extraordinary power under Article 226/227 in challenging the actions taken under the SARFAESI Act. Their Lordships gave a note of caution while dealing with the writ filed to challenge the actions taken under the SARFAESI Act and made following pertinent observations which, in our view, squarely apply to the case on hand:"42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression "any person" used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution.45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance."34. In the light of foregoing discussion, we are of the considered opinion that the Writ Court as also the Appellate Court were justified in dismissing the appellants writ petition on the ground of availability of alternative statutory remedy of filing an application under Section 17(1) of SARFAESI Act before the concerned Tribunal to challenge the action of the PNB in forfeiting the appellants deposit under Rule 9(5). We find no ground to interfere with the impugned judgment of the High Court. | 1[ds]17. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal. In other words, the view taken by the High Court appears to be just and reasonable and hence does not call for any interference.So far as this case is concerned,(5) of Rule 9 is relevant. It provides that, if the auction purchaser commits any default in payment of sale consideration within the time specified, the deposit made by auction purchaser shall be "forfeited" to the secured creditor and the auctioned property shall be resold and the defaulting purchaser shall "forfeit" all claims to the property or its part of the sum for which it may be sold subsequently.Reading of the aforementioned Sections and the Rules and, in particular, Section 17(2) and Rule 9(5) would clearly go to show that an action of secured creditor in forfeiting the deposit made by the auction purchaser is a part of the measures taken by the secured creditor under Section 13(4).28. The reason is that Section 17(2) empowers the Tribunal to examine all the issues arising out of the measures taken under Section 13(4) including the measures taken by the secured creditor under Rules 8 and 9 for disposal of the secured assets of the borrower. The expression "provisions of this Act and the Rules made thereunder" occurring in(2), (3), (4) and (7) of Section 17 clearly suggests that it includes the action taken under Section 13(4) as also includes therein the action taken under Rules 8 and 9 which deal with the completion of sale of the secured assets. In other words, the measures taken under Section 13 (4) would not be completed unless the entire procedure laid down in Rules 8 and 9 for sale of secured assets is fully complied with by the secured creditor. It is for this reason, the Tribunal has been empowered by Section 17(2),(3) and (4) to examine all the steps taken by the secured creditor with a view to find out as to whetherthe sale of secured assets was made in conformity with the requirements contained in Section 13(4) read with the Rules orWe also notice that Rule 9(5) confers express power on the secured creditor to forfeit the deposit made by the auction purchaser in case the auction purchaser commits any default in paying installment of sale money to the secured creditor. Such action taken by the secured creditor is, in our opinion, a part of the measures specified in Section 13(4) and, therefore, it is regarded as a measure taken under Section 13(4) read with Rule 9(5). In our view, the measures taken under Section 13(4) commence with any of the action taken in clauses (a) to (d) and end with measures specified in Rule 9.30. In our view, therefore, the expression "any of the measures referred to in Section 13(4) taken by secured creditor or his authorized officer" in Section 17(1) would include all actions taken by the secured creditor under the Rules which relate to the measures specified in Section13(4).31. The auction purchaser (appellant herein) is one such person, who is aggrieved by the action of the secured creditor in forfeiting their money. The appellant, therefore, falls within the expression "any person" as specified under Section 17(1) and hence is entitled to challenge the action of the secured creditor (PNB) before the DRT by filing an application under Section 17(1) of the SARFAESIhave gone through the decision and unable to agree with the view taken therein. Their Lordships, while holding that Section 17(1) does not apply to auction purchaser and, therefore, writ petition filed by him can be entertained in such cases, did not notice the Rules, which deal with the measures taken under Section 13(4) and nor considered its effect on the measures.In the light of foregoing discussion, we are of the considered opinion that the Writ Court as also the Appellate Court were justified in dismissing the appellants writ petition on the ground of availability of alternative statutory remedy of filing an application under Section 17(1) of SARFAESI Act before the concerned Tribunal to challenge the action of the PNB in forfeiting the appellants deposit under Rule 9(5). We find no ground to interfere with the impugned judgment of the High Court. | 1 | 4,660 | 869 | ### 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:
We also notice that Rule 9(5) confers express power on the secured creditor to forfeit the deposit made by the auction purchaser in case the auction purchaser commits any default in paying installment of sale money to the secured creditor. Such action taken by the secured creditor is, in our opinion, a part of the measures specified in Section 13(4) and, therefore, it is regarded as a measure taken under Section 13(4) read with Rule 9(5). In our view, the measures taken under Section 13(4) commence with any of the action taken in clauses (a) to (d) and end with measures specified in Rule 9.30. In our view, therefore, the expression "any of the measures referred to in Section 13(4) taken by secured creditor or his authorized officer" in Section 17(1) would include all actions taken by the secured creditor under the Rules which relate to the measures specified in Section13(4).31. The auction purchaser (appellant herein) is one such person, who is aggrieved by the action of the secured creditor in forfeiting their money. The appellant, therefore, falls within the expression "any person" as specified under Section 17(1) and hence is entitled to challenge the action of the secured creditor (PNB) before the DRT by filing an application under Section 17(1) of the SARFAESI Act.32. Learned counsel for the appellant placed reliance on the decision of the Division Bench of High Court of Bombay in Umang Sugars Pvt. Ltd. v. State of Maharashtra & Anr., 2014(4) Mh.L.J. 113 which, according to him, supports his submission. We have gone through the decision and unable to agree with the view taken therein. Their Lordships, while holding that Section 17(1) does not apply to auction purchaser and, therefore, writ petition filed by him can be entertained in such cases, did not notice the Rules, which deal with the measures taken under Section 13(4) and nor considered its effect on the measures.33. In United Bank of India v. Satyawati Tondon & Ors., 2010(3) R.C.R.(Civil) 963 : 2010(4) Recent Apex Judgments (R.A.J.) 660 : (2010) 8 SCC 110 , this Court had the occasion to examine in detail the provisions of the SARFAESI Act and the question regarding invocation of the extraordinary power under Article 226/227 in challenging the actions taken under the SARFAESI Act. Their Lordships gave a note of caution while dealing with the writ filed to challenge the actions taken under the SARFAESI Act and made following pertinent observations which, in our view, squarely apply to the case on hand:"42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression "any person" used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution.45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance."34. In the light of foregoing discussion, we are of the considered opinion that the Writ Court as also the Appellate Court were justified in dismissing the appellants writ petition on the ground of availability of alternative statutory remedy of filing an application under Section 17(1) of SARFAESI Act before the concerned Tribunal to challenge the action of the PNB in forfeiting the appellants deposit under Rule 9(5). We find no ground to interfere with the impugned judgment of the High Court.
### Response:
1
### Explanation:
17. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal. In other words, the view taken by the High Court appears to be just and reasonable and hence does not call for any interference.So far as this case is concerned,(5) of Rule 9 is relevant. It provides that, if the auction purchaser commits any default in payment of sale consideration within the time specified, the deposit made by auction purchaser shall be "forfeited" to the secured creditor and the auctioned property shall be resold and the defaulting purchaser shall "forfeit" all claims to the property or its part of the sum for which it may be sold subsequently.Reading of the aforementioned Sections and the Rules and, in particular, Section 17(2) and Rule 9(5) would clearly go to show that an action of secured creditor in forfeiting the deposit made by the auction purchaser is a part of the measures taken by the secured creditor under Section 13(4).28. The reason is that Section 17(2) empowers the Tribunal to examine all the issues arising out of the measures taken under Section 13(4) including the measures taken by the secured creditor under Rules 8 and 9 for disposal of the secured assets of the borrower. The expression "provisions of this Act and the Rules made thereunder" occurring in(2), (3), (4) and (7) of Section 17 clearly suggests that it includes the action taken under Section 13(4) as also includes therein the action taken under Rules 8 and 9 which deal with the completion of sale of the secured assets. In other words, the measures taken under Section 13 (4) would not be completed unless the entire procedure laid down in Rules 8 and 9 for sale of secured assets is fully complied with by the secured creditor. It is for this reason, the Tribunal has been empowered by Section 17(2),(3) and (4) to examine all the steps taken by the secured creditor with a view to find out as to whetherthe sale of secured assets was made in conformity with the requirements contained in Section 13(4) read with the Rules orWe also notice that Rule 9(5) confers express power on the secured creditor to forfeit the deposit made by the auction purchaser in case the auction purchaser commits any default in paying installment of sale money to the secured creditor. Such action taken by the secured creditor is, in our opinion, a part of the measures specified in Section 13(4) and, therefore, it is regarded as a measure taken under Section 13(4) read with Rule 9(5). In our view, the measures taken under Section 13(4) commence with any of the action taken in clauses (a) to (d) and end with measures specified in Rule 9.30. In our view, therefore, the expression "any of the measures referred to in Section 13(4) taken by secured creditor or his authorized officer" in Section 17(1) would include all actions taken by the secured creditor under the Rules which relate to the measures specified in Section13(4).31. The auction purchaser (appellant herein) is one such person, who is aggrieved by the action of the secured creditor in forfeiting their money. The appellant, therefore, falls within the expression "any person" as specified under Section 17(1) and hence is entitled to challenge the action of the secured creditor (PNB) before the DRT by filing an application under Section 17(1) of the SARFAESIhave gone through the decision and unable to agree with the view taken therein. Their Lordships, while holding that Section 17(1) does not apply to auction purchaser and, therefore, writ petition filed by him can be entertained in such cases, did not notice the Rules, which deal with the measures taken under Section 13(4) and nor considered its effect on the measures.In the light of foregoing discussion, we are of the considered opinion that the Writ Court as also the Appellate Court were justified in dismissing the appellants writ petition on the ground of availability of alternative statutory remedy of filing an application under Section 17(1) of SARFAESI Act before the concerned Tribunal to challenge the action of the PNB in forfeiting the appellants deposit under Rule 9(5). We find no ground to interfere with the impugned judgment of the High Court.
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U.P. AVAS EVAM VIKAS PARISHAD THROUGH HOUSING COMMISSIONER & ANR Vs. NOOR MOHAMMAD & ORS | a quasi judicial order. In paragraphs 19 and 20 of the said decision, this Court pointed out that the functions exercisable by CIT under section 12-A are neither legislative nor executive but essentially quasi-judicial in nature and that an order under section 12-A of the Income Tax Act does not fall in the category of orders mentioned in Section 21, which would be in the nature of Notification/Rules/bye-laws. 20. But a proceeding under section 48(1) of the Land Acquisition Act is administrative in nature as can be seen from the language employed. Section 48 of the Act reads as follows: 48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. – (1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings there under, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provision of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section. What is provided in Section 48(1) is the power/liberty to withdraw from acquisition. It is an administrative act. Therefore, the reliance on the decision in Industrial Infrastructure Development Corporation (supra) is misplaced. 21. For the very same reason, the decision in H.C.Suman, is also of no assistance to the respondents in as much as the first notification of the Lt. Governor, which was sought to be withdrawn by the subsequent notification, was issued pursuant to a quasi-judicial order passed by the Lt. Governor on a statutory appeal. The quasi judicial order created a vested right which was given effect through a notification. Therefore, this Court held in para 35 of the decision in H.C.Suman that the vested right created by a quasi-judicial order cannot be taken away by taking recourse to the general power of rescindment available under the General Clauses Act. Hence the reasoning contained in the said decision cannot be applied to the case on hand. 22. While a Notification for acquisition issued under Section 4(1) of the Land Acquisition Act seeks to take away an individuals right to property, a Notification under Section 48(1) is actually the reverse or opposite. It confers benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasi-judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original land owners. If at all any person will be aggrieved by the Notification under Section 48(1), it will be the beneficiary of the acquisition, which in this case is the Parishad, and not the land owners. Therefore, we can understand if the Parishad makes out a grievance that their rights were taken away by the notification under Section 48(1) especially after the land vested in them. 23. Therefore, we reject the argument that a Notification under Section 48(1) is a quasi-judicial order. As a consequence, we reject the argument that the Government cannot fall back upon Section 21 of the General Clauses Act to rescind an order under Section 48(1). 24. Coming to the second limb of the argument that the Notification under Section 48(1) has created a vested right and that the same cannot be taken away unilaterally by a subsequent Notification for cancellation, we have to state that the first Notification was secured by the respondents by false representations and by playing fraud. When the respondents wanted to ward off the acquisition, they claimed that there were cemeteries of their forefathers, but after the first notification was issued, they started selling the land to third parties, who cannot and do not share the same religious sentiments with the respondents. We have already extracted the second Notification dated 15.09.2005 which contains the list of sales made by the land owners. The enquiry conducted by the Housing Commissioner has revealed that the land mafia has taken over the land. It is trite to point out that an order secured by fraud and misrepresentation will not confer any vested right and that, therefore, the land owners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A. 25. Interestingly, Sh. Anand Varma, learned counsel for the respondents relied upon the decision of this Court in Mutha Associates and Ors. vs. State of Maharashtra and Ors. (2013) 14 SCC 304, in support of his contention that even if the impugned notification is taken to be administrative in nature, the same should be preceded by an opportunity of hearing to the land owners. But the decision in Mutha Associates (supra) is actually a double-edged weapon insofar as the respondents are concerned. In that case, this Court held that even for the exercise of the power of withdrawal under Section 48(1) of the Land Acquisition Act, an opportunity had to be given necessarily to the beneficiary. In fact two principles could be culled out from Mutha Associates. They are: (i) that the publication of the Notification under Section 48, is necessary just as the publication of notifications under Sections 4 and 6 are mandatory; and (ii) that the beneficiary should be heard before the withdrawal of land from acquisition. 26. In this case, the Notification dated 7.04.2003 does not appear to have been preceded by an opportunity of hearing to the beneficiary, namely, U.P. Avas Evam Vikas Parishad. Therefore, the withdrawal of such an illegal notification, which was secured by fraud, cannot be found fault with. | 0[ds]10. But insofar as the first contention is concerned, Section 21 of the General Clauses Act, 1897 is a complete answer. It reads as follows:-21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.- Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye- laws so issued.15. Therefore, it is clear that the land owners were actually playing hide and seek by pleading religious sentiments, leading to the issue of the Notification dated 7.04.2003 under Section 48(1). In other words the Notification under Section 48(1) was invited by the land owners by making false representations. The land owners have actually played fraud upon the Government and secured the Notification dated 7.04.2003. Hence, they cannot be allowed to contend that the land can be acquired only through a fresh process of acquisition.19. But the decision in Industrial Infrastructure Development Corporation (supra) arose out of an order passed under Section 12-A of the Income Tax Act, 1961, which was admittedly a quasi judicial order. In paragraphs 19 and 20 of the said decision, this Court pointed out that the functions exercisable by CIT under section 12-A are neither legislative nor executive but essentially quasi-judicial in nature and that an order under section 12-A of the Income Tax Act does not fall in the category of orders mentioned in Section 21, which would be in the nature of Notification/Rules/bye-laws.20. But a proceeding under section 48(1) of the Land Acquisition Act is administrative in nature as can be seen from the language employed.What is provided in Section 48(1) is the power/liberty to withdraw from acquisition. It is an administrative act. Therefore, the reliance on the decision in Industrial Infrastructure Development Corporation (supra) is misplaced.21. For the very same reason, the decision in H.C.Suman, is also of no assistance to the respondents in as much as the first notification of the Lt. Governor, which was sought to be withdrawn by the subsequent notification, was issued pursuant to a quasi-judicial order passed by the Lt. Governor on a statutory appeal. The quasi judicial order created a vested right which was given effect through a notification. Therefore, this Court held in para 35 of the decision in H.C.Suman that the vested right created by a quasi-judicial order cannot be taken away by taking recourse to the general power of rescindment available under the General Clauses Act. Hence the reasoning contained in the said decision cannot be applied to the case on hand.22. While a Notification for acquisition issued under Section 4(1) of the Land Acquisition Act seeks to take away an individuals right to property, a Notification under Section 48(1) is actually the reverse or opposite. It confers benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasi-judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original land owners. If at all any person will be aggrieved by the Notification under Section 48(1), it will be the beneficiary of the acquisition, which in this case is the Parishad, and not the land owners. Therefore, we can understand if the Parishad makes out a grievance that their rights were taken away by the notification under Section 48(1) especially after the land vested in them.23. Therefore, we reject the argument that a Notification under Section 48(1) is a quasi-judicial order. As a consequence, we reject the argument that the Government cannot fall back upon Section 21 of the General Clauses Act to rescind an order under Section 48(1).24. Coming to the second limb of the argument that the Notification under Section 48(1) has created a vested right and that the same cannot be taken away unilaterally by a subsequent Notification for cancellation, we have to state that the first Notification was secured by the respondents by false representations and by playing fraud. When the respondents wanted to ward off the acquisition, they claimed that there were cemeteries of their forefathers, but after the first notification was issued, they started selling the land to third parties, who cannot and do not share the same religious sentiments with the respondents. We have already extracted the second Notification dated 15.09.2005 which contains the list of sales made by the land owners. The enquiry conducted by the Housing Commissioner has revealed that the land mafia has taken over the land. It is trite to point out that an order secured by fraud and misrepresentation will not confer any vested right and that, therefore, the land owners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A.But the decision in Mutha Associates (supra) is actually a double-edged weapon insofar as the respondents are concerned. In that case, this Court held that even for the exercise of the power of withdrawal under Section 48(1) of the Land Acquisition Act, an opportunity had to be given necessarily to the beneficiary. In fact two principles could be culled out from Mutha Associates. They are: (i) that the publication of the Notification under Section 48, is necessary just as the publication of notifications under Sections 4 and 6 are mandatory; and (ii) that the beneficiary should be heard before the withdrawal of land from acquisition.26. In this case, the Notification dated 7.04.2003 does not appear to have been preceded by an opportunity of hearing to the beneficiary, namely, U.P. Avas Evam Vikas Parishad. Therefore, the withdrawal of such an illegal notification, which was secured by fraud, cannot be found fault with. | 0 | 4,076 | 1,150 | ### 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:
a quasi judicial order. In paragraphs 19 and 20 of the said decision, this Court pointed out that the functions exercisable by CIT under section 12-A are neither legislative nor executive but essentially quasi-judicial in nature and that an order under section 12-A of the Income Tax Act does not fall in the category of orders mentioned in Section 21, which would be in the nature of Notification/Rules/bye-laws. 20. But a proceeding under section 48(1) of the Land Acquisition Act is administrative in nature as can be seen from the language employed. Section 48 of the Act reads as follows: 48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. – (1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings there under, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provision of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section. What is provided in Section 48(1) is the power/liberty to withdraw from acquisition. It is an administrative act. Therefore, the reliance on the decision in Industrial Infrastructure Development Corporation (supra) is misplaced. 21. For the very same reason, the decision in H.C.Suman, is also of no assistance to the respondents in as much as the first notification of the Lt. Governor, which was sought to be withdrawn by the subsequent notification, was issued pursuant to a quasi-judicial order passed by the Lt. Governor on a statutory appeal. The quasi judicial order created a vested right which was given effect through a notification. Therefore, this Court held in para 35 of the decision in H.C.Suman that the vested right created by a quasi-judicial order cannot be taken away by taking recourse to the general power of rescindment available under the General Clauses Act. Hence the reasoning contained in the said decision cannot be applied to the case on hand. 22. While a Notification for acquisition issued under Section 4(1) of the Land Acquisition Act seeks to take away an individuals right to property, a Notification under Section 48(1) is actually the reverse or opposite. It confers benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasi-judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original land owners. If at all any person will be aggrieved by the Notification under Section 48(1), it will be the beneficiary of the acquisition, which in this case is the Parishad, and not the land owners. Therefore, we can understand if the Parishad makes out a grievance that their rights were taken away by the notification under Section 48(1) especially after the land vested in them. 23. Therefore, we reject the argument that a Notification under Section 48(1) is a quasi-judicial order. As a consequence, we reject the argument that the Government cannot fall back upon Section 21 of the General Clauses Act to rescind an order under Section 48(1). 24. Coming to the second limb of the argument that the Notification under Section 48(1) has created a vested right and that the same cannot be taken away unilaterally by a subsequent Notification for cancellation, we have to state that the first Notification was secured by the respondents by false representations and by playing fraud. When the respondents wanted to ward off the acquisition, they claimed that there were cemeteries of their forefathers, but after the first notification was issued, they started selling the land to third parties, who cannot and do not share the same religious sentiments with the respondents. We have already extracted the second Notification dated 15.09.2005 which contains the list of sales made by the land owners. The enquiry conducted by the Housing Commissioner has revealed that the land mafia has taken over the land. It is trite to point out that an order secured by fraud and misrepresentation will not confer any vested right and that, therefore, the land owners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A. 25. Interestingly, Sh. Anand Varma, learned counsel for the respondents relied upon the decision of this Court in Mutha Associates and Ors. vs. State of Maharashtra and Ors. (2013) 14 SCC 304, in support of his contention that even if the impugned notification is taken to be administrative in nature, the same should be preceded by an opportunity of hearing to the land owners. But the decision in Mutha Associates (supra) is actually a double-edged weapon insofar as the respondents are concerned. In that case, this Court held that even for the exercise of the power of withdrawal under Section 48(1) of the Land Acquisition Act, an opportunity had to be given necessarily to the beneficiary. In fact two principles could be culled out from Mutha Associates. They are: (i) that the publication of the Notification under Section 48, is necessary just as the publication of notifications under Sections 4 and 6 are mandatory; and (ii) that the beneficiary should be heard before the withdrawal of land from acquisition. 26. In this case, the Notification dated 7.04.2003 does not appear to have been preceded by an opportunity of hearing to the beneficiary, namely, U.P. Avas Evam Vikas Parishad. Therefore, the withdrawal of such an illegal notification, which was secured by fraud, cannot be found fault with.
### Response:
0
### Explanation:
10. But insofar as the first contention is concerned, Section 21 of the General Clauses Act, 1897 is a complete answer. It reads as follows:-21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.- Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye- laws so issued.15. Therefore, it is clear that the land owners were actually playing hide and seek by pleading religious sentiments, leading to the issue of the Notification dated 7.04.2003 under Section 48(1). In other words the Notification under Section 48(1) was invited by the land owners by making false representations. The land owners have actually played fraud upon the Government and secured the Notification dated 7.04.2003. Hence, they cannot be allowed to contend that the land can be acquired only through a fresh process of acquisition.19. But the decision in Industrial Infrastructure Development Corporation (supra) arose out of an order passed under Section 12-A of the Income Tax Act, 1961, which was admittedly a quasi judicial order. In paragraphs 19 and 20 of the said decision, this Court pointed out that the functions exercisable by CIT under section 12-A are neither legislative nor executive but essentially quasi-judicial in nature and that an order under section 12-A of the Income Tax Act does not fall in the category of orders mentioned in Section 21, which would be in the nature of Notification/Rules/bye-laws.20. But a proceeding under section 48(1) of the Land Acquisition Act is administrative in nature as can be seen from the language employed.What is provided in Section 48(1) is the power/liberty to withdraw from acquisition. It is an administrative act. Therefore, the reliance on the decision in Industrial Infrastructure Development Corporation (supra) is misplaced.21. For the very same reason, the decision in H.C.Suman, is also of no assistance to the respondents in as much as the first notification of the Lt. Governor, which was sought to be withdrawn by the subsequent notification, was issued pursuant to a quasi-judicial order passed by the Lt. Governor on a statutory appeal. The quasi judicial order created a vested right which was given effect through a notification. Therefore, this Court held in para 35 of the decision in H.C.Suman that the vested right created by a quasi-judicial order cannot be taken away by taking recourse to the general power of rescindment available under the General Clauses Act. Hence the reasoning contained in the said decision cannot be applied to the case on hand.22. While a Notification for acquisition issued under Section 4(1) of the Land Acquisition Act seeks to take away an individuals right to property, a Notification under Section 48(1) is actually the reverse or opposite. It confers benefit upon an individual and hence it is not supposed to be preceded by any enquiry. The essence of an order which is quasi-judicial in nature is that it is preceded by an opportunity of hearing to the party affected thereby. A notification under Section 48(1) does not warrant any notice or opportunity of hearing, to the original land owners. If at all any person will be aggrieved by the Notification under Section 48(1), it will be the beneficiary of the acquisition, which in this case is the Parishad, and not the land owners. Therefore, we can understand if the Parishad makes out a grievance that their rights were taken away by the notification under Section 48(1) especially after the land vested in them.23. Therefore, we reject the argument that a Notification under Section 48(1) is a quasi-judicial order. As a consequence, we reject the argument that the Government cannot fall back upon Section 21 of the General Clauses Act to rescind an order under Section 48(1).24. Coming to the second limb of the argument that the Notification under Section 48(1) has created a vested right and that the same cannot be taken away unilaterally by a subsequent Notification for cancellation, we have to state that the first Notification was secured by the respondents by false representations and by playing fraud. When the respondents wanted to ward off the acquisition, they claimed that there were cemeteries of their forefathers, but after the first notification was issued, they started selling the land to third parties, who cannot and do not share the same religious sentiments with the respondents. We have already extracted the second Notification dated 15.09.2005 which contains the list of sales made by the land owners. The enquiry conducted by the Housing Commissioner has revealed that the land mafia has taken over the land. It is trite to point out that an order secured by fraud and misrepresentation will not confer any vested right and that, therefore, the land owners cannot pitch their claim either on the basis of vesting or on the basis of Article 300A.But the decision in Mutha Associates (supra) is actually a double-edged weapon insofar as the respondents are concerned. In that case, this Court held that even for the exercise of the power of withdrawal under Section 48(1) of the Land Acquisition Act, an opportunity had to be given necessarily to the beneficiary. In fact two principles could be culled out from Mutha Associates. They are: (i) that the publication of the Notification under Section 48, is necessary just as the publication of notifications under Sections 4 and 6 are mandatory; and (ii) that the beneficiary should be heard before the withdrawal of land from acquisition.26. In this case, the Notification dated 7.04.2003 does not appear to have been preceded by an opportunity of hearing to the beneficiary, namely, U.P. Avas Evam Vikas Parishad. Therefore, the withdrawal of such an illegal notification, which was secured by fraud, cannot be found fault with.
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Jagannath Prasad Vs. Daulat Ram Manocha | SHAH, J.1. On August 30, 1948, the appellant executed a deed of mortgage with possession in respect of two houses in favour of the respondent to secure repayment of Rs. 15, 000/-. The property mortgaged remained in the possession of the appellant under a rent note for Rs. 150/- per month. It appears that sometimes thereafter one of the two houses mortgaged was released and the rent was reduced to Rs. 75/- per month. The appellant having fallen in arrears of rent, the respondent filed suit No. 601 of 1955 in the Court of the Munsif, Kanpur, for a decree for Rs. 2, 625/- being the rent for the period May 30, 1952 to May 10, 1955. The suit was decreed by the Munsif. The decree was sought to be executed by the mortgagee by attachment and sale of the mortgaged property, but the application was rejected. The mortgagee also instituted a suit on the mortgage and obtained a decree. That decree was confirmed by this Court in Civil Appeal No. 239 of 1967 by order, dated July 31 1967. This Court rejected the contention of the appellant that the suit for recovering the mortgage amount was barred under Order 2, Rule 2, Code of Civil Procedure, because of the institution of the suit for recovery of rent.2. The mortgagee again applied for executing the decree in the rent suit and sought execution against the movables of the mortgagor, and the salary received by him as a teacher. The executing Court directed execution to issue. The matter was taken up in second appeal to the High Court. The High Court of Allahabad held that the Executing Court was not competent to direct execution against the other property of the appellant or against him personally was not a matter which need be decided at this stage, because a final decree in the mortgage was passed and the claim of the mortgagee may be satisfied out of the sale proceeds of the mortgaged property.3. This appeal filed with special leave. We are informed at the Bar that the decree in the mortgage suit has been satisfied. The question of the bar of Order 34, Rule 14 of the Code of Civil Procedure does not therefore survive. The mortgagee is now entitled to execute the decree for rent against the property of the judgment-debtor, or against him personally, and the mortgage decree being satisfied the decretal amount may be satisfied even from the property which was mortgaged. The terms of Order 34, Rule 14 of the Code of Civil Procedure, insofar as they are relevant, provide that where the mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise then by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 34, Rule 14 operated. The decree was, however, capable of being executed against the other property of the judgment-debtor. It may now be executed against all his property not exempt from attachment. | 0[ds]We are informed at the Bar that the decree in the mortgage suit has been satisfied. The question of the bar of Order 34, Rule 14 of the Code of Civil Procedure does not therefore survive. The mortgagee is now entitled to execute the decree for rent against the property of theor against him personally, and the mortgage decree being satisfied the decretal amount may be satisfied even from the property which was mortgaged. The terms of Order 34, Rule 14 of the Code of Civil Procedure, insofar as they are relevant, provide that where the mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise then by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 34, Rule 14 operated. The decree was, however, capable of being executed against the other property of theIt may now be executed against all his property not exempt fromare informed at the Bar that the decree in the mortgage suit has been satisfied. The question of the bar of Order 34, Rule 14 of the Code of Civil Procedure does not therefore survive. The mortgagee is now entitled to execute the decree for rent against the property of theor against him personally, and the mortgage decree being satisfied the decretal amount may be satisfied even from the property which was mortgaged. The terms of Order 34, Rule 14 of the Code of Civil Procedure, insofar as they are relevant, provide that where the mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise then by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 34, Rule 14 operated. The decree was, however, capable of being executed against the other property of thet may now be executed against all his property not exempt from | 0 | 578 | 390 | ### Instruction:
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SHAH, J.1. On August 30, 1948, the appellant executed a deed of mortgage with possession in respect of two houses in favour of the respondent to secure repayment of Rs. 15, 000/-. The property mortgaged remained in the possession of the appellant under a rent note for Rs. 150/- per month. It appears that sometimes thereafter one of the two houses mortgaged was released and the rent was reduced to Rs. 75/- per month. The appellant having fallen in arrears of rent, the respondent filed suit No. 601 of 1955 in the Court of the Munsif, Kanpur, for a decree for Rs. 2, 625/- being the rent for the period May 30, 1952 to May 10, 1955. The suit was decreed by the Munsif. The decree was sought to be executed by the mortgagee by attachment and sale of the mortgaged property, but the application was rejected. The mortgagee also instituted a suit on the mortgage and obtained a decree. That decree was confirmed by this Court in Civil Appeal No. 239 of 1967 by order, dated July 31 1967. This Court rejected the contention of the appellant that the suit for recovering the mortgage amount was barred under Order 2, Rule 2, Code of Civil Procedure, because of the institution of the suit for recovery of rent.2. The mortgagee again applied for executing the decree in the rent suit and sought execution against the movables of the mortgagor, and the salary received by him as a teacher. The executing Court directed execution to issue. The matter was taken up in second appeal to the High Court. The High Court of Allahabad held that the Executing Court was not competent to direct execution against the other property of the appellant or against him personally was not a matter which need be decided at this stage, because a final decree in the mortgage was passed and the claim of the mortgagee may be satisfied out of the sale proceeds of the mortgaged property.3. This appeal filed with special leave. We are informed at the Bar that the decree in the mortgage suit has been satisfied. The question of the bar of Order 34, Rule 14 of the Code of Civil Procedure does not therefore survive. The mortgagee is now entitled to execute the decree for rent against the property of the judgment-debtor, or against him personally, and the mortgage decree being satisfied the decretal amount may be satisfied even from the property which was mortgaged. The terms of Order 34, Rule 14 of the Code of Civil Procedure, insofar as they are relevant, provide that where the mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise then by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 34, Rule 14 operated. The decree was, however, capable of being executed against the other property of the judgment-debtor. It may now be executed against all his property not exempt from attachment.
### Response:
0
### Explanation:
We are informed at the Bar that the decree in the mortgage suit has been satisfied. The question of the bar of Order 34, Rule 14 of the Code of Civil Procedure does not therefore survive. The mortgagee is now entitled to execute the decree for rent against the property of theor against him personally, and the mortgage decree being satisfied the decretal amount may be satisfied even from the property which was mortgaged. The terms of Order 34, Rule 14 of the Code of Civil Procedure, insofar as they are relevant, provide that where the mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise then by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 34, Rule 14 operated. The decree was, however, capable of being executed against the other property of theIt may now be executed against all his property not exempt fromare informed at the Bar that the decree in the mortgage suit has been satisfied. The question of the bar of Order 34, Rule 14 of the Code of Civil Procedure does not therefore survive. The mortgagee is now entitled to execute the decree for rent against the property of theor against him personally, and the mortgage decree being satisfied the decretal amount may be satisfied even from the property which was mortgaged. The terms of Order 34, Rule 14 of the Code of Civil Procedure, insofar as they are relevant, provide that where the mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise then by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 34, Rule 14 operated. The decree was, however, capable of being executed against the other property of thet may now be executed against all his property not exempt from
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The Commissioner Of Income-Tax, Bombay V Vs. Ranchhoddas Karsondas, Bombay | filing of a voluntary return showing loss, at any time, before assessment. That section, they opined, contemplated the filing of a return of taxable income, and a return not showing such income was not a return at all in law. 15. The Calcutta view, is shown above, really proceeds upon the wording of section 22.(1). It lays down that the public notice requires only persons having an income above the taxable limit to make a return. A person who has no such income need not make a return, and if he does make a return, it is not a return which need be considered, being not a return in law. 16. It is a little difficult to understand how the existence of a return can be ignored, once it has been filed, A return showing income below the taxable limit can be made even in answer to a notice under S. 22(2). The notice under S. 22(1) requires in a general way what a notice under S. 22(2) requires of an individual. If a return of income below the taxable limit is a good return in answer to a notice under S. 22(2), there is no reason to think that a return of a similar kind in answer to a public notice is no return at all. The conclusion does not follow from the words of S. 22(1).No doubt, under that subsection only those persons are required to make a return, whose income is above taxable limits. but a person may legitimately consider himself entitled to certain deductions and allowances, and yet file a return to be on the safe side. He may show his income and the deductions and allowances he claims. But it may be that on a correct processing his income may be found to be above the exempted limit. No doubt, it is future for a person not liable to tax to rush in with a return, but the return in law is not a mere scrap of paper. It is a return, such as the assessee considers, represents his true income. 17. We are unable (and we say this with due respect) to accept the view adumbrated in the Calcutta cases. The contrary view is expressed by the Bombay High Court in the earlier case of 1948-16 ITR l19: (AIR 1948 Bom 401 ) and in the judgment under appeal. That view was accepted by the Madras High Court in 1957-32 ITR 458: (AIR 1958 Mad 40 ) and also, in our opinion; is the sounder view of the two. In the earlier of the two Bombay cases, Chagla, C. J, and Tendolkar, J, held (as stated in the headnote):"Notice under S. 34 is only necessary if at the end of the assessment year no return has been made by the assessee, and the authorities wished to proceed under S. 22(2),but where the assessee himself chooses voluntarily to make a return, no question can arise under S. 34 of assessment escaping, and therefore there is no necessity to serve any notice under S. 34." This represents the law applicable to the facto as they are to be found in this case. In the assessment year no return of income was filed, nor was any notice served under section 22(2). There was, however, the general notice under S. 22(1).A return in answer to that notice could be filed under S. 22(3) before assessment, and for this there is no limit of time. It was filed on January 5, 1950. There was nothing to prevent the Income-tax Officer from taking up the return and proceeding to assess the income of the assessee.It was open to him, if there was sufficient justification for it, to hold that the amount noted in the footnote was really the assessees income, in which case an assessable income would have been found and the tax could be charged thereon. If the Income-tax Officer had acted on that return and assessed the assessee before March 31, 1950, the assessment would have been valid. He chose to ignore the return, and served on the assessee a notice under S. 34(1).This notice was improper, because with the return already filed, there was neither an omission nor a failure on the part of the assessee, nor was there any question of assessment escaping. The notice under S. 34(1) was, therefore, in- valid and the consequent assessment, equally so. We accordingly agree with the judgment under Appeal. 18. Before leaving this case, we may refer to two other arguments, which were raised. Mr. Rajagopala Sastri pointed out that an assessee might file the voluntary return on the last day showing income less than the taxable limit, and the Department would, in that case, be driven to complete the assessment proceedings within a few hours or lose the right to send a notice under S. 34(1). An argument ab inconvenient is not a decisive argument. The Income-tax Officer could have avoided the result by issuing a notice under S. 23(2) and not remaining inactive until the period was about to expire. Further, all laws of limitation lead to some inconvenience and hard cases. The remedy is for the legislature to amend the law suitably. The Courts can administer the laws as they find them, and they are seldom required to be astute to defeat the law of limitation. This argument is thus no answer to the clear meaning and implications of the Act. 19. The other argument was that the return was not a true one, and fell within the mischief of cl. (c) of sub-s. (1) of S. 28, and that, therefore, the period during which action could be taken was the extended one of 8 years. The short answer to that is that this was not a part of the Departments case at any prior stage, and cannot be allowed to be raised now. 20. In our opinion, the answers given by the High Court of Bombay were correct in all the circumstances of this case. | 0[ds]7. We are not here concerned with the quantum but only with the legality of the assessmentThe side issue whether, in point of fact, the cash credits in the name of the wife represented the income of the husband does not survive for decisionIt is, therefore, quite clear that the extra period is available only if a notice under sub-s. (1) of S. 34 has been issued within the time therein limited. This takes us to S. 34 (1)11. It will be seen from this, that, as the Bombay High Court correctly pointed out, there is a time limit provided in sub-ss. (l) and (2) and the failure or omission occurs when that period passes, but sub-s. (3) allows a locus paenitentiae before the assessment is actually made. There is no dispute that a return could be filed in this case, late though it was.The controversy centres round the fact that the return, when it was filed, disclosed an income which was below the maximum not chargeable to tax, and the question is whether in such an event the Income-tax Officer was precluded from issuing a notice under S. 34 of the Act. There16. It is a little difficult to understand how the existence of a return can be ignored, once it has been filed, A return showing income below the taxable limit can be made even in answer to a notice under S. 22(2). The notice under S. 22(1) requires in a general way what a notice under S. 22(2) requires of an individual. If a return of income below the taxable limit is a good return in answer to a notice under S. 22(2), there is no reason to think that a return of a similar kind in answer to a public notice is no return at all. The conclusion does not follow from the words of S. 22(1).No doubt, under that subsection only those persons are required to make a return, whose income is above taxable limits. but a person may legitimately consider himself entitled to certain deductions and allowances, and yet file a return to be on the safe side. He may show his income and the deductions and allowances he claims. But it may be that on a correct processing his income may be found to be above the exempted limit. No doubt, it is future for a person not liable to tax to rush in with a return, but the return in law is not a mere scrap of paper. It is a return, such as the assessee considers, represents his true income17. We are unable (and we say this with due respect) to accept the view adumbrated in the Calcuttae contrary view is expressed by the Bombay High Court in the earlier case of 1948-16 ITR l19: (AIR 1948 Bom 401 ) and in the judgment under appeal. That view was accepted by the Madras High Court in 1957-32 ITR 458: (AIR 1958 Mad 40 ) and also, in our opinion; is the sounder view of the twoThis notice was improper, because with the return already filed, there was neither an omission nor a failure on the part of the assessee, nor was there any question of assessment escaping. The notice under S. 34(1) was, therefore, in- valid and the consequent assessment, equally so. We accordingly agree with the judgment under AppealAn argument ab inconvenient is not a decisive argument. The Income-tax Officer could have avoided the result by issuing a notice under S. 23(2) and not remaining inactive until the period was about to expire. Further, all laws of limitation lead to some inconvenience and hard cases. The remedy is for the legislature to amend the law suitably. The Courts can administer the laws as they find them, and they are seldom required to be astute to defeat the law of limitation. This argument is thus no answer to the clear meaning and implications of the ActThe short answer to that is that this was not a part of the Departments case at any prior stage, and cannot be allowed to be raised now20. In our opinion, the answers given by the High Court of Bombay were correct in all the circumstances of this case | 0 | 4,871 | 806 | ### 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:
filing of a voluntary return showing loss, at any time, before assessment. That section, they opined, contemplated the filing of a return of taxable income, and a return not showing such income was not a return at all in law. 15. The Calcutta view, is shown above, really proceeds upon the wording of section 22.(1). It lays down that the public notice requires only persons having an income above the taxable limit to make a return. A person who has no such income need not make a return, and if he does make a return, it is not a return which need be considered, being not a return in law. 16. It is a little difficult to understand how the existence of a return can be ignored, once it has been filed, A return showing income below the taxable limit can be made even in answer to a notice under S. 22(2). The notice under S. 22(1) requires in a general way what a notice under S. 22(2) requires of an individual. If a return of income below the taxable limit is a good return in answer to a notice under S. 22(2), there is no reason to think that a return of a similar kind in answer to a public notice is no return at all. The conclusion does not follow from the words of S. 22(1).No doubt, under that subsection only those persons are required to make a return, whose income is above taxable limits. but a person may legitimately consider himself entitled to certain deductions and allowances, and yet file a return to be on the safe side. He may show his income and the deductions and allowances he claims. But it may be that on a correct processing his income may be found to be above the exempted limit. No doubt, it is future for a person not liable to tax to rush in with a return, but the return in law is not a mere scrap of paper. It is a return, such as the assessee considers, represents his true income. 17. We are unable (and we say this with due respect) to accept the view adumbrated in the Calcutta cases. The contrary view is expressed by the Bombay High Court in the earlier case of 1948-16 ITR l19: (AIR 1948 Bom 401 ) and in the judgment under appeal. That view was accepted by the Madras High Court in 1957-32 ITR 458: (AIR 1958 Mad 40 ) and also, in our opinion; is the sounder view of the two. In the earlier of the two Bombay cases, Chagla, C. J, and Tendolkar, J, held (as stated in the headnote):"Notice under S. 34 is only necessary if at the end of the assessment year no return has been made by the assessee, and the authorities wished to proceed under S. 22(2),but where the assessee himself chooses voluntarily to make a return, no question can arise under S. 34 of assessment escaping, and therefore there is no necessity to serve any notice under S. 34." This represents the law applicable to the facto as they are to be found in this case. In the assessment year no return of income was filed, nor was any notice served under section 22(2). There was, however, the general notice under S. 22(1).A return in answer to that notice could be filed under S. 22(3) before assessment, and for this there is no limit of time. It was filed on January 5, 1950. There was nothing to prevent the Income-tax Officer from taking up the return and proceeding to assess the income of the assessee.It was open to him, if there was sufficient justification for it, to hold that the amount noted in the footnote was really the assessees income, in which case an assessable income would have been found and the tax could be charged thereon. If the Income-tax Officer had acted on that return and assessed the assessee before March 31, 1950, the assessment would have been valid. He chose to ignore the return, and served on the assessee a notice under S. 34(1).This notice was improper, because with the return already filed, there was neither an omission nor a failure on the part of the assessee, nor was there any question of assessment escaping. The notice under S. 34(1) was, therefore, in- valid and the consequent assessment, equally so. We accordingly agree with the judgment under Appeal. 18. Before leaving this case, we may refer to two other arguments, which were raised. Mr. Rajagopala Sastri pointed out that an assessee might file the voluntary return on the last day showing income less than the taxable limit, and the Department would, in that case, be driven to complete the assessment proceedings within a few hours or lose the right to send a notice under S. 34(1). An argument ab inconvenient is not a decisive argument. The Income-tax Officer could have avoided the result by issuing a notice under S. 23(2) and not remaining inactive until the period was about to expire. Further, all laws of limitation lead to some inconvenience and hard cases. The remedy is for the legislature to amend the law suitably. The Courts can administer the laws as they find them, and they are seldom required to be astute to defeat the law of limitation. This argument is thus no answer to the clear meaning and implications of the Act. 19. The other argument was that the return was not a true one, and fell within the mischief of cl. (c) of sub-s. (1) of S. 28, and that, therefore, the period during which action could be taken was the extended one of 8 years. The short answer to that is that this was not a part of the Departments case at any prior stage, and cannot be allowed to be raised now. 20. In our opinion, the answers given by the High Court of Bombay were correct in all the circumstances of this case.
### Response:
0
### Explanation:
7. We are not here concerned with the quantum but only with the legality of the assessmentThe side issue whether, in point of fact, the cash credits in the name of the wife represented the income of the husband does not survive for decisionIt is, therefore, quite clear that the extra period is available only if a notice under sub-s. (1) of S. 34 has been issued within the time therein limited. This takes us to S. 34 (1)11. It will be seen from this, that, as the Bombay High Court correctly pointed out, there is a time limit provided in sub-ss. (l) and (2) and the failure or omission occurs when that period passes, but sub-s. (3) allows a locus paenitentiae before the assessment is actually made. There is no dispute that a return could be filed in this case, late though it was.The controversy centres round the fact that the return, when it was filed, disclosed an income which was below the maximum not chargeable to tax, and the question is whether in such an event the Income-tax Officer was precluded from issuing a notice under S. 34 of the Act. There16. It is a little difficult to understand how the existence of a return can be ignored, once it has been filed, A return showing income below the taxable limit can be made even in answer to a notice under S. 22(2). The notice under S. 22(1) requires in a general way what a notice under S. 22(2) requires of an individual. If a return of income below the taxable limit is a good return in answer to a notice under S. 22(2), there is no reason to think that a return of a similar kind in answer to a public notice is no return at all. The conclusion does not follow from the words of S. 22(1).No doubt, under that subsection only those persons are required to make a return, whose income is above taxable limits. but a person may legitimately consider himself entitled to certain deductions and allowances, and yet file a return to be on the safe side. He may show his income and the deductions and allowances he claims. But it may be that on a correct processing his income may be found to be above the exempted limit. No doubt, it is future for a person not liable to tax to rush in with a return, but the return in law is not a mere scrap of paper. It is a return, such as the assessee considers, represents his true income17. We are unable (and we say this with due respect) to accept the view adumbrated in the Calcuttae contrary view is expressed by the Bombay High Court in the earlier case of 1948-16 ITR l19: (AIR 1948 Bom 401 ) and in the judgment under appeal. That view was accepted by the Madras High Court in 1957-32 ITR 458: (AIR 1958 Mad 40 ) and also, in our opinion; is the sounder view of the twoThis notice was improper, because with the return already filed, there was neither an omission nor a failure on the part of the assessee, nor was there any question of assessment escaping. The notice under S. 34(1) was, therefore, in- valid and the consequent assessment, equally so. We accordingly agree with the judgment under AppealAn argument ab inconvenient is not a decisive argument. The Income-tax Officer could have avoided the result by issuing a notice under S. 23(2) and not remaining inactive until the period was about to expire. Further, all laws of limitation lead to some inconvenience and hard cases. The remedy is for the legislature to amend the law suitably. The Courts can administer the laws as they find them, and they are seldom required to be astute to defeat the law of limitation. This argument is thus no answer to the clear meaning and implications of the ActThe short answer to that is that this was not a part of the Departments case at any prior stage, and cannot be allowed to be raised now20. In our opinion, the answers given by the High Court of Bombay were correct in all the circumstances of this case
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Prakash Amichand Shah Vs. State of Gujarat | the Town Planning Officers decision in the appellants case was appealable either under clause (viii) or clause (xiii) of section 32 (1). The Town Planning Officer has a duty under clause (viii) to calculate the increment to accrue in respect of each plot included in the final scheme (which we will refer to hereinafter as the final plot for brevitys sake) in accordance with the provisions of section 65. Under section 65 increment means the amount by which at the date of the declaration of the intention to make a scheme, the market value of a final plot calculated on the basis as if the improvements contemplated in the scheme had stood completed on that date exceeds the market value of the same plot when taken into account without t he improvements. The increment is thus the difference in the market value of the same final plot with the improvements and without the improvements on the aforesaid date. The value of the original plot does not arise for consideration under clause (viii). Rule 17 of the Bombay Town Planning Rules, 1955 sets out the particulars that a draft scheme shall contain in addition to the particulars specified in section 25 of the Act. Clause (v) of rule 17 mentions a "redistribution and valuation statement in Form B showing the estimated amounts to be paid to, or by, each of the owners included in the scheme". Form B makes it clear that the increment is the difference in value of the same final plot in its developed and undeveloped conditions; Form B keeps the valuation of the original plot distinct from that of the final plot. The appellants case therefore cannot fall under clause (viii). 10. Does the case fall under clause (xiii)? Under clause (xiii) the Town Planning Officer is required to estimate the compensation to be paid to the owner of any property or right injuriously affected by the making of a town planning scheme in accordance with the provisions of section 69. Section 69 states that the owner of any property or right which is injuriously affected by the making of a town planning scheme shall be entitled to obtain compensation from the local authority or from any person benefited or partly from the local authority and partly from such person as the Town Planning Officer may in each case determine. It seems obvious that the property or right which is injuriously affected by the making of a town planning scheme is a property or right other than that acquired fo r the purposes of the scheme. The property or right affected remains with the owner who is entitled to compensation for such injurious affection. When under the Act a plot of land is taken for the purposes of a town planning scheme, it cannot be suggested that land itself is injuriously affected; such a view is unsupportable both as a matter of language and having regard to the scheme of the Act. On behalf of the appellant it was urged that clause (xiii) would cover the case of the appellant if only we read a few words in that clause and that we should do so to avoid injustice being done to the appellant and the owners of land similarly situated. That we are afraid is not possible. We find no compelling reason for restructuring that clause, and taking acquisition of land to mean injurious affection of the land acquired would be inconsistent with the entire scheme of the Act. We may refer to clause fourthly of section 23 (1) of the land Acquisition Act, 1894 which requires the court to take into consideration in determining the amount of compensation to be awarded for land acquired under that Act, the damage sustained by the "person interested" "by reason of the acquisition injuriously affecting his other property". The expression "person interested" as defined in section 3 of the Land Acquisition Act means all persons claiming an interest in compensation to be made on account of the acquisition of land under that Act. It is made clear in clause fourthly that the damage is for injurious affection of some property other than the land acquired. The sense in which the expression injurious affection is used in section 23 (1) of the Land Acquisition Ac t is the generally accepted meaning of that expression and we find nothing in the Act concerned in this case that suggests that it should be construed differently. 11. It was then argued that if neither clause (viii) nor clause (xiii) was applicable, then there was no clause in section 32 (1) of the Act that covers the appellants case. The contention is not correct. The owner of an original plot who is not provided with a plot in the final scheme gets his right to compensation from section 71 o f the Act which says that the net amount of loss shall be payable to him by "the local authority in cash or in such other way as may be agreed upon by the parties". The principle for determining the compensation is the same whether an owner of land is given a reconstituted plot or not; compensation is payable on the basis of the market value of the plot at the date of declaration of the intention to make a scheme. In the appellants case it would be the value of the original plot and not the final plot. In determining the difference between the total of the values of the original plots and the total of the values of the plots included in the final scheme, the Town Planning Officer under section 32 (1) (iii) has to find out the market value of each of the original plots at the date of the declaration of intention to make a scheme as provided in section 64 (1) (f). Thus the Act contains the necessary provisions for estimating the compensation payable to an owner of land who has not been given a reconstituted plot. 12. | 1[ds]It seems obvious that the property or right which is injuriously affected by the making of a town planning scheme is a property or right other than that acquired fo r the purposes of the scheme. The property or right affected remains with the owner who is entitled to compensation for such injurious affection. When under the Act a plot of land is taken for the purposes of a town planning scheme, it cannot be suggested that land itself is injuriously affected; such a view is unsupportable both as a matter of language and having regard to the scheme of the Act. On behalf of the appellant it was urged that clause (xiii) would cover the case of the appellant if only we read a few words in that clause and that we should do so to avoid injustice being done to the appellant and the owners of land similarly situated. That we are afraid is not possible. We find no compelling reason for restructuring that clause, and taking acquisition of land to mean injurious affection of the land acquired would be inconsistent with the entire scheme of the Act. We may refer to clause fourthly of section 23 (1) ofthe land Acquisition Act, 1894 which requires the court to take into consideration in determining the amount of compensation to be awarded for land acquired under that Act, the damage sustained by the "person interested" "by reason of the acquisition injuriously affecting his other property". The expression "person interested" as defined in section 3 of the Land Acquisition Act means all persons claiming an interest in compensation to be made on account of the acquisition of land under that Act. It is made clear in clause fourthly that the damage is for injurious affection of some property other than the land acquired. The sense in which the expression injurious affection is used in section 23 (1) of the Land Acquisition Ac t is the generally accepted meaning of that expression and we find nothing in the Act concerned in this case that suggests that it should be construedt was then argued that if neither clause (viii) nor clause (xiii) was applicable, then there was no clause in section 32 (1) of the Act that covers the appellants case. The contention is not correct. The owner of an original plot who is not provided with a plot in the final scheme gets his right to compensation from section 71 o f the Act which says that the net amount of loss shall be payable to him by "the local authority in cash or in such other way as may be agreed upon by the parties". The principle for determining the compensation is the same whether an owner of land is given a reconstituted plot or not; compensation is payable on the basis of the market value of the plot at the date of declaration of the intention to make a scheme. In the appellants case it would be the value of the original plot and not the final plot. In determining the difference between the total of the values of the original plots and the total of the values of the plots included in the final scheme, the Town Planning Officer under section 32 (1) (iii) has to find out the market value of each of the original plots at the date of the declaration of intention to make a scheme as provided in section 64 (1) (f). Thus the Act contains the necessary provisions for estimating the compensation payable to an owner of land who has not been given a reconstituted plot. | 1 | 5,574 | 659 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
the Town Planning Officers decision in the appellants case was appealable either under clause (viii) or clause (xiii) of section 32 (1). The Town Planning Officer has a duty under clause (viii) to calculate the increment to accrue in respect of each plot included in the final scheme (which we will refer to hereinafter as the final plot for brevitys sake) in accordance with the provisions of section 65. Under section 65 increment means the amount by which at the date of the declaration of the intention to make a scheme, the market value of a final plot calculated on the basis as if the improvements contemplated in the scheme had stood completed on that date exceeds the market value of the same plot when taken into account without t he improvements. The increment is thus the difference in the market value of the same final plot with the improvements and without the improvements on the aforesaid date. The value of the original plot does not arise for consideration under clause (viii). Rule 17 of the Bombay Town Planning Rules, 1955 sets out the particulars that a draft scheme shall contain in addition to the particulars specified in section 25 of the Act. Clause (v) of rule 17 mentions a "redistribution and valuation statement in Form B showing the estimated amounts to be paid to, or by, each of the owners included in the scheme". Form B makes it clear that the increment is the difference in value of the same final plot in its developed and undeveloped conditions; Form B keeps the valuation of the original plot distinct from that of the final plot. The appellants case therefore cannot fall under clause (viii). 10. Does the case fall under clause (xiii)? Under clause (xiii) the Town Planning Officer is required to estimate the compensation to be paid to the owner of any property or right injuriously affected by the making of a town planning scheme in accordance with the provisions of section 69. Section 69 states that the owner of any property or right which is injuriously affected by the making of a town planning scheme shall be entitled to obtain compensation from the local authority or from any person benefited or partly from the local authority and partly from such person as the Town Planning Officer may in each case determine. It seems obvious that the property or right which is injuriously affected by the making of a town planning scheme is a property or right other than that acquired fo r the purposes of the scheme. The property or right affected remains with the owner who is entitled to compensation for such injurious affection. When under the Act a plot of land is taken for the purposes of a town planning scheme, it cannot be suggested that land itself is injuriously affected; such a view is unsupportable both as a matter of language and having regard to the scheme of the Act. On behalf of the appellant it was urged that clause (xiii) would cover the case of the appellant if only we read a few words in that clause and that we should do so to avoid injustice being done to the appellant and the owners of land similarly situated. That we are afraid is not possible. We find no compelling reason for restructuring that clause, and taking acquisition of land to mean injurious affection of the land acquired would be inconsistent with the entire scheme of the Act. We may refer to clause fourthly of section 23 (1) of the land Acquisition Act, 1894 which requires the court to take into consideration in determining the amount of compensation to be awarded for land acquired under that Act, the damage sustained by the "person interested" "by reason of the acquisition injuriously affecting his other property". The expression "person interested" as defined in section 3 of the Land Acquisition Act means all persons claiming an interest in compensation to be made on account of the acquisition of land under that Act. It is made clear in clause fourthly that the damage is for injurious affection of some property other than the land acquired. The sense in which the expression injurious affection is used in section 23 (1) of the Land Acquisition Ac t is the generally accepted meaning of that expression and we find nothing in the Act concerned in this case that suggests that it should be construed differently. 11. It was then argued that if neither clause (viii) nor clause (xiii) was applicable, then there was no clause in section 32 (1) of the Act that covers the appellants case. The contention is not correct. The owner of an original plot who is not provided with a plot in the final scheme gets his right to compensation from section 71 o f the Act which says that the net amount of loss shall be payable to him by "the local authority in cash or in such other way as may be agreed upon by the parties". The principle for determining the compensation is the same whether an owner of land is given a reconstituted plot or not; compensation is payable on the basis of the market value of the plot at the date of declaration of the intention to make a scheme. In the appellants case it would be the value of the original plot and not the final plot. In determining the difference between the total of the values of the original plots and the total of the values of the plots included in the final scheme, the Town Planning Officer under section 32 (1) (iii) has to find out the market value of each of the original plots at the date of the declaration of intention to make a scheme as provided in section 64 (1) (f). Thus the Act contains the necessary provisions for estimating the compensation payable to an owner of land who has not been given a reconstituted plot. 12.
### Response:
1
### Explanation:
It seems obvious that the property or right which is injuriously affected by the making of a town planning scheme is a property or right other than that acquired fo r the purposes of the scheme. The property or right affected remains with the owner who is entitled to compensation for such injurious affection. When under the Act a plot of land is taken for the purposes of a town planning scheme, it cannot be suggested that land itself is injuriously affected; such a view is unsupportable both as a matter of language and having regard to the scheme of the Act. On behalf of the appellant it was urged that clause (xiii) would cover the case of the appellant if only we read a few words in that clause and that we should do so to avoid injustice being done to the appellant and the owners of land similarly situated. That we are afraid is not possible. We find no compelling reason for restructuring that clause, and taking acquisition of land to mean injurious affection of the land acquired would be inconsistent with the entire scheme of the Act. We may refer to clause fourthly of section 23 (1) ofthe land Acquisition Act, 1894 which requires the court to take into consideration in determining the amount of compensation to be awarded for land acquired under that Act, the damage sustained by the "person interested" "by reason of the acquisition injuriously affecting his other property". The expression "person interested" as defined in section 3 of the Land Acquisition Act means all persons claiming an interest in compensation to be made on account of the acquisition of land under that Act. It is made clear in clause fourthly that the damage is for injurious affection of some property other than the land acquired. The sense in which the expression injurious affection is used in section 23 (1) of the Land Acquisition Ac t is the generally accepted meaning of that expression and we find nothing in the Act concerned in this case that suggests that it should be construedt was then argued that if neither clause (viii) nor clause (xiii) was applicable, then there was no clause in section 32 (1) of the Act that covers the appellants case. The contention is not correct. The owner of an original plot who is not provided with a plot in the final scheme gets his right to compensation from section 71 o f the Act which says that the net amount of loss shall be payable to him by "the local authority in cash or in such other way as may be agreed upon by the parties". The principle for determining the compensation is the same whether an owner of land is given a reconstituted plot or not; compensation is payable on the basis of the market value of the plot at the date of declaration of the intention to make a scheme. In the appellants case it would be the value of the original plot and not the final plot. In determining the difference between the total of the values of the original plots and the total of the values of the plots included in the final scheme, the Town Planning Officer under section 32 (1) (iii) has to find out the market value of each of the original plots at the date of the declaration of intention to make a scheme as provided in section 64 (1) (f). Thus the Act contains the necessary provisions for estimating the compensation payable to an owner of land who has not been given a reconstituted plot.
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Banarsi Das & Others Vs. The State Of Uttar Pradesh & Others | as 132 have been absorbed in the new cadre of Lekhpals and many more are likely to be absorbed in the service of Government . Thus it appears that Government have been giving a locus paenitentiae to those of the ex-patwaris who have realized their mistake in joining the agitation aforesaid and thus trying to force the hands of government.3. The petitioners grievance is that they have been prevented from re-entering the Government service upon the reorganisation of the cadre under the new name. But it is clear that the Government are within their rights to lay down certain qualifications for the new recruits. They are entitled to exclude those persons who have betrayed a lack of proper sense of discipline. It cannot, therefore, be said that the Government have denied an equal opportunity to those who are equal in all respects. It appears that the Government have not permanently filled all the vacancies in the new cadre. Those of the petitioners who are prepared to accept the discipline of Government service may approach the proper authorities through the proper channel and we have no doubt that their cases will receive sympathetic consideration at the hands of the Government , consistently with the demands of the exigencies of public service.4. Our attention was particularly invited to the new scheme of recruitment as laid down in the Government orders of the 5th March which contained the directions that all patwaris who had not resigned and who had not reached the age of superannuation would be absorbed, that the patwaris who had resigned but had withdrawn their resignations by 4-3-1953 would also be absorbed and that of those who had resigned and whose resignations had been accepted, only those will be absorbed who had an excellent record of work and who had not taken an active part in the agitation. Besides those, fresh recruits also were to be taken in. With reference to those directions it was contended that the petitioners who came within the category excluded from reappointment had really been denied equal opportunity of appointment as Lekhpals and that thus art. 16 of the Constitution was infringed. In our opinion, it is open to the appointing authority to lay down the requisite qualifications for recruitment to Government service andit is open to the authority to lay down such prerequisite conditions of appointment as would be conducive to the maintenance of proper discipline amongst Government servants. If persons already under Government employment on part-time basis had shown themselves not to be amenable to proper discipline in Government offices, it was open to Government not to appoint such persons to the permanent cadre of Lekhpals because such persons could not be said to be as efficient as those who had excellent records of service and had shown greater sense of responsibility to their employers. Article 16 of the Constitution is an instance of the application of the general rule of equality laid down in Art. 14, with special reference to the opportunity for appointment and employment under the Government . Like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Government .5. As already indicated the old patwaris held par-time jobs under the Government. The new cadre of Lekhpals is intended to reorganise a similar service on a more satisfactory basis both from the point of view of the Government and of the employees themselves. Under the new scheme, the Lekhpals are intended to be whole-time servants of the Government on a considerably higher scale of pay and with better prospects subject, of course, to the Government Servants Conduct Rules. If the Government have decided to exclude all those who had proved themselves as part-time servants of the Government to be lacking in a sense of discipline and of responsibility, it cannot be said that that they had been denied equal opportunity of appointment and employment under the Government.6. Government have not laid down rules excluding any particular group of persons from being candidates for appointment.They had only issued departmental instructions not to employ those who had not a satisfactory record of service in the past. Selection for appointment in Government service has got to be on a competitive basis and those whose past service has been free from blemish can certainly be said to be better qualified for Government service than those whose record was not free from any blemish. The matter thus stands on a basis similar to where the Government may make it a condition precedent to promotion to a higher rank in the same cadre of Government service that only those who had a very satisfactory record in the past would be considered for promotion. It must, therefore, be held that the petitioners have failed to substantiate their contention that they had been denied equality of opportunity as contemplated by Article 16 of the Constitution.7. After moving this Court under Art. 32 of the Constitution, most of the petitioners and many others, in all 1352 in number, also made an application for special leave to appeal (being special Leave Petition No. 426 of 1955) from the judgment and orders of the High Court of Judicature at Allahabad dated 24-8-1954 passed in - Banarsi Das v. State of U. P., 1955 All 33 ((S) AIR V 42) (A), after their application for leave to appeal to this Court had been dismissed by that Courts order dated 5-8-1955. This petition was not filed within the time limited by the rules of this Court and on their own showing there was a delay of 44 days in filing the petition for special leave.The only ground urged in support of the application for condonation of delay (being Civil Miscellaneous Petition No. 1402 of 1955) is that they had to collect money from amongst a large number of petitioners who were interested in the case. In our opinion, that it not a sufficient ground for condoning the delay.8. | 0[ds]But it is clear that the Government are within their rights to lay down certain qualifications for the new recruits. They are entitled to exclude those persons who have betrayed a lack of proper sense ofcannot, therefore, be said that the Government have denied an equal opportunity to those who are equal in all respects. It appears that the Government have not permanently filled all the vacancies in the new cadre. Those of the petitioners who are prepared to accept the discipline of Government service may approach the proper authorities through the proper channel and we have no doubt that their cases will receive sympathetic consideration at the hands of the Government , consistently with the demands of the exigencies of publicour opinion, it is open to the appointing authority to lay down the requisite qualifications for recruitment to Government service andit is open to the authority to lay down such prerequisite conditions of appointment as would be conducive to the maintenance of proper discipline amongst Government servants. If persons already under Government employment on part-time basis had shown themselves not to be amenable to proper discipline in Government offices, it was open to Government not to appoint such persons to the permanent cadre of Lekhpals because such persons could not be said to be as efficient as those who had excellent records of service and had shown greater sense of responsibility to their16 of the Constitution is an instance of the application of the general rule of equality laid down in Art. 14, with special reference to the opportunity for appointment and employment under the Government . Like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Governmentthe Government have decided to exclude all those who had proved themselves as part-time servants of the Government to be lacking in a sense of discipline and of responsibility, it cannot be said that that they had been denied equal opportunity of appointment and employment under the Governmentfor appointment in Government service has got to be on a competitive basis and those whose past service has been free from blemish can certainly be said to be better qualified for Government service than those whose record was not free from anypetition was not filed within the time limited by the rules of this Court and on their own showing there was a delay of 44 days in filing the petition for special leave.The only ground urged in support of the application for condonation of delay (being Civil Miscellaneous Petition No. 1402 of 1955) is that they had to collect money from amongst a large number of petitioners who were interested in the case. In our opinion, that it not a sufficient ground for condoning the delay. | 0 | 1,624 | 491 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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as 132 have been absorbed in the new cadre of Lekhpals and many more are likely to be absorbed in the service of Government . Thus it appears that Government have been giving a locus paenitentiae to those of the ex-patwaris who have realized their mistake in joining the agitation aforesaid and thus trying to force the hands of government.3. The petitioners grievance is that they have been prevented from re-entering the Government service upon the reorganisation of the cadre under the new name. But it is clear that the Government are within their rights to lay down certain qualifications for the new recruits. They are entitled to exclude those persons who have betrayed a lack of proper sense of discipline. It cannot, therefore, be said that the Government have denied an equal opportunity to those who are equal in all respects. It appears that the Government have not permanently filled all the vacancies in the new cadre. Those of the petitioners who are prepared to accept the discipline of Government service may approach the proper authorities through the proper channel and we have no doubt that their cases will receive sympathetic consideration at the hands of the Government , consistently with the demands of the exigencies of public service.4. Our attention was particularly invited to the new scheme of recruitment as laid down in the Government orders of the 5th March which contained the directions that all patwaris who had not resigned and who had not reached the age of superannuation would be absorbed, that the patwaris who had resigned but had withdrawn their resignations by 4-3-1953 would also be absorbed and that of those who had resigned and whose resignations had been accepted, only those will be absorbed who had an excellent record of work and who had not taken an active part in the agitation. Besides those, fresh recruits also were to be taken in. With reference to those directions it was contended that the petitioners who came within the category excluded from reappointment had really been denied equal opportunity of appointment as Lekhpals and that thus art. 16 of the Constitution was infringed. In our opinion, it is open to the appointing authority to lay down the requisite qualifications for recruitment to Government service andit is open to the authority to lay down such prerequisite conditions of appointment as would be conducive to the maintenance of proper discipline amongst Government servants. If persons already under Government employment on part-time basis had shown themselves not to be amenable to proper discipline in Government offices, it was open to Government not to appoint such persons to the permanent cadre of Lekhpals because such persons could not be said to be as efficient as those who had excellent records of service and had shown greater sense of responsibility to their employers. Article 16 of the Constitution is an instance of the application of the general rule of equality laid down in Art. 14, with special reference to the opportunity for appointment and employment under the Government . Like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Government .5. As already indicated the old patwaris held par-time jobs under the Government. The new cadre of Lekhpals is intended to reorganise a similar service on a more satisfactory basis both from the point of view of the Government and of the employees themselves. Under the new scheme, the Lekhpals are intended to be whole-time servants of the Government on a considerably higher scale of pay and with better prospects subject, of course, to the Government Servants Conduct Rules. If the Government have decided to exclude all those who had proved themselves as part-time servants of the Government to be lacking in a sense of discipline and of responsibility, it cannot be said that that they had been denied equal opportunity of appointment and employment under the Government.6. Government have not laid down rules excluding any particular group of persons from being candidates for appointment.They had only issued departmental instructions not to employ those who had not a satisfactory record of service in the past. Selection for appointment in Government service has got to be on a competitive basis and those whose past service has been free from blemish can certainly be said to be better qualified for Government service than those whose record was not free from any blemish. The matter thus stands on a basis similar to where the Government may make it a condition precedent to promotion to a higher rank in the same cadre of Government service that only those who had a very satisfactory record in the past would be considered for promotion. It must, therefore, be held that the petitioners have failed to substantiate their contention that they had been denied equality of opportunity as contemplated by Article 16 of the Constitution.7. After moving this Court under Art. 32 of the Constitution, most of the petitioners and many others, in all 1352 in number, also made an application for special leave to appeal (being special Leave Petition No. 426 of 1955) from the judgment and orders of the High Court of Judicature at Allahabad dated 24-8-1954 passed in - Banarsi Das v. State of U. P., 1955 All 33 ((S) AIR V 42) (A), after their application for leave to appeal to this Court had been dismissed by that Courts order dated 5-8-1955. This petition was not filed within the time limited by the rules of this Court and on their own showing there was a delay of 44 days in filing the petition for special leave.The only ground urged in support of the application for condonation of delay (being Civil Miscellaneous Petition No. 1402 of 1955) is that they had to collect money from amongst a large number of petitioners who were interested in the case. In our opinion, that it not a sufficient ground for condoning the delay.8.
### Response:
0
### Explanation:
But it is clear that the Government are within their rights to lay down certain qualifications for the new recruits. They are entitled to exclude those persons who have betrayed a lack of proper sense ofcannot, therefore, be said that the Government have denied an equal opportunity to those who are equal in all respects. It appears that the Government have not permanently filled all the vacancies in the new cadre. Those of the petitioners who are prepared to accept the discipline of Government service may approach the proper authorities through the proper channel and we have no doubt that their cases will receive sympathetic consideration at the hands of the Government , consistently with the demands of the exigencies of publicour opinion, it is open to the appointing authority to lay down the requisite qualifications for recruitment to Government service andit is open to the authority to lay down such prerequisite conditions of appointment as would be conducive to the maintenance of proper discipline amongst Government servants. If persons already under Government employment on part-time basis had shown themselves not to be amenable to proper discipline in Government offices, it was open to Government not to appoint such persons to the permanent cadre of Lekhpals because such persons could not be said to be as efficient as those who had excellent records of service and had shown greater sense of responsibility to their16 of the Constitution is an instance of the application of the general rule of equality laid down in Art. 14, with special reference to the opportunity for appointment and employment under the Government . Like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Governmentthe Government have decided to exclude all those who had proved themselves as part-time servants of the Government to be lacking in a sense of discipline and of responsibility, it cannot be said that that they had been denied equal opportunity of appointment and employment under the Governmentfor appointment in Government service has got to be on a competitive basis and those whose past service has been free from blemish can certainly be said to be better qualified for Government service than those whose record was not free from anypetition was not filed within the time limited by the rules of this Court and on their own showing there was a delay of 44 days in filing the petition for special leave.The only ground urged in support of the application for condonation of delay (being Civil Miscellaneous Petition No. 1402 of 1955) is that they had to collect money from amongst a large number of petitioners who were interested in the case. In our opinion, that it not a sufficient ground for condoning the delay.
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State Of Madhya Pradesh Vs. Mohan Singh | BHARUCHA S.P. & KIRPAL B.N. (J) 1. These appeals by special leave impugn the judgments and orders of Division Benches of the High Court of Madhya Pradesh. The High Court allowed several writ petitions and directed the respondent State to give to the writ petitioners the benefit of a special remission which the State had restricted to prisoners belonging to the Scheduled Castes and Scheduled Tribes and to female prisoners. 2. The remission was granted on the occasion of Republic Day , 1978, under the provisions of Section 432(1) of the Code of Criminal Procedure. In clause (1) certain general remissions were granted, with which we are not concerned. Clause (ii) dealt with the special remission and read thus: "Special Re missions:-In addition to the aforesaid remission all female prisoners and those prisoners as belonging to the scheduled castes and scheduled tribes notified under Article 341 and 342 of Constitution. shall be given by way of Special Remission, further remission equal to general remission granted to them under paragraph 1 (a), (b), (c) and (d) of this order.(b) The female prisoners and the prisoners belonging to Scheduled Castes and Scheduled Tribes who have undergone sentences of fourteen years or more inclusive of remissions, shall be released.(Note:- Such prisoners shall not be dealt with in accordance with paragraph 1(c) of this order but shall be dealt with only in accordance with paragraph 2(b) thereof.)" * The Principal judgment is in the first appeal. It was followed in the other appeals. 3. The writ petitioners contended that the special remission granted to prisoners belonging to the Scheduled Castes and Scheduled Tribes and denied to other prisoners, such as the writ petitioner, violated their right to equality. He prayed that the State should be directed to allow the special remission to him. The contention of the State in its return was that prisoners belonging to the Scheduled Castes and Scheduled Tribes constituted a class and the special remission could validly be given to them.The High Court came to the conclusion that the benefit of Article 15(4), which the State relied upon, was unavailable as a defence inasmuch as the provision for special remission could not be said to have been made for the advancement of the Scheduled Castes and Scheduled Tribes. The grant of special remission to prisoners belonging to the Scheduled Castes and Scheduled Tribes and denial of the same to other prisoners amounted to discrimination. The High Court upheld the argument of the writ petitioner thus: "You have granted special remission to the prisoners of the Scheduled Castes and Scheduled Tribes on the basis of caste and race only which is not covered by Article 15(4), therefore, treat me and other prisoners equally and give us the same remissions which have been allowed to the prisoners of the Scheduled Castes and the Scheduled Tribes, " * The State was directed to give to the writ petitioner the benefit of the special remission. 4. We are in agreement with the view of the High Court that there was no justification in law for giving special remission to prisoners belonging to the Scheduled Castes and Scheduled Tribes. In so far as these prisoners had broken the law and were being punished for doing so, they stood on the same footing as all other prisoners. The invocation of Article 15(4) was wholly unjustified; the grant of remission to convicted prisoners belonging to the Scheduled Castes an d Scheduled Tribes can hardly be said to be a measure for the "advancement" of the Scheduled Castes and Scheduled Tribes. 5. Here we part company with the High Court. Having come to the conclusion that grant of special remission to Scheduled Caste and Scheduled Tribe prisoners was unlawful, the proper course to adopt should have been to strike it down. It was beyond the High Courts power to expand the reach of the remission so as to give the benefit of it to the writ petitioner, w ho did not belong to the Scheduled Castes or Scheduled Tribes. If the power was improperly exercised, The High Court could not, in effect, grant a general remission where the State had intended it to be restricted.This Court had ma de it clear that in the event that special leave was granted, the respondents would not be asked to go back to jail. We think that those who have obtained the benefit of the High Courts order must be permitted to retain it and they cannot now be required to serve out the terms in respect of which they got such benefit. 6. | 1[ds]We are in agreement with the view of the High Court that there was no justification in law for giving special remission to prisoners belonging to the Scheduled Castes and Scheduled Tribes. In so far as these prisoners had broken the law and were being punished for doing so, they stood on the same footing as all other prisoners. The invocation of Article 15(4) was wholly unjustified; the grant of remission to convicted prisoners belonging to the Scheduled Castes an d Scheduled Tribes can hardly be said to be a measure for the "advancement" of the Scheduled Castes and Scheduledwe part company with the High Court. Having come to the conclusion that grant of special remission to Scheduled Caste and Scheduled Tribe prisoners was unlawful, the proper course to adopt should have been to strike it down. It was beyond the High Courts power to expand the reach of the remission so as to give the benefit of it to the writ petitioner, w ho did not belong to the Scheduled Castes or Scheduled Tribes. If the power was improperly exercised, The High Court could not, in effect, grant a general remission where the State had intended it to be restricted.This Court had ma de it clear that in the event that special leave was granted, the respondents would not be asked to go back to jail. We think that those who have obtained the benefit of the High Courts order must be permitted to retain it and they cannot now be required to serve out the terms in respect of which they got such benefit. | 1 | 865 | 291 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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BHARUCHA S.P. & KIRPAL B.N. (J) 1. These appeals by special leave impugn the judgments and orders of Division Benches of the High Court of Madhya Pradesh. The High Court allowed several writ petitions and directed the respondent State to give to the writ petitioners the benefit of a special remission which the State had restricted to prisoners belonging to the Scheduled Castes and Scheduled Tribes and to female prisoners. 2. The remission was granted on the occasion of Republic Day , 1978, under the provisions of Section 432(1) of the Code of Criminal Procedure. In clause (1) certain general remissions were granted, with which we are not concerned. Clause (ii) dealt with the special remission and read thus: "Special Re missions:-In addition to the aforesaid remission all female prisoners and those prisoners as belonging to the scheduled castes and scheduled tribes notified under Article 341 and 342 of Constitution. shall be given by way of Special Remission, further remission equal to general remission granted to them under paragraph 1 (a), (b), (c) and (d) of this order.(b) The female prisoners and the prisoners belonging to Scheduled Castes and Scheduled Tribes who have undergone sentences of fourteen years or more inclusive of remissions, shall be released.(Note:- Such prisoners shall not be dealt with in accordance with paragraph 1(c) of this order but shall be dealt with only in accordance with paragraph 2(b) thereof.)" * The Principal judgment is in the first appeal. It was followed in the other appeals. 3. The writ petitioners contended that the special remission granted to prisoners belonging to the Scheduled Castes and Scheduled Tribes and denied to other prisoners, such as the writ petitioner, violated their right to equality. He prayed that the State should be directed to allow the special remission to him. The contention of the State in its return was that prisoners belonging to the Scheduled Castes and Scheduled Tribes constituted a class and the special remission could validly be given to them.The High Court came to the conclusion that the benefit of Article 15(4), which the State relied upon, was unavailable as a defence inasmuch as the provision for special remission could not be said to have been made for the advancement of the Scheduled Castes and Scheduled Tribes. The grant of special remission to prisoners belonging to the Scheduled Castes and Scheduled Tribes and denial of the same to other prisoners amounted to discrimination. The High Court upheld the argument of the writ petitioner thus: "You have granted special remission to the prisoners of the Scheduled Castes and Scheduled Tribes on the basis of caste and race only which is not covered by Article 15(4), therefore, treat me and other prisoners equally and give us the same remissions which have been allowed to the prisoners of the Scheduled Castes and the Scheduled Tribes, " * The State was directed to give to the writ petitioner the benefit of the special remission. 4. We are in agreement with the view of the High Court that there was no justification in law for giving special remission to prisoners belonging to the Scheduled Castes and Scheduled Tribes. In so far as these prisoners had broken the law and were being punished for doing so, they stood on the same footing as all other prisoners. The invocation of Article 15(4) was wholly unjustified; the grant of remission to convicted prisoners belonging to the Scheduled Castes an d Scheduled Tribes can hardly be said to be a measure for the "advancement" of the Scheduled Castes and Scheduled Tribes. 5. Here we part company with the High Court. Having come to the conclusion that grant of special remission to Scheduled Caste and Scheduled Tribe prisoners was unlawful, the proper course to adopt should have been to strike it down. It was beyond the High Courts power to expand the reach of the remission so as to give the benefit of it to the writ petitioner, w ho did not belong to the Scheduled Castes or Scheduled Tribes. If the power was improperly exercised, The High Court could not, in effect, grant a general remission where the State had intended it to be restricted.This Court had ma de it clear that in the event that special leave was granted, the respondents would not be asked to go back to jail. We think that those who have obtained the benefit of the High Courts order must be permitted to retain it and they cannot now be required to serve out the terms in respect of which they got such benefit. 6.
### Response:
1
### Explanation:
We are in agreement with the view of the High Court that there was no justification in law for giving special remission to prisoners belonging to the Scheduled Castes and Scheduled Tribes. In so far as these prisoners had broken the law and were being punished for doing so, they stood on the same footing as all other prisoners. The invocation of Article 15(4) was wholly unjustified; the grant of remission to convicted prisoners belonging to the Scheduled Castes an d Scheduled Tribes can hardly be said to be a measure for the "advancement" of the Scheduled Castes and Scheduledwe part company with the High Court. Having come to the conclusion that grant of special remission to Scheduled Caste and Scheduled Tribe prisoners was unlawful, the proper course to adopt should have been to strike it down. It was beyond the High Courts power to expand the reach of the remission so as to give the benefit of it to the writ petitioner, w ho did not belong to the Scheduled Castes or Scheduled Tribes. If the power was improperly exercised, The High Court could not, in effect, grant a general remission where the State had intended it to be restricted.This Court had ma de it clear that in the event that special leave was granted, the respondents would not be asked to go back to jail. We think that those who have obtained the benefit of the High Courts order must be permitted to retain it and they cannot now be required to serve out the terms in respect of which they got such benefit.
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Common Cause (A Registered Society) and Ors Vs. Union of India (UOI) and Ors | noted on documents were not genuine and have no evidentiary value and that details in these loose papers, computer print outs, hard disk and pen drive etc. do not comply with the requirement of the Indian Evidence Act and are not admissible evidence. It further observed that the department has no evidence to prove that entries in these loose papers and electronic data were kept regularly during the course of business of the concerned business house and the fact that these entries were fabricated, non-genuine was proved. It held as well that the PCIT/DR have not been able to show and substantiate the nature and source of receipts as well as nature and reason of payments and have failed to prove evidentiary value of loose papers and electronic documents within the legal parameters. The Commission has also observed that Department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of these documents. 23. It is apparent that the Commission has recorded a finding that transactions noted in the documents were not genuine and thus has not attached any evidentiary value to the pen drive, hard disk, computer loose papers, computer printouts. 24. Since it is not disputed that for entries relied on in these loose papers and electronic data were not regularly kept during course of business, such entries were discussed in the order dated 11.11.2016 passed in Saharas case by the Settlement Commission and the documents have not been relied upon by the Commission against Assessee, and thus such documents have no evidentiary value against third parties. On the basis of the materials which have been placed on record, we are of the considered opinion that no case is made out to direct investigation against any of the persons named in the Birlas documents or in the documents A-8, A-9 and A-10 etc. of Sahara. 25. This Court, in the decision of Lalita Kumari v. Government of Uttar Pradesh and Ors. 2014(2) SCC 1 has laid down that when there is commission of offence apparent from the complaint and a cognizable offence is made out, investigation should normally be ordered and the falsity of the allegations can be ascertained during the course of investigation. In our opinion, the decision of Lalita Kumari (supra) is of no help to the Petitioner for seeking direction for an investigation from a Court on the basis of documents which are irrelevant, and per se not cognizable in law as piece of evidence and inadmissible in evidence and thus a roving inquiry cannot be ordered on such legally unsustainable material. 26. In the case of State of Haryana and Ors. v. Bhajan Lal and Ors.1992 Supp (1) SCC 335, this Court has laid down principles in regard to quashing the F.I.R. The Court can quash FIR also if situation warrant even before investigation takes place in certain circumstances. This Court has laid down thus: 102. x x x x x (1) Where the allegations made in the first information report of the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 27. Considering the aforesaid principles which have been laid down, we are of the opinion that the materials in question are not good enough to constitute offences to direct the registration of F.I.R. and investigation therein. The materials should qualify the test as per the aforesaid decision. The complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. The materials in question are not only irrelevant but are also legally inadmissible Under Section 34 of the Evidence Act, more so with respect to third parties and considering the explanation which have been made by the Birla Group and Sahara Group, we are of the opinion that it would not be legally justified, safe, just and proper to direct investigation, keeping in view principles laid down in the cases of Bhajan Lal and V.C. Shukla (supra). 28. In view of the materials which have been placed on record and the peculiar facts and circumstances projected in the case, we find that no case is made out to direct the investigation as prayed for. | 0[ds]15. Before dilating upon the issue canvassed in the application we make it clear that we have not examined the main writ petitions vis-à-vis challenge to the appointments of Respondent Nos. 2 and 3.We are examining only the merit of the I.A. No. 3 supported by I.A. No. 4, as to whether a case is made out on the basis of materials which are placed on record, to constitute SIT and direct investigation against the various functionaries/officers which are projected in Annexure A-8, A-9 and A-10 and other entries on loose sheets and further monitor the same20. It is apparent from the aforesaid discussion that loose sheets of papers are wholly irrelevant as evidence being not admissible Under Section 34 so as to constitute evidence with respect to the transactions mentioned therein being of no evidentiary value. The entire prosecution based upon such entries which led to the investigation was quashed by this Court21. We are constrained to observe that the Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, we have apprehension whether it would be safe to even initiate investigation. In case we do so, the investigation can be ordered as against any person whosoever high in integrity on the basis of irrelevant or inadmissible entry falsely made, by any unscrupulous person or business house that too not kept in regular books of accounts but on random papers at any given point of time. There has to be some relevant and admissible evidence and some cogent reason, which is prima facie reliable and that too, supported by some other circumstances pointing out that the particular third person against whom the allegations have been levelled was in fact involved in the matter or he has done some act during that period, which may have co-relations with the random entries. In case we do not insist for all these, the process of law can be abused against all and sundry very easily to achieve ulterior goals and then no democracy can survive in case investigations are lightly set in motion against important constitutional functionaries on the basis of fictitious entries, in absence of cogent and admissible material on record, lest liberty of an individual be compromised unnecessarily. We find the materials which have been placed on record either in the case of Birla or in the case of Sahara are not maintained in regular course of business and thus lack in required reliability to be made the foundation of a police investigation22. In case of Sahara, in addition we have the adjudication by the Income Tax Settlement Commission. The order has been placed on record along with I.A. No. 4. The Settlement Commission has observed that the scrutiny of entries on loose papers, computer prints, hard disk, pen drives etc. have revealed that the transactions noted on documents were not genuine and have no evidentiary value and that details in these loose papers, computer print outs, hard disk and pen drive etc. do not comply with the requirement of the Indian Evidence Act and are not admissible evidence. It further observed that the department has no evidence to prove that entries in these loose papers and electronic data were kept regularly during the course of business of the concerned business house and the fact that these entries were fabricated, non-genuine was proved. It held as well that the PCIT/DR have not been able to show and substantiate the nature and source of receipts as well as nature and reason of payments and have failed to prove evidentiary value of loose papers and electronic documents within the legal parameters. The Commission has also observed that Department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of these documents23. It is apparent that the Commission has recorded a finding that transactions noted in the documents were not genuine and thus has not attached any evidentiary value to the pen drive, hard disk, computer loose papers, computer printouts24. Since it is not disputed that for entries relied on in these loose papers and electronic data were not regularly kept during course of business, such entries were discussed in the order dated 11.11.2016 passed in Saharas case by the Settlement Commission and the documents have not been relied upon by the Commission against Assessee, and thus such documents have no evidentiary value against third parties. On the basis of the materials which have been placed on record, we are of the considered opinion that no case is made out to direct investigation against any of the persons named in the Birlas documents or in the documents A-8, A-9 and A-10 etc. of Sahara25. This Court, in the decision of Lalita Kumari v. Government of Uttar Pradesh and Ors. 2014(2) SCC 1 has laid down that when there is commission of offence apparent from the complaint and a cognizable offence is made out, investigation should normally be ordered and the falsity of the allegations can be ascertained during the course of investigation. In our opinion, the decision of Lalita Kumari (supra) is of no help to the Petitioner for seeking direction for an investigation from a Court on the basis of documents which are irrelevant, and per se not cognizable in law as piece of evidence and inadmissible in evidence and thus a roving inquiry cannot be ordered on such legally unsustainable material27. Considering the aforesaid principles which have been laid down, we are of the opinion that the materials in question are not good enough to constitute offences to direct the registration of F.I.R. and investigation therein. The materials should qualify the test as per the aforesaid decision. The complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. The materials in question are not only irrelevant but are also legally inadmissible Under Section 34 of the Evidence Act, more so with respect to third parties and considering the explanation which have been made by the Birla Group and Sahara Group, we are of the opinion that it would not be legally justified, safe, just and proper to direct investigation, keeping in view principles laid down in the cases of Bhajan Lal and V.C. Shukla (supra)28. In view of the materials which have been placed on record and the peculiar facts and circumstances projected in the case, we find that no case is made out to direct the investigation as prayed for. | 0 | 5,151 | 1,219 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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noted on documents were not genuine and have no evidentiary value and that details in these loose papers, computer print outs, hard disk and pen drive etc. do not comply with the requirement of the Indian Evidence Act and are not admissible evidence. It further observed that the department has no evidence to prove that entries in these loose papers and electronic data were kept regularly during the course of business of the concerned business house and the fact that these entries were fabricated, non-genuine was proved. It held as well that the PCIT/DR have not been able to show and substantiate the nature and source of receipts as well as nature and reason of payments and have failed to prove evidentiary value of loose papers and electronic documents within the legal parameters. The Commission has also observed that Department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of these documents. 23. It is apparent that the Commission has recorded a finding that transactions noted in the documents were not genuine and thus has not attached any evidentiary value to the pen drive, hard disk, computer loose papers, computer printouts. 24. Since it is not disputed that for entries relied on in these loose papers and electronic data were not regularly kept during course of business, such entries were discussed in the order dated 11.11.2016 passed in Saharas case by the Settlement Commission and the documents have not been relied upon by the Commission against Assessee, and thus such documents have no evidentiary value against third parties. On the basis of the materials which have been placed on record, we are of the considered opinion that no case is made out to direct investigation against any of the persons named in the Birlas documents or in the documents A-8, A-9 and A-10 etc. of Sahara. 25. This Court, in the decision of Lalita Kumari v. Government of Uttar Pradesh and Ors. 2014(2) SCC 1 has laid down that when there is commission of offence apparent from the complaint and a cognizable offence is made out, investigation should normally be ordered and the falsity of the allegations can be ascertained during the course of investigation. In our opinion, the decision of Lalita Kumari (supra) is of no help to the Petitioner for seeking direction for an investigation from a Court on the basis of documents which are irrelevant, and per se not cognizable in law as piece of evidence and inadmissible in evidence and thus a roving inquiry cannot be ordered on such legally unsustainable material. 26. In the case of State of Haryana and Ors. v. Bhajan Lal and Ors.1992 Supp (1) SCC 335, this Court has laid down principles in regard to quashing the F.I.R. The Court can quash FIR also if situation warrant even before investigation takes place in certain circumstances. This Court has laid down thus: 102. x x x x x (1) Where the allegations made in the first information report of the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 27. Considering the aforesaid principles which have been laid down, we are of the opinion that the materials in question are not good enough to constitute offences to direct the registration of F.I.R. and investigation therein. The materials should qualify the test as per the aforesaid decision. The complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. The materials in question are not only irrelevant but are also legally inadmissible Under Section 34 of the Evidence Act, more so with respect to third parties and considering the explanation which have been made by the Birla Group and Sahara Group, we are of the opinion that it would not be legally justified, safe, just and proper to direct investigation, keeping in view principles laid down in the cases of Bhajan Lal and V.C. Shukla (supra). 28. In view of the materials which have been placed on record and the peculiar facts and circumstances projected in the case, we find that no case is made out to direct the investigation as prayed for.
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transactions mentioned therein being of no evidentiary value. The entire prosecution based upon such entries which led to the investigation was quashed by this Court21. We are constrained to observe that the Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, we have apprehension whether it would be safe to even initiate investigation. In case we do so, the investigation can be ordered as against any person whosoever high in integrity on the basis of irrelevant or inadmissible entry falsely made, by any unscrupulous person or business house that too not kept in regular books of accounts but on random papers at any given point of time. There has to be some relevant and admissible evidence and some cogent reason, which is prima facie reliable and that too, supported by some other circumstances pointing out that the particular third person against whom the allegations have been levelled was in fact involved in the matter or he has done some act during that period, which may have co-relations with the random entries. In case we do not insist for all these, the process of law can be abused against all and sundry very easily to achieve ulterior goals and then no democracy can survive in case investigations are lightly set in motion against important constitutional functionaries on the basis of fictitious entries, in absence of cogent and admissible material on record, lest liberty of an individual be compromised unnecessarily. We find the materials which have been placed on record either in the case of Birla or in the case of Sahara are not maintained in regular course of business and thus lack in required reliability to be made the foundation of a police investigation22. In case of Sahara, in addition we have the adjudication by the Income Tax Settlement Commission. The order has been placed on record along with I.A. No. 4. The Settlement Commission has observed that the scrutiny of entries on loose papers, computer prints, hard disk, pen drives etc. have revealed that the transactions noted on documents were not genuine and have no evidentiary value and that details in these loose papers, computer print outs, hard disk and pen drive etc. do not comply with the requirement of the Indian Evidence Act and are not admissible evidence. It further observed that the department has no evidence to prove that entries in these loose papers and electronic data were kept regularly during the course of business of the concerned business house and the fact that these entries were fabricated, non-genuine was proved. It held as well that the PCIT/DR have not been able to show and substantiate the nature and source of receipts as well as nature and reason of payments and have failed to prove evidentiary value of loose papers and electronic documents within the legal parameters. The Commission has also observed that Department has not been able to make out a clear case of taxing such income in the hands of the applicant firm on the basis of these documents23. It is apparent that the Commission has recorded a finding that transactions noted in the documents were not genuine and thus has not attached any evidentiary value to the pen drive, hard disk, computer loose papers, computer printouts24. Since it is not disputed that for entries relied on in these loose papers and electronic data were not regularly kept during course of business, such entries were discussed in the order dated 11.11.2016 passed in Saharas case by the Settlement Commission and the documents have not been relied upon by the Commission against Assessee, and thus such documents have no evidentiary value against third parties. On the basis of the materials which have been placed on record, we are of the considered opinion that no case is made out to direct investigation against any of the persons named in the Birlas documents or in the documents A-8, A-9 and A-10 etc. of Sahara25. This Court, in the decision of Lalita Kumari v. Government of Uttar Pradesh and Ors. 2014(2) SCC 1 has laid down that when there is commission of offence apparent from the complaint and a cognizable offence is made out, investigation should normally be ordered and the falsity of the allegations can be ascertained during the course of investigation. In our opinion, the decision of Lalita Kumari (supra) is of no help to the Petitioner for seeking direction for an investigation from a Court on the basis of documents which are irrelevant, and per se not cognizable in law as piece of evidence and inadmissible in evidence and thus a roving inquiry cannot be ordered on such legally unsustainable material27. Considering the aforesaid principles which have been laid down, we are of the opinion that the materials in question are not good enough to constitute offences to direct the registration of F.I.R. and investigation therein. The materials should qualify the test as per the aforesaid decision. The complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. The materials in question are not only irrelevant but are also legally inadmissible Under Section 34 of the Evidence Act, more so with respect to third parties and considering the explanation which have been made by the Birla Group and Sahara Group, we are of the opinion that it would not be legally justified, safe, just and proper to direct investigation, keeping in view principles laid down in the cases of Bhajan Lal and V.C. Shukla (supra)28. In view of the materials which have been placed on record and the peculiar facts and circumstances projected in the case, we find that no case is made out to direct the investigation as prayed for.
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Bank of India Vs. Messrs Vijay Transport and Others | provisions of the Banking Companies Act with effect from July 19, 1969. The contention of the respondents that the Bank has been nationalised or formed under the Ordinance 8 of 1969 is without any substance whatsoever and is rejected. 14. We may refer to a decision of this Court in L. I. C. v. Kota Ramabrahmam (AIR 1977 SC 1704 : (1977) 3 SCC 33 ). Gupta, J. while delivering the judgment of the court, observes that there is no dispute that the corporation established under the Life Insurance Corporation Act, 1956 is a corporation as contemplated by Section 4(e) of the Act. This decision has been strongly relied upon by the respondents in support of their contention that as the major part of the loan, that is to say, a sum of Rs. 10, 00, 000, was contracted before the nationalisation of the appellant Bank, the provision of Section 4(e) is not applicable. In Life Insurance Corporations case (AIR 1977 SC 1704 : (1977) 3 SCC 33 ), the loan were advanced by the Andhra Insurance Company of Masulipatanam and by Nagpur Pioneer Insurance Company limited, Bombay, admittedly, before the creation of the Corporation under the life Insurance Corporation Act, 1956 and it was held by this Court that the debts due to the insurers in these two cases were liable to be scaled down in accordance with the provisions of the Act. 15. In the instant case, the amounts of loan were advanced by the Bank to the firm under the cash credit account opened in favour of the firm. Normally, the advances that are made from the cash credit account are repaid and, therefore, fresh advances are made. It is not known what was the actual balance on the date of Bank was nationalised. It is true that in the judgment of the High Court it has been stated that the principle amounts of Rs. 3, 00, 000, Rs. 7, 00, 000 and Rs. 80, 000 were severally advanced by the Bank to the firm under the cash credit account on November 28, 1967, April 3, 1968 and February 17, 1972 respectively. But, there is no further statement whether the first two amounts were repaid by the firm and, thereafter, fresh advances were taken out of the cash credit account. The respondents did not advance any such contention either in their written statements or in the arguments before the trial court and the High Court. It is for the first time before this Court that such a plea is raised in the argument of the learned counsel for the respondents. The contention involves a question of fact which has to be pleaded and proved. In the absence of any such pleading, we are unable to allow the respondents to raise such a contention for the first time in argument before this Court16. At this stage, it may be stated that in Krishna Murthys case (AIR 1983 AP 347 : (1983) 1 APLJ (HC) 371), it has been held by the Division Bench that the latter part of Section 4(e) of the Act containing the words any debt due to any corporation formed ion pursuance of an Act of Parliament of the United Kingdom or any special Indian law or Royal Charter or Letters Patent is offensive to Article 14 of the Constitution and, accordingly, void. The learned counsel for the respondents submits that in view of the decision in Krishna Murthys case (AIR 1983 AP 347 : (1983) 1 APLJ (HC) 371), this Court should declare the latter part of Section 4(e) of the Act to be void as offending Article 14 of the Constitution, although no such point has ever been taken by the respondents up to this Court. On the other hand, it is submitted by the learned Additional Solicitor General that the said finding of the Division Bench in Krishna Murthys case (AIR 1983 AP 347 : (1983) 1 APLJ (HC) 371), to the effect that the latter part of Section 4(e) of the Act is void, is erroneous. 16. The reasons given by the Division Bench of the Andhra Pradesh High Court in Krishna Murthys case (AIR 1983 AP 347 : (1983) 1 APLJ (HC) 371), for holding the latter part of Section 4(e) of the Act as void, are that Section 4(e) of the Act was enacted to protect the British economic interests and although such a law could permissibly be enacted under the Constitutional Scheme of the 1935 Government of India Act, that law after the inauguration of our Sovereign Democratic Republic cannot but be held to have become void as making invidious discrimination in favour of the British Corporation offending against the equality clause under Article 14 of the Constitution. Before declaring the same as void, the Division Bench took the view that the words any special Indian law could not have been intended to refer to any law made by any legislature of our country, but to a law made by the British Imperial Parliament as a piece of special legislation application to India. It has already been discussed by us that the words any special Indian law refers and relates to a law made by the Indian legislature and not by the British Parliament. In that view of the matter, the reasons given by the Division Bench for holding the latter part of Section 4(e) to be void as making a discrimination in favour of corporations created by British Parliament, will not apply to corporations formed or created by any special Indian law which, in the instant case, is the Banking Companies Act. In our opinion, therefore, the Banking Companies Act is quite legal and valid. No other point has been urged by either party in this appeal.17. In view of the discussion made above, we hold that the provisions of the Act are not applicable to the appellant Bank and, therefore, there is no question of scaling down the debt due to the Bank by the respondents. | 1[ds]11. We are unable to accept the contention. It may be that in interpreting the words of the provision of a statute, the setting in which such words are placed may be taken into consideration, but that does not mean that even though the words which are to be interpreted convey a clear meaning, still a different interpretation or meaning should be given to them because of the setting. In other words, while the setting of the words may sometimes be necessary for the interpretation of the words of the statute, but that has not been ruled by this Court to be the only and the surest method of interpretation. In the instant case, the expression special Indian law has a clear and unambiguous meaning and there is no need for its interpretation. There is no reasonable justification to think that the expression special Indian law must be an enactment of the British Parliament. If, on the date the Act was passed, there was no Indian legislature, such an interpretation might be justified, but when there were in existence Indian legislatures including a legislature at the Centre, it would be quite unreasonable to think that special Indian law must be a law enacted by the British Parliament. In this connection, we may refer to Section 3(27)(a) ofthe General Clauses Act, 1897, which defined Indian law as meaning any Indian law enacted by the Indian legislature. In view of the said definition, the expression special Indian law means a special Indian law enacted by the Indian legislature. In the face of the provision of Section 3(27)(a) of the General Clauses Act, as it stood on the day the Act was passed, we do not think that there is any justification for laying down that the expression special Indian law in Section 4(e) of the Act means a law enacted by the British Parliament specially for India. We are, therefore, unable to accept the view of the Andhra Pradesh High Court in Krishna Murthys case (AIR 1983 AP 347 : (1983) 1 APLJ (HC) 371), and also the contention of the respondents made in that regard, which istheoretically, there may be a distinction between the words in pursuance of and the words by or under, but by using the expression in pursuance of in Section 4(e) the legislature, in our opinion, has not meant that the corporation in question should be formed by a third party in pursuance of the law and not by the law itself in order to come within the purview of Section 4(e) of the Act. The intention of the legislature is very clear in that the provision of Section 4(e) would apply to a corporation which is the creature of a special Indian law. There is no difference or distinction whatsoever between the corporation formed in pursuance of a special Indian law and a corporation formed by or under a special Indian law. It will be highly unreasonable and illogical to think that as a corporation has been formed by a under a special Indian law and not in pursuance of such a law, it will not come within the purview of Section 4(e) of the Act. Accordingly, we hold that the Banking Companies Act is a special Indian law and the provision of Section 4(e) is applicable to the appellantThe learned counsel for the respondents has been our attention to the fact that the Banking Companies Act was first formed or created by the Ordinance 8 of 1969 promulgated on July 19, 1969. The Ordinance was replaced by an Act of Parliament being Act 22 of 1969 with certain modifications. This Court, however in R. C. Cooper v. Union of India (AIR 1970 SC 564 : (1970) 1 SCC 248 ), struck down the Act 22 of 1969 as unconstitutional. Thereafter, a fresh Ordinance being Ordinance 3 of 1970 was promulgated on February 14, 1970 with certain further modifications and, thereafter, replaced by the present Banking Companies Act. It is submitted that as the appellant Bank was nationalised and/ or created under the Ordinance 8 of 1969 promulgated on July 19, 1969 and the present Banking Companies Act only ratifies the already created Bank under the said Ordinance, the appellant Bank was not, therefore, formed or created under any special Indian law. This contention is devoid of any merit and fit to be rejected on the face of it. Even assuming that the Bank was created under the Ordinance 8 of 1969 and not under the Banking Companies Act, still it must be held that it was created under a special Indian law, for an ordinance is as much a law as an enactment of Parliament or legislature. In this connection, it may also be pointed out that under sub-section (2) of Section 1 of the Banking Companies Act, the provisions of the Banking Companies Act (except Section 21 which shall come into force on the commencement of the Banking Companies Act, there shall be constituted such corresponding new banks as are specified in the First Schedule. Therefore, it is manifestly clear that the appellant Bank, which is mentioned in the First Schedule, has been created under the provisions of the Banking Companies Act with effect from July 19, 1969. The contention of the respondents that the Bank has been nationalised or formed under the Ordinance 8 of 1969 is without any substance whatsoever and isIn the instant case, the amounts of loan were advanced by the Bank to the firm under the cash credit account opened in favour of the firm. Normally, the advances that are made from the cash credit account are repaid and, therefore, fresh advances are made. It is not known what was the actual balance on the date of Bank was nationalised. It is true that in the judgment of the High Court it has been stated that the principle amounts of Rs. 3, 00, 000, Rs. 7, 00, 000 and Rs. 80, 000 were severally advanced by the Bank to the firm under the cash credit account on November 28, 1967, April 3, 1968 and February 17, 1972 respectively. But, there is no further statement whether the first two amounts were repaid by the firm and, thereafter, fresh advances were taken out of the cash credit account. The respondents did not advance any such contention either in their written statements or in the arguments before the trial court and the High Court. It is for the first time before this Court that such a plea is raised in the argument of the learned counsel for the respondents. The contention involves a question of fact which has to be pleaded and proved. In the absence of any such pleading, we are unable to allow the respondents to raise such a contention for the first time in argument before thisThe reasons given by the Division Bench of the Andhra Pradesh High Court in Krishna Murthys case (AIR 1983 AP 347 : (1983) 1 APLJ (HC) 371), for holding the latter part of Section 4(e) of the Act as void, are that Section 4(e) of the Act was enacted to protect the British economic interests and although such a law could permissibly be enacted under the Constitutional Scheme of the 1935 Government of India Act, that law after the inauguration of our Sovereign Democratic Republic cannot but be held to have become void as making invidious discrimination in favour of the British Corporation offending against the equality clause under Article 14 of the Constitution. Before declaring the same as void, the Division Bench took the view that the words any special Indian law could not have been intended to refer to any law made by any legislature of our country, but to a law made by the British Imperial Parliament as a piece of special legislation application to India. It has already been discussed by us that the words any special Indian law refers and relates to a law made by the Indian legislature and not by the British Parliament. In that view of the matter, the reasons given by the Division Bench for holding the latter part of Section 4(e) to be void as making a discrimination in favour of corporations created by British Parliament, will not apply to corporations formed or created by any special Indian law which, in the instant case, is the Banking Companies Act. In our opinion, therefore, the Banking Companies Act is quite legal and valid. No other point has been urged by either party in this appeal.17. In view of the discussion made above, we hold that the provisions of the Act are not applicable to the appellant Bank and, therefore, there is no question of scaling down the debt due to the Bank by the respondents | 1 | 4,210 | 1,642 | ### Instruction:
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provisions of the Banking Companies Act with effect from July 19, 1969. The contention of the respondents that the Bank has been nationalised or formed under the Ordinance 8 of 1969 is without any substance whatsoever and is rejected. 14. We may refer to a decision of this Court in L. I. C. v. Kota Ramabrahmam (AIR 1977 SC 1704 : (1977) 3 SCC 33 ). Gupta, J. while delivering the judgment of the court, observes that there is no dispute that the corporation established under the Life Insurance Corporation Act, 1956 is a corporation as contemplated by Section 4(e) of the Act. This decision has been strongly relied upon by the respondents in support of their contention that as the major part of the loan, that is to say, a sum of Rs. 10, 00, 000, was contracted before the nationalisation of the appellant Bank, the provision of Section 4(e) is not applicable. In Life Insurance Corporations case (AIR 1977 SC 1704 : (1977) 3 SCC 33 ), the loan were advanced by the Andhra Insurance Company of Masulipatanam and by Nagpur Pioneer Insurance Company limited, Bombay, admittedly, before the creation of the Corporation under the life Insurance Corporation Act, 1956 and it was held by this Court that the debts due to the insurers in these two cases were liable to be scaled down in accordance with the provisions of the Act. 15. In the instant case, the amounts of loan were advanced by the Bank to the firm under the cash credit account opened in favour of the firm. Normally, the advances that are made from the cash credit account are repaid and, therefore, fresh advances are made. It is not known what was the actual balance on the date of Bank was nationalised. It is true that in the judgment of the High Court it has been stated that the principle amounts of Rs. 3, 00, 000, Rs. 7, 00, 000 and Rs. 80, 000 were severally advanced by the Bank to the firm under the cash credit account on November 28, 1967, April 3, 1968 and February 17, 1972 respectively. But, there is no further statement whether the first two amounts were repaid by the firm and, thereafter, fresh advances were taken out of the cash credit account. The respondents did not advance any such contention either in their written statements or in the arguments before the trial court and the High Court. It is for the first time before this Court that such a plea is raised in the argument of the learned counsel for the respondents. The contention involves a question of fact which has to be pleaded and proved. In the absence of any such pleading, we are unable to allow the respondents to raise such a contention for the first time in argument before this Court16. At this stage, it may be stated that in Krishna Murthys case (AIR 1983 AP 347 : (1983) 1 APLJ (HC) 371), it has been held by the Division Bench that the latter part of Section 4(e) of the Act containing the words any debt due to any corporation formed ion pursuance of an Act of Parliament of the United Kingdom or any special Indian law or Royal Charter or Letters Patent is offensive to Article 14 of the Constitution and, accordingly, void. The learned counsel for the respondents submits that in view of the decision in Krishna Murthys case (AIR 1983 AP 347 : (1983) 1 APLJ (HC) 371), this Court should declare the latter part of Section 4(e) of the Act to be void as offending Article 14 of the Constitution, although no such point has ever been taken by the respondents up to this Court. On the other hand, it is submitted by the learned Additional Solicitor General that the said finding of the Division Bench in Krishna Murthys case (AIR 1983 AP 347 : (1983) 1 APLJ (HC) 371), to the effect that the latter part of Section 4(e) of the Act is void, is erroneous. 16. The reasons given by the Division Bench of the Andhra Pradesh High Court in Krishna Murthys case (AIR 1983 AP 347 : (1983) 1 APLJ (HC) 371), for holding the latter part of Section 4(e) of the Act as void, are that Section 4(e) of the Act was enacted to protect the British economic interests and although such a law could permissibly be enacted under the Constitutional Scheme of the 1935 Government of India Act, that law after the inauguration of our Sovereign Democratic Republic cannot but be held to have become void as making invidious discrimination in favour of the British Corporation offending against the equality clause under Article 14 of the Constitution. Before declaring the same as void, the Division Bench took the view that the words any special Indian law could not have been intended to refer to any law made by any legislature of our country, but to a law made by the British Imperial Parliament as a piece of special legislation application to India. It has already been discussed by us that the words any special Indian law refers and relates to a law made by the Indian legislature and not by the British Parliament. In that view of the matter, the reasons given by the Division Bench for holding the latter part of Section 4(e) to be void as making a discrimination in favour of corporations created by British Parliament, will not apply to corporations formed or created by any special Indian law which, in the instant case, is the Banking Companies Act. In our opinion, therefore, the Banking Companies Act is quite legal and valid. No other point has been urged by either party in this appeal.17. In view of the discussion made above, we hold that the provisions of the Act are not applicable to the appellant Bank and, therefore, there is no question of scaling down the debt due to the Bank by the respondents.
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or distinction whatsoever between the corporation formed in pursuance of a special Indian law and a corporation formed by or under a special Indian law. It will be highly unreasonable and illogical to think that as a corporation has been formed by a under a special Indian law and not in pursuance of such a law, it will not come within the purview of Section 4(e) of the Act. Accordingly, we hold that the Banking Companies Act is a special Indian law and the provision of Section 4(e) is applicable to the appellantThe learned counsel for the respondents has been our attention to the fact that the Banking Companies Act was first formed or created by the Ordinance 8 of 1969 promulgated on July 19, 1969. The Ordinance was replaced by an Act of Parliament being Act 22 of 1969 with certain modifications. This Court, however in R. C. Cooper v. Union of India (AIR 1970 SC 564 : (1970) 1 SCC 248 ), struck down the Act 22 of 1969 as unconstitutional. Thereafter, a fresh Ordinance being Ordinance 3 of 1970 was promulgated on February 14, 1970 with certain further modifications and, thereafter, replaced by the present Banking Companies Act. It is submitted that as the appellant Bank was nationalised and/ or created under the Ordinance 8 of 1969 promulgated on July 19, 1969 and the present Banking Companies Act only ratifies the already created Bank under the said Ordinance, the appellant Bank was not, therefore, formed or created under any special Indian law. This contention is devoid of any merit and fit to be rejected on the face of it. Even assuming that the Bank was created under the Ordinance 8 of 1969 and not under the Banking Companies Act, still it must be held that it was created under a special Indian law, for an ordinance is as much a law as an enactment of Parliament or legislature. In this connection, it may also be pointed out that under sub-section (2) of Section 1 of the Banking Companies Act, the provisions of the Banking Companies Act (except Section 21 which shall come into force on the commencement of the Banking Companies Act, there shall be constituted such corresponding new banks as are specified in the First Schedule. Therefore, it is manifestly clear that the appellant Bank, which is mentioned in the First Schedule, has been created under the provisions of the Banking Companies Act with effect from July 19, 1969. The contention of the respondents that the Bank has been nationalised or formed under the Ordinance 8 of 1969 is without any substance whatsoever and isIn the instant case, the amounts of loan were advanced by the Bank to the firm under the cash credit account opened in favour of the firm. Normally, the advances that are made from the cash credit account are repaid and, therefore, fresh advances are made. It is not known what was the actual balance on the date of Bank was nationalised. It is true that in the judgment of the High Court it has been stated that the principle amounts of Rs. 3, 00, 000, Rs. 7, 00, 000 and Rs. 80, 000 were severally advanced by the Bank to the firm under the cash credit account on November 28, 1967, April 3, 1968 and February 17, 1972 respectively. But, there is no further statement whether the first two amounts were repaid by the firm and, thereafter, fresh advances were taken out of the cash credit account. The respondents did not advance any such contention either in their written statements or in the arguments before the trial court and the High Court. It is for the first time before this Court that such a plea is raised in the argument of the learned counsel for the respondents. The contention involves a question of fact which has to be pleaded and proved. In the absence of any such pleading, we are unable to allow the respondents to raise such a contention for the first time in argument before thisThe reasons given by the Division Bench of the Andhra Pradesh High Court in Krishna Murthys case (AIR 1983 AP 347 : (1983) 1 APLJ (HC) 371), for holding the latter part of Section 4(e) of the Act as void, are that Section 4(e) of the Act was enacted to protect the British economic interests and although such a law could permissibly be enacted under the Constitutional Scheme of the 1935 Government of India Act, that law after the inauguration of our Sovereign Democratic Republic cannot but be held to have become void as making invidious discrimination in favour of the British Corporation offending against the equality clause under Article 14 of the Constitution. Before declaring the same as void, the Division Bench took the view that the words any special Indian law could not have been intended to refer to any law made by any legislature of our country, but to a law made by the British Imperial Parliament as a piece of special legislation application to India. It has already been discussed by us that the words any special Indian law refers and relates to a law made by the Indian legislature and not by the British Parliament. In that view of the matter, the reasons given by the Division Bench for holding the latter part of Section 4(e) to be void as making a discrimination in favour of corporations created by British Parliament, will not apply to corporations formed or created by any special Indian law which, in the instant case, is the Banking Companies Act. In our opinion, therefore, the Banking Companies Act is quite legal and valid. No other point has been urged by either party in this appeal.17. In view of the discussion made above, we hold that the provisions of the Act are not applicable to the appellant Bank and, therefore, there is no question of scaling down the debt due to the Bank by the respondents
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B.K.S. Marulasiddaiah & Company Vs. Madras Pakku Mandy | 1. Leave granted. 2. This civil appeal is directed against the judgment and order passed by the High Court of Karnataka at Bangalore in RFA No. 97 of 2003, dated 16.08.2012, whereby the High Court has remanded the matter back to the learned Trial Court for its reconsideration in accordance with law.3. Briefly stated, the admitted facts in the present appeal are: the plaintiff/respondent herein and the defendant/appellant herein are traders dealing in Arecanuts. The respondents had purchased 40 bags of Arecanuts from the appellants for a given amount of money, however it was alleged that the appellants had failed to pay for the said transaction, dated 13.09.1991. Therefore, the respondent herein had filed Original Suit No. 117 of 1993, before the Principal Civil Judge (Senior Division), Shimoga, for recovery of the given amount along with interest. It is to be noticed that before filing the said suit on 06.09.1993, the prior sanction, as required under Section 84(4) of the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966 (for short, the APMC Act) had not been obtained by the respondents. It is also an admitted fact that such a sanction was obtained during the pendency of the said suit on 22.07.2002, that is, after a period of about 11 years from the date of cause of action. 4. The learned Trial Court, taking into consideration the relevant provisions of the Limitation Act, 1963, took the date of sanction as the relevant date for the purpose of ascertaining whether the said suit was barred by limitation. It was observed that, taking the date of sanction as the date on which the suit was duly instituted, the said suit was not within the prescribed period of limitation, that is, it was not duly instituted within 3 years from the date of cause of action. The learned Trial Court, therefore, had come to the conclusion that the suit filed by the plaintiff is barred by limitation, vide order dated 05.10.2002. 5. Aggrieved by the said order, the plaintiff had approached the High Court by filing RFA No. 97 of 2003. We have already noticed that the High Court has allowed the appeal and has remanded the matter back to the learned Trial Court, by its order dated 16.08.2012. 6. We have heard the learned counsel for the parties to the lis. We have also perused the record and the judgment(s) and order(s) passed by the High Court and the courts below. 7. The only question that arises for the consideration and decision of this Court is whether the High Court was justified in allowing the regular first appeal and thereby remanding the matter back to the Trial Court for fresh disposal in accordance with law, in particular the law of limitation as regards the filing of the said suit for recovery. 8. To appreciate the issue in the present lis, it would be profitable to reproduce Section 84(4) of the APMC Act. It reads as follows: Notwithstanding anything contained in any law, no suit or other legal proceeding shall be entertained by any Court in respect of disputes referred to in sub-section (1), without the previous sanction of the market Committee. 9. The aforesaid provision clearly shows that for filing of a suit for the enforcement of certain provisions under the APMC Act, the prior sanction of the Market Committee, as established under the APMC Act, is mandatory. It may be noticed that the term shall has been used in the aforesaid provision. It is well-settled that the term shall indicates that compliance of the given provision is mandatory. Therefore, this Court is of the view that the said suit could not be entertained without the said mandatory prior sanction. 10. In the instant case, we have already noticed the admitted fact that, at the time of filing the suit for recovery, the plaintiff/respondent herein did not have the mandatory sanction as required under Section 84(4) of the APMC Act. 11. This Court, on a perusal of the record, would notice that it has been stated in the plaint itself, that the cause of action for the suit had arisen on 13.09.1991 and that the suit was filed on 06.09.1993. However, it is an admitted fact that the sanction was applied for only in the year 2002, and consequently granted on 22.07.2002. In other words, the prior sanction as required under Section 84(4) of the APMC Act was applied for and obtained after a period of about 11 years from the date of cause of action. These dates clearly indicate that at the time of filing of the suit the plaintiff did not even apply for the prior sanction from the Market Committee as contemplated by Section 84(4) of the APMC Act. 12. Further, we are of the view that the learned Trial Court rightly applied the law under the Act, 1963 and took the date of sanction as the relevant date to determine the question of limitation. As noticed hereinabove, the cause of action arose in the year 1991 and the sanction was obtained only in the year 2002. That is to say, the said suit was delayed by a period of about 11 years and therefore is clearly barred by limitation. 13. Therefore, this Court is of the considered opinion, that the learned Trial Court rightly observed that the said suit could not be treated as having been duly instituted within the prescribed time period, as under the Act, 1963. In view of the above, the High Court was not justified in interfering with the orders passed by the learned Trial Court. | 1[ds]10. In the instant case, we have already noticed the admitted fact that, at the time of filing the suit for recovery, the plaintiff/respondent herein did not have the mandatory sanction as required under Section 84(4) of the APMC Act11. This Court, on a perusal of the record, would notice that it has been stated in the plaint itself, that the cause of action for the suit had arisen on 13.09.1991 and that the suit was filed on 06.09.1993. However, it is an admitted fact that the sanction was applied for only in the year 2002, and consequently granted on 22.07.2002. In other words, the prior sanction as required under Section 84(4) of the APMC Act was applied for and obtained after a period of about 11 years from the date of cause of action. These dates clearly indicate that at the time of filing of the suit the plaintiff did not even apply for the prior sanction from the Market Committee as contemplated by Section 84(4) of the APMC Act12. Further, we are of the view that the learned Trial Court rightly applied the law under the Act, 1963 and took the date of sanction as the relevant date to determine the question of limitation. As noticed hereinabove, the cause of action arose in the year 1991 and the sanction was obtained only in the year 2002. That is to say, the said suit was delayed by a period of about 11 years and therefore is clearly barred by limitation13. Therefore, this Court is of the considered opinion, that the learned Trial Court rightly observed that the said suit could not be treated as having been duly instituted within the prescribed time period, as under the Act, 1963. In view of the above, the High Court was not justified in interfering with the orders passed by the learned Trial Court. | 1 | 1,060 | 353 | ### Instruction:
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1. Leave granted. 2. This civil appeal is directed against the judgment and order passed by the High Court of Karnataka at Bangalore in RFA No. 97 of 2003, dated 16.08.2012, whereby the High Court has remanded the matter back to the learned Trial Court for its reconsideration in accordance with law.3. Briefly stated, the admitted facts in the present appeal are: the plaintiff/respondent herein and the defendant/appellant herein are traders dealing in Arecanuts. The respondents had purchased 40 bags of Arecanuts from the appellants for a given amount of money, however it was alleged that the appellants had failed to pay for the said transaction, dated 13.09.1991. Therefore, the respondent herein had filed Original Suit No. 117 of 1993, before the Principal Civil Judge (Senior Division), Shimoga, for recovery of the given amount along with interest. It is to be noticed that before filing the said suit on 06.09.1993, the prior sanction, as required under Section 84(4) of the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966 (for short, the APMC Act) had not been obtained by the respondents. It is also an admitted fact that such a sanction was obtained during the pendency of the said suit on 22.07.2002, that is, after a period of about 11 years from the date of cause of action. 4. The learned Trial Court, taking into consideration the relevant provisions of the Limitation Act, 1963, took the date of sanction as the relevant date for the purpose of ascertaining whether the said suit was barred by limitation. It was observed that, taking the date of sanction as the date on which the suit was duly instituted, the said suit was not within the prescribed period of limitation, that is, it was not duly instituted within 3 years from the date of cause of action. The learned Trial Court, therefore, had come to the conclusion that the suit filed by the plaintiff is barred by limitation, vide order dated 05.10.2002. 5. Aggrieved by the said order, the plaintiff had approached the High Court by filing RFA No. 97 of 2003. We have already noticed that the High Court has allowed the appeal and has remanded the matter back to the learned Trial Court, by its order dated 16.08.2012. 6. We have heard the learned counsel for the parties to the lis. We have also perused the record and the judgment(s) and order(s) passed by the High Court and the courts below. 7. The only question that arises for the consideration and decision of this Court is whether the High Court was justified in allowing the regular first appeal and thereby remanding the matter back to the Trial Court for fresh disposal in accordance with law, in particular the law of limitation as regards the filing of the said suit for recovery. 8. To appreciate the issue in the present lis, it would be profitable to reproduce Section 84(4) of the APMC Act. It reads as follows: Notwithstanding anything contained in any law, no suit or other legal proceeding shall be entertained by any Court in respect of disputes referred to in sub-section (1), without the previous sanction of the market Committee. 9. The aforesaid provision clearly shows that for filing of a suit for the enforcement of certain provisions under the APMC Act, the prior sanction of the Market Committee, as established under the APMC Act, is mandatory. It may be noticed that the term shall has been used in the aforesaid provision. It is well-settled that the term shall indicates that compliance of the given provision is mandatory. Therefore, this Court is of the view that the said suit could not be entertained without the said mandatory prior sanction. 10. In the instant case, we have already noticed the admitted fact that, at the time of filing the suit for recovery, the plaintiff/respondent herein did not have the mandatory sanction as required under Section 84(4) of the APMC Act. 11. This Court, on a perusal of the record, would notice that it has been stated in the plaint itself, that the cause of action for the suit had arisen on 13.09.1991 and that the suit was filed on 06.09.1993. However, it is an admitted fact that the sanction was applied for only in the year 2002, and consequently granted on 22.07.2002. In other words, the prior sanction as required under Section 84(4) of the APMC Act was applied for and obtained after a period of about 11 years from the date of cause of action. These dates clearly indicate that at the time of filing of the suit the plaintiff did not even apply for the prior sanction from the Market Committee as contemplated by Section 84(4) of the APMC Act. 12. Further, we are of the view that the learned Trial Court rightly applied the law under the Act, 1963 and took the date of sanction as the relevant date to determine the question of limitation. As noticed hereinabove, the cause of action arose in the year 1991 and the sanction was obtained only in the year 2002. That is to say, the said suit was delayed by a period of about 11 years and therefore is clearly barred by limitation. 13. Therefore, this Court is of the considered opinion, that the learned Trial Court rightly observed that the said suit could not be treated as having been duly instituted within the prescribed time period, as under the Act, 1963. In view of the above, the High Court was not justified in interfering with the orders passed by the learned Trial Court.
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10. In the instant case, we have already noticed the admitted fact that, at the time of filing the suit for recovery, the plaintiff/respondent herein did not have the mandatory sanction as required under Section 84(4) of the APMC Act11. This Court, on a perusal of the record, would notice that it has been stated in the plaint itself, that the cause of action for the suit had arisen on 13.09.1991 and that the suit was filed on 06.09.1993. However, it is an admitted fact that the sanction was applied for only in the year 2002, and consequently granted on 22.07.2002. In other words, the prior sanction as required under Section 84(4) of the APMC Act was applied for and obtained after a period of about 11 years from the date of cause of action. These dates clearly indicate that at the time of filing of the suit the plaintiff did not even apply for the prior sanction from the Market Committee as contemplated by Section 84(4) of the APMC Act12. Further, we are of the view that the learned Trial Court rightly applied the law under the Act, 1963 and took the date of sanction as the relevant date to determine the question of limitation. As noticed hereinabove, the cause of action arose in the year 1991 and the sanction was obtained only in the year 2002. That is to say, the said suit was delayed by a period of about 11 years and therefore is clearly barred by limitation13. Therefore, this Court is of the considered opinion, that the learned Trial Court rightly observed that the said suit could not be treated as having been duly instituted within the prescribed time period, as under the Act, 1963. In view of the above, the High Court was not justified in interfering with the orders passed by the learned Trial Court.
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Pasupuleti Venkateswarlu Vs. The Motor & General Traders | to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into S. 10 (3) (iii) itself. We are not disposed to disturb this approach in law or finding of fact.5. The law we have set out is of ancient vintage. We will merely refer to Lachmeshwar Prasad Shukul v Keshwar Lal Chaudhuri, 1940 FCR 84 = (AIR 1941 FC 5 ) which is a leading case on the point. Gwyer C. J, in the above case, referred to the rule adopted by the Supreme Court of the United states in Patterson v. State of Alabama. (1934) 294 US 600 at P. 607:"We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment ,was entered."And said that that view of the Courts powers was reaffirmed once again in the then recent case of Minnesota v. National Tea Co. (1939) 309 US 551 at p. 555, Sulaiman J., in the same case 1940 FCR 94 = (AIR 1941 FC 5 ) relied on English cases and took the view that an appeal is by way of a re-hearing and the Court may make such order as the Judge of the first instance could have made if the case had been heard by himat the date on which the appeal was heard (emphasis, ours). Varadachariar J., dealt with the same point a little more comprehensively. We may content ourselves with excerpting one passage which brings out the point luminously (at p.103 of 1940 FCR) - (at p. 13 of AIR):It is also on the theory of an appeal being in the nature of a rehearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the Court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against."6. The High Court in this case, in the concluding stages slightly self-contradicted itself and observed: the civil revision petition cannot be entertained and proceeded further to state: it will not be desirable that I should exercise my discretion in directing an amendment of the petition. In conclusion, the Court did interfere in revision by setting aside the order of remittal to the Rent Controller and dismissing the eviction petition, leaving the near decade-old litigation to be reopened in a fresh unending chapter of forensic fight. The learned Judge gave little comfort to the litigant who had come with a proved case of bona fide requirement to start his own business by his obscure observation: If so advised the petitioner may seek to obtain such relief as may be open to him by filing a fresh petition under the appropriate provision of the Act, in view of the subsequent event of his having come into possession of a portion of the building. We think it unfair to drive parties to a new litigation of unknown duration but direct, in the special circumstances of the case (which are peculiar) that: (a) the revision before the High Court shall stand dismissed; (b) the Rent Controller will take note of the subsequent development disabling the landlord from seeking eviction on which there is already an adverse finding by the High court; (c) the landlord be allowed to amend his petition if he has a case for eviction on any other legally permissible ground; and (d) the parties be given fair and full opportunity to file additional pleadings and lead evidence thereon. But we make it clear that the subsequent event that the petitioner had come by a non-residential accommodation of his own in the same town having been found by the High court, cannot be canvassed over again. That finding of legal disability cannot be reopened. We keep open for enquiry only grounds if any, which may reasonably be permitted by amendment if they are of any relevance or use for eviction. | 1[ds]e feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into S. 10 (3) (iii) itself. We are not disposed to disturb this approach in law or finding of fact.The High Court in this case, in the concluding stages slightly self-contradicted itself and observed: the civil revision petition cannot be entertained and proceeded further to state: it will not be desirable that I should exercise my discretion in directing an amendment of the petition. In conclusion, the Court did interfere in revision by setting aside the order of remittal to the Rent Controller and dismissing the eviction petition, leaving the near decade-old litigation to be reopened in a fresh unending chapter of forensic fight. The learned Judge gave little comfort to the litigant who had come with a proved case of bona fide requirement to start his own business by his obscure observation: If so advised the petitioner may seek to obtain such relief as may be open to him by filing a fresh petition under the appropriate provision of the Act, in view of the subsequent event of his having come into possession of a portion of the building. We think it unfair to drive parties to a new litigation of unknown duration but direct, in the special circumstances of the case (which are peculiar) that: (a) the revision before the High Court shall stand dismissed; (b) the Rent Controller will take note of the subsequent development disabling the landlord from seeking eviction on which there is already an adverse finding by the High court; (c) the landlord be allowed to amend his petition if he has a case for eviction on any other legally permissible ground; and (d) the parties be given fair and full opportunity to file additional pleadings and lead evidence thereon. But we make it clear that the subsequent event that the petitioner had come by a non-residential accommodation of his own in the same town having been found by the High court, cannot be canvassed over again. That finding of legal disability cannot be reopened. We keep open for enquiry only grounds if any, which may reasonably be permitted by amendment if they are of any relevance or use for eviction. | 1 | 1,759 | 763 | ### Instruction:
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to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into S. 10 (3) (iii) itself. We are not disposed to disturb this approach in law or finding of fact.5. The law we have set out is of ancient vintage. We will merely refer to Lachmeshwar Prasad Shukul v Keshwar Lal Chaudhuri, 1940 FCR 84 = (AIR 1941 FC 5 ) which is a leading case on the point. Gwyer C. J, in the above case, referred to the rule adopted by the Supreme Court of the United states in Patterson v. State of Alabama. (1934) 294 US 600 at P. 607:"We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment ,was entered."And said that that view of the Courts powers was reaffirmed once again in the then recent case of Minnesota v. National Tea Co. (1939) 309 US 551 at p. 555, Sulaiman J., in the same case 1940 FCR 94 = (AIR 1941 FC 5 ) relied on English cases and took the view that an appeal is by way of a re-hearing and the Court may make such order as the Judge of the first instance could have made if the case had been heard by himat the date on which the appeal was heard (emphasis, ours). Varadachariar J., dealt with the same point a little more comprehensively. We may content ourselves with excerpting one passage which brings out the point luminously (at p.103 of 1940 FCR) - (at p. 13 of AIR):It is also on the theory of an appeal being in the nature of a rehearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the Court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against."6. The High Court in this case, in the concluding stages slightly self-contradicted itself and observed: the civil revision petition cannot be entertained and proceeded further to state: it will not be desirable that I should exercise my discretion in directing an amendment of the petition. In conclusion, the Court did interfere in revision by setting aside the order of remittal to the Rent Controller and dismissing the eviction petition, leaving the near decade-old litigation to be reopened in a fresh unending chapter of forensic fight. The learned Judge gave little comfort to the litigant who had come with a proved case of bona fide requirement to start his own business by his obscure observation: If so advised the petitioner may seek to obtain such relief as may be open to him by filing a fresh petition under the appropriate provision of the Act, in view of the subsequent event of his having come into possession of a portion of the building. We think it unfair to drive parties to a new litigation of unknown duration but direct, in the special circumstances of the case (which are peculiar) that: (a) the revision before the High Court shall stand dismissed; (b) the Rent Controller will take note of the subsequent development disabling the landlord from seeking eviction on which there is already an adverse finding by the High court; (c) the landlord be allowed to amend his petition if he has a case for eviction on any other legally permissible ground; and (d) the parties be given fair and full opportunity to file additional pleadings and lead evidence thereon. But we make it clear that the subsequent event that the petitioner had come by a non-residential accommodation of his own in the same town having been found by the High court, cannot be canvassed over again. That finding of legal disability cannot be reopened. We keep open for enquiry only grounds if any, which may reasonably be permitted by amendment if they are of any relevance or use for eviction.
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e feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations, for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into S. 10 (3) (iii) itself. We are not disposed to disturb this approach in law or finding of fact.The High Court in this case, in the concluding stages slightly self-contradicted itself and observed: the civil revision petition cannot be entertained and proceeded further to state: it will not be desirable that I should exercise my discretion in directing an amendment of the petition. In conclusion, the Court did interfere in revision by setting aside the order of remittal to the Rent Controller and dismissing the eviction petition, leaving the near decade-old litigation to be reopened in a fresh unending chapter of forensic fight. The learned Judge gave little comfort to the litigant who had come with a proved case of bona fide requirement to start his own business by his obscure observation: If so advised the petitioner may seek to obtain such relief as may be open to him by filing a fresh petition under the appropriate provision of the Act, in view of the subsequent event of his having come into possession of a portion of the building. We think it unfair to drive parties to a new litigation of unknown duration but direct, in the special circumstances of the case (which are peculiar) that: (a) the revision before the High Court shall stand dismissed; (b) the Rent Controller will take note of the subsequent development disabling the landlord from seeking eviction on which there is already an adverse finding by the High court; (c) the landlord be allowed to amend his petition if he has a case for eviction on any other legally permissible ground; and (d) the parties be given fair and full opportunity to file additional pleadings and lead evidence thereon. But we make it clear that the subsequent event that the petitioner had come by a non-residential accommodation of his own in the same town having been found by the High court, cannot be canvassed over again. That finding of legal disability cannot be reopened. We keep open for enquiry only grounds if any, which may reasonably be permitted by amendment if they are of any relevance or use for eviction.
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Strawboard Manufacturing Co., Ltd Vs. Gutta Mill Workers' Union.The State Of U. P: Intervener | time as may be specified" and not "within such time as may from time to time be specified." It is significant that the only occasion when the State Government can, under the U.P. Act, specify a fresh period of time is when it remits the award for reconsideration under sub-section (2) of S.6. for under sub-section (3) the adjudicator is enjoined to submit his award, after reconsideration. within such period as may be specified by the State Government. Even in this case, under section 6 (2) and (3) the State Government may in the order remitting the award specify a time within which the award, after reconsideration, must be filed. This gives power to the State Government to fix a fresh period of time to do a fresh act, namely, to reconsider and file the reconsidered award. It does not give the State Government any power to enlarge the time fixed originally for the initial making of the award. Therefore, except where the State Government under S. 6 (2) remits the award for reconsideration it has no power even to specify a fresh period of time and much less a power to extend the time for the initial making of the award under S. 6 (1). In exercise of the powers conferred by clauses (b), (c), (d) and (g) of S. 3 and S. 8 of the U.P. Industrial Disputes Act, 1947, the Governor was pleased to make an order embodied in Notification No. 615 (LL) /XVIII-7 (LL)-1951, dated 15/03/1951. The proviso to rule 16 of that order authorised the State Government to extend from time to time the period within which the Tribunal or the adjudicator was to pronounce the decision. These rules were, however, not in force at the time material to the case before us. Learned counsel appearing for the respondent and for the State of Uttar Pradesh have not referred us to any similar rule which was in force in 1950. In view of the language of S. 6 of the U.P. Act and in the absence of a rule like the proviso to rule 16 referred to above it must follow that the State Government had no authority whatever to extend the time and the adjudicator became functus officio on the expiry of the time specified in the original order of reference and, therefore, the award which had not been made within that time must be held to be without jurisdiction and a nullity as contended by Dr. Tek Chand.(5) Learned counsel for the respondents refers us to the provisions of S. 14 of the U. P. General Clauses Act, 1904 which provides that where by any Uttar Pradesh Act any power is conferred on the State Government then that power may be exercised from time to time as occasion requires. Sections 3 and 4 of the U. P. Industrial Disputes Act, 1947 certainly confer power on the State Government to refer disputes to an adjudicator for decision and S. 6 (1) may be read as empowering the State Government to specify the time within which the adjudicator to whom an industrial dispute is referred for adjudication is to submit his award. The combined effect of S. 14 of the U. P. General Clauses Act and S. 6(1) of the G. P. Industrial Disputes Act, 1947, it is contended, is that the adjudicator is enjoined to submit his report "within such time as may from time to time be specified" and that this being the position, the principles laid down in the English decisions referred to above must be held to be applicable to the present case. We are unable to accept this line of reasoning. Under S. 14 of the U. P. General Clauses Act the State Government may exercise the power conferred on it by Ss. 3, 4 and 6, that is to say, it can from time to time make orders referring disputes to an adjudicator and, whenever such an order of reference is made, to specify the time within which the award is to be made. This power to specify the time does not and indeed cannot include a power to extend the time already specified in an earlier order. The legislative practice, as evidenced by the provisions of the different statutes referred to above, is to expressly confer the power of extension of time, if and when the Legislature thinks fit to do so. There is no question of any inherent power of the Court and much less of the Executive Government in this behalf. S. 14 of the U.P. General Clauses Act does not in terms, or by necessary implication, give any such power of extension of time to the State Government and, therefore, the respondents can derive no support from that section.(6) Learned advocate for the Intervener, the State of Uttar Pradesh, draws our attention to section 21 of the U. P. General Clauses Act 1904, and contends that the order of 26/4/1950 should be taken as an amendment or modification, within the meaning of that section, of the first order of 18/2/1950. It is true that the order of 26/4/1950 does ex facie purport to modify the order of 18/2/1950 but, in view of the absence of any distinct provision in S. 21 that the power of amendment and modification conferred on the State Government may be so exercised as to have retrospective operation the order of 26/4/1950 viewed merely as an order of amendment or modification, cannot, by virtue of S. 21, have that effect. If, therefore, the amending order operates prospectively, i. e. only as from the date of the order, it cannot validate the award which had been made after the expiry of the time specified in the original order and before the date of the amending order, during which period the adjudicator was, functus officio and had no jurisdiction to act at all. We do not think the respondents can derive any support from S. 21 of the U. P. General Clauses Act. | 1[ds]Sections 3 and 4 of the U. P. Industrial Disputes Act, 1947 certainly confer power on the State Government to refer disputes to an adjudicator for decision and S. 6 (1) may be read as empowering the State Government to specify the time within which the adjudicator to whom an industrial dispute is referred for adjudication is to submit his award. The combined effect of S. 14 of the U. P. General Clauses Act and S. 6(1) of the G. P. Industrial Disputes Act, 1947, it is contended, is that the adjudicator is enjoined to submit his report "within such time as may from time to time be specified" and that this being the position, the principles laid down in the English decisions referred to above must be held to be applicable to the present case. We are unable to accept this line of reasoning. Under S. 14 of the U. P. General Clauses Act the State Government may exercise the power conferred on it by Ss. 3, 4 and 6, that is to say, it can from time to time make orders referring disputes to an adjudicator and, whenever such an order of reference is made, to specify the time within which the award is to be made. This power to specify the time does not and indeed cannot include a power to extend the time already specified in an earlier order. The legislative practice, as evidenced by the provisions of the different statutes referred to above, is to expressly confer the power of extension of time, if and when the Legislature thinks fit to do so. There is no question of any inherent power of the Court and much less of the Executive Government in this behalf. S. 14 of the U.P. General Clauses Act does not in terms, or by necessary implication, give any such power of extension of time to the State Government and, therefore, the respondents can derive no support from that section.(6) Learned advocate for the Intervener, the State of Uttar Pradesh, draws our attention to section 21 of the U. P. General Clauses Act 1904, and contends that the order of 26/4/1950 should be taken as an amendment or modification, within the meaning of that section, of the first order of 18/2/1950. It is true that the order of 26/4/1950 does ex facie purport to modify the order of 18/2/1950 but, in view of the absence of any distinct provision in S. 21 that the power of amendment and modification conferred on the State Government may be so exercised as to have retrospective operation the order of 26/4/1950 viewed merely as an order of amendment or modification, cannot, by virtue of S. 21, have that effect. If, therefore, the amending order operates prospectively, i. e. only as from the date of the order, it cannot validate the award which had been made after the expiry of the time specified in the original order and before the date of the amending order, during which period the adjudicator was, functus officio and had no jurisdiction to act at all. We do not think the respondents can derive any support from S. 21 of the U. P. General Clauses Act. | 1 | 3,211 | 597 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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time as may be specified" and not "within such time as may from time to time be specified." It is significant that the only occasion when the State Government can, under the U.P. Act, specify a fresh period of time is when it remits the award for reconsideration under sub-section (2) of S.6. for under sub-section (3) the adjudicator is enjoined to submit his award, after reconsideration. within such period as may be specified by the State Government. Even in this case, under section 6 (2) and (3) the State Government may in the order remitting the award specify a time within which the award, after reconsideration, must be filed. This gives power to the State Government to fix a fresh period of time to do a fresh act, namely, to reconsider and file the reconsidered award. It does not give the State Government any power to enlarge the time fixed originally for the initial making of the award. Therefore, except where the State Government under S. 6 (2) remits the award for reconsideration it has no power even to specify a fresh period of time and much less a power to extend the time for the initial making of the award under S. 6 (1). In exercise of the powers conferred by clauses (b), (c), (d) and (g) of S. 3 and S. 8 of the U.P. Industrial Disputes Act, 1947, the Governor was pleased to make an order embodied in Notification No. 615 (LL) /XVIII-7 (LL)-1951, dated 15/03/1951. The proviso to rule 16 of that order authorised the State Government to extend from time to time the period within which the Tribunal or the adjudicator was to pronounce the decision. These rules were, however, not in force at the time material to the case before us. Learned counsel appearing for the respondent and for the State of Uttar Pradesh have not referred us to any similar rule which was in force in 1950. In view of the language of S. 6 of the U.P. Act and in the absence of a rule like the proviso to rule 16 referred to above it must follow that the State Government had no authority whatever to extend the time and the adjudicator became functus officio on the expiry of the time specified in the original order of reference and, therefore, the award which had not been made within that time must be held to be without jurisdiction and a nullity as contended by Dr. Tek Chand.(5) Learned counsel for the respondents refers us to the provisions of S. 14 of the U. P. General Clauses Act, 1904 which provides that where by any Uttar Pradesh Act any power is conferred on the State Government then that power may be exercised from time to time as occasion requires. Sections 3 and 4 of the U. P. Industrial Disputes Act, 1947 certainly confer power on the State Government to refer disputes to an adjudicator for decision and S. 6 (1) may be read as empowering the State Government to specify the time within which the adjudicator to whom an industrial dispute is referred for adjudication is to submit his award. The combined effect of S. 14 of the U. P. General Clauses Act and S. 6(1) of the G. P. Industrial Disputes Act, 1947, it is contended, is that the adjudicator is enjoined to submit his report "within such time as may from time to time be specified" and that this being the position, the principles laid down in the English decisions referred to above must be held to be applicable to the present case. We are unable to accept this line of reasoning. Under S. 14 of the U. P. General Clauses Act the State Government may exercise the power conferred on it by Ss. 3, 4 and 6, that is to say, it can from time to time make orders referring disputes to an adjudicator and, whenever such an order of reference is made, to specify the time within which the award is to be made. This power to specify the time does not and indeed cannot include a power to extend the time already specified in an earlier order. The legislative practice, as evidenced by the provisions of the different statutes referred to above, is to expressly confer the power of extension of time, if and when the Legislature thinks fit to do so. There is no question of any inherent power of the Court and much less of the Executive Government in this behalf. S. 14 of the U.P. General Clauses Act does not in terms, or by necessary implication, give any such power of extension of time to the State Government and, therefore, the respondents can derive no support from that section.(6) Learned advocate for the Intervener, the State of Uttar Pradesh, draws our attention to section 21 of the U. P. General Clauses Act 1904, and contends that the order of 26/4/1950 should be taken as an amendment or modification, within the meaning of that section, of the first order of 18/2/1950. It is true that the order of 26/4/1950 does ex facie purport to modify the order of 18/2/1950 but, in view of the absence of any distinct provision in S. 21 that the power of amendment and modification conferred on the State Government may be so exercised as to have retrospective operation the order of 26/4/1950 viewed merely as an order of amendment or modification, cannot, by virtue of S. 21, have that effect. If, therefore, the amending order operates prospectively, i. e. only as from the date of the order, it cannot validate the award which had been made after the expiry of the time specified in the original order and before the date of the amending order, during which period the adjudicator was, functus officio and had no jurisdiction to act at all. We do not think the respondents can derive any support from S. 21 of the U. P. General Clauses Act.
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### Explanation:
Sections 3 and 4 of the U. P. Industrial Disputes Act, 1947 certainly confer power on the State Government to refer disputes to an adjudicator for decision and S. 6 (1) may be read as empowering the State Government to specify the time within which the adjudicator to whom an industrial dispute is referred for adjudication is to submit his award. The combined effect of S. 14 of the U. P. General Clauses Act and S. 6(1) of the G. P. Industrial Disputes Act, 1947, it is contended, is that the adjudicator is enjoined to submit his report "within such time as may from time to time be specified" and that this being the position, the principles laid down in the English decisions referred to above must be held to be applicable to the present case. We are unable to accept this line of reasoning. Under S. 14 of the U. P. General Clauses Act the State Government may exercise the power conferred on it by Ss. 3, 4 and 6, that is to say, it can from time to time make orders referring disputes to an adjudicator and, whenever such an order of reference is made, to specify the time within which the award is to be made. This power to specify the time does not and indeed cannot include a power to extend the time already specified in an earlier order. The legislative practice, as evidenced by the provisions of the different statutes referred to above, is to expressly confer the power of extension of time, if and when the Legislature thinks fit to do so. There is no question of any inherent power of the Court and much less of the Executive Government in this behalf. S. 14 of the U.P. General Clauses Act does not in terms, or by necessary implication, give any such power of extension of time to the State Government and, therefore, the respondents can derive no support from that section.(6) Learned advocate for the Intervener, the State of Uttar Pradesh, draws our attention to section 21 of the U. P. General Clauses Act 1904, and contends that the order of 26/4/1950 should be taken as an amendment or modification, within the meaning of that section, of the first order of 18/2/1950. It is true that the order of 26/4/1950 does ex facie purport to modify the order of 18/2/1950 but, in view of the absence of any distinct provision in S. 21 that the power of amendment and modification conferred on the State Government may be so exercised as to have retrospective operation the order of 26/4/1950 viewed merely as an order of amendment or modification, cannot, by virtue of S. 21, have that effect. If, therefore, the amending order operates prospectively, i. e. only as from the date of the order, it cannot validate the award which had been made after the expiry of the time specified in the original order and before the date of the amending order, during which period the adjudicator was, functus officio and had no jurisdiction to act at all. We do not think the respondents can derive any support from S. 21 of the U. P. General Clauses Act.
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GRIDCO Limited and Anr Vs. Sri Sadananda Doloi and Ors | : 10. There was no compulsion on the Petitioner to enter into the contract he did. He was as free under the law as any other person to accept or reject the offer which was made to him. Having accepted, he still had open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract, which has been denied to him, assuming there are any, and to pursue in the ordinary Courts of the land, such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim... 11. ... ......... The Petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance when analysed, not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound. (emphasis supplied) 24. In Parshotam Lal Dhingra v. Union of India (AIR 1958 SC 36 ), this court followed the view taken in Satish Chandras case (supra). Any reference to the case law on the subject would remain incomplete unless we also refer to the decision of the Constitution Bench of this court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress & Ors. (1991) supp (1) SCC 600, where this Court was dealing with the constitutional validity of Regulation 9 (b) that authorized termination on account of reduction in the establishment or in circumstances other than those mentioned in clause (a) to Regulation 9 (b) by service of one months notice or pay in lieu thereof. Sawant, J. in his concurring opinion held that the provision contained the much hated rules of hire and fire reminiscent of the days of laissez faire and unrestrained freedom of contract and that any such rule would have no place in service conditions. 25. To the same effect was an earlier decision of this Court in Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr. (1986) 3 SCC 156 , where the Court had refused to enforce an unfair and unreasonable contract or an unfair and unreasonable clause in a contract entered into between parties who did not have equal bargaining power. 26. A conspectus of the pronouncements of this court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ Court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. Having said that we must add that judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the arm chair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge. 27. Applying the above principles to the case at hand, we have no hesitation in saying that there is no material to show that there is any unreasonableness, unfairness, perversity or irrationality in the action taken by the Corporation. The Regulations governing the service conditions of the employees of the Corporation, make it clear that officers in the category above E-9 had to be appointed only on contractual basis. 28. It is also evident that the renewal of the contract of employment depended upon the perception of the management as to the usefulness of the respondent and the need for an incumbent in the position held by him. Both these aspects rested entirely in the discretion of the Corporation. The respondent was in the service of another employer before he chose to accept a contractual employment offered to him by the Corporation which was limited in tenure and terminable by three months notice on either side. In that view, therefore, there was no element of any unfair treatment or unequal bargaining power between the appellant and the respondent to call for an over-sympathetic or protective approach towards the latter. We need to remind ourselves that in the modern commercial world, executives are engaged on account of their expertise in a particular field and those who are so employed are free to leave or be asked to leave by the employer. Contractual appointments work only if the same are mutually beneficial to both the contracting parties and not otherwise. 29. In the result, | 1[ds]That is, in our opinion, no reason to hold that an appointment made on contractual basis would constitute a breach of the Rules or that such an appointment had to be necessarily treated as a regular appointment. Having said that, let us now see the background in which the appointment was made in the present case. As seen above, the selection process culminating in the appointment of the respondent started with the publication of an advertisement to fill up two vacancies of human resource professionals at senior management level. The advertisement, it is common ground, did not indicate the nature of appointment (whether regular or contractual) that may be offered to the selected candidates. The absence of any such indication in the advertisement notice did not, in our opinion, make any material difference having regard to the fact that the offer of appointment made to respondent No.1 in terms of appellant-Corporations letter dated 8th January, 1997, specifically described the appointment to be a tenure appointment. A careful reading of paragraph 3 of the offer letter leaves no manner of doubt that the tenure of appointment offered to the respondent No.1 as Senior General Manager, HRD was limited to a period of three years subject to renewal on the basis of his performance. It also made it abundantly clear that the contract of employment was terminable even during the currency of the three years term on three months notice or on payment of three months salary in lieu thereof by either side. We find it difficult to read any element of regular appointment in the offer made to the respondent or any assurance that the appointment is in the nature of a regular appointment or that the respondent was on probation to be regularised on satisfactory completion of his probation period. That apart, appointment order issued on 6th February, 1997, also specifically embodied the stipulation regarding the tenure as it was in clause (3) of the offer letterEven after the amendment of clause (2) of the appointment letter, the condition that the contract of employment could be terminated at any time during the period of three years on three months notice or payment of three months salary in lieu thereof by either side continued to be operative between the parties. The fact that the appellant-Corporation extended the tenure upto 3rd November, 2000, in the first place and upto 3rd November, 2001 later, is also suggestive of the parties having clearly understood that the appointment was a tenure appointment, extendable at the discretion of the Board of Directors/Corporation. These extensions, it is noteworthy, were themselves subject to the terms and conditions stipulated in the appointment letter which, inter-alia, provided that the arrangement could be terminated by either party on three months notice or on payment of three months salary in lieu thereof. In the totality of the above circumstances, we are of the opinion that the nature of appointment made by the appellant-Corporation was contractual and not regular as held by the Division Bench of the High CourtThe Regulations do not envisage a regular appointment at E-10 level to which the respondent stands appointed on the terms of the contract of employment. That being the case it is difficult to see how the said appointment could be treated to be a regular appointment when the Rules did not permit any such appointment. We may mention to the credit of learned senior counsel who appeared for the respondent that although at one stage an attempt was made to argue that the appointment of the respondent was regular in nature, that line of argument was not pursued further and in our opinion, rightly so having regard to what we have said above. Such being the case the question of the so called unequal bargaining power of the parties did not have any relevance or role to play in the facts and circumstances of the case. Question No.1 is answered accordinglyThere was indeed a feeble argument that the order was mala fide in character but having regard to the settled legal position regarding the proof of mala fides and the need for providing particulars to substantiate any such plea, we are of the view that the charge of mala fide does not stand scrutiny. Neither before the learned Single Judge nor before the Division Bench was the ground based on mala fides seriously argued by the respondent. What was contended on behalf of the respondent was that the appellant-Corporation did not act fairly and objectively in taking the decision to terminate the arrangement. It was contended that the decision to terminate the contractual employment was not a fair and reasonable decision having regard to the fact that the respondent had performed well during his tenure and the requirement of the Corporation to have a Chief General Manager (HR) continued to subsist. In substance, the contention urged on behalf of the respondent was that this Court should reappraise and review the material touching the question of performance of the respondent as Chief General Manager (HR) as also the question whether the Corporations need for a General Manager (HR) had continued to subsist. We regret our inability to do so. It is true that judicial review of matters that fall in the realm of contracts is also available before the superior courts, but the scope of any such review is not all pervasive. It does not extend to the Court substituting its own view for that taken by the decision-making authority. Judicial review and resultant interference is permissible where the action of the authority is mala fide, arbitrary, irrational, disproportionate or unreasonable but impermissible if the petitioners challenge is based only on the ground that the view taken by the authority may be less reasonable than what is a possible alternative. The legal position is settled that judicial review is not so much concerned with the correctness of the ultimate decision as it is with the decision-making process unless of course the decision itself is so perverse or irrational or in such outrageous defiance of logic that the person taking the decision can be said to have taken leave of his senses | 1 | 5,828 | 1,098 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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: 10. There was no compulsion on the Petitioner to enter into the contract he did. He was as free under the law as any other person to accept or reject the offer which was made to him. Having accepted, he still had open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract, which has been denied to him, assuming there are any, and to pursue in the ordinary Courts of the land, such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim... 11. ... ......... The Petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance when analysed, not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound. (emphasis supplied) 24. In Parshotam Lal Dhingra v. Union of India (AIR 1958 SC 36 ), this court followed the view taken in Satish Chandras case (supra). Any reference to the case law on the subject would remain incomplete unless we also refer to the decision of the Constitution Bench of this court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress & Ors. (1991) supp (1) SCC 600, where this Court was dealing with the constitutional validity of Regulation 9 (b) that authorized termination on account of reduction in the establishment or in circumstances other than those mentioned in clause (a) to Regulation 9 (b) by service of one months notice or pay in lieu thereof. Sawant, J. in his concurring opinion held that the provision contained the much hated rules of hire and fire reminiscent of the days of laissez faire and unrestrained freedom of contract and that any such rule would have no place in service conditions. 25. To the same effect was an earlier decision of this Court in Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr. (1986) 3 SCC 156 , where the Court had refused to enforce an unfair and unreasonable contract or an unfair and unreasonable clause in a contract entered into between parties who did not have equal bargaining power. 26. A conspectus of the pronouncements of this court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ Court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. Having said that we must add that judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the arm chair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge. 27. Applying the above principles to the case at hand, we have no hesitation in saying that there is no material to show that there is any unreasonableness, unfairness, perversity or irrationality in the action taken by the Corporation. The Regulations governing the service conditions of the employees of the Corporation, make it clear that officers in the category above E-9 had to be appointed only on contractual basis. 28. It is also evident that the renewal of the contract of employment depended upon the perception of the management as to the usefulness of the respondent and the need for an incumbent in the position held by him. Both these aspects rested entirely in the discretion of the Corporation. The respondent was in the service of another employer before he chose to accept a contractual employment offered to him by the Corporation which was limited in tenure and terminable by three months notice on either side. In that view, therefore, there was no element of any unfair treatment or unequal bargaining power between the appellant and the respondent to call for an over-sympathetic or protective approach towards the latter. We need to remind ourselves that in the modern commercial world, executives are engaged on account of their expertise in a particular field and those who are so employed are free to leave or be asked to leave by the employer. Contractual appointments work only if the same are mutually beneficial to both the contracting parties and not otherwise. 29. In the result,
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such an appointment had to be necessarily treated as a regular appointment. Having said that, let us now see the background in which the appointment was made in the present case. As seen above, the selection process culminating in the appointment of the respondent started with the publication of an advertisement to fill up two vacancies of human resource professionals at senior management level. The advertisement, it is common ground, did not indicate the nature of appointment (whether regular or contractual) that may be offered to the selected candidates. The absence of any such indication in the advertisement notice did not, in our opinion, make any material difference having regard to the fact that the offer of appointment made to respondent No.1 in terms of appellant-Corporations letter dated 8th January, 1997, specifically described the appointment to be a tenure appointment. A careful reading of paragraph 3 of the offer letter leaves no manner of doubt that the tenure of appointment offered to the respondent No.1 as Senior General Manager, HRD was limited to a period of three years subject to renewal on the basis of his performance. It also made it abundantly clear that the contract of employment was terminable even during the currency of the three years term on three months notice or on payment of three months salary in lieu thereof by either side. We find it difficult to read any element of regular appointment in the offer made to the respondent or any assurance that the appointment is in the nature of a regular appointment or that the respondent was on probation to be regularised on satisfactory completion of his probation period. That apart, appointment order issued on 6th February, 1997, also specifically embodied the stipulation regarding the tenure as it was in clause (3) of the offer letterEven after the amendment of clause (2) of the appointment letter, the condition that the contract of employment could be terminated at any time during the period of three years on three months notice or payment of three months salary in lieu thereof by either side continued to be operative between the parties. The fact that the appellant-Corporation extended the tenure upto 3rd November, 2000, in the first place and upto 3rd November, 2001 later, is also suggestive of the parties having clearly understood that the appointment was a tenure appointment, extendable at the discretion of the Board of Directors/Corporation. These extensions, it is noteworthy, were themselves subject to the terms and conditions stipulated in the appointment letter which, inter-alia, provided that the arrangement could be terminated by either party on three months notice or on payment of three months salary in lieu thereof. In the totality of the above circumstances, we are of the opinion that the nature of appointment made by the appellant-Corporation was contractual and not regular as held by the Division Bench of the High CourtThe Regulations do not envisage a regular appointment at E-10 level to which the respondent stands appointed on the terms of the contract of employment. That being the case it is difficult to see how the said appointment could be treated to be a regular appointment when the Rules did not permit any such appointment. We may mention to the credit of learned senior counsel who appeared for the respondent that although at one stage an attempt was made to argue that the appointment of the respondent was regular in nature, that line of argument was not pursued further and in our opinion, rightly so having regard to what we have said above. Such being the case the question of the so called unequal bargaining power of the parties did not have any relevance or role to play in the facts and circumstances of the case. Question No.1 is answered accordinglyThere was indeed a feeble argument that the order was mala fide in character but having regard to the settled legal position regarding the proof of mala fides and the need for providing particulars to substantiate any such plea, we are of the view that the charge of mala fide does not stand scrutiny. Neither before the learned Single Judge nor before the Division Bench was the ground based on mala fides seriously argued by the respondent. What was contended on behalf of the respondent was that the appellant-Corporation did not act fairly and objectively in taking the decision to terminate the arrangement. It was contended that the decision to terminate the contractual employment was not a fair and reasonable decision having regard to the fact that the respondent had performed well during his tenure and the requirement of the Corporation to have a Chief General Manager (HR) continued to subsist. In substance, the contention urged on behalf of the respondent was that this Court should reappraise and review the material touching the question of performance of the respondent as Chief General Manager (HR) as also the question whether the Corporations need for a General Manager (HR) had continued to subsist. We regret our inability to do so. It is true that judicial review of matters that fall in the realm of contracts is also available before the superior courts, but the scope of any such review is not all pervasive. It does not extend to the Court substituting its own view for that taken by the decision-making authority. Judicial review and resultant interference is permissible where the action of the authority is mala fide, arbitrary, irrational, disproportionate or unreasonable but impermissible if the petitioners challenge is based only on the ground that the view taken by the authority may be less reasonable than what is a possible alternative. The legal position is settled that judicial review is not so much concerned with the correctness of the ultimate decision as it is with the decision-making process unless of course the decision itself is so perverse or irrational or in such outrageous defiance of logic that the person taking the decision can be said to have taken leave of his senses
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UNION PUBLIC SERVICE COMMISSION Vs. SHRISTI SINGH | was not there. Thereafter, another notice was issued by the Appellant on 08.04.2016, calling 723 candidates for interview. The first Respondent was amongst those who were asked to attend the interview. She submitted the relevant documents regarding the requisite experience. By a communication dated 08.07.2016, the candidature of the first Respondent was cancelled on the ground that she lacked the necessary experience in testing of substances specified in Schedule ‘C? in a laboratory approved by the licensing authority. 5. The non-consideration of the first Respondent for selection to the post of Drug Inspector was challenged in the Central Administrative Tribunal, Jabalpur Bench. By an interim order dated 05.08.2016, the Tribunal directed the Appellant to permit the first Respondent to participate in the selection. As the final result was declared during the pendency of the OA, the Tribunal passed an order making the declaration of result subject to the outcome of the Original Application. 6. The Tribunal finally allowed the Original Application and directed the Appellant to interview the first Respondent and in case she secures a score which is more than the last selected candidate in her category she was permitted to be recommended for appointment. 7. Aggrieved by the judgment of the Tribunal, the Appellant filed a Writ Petition in the High Court which was dismissed. Hence, this appeal. 8. The controversy in the present appeal is regarding the fulfillment of the condition of experience as required by the Advertisement. As stated earlier, the requisite experience for appointment as Drug Inspector is 18 months in the field of quality control and in testing of drugs prescribed in Schedule ‘C? and ‘C-1? in the Drugs and Cosmetics Rules. Certificates that were produced by the first Respondent which were issued by M/s Alpa Laboratories and M/s Mylan Laboratories are placed on record. The certificate issued by M/s Mylan lab on 17.04.2016 would disclose that the first Respondent was involved in different stages of testing in quality control unit of the plant. She was also involved in testing of one of the drugs specified in Schedule ‘C? and ‘C-1? of the Drugs and Cosmetics Rules. According to the certificate, the first Respondent worked for two years from 13.04.2014 in M/s Mylan Laboratories. The requirement of 18 months?, according to the Advertisement is for a period of two years prior to 01.03.2015. As the certificate does not satisfy the requirement of the Advertisement in view of the period from 13.04.2014 to 01.03.2015 being less than 18 months, it was rightly not taken into consideration. The other certificate that was produced by the first Respondent before the Appellant was issued by M/s Alpa Laboratories on 05.03.2014. The first Respondent was certified to have worked with M/s Alpa Laboratories from 07.09.2012 to 05.03.2014 in the quality control department. It was mentioned in the certificate that the first Respondent was carrying on all activities relating to quality control department such as RM/PM sampling and analysis as well as water sampling and testing, documentations, online quality checks, training etc. there is no mention of the first Respondent having experience in testing Schedule ‘C? drugs. The candidature of the first Respondent was rejected on the ground that the said certificate issued by M/s Alpa Laboratories could not satisfy the eligibility conditions mentioned in the Advertisement. Yet another certificate dated 17.03.2015 issued by the M/s Alpa Laboratories was relied upon by the first Respondent. According to the said certificate, the first Respondent worked for 18 months and had experience in testing of drugs specified in Schedule ‘C? and ‘C-1? of the Rules. This certificate discloses that the job done by the first Respondent was only for experience purpose without any remuneration. 9. In the reply filed to the Original Application in the Central Administrative Tribunal, the Appellant stated that the certificate issued by M/s Alpa Laboratories did not mention about Schedule ‘C? drugs. As stated earlier, the first Respondent produced two certificates issued by M/s Alpa Laboratories. The first one was issued on 05.03.2014 in which there was no mention of her experience in testing Schedule ‘C? drugs. The second certificate is dated 17.03.2015 which refers to her experience in testing Schedule ‘C? and ‘C-1? drugs. It is relevant to note that the first Respondent submitted her online application form on 16.03.2015 and the second certificate issued by M/s Alpa Laboratories is dated 17.03.2015. 10. The Tribunal was not impressed with the prevaricating stands of the Appellant in rejecting the candidature of the first Respondent. Submissions made on behalf of the Appellant relating to M/s Alpa Laboratories not being a duly licensed firm and the experience certificate not mentioning Schedule ‘C? drugs were rejected. The contention of the Appellant that the certificate dated 17.03.2015 cannot be relied upon as the experience was on a non-remunerative job was also not accepted by the Tribunal. The High Court affirmed the findings recorded by the Tribunal on the ground that the Appellant did not take a firm stand about the actual reason for rejection of the first Respondent?s candidature. 11. The certificate dated 05.03.2014 issued by M/s Alpa Laboratories was the only certificate produced by the first Respondent before the Appellant. According to the learned counsel for the Appellant, the second certificate dated 17.03.2015 showing the experience of the first Respondent in testing Schedule ‘C? drugs was not produced along with the certificate dated 05.03.2014. In any event, the said certificate which showed the experience of the first Respondent for 18 months in testing Schedule ‘C? drugs on a non-remunerative job is doubtful. The said certificate was issued a day after the first Respondent has submitted her online application on 16.03.2015. It is relevant to note that the certificate dated 17.03.2015 discloses that no salary was paid to the first Respondent for the work done was only for experience purpose. The decision of the Appellant that the first Respondent does not fulfil the eligibility criterion is correct. The Tribunal and the High Court ought not to have interfered with the said decision. | 1[ds]8. The controversy in the present appeal is regarding the fulfillment of the condition of experience as required by the Advertisement. As stated earlier, the requisite experience for appointment as Drug Inspector is 18 months in the field of quality control and in testing of drugs prescribed in Schedule ‘C? and ‘C-1? in the Drugs and Cosmetics Rules. Certificates that were produced by the first Respondent which were issued by M/s Alpa Laboratories and M/s Mylan Laboratories are placed on record. The certificate issued by M/s Mylan lab on 17.04.2016 would disclose that the first Respondent was involved in different stages of testing in quality control unit of the plant. She was also involved in testing of one of the drugs specified in Schedule ‘C? and ‘C-1? of the Drugs and Cosmetics Rules. According to the certificate, the first Respondent worked for two years from 13.04.2014 in M/s Mylan Laboratories. The requirement of 18 months?, according to the Advertisement is for a period of two years prior to 01.03.2015. As the certificate does not satisfy the requirement of the Advertisement in view of the period from 13.04.2014 to 01.03.2015 being less than 18 months, it was rightly not taken into consideration. The other certificate that was produced by the first Respondent before the Appellant was issued by M/s Alpa Laboratories on 05.03.2014. The first Respondent was certified to have worked with M/s Alpa Laboratories from 07.09.2012 to 05.03.2014 in the quality control department. It was mentioned in the certificate that the first Respondent was carrying on all activities relating to quality control department such as RM/PM sampling and analysis as well as water sampling and testing, documentations, online quality checks, training etc. there is no mention of the first Respondent having experience in testing Schedule ‘C? drugs. The candidature of the first Respondent was rejected on the ground that the said certificate issued by M/s Alpa Laboratories could not satisfy the eligibility conditions mentioned in the Advertisement. Yet another certificate dated 17.03.2015 issued by the M/s Alpa Laboratories was relied upon by the first Respondent. According to the said certificate, the first Respondent worked for 18 months and had experience in testing of drugs specified in Schedule ‘C? and ‘C-1? of the Rules. This certificate discloses that the job done by the first Respondent was only for experience purpose without anyany event, the said certificate which showed the experience of the first Respondent for 18 months in testing Schedule ‘C? drugs on a non-remunerative job is doubtful. The said certificate was issued a day after the first Respondent has submitted her online application on 16.03.2015. It is relevant to note that the certificate dated 17.03.2015 discloses that no salary was paid to the first Respondent for the work done was only for experience purpose. The decision of the Appellant that the first Respondent does not fulfil the eligibility criterion is correct. The Tribunal and the High Court ought not to have interfered with the said decision. | 1 | 1,447 | 547 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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was not there. Thereafter, another notice was issued by the Appellant on 08.04.2016, calling 723 candidates for interview. The first Respondent was amongst those who were asked to attend the interview. She submitted the relevant documents regarding the requisite experience. By a communication dated 08.07.2016, the candidature of the first Respondent was cancelled on the ground that she lacked the necessary experience in testing of substances specified in Schedule ‘C? in a laboratory approved by the licensing authority. 5. The non-consideration of the first Respondent for selection to the post of Drug Inspector was challenged in the Central Administrative Tribunal, Jabalpur Bench. By an interim order dated 05.08.2016, the Tribunal directed the Appellant to permit the first Respondent to participate in the selection. As the final result was declared during the pendency of the OA, the Tribunal passed an order making the declaration of result subject to the outcome of the Original Application. 6. The Tribunal finally allowed the Original Application and directed the Appellant to interview the first Respondent and in case she secures a score which is more than the last selected candidate in her category she was permitted to be recommended for appointment. 7. Aggrieved by the judgment of the Tribunal, the Appellant filed a Writ Petition in the High Court which was dismissed. Hence, this appeal. 8. The controversy in the present appeal is regarding the fulfillment of the condition of experience as required by the Advertisement. As stated earlier, the requisite experience for appointment as Drug Inspector is 18 months in the field of quality control and in testing of drugs prescribed in Schedule ‘C? and ‘C-1? in the Drugs and Cosmetics Rules. Certificates that were produced by the first Respondent which were issued by M/s Alpa Laboratories and M/s Mylan Laboratories are placed on record. The certificate issued by M/s Mylan lab on 17.04.2016 would disclose that the first Respondent was involved in different stages of testing in quality control unit of the plant. She was also involved in testing of one of the drugs specified in Schedule ‘C? and ‘C-1? of the Drugs and Cosmetics Rules. According to the certificate, the first Respondent worked for two years from 13.04.2014 in M/s Mylan Laboratories. The requirement of 18 months?, according to the Advertisement is for a period of two years prior to 01.03.2015. As the certificate does not satisfy the requirement of the Advertisement in view of the period from 13.04.2014 to 01.03.2015 being less than 18 months, it was rightly not taken into consideration. The other certificate that was produced by the first Respondent before the Appellant was issued by M/s Alpa Laboratories on 05.03.2014. The first Respondent was certified to have worked with M/s Alpa Laboratories from 07.09.2012 to 05.03.2014 in the quality control department. It was mentioned in the certificate that the first Respondent was carrying on all activities relating to quality control department such as RM/PM sampling and analysis as well as water sampling and testing, documentations, online quality checks, training etc. there is no mention of the first Respondent having experience in testing Schedule ‘C? drugs. The candidature of the first Respondent was rejected on the ground that the said certificate issued by M/s Alpa Laboratories could not satisfy the eligibility conditions mentioned in the Advertisement. Yet another certificate dated 17.03.2015 issued by the M/s Alpa Laboratories was relied upon by the first Respondent. According to the said certificate, the first Respondent worked for 18 months and had experience in testing of drugs specified in Schedule ‘C? and ‘C-1? of the Rules. This certificate discloses that the job done by the first Respondent was only for experience purpose without any remuneration. 9. In the reply filed to the Original Application in the Central Administrative Tribunal, the Appellant stated that the certificate issued by M/s Alpa Laboratories did not mention about Schedule ‘C? drugs. As stated earlier, the first Respondent produced two certificates issued by M/s Alpa Laboratories. The first one was issued on 05.03.2014 in which there was no mention of her experience in testing Schedule ‘C? drugs. The second certificate is dated 17.03.2015 which refers to her experience in testing Schedule ‘C? and ‘C-1? drugs. It is relevant to note that the first Respondent submitted her online application form on 16.03.2015 and the second certificate issued by M/s Alpa Laboratories is dated 17.03.2015. 10. The Tribunal was not impressed with the prevaricating stands of the Appellant in rejecting the candidature of the first Respondent. Submissions made on behalf of the Appellant relating to M/s Alpa Laboratories not being a duly licensed firm and the experience certificate not mentioning Schedule ‘C? drugs were rejected. The contention of the Appellant that the certificate dated 17.03.2015 cannot be relied upon as the experience was on a non-remunerative job was also not accepted by the Tribunal. The High Court affirmed the findings recorded by the Tribunal on the ground that the Appellant did not take a firm stand about the actual reason for rejection of the first Respondent?s candidature. 11. The certificate dated 05.03.2014 issued by M/s Alpa Laboratories was the only certificate produced by the first Respondent before the Appellant. According to the learned counsel for the Appellant, the second certificate dated 17.03.2015 showing the experience of the first Respondent in testing Schedule ‘C? drugs was not produced along with the certificate dated 05.03.2014. In any event, the said certificate which showed the experience of the first Respondent for 18 months in testing Schedule ‘C? drugs on a non-remunerative job is doubtful. The said certificate was issued a day after the first Respondent has submitted her online application on 16.03.2015. It is relevant to note that the certificate dated 17.03.2015 discloses that no salary was paid to the first Respondent for the work done was only for experience purpose. The decision of the Appellant that the first Respondent does not fulfil the eligibility criterion is correct. The Tribunal and the High Court ought not to have interfered with the said decision.
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1
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8. The controversy in the present appeal is regarding the fulfillment of the condition of experience as required by the Advertisement. As stated earlier, the requisite experience for appointment as Drug Inspector is 18 months in the field of quality control and in testing of drugs prescribed in Schedule ‘C? and ‘C-1? in the Drugs and Cosmetics Rules. Certificates that were produced by the first Respondent which were issued by M/s Alpa Laboratories and M/s Mylan Laboratories are placed on record. The certificate issued by M/s Mylan lab on 17.04.2016 would disclose that the first Respondent was involved in different stages of testing in quality control unit of the plant. She was also involved in testing of one of the drugs specified in Schedule ‘C? and ‘C-1? of the Drugs and Cosmetics Rules. According to the certificate, the first Respondent worked for two years from 13.04.2014 in M/s Mylan Laboratories. The requirement of 18 months?, according to the Advertisement is for a period of two years prior to 01.03.2015. As the certificate does not satisfy the requirement of the Advertisement in view of the period from 13.04.2014 to 01.03.2015 being less than 18 months, it was rightly not taken into consideration. The other certificate that was produced by the first Respondent before the Appellant was issued by M/s Alpa Laboratories on 05.03.2014. The first Respondent was certified to have worked with M/s Alpa Laboratories from 07.09.2012 to 05.03.2014 in the quality control department. It was mentioned in the certificate that the first Respondent was carrying on all activities relating to quality control department such as RM/PM sampling and analysis as well as water sampling and testing, documentations, online quality checks, training etc. there is no mention of the first Respondent having experience in testing Schedule ‘C? drugs. The candidature of the first Respondent was rejected on the ground that the said certificate issued by M/s Alpa Laboratories could not satisfy the eligibility conditions mentioned in the Advertisement. Yet another certificate dated 17.03.2015 issued by the M/s Alpa Laboratories was relied upon by the first Respondent. According to the said certificate, the first Respondent worked for 18 months and had experience in testing of drugs specified in Schedule ‘C? and ‘C-1? of the Rules. This certificate discloses that the job done by the first Respondent was only for experience purpose without anyany event, the said certificate which showed the experience of the first Respondent for 18 months in testing Schedule ‘C? drugs on a non-remunerative job is doubtful. The said certificate was issued a day after the first Respondent has submitted her online application on 16.03.2015. It is relevant to note that the certificate dated 17.03.2015 discloses that no salary was paid to the first Respondent for the work done was only for experience purpose. The decision of the Appellant that the first Respondent does not fulfil the eligibility criterion is correct. The Tribunal and the High Court ought not to have interfered with the said decision.
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New India Assurance Co. Ltd Vs. Shanti Bopanna & Others | 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 Policy 6. 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 | 1,229 | 392 | ### 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:
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 Policy 6. 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.
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Reserve Bank of India and Another Vs. Ramkrishna Govind Morey | GUPTA, J. 1. The respondent was employed as a clerk grade II in the Notes Cancellation Section at the Nagpur branch of the appellant Reserve Bank of India. On October 25, 1952 the Reserve Bank India terminated his service with effect from October 27, 1952 acting under Regulation 25(2)(b) of the Reserve Bank of India (Staff) Regulations, 1948. On October 27, 1955 the respondent instituted a suit in the Court of the Civil Judge, Nagpur, alleging that the termination of his service without giving him a hearing was illegal and praying for a declaration that he continued to be an employee of the Reserve Bank and for a decree for arrears of salary. On February 5, 1985 the trial Court allowed an application of the defendant Reserve Bank of India for amendment of the written statement by deleting a paragraph thereof. On March 3 and 18, 1958 the respondent made two successive applications for amendment of the plaint. The trial Court rejected both these applications on March 18, 1958. The respondent moved the High Court at Bombay, Nagpur Bench, in revision against the order rejecting his applications for amendment; a learned Judge of the High Court by his order dated July 4, 1958 summarily rejected the revision petition. Thereafter the suit was heard and dismissed with costs on January 23, 1960. The trial Court held that respondent was governed by the Reserve Bank of India (Staff) Regulations, 1948 and that the order terminating his service was legal and valid. The appeal taken by the respondent against the decision of the trial Court was also dismissed by the District Judge at Nagpur on February 10, 1964. The respondent preferred a second appeal and the High Court in the second appeal took the view that the applications for amendment of the plaint had been rejected without due consideration, and remanded the case to the trial Court directing the latter to consider afresh the amendment applications made on March 3 and 18, 1958 and also to dispose of another application for amendment of the plaint respondent had filed in the High Court. The appeal before us is brought on special leave by the Reserve Bank of India questioning the correctness of the order of remand made by the High Court. 2. From the tenor of the High Courts judgment it seems that the leaned Judge thought that the trial Court should not have allowed the written statement to be amended; according to the learned Judge the paragraph of the written statement deleted by way of amendment lent support to the plaintiffs case. But the plaintiff did not move against the order allowing amendment of the written statement which had become final, and the trial Court on an "examination of the whole of the pleadings and documents on record" found that the proposed amendment of the plaint besides being "highly prolix" was unnecessary. The lower appellate Court also agreed with this finding. The High Court appears to have felt that the defendants prayer for amendment having been allowed, the plaintiffs applications should not have been refused and observed that the amendments sought for by the plaintiff might be "necessary from the point of view of the plaintiff" and that the lower courts ought to have tested "the amendment applications of the plaintiff on that ground". The High Court however did not try to find out if the proposed amendments were really necessary for the plaintiffs case. If the applications for amendments made by the plaintiff contained allegations in line with what was stated in the original plaint, the amendment would be redundant; if they were different, no valid reason is given by why the plaintiff should be permitted to improve on the case as originally made. The plaintiffs case did not depend on what the defendant might say in the written statement and if what he proposed to introduce in the plaint by way of amendment was relevant to his case, there is no apparent reason why this was left out when the plaint was filed. Prima facie, therefore, the order of the trial Court rejecting the plaintiffs applications for amendment of the plaint was not arbitrary. Whether the trial Court should not have exercised its discretion differently is not a question of law justifying interference by the High Court in second appeal. The learned Judge of the High Court also failed to consider the fact that a revisional application from the order refusing amendment had earlier been dismissed by the High Court. For these reasons we hold that the High Court had no jurisdiction in second appeal to interfere with the order passed by the trial Court in its discretion which was affirmed by the lower appellate Court. | 1[ds]The High Court however did not try to find out if the proposed amendments were really necessary for the plaintiffs case. If the applications for amendments made by the plaintiff contained allegations in line with what was stated in the original plaint, the amendment would be redundant; if they were different, no valid reason is given by why the plaintiff should be permitted to improve on the case as originally made. The plaintiffs case did not depend on what the defendant might say in the written statement and if what he proposed to introduce in the plaint by way of amendment was relevant to his case, there is no apparent reason why this was left out when the plaint was filed. Prima facie, therefore, the order of the trial Court rejecting the plaintiffs applications for amendment of the plaint was not arbitrary. Whether the trial Court should not have exercised its discretion differently is not a question of law justifying interference by the High Court in second appeal. The learned Judge of the High Court also failed to consider the fact that a revisional application from the order refusing amendment had earlier been dismissed by the High Court. For these reasons we hold that the High Court had no jurisdiction in second appeal to interfere with the order passed by the trial Court in its discretion which was affirmed by the lower appellate Court. | 1 | 857 | 251 | ### 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:
GUPTA, J. 1. The respondent was employed as a clerk grade II in the Notes Cancellation Section at the Nagpur branch of the appellant Reserve Bank of India. On October 25, 1952 the Reserve Bank India terminated his service with effect from October 27, 1952 acting under Regulation 25(2)(b) of the Reserve Bank of India (Staff) Regulations, 1948. On October 27, 1955 the respondent instituted a suit in the Court of the Civil Judge, Nagpur, alleging that the termination of his service without giving him a hearing was illegal and praying for a declaration that he continued to be an employee of the Reserve Bank and for a decree for arrears of salary. On February 5, 1985 the trial Court allowed an application of the defendant Reserve Bank of India for amendment of the written statement by deleting a paragraph thereof. On March 3 and 18, 1958 the respondent made two successive applications for amendment of the plaint. The trial Court rejected both these applications on March 18, 1958. The respondent moved the High Court at Bombay, Nagpur Bench, in revision against the order rejecting his applications for amendment; a learned Judge of the High Court by his order dated July 4, 1958 summarily rejected the revision petition. Thereafter the suit was heard and dismissed with costs on January 23, 1960. The trial Court held that respondent was governed by the Reserve Bank of India (Staff) Regulations, 1948 and that the order terminating his service was legal and valid. The appeal taken by the respondent against the decision of the trial Court was also dismissed by the District Judge at Nagpur on February 10, 1964. The respondent preferred a second appeal and the High Court in the second appeal took the view that the applications for amendment of the plaint had been rejected without due consideration, and remanded the case to the trial Court directing the latter to consider afresh the amendment applications made on March 3 and 18, 1958 and also to dispose of another application for amendment of the plaint respondent had filed in the High Court. The appeal before us is brought on special leave by the Reserve Bank of India questioning the correctness of the order of remand made by the High Court. 2. From the tenor of the High Courts judgment it seems that the leaned Judge thought that the trial Court should not have allowed the written statement to be amended; according to the learned Judge the paragraph of the written statement deleted by way of amendment lent support to the plaintiffs case. But the plaintiff did not move against the order allowing amendment of the written statement which had become final, and the trial Court on an "examination of the whole of the pleadings and documents on record" found that the proposed amendment of the plaint besides being "highly prolix" was unnecessary. The lower appellate Court also agreed with this finding. The High Court appears to have felt that the defendants prayer for amendment having been allowed, the plaintiffs applications should not have been refused and observed that the amendments sought for by the plaintiff might be "necessary from the point of view of the plaintiff" and that the lower courts ought to have tested "the amendment applications of the plaintiff on that ground". The High Court however did not try to find out if the proposed amendments were really necessary for the plaintiffs case. If the applications for amendments made by the plaintiff contained allegations in line with what was stated in the original plaint, the amendment would be redundant; if they were different, no valid reason is given by why the plaintiff should be permitted to improve on the case as originally made. The plaintiffs case did not depend on what the defendant might say in the written statement and if what he proposed to introduce in the plaint by way of amendment was relevant to his case, there is no apparent reason why this was left out when the plaint was filed. Prima facie, therefore, the order of the trial Court rejecting the plaintiffs applications for amendment of the plaint was not arbitrary. Whether the trial Court should not have exercised its discretion differently is not a question of law justifying interference by the High Court in second appeal. The learned Judge of the High Court also failed to consider the fact that a revisional application from the order refusing amendment had earlier been dismissed by the High Court. For these reasons we hold that the High Court had no jurisdiction in second appeal to interfere with the order passed by the trial Court in its discretion which was affirmed by the lower appellate Court.
### Response:
1
### Explanation:
The High Court however did not try to find out if the proposed amendments were really necessary for the plaintiffs case. If the applications for amendments made by the plaintiff contained allegations in line with what was stated in the original plaint, the amendment would be redundant; if they were different, no valid reason is given by why the plaintiff should be permitted to improve on the case as originally made. The plaintiffs case did not depend on what the defendant might say in the written statement and if what he proposed to introduce in the plaint by way of amendment was relevant to his case, there is no apparent reason why this was left out when the plaint was filed. Prima facie, therefore, the order of the trial Court rejecting the plaintiffs applications for amendment of the plaint was not arbitrary. Whether the trial Court should not have exercised its discretion differently is not a question of law justifying interference by the High Court in second appeal. The learned Judge of the High Court also failed to consider the fact that a revisional application from the order refusing amendment had earlier been dismissed by the High Court. For these reasons we hold that the High Court had no jurisdiction in second appeal to interfere with the order passed by the trial Court in its discretion which was affirmed by the lower appellate Court.
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WIPRO FINANCE LTD Vs. COMMISSIONER OF INCOME TAX | ….. the loan obtained is not an asset or advantage of an enduring nature….. the expenditure was made for securing the use of money for a certain period … and it is irrelevant to consider the object with which the loan was obtained. ….. 17. ….. the act of borrowing money ….. was not incidental to the carrying on of a business. ….. Similarly, the exposition in the case of Empire Jute Co. Ltd. (supra at footnote No. 6) is also extracted by the ITAT, which reads thus: - 5.….. it is not a universally true proposition that what may be capital receipt in the hands of the payee must necessarily be capital expenditure in relation to the payer. The fact that a certain payment constitutes income or capital receipt in the hands of the recipient is not material in determining whether the payment is revenue or capital disbursement qua the payer. ….. xxx xxx xxx 8. ….. There may be cases where expenditure, even if incurred for obtaining advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature, acquired by an assessee that brings the case within the principle laid down in this test. What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test. If the advantage consists merely in facilitating the assessees trading operations or enabling the management and conduct of the assessees business to be carried on more efficiently or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. The test of enduring benefit is therefore not a certain or conclusive test and it cannot be applied blindly and mechanically without regard to the particular facts and circumstances of a given case. ….. xxx xxx xxx 11. ….. What is an outgoing of capital and what is an outgoing on account of revenue depends on what the expenditure is calculated to effect from a practical and business point of view rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted is the process. The question must be viewed in the larger context of business necessity or expediency. ….. (emphasis supplied) 9. A priori, we are of the considered opinion that the analysis done by the ITAT and the conclusion arrived at in respect of the subject claim of the appellant being the correct approach consistent with the exposition of this Court, needs to be upheld. In our opinion, the High Court missed the relevant aspects of the analysis of the ITAT concerning the fact situation of the present case. As a matter of fact, the High Court has not even adverted to the aforementioned reported decisions, much less its usefulness in the present case. 10. The learned ASG appearing for the department had faintly argued that since the appellant in its return had taken a conscious explicit plea with regard to the part of the claim being ascribable to capital expenditure and partly to revenue expenditure, it was not open for the appellant to plead for the first time before the ITAT that the entire claim must be treated as revenue expenditure. Further, it was not open to the ITAT to entertain such fresh claim for the first time. This submission needs to be stated to be rejected. In the first place, the ITAT was conscious about the fact that this claim was set up by the appellant for the first time before it, and was clearly inconsistent and contrary to the stand taken in the return filed by the appellant for the concerned assessment year including the notings made by the officials of the appellant. Yet, the ITAT entertained the claim as permissible, even though for the first time before the ITAT, in appeal under Section 254 of the 1961 Act, by relying on the dictum of this Court in National Thermal Power Co. Ltd. (supra at footnote No. 4). Further, the ITAT has also expressly recorded the no objection given by the representative of the department, allowing the appellant to set up the fresh claim to treat the amount declared as capital expenditure in the returns (as originally filed), as revenue expenditure. As a result, the objection now taken by the department cannot be countenanced. 11. Learned ASG had placed reliance on the decision of this Court in Goetze (India) Ltd. vs. Commissioner of Income Tax [2006] 284 ITR 323 in support of the objection pressed before us that it is not open to entertain fresh claim before the ITAT. According to him, the decision in National Thermal Power Co. Ltd. (supra at footnote No. 4) merely permits raising of a new ground concerning the claim already mentioned in the returns and not an inconsistent or contrary plea or a new claim. We are not impressed by this argument. For, the observations in the decision in Goetze (India) Ltd. (supra at footnote No. 10) itself make it amply clear that such limitation would apply to the assessing authority, but not impinge upon the plenary powers of the ITAT bestowed under Section 254 of the Act. In other words, this decision is of no avail to the department. 12. Learned counsel for the department had also relied on the decision of this Court in Assistant Commissioner of Income Tax, Vadodara vs. Elecon Engineering Company Limited (2010) 4 SCC 482 . This decision is on the question of application of Section 43A of the 1961 Act. Accordingly, the exposition in this decision will be of no avail to the fact situation of the present case. For, we have already noticed that the appellant had not acquired any asset from any country outside India for the purpose of his business. | 1[ds]6. The broad undisputed relevant facts, as can be culled out from the record are that the appellant entered into a loan agreement with one Commonwealth Development Corporation having its registered office at England in the United Kingdom, for borrowing amount to carry on its project described in Schedule 1 to the agreement - for expanding its primary business of leasing and hire purchase of capital equipment to existing Indian enterprises.The loan was obtained in foreign currency (5 million pounds sterling). However, while repaying the loan, due to the difference of rate of foreign exchange, the appellant had to pay higher amount, resulting in loss to the appellant. Indeed, the loan amount was utilised by the appellant for financing the existing Indian enterprises for procurement of capital equipment on hire purchase or lease basis. The fact remains that the activity of financing by the appellant to the existing Indian enterprises for procurement or acquisition of plant, machinery and equipment on leasing and hire purchase basis, is an independent transaction or activity being the business of the appellant.7. As regards, the transaction of loan between the appellant and Commonwealth Development Corporation, the same was in the nature of borrowing money by the appellant, which was necessary for carrying on its business of financing. It was certainly not for creation of asset of the appellant as such or acquisition of asset from a country outside India for the purpose of its business. In such a scenario, the appellant would be justified in availing deduction of entire expenditure or loss suffered by it in connection with such a transaction in terms ofn 37 of the Act. For,e loan is wholly and exclusively used for the purpose of business of financing the existing Indian enterprises, who in turn, had to acquire plant, machinery and equipment to be used by them. It is a different matter that they may do so because of the leasing and hire purchase agreement with the appellant. That would be, nevertheless, an activity concerning the business of the appellant. In that view of the matter, the ITAT was right in answering the claim of the appellant in the affirmative, relaying on the dictum of this Court in India Cements Ltd. vs. Commissioner of Income Tax, Madras AIR 1966 SC 1053 . The exposition in this decision has been elaborated in the subsequent decision of this Court in Empire Jute Co. Ltd. vs. Commissioner of Income Tax (1980) 4 SCC 25 .8. The ITAT has extracted the relevant portion of the decision in India Cements Ltd. (supra at footnote No. 5), which reads thus: -7.….. where there is no express prohibition, an outgoing, by means of which an assessee procures the use of a thing by which it makes a profit, is deductible from the receipts of the business to ascertain taxable income. …..xxx xxx xxx16. ….. the loan obtained is not an asset or advantage of an enduring nature….. the expenditure was made for securing the use of money for a certain period … and it is irrelevant to consider the object with which the loan was obtained. …..17. ….. the act of borrowing money ….. was not incidental to the carrying on of a business. …..Similarly, the exposition in the case of Empire Jute Co. Ltd. (supra at footnote No. 6) is also extracted by the ITAT, which reads thus: -5.….. it is not a universally true proposition that what may be capital receipt in the hands of the payee must necessarily be capital expenditure in relation to the payer. The fact that a certain payment constitutes income or capital receipt in the hands of the recipient is not material in determining whether the payment is revenue or capital disbursement qua the payer. …..xxx xxx xxx8. ….. There may be cases where expenditure, even if incurred for obtaining advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature, acquired by an assessee that brings the case within the principle laid down in this test. What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test. If the advantage consists merely in facilitating the assessees trading operations or enabling the management and conduct of the assessees business to be carried on more efficiently or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. The test of enduring benefit is therefore not a certain or conclusive test and it cannot be applied blindly and mechanically without regard to the particular facts and circumstances of a given case. …..xxx xxx xxx11. ….. What is an outgoing of capital and what is an outgoing on account of revenue depends on what the expenditure is calculated to effect from a practical and business point of view rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted is the process.The question must be viewed in the larger context of business necessity or expediency. …..9. A priori, we are of the considered opinion that the analysis done by the ITAT and the conclusion arrived at in respect of the subject claim of the appellant being the correct approach consistent with the exposition of this Court, needs to be upheld. In our opinion, the High Court missed the relevant aspects of the analysis of the ITAT concerning the fact situation of the present case. As a matter of fact, the High Court has not even adverted to the aforementioned reported decisions, much less its usefulness in the present case.This submission needs to be stated to be rejected. In the first place, the ITAT was conscious about the fact that this claim was set up by the appellant for the first time before it, and was clearly inconsistent and contrary to the stand taken in the return filed by the appellant for the concerned assessment year including the notings made by the officials of the appellant. Yet, the ITAT entertained the claim as permissible, even though for the first time before the ITAT, in appeal underAct, by relying on the dictum of this Court in National Thermal Power Co. Ltd. (supra at footnote No. 4). Further, the ITAT has also expressly recorded the no objection given by the representative of the department, allowing the appellant to set up the fresh claim to treat the amount declared as capital expenditure in the returns (as originally filed), as revenue expenditure. As a result, the objection now taken by the department cannot be countenanced.We are not impressed by this argument. For, the observations in the decision in Goetze (India) Ltd. (supra at footnote No. 10) itself make it amply clear that such limitation would apply to the assessing authority, but not impinge upon the plenary powers of the ITAT bestowed underIn other words, this decision is of no avail to the department.12. Learned counsel for the department had also relied on the decision of this Court in Assistant Commissioner of Income Tax, Vadodara vs. Elecon Engineering Company Limited (2010) 4 SCC 482 . This decision is on the question of application ofAct. Accordingly, the exposition in this decision will be of no avail to the fact situation of the present case. For, we have already noticed that the appellant had not acquired any asset from any country outside India for the purpose of his business. | 1 | 2,788 | 1,420 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
….. the loan obtained is not an asset or advantage of an enduring nature….. the expenditure was made for securing the use of money for a certain period … and it is irrelevant to consider the object with which the loan was obtained. ….. 17. ….. the act of borrowing money ….. was not incidental to the carrying on of a business. ….. Similarly, the exposition in the case of Empire Jute Co. Ltd. (supra at footnote No. 6) is also extracted by the ITAT, which reads thus: - 5.….. it is not a universally true proposition that what may be capital receipt in the hands of the payee must necessarily be capital expenditure in relation to the payer. The fact that a certain payment constitutes income or capital receipt in the hands of the recipient is not material in determining whether the payment is revenue or capital disbursement qua the payer. ….. xxx xxx xxx 8. ….. There may be cases where expenditure, even if incurred for obtaining advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature, acquired by an assessee that brings the case within the principle laid down in this test. What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test. If the advantage consists merely in facilitating the assessees trading operations or enabling the management and conduct of the assessees business to be carried on more efficiently or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. The test of enduring benefit is therefore not a certain or conclusive test and it cannot be applied blindly and mechanically without regard to the particular facts and circumstances of a given case. ….. xxx xxx xxx 11. ….. What is an outgoing of capital and what is an outgoing on account of revenue depends on what the expenditure is calculated to effect from a practical and business point of view rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted is the process. The question must be viewed in the larger context of business necessity or expediency. ….. (emphasis supplied) 9. A priori, we are of the considered opinion that the analysis done by the ITAT and the conclusion arrived at in respect of the subject claim of the appellant being the correct approach consistent with the exposition of this Court, needs to be upheld. In our opinion, the High Court missed the relevant aspects of the analysis of the ITAT concerning the fact situation of the present case. As a matter of fact, the High Court has not even adverted to the aforementioned reported decisions, much less its usefulness in the present case. 10. The learned ASG appearing for the department had faintly argued that since the appellant in its return had taken a conscious explicit plea with regard to the part of the claim being ascribable to capital expenditure and partly to revenue expenditure, it was not open for the appellant to plead for the first time before the ITAT that the entire claim must be treated as revenue expenditure. Further, it was not open to the ITAT to entertain such fresh claim for the first time. This submission needs to be stated to be rejected. In the first place, the ITAT was conscious about the fact that this claim was set up by the appellant for the first time before it, and was clearly inconsistent and contrary to the stand taken in the return filed by the appellant for the concerned assessment year including the notings made by the officials of the appellant. Yet, the ITAT entertained the claim as permissible, even though for the first time before the ITAT, in appeal under Section 254 of the 1961 Act, by relying on the dictum of this Court in National Thermal Power Co. Ltd. (supra at footnote No. 4). Further, the ITAT has also expressly recorded the no objection given by the representative of the department, allowing the appellant to set up the fresh claim to treat the amount declared as capital expenditure in the returns (as originally filed), as revenue expenditure. As a result, the objection now taken by the department cannot be countenanced. 11. Learned ASG had placed reliance on the decision of this Court in Goetze (India) Ltd. vs. Commissioner of Income Tax [2006] 284 ITR 323 in support of the objection pressed before us that it is not open to entertain fresh claim before the ITAT. According to him, the decision in National Thermal Power Co. Ltd. (supra at footnote No. 4) merely permits raising of a new ground concerning the claim already mentioned in the returns and not an inconsistent or contrary plea or a new claim. We are not impressed by this argument. For, the observations in the decision in Goetze (India) Ltd. (supra at footnote No. 10) itself make it amply clear that such limitation would apply to the assessing authority, but not impinge upon the plenary powers of the ITAT bestowed under Section 254 of the Act. In other words, this decision is of no avail to the department. 12. Learned counsel for the department had also relied on the decision of this Court in Assistant Commissioner of Income Tax, Vadodara vs. Elecon Engineering Company Limited (2010) 4 SCC 482 . This decision is on the question of application of Section 43A of the 1961 Act. Accordingly, the exposition in this decision will be of no avail to the fact situation of the present case. For, we have already noticed that the appellant had not acquired any asset from any country outside India for the purpose of his business.
### Response:
1
### Explanation:
Act. For,e loan is wholly and exclusively used for the purpose of business of financing the existing Indian enterprises, who in turn, had to acquire plant, machinery and equipment to be used by them. It is a different matter that they may do so because of the leasing and hire purchase agreement with the appellant. That would be, nevertheless, an activity concerning the business of the appellant. In that view of the matter, the ITAT was right in answering the claim of the appellant in the affirmative, relaying on the dictum of this Court in India Cements Ltd. vs. Commissioner of Income Tax, Madras AIR 1966 SC 1053 . The exposition in this decision has been elaborated in the subsequent decision of this Court in Empire Jute Co. Ltd. vs. Commissioner of Income Tax (1980) 4 SCC 25 .8. The ITAT has extracted the relevant portion of the decision in India Cements Ltd. (supra at footnote No. 5), which reads thus: -7.….. where there is no express prohibition, an outgoing, by means of which an assessee procures the use of a thing by which it makes a profit, is deductible from the receipts of the business to ascertain taxable income. …..xxx xxx xxx16. ….. the loan obtained is not an asset or advantage of an enduring nature….. the expenditure was made for securing the use of money for a certain period … and it is irrelevant to consider the object with which the loan was obtained. …..17. ….. the act of borrowing money ….. was not incidental to the carrying on of a business. …..Similarly, the exposition in the case of Empire Jute Co. Ltd. (supra at footnote No. 6) is also extracted by the ITAT, which reads thus: -5.….. it is not a universally true proposition that what may be capital receipt in the hands of the payee must necessarily be capital expenditure in relation to the payer. The fact that a certain payment constitutes income or capital receipt in the hands of the recipient is not material in determining whether the payment is revenue or capital disbursement qua the payer. …..xxx xxx xxx8. ….. There may be cases where expenditure, even if incurred for obtaining advantage of enduring benefit, may, nonetheless, be on revenue account and the test of enduring benefit may break down. It is not every advantage of enduring nature, acquired by an assessee that brings the case within the principle laid down in this test. What is material to consider is the nature of the advantage in a commercial sense and it is only where the advantage is in the capital field that the expenditure would be disallowable on an application of this test. If the advantage consists merely in facilitating the assessees trading operations or enabling the management and conduct of the assessees business to be carried on more efficiently or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. The test of enduring benefit is therefore not a certain or conclusive test and it cannot be applied blindly and mechanically without regard to the particular facts and circumstances of a given case. …..xxx xxx xxx11. ….. What is an outgoing of capital and what is an outgoing on account of revenue depends on what the expenditure is calculated to effect from a practical and business point of view rather than upon the juristic classification of the legal rights, if any, secured, employed or exhausted is the process.The question must be viewed in the larger context of business necessity or expediency. …..9. A priori, we are of the considered opinion that the analysis done by the ITAT and the conclusion arrived at in respect of the subject claim of the appellant being the correct approach consistent with the exposition of this Court, needs to be upheld. In our opinion, the High Court missed the relevant aspects of the analysis of the ITAT concerning the fact situation of the present case. As a matter of fact, the High Court has not even adverted to the aforementioned reported decisions, much less its usefulness in the present case.This submission needs to be stated to be rejected. In the first place, the ITAT was conscious about the fact that this claim was set up by the appellant for the first time before it, and was clearly inconsistent and contrary to the stand taken in the return filed by the appellant for the concerned assessment year including the notings made by the officials of the appellant. Yet, the ITAT entertained the claim as permissible, even though for the first time before the ITAT, in appeal underAct, by relying on the dictum of this Court in National Thermal Power Co. Ltd. (supra at footnote No. 4). Further, the ITAT has also expressly recorded the no objection given by the representative of the department, allowing the appellant to set up the fresh claim to treat the amount declared as capital expenditure in the returns (as originally filed), as revenue expenditure. As a result, the objection now taken by the department cannot be countenanced.We are not impressed by this argument. For, the observations in the decision in Goetze (India) Ltd. (supra at footnote No. 10) itself make it amply clear that such limitation would apply to the assessing authority, but not impinge upon the plenary powers of the ITAT bestowed underIn other words, this decision is of no avail to the department.12. Learned counsel for the department had also relied on the decision of this Court in Assistant Commissioner of Income Tax, Vadodara vs. Elecon Engineering Company Limited (2010) 4 SCC 482 . This decision is on the question of application ofAct. Accordingly, the exposition in this decision will be of no avail to the fact situation of the present case. For, we have already noticed that the appellant had not acquired any asset from any country outside India for the purpose of his business.
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Dempo Brothers Private Limited Vs. Assistant Commissioner of Income Tax Circle 1 (1) & Another | must speak for themselves. By merely stating that `there is failure on the part of assessee to disclose fully and truly all material facts in the order does not satisfy the requirement of this 5 Wp1060.17 dt 06-3-17 Section, as it would amount to merely reproducing the language of the section.7. Mr. Naniwadekar submitted that not only the reasons supplied to the Petitioner do not elaborate and disclose in what manner the Petitioner has not furnished the relevant material facts so that the power of reassessment can be exercised, there has been no withholding of the relevant material and the Petitioner has produced all the necessary information when the case was taken for scrutiny. Ms. Linhares submitted that the Petitioner did not produce Form 29B as per Rule 40B of Income Tax Rules, 1962, which has led to escapement of income of substantial amount. Learned Counsel submitted that there is no error in the impugned order as there was failure on the part of the Petitioner to disclose all the material facts.8. When the Petitioners case was taken up for the scrutiny, the Petitioner was specifically confronted with the questions as regarding the transaction in respect of the sale of shares of Goa Carbon Limited. The Petitioner was specifically asked why the profits from sale should not be taxed. The Petitioner replied to this question and explained that the Petitioner is a wholly owned subsidiary of Esmeralda Investments Private Limited and transfer of capital asset to Esmeralda Investments Private Limited is not regarded as a transfer. It was not the case of the Petitioner that the transfer is exempted under the provisions of Section 10 (38) of the Act but, it was the contention of the Petitioner that it is not a transfer at all. The contention based on Section 10 (38) was invoked for the purpose of sale of shares of HDFC Bank. This explanation of the Petitioner was accepted by the Assessing Officer.9. In the reason supplied to the Petitioner, it has been stated by the Assessing Officer, which is also the contention of Ms. Linhares that the Form 29B was not furnished by the Petitioner. Mr. Naniwadekar has drawn our attention to Section 115JB, which deals with special provision for payment of tax by certain Companies. Sub-section (4) of Section 115JB reads thus:(4) Every company to which this section applies, shall furnish a report in the prescribed form from an accountant as defined in the Explanation below subsection (2) of section 288, certifying that the book profit has been computed in accordance with the provisions of this section along with the return of income filed under sub-section (1) of section 139 or along with the return of income furnished in response to a notice under clause (i) of sub-section (1) of section 142”.As rightly contended by Mr.Naniwadekar, the Section refers to production of the Form from an accountant along with the original assessment. This requirement, therefore, is at the time of original assessment. But the matter of the Petitioner had travelled much further than that stage. The Petitioners case was taken in scrutiny and the Petitioner was specifically called upon to respond the certain queries, which the Petitioner did.10. Mr. Naniwadekar right in contending that the Petitioner has placed all the primary facts before the Assessing Authority namely that the concerned Company was a wholly owned subsidiary Company and the transfer share does not amount to transfer. After disclosing this position, the Assessing Officer accepted the explanation of the Petitioner. The Apex Court in the case of Gemini Leather Store Vs. Income Tax Officer, B-Ward and others [(1975) 100 ITR 1 (SC) has observed that in every assessment proceeding the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessees, or discovered by him on the basis of the facts disclosed, or otherwise, the assessing authority has to draw inference as regards certain other facts; and ultimately from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences. It was held that once all the primary facts are before the assessing authority he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else, far less the assessee, to tell the assessing authority what inferences, whether of facts or law, should be drawn. The Apex Court has thus concluded that the Income Tax Officer in that case thus had all the material facts before him when he made the original assessment and he cannot now take recourse to Section 147(a) to remedy the error resulting from his own oversight.11. Thus, if the primary facts are placed before the Assessing Officer, the Assessing Officer is in a position to take decision thereupon, it cannot amount to failure on the part of the assessee to withhold to furnish the material particulars. The Assessing Officer, in the impugned order has referred to various decisions, however, none of the decisions lay down that even though the primary facts were placed before the Assessing Officer at the time of scrutiny, on account of non-furnishing of the Form at the time of the original assessment, the assessment can be reopened, neither any such decision is brought to our notice.12. Therefore, we are of the opinion that the Petitioner had placed on record the necessary information for the purpose of assessing income as regard the transfer of shares. What is sought to be done by the Assessing Officer now is a reopening of assessment after four years, on a mere change of opinion. The non-furnishing of the Form is only an excuse given by the Assessing Officer to attempt to exercise an nonexistent power. | 0[ds]As rightly contended by Mr.Naniwadekar, the Section refers to production of the Form from an accountant along with the original assessment. This requirement, therefore, is at the time of original assessment. But the matter of the Petitioner had travelled much further than that stage. The Petitioners case was taken in scrutiny and the Petitioner was specifically called upon to respond the certain queries, which the Petitioner did.10. Mr. Naniwadekar right in contending that the Petitioner has placed all the primary facts before the Assessing Authority namely that the concerned Company was a wholly owned subsidiary Company and the transfer share does not amount to transfer. After disclosing this position, the Assessing Officer accepted the explanation of the Petitioner. The Apex Court in the case of Gemini Leather Store Vs. Income Tax Officer,and others [(1975) 100 ITR 1 (SC) has observed that in every assessment proceeding the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessees, or discovered by him on the basis of the facts disclosed, or otherwise, the assessing authority has to draw inference as regards certain other facts; and ultimately from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences. It was held that once all the primary facts are before the assessing authority he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else, far less the assessee, to tell the assessing authority what inferences, whether of facts or law, should be drawn. The Apex Court has thus concluded that the Income Tax Officer in that case thus had all the material facts before him when he made the original assessment and he cannot now take recourse to Section 147(a) to remedy the error resulting from his own oversight.11. Thus, if the primary facts are placed before the Assessing Officer, the Assessing Officer is in a position to take decision thereupon, it cannot amount to failure on the part of the assessee to withhold to furnish the material particulars. The Assessing Officer, in the impugned order has referred to various decisions, however, none of the decisions lay down that even though the primary facts were placed before the Assessing Officer at the time of scrutiny, on account ofof the Form at the time of the original assessment, the assessment can be reopened, neither any such decision is brought to our notice.12. Therefore, we are of the opinion that the Petitioner had placed on record the necessary information for the purpose of assessing income as regard the transfer of shares. What is sought to be done by the Assessing Officer now is a reopening of assessment after four years, on a mere change of opinion. Theof the Form is only an excuse given by the Assessing Officer to attempt to exercise an nonexistent power. | 0 | 1,763 | 590 | ### 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.
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must speak for themselves. By merely stating that `there is failure on the part of assessee to disclose fully and truly all material facts in the order does not satisfy the requirement of this 5 Wp1060.17 dt 06-3-17 Section, as it would amount to merely reproducing the language of the section.7. Mr. Naniwadekar submitted that not only the reasons supplied to the Petitioner do not elaborate and disclose in what manner the Petitioner has not furnished the relevant material facts so that the power of reassessment can be exercised, there has been no withholding of the relevant material and the Petitioner has produced all the necessary information when the case was taken for scrutiny. Ms. Linhares submitted that the Petitioner did not produce Form 29B as per Rule 40B of Income Tax Rules, 1962, which has led to escapement of income of substantial amount. Learned Counsel submitted that there is no error in the impugned order as there was failure on the part of the Petitioner to disclose all the material facts.8. When the Petitioners case was taken up for the scrutiny, the Petitioner was specifically confronted with the questions as regarding the transaction in respect of the sale of shares of Goa Carbon Limited. The Petitioner was specifically asked why the profits from sale should not be taxed. The Petitioner replied to this question and explained that the Petitioner is a wholly owned subsidiary of Esmeralda Investments Private Limited and transfer of capital asset to Esmeralda Investments Private Limited is not regarded as a transfer. It was not the case of the Petitioner that the transfer is exempted under the provisions of Section 10 (38) of the Act but, it was the contention of the Petitioner that it is not a transfer at all. The contention based on Section 10 (38) was invoked for the purpose of sale of shares of HDFC Bank. This explanation of the Petitioner was accepted by the Assessing Officer.9. In the reason supplied to the Petitioner, it has been stated by the Assessing Officer, which is also the contention of Ms. Linhares that the Form 29B was not furnished by the Petitioner. Mr. Naniwadekar has drawn our attention to Section 115JB, which deals with special provision for payment of tax by certain Companies. Sub-section (4) of Section 115JB reads thus:(4) Every company to which this section applies, shall furnish a report in the prescribed form from an accountant as defined in the Explanation below subsection (2) of section 288, certifying that the book profit has been computed in accordance with the provisions of this section along with the return of income filed under sub-section (1) of section 139 or along with the return of income furnished in response to a notice under clause (i) of sub-section (1) of section 142”.As rightly contended by Mr.Naniwadekar, the Section refers to production of the Form from an accountant along with the original assessment. This requirement, therefore, is at the time of original assessment. But the matter of the Petitioner had travelled much further than that stage. The Petitioners case was taken in scrutiny and the Petitioner was specifically called upon to respond the certain queries, which the Petitioner did.10. Mr. Naniwadekar right in contending that the Petitioner has placed all the primary facts before the Assessing Authority namely that the concerned Company was a wholly owned subsidiary Company and the transfer share does not amount to transfer. After disclosing this position, the Assessing Officer accepted the explanation of the Petitioner. The Apex Court in the case of Gemini Leather Store Vs. Income Tax Officer, B-Ward and others [(1975) 100 ITR 1 (SC) has observed that in every assessment proceeding the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessees, or discovered by him on the basis of the facts disclosed, or otherwise, the assessing authority has to draw inference as regards certain other facts; and ultimately from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences. It was held that once all the primary facts are before the assessing authority he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else, far less the assessee, to tell the assessing authority what inferences, whether of facts or law, should be drawn. The Apex Court has thus concluded that the Income Tax Officer in that case thus had all the material facts before him when he made the original assessment and he cannot now take recourse to Section 147(a) to remedy the error resulting from his own oversight.11. Thus, if the primary facts are placed before the Assessing Officer, the Assessing Officer is in a position to take decision thereupon, it cannot amount to failure on the part of the assessee to withhold to furnish the material particulars. The Assessing Officer, in the impugned order has referred to various decisions, however, none of the decisions lay down that even though the primary facts were placed before the Assessing Officer at the time of scrutiny, on account of non-furnishing of the Form at the time of the original assessment, the assessment can be reopened, neither any such decision is brought to our notice.12. Therefore, we are of the opinion that the Petitioner had placed on record the necessary information for the purpose of assessing income as regard the transfer of shares. What is sought to be done by the Assessing Officer now is a reopening of assessment after four years, on a mere change of opinion. The non-furnishing of the Form is only an excuse given by the Assessing Officer to attempt to exercise an nonexistent power.
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0
### Explanation:
As rightly contended by Mr.Naniwadekar, the Section refers to production of the Form from an accountant along with the original assessment. This requirement, therefore, is at the time of original assessment. But the matter of the Petitioner had travelled much further than that stage. The Petitioners case was taken in scrutiny and the Petitioner was specifically called upon to respond the certain queries, which the Petitioner did.10. Mr. Naniwadekar right in contending that the Petitioner has placed all the primary facts before the Assessing Authority namely that the concerned Company was a wholly owned subsidiary Company and the transfer share does not amount to transfer. After disclosing this position, the Assessing Officer accepted the explanation of the Petitioner. The Apex Court in the case of Gemini Leather Store Vs. Income Tax Officer,and others [(1975) 100 ITR 1 (SC) has observed that in every assessment proceeding the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessees, or discovered by him on the basis of the facts disclosed, or otherwise, the assessing authority has to draw inference as regards certain other facts; and ultimately from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences. It was held that once all the primary facts are before the assessing authority he requires no further assistance by way of disclosure. It is for him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else, far less the assessee, to tell the assessing authority what inferences, whether of facts or law, should be drawn. The Apex Court has thus concluded that the Income Tax Officer in that case thus had all the material facts before him when he made the original assessment and he cannot now take recourse to Section 147(a) to remedy the error resulting from his own oversight.11. Thus, if the primary facts are placed before the Assessing Officer, the Assessing Officer is in a position to take decision thereupon, it cannot amount to failure on the part of the assessee to withhold to furnish the material particulars. The Assessing Officer, in the impugned order has referred to various decisions, however, none of the decisions lay down that even though the primary facts were placed before the Assessing Officer at the time of scrutiny, on account ofof the Form at the time of the original assessment, the assessment can be reopened, neither any such decision is brought to our notice.12. Therefore, we are of the opinion that the Petitioner had placed on record the necessary information for the purpose of assessing income as regard the transfer of shares. What is sought to be done by the Assessing Officer now is a reopening of assessment after four years, on a mere change of opinion. Theof the Form is only an excuse given by the Assessing Officer to attempt to exercise an nonexistent power.
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Assistant Controller of Estate-Duty Vs. Nawab Sir Mir Osman Ali Khan | may proceed to assess or reassess such property as if the provisions of section 58 applied thereto. "It is argued for the department that the observations in the appellate order of the Central Board of Revenue constitute the information on which the Controller could proceed to reassess. We may appropriately refer to the case set out in the counter-affidavit of the Controller" Para. 9 ...... In the instant case, the apparent undervaluation of the deceaseds interest, which was pointed out by the appellate authority is sufficient information to constitute a reason to make this respondent reasonably believe that there was an escapement of assessment by reason of undervaluation, and justify the initiation of the reassessment proceedings under section 59 of the Act.."The appellate order is one of confirmation of assessment as already made. The observations relied on are as under" In the calculation which I have made in paragraph 7 above, I have assumed the yield from the loan only at 1 1/4%. i.e., the interest has not been grossed up as in the calculation made by the Assistant Controller. According to the method adopted in paragraph 7, the value of the securities of the face value of Rs. 4.5 crores (O.S.) came to Rs. 3, 06, 83, 760 I.G., i.e., 78%. The valuation adopted by the Assistant Controller comes to 52% as against the estimate of 40% to 50% made by the stock brokers. For the reasons already given by me in paragraph 7 above, I am of the opinion that the correct value should be 78%. However, I find that there is some force in the argument advanced by the appellants representative against any enhancement being made by the Board in appeal proceedings. I refrain therefore from making the proposed enhancement in the value of the securities and confirm the value adopted by the Assistant Controller. "There can be no doubt that the appellate authority expressed an opinion, which, however, was not given effect to. We would be straining the language of the section if we take in also the opinions expressed as constituting informationOur learned brother rightly posited the question whether the expression of opinion by the Central Board of Revenue was information within the meaning of section 59(b) of the Act. After careful consideration he held that such an opinion could not be information within the meaning of section 59(b) of the Act. We are in agreement with our learned brother on this questionSri Kondaiah, the learned counsel for the department, placed reliance on Maharaj Kumar Kamal Singh v. Commissioner of Income-tax, where it was held that" The word information in section 34(1)(b) included information as to the true and correct state of the law, and so would cover information as to relevant judicial decisions. "10. In the case originally the Income-tax Officer, following the decision of the Patna High Court in Kamakshya Narain Singh v. Commissioner of Income-tax, omitted to bring to assessment for the year 1945-46, the sum of Rs. 93, 604 representing interest on arrears of rent due to the assessee in respect of agricultural land on the ground that the amount was agricultural income. Subsequently, the Privy Council, on appeal from that decision, held that interest on arrears of rent payable in respect of agricultural land was not agricultural income, and, as a result of that decision, the Income-tax Officer initiated reassessment proceedings under section 34(1)(b) of the Income-tax Act and brought the amount of Rs. 93, 604 to tax11. We do not see that the instant case presents any similarity to the one cited to us. On the contrary, it has been held consistently that information expressed on the same facts could not be information. In Commissioner of Income-tax v. Janab S. Khaderwalli Sahib, a Bench of the Madras High Court observed thus" It is clear that a mere change of opinion based on the same facts and figures which were present to the mind of the Income-tax Officer at the time of the original assessment does not amount to discovery. The discovery must be the result of definite information, that is to say new information that has come to the knowledge of the Income-tax Officer. The Income-tax Officer cannot act under this section even though the taxpayer has escaped assessment if he is acting on information which was already in his possession and within his knowledge. Unless it can be said that there is fresh information which was not in his possession at the time when the original assessment was made, action under section 34 of the Income-tax Act is not justified. The mere fact that a different opinion on the same facts was taken by somebody else is not definite information leading to discovery on the part of the Income-tax Officer who was in possession of the same facts and entire facts at the time of the original assessment. "Ananthalakshmi Ammal v. Commissioner of Income-tax reiterated the same view. It was observed in that case thus" That appellate decision with nothing more will not amount to definite information within the meaning of section 34 of the Act to enable the Income-tax Officer to exercise the powers conferred on him by section 34 with reference to the same set of facts... The facts for consideration remained the same. Only his erroneous decision was eliminated. It was nothing more than a change of opinion on the same set of facts, though the change in this case was apparently forced by the decision of the Tribunal. There was no definite information or any discovery in consequence of such information within the meaning of section 34. "12. We are of the same opinion. We, therefore, affirm the finding of our learned brother that a mere expression of opinion by the Central Board of Revenue does not amount to information within the meaning of section 59(b) of the Estate Duty Act. As we have said above, the decision in this case could be properly rested on this findingWe find, therefore, no grounds for interference. | 0[ds]6. It is seen that under section 34 of theAct, before the amendment made by Act 48 of 1948, theOfficer, had power to issue a notice in respect of escaped orincome, but he could do so within a period of four years, whereas under the section as amended, he could issue a notice under certain conditions within a period of 8 years.We do not see that the instant case presents any similarity to the one cited to us. On the contrary, it has been held consistently that information expressed on the same facts could not be information. In Commissioner ofv. Janab S. Khaderwalli Sahib, a Bench of the Madras High Court observed thus" It is clear that a mere change of opinion based on the same facts and figures which were present to the mind of theOfficer at the time of the original assessment does not amount to discovery. The discovery must be the result of definite information, that is to say new information that has come to the knowledge of thetax Officer cannot act under this section even though the taxpayer has escaped assessment if he is acting on information which was already in his possession and within his knowledge. Unless it can be said that there is fresh information which was not in his possession at the time when the original assessment was made, action under section 34 of theAct is not justified. The mere fact that a different opinion on the same facts was taken by somebody else is not definite information leading to discovery on the part of theOfficer who was in possession of the same facts and entire facts at the time of the original assessment. "Ananthalakshmi Ammal v. Commissioner ofreiterated the same view. It was observed in that case thus" That appellate decision with nothing more will not amount to definite information within the meaning of section 34 of the Act to enable theOfficer to exercise the powers conferred on him by section 34 with reference to the same set of facts... The facts for consideration remained the same. Only his erroneous decision was eliminated. It was nothing more than a change of opinion on the same set of facts, though the change in this case was apparently forced by the decision of the Tribunal. There was no definite information or any discovery in consequence of such information within the meaning of section 34. "12. We are of the same opinion. We, therefore, affirm the finding of our learned brother that a mere expression of opinion by the Central Board of Revenue does not amount to information within the meaning of section 59(b) of the Estate Duty Act. As we have said above, the decision in this case could be properly rested on this findingWe find, therefore, no grounds for interference. The appeal is dismissed with costs. Advocates fee Rs. 150 | 0 | 4,061 | 525 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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may proceed to assess or reassess such property as if the provisions of section 58 applied thereto. "It is argued for the department that the observations in the appellate order of the Central Board of Revenue constitute the information on which the Controller could proceed to reassess. We may appropriately refer to the case set out in the counter-affidavit of the Controller" Para. 9 ...... In the instant case, the apparent undervaluation of the deceaseds interest, which was pointed out by the appellate authority is sufficient information to constitute a reason to make this respondent reasonably believe that there was an escapement of assessment by reason of undervaluation, and justify the initiation of the reassessment proceedings under section 59 of the Act.."The appellate order is one of confirmation of assessment as already made. The observations relied on are as under" In the calculation which I have made in paragraph 7 above, I have assumed the yield from the loan only at 1 1/4%. i.e., the interest has not been grossed up as in the calculation made by the Assistant Controller. According to the method adopted in paragraph 7, the value of the securities of the face value of Rs. 4.5 crores (O.S.) came to Rs. 3, 06, 83, 760 I.G., i.e., 78%. The valuation adopted by the Assistant Controller comes to 52% as against the estimate of 40% to 50% made by the stock brokers. For the reasons already given by me in paragraph 7 above, I am of the opinion that the correct value should be 78%. However, I find that there is some force in the argument advanced by the appellants representative against any enhancement being made by the Board in appeal proceedings. I refrain therefore from making the proposed enhancement in the value of the securities and confirm the value adopted by the Assistant Controller. "There can be no doubt that the appellate authority expressed an opinion, which, however, was not given effect to. We would be straining the language of the section if we take in also the opinions expressed as constituting informationOur learned brother rightly posited the question whether the expression of opinion by the Central Board of Revenue was information within the meaning of section 59(b) of the Act. After careful consideration he held that such an opinion could not be information within the meaning of section 59(b) of the Act. We are in agreement with our learned brother on this questionSri Kondaiah, the learned counsel for the department, placed reliance on Maharaj Kumar Kamal Singh v. Commissioner of Income-tax, where it was held that" The word information in section 34(1)(b) included information as to the true and correct state of the law, and so would cover information as to relevant judicial decisions. "10. In the case originally the Income-tax Officer, following the decision of the Patna High Court in Kamakshya Narain Singh v. Commissioner of Income-tax, omitted to bring to assessment for the year 1945-46, the sum of Rs. 93, 604 representing interest on arrears of rent due to the assessee in respect of agricultural land on the ground that the amount was agricultural income. Subsequently, the Privy Council, on appeal from that decision, held that interest on arrears of rent payable in respect of agricultural land was not agricultural income, and, as a result of that decision, the Income-tax Officer initiated reassessment proceedings under section 34(1)(b) of the Income-tax Act and brought the amount of Rs. 93, 604 to tax11. We do not see that the instant case presents any similarity to the one cited to us. On the contrary, it has been held consistently that information expressed on the same facts could not be information. In Commissioner of Income-tax v. Janab S. Khaderwalli Sahib, a Bench of the Madras High Court observed thus" It is clear that a mere change of opinion based on the same facts and figures which were present to the mind of the Income-tax Officer at the time of the original assessment does not amount to discovery. The discovery must be the result of definite information, that is to say new information that has come to the knowledge of the Income-tax Officer. The Income-tax Officer cannot act under this section even though the taxpayer has escaped assessment if he is acting on information which was already in his possession and within his knowledge. Unless it can be said that there is fresh information which was not in his possession at the time when the original assessment was made, action under section 34 of the Income-tax Act is not justified. The mere fact that a different opinion on the same facts was taken by somebody else is not definite information leading to discovery on the part of the Income-tax Officer who was in possession of the same facts and entire facts at the time of the original assessment. "Ananthalakshmi Ammal v. Commissioner of Income-tax reiterated the same view. It was observed in that case thus" That appellate decision with nothing more will not amount to definite information within the meaning of section 34 of the Act to enable the Income-tax Officer to exercise the powers conferred on him by section 34 with reference to the same set of facts... The facts for consideration remained the same. Only his erroneous decision was eliminated. It was nothing more than a change of opinion on the same set of facts, though the change in this case was apparently forced by the decision of the Tribunal. There was no definite information or any discovery in consequence of such information within the meaning of section 34. "12. We are of the same opinion. We, therefore, affirm the finding of our learned brother that a mere expression of opinion by the Central Board of Revenue does not amount to information within the meaning of section 59(b) of the Estate Duty Act. As we have said above, the decision in this case could be properly rested on this findingWe find, therefore, no grounds for interference.
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0
### Explanation:
6. It is seen that under section 34 of theAct, before the amendment made by Act 48 of 1948, theOfficer, had power to issue a notice in respect of escaped orincome, but he could do so within a period of four years, whereas under the section as amended, he could issue a notice under certain conditions within a period of 8 years.We do not see that the instant case presents any similarity to the one cited to us. On the contrary, it has been held consistently that information expressed on the same facts could not be information. In Commissioner ofv. Janab S. Khaderwalli Sahib, a Bench of the Madras High Court observed thus" It is clear that a mere change of opinion based on the same facts and figures which were present to the mind of theOfficer at the time of the original assessment does not amount to discovery. The discovery must be the result of definite information, that is to say new information that has come to the knowledge of thetax Officer cannot act under this section even though the taxpayer has escaped assessment if he is acting on information which was already in his possession and within his knowledge. Unless it can be said that there is fresh information which was not in his possession at the time when the original assessment was made, action under section 34 of theAct is not justified. The mere fact that a different opinion on the same facts was taken by somebody else is not definite information leading to discovery on the part of theOfficer who was in possession of the same facts and entire facts at the time of the original assessment. "Ananthalakshmi Ammal v. Commissioner ofreiterated the same view. It was observed in that case thus" That appellate decision with nothing more will not amount to definite information within the meaning of section 34 of the Act to enable theOfficer to exercise the powers conferred on him by section 34 with reference to the same set of facts... The facts for consideration remained the same. Only his erroneous decision was eliminated. It was nothing more than a change of opinion on the same set of facts, though the change in this case was apparently forced by the decision of the Tribunal. There was no definite information or any discovery in consequence of such information within the meaning of section 34. "12. We are of the same opinion. We, therefore, affirm the finding of our learned brother that a mere expression of opinion by the Central Board of Revenue does not amount to information within the meaning of section 59(b) of the Estate Duty Act. As we have said above, the decision in this case could be properly rested on this findingWe find, therefore, no grounds for interference. The appeal is dismissed with costs. Advocates fee Rs. 150
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B.S.E.S. Ltd Vs. Tata Power Co. Ltd. | it had appointed consultants. Two members of the Commission had several meetings with the consultants and thereafter the formula was worked out. But the Chairman of the Commission was not present in these meetings. In his dissenting order of Chairman has recorded as under: Para 60. I have had the opportunity to peruse in detail the draft of an order approved and circulated by my colleagues in the Commission, and I am appending a separate dissenting note, in view of my disagreement with them in regard to their calculations. Para 63. As a reflected in paragraph 50 of the order of my colleagues, the order itself is based on the report of the Consultants and the calculations shown in their report. In this behalf, I understand that my colleagues have had several meetings with the consultants and it is on the basis of the working that has been provided by my colleagues that the report has been compiled. .......... Para 64. I am afraid that I was not informed of any of the meetings that my colleagues had with the Consultants, nor was I advised of any minutes of the said meetings till the draft order was circulated. In the circumstances, since the BSES share that was purported to have been communicated by the Commission, it cannot be deemed to be or considered to be a communication made by the Commission, unless the communication was considered by all the Members of the Commission. It would tantamount to only two of the Members taking upon themselves the liberty to communicate the same." 24. The facts mentioned above clearly show that the procedure adopted by the Commission was not fair and proper inasmuch as the Chairman did not participate in the meetings which other two members had with the Consultants, whereunder a formula was devised. Under Regulation 21, the quorum for proceedings before the Commission shall be three. In these circumstances, the High Court was perfectly justified in remitting the matter to the Commission for de novo consideration and no exception can be taken to such a course of action.25. BSES is aggrieved only against the interim arrangement made by the High Court, whereby it has been directed to pay 50 per cent of the standby charges that are payable by TPC to MSEB for its standby facility of 550 MVA. Shri Kapil Sibal, learned senior counsel for BSES, has submitted that the State Government had, on the basis of the recommendation made by the Committee, passed an order on 19.1.1998 directing BSES to pay Rs. 3.5 crores per month to TPC when the liability of TPC to MSEB was Rs. 24.75 crores per month. This shows that the State Government did not apportion the liability of BSES as half of that of TPC. He has also submitted that TPC sells 35 per cent of the power generated by it to BSES and consequently a portion of this burden of Rs. 24,75 crores which TPC is liable to pay to MSEB is passed on by it to the consumers of BSES. Therefore, BSES cannot be saddled with liability to pay half of the amount only on the ground that it has been provided with a standby facility of 275 MVA which is half of the standby facility provided by MSEB to TPC. Learned counsel has also submitted that at best there can be some kind of a sharing on the amount which TPC has to pay to MSEB over and above Rs. 24.75 crores but up to the extent of the aforesaid amount the liability of BSES cannot exceed Rs. 3.5 crores. Shri Sibal has also assailed the order of the High Court on the ground that while making the interim arrangement for equal sharing of standby charges, reliance has been placed on the order of the State Government dated 22.3.2000, though the High Court itself has, in the earlier part of the judgment, held the said order to be without jurisdiction. Shri Chidambaram, learned senior counsel appearing for TPC, has, on the other hand, submitted that the order passed by the State Government on 19.1.1998, whereby BSES was directed to pay Rs. 3.5 crores out of the liability of Rs. 24.75 crores of TPC towards MSEB, was only a pro tem arrangement, as the order itself mentioned that this was subject to revision in tariff. Therefore, the said order has no legal sanctity and cannot bind TPC in any manner. He has also submitted that with effect from 1.4.1999 TPC has only paid half of the standby charges to MSEB and, therefore, the burden of the entire mount has not been passed on to the consumers. Shri Altaf Ahmad, Addl. Solicitor General, appearing for MSEB has submitted that the TPC owes a huge amount to MSEB and the interim arrangement made by the High Court should not be changed or altered in a manner which may prejudicially affect the interest of MSEB. 26. An interim arrangement is normally made on a prima facie consideration of the matter and on broad principles without examining the matter in depth. The matter has been remitted to the Commission by the High Court by the judgment and order dated 3.6.2003 and a period of nearly three and a half months has already elapsed. Regulation 101 of the Central Electricity Regulatory Commission provides that the Commission may normally dispose of the petitions finally within six months of admission. The State Commissions are also expected to follow this time limit for disposal of petitions. Since the order made by the High Court is only by way of interim arrangement of the Commission is expected to decide the disputes finally within a short period, we do not consider it proper to interfere with the order made by the High court in this regard. After the decision of the Commission, the equities can be adjusted and the excess amount paid by any party can be refunded to it along with appropriate interest or can be adjusted in future bills. | 0[ds]is not possible to accept the contention of Shri Nariman that the State Government had the authority or jurisdiction on 22.3.2000 to determine or quantify the charges which BSES had to pay to TPC under the terms of the license granted to the former as this was subsequent to the formation of the Maharashtra Electricity Regulatoryour opinion, the contention raised has no substance. The legal position has undergone a complete change with the enforcement of the Electricity Regulatory Commissions Act, 1998. In view of Section 29 of the Act, the tariff for intra-State transmission of electricity and tariff for supply for electricity in wholesale, bulk or retail has to be determined by the Electricity Regulatory Commission of the State and a licensee cannot by its unilateral action enhance the charges. The provisions of the Act have an overriding effect by virtue of section 29 of the Act and, therefore any provisions of electricity (supply) Act, 1948, which are inconsistent with the Act would cease to apply and consequently the provisions of Sixth Schedule of the said Act can have no application now. The Sixth Schedule has been made by virtue of Section 57 and 57A of the Electricity (Supply) Act, 1948 and Section 57A contemplates constitution of a Rating Committee by the State Government to examinecharges for the supply of electricity. Section 29(6) of the Act specifically lays down that notwithstanding anything contained in Section 57A and 57B of the Electricity (Supply) Act, 1948, no Rating Committee shall be constituted after the date of the commencement of the Act. The effect of Section 29 and Regulations framed thereunder is that it is no longer open to a licensee or utility to unilaterally increase the tariff. The tariff can be enhanced only after approval of the Commission and charging of an enhanced tariff which has not been approved by the Commission will amount to commission of an offence. Therefore, the notice to enhance the charges given by TPC, which was subsequent to the enforcement of the Act, can have no legal effect.20. Shri Nariman has also submitted that even assuming that the standby charges are a matter relating to tariff as the same are passed on to the consumers, but the sharing of standby charges between TPC and BSES is not a matter relating to determination of tariff and, therefore, the Commission can have no jurisdiction to enter into such an exercise under Section 22 of the Act. The submission proceeds on an assumption that the dispute relates to sharing of standbyprocedure adopted by the Commission was not fair and proper inasmuch as the Chairman did not participate in the meetings which other two members had with the Consultants, whereunder a formula was devised. Under Regulation 21, the quorum for proceedings before the Commission shall be three. In these circumstances, the High Court was perfectly justified in remitting the matter to the Commission for de novo consideration and no exception can be taken to such a course of action.25. BSES is aggrieved only against the interim arrangement made by the High Court, whereby it has been directed to pay 50 per cent of the standby charges that are payable by TPC to MSEB for its standby facility of 550 MVA.BSES cannot be saddled with liability to pay half of the amount only on the ground that it has been provided with a standby facility of 275 MVA which is half of the standby facility provided by MSEB to TPC.An interim arrangement is normally made on a prima facie consideration of the matter and on broad principles without examining the matter in depth. The matter has been remitted to the Commission by the High Court by the judgment and order dated 3.6.2003 and a period of nearly three and a half months has already elapsed. Regulation 101 of the Central Electricity Regulatory Commission provides that the Commission may normally dispose of the petitions finally within six months of admission. The State Commissions are also expected to follow this time limit for disposal of petitions. Since the order made by the High Court is only by way of interim arrangement of the Commission is expected to decide the disputes finally within a short period, we do not consider it proper to interfere with the order made by the High court in this regard. After the decision of the Commission, the equities can be adjusted and the excess amount paid by any party can be refunded to it along with appropriate interest or can be adjusted in future | 0 | 8,011 | 809 | ### 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:
it had appointed consultants. Two members of the Commission had several meetings with the consultants and thereafter the formula was worked out. But the Chairman of the Commission was not present in these meetings. In his dissenting order of Chairman has recorded as under: Para 60. I have had the opportunity to peruse in detail the draft of an order approved and circulated by my colleagues in the Commission, and I am appending a separate dissenting note, in view of my disagreement with them in regard to their calculations. Para 63. As a reflected in paragraph 50 of the order of my colleagues, the order itself is based on the report of the Consultants and the calculations shown in their report. In this behalf, I understand that my colleagues have had several meetings with the consultants and it is on the basis of the working that has been provided by my colleagues that the report has been compiled. .......... Para 64. I am afraid that I was not informed of any of the meetings that my colleagues had with the Consultants, nor was I advised of any minutes of the said meetings till the draft order was circulated. In the circumstances, since the BSES share that was purported to have been communicated by the Commission, it cannot be deemed to be or considered to be a communication made by the Commission, unless the communication was considered by all the Members of the Commission. It would tantamount to only two of the Members taking upon themselves the liberty to communicate the same." 24. The facts mentioned above clearly show that the procedure adopted by the Commission was not fair and proper inasmuch as the Chairman did not participate in the meetings which other two members had with the Consultants, whereunder a formula was devised. Under Regulation 21, the quorum for proceedings before the Commission shall be three. In these circumstances, the High Court was perfectly justified in remitting the matter to the Commission for de novo consideration and no exception can be taken to such a course of action.25. BSES is aggrieved only against the interim arrangement made by the High Court, whereby it has been directed to pay 50 per cent of the standby charges that are payable by TPC to MSEB for its standby facility of 550 MVA. Shri Kapil Sibal, learned senior counsel for BSES, has submitted that the State Government had, on the basis of the recommendation made by the Committee, passed an order on 19.1.1998 directing BSES to pay Rs. 3.5 crores per month to TPC when the liability of TPC to MSEB was Rs. 24.75 crores per month. This shows that the State Government did not apportion the liability of BSES as half of that of TPC. He has also submitted that TPC sells 35 per cent of the power generated by it to BSES and consequently a portion of this burden of Rs. 24,75 crores which TPC is liable to pay to MSEB is passed on by it to the consumers of BSES. Therefore, BSES cannot be saddled with liability to pay half of the amount only on the ground that it has been provided with a standby facility of 275 MVA which is half of the standby facility provided by MSEB to TPC. Learned counsel has also submitted that at best there can be some kind of a sharing on the amount which TPC has to pay to MSEB over and above Rs. 24.75 crores but up to the extent of the aforesaid amount the liability of BSES cannot exceed Rs. 3.5 crores. Shri Sibal has also assailed the order of the High Court on the ground that while making the interim arrangement for equal sharing of standby charges, reliance has been placed on the order of the State Government dated 22.3.2000, though the High Court itself has, in the earlier part of the judgment, held the said order to be without jurisdiction. Shri Chidambaram, learned senior counsel appearing for TPC, has, on the other hand, submitted that the order passed by the State Government on 19.1.1998, whereby BSES was directed to pay Rs. 3.5 crores out of the liability of Rs. 24.75 crores of TPC towards MSEB, was only a pro tem arrangement, as the order itself mentioned that this was subject to revision in tariff. Therefore, the said order has no legal sanctity and cannot bind TPC in any manner. He has also submitted that with effect from 1.4.1999 TPC has only paid half of the standby charges to MSEB and, therefore, the burden of the entire mount has not been passed on to the consumers. Shri Altaf Ahmad, Addl. Solicitor General, appearing for MSEB has submitted that the TPC owes a huge amount to MSEB and the interim arrangement made by the High Court should not be changed or altered in a manner which may prejudicially affect the interest of MSEB. 26. An interim arrangement is normally made on a prima facie consideration of the matter and on broad principles without examining the matter in depth. The matter has been remitted to the Commission by the High Court by the judgment and order dated 3.6.2003 and a period of nearly three and a half months has already elapsed. Regulation 101 of the Central Electricity Regulatory Commission provides that the Commission may normally dispose of the petitions finally within six months of admission. The State Commissions are also expected to follow this time limit for disposal of petitions. Since the order made by the High Court is only by way of interim arrangement of the Commission is expected to decide the disputes finally within a short period, we do not consider it proper to interfere with the order made by the High court in this regard. After the decision of the Commission, the equities can be adjusted and the excess amount paid by any party can be refunded to it along with appropriate interest or can be adjusted in future bills.
### Response:
0
### Explanation:
is not possible to accept the contention of Shri Nariman that the State Government had the authority or jurisdiction on 22.3.2000 to determine or quantify the charges which BSES had to pay to TPC under the terms of the license granted to the former as this was subsequent to the formation of the Maharashtra Electricity Regulatoryour opinion, the contention raised has no substance. The legal position has undergone a complete change with the enforcement of the Electricity Regulatory Commissions Act, 1998. In view of Section 29 of the Act, the tariff for intra-State transmission of electricity and tariff for supply for electricity in wholesale, bulk or retail has to be determined by the Electricity Regulatory Commission of the State and a licensee cannot by its unilateral action enhance the charges. The provisions of the Act have an overriding effect by virtue of section 29 of the Act and, therefore any provisions of electricity (supply) Act, 1948, which are inconsistent with the Act would cease to apply and consequently the provisions of Sixth Schedule of the said Act can have no application now. The Sixth Schedule has been made by virtue of Section 57 and 57A of the Electricity (Supply) Act, 1948 and Section 57A contemplates constitution of a Rating Committee by the State Government to examinecharges for the supply of electricity. Section 29(6) of the Act specifically lays down that notwithstanding anything contained in Section 57A and 57B of the Electricity (Supply) Act, 1948, no Rating Committee shall be constituted after the date of the commencement of the Act. The effect of Section 29 and Regulations framed thereunder is that it is no longer open to a licensee or utility to unilaterally increase the tariff. The tariff can be enhanced only after approval of the Commission and charging of an enhanced tariff which has not been approved by the Commission will amount to commission of an offence. Therefore, the notice to enhance the charges given by TPC, which was subsequent to the enforcement of the Act, can have no legal effect.20. Shri Nariman has also submitted that even assuming that the standby charges are a matter relating to tariff as the same are passed on to the consumers, but the sharing of standby charges between TPC and BSES is not a matter relating to determination of tariff and, therefore, the Commission can have no jurisdiction to enter into such an exercise under Section 22 of the Act. The submission proceeds on an assumption that the dispute relates to sharing of standbyprocedure adopted by the Commission was not fair and proper inasmuch as the Chairman did not participate in the meetings which other two members had with the Consultants, whereunder a formula was devised. Under Regulation 21, the quorum for proceedings before the Commission shall be three. In these circumstances, the High Court was perfectly justified in remitting the matter to the Commission for de novo consideration and no exception can be taken to such a course of action.25. BSES is aggrieved only against the interim arrangement made by the High Court, whereby it has been directed to pay 50 per cent of the standby charges that are payable by TPC to MSEB for its standby facility of 550 MVA.BSES cannot be saddled with liability to pay half of the amount only on the ground that it has been provided with a standby facility of 275 MVA which is half of the standby facility provided by MSEB to TPC.An interim arrangement is normally made on a prima facie consideration of the matter and on broad principles without examining the matter in depth. The matter has been remitted to the Commission by the High Court by the judgment and order dated 3.6.2003 and a period of nearly three and a half months has already elapsed. Regulation 101 of the Central Electricity Regulatory Commission provides that the Commission may normally dispose of the petitions finally within six months of admission. The State Commissions are also expected to follow this time limit for disposal of petitions. Since the order made by the High Court is only by way of interim arrangement of the Commission is expected to decide the disputes finally within a short period, we do not consider it proper to interfere with the order made by the High court in this regard. After the decision of the Commission, the equities can be adjusted and the excess amount paid by any party can be refunded to it along with appropriate interest or can be adjusted in future
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Dr. Astha Goel and Ors Vs. The Medical Counselling Committee & Ors | seats falling vacant will have to be undertaken. In that process, it will become endless until all the seats under the all-India quota are filled up. That is not the object of the Scheme formulated by this Court. The object was to achieve a broad-based equality as indicated by us at the outset and we do not think that any steps have to be taken for altering the Scheme. We have taken identical view in the decision in Neelu Arora v. Union of India [(2003) 3 SCC 366] and connected matters disposed of on 24-1- 2003. Moreover, this Court in Medical Council of India v. Madhu Singh [(2002) 7 SCC 258] has taken the view that there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education. Even if seats are unfilled that cannot be a ground for making mid-session admissions and there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year. If these aspects are borne in mind, we do not think any reliefs as sought for by the petitioners can be granted under these petitions. These writ petitions shall stand dismissed. 10.3 In the case of Education Promotion Society for India and Anr. (supra), the writ petitioners like the petitioners in the present case prayed for extension of time schedule and prayed for the additional counselling. This Court negated the same. This Court also took the note of the fact that every year large number of non-clinical seats remain vacant because many graduate doctors do not want to do postgraduation in non-clinical subjects. Thereafter, it is observed and held that merely because the seats are lying vacant, is not a ground to grant extension of time and grant further opportunity to fill up vacant seats. It is observed that the schedule must be followed. While holding so, it is observed in paragraph 6 as under:- 6. In this case the petitioners want a general extension of time not on account of any particular difficulty faced by any individual college or university but generally on the ground that a large number of seats for the PG courses are lying vacant. It is stated that more than 1000 seats are lying vacant. In the affidavit filed by the UoI it is mentioned that as far as deemed universities are concerned there are 603 seats lying vacant. However, it is important to note that out of 603 seats lying vacant only 31 are in clinical subjects and the vast majority (572) that is almost 95% of the seats are lying vacant in non-clinical subjects. There is no material on record to show as to what is the situation with regard to the remaining 400-500 seats. This Court however can take judicial notice of the fact that every year large number of non-clinical seats remain vacant because many graduate doctors do not want to do postgraduation in non-clinical subjects. Merely because the seats are lying vacant, in our view, is not a ground to grant extension of time and grant further opportunity to fill up vacant seats. The schedule must be followed. If we permit violation of schedule and grant extension, we shall be opening a pandoras box and the whole purpose of fixing a time schedule and laying down a regime which strictly adheres to time schedule will be defeated. 10.4 Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case on hand and when the Medical Counselling Committee and the Union of India have to adhere to the time schedule for completing the admission process and when the current admission of NEET-PG-2021 is already behind time schedule and ever after conducting eight to nine rounds of counselling, still some seats, which are mainly non-clinical courses seats have remained vacant and thereafter when a conscious decision is taken by the Union Government/the Medical Counselling Committee, not to conduct a further Special Stray Round of counselling, it cannot be said that the same is arbitrary. The decision of the Union Government and the Medical Counselling Committee not to have Special Stray Round of counselling is in the interest of Medical Education and Public Health. There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health. 10.5 The process of admission and that too in the medical education cannot be endless. It must end at a particular point of time. The time schedule has to be adhered to, otherwise, ultimately, it may affect the medical education and the public health. 10.6 Apart from the fact that after closure of the last round of counselling on 07.05.2022, the entire software mechanism has been closed and the security deposit is refunded to the eligible candidates, it is to be noted that the admission process for NEET-PG-2022 has already begun, the results for the NEET-PG-2022 has been announced on 01.06.2022 and as per the time schedule, the counselling process is going to start in July, 2022. Therefore, if one additional Special Stray Round of counselling is conducted now, as prayed, in that case, it may affect the admission process for NEET-PG-2022. 10.7 At the cost of repetition, it is observed and held that even after eight to nine rounds of counselling, out of 40,000 seats, 1456 seats have remained vacant, out of which approximately, more than 1100 seats are non-clinical seats, which every year remain vacant, of which the judicial notice has been taken by this Court in the case of Education Promotion Society for India and Anr. (supra) 11. In view of the above and for the reasons stated above, the petitioners are not entitled to any relief of writ of Mandamus directing the respondents to conduct a Special Stray Round of counselling for filling up the remaining vacant seats of NEET-PG-2021. Granting of such relief now may affect the medical education and ultimately the public health as observed hereinabove. | 0[ds]10. At the outset, it is required to be noted that in the present case, the dispute is with respect to the NEET-PG-2021 and the time schedule for the approved counselling has been fixed pursuant to the direction issued by this Court and/or approved by this Court. Ordinarily, the first round of counselling in PG courses begins in the month of March of every academic year and subsequently the academic session begins from the month of May of every academic year. However, NEET-PG-2021 examination was delayed due to the third wave of COVID-19 pandemic and various litigations across the nation implementing the 27% OBC reservation in AIQ seats.10.1 At this stage, it is required to be noted that as per the earlier counselling policy, only two rounds of counselling were being held for All India Quota seats and State Quotas. The modified scheme of counselling for Academic Year 2021-2022 and onwards was submitted before this Court in Special Leave Petition (C) No.10487 of 2021 and this Court approved the same. As per the modified scheme of counselling, this time four rounds of counselling have been undertaken for All India Quota seats as well as States Quotas each. That thereafter one another round of counselling was conducted pursuant to the subsequent order passed by this Court, as approximately 146 seats were added. The NEET-PG-2021 counselling commenced on 12.01.2022 and after completion of the four rounds of counselling for All India Quota seats and State Quotas (in all eight rounds of counselling), out of 40,000 seats, 1456 seats have remained vacant. It appears that out of 1456 seats approximately more than 1100 seats are with respect to the non-clinical courses and the remaining are with respect to the clinical courses and all the seats are with respect to the private institutions. The respective petitioners are claiming admission on the remaining vacant seats and have prayed to direct the respondents to conduct a Special Stray Round of counselling. The main submission on behalf of the petitioners, as noted hereinabove, is that as large number of seats have remained vacant, the same be filled in by conducting additional/Special Stray Round of counselling for the seats remaining vacant, which are mostly non-clinical courses, which remained even after eight or nine rounds of counselling. The students cannot still pray for admission on those seats remaining vacant after approximately one year of academic session and remaining vacant after eight or nine rounds of counselling.10.2 At this stage, the decisions of this Court in the case of Supreet Batra and Ors. (supra) and Education Promotion Society for India and Anr. (supra) are required to be referred to.In the case of Supreet Batra and Ors. (supra), it is observed and held that even if some seats remain vacant, the students cannot be admitted mid-term. In paragraph 7, it is observed and held as under:-7. When a detailed scheme has been framed through orders of this Court and the manner in which it has to be worked out is also indicated therein, we do not think that if in a particular year there is any shortfall or a certain number of seats are not filled up, the same should be done by adopting one more round of counselling because there is no scope for the third round of counselling under the Scheme. It would not be advisable to go on altering the Scheme as and when seats are vacant. What is to be borne in mind is that broad equality will have to be achieved and not that it should result in any mathematical exactitude. Out of about 1600 seats, if 200 seats are not filled up for various reasons and such not- filled-up seats were much less in the earlier years, we do not think it should result in the third round of counselling. If that process is to be adopted then there will be again vacancies and further filling up of the seats falling vacant will have to be undertaken. In that process, it will become endless until all the seats under the all-India quota are filled up. That is not the object of the Scheme formulated by this Court. The object was to achieve a broad-based equality as indicated by us at the outset and we do not think that any steps have to be taken for altering the Scheme. We have taken identical view in the decision in Neelu Arora v. Union of India [(2003) 3 SCC 366] and connected matters disposed of on 24-1- 2003. Moreover, this Court in Medical Council of India v. Madhu Singh [(2002) 7 SCC 258] has taken the view that there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education. Even if seats are unfilled that cannot be a ground for making mid-session admissions and there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year. If these aspects are borne in mind, we do not think any reliefs as sought for by the petitioners can be granted under these petitions. These writ petitions shall stand dismissed.10.3 In the case of Education Promotion Society for India and Anr. (supra), the writ petitioners like the petitioners in the present case prayed for extension of time schedule and prayed for the additional counselling. This Court negated the same. This Court also took the note of the fact that every year large number of non-clinical seats remain vacant because many graduate doctors do not want to do postgraduation in non-clinical subjects. Thereafter, it is observed and held that merely because the seats are lying vacant, is not a ground to grant extension of time and grant further opportunity to fill up vacant seats. It is observed that the schedule must be followed. While holding so, it is observed in paragraph 6 as under:-6. In this case the petitioners want a general extension of time not on account of any particular difficulty faced by any individual college or university but generally on the ground that a large number of seats for the PG courses are lying vacant. It is stated that more than 1000 seats are lying vacant. In the affidavit filed by the UoI it is mentioned that as far as deemed universities are concerned there are 603 seats lying vacant. However, it is important to note that out of 603 seats lying vacant only 31 are in clinical subjects and the vast majority (572) that is almost 95% of the seats are lying vacant in non-clinical subjects. There is no material on record to show as to what is the situation with regard to the remaining 400-500 seats. This Court however can take judicial notice of the fact that every year large number of non-clinical seats remain vacant because many graduate doctors do not want to do postgraduation in non-clinical subjects. Merely because the seats are lying vacant, in our view, is not a ground to grant extension of time and grant further opportunity to fill up vacant seats. The schedule must be followed. If we permit violation of schedule and grant extension, we shall be opening a pandoras box and the whole purpose of fixing a time schedule and laying down a regime which strictly adheres to time schedule will be defeated.10.4 Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case on hand and when the Medical Counselling Committee and the Union of India have to adhere to the time schedule for completing the admission process and when the current admission of NEET-PG-2021 is already behind time schedule and ever after conducting eight to nine rounds of counselling, still some seats, which are mainly non-clinical courses seats have remained vacant and thereafter when a conscious decision is taken by the Union Government/the Medical Counselling Committee, not to conduct a further Special Stray Round of counselling, it cannot be said that the same is arbitrary. The decision of the Union Government and the Medical Counselling Committee not to have Special Stray Round of counselling is in the interest of Medical Education and Public Health. There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health.10.5 The process of admission and that too in the medical education cannot be endless. It must end at a particular point of time. The time schedule has to be adhered to, otherwise, ultimately, it may affect the medical education and the public health.10.6 Apart from the fact that after closure of the last round of counselling on 07.05.2022, the entire software mechanism has been closed and the security deposit is refunded to the eligible candidates, it is to be noted that the admission process for NEET-PG-2022 has already begun, the results for the NEET-PG-2022 has been announced on 01.06.2022 and as per the time schedule, the counselling process is going to start in July, 2022. Therefore, if one additional Special Stray Round of counselling is conducted now, as prayed, in that case, it may affect the admission process for NEET-PG-2022.10.7 At the cost of repetition, it is observed and held that even after eight to nine rounds of counselling, out of 40,000 seats, 1456 seats have remained vacant, out of which approximately, more than 1100 seats are non-clinical seats, which every year remain vacant, of which the judicial notice has been taken by this Court in the case of Education Promotion Society for India and Anr. (supra)11. In view of the above and for the reasons stated above, the petitioners are not entitled to any relief of writ of Mandamus directing the respondents to conduct a Special Stray Round of counselling for filling up the remaining vacant seats of NEET-PG-2021. Granting of such relief now may affect the medical education and ultimately the public health as observed hereinabove. | 0 | 4,135 | 1,800 | ### Instruction:
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seats falling vacant will have to be undertaken. In that process, it will become endless until all the seats under the all-India quota are filled up. That is not the object of the Scheme formulated by this Court. The object was to achieve a broad-based equality as indicated by us at the outset and we do not think that any steps have to be taken for altering the Scheme. We have taken identical view in the decision in Neelu Arora v. Union of India [(2003) 3 SCC 366] and connected matters disposed of on 24-1- 2003. Moreover, this Court in Medical Council of India v. Madhu Singh [(2002) 7 SCC 258] has taken the view that there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education. Even if seats are unfilled that cannot be a ground for making mid-session admissions and there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year. If these aspects are borne in mind, we do not think any reliefs as sought for by the petitioners can be granted under these petitions. These writ petitions shall stand dismissed. 10.3 In the case of Education Promotion Society for India and Anr. (supra), the writ petitioners like the petitioners in the present case prayed for extension of time schedule and prayed for the additional counselling. This Court negated the same. This Court also took the note of the fact that every year large number of non-clinical seats remain vacant because many graduate doctors do not want to do postgraduation in non-clinical subjects. Thereafter, it is observed and held that merely because the seats are lying vacant, is not a ground to grant extension of time and grant further opportunity to fill up vacant seats. It is observed that the schedule must be followed. While holding so, it is observed in paragraph 6 as under:- 6. In this case the petitioners want a general extension of time not on account of any particular difficulty faced by any individual college or university but generally on the ground that a large number of seats for the PG courses are lying vacant. It is stated that more than 1000 seats are lying vacant. In the affidavit filed by the UoI it is mentioned that as far as deemed universities are concerned there are 603 seats lying vacant. However, it is important to note that out of 603 seats lying vacant only 31 are in clinical subjects and the vast majority (572) that is almost 95% of the seats are lying vacant in non-clinical subjects. There is no material on record to show as to what is the situation with regard to the remaining 400-500 seats. This Court however can take judicial notice of the fact that every year large number of non-clinical seats remain vacant because many graduate doctors do not want to do postgraduation in non-clinical subjects. Merely because the seats are lying vacant, in our view, is not a ground to grant extension of time and grant further opportunity to fill up vacant seats. The schedule must be followed. If we permit violation of schedule and grant extension, we shall be opening a pandoras box and the whole purpose of fixing a time schedule and laying down a regime which strictly adheres to time schedule will be defeated. 10.4 Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case on hand and when the Medical Counselling Committee and the Union of India have to adhere to the time schedule for completing the admission process and when the current admission of NEET-PG-2021 is already behind time schedule and ever after conducting eight to nine rounds of counselling, still some seats, which are mainly non-clinical courses seats have remained vacant and thereafter when a conscious decision is taken by the Union Government/the Medical Counselling Committee, not to conduct a further Special Stray Round of counselling, it cannot be said that the same is arbitrary. The decision of the Union Government and the Medical Counselling Committee not to have Special Stray Round of counselling is in the interest of Medical Education and Public Health. There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health. 10.5 The process of admission and that too in the medical education cannot be endless. It must end at a particular point of time. The time schedule has to be adhered to, otherwise, ultimately, it may affect the medical education and the public health. 10.6 Apart from the fact that after closure of the last round of counselling on 07.05.2022, the entire software mechanism has been closed and the security deposit is refunded to the eligible candidates, it is to be noted that the admission process for NEET-PG-2022 has already begun, the results for the NEET-PG-2022 has been announced on 01.06.2022 and as per the time schedule, the counselling process is going to start in July, 2022. Therefore, if one additional Special Stray Round of counselling is conducted now, as prayed, in that case, it may affect the admission process for NEET-PG-2022. 10.7 At the cost of repetition, it is observed and held that even after eight to nine rounds of counselling, out of 40,000 seats, 1456 seats have remained vacant, out of which approximately, more than 1100 seats are non-clinical seats, which every year remain vacant, of which the judicial notice has been taken by this Court in the case of Education Promotion Society for India and Anr. (supra) 11. In view of the above and for the reasons stated above, the petitioners are not entitled to any relief of writ of Mandamus directing the respondents to conduct a Special Stray Round of counselling for filling up the remaining vacant seats of NEET-PG-2021. Granting of such relief now may affect the medical education and ultimately the public health as observed hereinabove.
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further filling up of the seats falling vacant will have to be undertaken. In that process, it will become endless until all the seats under the all-India quota are filled up. That is not the object of the Scheme formulated by this Court. The object was to achieve a broad-based equality as indicated by us at the outset and we do not think that any steps have to be taken for altering the Scheme. We have taken identical view in the decision in Neelu Arora v. Union of India [(2003) 3 SCC 366] and connected matters disposed of on 24-1- 2003. Moreover, this Court in Medical Council of India v. Madhu Singh [(2002) 7 SCC 258] has taken the view that there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education. Even if seats are unfilled that cannot be a ground for making mid-session admissions and there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year. If these aspects are borne in mind, we do not think any reliefs as sought for by the petitioners can be granted under these petitions. These writ petitions shall stand dismissed.10.3 In the case of Education Promotion Society for India and Anr. (supra), the writ petitioners like the petitioners in the present case prayed for extension of time schedule and prayed for the additional counselling. This Court negated the same. This Court also took the note of the fact that every year large number of non-clinical seats remain vacant because many graduate doctors do not want to do postgraduation in non-clinical subjects. Thereafter, it is observed and held that merely because the seats are lying vacant, is not a ground to grant extension of time and grant further opportunity to fill up vacant seats. It is observed that the schedule must be followed. While holding so, it is observed in paragraph 6 as under:-6. In this case the petitioners want a general extension of time not on account of any particular difficulty faced by any individual college or university but generally on the ground that a large number of seats for the PG courses are lying vacant. It is stated that more than 1000 seats are lying vacant. In the affidavit filed by the UoI it is mentioned that as far as deemed universities are concerned there are 603 seats lying vacant. However, it is important to note that out of 603 seats lying vacant only 31 are in clinical subjects and the vast majority (572) that is almost 95% of the seats are lying vacant in non-clinical subjects. There is no material on record to show as to what is the situation with regard to the remaining 400-500 seats. This Court however can take judicial notice of the fact that every year large number of non-clinical seats remain vacant because many graduate doctors do not want to do postgraduation in non-clinical subjects. Merely because the seats are lying vacant, in our view, is not a ground to grant extension of time and grant further opportunity to fill up vacant seats. The schedule must be followed. If we permit violation of schedule and grant extension, we shall be opening a pandoras box and the whole purpose of fixing a time schedule and laying down a regime which strictly adheres to time schedule will be defeated.10.4 Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case on hand and when the Medical Counselling Committee and the Union of India have to adhere to the time schedule for completing the admission process and when the current admission of NEET-PG-2021 is already behind time schedule and ever after conducting eight to nine rounds of counselling, still some seats, which are mainly non-clinical courses seats have remained vacant and thereafter when a conscious decision is taken by the Union Government/the Medical Counselling Committee, not to conduct a further Special Stray Round of counselling, it cannot be said that the same is arbitrary. The decision of the Union Government and the Medical Counselling Committee not to have Special Stray Round of counselling is in the interest of Medical Education and Public Health. There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health.10.5 The process of admission and that too in the medical education cannot be endless. It must end at a particular point of time. The time schedule has to be adhered to, otherwise, ultimately, it may affect the medical education and the public health.10.6 Apart from the fact that after closure of the last round of counselling on 07.05.2022, the entire software mechanism has been closed and the security deposit is refunded to the eligible candidates, it is to be noted that the admission process for NEET-PG-2022 has already begun, the results for the NEET-PG-2022 has been announced on 01.06.2022 and as per the time schedule, the counselling process is going to start in July, 2022. Therefore, if one additional Special Stray Round of counselling is conducted now, as prayed, in that case, it may affect the admission process for NEET-PG-2022.10.7 At the cost of repetition, it is observed and held that even after eight to nine rounds of counselling, out of 40,000 seats, 1456 seats have remained vacant, out of which approximately, more than 1100 seats are non-clinical seats, which every year remain vacant, of which the judicial notice has been taken by this Court in the case of Education Promotion Society for India and Anr. (supra)11. In view of the above and for the reasons stated above, the petitioners are not entitled to any relief of writ of Mandamus directing the respondents to conduct a Special Stray Round of counselling for filling up the remaining vacant seats of NEET-PG-2021. Granting of such relief now may affect the medical education and ultimately the public health as observed hereinabove.
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Sahara India Real Estate Corp.Ltd Vs. Securities & Exch.Board Of India | formal prospectus (or RHP). Thus viewed, according to learned counsel, the information memorandum would inevitably precede the issuance of a prospectus (or RHP). Herein, however, the information memorandum was circulated well after the issuance of the RHP, which clearly indicates that the information memorandum had been circulated by the SIRECL, not for the purposes for which it is meant, but for some extraneous consideration. It is submitted, that the appellant-companies had apparently taken upon themselves to tread a path different from the one stipulated under the Companies Act. 113. On considering the submission advanced at the hands of the learned counsel representing SEBI, as has been noticed in the foregoing paragraph, it is clear that an information memorandum must inevitably precede the issuance of a prospectus (including a RHP). One must agree with the contention of the learned counsel, that there was no justification whatsoever for circulating an information memorandum after SIRECL had already issued a RHP. The procedure adopted by the appellant-companies is obviously topsy turvy and contrary to the recognized norms in company affairs. All this makes the entire approach of the appellant-companies calculated and crafty. It is clearly apparent, that the appellant- companies had clearly taken upon themselves to tread a path different from the mandate of law delineated under the Companies Act. There can, therefore, be no doubt about the inferences drawn by the learned counsel representing the SEBI even in so far as the second perspective is concerned. The third perspective: 114. Learned counsel representing SEBI also invited our attention to the attempt at the hands of the appellant-companies in withholding information from the SEBI. Details in this behalf have already been recorded under the first perspective, while debating the issue whether the invitation to subscribe to the OFCDs issued by SIRECL and SHICL was by way of private placement. The aforesaid details are accordingly not being narrated again for reasons of brevity. I shall therefore, merely summarise the sequence of facts relevant for determining the willingness of the appellant- companies to disclose information sought by the SEBI. In this behalf, it is clear that the appellant-companies did not disclose information to SEBI despite its repeated requests. Not even, in the response to the summons (dated 30.8.2010 and 23.9.2010) issued by the SEBI containing threats of taking penal action and initiation of criminal prosecution. All this, failed to prompt the appellant-companies to divulge the facts solicited. Thereafter on 24.11.2010 the SEBI (FTM) passed far reaching directions against the appellant-companies. The Lucknow Bench of the High Court of Judicature at Allahabad on 13.12.2010 first stayed (whereby the SEBI (FTM) order dated 24.11.2010 was stayed) and thereafter, vacated the interim order passed in favour of the appellant-companies. While vacating the aforesaid order the High Court took express note of the fact, that the appellant-companies were not cooperating with the inquiry being conducted by the SEBI. The High Court felt, that the appellant-companies had thereby violated the assurance given to the High Court. The effort made by the appellant-companies to resurrect the earlier interim order (dated 13.12.2010) through an application filed before the High Court was rejected (on 29.11.2011), because the High Court was of the considered view, that the appellant-companies had not approached the High Court with clean hands, and the intention of the appellant-companies was not bona fide. Consequent upon directions issued by this Court, SEBI issued a second show cause notice (on 20.5.2011). The appellant-companies adopted the same stubborn position. They contested the show cause notice on legal pleas, and calculatingly did not disclose the information sought. The SEBI (FTM) by an order dated 23.6.2011 held, that the appellant-companies were in violation of law. The said order dated 23.6.2011 was assailed by the appellant-companies before the SAT. In the appeals preferred before the SAT, the appellant-companies remained steadfast in their approach by adopting the same course, as they had chosen before the SEBI (FTM). For the first time before this Court, in their challenge to the SAT order dated 26.8.2011 (whereby the SEBI (FTM) order dated 23.6.2011 was upheld), some details were disclosed by SIRECL. On an analysis the material placed before this Court, I have recorded hereinabove, that the same seemed to be unrealistic, and may well be, fictitious, concocted and made up. Independently of the interaction of the appellant-companies with SEBI, from letters written by SIRECL in January, 2011, it was concluded by the SEBI (FTM), that the company was seeking professional services to collect and compile data pertaining to the OFCDs issued by it. Since the subscription to the OFCDs under reference commenced in March, 2008, the same raised suspicious about the genuineness and the bonafides of the appellant- companies. Surely the suspicion was well placed. This itself is sufficient to conclude, that the whole affair was doubtful, dubious and questionable. The consequence thereof, if correct, would be shocking. 115. There can therefore be no hesitation in accepting, that on all three perspectives raised at the behest of the SEBI, to demonstrate that there was a pre-planned attempt at the hands of the SIRECL and SHICL, to bypass the regulatory and administrative authority of the SEBI, does seem to be real. One can only hope, it is not so. But having so concluded, it is essential to express, that there may be no real subscribers for the OFCDs issued by the SIRECL or SHICL. Or alternatively, there may be an intermix of real and fictitious subscribers. The issue that would emerge in the aforesaid situation (which one can only hope, is untrue) would be, how the subscription amount collected, should be dealt with, specially when the impugned orders passed by the SEBI, SAT are to be affirmed. Even though I hope that all the subscribers are genuine, and so also, the subscription amount, it would be necessary to modify the operative part of the order issued by the SEBI which came to be endorsed by the SAT, so that the purpose of law is not only satisfied but is also enforced. ORDER | 1[ds]68. All sections falling within Sections 55 to 58 of the Companies Act will fall under those sections. So far as Section 55A is concerned, it is the very Section which deals with powers of SEBI, Central Government, Tribunal, Company Law Board, Registrar of Companies etc. Reference to Sections 59 to 81 indicated that Parliament intended to include all sections in that range which takes in Sections 60B, 62, 63, 67, 73 etc. of the Companies Act. Section 67 is also a section of considerable importance because the expression offer of shares or debentures to the public finds a place in various sections of the Act, as well as the articles of a company. Further, the first proviso added to Section 67(3) vide the Companies (Amendment) Act, 2000 w.e.f. 13.12.2000 is also of considerable bearing in determining whether a public company offering shares or debentures to the public has to list its securities on a recognized stock exchange. Expression to clearly has a meaning i.e. everything in between or destination of an action. The meaning of the expression to came up for consideration before this Court in Hindustan Lever Ltd. v. Ashok Vishnu Kate and Ors. (1995) 6 SCC 326 . Further, the specific inclusion of Sections 68A, 77A and 80A in a bracket, would not mean the exclusion of all sections between in Sections 59 to 81 with suffix A or AA or B. The word including used in the parenthetical clause is only to give emphasis to those sections.Watson in Dilworth v. Commissioner of Stamps (1999) AC 99said that the word include is very generally used in interpretation clause in order to enlarge the meaning of words or phrases occurring in the body of the Statute and, when it is so used, these words and phrases must be construed as comprehending, not only things they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. In Delhi Judicial Services Association v. State of Gujarat AIR 1991 SC 2176 , the expression used in Article 129 of the Constitution i.e. including the power to punish for contempt of itself which was interpreted by the Court stating that the expression including has been interpreted by Courts to extend and widen the scope of power. Giving emphasis to Sections 68A, 77A and 80A does not mean the exclusion of all such similar sections69. Legislature, in its wisdom, thought some emphasis has to be given to Sections 68A, 77A and 80A because all those sections provide certain offences to be punishable with imprisonment. Further clue for that reasoning, we may get, if we examine the manner in which the Legislature has used succeeding sections. In Section 55A there is a specific reference to Section 108, not Sections 108A to I. So also Section 55A specifically refers to Section 109, not Sections 109A and B. Legislature wanted inclusion of Sections 108A to I, Section 109A etc., then it would have said Sections 108 to 110. Further, the Legislature never wanted the inclusion of Sections 117A to C, hence it used Section 117 alone, not Sections 116 to 122. If it has used so, then Sections 117A to C also would have been included. Legislature in that sequence wanted inclusion of Sections 206 and 206A, hence both the sections have been included. Hence, when the legislature has used the expression Sections 59 to 81, 60B which falls in between, stands included. Further, the entrustment of powers on SEBI, under Section 55A, is in addition to the then existing powers of SEBI under SEBI Act, 1992, which takes Sections 11, 11A and 11B as well70. Explanation has been added to Section 55A to harmonize and to clear up doubts and allay groundless apprehensions. In S. Sundaram Pillai & Ors. v. V.R. Pattabiraman & Ors. (1985) 1 SCC 591 , this Court has ruled that the purpose of the explanation is to clarify where there is any obscurity or vagueness in the main enactment and to make it consistent with the dominant object which it seems to serve. The main part of Section 55A confers jurisdiction on SEBI with regard to three categories i.e. issue of securities, transfer of securities and non- payment of dividend. The expression all other matters mentioned in the explanation would refer to powers other than the above mentioned categories. Further, it may also be remembered that the explanation does not take away the powers conferred on SEBI by other sections of the Companies Act. At the same time, matters relating to prospectus, statement in lieu of prospectus, return of allotment, issue of shares and redemption of irredeemable preference shares be exercised by the Central Government, Tribunal, Company Law Board, Registrars of Companies, as the case may be. Further, Section 60B(9) clearly indicates that upon closing of the offer of securities, a final prospectus has to be filed in the case of listed company with SEBI and Registrar, hence the explanation to Section 55A can never be constructed or interpreted to mean that SEBI has no power in relation to the prospectus and the issue of securities by an unlisted public company, if the securities are offered to more than forty nine persons71. I am, therefore, of the view that the mere fact that emphasis has been given to Sections 68A, 77A and 80A, does not mean the exclusion of Section 60B from Section 59 to 81. We, therefore, hold that, so far as the provisions enumerated in the opening portion of Section 55A of the Companies Act, so far as they relate to issue and transfer of securities and non-payment of dividend is concerned, SEBI has the power to administer in the case of listed public companies and in the case of those public companies which intend to get their securities listed on a recognized stock exchange in India. In any other case, i.e. rest of the matters, that is excluding matters relating to issue and transfer of securities and non-payment of dividend be administered by the Central Government in the case of listed public companies and those companies which intend to get their securities listed on any recognized stock exchange in India. Explanation to that section further clarifies the position so as to remove doubts, saying all powers relating to other matters including the matters relating to prospectus, statement in lieu of prospectus, return of allotment, issue of shares and redemption of irredeemable preference shares, should be exercised by the Central Government, Tribunal or the Registrar of Companies, as the case may be. Section 55A, therefore, makes it clear that SEBI has the power to administer the above mentioned select provisions of the Companies Act relating to matters specified therein. Contention raised by Saharas that without regulations being framed under Section 642(4) of the companies Act, SEBI cannot exercise powers of administration, is totally unfounded and is rejected81. I fail to see, if the investors were associated with Sahara Group, as declared, then where was the necessity of an Introducer and Introduction. If the offer was made only to persons associated, related or known to Sahara Group, then they could have furnished those details before the fact finding authorities. Further, in the IM, Saharas had stated that if the number of interested parties to the issue exceeds fifty they should approach the RoC to file RHPs as per Section 67(3) of the Companies Act, which clearly indicates that Saharas knew, by virtue of the first proviso to Section 67, if the number of persons exceeds fifty, then the same would be a public issue. Facts indicate that, through this dubious method, that SIRECL had approached more than thirty million investors, out of which 22.1 million have invested in the OFCDs and it had raised nearly 20,000 crores, for which it had utilized the services of its staff in 2900 branches/service centers and utilized the services of more than one million agents/representatives. Court can, in such circumstances, lift the veil to examine the conduct and method adopted by Saharas to defeat the various provisions of the Companies Act, already discussed, read with the provisions of the SEBI Act82. I, in the above facts and circumstances, fully endorse the findings recorded by SEBI (WTM) and SAT that the placement of OFCDs by Saharas was nothing but issue of debentures to the public, resultantly, those securities should have been listed on a recognized stock exchange90. I may, therefore, indicate, subject to what has been stated above, in India that any share or debenture issue beyond forty nine persons, would be a public issue attracting all the relevant provisions of the SEBI Act, regulations framed thereunder, the Companies Act, pertaining to the public issue. Facts clearly reveal that Saharas have issued securities to the public more than the threshold limit statutorily fixed under the first proviso to Section 67(3) and hence violated the listing provisions which may attract civil and criminal liabilities94. Listing is, therefore, a legal responsibility of the company which offers securities to the public, provided offers are made to more than 50 persons. In view of the clear statutory mandate, the contention raised, based on Rule 19 of the SCR Rules framed under the SCR Act, has no basis. Legal obligation flows the moment the company issues the prospectus expressing the intention to offer shares or debentures to the public, that is to make an application to the recognized stock exchange, so that it can deal with the securities. A company cannot be heard to contend that it has no such intention or idea to make an application to the stock exchange. Companys option, choice, election, interest or design does not matter, it is the conduct and action that matters and that is what the law demands. Law judges not what is in their minds but what they have said or written or done. LordDiplock in Gissing v. Gissing (1971) 1 AC, has said, As in so many branches of English Law, in which legal rights and obligations depend upon the intention of each party, the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that partys words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party.Simon in Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [1942] AC, opined that in some branches of law, intention may be understood to cover results which may reasonably flow from what is deliberately done, the principle being that a man is to be treated intending the reasonable consequences of his acts95. The maxim acta exterior indicant interiora secreta (external action reveals inner secrets) applies with all force in the case of Saharas, which I have already demonstrated on facts as well as on law. Conduct and actions of Saharas indicate their intention, we have to judge their so called intention from their subsequent conduct. Subsequent illegality shows that Saharas contemplated illegality. A persons inner intentions are to be read and understood from his acts and omissions. Whenever, in the application of an enactment, a persons state of mind is relevant, the above maxim comes into play. (Ref. Bennion on Statutory Interpretation, 5th Edn., p. 1104)96. We have to apply the various provisions of the Companies Act and SEBI Act and the rules and regulations framed thereunder to Saharas conduct and their inner intentions are to be understood from their acts and omissions, by applying the above maxim. Saharas acts and omissions have clearly violated the provisions of Section 73, their failure to list the securities offer to the public was, therefore, intentional and the plea that they did not want their securities listed, is not an answer, since they were legally bound to do so. The duty of listing flows from the act of issuing securities to the pubic, provided such offer is made to fifty or more than fifty persons. Any offering of securities to fifty or more is a public offering by virtue of Section 67(3) of the Companies Act, which the Saharas very well knew, their subsequent actions and conducts unquestionably reveal so98. The above discussion clearly indicates that from the years 1988 to 2000, private placement of preferential allotment could be made to fifty or more persons if the requirements of Clauses (a) and (b) of Section 67(3) are satisfied. However, after the amendment to the Companies Act, 1956 on 13.12.2000, every private placement made to fifty or more persons becomes an offer intended for the public and attracts the listing requirements under Section 73(1). Even those issues which satisfy Sections 67(3)(a) and (b) would be treated as an issue to the public if it is issued to fifty or more persons, as per the proviso to Section 67(3) and as per Section 73(1), an application for listing becomes mandatory and a legal requirement. Reading of the proviso to Section 67(3) and Section 73(1) conjointly indicates that any public company which intends to issue shares or debentures to fifty persons or more is legally obliged to make an application for listing its securities on a recognized stock exchange99. Saharas, in my view, have not followed any of those statutory requirements. On a combined reading of the proviso to Section 67(3) and Section 73(1), it is clear that the Saharas had made an offer of OFCDs to fifty persons or more, consequently, the requirement to make an application for listing became obligatory leading to a statutory mandate which they did not followUnlisted Public Companies (Preferential Allotment) Rules, 2003 and theUnlisted Public Companies (Preferential Allotment) Amendment Rules 2011101. I find that no such contention was seen urged either before SEBI or SAT, nor do I find any substance in that contention. 2003 Rules are not applicable to any offer of shares or debentures to more than 49 persons. 2003 Rules was framed by the Central Government in exercise of the powers conferred under Section 81(1A) read with Section 642 of the Companies Act to provide for rules applicable to the unlisted public companies. Section 81 of the Companies Act deals with further issue of securities and only gives pre-emptive rights to the existing shareholders of the company, so that subsequent offer of securities have to be offered to them as their rights. Section 81(1A), it may be noted, is only an exception to the said rule, that the further shares may be offered to any persons subject to passing a special resolution by the company in their general meeting. Section 81(1A) cannot, in any view, have an overriding effect on the provisions relating to public issue. Even if armed with a special resolution for any further issue of capital to person other than shareholders, it can only be subjected to the provisions of Section 67 of the Company Act, that is if the offer is made to fifty persons or more, then it will have to be treated as public issue and not a private placement. A public issue of securities will not become a preferential allotment on description of label. Proviso to Section 67(3) does not make any distinction between listed and unlisted public companies or between preferential or ordinary allotment. Even prior to the introduction of the proviso to Section 67(3), any issue of securities to the public required mandatory applications for listing to one or more stock exchanges. After insertion of the proviso to Section 67(3) in December 2000, private placement allowed under Section 67(3) was also restricted up to 49 persons. 2003 Rules apply only in the context of preferential allotment of unlisted companies, however, if the preferential allotment is a public issue, then 2003 Rules would not apply. 2003 Rules are only meant to regulate the issue of the shares and debentures by unlisted public companies and prevent the misuse of the private placement. Section 81(1A), as I have already indicated, says that a preferential allotment can be made by passing a special resolution which is an exception to the rules of rights issue, since that requires new shares or debentures to be offered to the existing members/holders on a pro rata basis. But when offer is made to more than 49 persons, then apart from compliance with Section 81(1A), other requirements regarding public issue have to be complied with. 2003 Rules, in my view, cannot override the provisions of Section 67(3) and Section 73. The definition of preferential allotment in 2011 Rules only made what was implicit in 2003, more explicit. In my view, both 2003 Rules and 2011 Rules are subordinate regulations and are to be read subject to the proviso to Section 67(3) and 73(1) and other related provisions105. I find that Saharas conveniently omitted the reference to SEBI in the declaration given in the prospectus. OFCDs were, therefore, issued by Saharas in contravention of the DIP Guidelines, ICDR 2009, notification dated 17.9.2002 and also overlooking the statutory requirements stipulated in Section 73(1) of the Companies Act112. OFCDs issued have the characteristics of shares and debentures and fall within the definition of Section 2(h) of SCR Act, which continue to remain debentures till they are converted. In other words, OFCDs issued by Saharas are debentures in presenti and become shares in futuro. Even if OFCDs are hybrid securities, as defined in Section 2(19A) of the Companies Act, they shall remain within the purview of the definition of securities in Section 2(h) of SCR Act. Further, it may be noted that Saharas have treated OFCDs only as debentures in the IM, RHP, application forms and also in their balance sheet. The terms Securities defined in the Companies Act has the same meaning as defined in the SCR Act, which would also cover the species of hybrid defined under Section 2(19A) of the Companies Act. Since the definition of securities under Section 2(45AA) of the Companies Act includes hybrids, SEBI has jurisdiction over hybrids like OFCDs issued by Saharas, since the expression securities has been specifically dealt with under Section 55A of the Companies ActSection 28(1)(b) makes it clear that the Act will not apply to the entitlement of the buyer, inherent in the convertible bond. Entitlement may be severable, but does not itself qualify as a security that can be administered by the SCR Act, unless it is issued in a detachable format. Therefore, the inapplicability of SCR Act, as contemplated in Section 28(1)(b), is not to the convertible bonds, but to the entitlement of a person to whom such share, warrant or convertible bond has been issued, to have shares at his option. The Act is, therefore, inapplicable only to the options or rights or entitlement that are attached to the bond/warrant and not to the bond/warrant itself. The expression insofar as it entitles the person clearly indicates that it was not intended to exclude convertible bonds as a class. Section 28(1)(b), therefore, clearly indicates that it is only the convertible bonds and share/warrant of the type referred to therein that are excluded from the applicability of the SCR Act and not debentures which are separate category of securities in the definition contained in Section 2(h) of SCR Act. Section 20 of SCR Act, which was omitted, by Securities Laws (Amendment) Act, 1995, with effect from 25.1.1995, stated that all options entered into after the commencement of the Act would be illegal. The introduction of Sections 28(1)(b) and 28(2) became necessary because of the provisions of Sections 13, 16 and 20. Section 20 was deleted in the year 1995, but SEBI notification No. 184 dated 1.3.2000 continued to prohibit options. Consequently, OFCDs issued by Saharas to the public cannot be excluded from the purview of listing requirements, any interpretation to the contrary would contravene the mandatory requirements contained in Section 73(1) and proviso to Section 67(3) of the Companies Act115. I have found that Saharas having failed to make application for listing on any of the recognized stock exchange, as provided under Section 73(1) of the Companies Act, become legally liable to refund the amount collected from the subscribers in pursuance to their RHPs, along with interest as provided under Section 73(2) of the Act. Rule 4D of the Companies (Central Government) General Rules and Forms 1956 prescribes the rates of interest for the purposes of sub-sections (2) and (2A) of Section 73, which shall be fifteen per cent per annum. Section 73(2) says that every company and every director of the company who is an officer in default, shall be jointly and severally liable to repay that money with interest at such rate, not less than four per cent and not more than fifteen per cent, as may be prescribed. The scope of the above mentioned provisions came up for consideration before this Court in Raymond Synthetics Ltd. & Ors. V. Union of India (supra), wherein the Court held that in a case where the company has not applied for listing on a stock exchange, the consequences will flow from the companys disobedience of the law, the liability to pay interest arises as from the date of receipt of the amounts, for the company ought not to have received any such amount in response to the prospectus. I am, therefore, of the view that since Saharas had violated the listing provisions and collected huge amounts from the public in disobedience of law, SEBI is justified in directing refund of the amount with interest116. I have found, in this case, that Saharas had not complied with the legal requirements of Section 56 and hence the second proviso to Section 56(3) may apply and it is also stated in sub-section (6) of Section 56 that the liability under the General Law has been excluded. Section 62 casts civil liability for mis-statement in prospectus and Section 63(1) speaks of criminal liability. Section 68 speaks of penalty for fraudulently inducing persons to invite, which also leads to imprisonment and fine. Section 68A prescribes punishment for violation of what is provided under Sections 68A(1)(a) and (b), with imprisonment for a term of five years. Section 73(3) also speaks of imposition of fine. Over and above the penal provisions, Section 628 of the Companies Act also proposes imprisonment and fine, for making false statements. Further, furnishing false evidence may also attract punishment with imprisonment for a term which may extend to seven years and also fine under Section 629 of the Companies Act. The provisions for imposing civil and criminal liability and refund of the amount with interest would indicate that, of late, economic offences in India like the one committed by Saharas be treated with an iron hand, or else we may land in another security market pandemoniumI, therefore, answer the questions of law raised as follows:a) SEBI has the powers to administer the provisions referred to in the opening part of Section 55A which relates to issue and transfer of securities and non-payment of dividend by public companies like Saharas, which have issued securities to fifty persons or more, though not listed on a recognized stock exchange, whether they intended to list their securities or notb) Saharas were legally obliged to file the final prospectus under Section 60B(9) with SEBI, failure to do so attracts criminal liabilityc) First proviso to Section 67(3) casts a legal obligation to list the securities on a recognized stock exchange, if the offer is made to fifty or more persons, which Saharas have violated which may attract the penal provisions contained in Section 68 of the Actd) Section 73 of the Act casts an obligation on a public company to apply for listing of its securities on a recognized stock exchange, once it invites subscription from fifty or more persons, which Saharas have violated and they have to refund the money collected to the investors with intereste) Saharas have violated the DIP Guidelines and ICDR 2009 and by not complying with the disclosure requirements and investor protection measures for public, and also violated Section 56 of the Companies Act which may attract penal provisionsf) 2003 Rules or the 2011 Rules cannot override the provisions of Section 67(3) and Section 73, being subordinate legislations, 2003 Rules are also not applilcable to any offer of shares or debentures to more than forty nine persons and are to be read subject to the proviso to Section 67(3) and Section 73(1) of the Companies Actg) OFCDs issued by Saharas have the characteristics of shares and debentures and fall within the definition of Section 2(h) of SCR Act. The definition of securities under Section 2(45AA) of the Companies Act includes hybrids and SEBI has jurisdiction over hybrids like OFCDs issued by Saharas, since the expression securities has been specifically dealt with under Section 55A of the Companies Acth) Section 28(1)(b) of the SCR Act indicates that it is only convertible bonds and share/warrant of the type referred to therein, which are excluded from the applicability of the SCR Act and not debentures, which are separate category of securities in the definition contained in Section 2(h) of SCR Act. Contention of Saharas that OFCDs issued by them are convertible bonds issued on the basis of the price agreed upon at the time of issue and, therefore, the provisions of SCR Act, would not apply, in view of Section 28(1)(b) cannot be sustainedi) SEBI can exercise its jurisdiction under Sections 11(1), 11(4), 11A(1)(b) and 11B of SEBI Act and Regulation 107 of ICDR 2009 over public companies who have issued shares or debentures to fifty or more, but not complied with the provisions of Section 73(1) by not listing its securities on a recognized stock exchangej) Saharas are legally bound to refund the money collected to the investors, as provided under Section 73(2) of the Companies Act read with Rule 4D of the Companies (Central Governments) General Rules and Forms, 1956 and the SEBI has the power to enforce those provisionsk) Saharas conduct invites civil and criminal liability under various provisions like Sections 56(3), 62, 68, 68A, 73(3), 628, 629 and so on117. The above discussion will clearly indicate that OFCDs issued by Saharas were public issue of debentures, hence securities. Once there is an intention to issue shares or debentures to the public, it is/was obligatory to make an application to one or more recognized stock exchanges, prior to such issue. Registration of RHPs by the Office of the Registrar does not mean that the mandatory provisions of Sections 67(3), 73(1) and DIP Guidelines be not followed. Saharas could not have filed RHP or any prospectus with RoC, without submitting the same to SEBI under Clauses 1.4, 2.1.1. and 2.1.4 of DIP Guidelines. Unlisted companies like Saharas when made an offer of shares or debentures to fifty or more persons, it was mandatory to follow the legal requirements of listing their securities. Once the number forty nine is crossed, the proviso to Section 67(3) kicks in and it is an issue to the public, which attracts Section 73(1) and an application for listing becomes mandatory which fall under the administration of SEBI under Section 55A(1)(b) of the Companies Act118. SEBI, I have already indicated, has a duty under Section 11A of the SEBI Act to protect the interests of investors in securities either listed or which are required to be listed under the law or intended to be listed. Under Section 11B, SEBI has the power to issue appropriate directions in the interests of investors in securities and securities market to any person who is associated with securities market119. I have already referred to the power of SEBI under the SEBI Act in the earlier part of this judgment. SEBI Act, it may be noted, is a special law, distinct in form, but related to the Company Law, 1956. Purpose and object behind establishing a body like SEBI under the SEBI Act has also been highlighted by us. The impugned orders, as already stated, were issued by SEBI in exercise of its powers conferred under Sections 11, 11A and 11B of SEBI Act and Regulations 107 of ICDR 2009. DIP Guidelines, as already indicated, did apply to both listed and unlisted companies. Clause 2.1.1 of DIP Guidelines had made it mandatory to file draft prospectus only before SEBI, not before the Central Government. Obligation was also cast on initial public offerings by unlisted companies and the issue of OFCDs was a public issue under Regulation 1.2.1 (xxiii) which also indicated that DIP Guidelines would apply to Saharas as well. Issuing of convertible debentures in violation of those guidelines gives ample powers on SEBI to pass orders under Sections 11A and 11B of the SEBI Act as well as Regulation 107 of ICDR 2009 and direct refund of the money to investors | 1 | 79,852 | 5,534 | ### Instruction:
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formal prospectus (or RHP). Thus viewed, according to learned counsel, the information memorandum would inevitably precede the issuance of a prospectus (or RHP). Herein, however, the information memorandum was circulated well after the issuance of the RHP, which clearly indicates that the information memorandum had been circulated by the SIRECL, not for the purposes for which it is meant, but for some extraneous consideration. It is submitted, that the appellant-companies had apparently taken upon themselves to tread a path different from the one stipulated under the Companies Act. 113. On considering the submission advanced at the hands of the learned counsel representing SEBI, as has been noticed in the foregoing paragraph, it is clear that an information memorandum must inevitably precede the issuance of a prospectus (including a RHP). One must agree with the contention of the learned counsel, that there was no justification whatsoever for circulating an information memorandum after SIRECL had already issued a RHP. The procedure adopted by the appellant-companies is obviously topsy turvy and contrary to the recognized norms in company affairs. All this makes the entire approach of the appellant-companies calculated and crafty. It is clearly apparent, that the appellant- companies had clearly taken upon themselves to tread a path different from the mandate of law delineated under the Companies Act. There can, therefore, be no doubt about the inferences drawn by the learned counsel representing the SEBI even in so far as the second perspective is concerned. The third perspective: 114. Learned counsel representing SEBI also invited our attention to the attempt at the hands of the appellant-companies in withholding information from the SEBI. Details in this behalf have already been recorded under the first perspective, while debating the issue whether the invitation to subscribe to the OFCDs issued by SIRECL and SHICL was by way of private placement. The aforesaid details are accordingly not being narrated again for reasons of brevity. I shall therefore, merely summarise the sequence of facts relevant for determining the willingness of the appellant- companies to disclose information sought by the SEBI. In this behalf, it is clear that the appellant-companies did not disclose information to SEBI despite its repeated requests. Not even, in the response to the summons (dated 30.8.2010 and 23.9.2010) issued by the SEBI containing threats of taking penal action and initiation of criminal prosecution. All this, failed to prompt the appellant-companies to divulge the facts solicited. Thereafter on 24.11.2010 the SEBI (FTM) passed far reaching directions against the appellant-companies. The Lucknow Bench of the High Court of Judicature at Allahabad on 13.12.2010 first stayed (whereby the SEBI (FTM) order dated 24.11.2010 was stayed) and thereafter, vacated the interim order passed in favour of the appellant-companies. While vacating the aforesaid order the High Court took express note of the fact, that the appellant-companies were not cooperating with the inquiry being conducted by the SEBI. The High Court felt, that the appellant-companies had thereby violated the assurance given to the High Court. The effort made by the appellant-companies to resurrect the earlier interim order (dated 13.12.2010) through an application filed before the High Court was rejected (on 29.11.2011), because the High Court was of the considered view, that the appellant-companies had not approached the High Court with clean hands, and the intention of the appellant-companies was not bona fide. Consequent upon directions issued by this Court, SEBI issued a second show cause notice (on 20.5.2011). The appellant-companies adopted the same stubborn position. They contested the show cause notice on legal pleas, and calculatingly did not disclose the information sought. The SEBI (FTM) by an order dated 23.6.2011 held, that the appellant-companies were in violation of law. The said order dated 23.6.2011 was assailed by the appellant-companies before the SAT. In the appeals preferred before the SAT, the appellant-companies remained steadfast in their approach by adopting the same course, as they had chosen before the SEBI (FTM). For the first time before this Court, in their challenge to the SAT order dated 26.8.2011 (whereby the SEBI (FTM) order dated 23.6.2011 was upheld), some details were disclosed by SIRECL. On an analysis the material placed before this Court, I have recorded hereinabove, that the same seemed to be unrealistic, and may well be, fictitious, concocted and made up. Independently of the interaction of the appellant-companies with SEBI, from letters written by SIRECL in January, 2011, it was concluded by the SEBI (FTM), that the company was seeking professional services to collect and compile data pertaining to the OFCDs issued by it. Since the subscription to the OFCDs under reference commenced in March, 2008, the same raised suspicious about the genuineness and the bonafides of the appellant- companies. Surely the suspicion was well placed. This itself is sufficient to conclude, that the whole affair was doubtful, dubious and questionable. The consequence thereof, if correct, would be shocking. 115. There can therefore be no hesitation in accepting, that on all three perspectives raised at the behest of the SEBI, to demonstrate that there was a pre-planned attempt at the hands of the SIRECL and SHICL, to bypass the regulatory and administrative authority of the SEBI, does seem to be real. One can only hope, it is not so. But having so concluded, it is essential to express, that there may be no real subscribers for the OFCDs issued by the SIRECL or SHICL. Or alternatively, there may be an intermix of real and fictitious subscribers. The issue that would emerge in the aforesaid situation (which one can only hope, is untrue) would be, how the subscription amount collected, should be dealt with, specially when the impugned orders passed by the SEBI, SAT are to be affirmed. Even though I hope that all the subscribers are genuine, and so also, the subscription amount, it would be necessary to modify the operative part of the order issued by the SEBI which came to be endorsed by the SAT, so that the purpose of law is not only satisfied but is also enforced. ORDER
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questions of law raised as follows:a) SEBI has the powers to administer the provisions referred to in the opening part of Section 55A which relates to issue and transfer of securities and non-payment of dividend by public companies like Saharas, which have issued securities to fifty persons or more, though not listed on a recognized stock exchange, whether they intended to list their securities or notb) Saharas were legally obliged to file the final prospectus under Section 60B(9) with SEBI, failure to do so attracts criminal liabilityc) First proviso to Section 67(3) casts a legal obligation to list the securities on a recognized stock exchange, if the offer is made to fifty or more persons, which Saharas have violated which may attract the penal provisions contained in Section 68 of the Actd) Section 73 of the Act casts an obligation on a public company to apply for listing of its securities on a recognized stock exchange, once it invites subscription from fifty or more persons, which Saharas have violated and they have to refund the money collected to the investors with intereste) Saharas have violated the DIP Guidelines and ICDR 2009 and by not complying with the disclosure requirements and investor protection measures for public, and also violated Section 56 of the Companies Act which may attract penal provisionsf) 2003 Rules or the 2011 Rules cannot override the provisions of Section 67(3) and Section 73, being subordinate legislations, 2003 Rules are also not applilcable to any offer of shares or debentures to more than forty nine persons and are to be read subject to the proviso to Section 67(3) and Section 73(1) of the Companies Actg) OFCDs issued by Saharas have the characteristics of shares and debentures and fall within the definition of Section 2(h) of SCR Act. The definition of securities under Section 2(45AA) of the Companies Act includes hybrids and SEBI has jurisdiction over hybrids like OFCDs issued by Saharas, since the expression securities has been specifically dealt with under Section 55A of the Companies Acth) Section 28(1)(b) of the SCR Act indicates that it is only convertible bonds and share/warrant of the type referred to therein, which are excluded from the applicability of the SCR Act and not debentures, which are separate category of securities in the definition contained in Section 2(h) of SCR Act. Contention of Saharas that OFCDs issued by them are convertible bonds issued on the basis of the price agreed upon at the time of issue and, therefore, the provisions of SCR Act, would not apply, in view of Section 28(1)(b) cannot be sustainedi) SEBI can exercise its jurisdiction under Sections 11(1), 11(4), 11A(1)(b) and 11B of SEBI Act and Regulation 107 of ICDR 2009 over public companies who have issued shares or debentures to fifty or more, but not complied with the provisions of Section 73(1) by not listing its securities on a recognized stock exchangej) Saharas are legally bound to refund the money collected to the investors, as provided under Section 73(2) of the Companies Act read with Rule 4D of the Companies (Central Governments) General Rules and Forms, 1956 and the SEBI has the power to enforce those provisionsk) Saharas conduct invites civil and criminal liability under various provisions like Sections 56(3), 62, 68, 68A, 73(3), 628, 629 and so on117. The above discussion will clearly indicate that OFCDs issued by Saharas were public issue of debentures, hence securities. Once there is an intention to issue shares or debentures to the public, it is/was obligatory to make an application to one or more recognized stock exchanges, prior to such issue. Registration of RHPs by the Office of the Registrar does not mean that the mandatory provisions of Sections 67(3), 73(1) and DIP Guidelines be not followed. Saharas could not have filed RHP or any prospectus with RoC, without submitting the same to SEBI under Clauses 1.4, 2.1.1. and 2.1.4 of DIP Guidelines. Unlisted companies like Saharas when made an offer of shares or debentures to fifty or more persons, it was mandatory to follow the legal requirements of listing their securities. Once the number forty nine is crossed, the proviso to Section 67(3) kicks in and it is an issue to the public, which attracts Section 73(1) and an application for listing becomes mandatory which fall under the administration of SEBI under Section 55A(1)(b) of the Companies Act118. SEBI, I have already indicated, has a duty under Section 11A of the SEBI Act to protect the interests of investors in securities either listed or which are required to be listed under the law or intended to be listed. Under Section 11B, SEBI has the power to issue appropriate directions in the interests of investors in securities and securities market to any person who is associated with securities market119. I have already referred to the power of SEBI under the SEBI Act in the earlier part of this judgment. SEBI Act, it may be noted, is a special law, distinct in form, but related to the Company Law, 1956. Purpose and object behind establishing a body like SEBI under the SEBI Act has also been highlighted by us. The impugned orders, as already stated, were issued by SEBI in exercise of its powers conferred under Sections 11, 11A and 11B of SEBI Act and Regulations 107 of ICDR 2009. DIP Guidelines, as already indicated, did apply to both listed and unlisted companies. Clause 2.1.1 of DIP Guidelines had made it mandatory to file draft prospectus only before SEBI, not before the Central Government. Obligation was also cast on initial public offerings by unlisted companies and the issue of OFCDs was a public issue under Regulation 1.2.1 (xxiii) which also indicated that DIP Guidelines would apply to Saharas as well. Issuing of convertible debentures in violation of those guidelines gives ample powers on SEBI to pass orders under Sections 11A and 11B of the SEBI Act as well as Regulation 107 of ICDR 2009 and direct refund of the money to investors
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Commissioner of Income Tax, Bangalore Etc Vs. B.C. Srinivasa Setty, Etc | in each case bears a relationship to the nature of the charge. Thus the charging section and the computation provisions together constitute an integrated code. When there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section. Otherwise one would be driven to conclude that while a certain income seems to fall within the charging section there is no scheme of computation for quantifying it. The legislative pattern discernible in the Act is against such a conclusion. It must be borne in mind that the legislative intent is presumed to run uniformly through the entire conspectus of provisions pertaining to each head of income. No doubt there is a qualitative difference between the charging provision and a computation provision. And ordinarily the operation of t he charging provision cannot be affected by the construction of a particular computation provision. But the question here is whether it is possible to apply the computation provision at all if a certain interpretation is pressed on the charging provision . That pertains to the fundamental integrality of the statutory scheme provided for each head.The point to consider then is whether if the expression "asset" in s. 45 is construed as including the goodwill of a new business, it is possible to apply the computation sections for quantifying the profits and gains on its transfer.12. The mode of computation and deductions set forth in s. 48 provide the principal basis for quantifying the income chargeable under the head "Capital gains". The section provides that the income chargeable under that had shall be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset:"(ii) the cost of acquisition of the capital asset..."13. What is contemplated is an asset in the acquisition of which it is possible to envisage a cost. The intent goes to the nature and character of the asset, that it is an asset which possesses the inherent quality of being available on the expenditure of money to a person seeking to acquire it. It is immaterial that although the asset belongs to such a class it may, on the facts of a certain case, be acquired without the payment of money. That kind of case is covered by s. 49 and its cost, for the purpose of s. 48 is determined in accordance with those provisions. There are other provisions which indicate that s. 48 is concerned with an asset capable of acquisition at the cost . s. 50 is one such provision. So also is sub-section (2) of s. 55. None of the provisions pertaining to the head "Capital gains" suggests that they include an asset in the acquisition of which no cost at an can be conceived. Yet there are assets which are acquired by way of production in which no cost element can be identified or envisaged. From what has gone before, it is apparent that the goodwill generated in a new business has been so regarded. The elements which create it have already been detailed. In such a case, when the asset is sold and the consideration is brought to tax, what is charged is the capital value of the asset and not any profit or gain.14. In the case of goodwill generated in a new business there is the further circumstance that it is not possible to determine the date when it comes into existence. The date of acquisition of the asset is a material factor in applying the computation provisions pertaining to capital gains. It is possible to say that the "cost of acquisition" mentioned in s. 48 implies a date of acquisition, and that inference is strengthened by the provisions of ss. 49 and 50 as well as sub-section (2) of s. 55.15. It may also be noted that if the goodwill generated in a new business is regarded as acquired at a cost and subsequently posses to an assessee in any of the modes specified in sub-section (1) of s. 49, it will become necessary to determine the cost of acquisition to the previous owner. Having regard to the nature of the asset, it will be impossible to determine such cost of acquisition Nor call sub-section (3) of s. 55 be invoked, because the date of acquisition by the previous owner will remain unknown.16. We are of opinion that the goodwill generated in a newly commenced business cannot be described as an "asset" within the terms of s. 45 and therefore its transfer is not subject to income-tax under the head "Capital gain".17. The question which has been raised before u s, has been considered by some High Courts, and it appears that there is a conflict of opinion. The Madras High Court in Commissioner of Income-tax v. K. Rathnam Nadar, the Calcutta High Court in Commissioner of Income-Tax v. Chunilal Prabhudas &Co., (supra) the Delhi High Court in Jagdev Singh Mumick v. Commissioner of Income-tax, the Kerala High Court in Commissioner of Income-tax v. E.C. Jacob, the Bombay High Court in the Commissioner of Income-tax v, Home Industries &Co. and Com missioner of Income-tax v. Michel Postal and the Madhya Pradesh High Court in Commissioner of Income-tax v. Jaswant Lal Dayabhai have taken the view that the receipt on the transfer of goodwill generated in a business is not subject to income-tax a s a capital gain. On the other side lies the view taken by the Gujarat High Court in Commissioner of Income-tax v. Mohanbhai Pamabhai, and the Calcutta High Court in R.N. Daftary v. Commissioner of Income-tax that even if no cost is incurred in building up the goodwill of the business, it is nevertheless a capital asset for the purpose of capital gains, and the cost of acquisition being nil the entire amount of sale proceeds relating to the goodwill must be brought to t ax under the head "Capital gains". | 0[ds]Section 45 charges the profits or gains arising from the transfer of a capital asset to income-tax. The asset must be one which falls within the contemplation of the section. It must bear that quality which brings s. 45 into play. To determine whether the goodwill of a new business is such an asset, it is permissible, as we shall presently show, to refer to certain other sections of the head, "Capital gains". Section 45 is a charging section. For the purpose of imposing the charge, Parliament has enacted detailed provisions in order to compute the profits or gains under that head. No existing principle or provision at variance with them can be applied for determining the chargeable profits and gains. All transactions encompassed by s. 45 must fall under the governance of its computation provisions. A transaction to which those provisions canno t be applied must be regarded as never intended by s. 45 to be the subject of the charge. This inference flows from the general arrangement of the provisions in the Income-tax Act, where under each head of income the charging provision is accompanied by a set of provisions for computing the income subject to that charge. The character of the computation provisions in each case bears a relationship to the nature of the charge. Thus the charging section and the computation provisions together constitute an integrated code. When there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section. Otherwise one would be driven to conclude that while a certain income seems to fall within the charging section there is no scheme of computation for quantifying it. The legislative pattern discernible in the Act is against such a conclusion. It must be borne in mind that the legislative intent is presumed to run uniformly through the entire conspectus of provisions pertaining to each head of income. No doubt there is a qualitative difference between the charging provision and a computation provision. And ordinarily the operation of t he charging provision cannot be affected by the construction of a particular computation provision. But the question here is whether it is possible to apply the computation provision at all if a certain interpretation is pressed on the charging provision . That pertains to the fundamental integrality of the statutory scheme provided for eachpoint to consider then is whether if the expression "asset" in s. 45 is construed as including the goodwill of a new business, it is possible to apply the computation sections for quantifying the profits and gains on itsis contemplated is an asset in the acquisition of which it is possible to envisage a cost. The intent goes to the nature and character of the asset, that it is an asset which possesses the inherent quality of being available on the expenditure of money to a person seeking to acquire it. It is immaterial that although the asset belongs to such a class it may, on the facts of a certain case, be acquired without the payment of money. That kind of case is covered by s. 49 and its cost, for the purpose of s. 48 is determined in accordance with those provisions. There are other provisions which indicate that s. 48 is concerned with an asset capable of acquisition at the cost . s. 50 is one such provision. So also is sub-section (2) of s. 55. None of the provisions pertaining to the head "Capital gains" suggests that they include an asset in the acquisition of which no cost at an can be conceived. Yet there are assets which are acquired by way of production in which no cost element can be identified or envisaged. From what has gone before, it is apparent that the goodwill generated in a new business has been so regarded. The elements which create it have already been detailed. In such a case, when the asset is sold and the consideration is brought to tax, what is charged is the capital value of the asset and not any profit orthe case of goodwill generated in a new business there is the further circumstance that it is not possible to determine the date when it comes into existence. The date of acquisition of the asset is a material factor in applying the computation provisions pertaining to capital gains. It is possible to say that the "cost of acquisition" mentioned in s. 48 implies a date of acquisition, and that inference is strengthened by the provisions of ss. 49 and 50 as well as sub-section (2) of s.may also be noted that if the goodwill generated in a new business is regarded as acquired at a cost and subsequently posses to an assessee in any of the modes specified in sub-section (1) of s. 49, it will become necessary to determine the cost of acquisition to the previous owner. Having regard to the nature of the asset, it will be impossible to determine such cost of acquisition Nor call sub-section (3) of s. 55 be invoked, because the date of acquisition by the previous owner will remainare of opinion that the goodwill generated in a newly commenced business cannot be described as an "asset" within the terms of s. 45 and therefore its transfer is not subject to income-tax under the head "Capitalquestion which has been raised before u s, has been considered by some High Courts, and it appears that there is a conflict of opinion. The Madras High Court in Commissioner of Income-tax v. K. Rathnam Nadar, the Calcutta High Court in Commissioner of Income-Tax v. Chunilal Prabhudas &Co., (supra) the Delhi High Court in Jagdev Singh Mumick v. Commissioner of Income-tax, the Kerala High Court in Commissioner of Income-tax v. E.C. Jacob, the Bombay High Court in the Commissioner of Income-tax v, Home Industries &Co. and Com missioner of Income-tax v. Michel Postal and the Madhya Pradesh High Court in Commissioner of Income-tax v. Jaswant Lal Dayabhai have taken the view that the receipt on the transfer of goodwill generated in a business is not subject to income-tax a s a capital gain. On the other side lies the view taken by the Gujarat High Court in Commissioner of Income-tax v. Mohanbhai Pamabhai, and the Calcutta High Court in R.N. Daftary v. Commissioner of Income-tax that even if no cost is incurred in building up the goodwill of the business, it is nevertheless a capital asset for the purpose of capital gains, and the cost of acquisition being nil the entire amount of sale proceeds relating to the goodwill must be brought to t ax under the head "Capital gains".The section operates if there is a transfer of a capital asset giving rise to a profit or gain. The expression "capital asset" i s defined in s. 2(14) to mean "property of any kind held by an assessee" It is of the widest amplitude, and apparently covers all kinds of property except the property expressly excluded by clauses (i) to (iv) of thewhich, it will be seen, do not include goodwill. But the definitions in s. 2 are subject to an overall restrictive clause. That is expressed in the opening words of the section: "unless the context otherwise requires". We must therefore enquire whether contextually s. 45, in which the expression "capital asset" is used, excludesdenotes the benefit arising from connection and reputation. The original definition by Lord Eldon in Cruttwell v. Lye that goodwill was nothing more than "the probability that the old customers would resort to the old places" was expanded by Wood V.C. in Churton v. Douglas to encompass every positive advantage "that has been acquired by the old firm in carrying on its business, whether connected with the premises in which the business was previously carried on or with the name of the old firm, or with any other matter carrying with it the benefit of the business". InTrego v. Hunt LordHerschell described goodwill as a connection which tended to become permanent because of habit or otherwise. The benefit to the business varies with the nature of the business and also from one business to another. No business commenced for the first time possesses goodwill from the start. It is generated as the business is carried on and may be augmented with the passage of time. Lawson in his "Introduction to the Law of Property" describes it as property of a highly peculiar kind. In Commissioner ofWest Bengal III v. Chunilal Prabhudas &Co., the Calcutta High Court reviewed the different approaches to thehas been horticulturally and botanically viewed as "a seed sprouting" or an "acorn growing into the mighty oak of goodwill". It has been geographically described by locality. It has been historically described by locality. It has been historically explained as growing and crystalising traditions in the business. It has been described in terms of a magnet as the "attracting force". In terms of comparative dynamics, goodwill has been described as the "differential return of profit". Philosophically it has been held to be intangible. Though immaterial, it is materially valued. Physically and psychologically, it is a "habit" and sociologically it is a "custom". Biologically, it has been described as Lord Macnaghten in Trego v. Hunt as the "sap and life" of the business. Architecturally, it has been described as the "cement" binding together the business and its assets as a whole and a going and developingvariety of elements goes into its making, and its composition varies in different trades and in different businesses in the same trade, and while one element may preponderate in one business, another may dominate in another business. And yet because of its intangible nature , it remains insubstantial in form and nebulous in character. Those features prompted Lord Macnaghten to remark in Commissioner of Inland Revenue v. Muller &Co.s Margarine Limited that although goodwill was easy to describe, it was nonetheless difficult to define. In a progressing business goodwill tends to show progressive increase. And in a failing business it may begin to wane. Its value may fluctuate from one moment to another depending on changes in the reputation of the business. It is affected by everything relating to the business, the personality and business rectitude of the owners, the nature and character of the business, its name and reputation, its location, its impact on the contemporary market, the prevailing socio economic ecology, introduction to old customers and agreed absence of competition. There can be no account in value of the factors producing it. It u also impossible to predicate the moment of its birth. It comes silently into the world, unheralded and unproclaimed and its impact may not be visibly felt for an undefined period. Imperceptible at birth it exists enwrapped in a concept, growing or fluctuating with the numerous imponderables pouring into, and affecting, the business. Undoubtedly, it is an asset of the business, but is it an asset contemplated by s. 45 ? | 0 | 2,785 | 2,038 | ### Instruction:
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in each case bears a relationship to the nature of the charge. Thus the charging section and the computation provisions together constitute an integrated code. When there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section. Otherwise one would be driven to conclude that while a certain income seems to fall within the charging section there is no scheme of computation for quantifying it. The legislative pattern discernible in the Act is against such a conclusion. It must be borne in mind that the legislative intent is presumed to run uniformly through the entire conspectus of provisions pertaining to each head of income. No doubt there is a qualitative difference between the charging provision and a computation provision. And ordinarily the operation of t he charging provision cannot be affected by the construction of a particular computation provision. But the question here is whether it is possible to apply the computation provision at all if a certain interpretation is pressed on the charging provision . That pertains to the fundamental integrality of the statutory scheme provided for each head.The point to consider then is whether if the expression "asset" in s. 45 is construed as including the goodwill of a new business, it is possible to apply the computation sections for quantifying the profits and gains on its transfer.12. The mode of computation and deductions set forth in s. 48 provide the principal basis for quantifying the income chargeable under the head "Capital gains". The section provides that the income chargeable under that had shall be computed by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset:"(ii) the cost of acquisition of the capital asset..."13. What is contemplated is an asset in the acquisition of which it is possible to envisage a cost. The intent goes to the nature and character of the asset, that it is an asset which possesses the inherent quality of being available on the expenditure of money to a person seeking to acquire it. It is immaterial that although the asset belongs to such a class it may, on the facts of a certain case, be acquired without the payment of money. That kind of case is covered by s. 49 and its cost, for the purpose of s. 48 is determined in accordance with those provisions. There are other provisions which indicate that s. 48 is concerned with an asset capable of acquisition at the cost . s. 50 is one such provision. So also is sub-section (2) of s. 55. None of the provisions pertaining to the head "Capital gains" suggests that they include an asset in the acquisition of which no cost at an can be conceived. Yet there are assets which are acquired by way of production in which no cost element can be identified or envisaged. From what has gone before, it is apparent that the goodwill generated in a new business has been so regarded. The elements which create it have already been detailed. In such a case, when the asset is sold and the consideration is brought to tax, what is charged is the capital value of the asset and not any profit or gain.14. In the case of goodwill generated in a new business there is the further circumstance that it is not possible to determine the date when it comes into existence. The date of acquisition of the asset is a material factor in applying the computation provisions pertaining to capital gains. It is possible to say that the "cost of acquisition" mentioned in s. 48 implies a date of acquisition, and that inference is strengthened by the provisions of ss. 49 and 50 as well as sub-section (2) of s. 55.15. It may also be noted that if the goodwill generated in a new business is regarded as acquired at a cost and subsequently posses to an assessee in any of the modes specified in sub-section (1) of s. 49, it will become necessary to determine the cost of acquisition to the previous owner. Having regard to the nature of the asset, it will be impossible to determine such cost of acquisition Nor call sub-section (3) of s. 55 be invoked, because the date of acquisition by the previous owner will remain unknown.16. We are of opinion that the goodwill generated in a newly commenced business cannot be described as an "asset" within the terms of s. 45 and therefore its transfer is not subject to income-tax under the head "Capital gain".17. The question which has been raised before u s, has been considered by some High Courts, and it appears that there is a conflict of opinion. The Madras High Court in Commissioner of Income-tax v. K. Rathnam Nadar, the Calcutta High Court in Commissioner of Income-Tax v. Chunilal Prabhudas &Co., (supra) the Delhi High Court in Jagdev Singh Mumick v. Commissioner of Income-tax, the Kerala High Court in Commissioner of Income-tax v. E.C. Jacob, the Bombay High Court in the Commissioner of Income-tax v, Home Industries &Co. and Com missioner of Income-tax v. Michel Postal and the Madhya Pradesh High Court in Commissioner of Income-tax v. Jaswant Lal Dayabhai have taken the view that the receipt on the transfer of goodwill generated in a business is not subject to income-tax a s a capital gain. On the other side lies the view taken by the Gujarat High Court in Commissioner of Income-tax v. Mohanbhai Pamabhai, and the Calcutta High Court in R.N. Daftary v. Commissioner of Income-tax that even if no cost is incurred in building up the goodwill of the business, it is nevertheless a capital asset for the purpose of capital gains, and the cost of acquisition being nil the entire amount of sale proceeds relating to the goodwill must be brought to t ax under the head "Capital gains".
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be impossible to determine such cost of acquisition Nor call sub-section (3) of s. 55 be invoked, because the date of acquisition by the previous owner will remainare of opinion that the goodwill generated in a newly commenced business cannot be described as an "asset" within the terms of s. 45 and therefore its transfer is not subject to income-tax under the head "Capitalquestion which has been raised before u s, has been considered by some High Courts, and it appears that there is a conflict of opinion. The Madras High Court in Commissioner of Income-tax v. K. Rathnam Nadar, the Calcutta High Court in Commissioner of Income-Tax v. Chunilal Prabhudas &Co., (supra) the Delhi High Court in Jagdev Singh Mumick v. Commissioner of Income-tax, the Kerala High Court in Commissioner of Income-tax v. E.C. Jacob, the Bombay High Court in the Commissioner of Income-tax v, Home Industries &Co. and Com missioner of Income-tax v. Michel Postal and the Madhya Pradesh High Court in Commissioner of Income-tax v. Jaswant Lal Dayabhai have taken the view that the receipt on the transfer of goodwill generated in a business is not subject to income-tax a s a capital gain. On the other side lies the view taken by the Gujarat High Court in Commissioner of Income-tax v. Mohanbhai Pamabhai, and the Calcutta High Court in R.N. Daftary v. Commissioner of Income-tax that even if no cost is incurred in building up the goodwill of the business, it is nevertheless a capital asset for the purpose of capital gains, and the cost of acquisition being nil the entire amount of sale proceeds relating to the goodwill must be brought to t ax under the head "Capital gains".The section operates if there is a transfer of a capital asset giving rise to a profit or gain. The expression "capital asset" i s defined in s. 2(14) to mean "property of any kind held by an assessee" It is of the widest amplitude, and apparently covers all kinds of property except the property expressly excluded by clauses (i) to (iv) of thewhich, it will be seen, do not include goodwill. But the definitions in s. 2 are subject to an overall restrictive clause. That is expressed in the opening words of the section: "unless the context otherwise requires". We must therefore enquire whether contextually s. 45, in which the expression "capital asset" is used, excludesdenotes the benefit arising from connection and reputation. The original definition by Lord Eldon in Cruttwell v. Lye that goodwill was nothing more than "the probability that the old customers would resort to the old places" was expanded by Wood V.C. in Churton v. Douglas to encompass every positive advantage "that has been acquired by the old firm in carrying on its business, whether connected with the premises in which the business was previously carried on or with the name of the old firm, or with any other matter carrying with it the benefit of the business". InTrego v. Hunt LordHerschell described goodwill as a connection which tended to become permanent because of habit or otherwise. The benefit to the business varies with the nature of the business and also from one business to another. No business commenced for the first time possesses goodwill from the start. It is generated as the business is carried on and may be augmented with the passage of time. Lawson in his "Introduction to the Law of Property" describes it as property of a highly peculiar kind. In Commissioner ofWest Bengal III v. Chunilal Prabhudas &Co., the Calcutta High Court reviewed the different approaches to thehas been horticulturally and botanically viewed as "a seed sprouting" or an "acorn growing into the mighty oak of goodwill". It has been geographically described by locality. It has been historically described by locality. It has been historically explained as growing and crystalising traditions in the business. It has been described in terms of a magnet as the "attracting force". In terms of comparative dynamics, goodwill has been described as the "differential return of profit". Philosophically it has been held to be intangible. Though immaterial, it is materially valued. Physically and psychologically, it is a "habit" and sociologically it is a "custom". Biologically, it has been described as Lord Macnaghten in Trego v. Hunt as the "sap and life" of the business. Architecturally, it has been described as the "cement" binding together the business and its assets as a whole and a going and developingvariety of elements goes into its making, and its composition varies in different trades and in different businesses in the same trade, and while one element may preponderate in one business, another may dominate in another business. And yet because of its intangible nature , it remains insubstantial in form and nebulous in character. Those features prompted Lord Macnaghten to remark in Commissioner of Inland Revenue v. Muller &Co.s Margarine Limited that although goodwill was easy to describe, it was nonetheless difficult to define. In a progressing business goodwill tends to show progressive increase. And in a failing business it may begin to wane. Its value may fluctuate from one moment to another depending on changes in the reputation of the business. It is affected by everything relating to the business, the personality and business rectitude of the owners, the nature and character of the business, its name and reputation, its location, its impact on the contemporary market, the prevailing socio economic ecology, introduction to old customers and agreed absence of competition. There can be no account in value of the factors producing it. It u also impossible to predicate the moment of its birth. It comes silently into the world, unheralded and unproclaimed and its impact may not be visibly felt for an undefined period. Imperceptible at birth it exists enwrapped in a concept, growing or fluctuating with the numerous imponderables pouring into, and affecting, the business. Undoubtedly, it is an asset of the business, but is it an asset contemplated by s. 45 ?
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CEMENT WORKERS MANDAL Vs. GLOBAL CEMENTS LTD(HMP CEMENTS LTD.) | person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without- (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32. Section 20 of CPC 20. Other suits to be instituted where defendants reside or cause of action arises- Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation -A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. 24. Article 226(2) of the Constitution, in clear terms, empowers the High Court (let us say A High Court) to entertain the writ petition if the cause of action to file such writ petition against the respondents of the said writ petition has arisen wholly or in part within the territorial jurisdiction of A High Court. 25. Clause (2) further empowers a High Court to issue any order, directions or writ as provided in clause (1) of Article 226 of the Constitution in such writ petition notwithstanding that seat of such Government or the Authority or the residence of such person against whom the writ petition is filed does not fall within the territories of the A High Court but falls in the territories of the B High Court. 26. Coming to the facts of this case, we find from the averments of the petition(SCA) that firstly, Respondent No.1-Company has its factory at Porbandar, which is a part of State of Gujarat; Second, the Labour Court, Junagadh, which is also a part of State of Gujarat, entertained the dispute between the appellant-Union and respondent No.1-Company and passed a recovery order; and Third, one of the reliefs claimed in the petition(SCA) pertains to non-payment of outstanding wages payable to the workers by respondent No.1-Company. 27. In the light of these three reasons, we are of the view that the part of the cause of action as contemplated in Article 226 (2) of the Constitution has arisen within the territorial jurisdiction of the Gujarat High Court for filing the petition(SCA) to claim appropriate reliefs in relation to such dispute against respondent No.1-Company. 28. In our considered opinion, the expression the cause of action, wholly or in part, arises occurring in Article 226(2) of the Constitution has to be read in the context of Section 20(c) of CPC which deals with filing of the suit within the local limits of the jurisdiction of the Civil Courts. 29. Indeed, the question as to whether the cause of action for filing the petition, wholly or in part, arose in the context of territorial jurisdiction of the High Court is required to be decided keeping in view the provisions of Article 226(2) of the Constitution read with the provisions of Section 20 of CPC. 30. In the light of the foregoing discussion, we are of the view that the appellants petition(SCA) was maintainable in the Gujarat High Court inasmuch as the part of the cause of action to file such petition did accrue to the appellant herein (petitioner) within the territorial jurisdiction of the Gujarat High Court. 31. In these circumstances, the SCA was required to be decided on merits by the Gujarat High Court. | 1[ds]21. In our considered opinion, the Division Bench erred in not noticing Article 226(2) of the Constitution of India while deciding the question arising in this case22. In other words, the question as to whether the Gujarat High Court has territorial jurisdiction to entertain the appellants petition(SCA) or not, should have been decided keeping in view the provisions of Article 226(2) of the Constitution read with Section 20 of the Code of Civil Procedure, 1908 (for short, CPC)24. Article 226(2) of the Constitution, in clear terms, empowers the High Court (let us say A High Court) to entertain the writ petition if the cause of action to file such writ petition against the respondents of the said writ petition has arisen wholly or in part within the territorial jurisdiction of A High Court25. Clause (2) further empowers a High Court to issue any order, directions or writ as provided in clause (1) of Article 226 of the Constitution in such writ petition notwithstanding that seat of such Government or the Authority or the residence of such person against whom the writ petition is filed does not fall within the territories of the A High Court but falls in the territories of the B High Court26. Coming to the facts of this case, we find from the averments of the petition(SCA) that firstly, Respondent No.1-Company has its factory at Porbandar, which is a part of State of Gujarat; Second, the Labour Court, Junagadh, which is also a part of State of Gujarat, entertained the dispute between the appellant-Union and respondent No.1-Company and passed a recovery order; and Third, one of the reliefs claimed in the petition(SCA) pertains to non-payment of outstanding wages payable to the workers by respondent No.1-Company27. In the light of these three reasons, we are of the view that the part of the cause of action as contemplated in Article 226 (2) of the Constitution has arisen within the territorial jurisdiction of the Gujarat High Court for filing the petition(SCA) to claim appropriate reliefs in relation to such dispute against respondent No.1-Company28. In our considered opinion, the expression the cause of action, wholly or in part, arises occurring in Article 226(2) of the Constitution has to be read in the context of Section 20(c) of CPC which deals with filing of the suit within the local limits of the jurisdiction of the Civil Courts29. Indeed, the question as to whether the cause of action for filing the petition, wholly or in part, arose in the context of territorial jurisdiction of the High Court is required to be decided keeping in view the provisions of Article 226(2) of the Constitution read with the provisions of Section 20 of CPC30. In the light of the foregoing discussion, we are of the view that the appellants petition(SCA) was maintainable in the Gujarat High Court inasmuch as the part of the cause of action to file such petition did accrue to the appellant herein (petitioner) within the territorial jurisdiction of the Gujarat High Court31. In these circumstances, the SCA was required to be decided on merits by the Gujarat High Court. | 1 | 2,791 | 607 | ### Instruction:
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person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without- (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32. Section 20 of CPC 20. Other suits to be instituted where defendants reside or cause of action arises- Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation -A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. 24. Article 226(2) of the Constitution, in clear terms, empowers the High Court (let us say A High Court) to entertain the writ petition if the cause of action to file such writ petition against the respondents of the said writ petition has arisen wholly or in part within the territorial jurisdiction of A High Court. 25. Clause (2) further empowers a High Court to issue any order, directions or writ as provided in clause (1) of Article 226 of the Constitution in such writ petition notwithstanding that seat of such Government or the Authority or the residence of such person against whom the writ petition is filed does not fall within the territories of the A High Court but falls in the territories of the B High Court. 26. Coming to the facts of this case, we find from the averments of the petition(SCA) that firstly, Respondent No.1-Company has its factory at Porbandar, which is a part of State of Gujarat; Second, the Labour Court, Junagadh, which is also a part of State of Gujarat, entertained the dispute between the appellant-Union and respondent No.1-Company and passed a recovery order; and Third, one of the reliefs claimed in the petition(SCA) pertains to non-payment of outstanding wages payable to the workers by respondent No.1-Company. 27. In the light of these three reasons, we are of the view that the part of the cause of action as contemplated in Article 226 (2) of the Constitution has arisen within the territorial jurisdiction of the Gujarat High Court for filing the petition(SCA) to claim appropriate reliefs in relation to such dispute against respondent No.1-Company. 28. In our considered opinion, the expression the cause of action, wholly or in part, arises occurring in Article 226(2) of the Constitution has to be read in the context of Section 20(c) of CPC which deals with filing of the suit within the local limits of the jurisdiction of the Civil Courts. 29. Indeed, the question as to whether the cause of action for filing the petition, wholly or in part, arose in the context of territorial jurisdiction of the High Court is required to be decided keeping in view the provisions of Article 226(2) of the Constitution read with the provisions of Section 20 of CPC. 30. In the light of the foregoing discussion, we are of the view that the appellants petition(SCA) was maintainable in the Gujarat High Court inasmuch as the part of the cause of action to file such petition did accrue to the appellant herein (petitioner) within the territorial jurisdiction of the Gujarat High Court. 31. In these circumstances, the SCA was required to be decided on merits by the Gujarat High Court.
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21. In our considered opinion, the Division Bench erred in not noticing Article 226(2) of the Constitution of India while deciding the question arising in this case22. In other words, the question as to whether the Gujarat High Court has territorial jurisdiction to entertain the appellants petition(SCA) or not, should have been decided keeping in view the provisions of Article 226(2) of the Constitution read with Section 20 of the Code of Civil Procedure, 1908 (for short, CPC)24. Article 226(2) of the Constitution, in clear terms, empowers the High Court (let us say A High Court) to entertain the writ petition if the cause of action to file such writ petition against the respondents of the said writ petition has arisen wholly or in part within the territorial jurisdiction of A High Court25. Clause (2) further empowers a High Court to issue any order, directions or writ as provided in clause (1) of Article 226 of the Constitution in such writ petition notwithstanding that seat of such Government or the Authority or the residence of such person against whom the writ petition is filed does not fall within the territories of the A High Court but falls in the territories of the B High Court26. Coming to the facts of this case, we find from the averments of the petition(SCA) that firstly, Respondent No.1-Company has its factory at Porbandar, which is a part of State of Gujarat; Second, the Labour Court, Junagadh, which is also a part of State of Gujarat, entertained the dispute between the appellant-Union and respondent No.1-Company and passed a recovery order; and Third, one of the reliefs claimed in the petition(SCA) pertains to non-payment of outstanding wages payable to the workers by respondent No.1-Company27. In the light of these three reasons, we are of the view that the part of the cause of action as contemplated in Article 226 (2) of the Constitution has arisen within the territorial jurisdiction of the Gujarat High Court for filing the petition(SCA) to claim appropriate reliefs in relation to such dispute against respondent No.1-Company28. In our considered opinion, the expression the cause of action, wholly or in part, arises occurring in Article 226(2) of the Constitution has to be read in the context of Section 20(c) of CPC which deals with filing of the suit within the local limits of the jurisdiction of the Civil Courts29. Indeed, the question as to whether the cause of action for filing the petition, wholly or in part, arose in the context of territorial jurisdiction of the High Court is required to be decided keeping in view the provisions of Article 226(2) of the Constitution read with the provisions of Section 20 of CPC30. In the light of the foregoing discussion, we are of the view that the appellants petition(SCA) was maintainable in the Gujarat High Court inasmuch as the part of the cause of action to file such petition did accrue to the appellant herein (petitioner) within the territorial jurisdiction of the Gujarat High Court31. In these circumstances, the SCA was required to be decided on merits by the Gujarat High Court.
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Commissioner of Income Tax, Bombay North Vs. Lakhiram Ramdas | the assessee to make a return of his income under S. 22 or to disclose fully and truly all material facts necessary for his assessment for the year 1945-46. The present appellant then moved the Tribunal under S. 66 (1) of the Income-tax Act and asked the Tribunal to state a case to the High Court of Bombay on the following question of law, which, according to the appellant, arose out of the Tribunals order :Whether on the facts and in the circumstances of the case, and having particular regard to the fact that the return and the statements accompanying the return furnished by the assessee during the course of the assessment proceedings for 1945-46 did not indicate such a large transaction as Rs. 1,10,000 by a single bank draft, the Income-tax Officer was right in starting proceedings under S. 34 (1) (a) on the receipt of the information about the above transaction, to make a re-assessment for 1945-46?"4. The Tribunal rejected the application under S. 66 (1) on two grounds: firstly, that the question which the appellant said arose out of the Tribunals order was a question of fact and not a question of law and secondly, that the question suggested by the appellant was misconceived, because the question before the Tribunal at the time of the hearing of the appeal was not whether the assessee had failed to disclose the transaction of Rs. 1,10,000 in his return and the statements accompanying it, but whether there was any omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the year in question. The appellant then moved the High Court of Bombay under S. 66 (2) of to Income-tax Act. That application, as we have stated already, was summarily dismissed by the High Court by its order, dated December 14, 1956.5. The learned Advocate for the appellant has contended before us that the finding of the Tribunal that there was no omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment was based on surmises and conjectures and there were no materials on which the Tribunal could come to such a conclusion; therefore, it has been argued that a question of law arose out of the Tribunals order and the High Court was wrong in summarily rejecting the petition made by the appellant under S. 66(2) of the Income-tax Act. We are unable to accept this argument as correct. First of all, it must be pointed out that the question which the appellant suggested should be referred to the High Court in his petitions under S. 66 (1) and S. 66 (2) of the Income-tax Act is different from the question which is now raised by the learned Advocate for the appellant. The question now raised for the first time before us by the learned Advocate for the appellant is that the Tribunal had no materials on which to find that there was no omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment and that the finding of the Tribunal was based on surmises and conjectures. That, however, was not the question which was suggested for reference to the High Court at the stage when the petitions under S. 66 were made. At that stage the question suggested was whether on the facts and in the circumstances of the case and having particular regard to the return made by the assessee and the statements accompanying it, the assessee did not indicate that he had obtained a bank draft for Rs. 1,10,000. We agree with the view expressed by the Tribunal that the question suggested was misconceived, because what the Tribunal had to consider was whether the proceeding under S. 34 (1) (a) was properly initiated by the Income-tax Officer in the year 1954. It must be remembered that the original assessment was completed on September 13, 1946 and more than four years had passed, and at the relevant time the period during which the Income-tax Officer could take action under S. 34 (1) (a) was eight years. It is true that the eight years had not expired on March 24. 1954 when the notice under S. 34 (1) (a) was issued. But the pre-requisite condition for the initiation of a proceeding under S. 34 (1) (a) is that "the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee .... to disclose fully and truly all material facts necessary for his assessment for that year", income, profits or gains chargeable to income-tax have escaped assessment etc. That condition must be fulfilled before the Income-tax Officer can take action under S. 34 (1) (a). (See Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta, 1961-41 ITR 191 : (AIR 1961 SC 372 )).Therefore, what the Tribunal had to consider was whether the assessee had fully and truly disclosed all material facts necessary for the assessment. The Tribunal examined all the relevant materials produced by the assessee at the time of the original assessment and came to the conclusion that there was no omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. The Tribunal referred to the account books produced by the assessee and particularly to the report of the Examiner of Accounts who submitted a report to the Income-tax Officer with regard to the bank account of the assessee in the Exchange Bank of India and Africa Ltd. In our opinion, in the circumstances of this case the question whether the assessee had or had not failed to disclose fully and truly all material facts necessary for his assessment was a question of fact and we are unable to accept the argument of the learned Advocate for the appellant to the contrary. | 0[ds]It is not necessary to deal with that preliminary objection, because learned Advocate for the appellant has conceded that the appeal direct from the order of the Tribunal must be dismissed in view of the decision of this Court in Chandi Prasad Chokhani v. State of Bihar,ITR 498: (AIR 1961 SC 1708 ),which laid down that save in exceptional and special circumstances, this Court would not exercise its power under Art. 136 of the Constitution in such a way as to bypass the High Court by entertaining an appeal direct from the order of the Tribunal and thereby ignore the decision given by the High Court. Therefore, the appeal from the order of the Tribunal, dated November 7, 1955 must bepresent respondent, who was the assessee in the case, carried on a cloth business at Ahmedabad. Later he opened branches at Karachi and Bombay. He was assessed toin the status of a Hindu undivided family. In the account period relevant to the assessment yearthe assessee opened a branch at Karachi. The total income for that assessment year was determined at Rs. 38,400. For the assessment years46 the assessee maintained joint accounts for the whole period of two years. In the assessment yearhe opened a branch office at Bombay. The original assessment for the aforesaid two years was completed under the provisions of S. 23 (3) of theAct on September 13, 1946. In the assessment for the year(Samvat year 2000) the assessees income was derived from his cloth business carried on at Ahmedabad, Karachi and Bombay and certain other properties. Separate sets of accounts were maintained for the head office as well as for the two branches. The books of accounts were produced and were examined by the Examiner of Accounts who submitted a report to theOfficer concerned. The total income for the assessment yearwas determined to be Rs. 15,294. Sometime after the completion of the said assessment, theOfficer concerned received information that the assessee had purchased a draft of Rs. 1,10,000 from the Exchange Bank of India and Africa Ltd. at Bombay and the draft was deposited on July 17, 1944 in a branch of the said Bank at Ahmedabad for realisation. In consequence and on the basis of this information, theOfficer initiated a proceeding under S. 34 (1) (a) of theAct against the assessee by issuing a notice to the latter on March 24, 1954. It may be here stated that the exact date on which theOfficer came to know of the purchase of the draft for Rs. 1,10,000 is not known. TheOfficer also issued a notice to the assessee under S. 22 (4) to produce his account books for the Samvat year 2000 and his passbooks of the Exchange Bank of India and Africa Ltd. The assessee gave a certain explanation for not being able to produce either his account books or the pass books of the said Bank. TheOfficer disbelieved the explanation and by a revised assessment order made on October 15, 1954, added a sum of Rs. 1,10,000 as income from an undisclosed source, which had escaped assessment in the original assessment. There was an appeal to the Appellate Assistant Commissioner who confirmed the order of theOfficer. Then, there was an appeal to the Tribunal. The Tribunal allowed the appeal on the ground that S. 34 (1(a) was not applicable inasmuch as there was no omission or failure on the part of the assessee to make a return of his income under S. 22 for the yearor to disclose fully and truly all material facts necessary for his assessment for that year. The Tribunal pointed out that at the time of the Original assessment the assessee had produced his books of account with regard to all the three offices at Ahmedabad, Bombay and Karachi. The assessee also filed therelating to his business at the aforesaid three places. The Tribunal further pointed out that before completing the assessment for the years6, theOfficer had called for all the relevant account books which had been examined by an Examiner of Accounts, an officer subordinate to theOfficer. This officer submitted a report relating to the account books of the Ahmedabad business and he mentioned therein that the assessee had accounts with the Exchange Bank of India and Africa Ltd. and certain other banks. The Tribunal held that in these circumstances it could not be said that there was any omission or failure on the part of the assessee to make a return of his income under S. 22 or to disclose fully and truly all material facts necessary for his assessment for the yearThe present appellant then moved the Tribunal under S. 66 (1) of theAct and asked the Tribunal to state a case to the High Court of Bombay on the following question of law, which, according to the appellant, arose out of the Tribunals orderThe Tribunal rejected the application under S. 66 (1) on two grounds: firstly, that the question which the appellant said arose out of the Tribunals order was a question of fact and not a question of law and secondly, that the question suggested by the appellant was misconceived, because the question before the Tribunal at the time of the hearing of the appeal was not whether the assessee had failed to disclose the transaction of Rs. 1,10,000 in his return and the statements accompanying it, but whether there was any omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the year in question. The appellant then moved the High Court of Bombay under S. 66 (2) of toAct. That application, as we have stated already, was summarily dismissed by the High Court by its order, dated December 14,are unable to accept this argument as correct. First of all, it must be pointed out that the question which the appellant suggested should be referred to the High Court in his petitions under S. 66 (1) and S. 66 (2) of theAct is different from the question which is now raised by the learned Advocate for theagree with the view expressed by the Tribunal that the question suggested was misconceived, because what the Tribunal had to consider was whether the proceeding under S. 34 (1) (a) was properly initiated by theOfficer in the yearwhat the Tribunal had to consider was whether the assessee had fully and truly disclosed all material facts necessary for the assessment. The Tribunal examined all the relevant materials produced by the assessee at the time of the original assessment and came to the conclusion that there was no omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. The Tribunal referred to the account books produced by the assessee and particularly to the report of the Examiner of Accounts who submitted a report to theOfficer with regard to the bank account of the assessee in the Exchange Bank of India and Africa Ltd. In our opinion, in the circumstances of this case the question whether the assessee had or had not failed to disclose fully and truly all material facts necessary for his assessment was a question of fact and we are unable to accept the argument of the learned Advocate for the appellant to the contrary. | 0 | 2,225 | 1,334 | ### Instruction:
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the assessee to make a return of his income under S. 22 or to disclose fully and truly all material facts necessary for his assessment for the year 1945-46. The present appellant then moved the Tribunal under S. 66 (1) of the Income-tax Act and asked the Tribunal to state a case to the High Court of Bombay on the following question of law, which, according to the appellant, arose out of the Tribunals order :Whether on the facts and in the circumstances of the case, and having particular regard to the fact that the return and the statements accompanying the return furnished by the assessee during the course of the assessment proceedings for 1945-46 did not indicate such a large transaction as Rs. 1,10,000 by a single bank draft, the Income-tax Officer was right in starting proceedings under S. 34 (1) (a) on the receipt of the information about the above transaction, to make a re-assessment for 1945-46?"4. The Tribunal rejected the application under S. 66 (1) on two grounds: firstly, that the question which the appellant said arose out of the Tribunals order was a question of fact and not a question of law and secondly, that the question suggested by the appellant was misconceived, because the question before the Tribunal at the time of the hearing of the appeal was not whether the assessee had failed to disclose the transaction of Rs. 1,10,000 in his return and the statements accompanying it, but whether there was any omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the year in question. The appellant then moved the High Court of Bombay under S. 66 (2) of to Income-tax Act. That application, as we have stated already, was summarily dismissed by the High Court by its order, dated December 14, 1956.5. The learned Advocate for the appellant has contended before us that the finding of the Tribunal that there was no omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment was based on surmises and conjectures and there were no materials on which the Tribunal could come to such a conclusion; therefore, it has been argued that a question of law arose out of the Tribunals order and the High Court was wrong in summarily rejecting the petition made by the appellant under S. 66(2) of the Income-tax Act. We are unable to accept this argument as correct. First of all, it must be pointed out that the question which the appellant suggested should be referred to the High Court in his petitions under S. 66 (1) and S. 66 (2) of the Income-tax Act is different from the question which is now raised by the learned Advocate for the appellant. The question now raised for the first time before us by the learned Advocate for the appellant is that the Tribunal had no materials on which to find that there was no omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment and that the finding of the Tribunal was based on surmises and conjectures. That, however, was not the question which was suggested for reference to the High Court at the stage when the petitions under S. 66 were made. At that stage the question suggested was whether on the facts and in the circumstances of the case and having particular regard to the return made by the assessee and the statements accompanying it, the assessee did not indicate that he had obtained a bank draft for Rs. 1,10,000. We agree with the view expressed by the Tribunal that the question suggested was misconceived, because what the Tribunal had to consider was whether the proceeding under S. 34 (1) (a) was properly initiated by the Income-tax Officer in the year 1954. It must be remembered that the original assessment was completed on September 13, 1946 and more than four years had passed, and at the relevant time the period during which the Income-tax Officer could take action under S. 34 (1) (a) was eight years. It is true that the eight years had not expired on March 24. 1954 when the notice under S. 34 (1) (a) was issued. But the pre-requisite condition for the initiation of a proceeding under S. 34 (1) (a) is that "the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee .... to disclose fully and truly all material facts necessary for his assessment for that year", income, profits or gains chargeable to income-tax have escaped assessment etc. That condition must be fulfilled before the Income-tax Officer can take action under S. 34 (1) (a). (See Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta, 1961-41 ITR 191 : (AIR 1961 SC 372 )).Therefore, what the Tribunal had to consider was whether the assessee had fully and truly disclosed all material facts necessary for the assessment. The Tribunal examined all the relevant materials produced by the assessee at the time of the original assessment and came to the conclusion that there was no omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. The Tribunal referred to the account books produced by the assessee and particularly to the report of the Examiner of Accounts who submitted a report to the Income-tax Officer with regard to the bank account of the assessee in the Exchange Bank of India and Africa Ltd. In our opinion, in the circumstances of this case the question whether the assessee had or had not failed to disclose fully and truly all material facts necessary for his assessment was a question of fact and we are unable to accept the argument of the learned Advocate for the appellant to the contrary.
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the provisions of S. 23 (3) of theAct on September 13, 1946. In the assessment for the year(Samvat year 2000) the assessees income was derived from his cloth business carried on at Ahmedabad, Karachi and Bombay and certain other properties. Separate sets of accounts were maintained for the head office as well as for the two branches. The books of accounts were produced and were examined by the Examiner of Accounts who submitted a report to theOfficer concerned. The total income for the assessment yearwas determined to be Rs. 15,294. Sometime after the completion of the said assessment, theOfficer concerned received information that the assessee had purchased a draft of Rs. 1,10,000 from the Exchange Bank of India and Africa Ltd. at Bombay and the draft was deposited on July 17, 1944 in a branch of the said Bank at Ahmedabad for realisation. In consequence and on the basis of this information, theOfficer initiated a proceeding under S. 34 (1) (a) of theAct against the assessee by issuing a notice to the latter on March 24, 1954. It may be here stated that the exact date on which theOfficer came to know of the purchase of the draft for Rs. 1,10,000 is not known. TheOfficer also issued a notice to the assessee under S. 22 (4) to produce his account books for the Samvat year 2000 and his passbooks of the Exchange Bank of India and Africa Ltd. The assessee gave a certain explanation for not being able to produce either his account books or the pass books of the said Bank. TheOfficer disbelieved the explanation and by a revised assessment order made on October 15, 1954, added a sum of Rs. 1,10,000 as income from an undisclosed source, which had escaped assessment in the original assessment. There was an appeal to the Appellate Assistant Commissioner who confirmed the order of theOfficer. Then, there was an appeal to the Tribunal. The Tribunal allowed the appeal on the ground that S. 34 (1(a) was not applicable inasmuch as there was no omission or failure on the part of the assessee to make a return of his income under S. 22 for the yearor to disclose fully and truly all material facts necessary for his assessment for that year. The Tribunal pointed out that at the time of the Original assessment the assessee had produced his books of account with regard to all the three offices at Ahmedabad, Bombay and Karachi. The assessee also filed therelating to his business at the aforesaid three places. The Tribunal further pointed out that before completing the assessment for the years6, theOfficer had called for all the relevant account books which had been examined by an Examiner of Accounts, an officer subordinate to theOfficer. This officer submitted a report relating to the account books of the Ahmedabad business and he mentioned therein that the assessee had accounts with the Exchange Bank of India and Africa Ltd. and certain other banks. The Tribunal held that in these circumstances it could not be said that there was any omission or failure on the part of the assessee to make a return of his income under S. 22 or to disclose fully and truly all material facts necessary for his assessment for the yearThe present appellant then moved the Tribunal under S. 66 (1) of theAct and asked the Tribunal to state a case to the High Court of Bombay on the following question of law, which, according to the appellant, arose out of the Tribunals orderThe Tribunal rejected the application under S. 66 (1) on two grounds: firstly, that the question which the appellant said arose out of the Tribunals order was a question of fact and not a question of law and secondly, that the question suggested by the appellant was misconceived, because the question before the Tribunal at the time of the hearing of the appeal was not whether the assessee had failed to disclose the transaction of Rs. 1,10,000 in his return and the statements accompanying it, but whether there was any omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the year in question. The appellant then moved the High Court of Bombay under S. 66 (2) of toAct. That application, as we have stated already, was summarily dismissed by the High Court by its order, dated December 14,are unable to accept this argument as correct. First of all, it must be pointed out that the question which the appellant suggested should be referred to the High Court in his petitions under S. 66 (1) and S. 66 (2) of theAct is different from the question which is now raised by the learned Advocate for theagree with the view expressed by the Tribunal that the question suggested was misconceived, because what the Tribunal had to consider was whether the proceeding under S. 34 (1) (a) was properly initiated by theOfficer in the yearwhat the Tribunal had to consider was whether the assessee had fully and truly disclosed all material facts necessary for the assessment. The Tribunal examined all the relevant materials produced by the assessee at the time of the original assessment and came to the conclusion that there was no omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. The Tribunal referred to the account books produced by the assessee and particularly to the report of the Examiner of Accounts who submitted a report to theOfficer with regard to the bank account of the assessee in the Exchange Bank of India and Africa Ltd. In our opinion, in the circumstances of this case the question whether the assessee had or had not failed to disclose fully and truly all material facts necessary for his assessment was a question of fact and we are unable to accept the argument of the learned Advocate for the appellant to the contrary.
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J.K. Cotton Manufactures Ltd Vs. The Commissioner Of Income Tax, Lucknow | down particularly in cases where the managing agency is terminated would be to find out whether the termination of the agency is in terrorem or purely voluntary for obtaining substantial benefits. In other words, the decisive test to determine whether or not termination of the agency is in terrorem would be to find out if in such a case commercial expediency requires that the agency should be terminated as it had become onerous or it was creating difficulties or the agents were guilty of negligence, etc. It will also include payments for retrenchment compensation or conferment of benefits on employees or termination of other disadvantages or onerous relationshipsThese are some of the instances which I have given but they are by no means exhaustive. The present case, however, falls within condition No. (4) pointed out by us above, and the termination of the agency cannot be said to be in terrorem but was voluntary so as to obtain an enduring or recurring benefit 30. Before applying these tests to the facts of the present case, I would like to stress the important ingredients of section 10(2)(xv) of the Income-tax Act, 1922, itself. Section 10(2)(xv) runs thus 10. (2) Such profits or gains shall be computed after making the following allowances, namely (xv) any expenditure (not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation. An analysis of this section would clearly show that in order to be deductible expense the amount in question must fulfil two essential conditions : (i) that expense must be laid out wholly and exclusively for the purpose of the business, profession or vocation ; and (ii) that it should not be expense of a capital nature. Both these conditions have to be complied with before an assessee can claim deduction under section 10(2)(xv). The High Court in this case has found that while the assessee had complied with the first condition that the expenditure was incurred for the purpose of the business, yet it has held that in the circumstances the expenditure is of a capital nature. It cannot be argued as was suggested by Mr. Asoke Sen at one time that whenever an expenditure is incurred in the course of the business it would never be a capital expenditure because section 37 of the Income-tax Act, 1961, itself contemplates a contingency where even though the expenditure may be incurred wholly and exclusively for the purpose of the business yet it may be of a capital natureLet us now apply the test laid down by the courts as specified by us to the facts of the present case. We have already given the facts found by the Tribunal which have not been disputed before us. In this connection there are two circumstances which clearly indicate that the expenses incurred by the assessee were not dictated by commercial expediency but were inspired by a profit-hunting motive (1) That there was absolutely no necessity to terminate the managing agency of Juggilal Kamlapat only two years after the appellant entered into agreement with them. There was no complaint that the agents had in any way caused any loss or damage to the appellant or to their reputation, nor was there anything to show that the outgoing agents were guilty of negligence, laches, fraud or inefficiency. In these circumstances, therefore, the only irresistible inference that could be drawn is that the assessee wanted to benefit both the firms, namely, incoming agents and the outgoing agents, which belonged to the Singhania family as found by the Tribunal and not disputed before us. The outgoing agents were benefited because an amount of Rs. 2, 50, 000 was paid to them and the incoming agents were benefited because they were given the managing agency of the company and as found by the Tribunal the appellant had pledged their goods in lieu of advance (2) That it is the admitted case of the appellant that by virtue of the fact that the incoming agents had agreed to charge only 2% commission, the appellant got a benefit of Rs. 30, 000 per annum. This amount is a recurring benefit to the appellant and can safely be regarded as an advantage of an enduring nature so as to fall within the definition laid down by Viscount Cave L.C 31. In these circumstances, therefore, the present case is fully covered by the decision of this court in Godrej & Co.s caseFor these reasons we are satisfied that the High Court was right in holding that the disbursement of compensation of Rs. 2, 50, 000 was of a capital nature and was, therefore, not deductible expenditure under section 10(2)(xv) of the Indian Income-tax Act, 1922. We, however, feel that the High Court was in error in giving a cryptic finding that the expenditure in question was incurred wholly and exclusively for the purpose of the business. This finding has been arrived at without considering the facts mentioned by us above and is not borne out from the facts and circumstances proved in this case. Nevertheless, we uphold the order of the High Court on reasons different from those given by the High Court 32. We would, however, like to make it clear that we have held that the compensation paid to the outgoing agents in the peculiar facts of the present case amounts to capital expenditure. But we should not be understood as laying down a general rule that in all cases where compensation is paid to the managing agents whose agency is terminated it would amount to capital expenditure. We have already pointed out the various tests to be applied which are by no means exhaustive, nor are they of universal application. Each case has to be examined in the light of the circumstances of that case 33. | 0[ds]The Tribunal, on the basis of these facts, came to the conclusion that the compensation was paid due to extra-commercial reasons and could not be regarded as expenditure incurred wholly and exclusively for the purpose of the business. The High Court differed from the reasons given by the Tribunal but affirmed its view on the ground that the expenditure incurred by the assessee-company being of a capital nature it was not deductibleHaving regard to the facts and circumstances of the present case we have no doubt that this case is wholly covered by the decision of this court in Godrej & Co.s case. In this case, while it is true that this court was dealing with the case of compensation in the hands of payee-company who were the agents, yet in view of the clear observations made by the court there can be no manner of doubt that the expenses incurred in the present case by way of payment of compensation to the outgoing agents would be of a capital natureMr. Asoke Sen tried to distinguish this case on the ground that the court was concerned in the Godrej & Co.s case only with the nature of the payment in the hands of the payee-company and any observations made as to what would be the nature of the payment in the hands of the payer-company would be obiter, and, therefore, not binding on this court. We are, however, unable to agree with this view. Godrej & Co.s case his considered all the previous decisions and has clearly laid down that in the circumstances, such as the present, the expenditure incurred would be a capital expenditure in the hands of the payer-company and a capital receipt in the hands of the payee-company within the meaning of section 10(2)(xv) of the Income-tax Act. The distinction sought to be made by the learned counsel for the appellant is extremely subtle and it is a distinction without any difference. Moreover, there are a number of other circumstances which clearly show that the expenditure concerned cannot but be treated as a capital expenditureon the facts and circumstances of the present case, we do not find any special reasons to reconsider the decision in Godrej & Co.s case, particularly when in view of the facts and circumstances of this case we are really of the opinion that the amount in question is undoubtedly a capital expenditureIt is true that some observations in the aforesaid case are presumably in favour of the appellant but the Calcutta High Court was careful to guard itself against its decision being treated as a general principle to apply to all cases and in this connection it observed as follows The case of payer and payee must be considered upon an independent statement of the relevant facts proved in his presence, there being no overriding principle of law that the income-tax authorities are entitled to tax once at least on every payment.In the instant case, as we have already pointed out, termination of the managing agency of the outgoing agents was a voluntary act not caused by any negligence or inefficiency by the outgoing managing agents. In these circumstances, on the facts and circumstances, we would not consider whether it was commercially expedient in order to facilitate business that the managing agency of the outgoing agents should have been terminatedWe have already said that the inference drawn on the material on record is that the managing agency agreement had been terminated with the object of taking over its management by the board of directors and there is no evidence which will lead to an inference that it was done with the oblique motive or oblique purpose of securing the payment of the said amount of Rs. 17 lakhs to the managing agentsSeveral tests that have been evolved over the years by this court as also the other High Courts may be briefly formulated as follows(1) Bringing into existence an asset or advantage of enduring nature would lead to the inference that the expenditure disbursed is of a capital nature. These terms, such asasset or advantage of enduring natureare, however, purely descriptive rather than definitive and no rule of universal application can be laid down. Ultimately, the question will have to depend on the facts and circumstances of each case, namely, quality and quantum of the amount, the position of the parties, the object of the transaction which has impact on the business, the nature of trade for which the expenditure is incurred and the purpose thereof, etc(2) An item of disbursement may be regarded as of a capital nature when it is relatable to a fixed asset or capital, whereas the circulating capital or stock-in-trade would be treated as revenue receiptSmith & Son v.Moore has aptly and adroitly explained the termsed capital is what the assessee turns into profit by keeping it in his own possession and circulating capital is what he makes profit of by parting with it and letting it change masters.(3) Expenditure relating to framework of business is generally capital expenditure(4) Another important and safe test that may be laid down particularly in cases where the managing agency is terminated would be to find out whether the termination of the agency is in terrorem or purely voluntary for obtaining substantial benefits. In other words, the decisive test to determine whether or not termination of the agency is in terrorem would be to find out if in such a case commercial expediency requires that the agency should be terminated as it had become onerous or it was creating difficulties or the agents were guilty of negligence, etc. It will also include payments for retrenchment compensation or conferment of benefits on employees or termination of other disadvantages or onerous relationshipsThese are some of the instances which I have given but they are by no means exhaustive. The present case, however, falls within condition No. (4) pointed out by us above, and the termination of the agency cannot be said to be in terrorem but was voluntary so as to obtain an enduring or recurring benefitBefore applying these tests to the facts of the present case, I would like to stress the important ingredients of section 10(2)(xv) of the Income-tax Act, 1922, itself. Section 10(2)(xv) runs thus0. (2) Such profits or gains shall be computed after making the following allowances, namely(xv) any expenditure (not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation.An analysis of this section would clearly show that in order to be deductible expense the amount in question must fulfil two essential conditions : (i) that expense must be laid out wholly and exclusively for the purpose of the business, profession or vocation ; and (ii) that it should not be expense of a capital nature. Both these conditions have to be complied with before an assessee can claim deduction under section 10(2)(xv). The High Court in this case has found that while the assessee had complied with the first condition that the expenditure was incurred for the purpose of the business, yet it has held that in the circumstances the expenditure is of a capital nature. It cannot be argued as was suggested by Mr. Asoke Sen at one time that whenever an expenditure is incurred in the course of the business it would never be a capital expenditure because section 37 of the Income-tax Act, 1961, itself contemplates a contingency where even though the expenditure may be incurred wholly and exclusively for the purpose of the business yet it may be of a capital natureLet us now apply the test laid down by the courts as specified by us to the facts of the present case. We have already given the facts found by the Tribunal which have not been disputed before us. In this connection there are two circumstances which clearly indicate that the expenses incurred by the assessee were not dictated by commercial expediency but were inspired by a profit-hunting motive(1) That there was absolutely no necessity to terminate the managing agency of Juggilal Kamlapat only two years after the appellant entered into agreement with them. There was no complaint that the agents had in any way caused any loss or damage to the appellant or to their reputation, nor was there anything to show that the outgoing agents were guilty of negligence, laches, fraud or inefficiency. In these circumstances, therefore, the only irresistible inference that could be drawn is that the assessee wanted to benefit both the firms, namely, incoming agents and the outgoing agents, which belonged to the Singhania family as found by the Tribunal and not disputed before us. The outgoing agents were benefited because an amount of Rs. 2, 50, 000 was paid to them and the incoming agents were benefited because they were given the managing agency of the company and as found by the Tribunal the appellant had pledged their goods in lieu of advance(2) That it is the admitted case of the appellant that by virtue of the fact that the incoming agents had agreed to charge only 2% commission, the appellant got a benefit of Rs. 30, 000 per annum. This amount is a recurring benefit to the appellant and can safely be regarded as an advantage of an enduring nature so as to fall within the definition laid down by Viscount Cave L.CIn these circumstances, therefore, the present case is fully covered by the decision of this court in Godrej & Co.s caseFor these reasons we are satisfied that the High Court was right in holding that the disbursement of compensation of Rs. 2, 50, 000 was of a capital nature and was, therefore, not deductible expenditure under section 10(2)(xv) of the Indian Income-tax Act, 1922. We, however, feel that the High Court was in error in giving a cryptic finding that the expenditure in question was incurred wholly and exclusively for the purpose of the business. This finding has been arrived at without considering the facts mentioned by us above and is not borne out from the facts and circumstances proved in this case. Nevertheless, we uphold the order of the High Court on reasons different from those given by the High CourtWe would, however, like to make it clear that we have held that the compensation paid to the outgoing agents in the peculiar facts of the present case amounts to capital expenditure. But we should not be understood as laying down a general rule that in all cases where compensation is paid to the managing agents whose agency is terminated it would amount to capital expenditure. We have already pointed out the various tests to be applied which are by no means exhaustive, nor are they of universal application. Each case has to be examined in the light of the circumstances of that case | 0 | 6,089 | 2,017 | ### 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:
down particularly in cases where the managing agency is terminated would be to find out whether the termination of the agency is in terrorem or purely voluntary for obtaining substantial benefits. In other words, the decisive test to determine whether or not termination of the agency is in terrorem would be to find out if in such a case commercial expediency requires that the agency should be terminated as it had become onerous or it was creating difficulties or the agents were guilty of negligence, etc. It will also include payments for retrenchment compensation or conferment of benefits on employees or termination of other disadvantages or onerous relationshipsThese are some of the instances which I have given but they are by no means exhaustive. The present case, however, falls within condition No. (4) pointed out by us above, and the termination of the agency cannot be said to be in terrorem but was voluntary so as to obtain an enduring or recurring benefit 30. Before applying these tests to the facts of the present case, I would like to stress the important ingredients of section 10(2)(xv) of the Income-tax Act, 1922, itself. Section 10(2)(xv) runs thus 10. (2) Such profits or gains shall be computed after making the following allowances, namely (xv) any expenditure (not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation. An analysis of this section would clearly show that in order to be deductible expense the amount in question must fulfil two essential conditions : (i) that expense must be laid out wholly and exclusively for the purpose of the business, profession or vocation ; and (ii) that it should not be expense of a capital nature. Both these conditions have to be complied with before an assessee can claim deduction under section 10(2)(xv). The High Court in this case has found that while the assessee had complied with the first condition that the expenditure was incurred for the purpose of the business, yet it has held that in the circumstances the expenditure is of a capital nature. It cannot be argued as was suggested by Mr. Asoke Sen at one time that whenever an expenditure is incurred in the course of the business it would never be a capital expenditure because section 37 of the Income-tax Act, 1961, itself contemplates a contingency where even though the expenditure may be incurred wholly and exclusively for the purpose of the business yet it may be of a capital natureLet us now apply the test laid down by the courts as specified by us to the facts of the present case. We have already given the facts found by the Tribunal which have not been disputed before us. In this connection there are two circumstances which clearly indicate that the expenses incurred by the assessee were not dictated by commercial expediency but were inspired by a profit-hunting motive (1) That there was absolutely no necessity to terminate the managing agency of Juggilal Kamlapat only two years after the appellant entered into agreement with them. There was no complaint that the agents had in any way caused any loss or damage to the appellant or to their reputation, nor was there anything to show that the outgoing agents were guilty of negligence, laches, fraud or inefficiency. In these circumstances, therefore, the only irresistible inference that could be drawn is that the assessee wanted to benefit both the firms, namely, incoming agents and the outgoing agents, which belonged to the Singhania family as found by the Tribunal and not disputed before us. The outgoing agents were benefited because an amount of Rs. 2, 50, 000 was paid to them and the incoming agents were benefited because they were given the managing agency of the company and as found by the Tribunal the appellant had pledged their goods in lieu of advance (2) That it is the admitted case of the appellant that by virtue of the fact that the incoming agents had agreed to charge only 2% commission, the appellant got a benefit of Rs. 30, 000 per annum. This amount is a recurring benefit to the appellant and can safely be regarded as an advantage of an enduring nature so as to fall within the definition laid down by Viscount Cave L.C 31. In these circumstances, therefore, the present case is fully covered by the decision of this court in Godrej & Co.s caseFor these reasons we are satisfied that the High Court was right in holding that the disbursement of compensation of Rs. 2, 50, 000 was of a capital nature and was, therefore, not deductible expenditure under section 10(2)(xv) of the Indian Income-tax Act, 1922. We, however, feel that the High Court was in error in giving a cryptic finding that the expenditure in question was incurred wholly and exclusively for the purpose of the business. This finding has been arrived at without considering the facts mentioned by us above and is not borne out from the facts and circumstances proved in this case. Nevertheless, we uphold the order of the High Court on reasons different from those given by the High Court 32. We would, however, like to make it clear that we have held that the compensation paid to the outgoing agents in the peculiar facts of the present case amounts to capital expenditure. But we should not be understood as laying down a general rule that in all cases where compensation is paid to the managing agents whose agency is terminated it would amount to capital expenditure. We have already pointed out the various tests to be applied which are by no means exhaustive, nor are they of universal application. Each case has to be examined in the light of the circumstances of that case 33.
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generally capital expenditure(4) Another important and safe test that may be laid down particularly in cases where the managing agency is terminated would be to find out whether the termination of the agency is in terrorem or purely voluntary for obtaining substantial benefits. In other words, the decisive test to determine whether or not termination of the agency is in terrorem would be to find out if in such a case commercial expediency requires that the agency should be terminated as it had become onerous or it was creating difficulties or the agents were guilty of negligence, etc. It will also include payments for retrenchment compensation or conferment of benefits on employees or termination of other disadvantages or onerous relationshipsThese are some of the instances which I have given but they are by no means exhaustive. The present case, however, falls within condition No. (4) pointed out by us above, and the termination of the agency cannot be said to be in terrorem but was voluntary so as to obtain an enduring or recurring benefitBefore applying these tests to the facts of the present case, I would like to stress the important ingredients of section 10(2)(xv) of the Income-tax Act, 1922, itself. Section 10(2)(xv) runs thus0. (2) Such profits or gains shall be computed after making the following allowances, namely(xv) any expenditure (not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation.An analysis of this section would clearly show that in order to be deductible expense the amount in question must fulfil two essential conditions : (i) that expense must be laid out wholly and exclusively for the purpose of the business, profession or vocation ; and (ii) that it should not be expense of a capital nature. Both these conditions have to be complied with before an assessee can claim deduction under section 10(2)(xv). The High Court in this case has found that while the assessee had complied with the first condition that the expenditure was incurred for the purpose of the business, yet it has held that in the circumstances the expenditure is of a capital nature. It cannot be argued as was suggested by Mr. Asoke Sen at one time that whenever an expenditure is incurred in the course of the business it would never be a capital expenditure because section 37 of the Income-tax Act, 1961, itself contemplates a contingency where even though the expenditure may be incurred wholly and exclusively for the purpose of the business yet it may be of a capital natureLet us now apply the test laid down by the courts as specified by us to the facts of the present case. We have already given the facts found by the Tribunal which have not been disputed before us. In this connection there are two circumstances which clearly indicate that the expenses incurred by the assessee were not dictated by commercial expediency but were inspired by a profit-hunting motive(1) That there was absolutely no necessity to terminate the managing agency of Juggilal Kamlapat only two years after the appellant entered into agreement with them. There was no complaint that the agents had in any way caused any loss or damage to the appellant or to their reputation, nor was there anything to show that the outgoing agents were guilty of negligence, laches, fraud or inefficiency. In these circumstances, therefore, the only irresistible inference that could be drawn is that the assessee wanted to benefit both the firms, namely, incoming agents and the outgoing agents, which belonged to the Singhania family as found by the Tribunal and not disputed before us. The outgoing agents were benefited because an amount of Rs. 2, 50, 000 was paid to them and the incoming agents were benefited because they were given the managing agency of the company and as found by the Tribunal the appellant had pledged their goods in lieu of advance(2) That it is the admitted case of the appellant that by virtue of the fact that the incoming agents had agreed to charge only 2% commission, the appellant got a benefit of Rs. 30, 000 per annum. This amount is a recurring benefit to the appellant and can safely be regarded as an advantage of an enduring nature so as to fall within the definition laid down by Viscount Cave L.CIn these circumstances, therefore, the present case is fully covered by the decision of this court in Godrej & Co.s caseFor these reasons we are satisfied that the High Court was right in holding that the disbursement of compensation of Rs. 2, 50, 000 was of a capital nature and was, therefore, not deductible expenditure under section 10(2)(xv) of the Indian Income-tax Act, 1922. We, however, feel that the High Court was in error in giving a cryptic finding that the expenditure in question was incurred wholly and exclusively for the purpose of the business. This finding has been arrived at without considering the facts mentioned by us above and is not borne out from the facts and circumstances proved in this case. Nevertheless, we uphold the order of the High Court on reasons different from those given by the High CourtWe would, however, like to make it clear that we have held that the compensation paid to the outgoing agents in the peculiar facts of the present case amounts to capital expenditure. But we should not be understood as laying down a general rule that in all cases where compensation is paid to the managing agents whose agency is terminated it would amount to capital expenditure. We have already pointed out the various tests to be applied which are by no means exhaustive, nor are they of universal application. Each case has to be examined in the light of the circumstances of that case
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Paul Brothers (Tailoring Division)And Ors. Etc Vs. Ashim Kumar Mandal And Ors. Etc | 1987 and 44 with the affidavit of July 1988 - while with ine SLP only 17 rent receipts have been annexed. Some of the receipts date back earlier than 1974 though according to the partnership deeds, the business of the firms commenced only in April 1974. The rent receipts bear almost continuous serial numbers. there are several numbers. There are several discrepancies: for example, a receipt dated 6-8-77 bears,no. 59 whereas one dated 10-6-77 bears No. 60 and there are two rent receipts for July 1977. The rent receipts in favour of Paul Bros. (Electricals) are in the name of R. K. Paul who is not a partner therein according to the deed and who is referred to in the Corporation records as a goldsmith. There is no rent receipt from Avamayee Paul or her estate and Satyanarayan Paul, Ashoka Paul, Dilip Paul or Mihir Paul are not recorded as owners. There is not a single affidavit by any of the signatories to the receipts vouching for their genuineness; (6) There is no effort by these three or the other claimants to pay the rents, after the attachment of the premises, either to the Commissioner or to the Mandals. Their case that they did not know about the attachments was false; (7) There is no difference between the case of the claimants in the cases of Amar Mandal and Jagdlsh Prasad Agarwalla and that of the various claimants herein. 31. WE have carefully considered the contentions of the parties. It is true that, some of the grounds of criticism of the evidence produced by the claimants are valid. A certain amount of difficulty has been caused by the uncertainty as the nature of the proceedings conducted by the High Court in pursuance of the order of this Court. It appears that the Court has produced to consider the issues in a summary manner on the basis of the affidavits of the claimants and on prima facie consideration of the documents formally as well as informally. produced in support thereof. The enquiry has been somewhat analogous to the procedure which used to be adopted in disposing of petitions by obstructors under the Code of Civil Procedure, 1908, (before its amendment in 1976) which concluded in a tentative finding leaving it open to the parties to file a suit and establish their right to possession. On the other hand, if these are taken to be in the nature of proceedings for the execution of a decree under the amended code, there will have to be a more detailed trial with full opportunity to parties to lead evidence and to examine and cross-examine witnesses, as a finding reached in these proceedings would be final and conclusive. In the present case, the application has been disposed of somewhat summarily and informally. At one stage, therefore, we were inclined to think that the matter, so far as the Pauls are concerned, should be remanded to the High Court for fresh disposal. But, on further consideration, we have come to the conclusion that there is sufficient material placed on record by the claimants to show that Paul Bros. have been in the premises as tenants since long and that no such remand is necessary. Taking all the documents collectively, it is difficult to say that one could reasonably arrive at the conclusion that the Pauls were trespassers or unauthorised occupants. The Mandals have done nothing positive to establish this but to barely deny the genuineness of the various documents put forward on behalf of the claimants. 32. ONE direct piece of evidence is the extract from the municipal records. It was suggested that the photostats produced could not be relied upon and that the entries therein could have been reproduced by some process of superimposition. However, it has been found that, apart from the photostat copies, the original records were summoned and certified extracts produced by the reference to Mihir Paul and, admittedly, have been taken on record. These extracts which relate to the relevant period show the Paul Bors. as tenants in the three shops. It Is true that the estate of Avamayee Paul has been shown as the landlords but the entry contains a reference to Mihir Paul and, admittedly,. Mahamaya Devi purchased the property from Dilip and Mihir. Letters calling for attornment and rent receipts galore have been produced. Though one cannot eschew the possibility of these being got up documents, some foundation must be laid by the Mandals to reject them other than a mere assertion that they are not genuine. The discrepancies suggested are few and minor and do not warrant the summary rejection of the large number of receipts. The electricity bills, phone bills, tax department correspondence likewise prima facie support the claim of the appellants. The mistakes pointed out in the telephone and electricity bills are insignificant. The bills are made out not in the name of M. S. Paul but M/s. Paul Brothers and D. P. Paul is said to be an uncle of the Pauls. These, together with the partnership deeds and municipal licences and correspondence the genuineness of which cannot be rejected straightway, support the claim. No doubt there is a slight discrepancy in that the 1961 deed is not referred to in the 1974 deeds but this cannot entail the rejection of the 1961 deed. We do not wish to elaborate on every one of the other points made by the counsel for the Mandals. It is true that Mahamaya Devi did not refer to them in her objections but she was concerned about saving "her" property from attachment and sale as that of Sanchaitas and the issue about her having let out the property was irrelevant for the decision of her objections. We are satisfied that even in the face of the evidence produced before the High Court (which has been supplemented in some respects before us) it is difficult to treat the Paul Bros. as trespassers or unauthorised occupants in the property. 33. | 1[ds]RI Kapur laid considerable stress on the aspect that, unless vacant possession can be had, no one will purchase any property at the auction sales conducted by thecommissioner as no one would like to face further litigation to secure possession of the property. He submitted that the object which the Court had in mind was to effectuate sales of Sanchaita properties by assuring vacant possession with a view to secure maximum price therefor and to ensure expeditious return to the Sanchaita investors of as much of their deposits as possible and that this object would be totally frustrated if people were encouraged to put in hurdles in the way which will depreciate the value of the property. This contention proceeds, only partially, on a correct basis. It is true that there should be a quick and expeditious realisation of the properties that really belong to Sanchaita. That is why the Court empowered the Commissioner to attach and a all properties that, in his opinion, really belong to Sanchaita though ostensibly held in the names of others and also devised a quick and summary method for adjudication upon claims and removal of obstructions. But this order cannot be availed of to ride rough-shod over the rights and interests of others in the properties which have been created bona fide. If bird parties who have acquired real interests 1 in the property, either independent of, or even through, Sanchaita cannot be called upon to give up their rights. To do so would be to do more than merely realise what rightfully belongs to Sanchaitas; it would amount to conferring on Sanchaita a better title than it had, in fact, acquired. The depositors or investors in Sanchaita cannot claim any such rights. It is, therefore, difficult to accept the ground urged by Sri Kapoor as entitling the Mandals to an interest that can ignore or override all manner of rights and interests in the auctioned propertiesOR the above reasons, we are unable to accept the plea that the Mandals are entitled to get vacant possession of the premises, irrespective of the nature of the interests the claimants had therein and that,on this ground alone, we should uphold the order of the Division Bench. We shall, therefore, proceed to consider how far the claim of each one of the appellants before us to continue in possession of the property, unless and until evicted in due course by process of law, is maintainableWE have carefully considered the contentions of the parties. It is true that, some of the grounds of criticism of the evidence produced by the claimants are valid. A certain amount of difficulty has been caused by the uncertainty as the nature of the proceedings conducted by the High Court in pursuance of the order of this Court. It appears that the Court has produced to consider the issues in a summary manner on the basis of the affidavits of the claimants and on prima facie consideration of the documents formally as well as informally. produced in support thereof. The enquiry has been somewhat analogous to the procedure which used to be adopted in disposing of petitions by obstructors under theCode of Civil Procedure, 1908, (before its amendment in 1976) which concluded in a tentative finding leaving it open to the parties to file a suit and establish their right to possession. On the other hand, if these are taken to be in the nature of proceedings for the execution of a decree under the amended code, there will have to be a more detailed trial with full opportunity to parties to lead evidence and to examine and cross-examine witnesses, as a finding reached in these proceedings would be final and conclusive. In the present case, the application has been disposed of somewhat summarily and informally. At one stage, therefore, we were inclined to think that the matter, so far as the Pauls are concerned, should be remanded to the High Court for fresh disposal. But, on further consideration, we have come to the conclusion that there is sufficient material placed on record by the claimants to show that Paul Bros. have been in the premises as tenants since long and that no such remand is necessary. Taking all the documents collectively, it is difficult to say that one could reasonably arrive at the conclusion that the Pauls were trespassers or unauthorised occupants. The Mandals have done nothing positive to establish this but to barely deny the genuineness of the various documents put forward on behalf of the claimantsNE direct piece of evidence is the extract from the municipal records. It was suggested that the photostats produced could not be relied upon and that the entries therein could have been reproduced by some process of superimposition. However, it has been found that, apart from the photostat copies, the original records were summoned and certified extracts produced by the reference to Mihir Paul and, admittedly, have been taken on record. These extracts which relate to the relevant period show the Paul Bors. as tenants in the three shops. It Is true that the estate of Avamayee Paul has been shown as the landlords but the entry contains a reference to Mihir Paul and, admittedly,. Mahamaya Devi purchased the property from Dilip and Mihir. Letters calling for attornment and rent receipts galore have been produced. Though one cannot eschew the possibility of these being got up documents, some foundation must be laid by the Mandals to reject them other than a mere assertion that they are not genuine. The discrepancies suggested are few and minor and do not warrant the summary rejection of the large number of receipts. The electricity bills, phone bills, tax department correspondence likewise prima facie support the claim of the appellants. The mistakes pointed out in the telephone and electricity bills are insignificant. The bills are made out not in the name of M. S. Paul but M/s. Paul Brothers and D. P. Paul is said to be an uncle of the Pauls. These, together with the partnership deeds and municipal licences and correspondence the genuineness of which cannot be rejected straightway, support the claim. No doubt there is a slight discrepancy in that the 1961 deed is not referred to in the 1974 deeds but this cannot entail the rejection of the 1961 deed. We do not wish to elaborate on every one of the other points made by the counsel for the Mandals. It is true that Mahamaya Devi did not refer to them in her objections but she was concerned about saving "her" property from attachment and sale as that of Sanchaitas and the issue about her having let out the property was irrelevant for the decision of her objections. We are satisfied that even in the face of the evidence produced before the High Court (which has been supplemented in some respects before us) it is difficult to treat the Paul Bros. as trespassers or unauthorised occupants in the property. | 1 | 12,831 | 1,268 | ### 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:
1987 and 44 with the affidavit of July 1988 - while with ine SLP only 17 rent receipts have been annexed. Some of the receipts date back earlier than 1974 though according to the partnership deeds, the business of the firms commenced only in April 1974. The rent receipts bear almost continuous serial numbers. there are several numbers. There are several discrepancies: for example, a receipt dated 6-8-77 bears,no. 59 whereas one dated 10-6-77 bears No. 60 and there are two rent receipts for July 1977. The rent receipts in favour of Paul Bros. (Electricals) are in the name of R. K. Paul who is not a partner therein according to the deed and who is referred to in the Corporation records as a goldsmith. There is no rent receipt from Avamayee Paul or her estate and Satyanarayan Paul, Ashoka Paul, Dilip Paul or Mihir Paul are not recorded as owners. There is not a single affidavit by any of the signatories to the receipts vouching for their genuineness; (6) There is no effort by these three or the other claimants to pay the rents, after the attachment of the premises, either to the Commissioner or to the Mandals. Their case that they did not know about the attachments was false; (7) There is no difference between the case of the claimants in the cases of Amar Mandal and Jagdlsh Prasad Agarwalla and that of the various claimants herein. 31. WE have carefully considered the contentions of the parties. It is true that, some of the grounds of criticism of the evidence produced by the claimants are valid. A certain amount of difficulty has been caused by the uncertainty as the nature of the proceedings conducted by the High Court in pursuance of the order of this Court. It appears that the Court has produced to consider the issues in a summary manner on the basis of the affidavits of the claimants and on prima facie consideration of the documents formally as well as informally. produced in support thereof. The enquiry has been somewhat analogous to the procedure which used to be adopted in disposing of petitions by obstructors under the Code of Civil Procedure, 1908, (before its amendment in 1976) which concluded in a tentative finding leaving it open to the parties to file a suit and establish their right to possession. On the other hand, if these are taken to be in the nature of proceedings for the execution of a decree under the amended code, there will have to be a more detailed trial with full opportunity to parties to lead evidence and to examine and cross-examine witnesses, as a finding reached in these proceedings would be final and conclusive. In the present case, the application has been disposed of somewhat summarily and informally. At one stage, therefore, we were inclined to think that the matter, so far as the Pauls are concerned, should be remanded to the High Court for fresh disposal. But, on further consideration, we have come to the conclusion that there is sufficient material placed on record by the claimants to show that Paul Bros. have been in the premises as tenants since long and that no such remand is necessary. Taking all the documents collectively, it is difficult to say that one could reasonably arrive at the conclusion that the Pauls were trespassers or unauthorised occupants. The Mandals have done nothing positive to establish this but to barely deny the genuineness of the various documents put forward on behalf of the claimants. 32. ONE direct piece of evidence is the extract from the municipal records. It was suggested that the photostats produced could not be relied upon and that the entries therein could have been reproduced by some process of superimposition. However, it has been found that, apart from the photostat copies, the original records were summoned and certified extracts produced by the reference to Mihir Paul and, admittedly, have been taken on record. These extracts which relate to the relevant period show the Paul Bors. as tenants in the three shops. It Is true that the estate of Avamayee Paul has been shown as the landlords but the entry contains a reference to Mihir Paul and, admittedly,. Mahamaya Devi purchased the property from Dilip and Mihir. Letters calling for attornment and rent receipts galore have been produced. Though one cannot eschew the possibility of these being got up documents, some foundation must be laid by the Mandals to reject them other than a mere assertion that they are not genuine. The discrepancies suggested are few and minor and do not warrant the summary rejection of the large number of receipts. The electricity bills, phone bills, tax department correspondence likewise prima facie support the claim of the appellants. The mistakes pointed out in the telephone and electricity bills are insignificant. The bills are made out not in the name of M. S. Paul but M/s. Paul Brothers and D. P. Paul is said to be an uncle of the Pauls. These, together with the partnership deeds and municipal licences and correspondence the genuineness of which cannot be rejected straightway, support the claim. No doubt there is a slight discrepancy in that the 1961 deed is not referred to in the 1974 deeds but this cannot entail the rejection of the 1961 deed. We do not wish to elaborate on every one of the other points made by the counsel for the Mandals. It is true that Mahamaya Devi did not refer to them in her objections but she was concerned about saving "her" property from attachment and sale as that of Sanchaitas and the issue about her having let out the property was irrelevant for the decision of her objections. We are satisfied that even in the face of the evidence produced before the High Court (which has been supplemented in some respects before us) it is difficult to treat the Paul Bros. as trespassers or unauthorised occupants in the property. 33.
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opinion, really belong to Sanchaita though ostensibly held in the names of others and also devised a quick and summary method for adjudication upon claims and removal of obstructions. But this order cannot be availed of to ride rough-shod over the rights and interests of others in the properties which have been created bona fide. If bird parties who have acquired real interests 1 in the property, either independent of, or even through, Sanchaita cannot be called upon to give up their rights. To do so would be to do more than merely realise what rightfully belongs to Sanchaitas; it would amount to conferring on Sanchaita a better title than it had, in fact, acquired. The depositors or investors in Sanchaita cannot claim any such rights. It is, therefore, difficult to accept the ground urged by Sri Kapoor as entitling the Mandals to an interest that can ignore or override all manner of rights and interests in the auctioned propertiesOR the above reasons, we are unable to accept the plea that the Mandals are entitled to get vacant possession of the premises, irrespective of the nature of the interests the claimants had therein and that,on this ground alone, we should uphold the order of the Division Bench. We shall, therefore, proceed to consider how far the claim of each one of the appellants before us to continue in possession of the property, unless and until evicted in due course by process of law, is maintainableWE have carefully considered the contentions of the parties. It is true that, some of the grounds of criticism of the evidence produced by the claimants are valid. A certain amount of difficulty has been caused by the uncertainty as the nature of the proceedings conducted by the High Court in pursuance of the order of this Court. It appears that the Court has produced to consider the issues in a summary manner on the basis of the affidavits of the claimants and on prima facie consideration of the documents formally as well as informally. produced in support thereof. The enquiry has been somewhat analogous to the procedure which used to be adopted in disposing of petitions by obstructors under theCode of Civil Procedure, 1908, (before its amendment in 1976) which concluded in a tentative finding leaving it open to the parties to file a suit and establish their right to possession. On the other hand, if these are taken to be in the nature of proceedings for the execution of a decree under the amended code, there will have to be a more detailed trial with full opportunity to parties to lead evidence and to examine and cross-examine witnesses, as a finding reached in these proceedings would be final and conclusive. In the present case, the application has been disposed of somewhat summarily and informally. At one stage, therefore, we were inclined to think that the matter, so far as the Pauls are concerned, should be remanded to the High Court for fresh disposal. But, on further consideration, we have come to the conclusion that there is sufficient material placed on record by the claimants to show that Paul Bros. have been in the premises as tenants since long and that no such remand is necessary. Taking all the documents collectively, it is difficult to say that one could reasonably arrive at the conclusion that the Pauls were trespassers or unauthorised occupants. The Mandals have done nothing positive to establish this but to barely deny the genuineness of the various documents put forward on behalf of the claimantsNE direct piece of evidence is the extract from the municipal records. It was suggested that the photostats produced could not be relied upon and that the entries therein could have been reproduced by some process of superimposition. However, it has been found that, apart from the photostat copies, the original records were summoned and certified extracts produced by the reference to Mihir Paul and, admittedly, have been taken on record. These extracts which relate to the relevant period show the Paul Bors. as tenants in the three shops. It Is true that the estate of Avamayee Paul has been shown as the landlords but the entry contains a reference to Mihir Paul and, admittedly,. Mahamaya Devi purchased the property from Dilip and Mihir. Letters calling for attornment and rent receipts galore have been produced. Though one cannot eschew the possibility of these being got up documents, some foundation must be laid by the Mandals to reject them other than a mere assertion that they are not genuine. The discrepancies suggested are few and minor and do not warrant the summary rejection of the large number of receipts. The electricity bills, phone bills, tax department correspondence likewise prima facie support the claim of the appellants. The mistakes pointed out in the telephone and electricity bills are insignificant. The bills are made out not in the name of M. S. Paul but M/s. Paul Brothers and D. P. Paul is said to be an uncle of the Pauls. These, together with the partnership deeds and municipal licences and correspondence the genuineness of which cannot be rejected straightway, support the claim. No doubt there is a slight discrepancy in that the 1961 deed is not referred to in the 1974 deeds but this cannot entail the rejection of the 1961 deed. We do not wish to elaborate on every one of the other points made by the counsel for the Mandals. It is true that Mahamaya Devi did not refer to them in her objections but she was concerned about saving "her" property from attachment and sale as that of Sanchaitas and the issue about her having let out the property was irrelevant for the decision of her objections. We are satisfied that even in the face of the evidence produced before the High Court (which has been supplemented in some respects before us) it is difficult to treat the Paul Bros. as trespassers or unauthorised occupants in the property.
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M/S. Holicow Pictures Pvt.Ltd Vs. Prem Chandra Mishra | information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. 21. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra v. Prabhu, [1994] 2 SCC 481 and Andhra Pradesh State Financial Corporation v. M/s GAR Re-Rolling Mills and Anr., AIR (1994) SC 2151 . No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K. Subbarao v. Mr. K. Parasaran, (1996) 7 JT 265). Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public. 22. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. It is also noticed that petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by this Court in several cases newspaper reports do not constitute evidence. A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained. As noted above, such petitions do not provide any basis for verifying the correctness of statements made and information given in the petition. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts. 23. In S.P. Gupta v. Union of India, [1981] Supp. SCC 87, it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the Court under the guise of a public interest litigant. He has also left the following note of caution: (SCC p.219, para 24) "But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective." 24. In State of H.P. v. A Parent of a Student of Medical College, Simla and Ors., [1985] 3 SCC 169 , it has been said that public interest litigation is a weapon which has to be used with great care and circumspection. 25. These aspects have been highlighted in Ashok Kumar Pandey v. State of West Bengal, [2004] 3 SCC 349 and Dr. B. Singh v. Union of India & Ors. [2004] 3 SCC 363 and Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. [2005] 1 SCC 590. 26. It is true that in certain cases even though the Court comes to the conclusion that the writ petition was not in a public interest, yet if it finds that there is scope for dealing with the matter further in greater public interest, it can be done. This can be done by keeping the writ petitioner out of picture and appointing an amicus curiae. This can only be done in exceptional cases and not in a routine manner.27. It is true as contented by learned counsel for the appellant that the High Courts conclusions were drawn after going through the files. It is apparent from records that the High Court did not ask the parties to clarify any doubt it entertained as regards certain crucial aspects. These aspects assume considerable importance because they have formed the foundation of the High Courts conclusions about irregularity/illegality in allotment.28. In the circumstances we set aside the order of the High Court and remit the matter to it for fresh consideration. Needless to say the parties shall be permitted to place material in support of their respective stand, in addition to those which are already on record and the High Court shall thereafter take a decision in the matter within four weeks. Further affidavits shall be filed with all relevant details/documents by the parties. We make it clear that we have not expressed any opinion on the merits of the case. | 1[ds]26. It is true that in certain cases even though the Court comes to the conclusion that the writ petition was not in a public interest, yet if it finds that there is scope for dealing with the matter further in greater public interest, it can be done. This can be done by keeping the writ petitioner out of picture and appointing an amicus curiae. This can only be done in exceptional cases and not in a routine manner.27. It is true as contented by learned counsel for the appellant that the High Courts conclusions were drawn after going through the files. It is apparent from records that the High Court did not ask the parties to clarify any doubt it entertained as regards certain crucial aspects. These aspects assume considerable importance because they have formed the foundation of the High Courts conclusions about irregularity/illegality in allotment.28. In the circumstances we set aside the order of the High Court and remit the matter to it for fresh consideration. Needless to say the parties shall be permitted to place material in support of their respective stand, in addition to those which are already on record and the High Court shall thereafter take a decision in the matter within four weeks. Further affidavits shall be filed with all relevant details/documents by the parties. We make it clear that we have not expressed any opinion on the merits of the case. | 1 | 4,414 | 256 | ### Instruction:
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information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. 21. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra v. Prabhu, [1994] 2 SCC 481 and Andhra Pradesh State Financial Corporation v. M/s GAR Re-Rolling Mills and Anr., AIR (1994) SC 2151 . No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K. Subbarao v. Mr. K. Parasaran, (1996) 7 JT 265). Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public. 22. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. It is also noticed that petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by this Court in several cases newspaper reports do not constitute evidence. A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained. As noted above, such petitions do not provide any basis for verifying the correctness of statements made and information given in the petition. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts. 23. In S.P. Gupta v. Union of India, [1981] Supp. SCC 87, it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the Court under the guise of a public interest litigant. He has also left the following note of caution: (SCC p.219, para 24) "But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective." 24. In State of H.P. v. A Parent of a Student of Medical College, Simla and Ors., [1985] 3 SCC 169 , it has been said that public interest litigation is a weapon which has to be used with great care and circumspection. 25. These aspects have been highlighted in Ashok Kumar Pandey v. State of West Bengal, [2004] 3 SCC 349 and Dr. B. Singh v. Union of India & Ors. [2004] 3 SCC 363 and Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. [2005] 1 SCC 590. 26. It is true that in certain cases even though the Court comes to the conclusion that the writ petition was not in a public interest, yet if it finds that there is scope for dealing with the matter further in greater public interest, it can be done. This can be done by keeping the writ petitioner out of picture and appointing an amicus curiae. This can only be done in exceptional cases and not in a routine manner.27. It is true as contented by learned counsel for the appellant that the High Courts conclusions were drawn after going through the files. It is apparent from records that the High Court did not ask the parties to clarify any doubt it entertained as regards certain crucial aspects. These aspects assume considerable importance because they have formed the foundation of the High Courts conclusions about irregularity/illegality in allotment.28. In the circumstances we set aside the order of the High Court and remit the matter to it for fresh consideration. Needless to say the parties shall be permitted to place material in support of their respective stand, in addition to those which are already on record and the High Court shall thereafter take a decision in the matter within four weeks. Further affidavits shall be filed with all relevant details/documents by the parties. We make it clear that we have not expressed any opinion on the merits of the case.
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26. It is true that in certain cases even though the Court comes to the conclusion that the writ petition was not in a public interest, yet if it finds that there is scope for dealing with the matter further in greater public interest, it can be done. This can be done by keeping the writ petitioner out of picture and appointing an amicus curiae. This can only be done in exceptional cases and not in a routine manner.27. It is true as contented by learned counsel for the appellant that the High Courts conclusions were drawn after going through the files. It is apparent from records that the High Court did not ask the parties to clarify any doubt it entertained as regards certain crucial aspects. These aspects assume considerable importance because they have formed the foundation of the High Courts conclusions about irregularity/illegality in allotment.28. In the circumstances we set aside the order of the High Court and remit the matter to it for fresh consideration. Needless to say the parties shall be permitted to place material in support of their respective stand, in addition to those which are already on record and the High Court shall thereafter take a decision in the matter within four weeks. Further affidavits shall be filed with all relevant details/documents by the parties. We make it clear that we have not expressed any opinion on the merits of the case.
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UNION OF INDIA Vs. NARESHKUMAR BADRIKUMAR JAGAD | decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. 48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government. 49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open. 50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents. | 1[ds]19. Reverting to the question of whether Union of India has locus to file the review petition, we must immediately advert to Section 114 of the Code of Civil Procedure ( CPC) which, inter alia, postulates that any person considering himself aggrieved would have locus to file a review petition. Order XLVII of CPC restates the position that any person considering himself aggrieved can file a review petition. Be that as it may, the Supreme Court exercises review jurisdiction by virtue of Article 137 of the Constitution which predicates that the Supreme Court shall have the power to review any judgment pronounced or order made by it. Besides, the Supreme Court has framed Rules to govern review petitions. Notably, neither Order XLVII of CPC nor Order XLVII of the Supreme Court Rules limits the remedy of review only to the parties to the judgment under review. Therefore, we have no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respectIt is indisputable that the management of Podar Mills-Textile Undertaking was taken over by the Central Government after the commencement of the 1983 Act. The scope of management would obviously include possession and permissible use of the suit property of the Textile Undertaking so taken over. In due course, the 1995 Act came into force. As a consequence of Section 3 of this Act, the right, title and interest of the owners of the subject Textile Undertaking (Podar Mills Ltd.) including the statutory tenancy rights in relation to the suit property stood transferred to and vested absolutely in the Central Government. By the same provision, vide sub-section (2) thereof, the Textile Undertaking which stood vested in the Central Government immediately thereafter stood transferred to and vested in the National Textile Corporation. That included subsisting statutory tenancy rights in respect of the suit property enjoyed by the concerned Textile Undertaking. However, Section 3 stands amended by virtue of the 2014 Act. That amendment by a legal fiction is deemed to have been inserted into the 1995 Act w.e.f. 1 st January, 1994. The purport of the amended sub-sections (3) and (4), inserted in section 3 is that the leasehold rights of the Textile Undertaking would continue to remain vested in the Central Government and no Court could exercise jurisdiction to order divestment from the NTC of the property vested in it by the Central Government. In addition, the Amendment Act of 2014 has introduced Section 39 in the 1995 Act, titled as Validation. We shall dilate on the efficacy of these provisions a little later21. Suffice it to observe that since Union of India is asseverating that the suit property had vested absolutely in the Central Government and continues to so vest in it by virtue of a legal fiction in the Validation Act 2014, would be justified in contending that it is a person aggrieved and has locus to point out that the decree for possession of the suit premises against NTC could not have been passed and in any case, the same could not be enforced in law. It is an inexecutable decree and including the undertaking given by NTC, assuming that the concerned court had jurisdiction to pass such a decree24. The grounds for review are specified in clause (1) noted above. The factual scenario in the present case is certainly not ascribable to discovery of new or important matters or evidence which was available or existing at the time of the decree but could not be produced despite exercise of due diligence. In the present case, the asseveration of the review petitioner is about the mistake or error apparent on the face of the record committed by the Court and more particularly founded on the effect of the subsequent enactment of Validation Act 2014 which completely changes the status of the parties, namely, Union of India and NTC qua the suit property and bars the enforcement of any decree and including the undertaking given to the Court by NTC25. Ordinarily, enactment of a subsequent legislation by itself cannot be the basis to review the judgment already rendered by the Court. But the argument of the review petitioner proceeds on the premise that the subsequent legislation has completely altered the status of the parties retrospectively qua the suit property with effect from 1 st April, 1994 by a legal fiction, as a result of which the cause of action against NTC as referred to in the subject suit had become non¬ existent; and including any decree or order passed against NTC or for that matter, an undertaking filed by NTC in any court or tribunal or authority has been rendered unenforceable by operation of law and cannot be continued or taken forward. In other words, even if a valid decree has been passed against NTC, the same had become inexecutable by operation of law27. Applying the underlying principle and as jurisdictional issues have been raised which are essentially founded on the law enacted by the Parliament with retrospective effect containing a legal fiction and for doing complete justice to the parties, besides the power of review under Article 137 of the Constitution, it is open to this Court to exercise its plenary power under Article 142 of the Constitution28. Reverting to the judgment under review, it is noticed that the provisions of the 1983 Act and 1995 Act have been generally adverted to while dealing with the plea taken by the appellant NTC that it was in possession of the suit property merely as an agent of the Central Government. However, the Court declined to entertain that plea of NTC as it was not so specifically pleaded in the written statement. The Court then concluded that the appellant NTC was neither the Government nor Government Department nor Agent of the Central Government in the context of the Maharashtra Rent Control Act, 1999. That view has been taken in reference to the 1983 Act and the un-amended provisions of 1995 Act. Indeed, the review petitioners would argue that on a fair reading of the un-amended provisions contained in 1995 Act and juxtaposed with the provisions of 1983 Act, the inescapable conclusion is that the leasehold rights continued to vest in the Central Government. However, we are not inclined to countenance this argument29. The review petitioners may be justified in pointing out that this Court committed an error apparent on the face of the record in observing that the appellant had never raised the issue before the courts below that the Central Government was the tenant and the appellant was holding the premises merely as an agent; and that a vague plea was taken about the non¬joinder of the parties - which plea was not even pursued before the Trial Court. Those errors, in our opinion, would not affect the final conclusion recorded by this Court in the judgment under review, considering the effect of the provisions as were applicable at the relevant time in the form of un¬ amended Section 3 of the 1995 Act.35. Being a protected or statutory tenant, Podar Mills could be dispossessed from the suit premises by the Trust only on the grounds permissible under that Act by instituting eviction proceedings before the competent Rent Court having exclusive jurisdiction to entertain the dispute between the landlord and tenant, who in turn would then have to record its satisfaction about the entitlement of the landlord to recover possession of the suit property. The right so enjoyed by the Podar Mills Ltd. stood transferred to and vested in the Central Government with effect from 1 st April, 1994. Further, by virtue of amended Section 3 of the 1995 Act, by operation of law, the rights of the Textile Undertaking, in respect of the suit property, of being a statutory or protected tenant, continued to vest in the Central Government even after the coming into force of the 1999 Act and repeal of the 1947 Act.36. As aforementioned, since the Central Government continued to remain as the protected or statutory tenant in respect of the suit property w.e.f. 1 st April, 1994, the fact that the appellant NTC was carrying on its activities therein would not extricate the landlord (Trust) from initiating eviction proceedings against the real tenant, namely, the Central Government or Union of India; and such eviction proceedings could be maintained only before the jurisdictional Rent Court having exclusive jurisdiction to decide any dispute between the landlord and tenant. The present suit, however, came to be filed only against the appellant NTC and that too before the jurisdictional civil court under the Transfer of Property Act. It is obvious that the Trust acted on the legal advice and instituted the present suit, despite having filed two suits (namely, TER Suit 680/1568 of 1995 and RAD Suit 955/1997) in earlier point of time, for possession of the suit property, in both of which Union of India was made party¬defendant. But those suits were eventually dismissed for non¬prosecution and withdrawn, respectively, during the pendency of the subject suit, for reasons best known to the Trust37. To put it differently, the present suit instituted by the Trust under the provisions of the Transfer of Property Act, which culminated with the decree of eviction, affirmed up to this Court vide judgment under review, has been rendered without jurisdiction, by operation of law. This being the position after coming into force of the Validation Act 2014 and in particular, the purport of Section 39 as inserted, the decree so passed or undertaking given by NTC cannot be continued or enforced38. According to the learned counsel for the respondents, the amended provision introduced by the Validation Act 2014 has no application to the present case. This contention is founded on the interpretation of the expression leasehold rights of the Textile Undertaking. It is argued that this expression pre¬ supposes that there must be an existing or subsisting leasehold rights. Only such right would be governed by the amended provision. To buttress this submission, reliance is placed on Section 4 of the 1995 Act which explicitly adverts to different types of rights enjoyed by the Textile Undertaking. Leaseholds is one such right separately noted. Since there was no subsisting leasehold right enuring in favour of Podar Mills, inevitably no such right vested in the Central Government. Whereas, the right transferred to and vested in the Central Government under sub-section (1) is only that of a protected or statutory tenant enjoyed by Podar Mills at the relevant time i.e. 1 st April, 1994. That right vested in the Central Government is not saved in terms of sub¬section (3). Resultantly, the right of a protected or statutory tenant vested in Central Government stood transferred to and vested in NTC in terms of sub-section (2) and continued to remain so vested in the NTC. If so, the relief of eviction or possession could be pursued by the Trust only against NTC. Further, admittedly, NTC did not enjoy the status of a statutory or protected tenant after coming into force of the 1999 Act and repeal of the 1947 Act. In that situation, the subject suit for possession against the appellant NTC came to be justly filed before the civil court under the provisions of the Transfer of Property Act39. This argument, in our opinion, is an attempt to over¬ simplify the purport of Section 3(3), if not indulging in hair¬ splitting of the contextual meaning of the expression leasehold rights therein and in Section 4(1) or elsewhere in the 1995 Act. Section 3(1) refers to right, title and interest of the owner of the Textile Undertaking generally. That encompasses all the rights as are spelt out in Section 4(1) of the Act. One such right can be leasehold rights. Concededly, the expression leasehold rights mentioned in the 1995 Act must be construed as referring to the rights under the Transfer of Property Act, 1882 as well as under the applicable Rent Act recognizing tenancy rights without exception.41. Indeed, if the matter in issue is to be decided dehors the provisions of the applicable Rent Act, then it is possible to say that the expression leasehold rights would be limited to a subsisting lease. However, in the present case, we are required to reckon the status of the Union of India and NTC qua the suit property in the context of the rights accrued in terms of the provision of the Rent Act of 1947 and 1999, respectively. The expression leasehold rights in 1995 Act, obviously, must receive wider meaning so as to encompass tenancy rights flowing from the applicable Rent Act. For, the expression tenancy rights accruing under the Rent Act is analogous to and interchangeable with the expression leasehold rights. There is no reason to exclude the expression statutory right so enjoyed by the owners of the Textile Undertaking from the expression leasehold rights referred to in sub¬section (3), so long as it has not been so expressly excluded42. Considering the legislative intent for enacting the 1995 Act and the Validation Act 2014 also, it is not possible to give a restricted meaning to the expression leasehold rights occurring in sub-section (3) of Section 3, as amended, or elsewhere in the said enactment. Thus, the expression leasehold rights in 1995 Act must include tenancy rights flowing from the provisions of the applicable rent legislation. Any other interpretation would be doing violence to the legislative intent and be a pedantic approach43. According to the respondents, the status of Podar Mills and resultantly, of the Union of India is that of a tenant at sufferance. We have already adverted to the provisions of the concerned Rent Act. From the scheme of the 1947 Act as also in the 1999 Act, it is indisputable that after determination of the lease period, the status of Podar Mills had become that of a protected or statutory tenant under the Rent Act. Thus, it would continue to enjoy tenancy rights stipulated under the concerned Rent Act. Once that status has been acquired by the Central Government by operation of law, the action of eviction, could be only as per the prescribed dispensation under the concerned Rent Act45. In the present case, admittedly, the Trust proceeded on a clear understanding that the rights enjoyed by Podar Mills Ltd. after determination of lease period was that of a protected or statutory tenant within the meaning of the rent legislation (1947 Act). That right had been transferred to and vested in the Central Government by virtue of Section 3(1) of the 1995 Act and continues to so vest in it in terms of Section 3(3) which had come into force w.e.f. 1 st April, 1994 and deemed always to have effect for all purposes as if it had been in force at all material timesWe fail to understand as to how the principle expounded in the reported decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents. | 1 | 19,123 | 3,844 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. 48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government. 49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open. 50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.
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to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.
|
Fateh Singh and Another Etc Vs. Sewa Ram and Others Etc | the mortgagee when he submitted that the owners became Bhumidhars of the land under the provisions of s. 15 (2) of the Act. It is common ground that before the commencement of the Delhi Land Reforms Act, the mortgagee Ram Swarup had let the land in question to one Inder Singh and he in turn had sub-let the land to the first respondent Sewa Ram and he was in possession of the same on the date of commencement of that Act. Therefore, the appellants in C.A.1195 of 1970 as owners could not have become Bhumidhars in respect of that portion. If they had obtained any such declaration under s. 15 (2) of the Delhi Land Reforms Act, it could have been only b y misleading the Court to believe that the said portion was under the personal cultivation of the mortgagee and not in the possession of any tenant under the mortgage or his sub-tenant. The argument of Mr. Datta also overlooks the provisions of sub-section (4) of s. 15 which states that where any portion of the mortgaged land has been let out to tenants they shall be declared as Bhumidhars of the area let out to them. Therefore, the appellants in C.A. 1195 of 1970 could not in law have been declared as Bhumidhars under s. 15 (2) of the Delhi Land Reforms Act when that land was admittedly under the cultivation of the first respondent Sewa Ram as sub-tenant under the mortgagees tenant. Section 13 (1) of the Delhi Land Reforms Act lay s down that on the commencement of that Act, the Deputy Commissioner shall declare certain classes of tenants as Bhumidhars who shall, with effect from the same date, have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidhars under that Act. An occupancy tenant, except a tenant under s. 5 of the Punjab Tenancy Act, 1887, and a non-occupancy tenant who pays rent at the revenue rates with or without Malikhana are two of the categories of tenants mentioned in s. 13 (1) of the Act. It has been contended before us by the learned counsel for the appellants in both the appeals that the first respondent Sewa Ram would not fall under any of these two categories of tenants or that any distinction has been made in the Delhi Land Reforms Act between a tenant and a sub-tenant. Therefore, there could be no doubt that the first respondent Sewa Ram would have acquired bhumidhari rights under s. 13 (1) of the Act on the date of its commencement. Section 15 (2) of the Act was no doubt substituted by s. 7 of the Central Act IV of 1959 for the original sub-section. It has not, however, been contended before us that sub-section (4), as substituted, will not have effect from the date of commencement of the principal Act, namely, 20.7.1954. Section 13 (2) of the Act says that "every person, who after the commencement of this Act is admitted to land as Bhumidhar or who acquires Bhumidhari rights under any provisions of this Act, shall have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidhars under this Act with effect from the date of admission or acquisition, as the case may be". The present case before us is one of the tenant acquiring bhumidhari rights under the Act on the date of its commencement and not of his being admitted to Bhumidhari rights after the date of commencement of the Act. Merely because there was some delay in the Deputy Commissioner or Revenue Assistant declaring a tenant as Bhumidhar under the provisions of the Act or because there is no such declaration at all the tenant entitled to acquire such rights under the Act from the date of its commencement cannot be said to have not acquired those rights having regard to the words of s. 13 (2) of the Act which says that any person who acquires bhumidhari rights under any provisions of this Act shall have all the rights and shall be subject to all the liabilities conferred or imposed upon Bhumidhars under this Act with effect from the date of acquisition of those rights. Sub-sections (2) and (4) of s. 15 cast an obligation on the Deputy Commissioner to declare as Bhumidhars persons who have become entitled to that right under the provisions of the Act by admission or acquisition under the provisions of the Act as Bhumidhars. In these circumstances, it is not possible to accept the contention of Mr. Datta that the appellants in C.A . 1195 who were owners, have become Bhumidhars by reason of redemption of the mortgage under the provisions of s. 15 (1) of the Act and that the first respondent Sewa Ram will not be entitled to the Bhumidhars portion of the compensation.Mr. M.S. Gujral, Senior Counsel appearing for the appellants in C.A. 1780 of 1970 submitted that Inder Singh and Bhagwati Prasad alone has received the sum of Rs. 29, 774.07 and, therefore, they alone should be made liable to pay that amount to the first respondent if the appellants fail to succeed in these appeals. Inder Singh is the third respondent in C.A. 1195 of 1970 and the first appellant in C.A. 1780 of 1970. Bhagwati Prasad is the second appellant in C.A. 1195 of 1970, and fourth respondent in C.A. 1780 of 1970. They were respondents 2 and 4 in LPA 103 of 1960. There is no doubt an admission of these two persons that in a partition the portion which was under the cultivation of the first respondent Sewa Ram had been allotted to their share and that consequently they alone had received the compensation of Rs. 29, 774.07. But that is a matter between the appellants in these appeals and those two persons Inder Singh and Bhagwati Prasad. It cannot bind the first respondent Sewa Ram. Therefore, the request of Mr. Gujaral cannot be complied with. | 0[ds]The argument of Mr. Datta overlooks the important part of s. 15(2) of the Delhi Land Reforms Act which says that the mortgagor shall be declared as Bhumidhar only in respect of the mortgaged area which was in the personal cultivation of the mortgagee when he submitted that the owners became Bhumidhars of the land under the provisions of s. 15 (2) of the Act. It is common ground that before the commencement of the Delhi Land Reforms Act, the mortgagee Ram Swarup had let the land in question to one Inder Singh and he in turn had sub-let the land to the first respondent Sewa Ram and he was in possession of the same on the date of commencement of that Act. Therefore, the appellants in C.A.1195 of 1970 as owners could not have become Bhumidhars in respect of that portion. If they had obtained any such declaration under s. 15 (2) of the Delhi Land Reforms Act, it could have been only b y misleading the Court to believe that the said portion was under the personal cultivation of the mortgagee and not in the possession of any tenant under the mortgage or his sub-tenant. The argument of Mr. Datta also overlooks the provisions of sub-section (4) of s. 15 which states that where any portion of the mortgaged land has been let out to tenants they shall be declared as Bhumidhars of the area let out to them. Therefore, the appellants in C.A. 1195 of 1970 could not in law have been declared as Bhumidhars under s. 15 (2) of the Delhi Land Reforms Act when that land was admittedly under the cultivation of the first respondent Sewa Ram as sub-tenant under the mortgagees tenant. Section 13 (1) of the Delhi Land Reforms Act lay s down that on the commencement of that Act, the Deputy Commissioner shall declare certain classes of tenants as Bhumidhars who shall, with effect from the same date, have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidhars under that Act. An occupancy tenant, except a tenant under s. 5 ofthe Punjab Tenancy Act, 1887, and a non-occupancy tenant who pays rent at the revenue rates with or without Malikhana are two of the categories of tenants mentioned in s. 13 (1) of the Act. It has been contended before us by the learned counsel for the appellants in both the appeals that the first respondent Sewa Ram would not fall under any of these two categories of tenants or that any distinction has been made in the Delhi Land Reforms Act between a tenant and a sub-tenant. Therefore, there could be no doubt that the first respondent Sewa Ram would have acquired bhumidhari rights under s. 13 (1) of the Act on the date of its commencement. Section 15 (2) of the Act was no doubt substituted by s. 7 of the Central Act IV of 1959 for the original sub-section. It has not, however, been contended before us that sub-section (4), as substituted, will not have effect from the date of commencement of the principal Act, namely, 20.7.1954. Section 13 (2) of the Act says that "every person, who after the commencement of this Act is admitted to land as Bhumidhar or who acquires Bhumidhari rights under any provisions of this Act, shall have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidhars under this Act with effect from the date of admission or acquisition, as the case may be". The present case before us is one of the tenant acquiring bhumidhari rights under the Act on the date of its commencement and not of his being admitted to Bhumidhari rights after the date of commencement of the Act. Merely because there was some delay in the Deputy Commissioner or Revenue Assistant declaring a tenant as Bhumidhar under the provisions of the Act or because there is no such declaration at all the tenant entitled to acquire such rights under the Act from the date of its commencement cannot be said to have not acquired those rights having regard to the words of s. 13 (2) of the Act which says that any person who acquires bhumidhari rights under any provisions of this Act shall have all the rights and shall be subject to all the liabilities conferred or imposed upon Bhumidhars under this Act with effect from the date of acquisition of those rights. Sub-sections (2) and (4) of s. 15 cast an obligation on the Deputy Commissioner to declare as Bhumidhars persons who have become entitled to that right under the provisions of the Act by admission or acquisition under the provisions of the Act as Bhumidhars. In these circumstances, it is not possible to accept the contention of Mr. Datta that the appellants in C.A . 1195 who were owners, have become Bhumidhars by reason of redemption of the mortgage under the provisions of s. 15 (1) of the Act and that the first respondent Sewa Ram will not be entitled to the Bhumidhars portion of the compensation.Mr. M.S. Gujral, Senior Counsel appearing for the appellants in C.A. 1780 of 1970 submitted that Inder Singh and Bhagwati Prasad alone has received the sum of Rs. 29, 774.07 and, therefore, they alone should be made liable to pay that amount to the first respondent if the appellants fail to succeed in these appeals. Inder Singh is the third respondent in C.A. 1195 of 1970 and the first appellant in C.A. 1780 of 1970. Bhagwati Prasad is the second appellant in C.A. 1195 of 1970, and fourth respondent in C.A. 1780 of 1970. They were respondents 2 and 4 in LPA 103 of 1960. There is no doubt an admission of these two persons that in a partition the portion which was under the cultivation of the first respondent Sewa Ram had been allotted to their share and that consequently they alone had received the compensation of Rs. 29, 774.07. But that is a matter between the appellants in these appeals and those two persons Inder Singh and Bhagwati Prasad. It cannot bind the first respondent Sewa Ram. Therefore, the request of Mr. Gujaral cannot be complied with. | 0 | 3,545 | 1,144 | ### 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.
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the mortgagee when he submitted that the owners became Bhumidhars of the land under the provisions of s. 15 (2) of the Act. It is common ground that before the commencement of the Delhi Land Reforms Act, the mortgagee Ram Swarup had let the land in question to one Inder Singh and he in turn had sub-let the land to the first respondent Sewa Ram and he was in possession of the same on the date of commencement of that Act. Therefore, the appellants in C.A.1195 of 1970 as owners could not have become Bhumidhars in respect of that portion. If they had obtained any such declaration under s. 15 (2) of the Delhi Land Reforms Act, it could have been only b y misleading the Court to believe that the said portion was under the personal cultivation of the mortgagee and not in the possession of any tenant under the mortgage or his sub-tenant. The argument of Mr. Datta also overlooks the provisions of sub-section (4) of s. 15 which states that where any portion of the mortgaged land has been let out to tenants they shall be declared as Bhumidhars of the area let out to them. Therefore, the appellants in C.A. 1195 of 1970 could not in law have been declared as Bhumidhars under s. 15 (2) of the Delhi Land Reforms Act when that land was admittedly under the cultivation of the first respondent Sewa Ram as sub-tenant under the mortgagees tenant. Section 13 (1) of the Delhi Land Reforms Act lay s down that on the commencement of that Act, the Deputy Commissioner shall declare certain classes of tenants as Bhumidhars who shall, with effect from the same date, have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidhars under that Act. An occupancy tenant, except a tenant under s. 5 of the Punjab Tenancy Act, 1887, and a non-occupancy tenant who pays rent at the revenue rates with or without Malikhana are two of the categories of tenants mentioned in s. 13 (1) of the Act. It has been contended before us by the learned counsel for the appellants in both the appeals that the first respondent Sewa Ram would not fall under any of these two categories of tenants or that any distinction has been made in the Delhi Land Reforms Act between a tenant and a sub-tenant. Therefore, there could be no doubt that the first respondent Sewa Ram would have acquired bhumidhari rights under s. 13 (1) of the Act on the date of its commencement. Section 15 (2) of the Act was no doubt substituted by s. 7 of the Central Act IV of 1959 for the original sub-section. It has not, however, been contended before us that sub-section (4), as substituted, will not have effect from the date of commencement of the principal Act, namely, 20.7.1954. Section 13 (2) of the Act says that "every person, who after the commencement of this Act is admitted to land as Bhumidhar or who acquires Bhumidhari rights under any provisions of this Act, shall have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidhars under this Act with effect from the date of admission or acquisition, as the case may be". The present case before us is one of the tenant acquiring bhumidhari rights under the Act on the date of its commencement and not of his being admitted to Bhumidhari rights after the date of commencement of the Act. Merely because there was some delay in the Deputy Commissioner or Revenue Assistant declaring a tenant as Bhumidhar under the provisions of the Act or because there is no such declaration at all the tenant entitled to acquire such rights under the Act from the date of its commencement cannot be said to have not acquired those rights having regard to the words of s. 13 (2) of the Act which says that any person who acquires bhumidhari rights under any provisions of this Act shall have all the rights and shall be subject to all the liabilities conferred or imposed upon Bhumidhars under this Act with effect from the date of acquisition of those rights. Sub-sections (2) and (4) of s. 15 cast an obligation on the Deputy Commissioner to declare as Bhumidhars persons who have become entitled to that right under the provisions of the Act by admission or acquisition under the provisions of the Act as Bhumidhars. In these circumstances, it is not possible to accept the contention of Mr. Datta that the appellants in C.A . 1195 who were owners, have become Bhumidhars by reason of redemption of the mortgage under the provisions of s. 15 (1) of the Act and that the first respondent Sewa Ram will not be entitled to the Bhumidhars portion of the compensation.Mr. M.S. Gujral, Senior Counsel appearing for the appellants in C.A. 1780 of 1970 submitted that Inder Singh and Bhagwati Prasad alone has received the sum of Rs. 29, 774.07 and, therefore, they alone should be made liable to pay that amount to the first respondent if the appellants fail to succeed in these appeals. Inder Singh is the third respondent in C.A. 1195 of 1970 and the first appellant in C.A. 1780 of 1970. Bhagwati Prasad is the second appellant in C.A. 1195 of 1970, and fourth respondent in C.A. 1780 of 1970. They were respondents 2 and 4 in LPA 103 of 1960. There is no doubt an admission of these two persons that in a partition the portion which was under the cultivation of the first respondent Sewa Ram had been allotted to their share and that consequently they alone had received the compensation of Rs. 29, 774.07. But that is a matter between the appellants in these appeals and those two persons Inder Singh and Bhagwati Prasad. It cannot bind the first respondent Sewa Ram. Therefore, the request of Mr. Gujaral cannot be complied with.
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of the mortgagee when he submitted that the owners became Bhumidhars of the land under the provisions of s. 15 (2) of the Act. It is common ground that before the commencement of the Delhi Land Reforms Act, the mortgagee Ram Swarup had let the land in question to one Inder Singh and he in turn had sub-let the land to the first respondent Sewa Ram and he was in possession of the same on the date of commencement of that Act. Therefore, the appellants in C.A.1195 of 1970 as owners could not have become Bhumidhars in respect of that portion. If they had obtained any such declaration under s. 15 (2) of the Delhi Land Reforms Act, it could have been only b y misleading the Court to believe that the said portion was under the personal cultivation of the mortgagee and not in the possession of any tenant under the mortgage or his sub-tenant. The argument of Mr. Datta also overlooks the provisions of sub-section (4) of s. 15 which states that where any portion of the mortgaged land has been let out to tenants they shall be declared as Bhumidhars of the area let out to them. Therefore, the appellants in C.A. 1195 of 1970 could not in law have been declared as Bhumidhars under s. 15 (2) of the Delhi Land Reforms Act when that land was admittedly under the cultivation of the first respondent Sewa Ram as sub-tenant under the mortgagees tenant. Section 13 (1) of the Delhi Land Reforms Act lay s down that on the commencement of that Act, the Deputy Commissioner shall declare certain classes of tenants as Bhumidhars who shall, with effect from the same date, have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidhars under that Act. An occupancy tenant, except a tenant under s. 5 ofthe Punjab Tenancy Act, 1887, and a non-occupancy tenant who pays rent at the revenue rates with or without Malikhana are two of the categories of tenants mentioned in s. 13 (1) of the Act. It has been contended before us by the learned counsel for the appellants in both the appeals that the first respondent Sewa Ram would not fall under any of these two categories of tenants or that any distinction has been made in the Delhi Land Reforms Act between a tenant and a sub-tenant. Therefore, there could be no doubt that the first respondent Sewa Ram would have acquired bhumidhari rights under s. 13 (1) of the Act on the date of its commencement. Section 15 (2) of the Act was no doubt substituted by s. 7 of the Central Act IV of 1959 for the original sub-section. It has not, however, been contended before us that sub-section (4), as substituted, will not have effect from the date of commencement of the principal Act, namely, 20.7.1954. Section 13 (2) of the Act says that "every person, who after the commencement of this Act is admitted to land as Bhumidhar or who acquires Bhumidhari rights under any provisions of this Act, shall have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidhars under this Act with effect from the date of admission or acquisition, as the case may be". The present case before us is one of the tenant acquiring bhumidhari rights under the Act on the date of its commencement and not of his being admitted to Bhumidhari rights after the date of commencement of the Act. Merely because there was some delay in the Deputy Commissioner or Revenue Assistant declaring a tenant as Bhumidhar under the provisions of the Act or because there is no such declaration at all the tenant entitled to acquire such rights under the Act from the date of its commencement cannot be said to have not acquired those rights having regard to the words of s. 13 (2) of the Act which says that any person who acquires bhumidhari rights under any provisions of this Act shall have all the rights and shall be subject to all the liabilities conferred or imposed upon Bhumidhars under this Act with effect from the date of acquisition of those rights. Sub-sections (2) and (4) of s. 15 cast an obligation on the Deputy Commissioner to declare as Bhumidhars persons who have become entitled to that right under the provisions of the Act by admission or acquisition under the provisions of the Act as Bhumidhars. In these circumstances, it is not possible to accept the contention of Mr. Datta that the appellants in C.A . 1195 who were owners, have become Bhumidhars by reason of redemption of the mortgage under the provisions of s. 15 (1) of the Act and that the first respondent Sewa Ram will not be entitled to the Bhumidhars portion of the compensation.Mr. M.S. Gujral, Senior Counsel appearing for the appellants in C.A. 1780 of 1970 submitted that Inder Singh and Bhagwati Prasad alone has received the sum of Rs. 29, 774.07 and, therefore, they alone should be made liable to pay that amount to the first respondent if the appellants fail to succeed in these appeals. Inder Singh is the third respondent in C.A. 1195 of 1970 and the first appellant in C.A. 1780 of 1970. Bhagwati Prasad is the second appellant in C.A. 1195 of 1970, and fourth respondent in C.A. 1780 of 1970. They were respondents 2 and 4 in LPA 103 of 1960. There is no doubt an admission of these two persons that in a partition the portion which was under the cultivation of the first respondent Sewa Ram had been allotted to their share and that consequently they alone had received the compensation of Rs. 29, 774.07. But that is a matter between the appellants in these appeals and those two persons Inder Singh and Bhagwati Prasad. It cannot bind the first respondent Sewa Ram. Therefore, the request of Mr. Gujaral cannot be complied with.
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Nayara Energy Limited Vs. The State of Gujarat and others | with the impugned order dated 18.08.2020 passed by the High Court of Gujarat in Civil Application (For Stay) No. 1 of 2020 in First Appeal No. 1543 of 2020 and the subsequent order dated 30.09.2020 passed in Misc. Civil Application (for modification of order) No. 2 of 2020 in First Appeal No. 1543 of 2020, permitting the original claimants to withdraw 50% of the 80% of the amount, as awarded by the learned Reference Court, without furnishing any security, the appellant herein – the appellant/applicant before the High Court has preferred the present appeals. 3. Feeling aggrieved and dissatisfied with the judgment and award passed by the learned Reference Court enhancing the amount of compensation for the land acquired, the appellant herein has preferred the first appeal before the High Court being First Appeal No. 1543 of 2020. In the said appeal, the appellant filed Civil Application (for Stay) no. 1 of 2020 praying to stay the judgment and order passed by the learned Reference Court. By the impugned order dated 18.08.2020, the High Court has stayed the execution, implementation and operation of the judgment and award passed by the learned Reference Court, on condition that the appellant shall deposit 80% of the awarded amount along with proportionate cost and interest before the learned Reference Court. The High Court has further passed an order that upon deposit of the aforesaid amount, the learned Reference Court to deposit 50% out of the said deposited amount (80% of the amount awarded by the learned Reference Court), together with proportionate cost and interest, in the cumulative fixed deposit, in any nationalised bank, initially for a period of five years, in the names of the original claimants, which shall be continued to be renewed from time to time, till the final disposal of the main first appeal. The High Court has further passed an order that balance 50% of the 80% of the awarded amount together with proportionate cost and interest is permitted to be withdrawn by the original claimants. The High Court has further passed an order that original claimants shall be entitled to withdraw 50% of the accrued principal interest on the fixed deposit. That thereafter the appellant herein filed an application to modify the aforesaid order pointing out that in case of relied upon judgment, relied upon by the learned Reference Court, an appal has been preferred and there is an unconditional stay granted by the High Court – Coordinate Bench, and therefore, it was prayed to modify the aforesaid interim order. By order dated 30.09.2020, the learned Single Judge of the High Court has dismissed the said application. Hence, the present appeals have been preferred by the original applicant – acquiring body. 4. Shri P.S. Narasimha, learned Senior Advocate appearing on behalf of the appellant has stated at the Bar that instead of 80% of the awarded amount, as directed by the High Court by the first impugned interim order, the appellant is ready and willing to deposit the entire 100% of the enhanced awarded amount, together with interest and cost granted by the Reference Court, as a condition for stay of the award. It is submitted that, however, the claimants may not be permitted to withdraw the amount without furnishing any security or solvency certificate to the satisfaction of the learned Reference Court or the Executing Court. 4.1 It is further submitted that if the claimants are permitted to withdraw the amount of compensation, as awarded by the learned Reference Court, without furnishing any security, in that case and ultimately if the appellant succeeds before the High Court, it will be very difficult for the appellant to recover any amount from the original claimants. It is submitted that therefore while permitting withdrawal, the High Court ought to have put some conditions for giving security for withdrawal, so that there may not be any difficulty for realising back the amount, in the event the first appeal of the appellant is allowed by the High Court. 5. Learned counsel appearing on behalf of the original claimants has submitted that the acquisition is of the year 1996 and after a period of approximately 17 years, the learned Reference Court enhanced the amount of compensation. It is submitted that the original claimants are agriculturists and their lands have been acquired and that they are not in a position to furnish any security. It is submitted that the High Court has not committed any error in passing the impugned interim order and permitting the original claimants to withdraw 50% of the 80% of the enhanced amount of compensation awarded by the Reference Court. 6. Having heard learned counsel for the respective parties at length and the fact that the lands of the original claimants have been acquired in the year 1996 and the learned Reference Court has enhanced the amount of compensation after a period of approximately 17 years (by now 20 years), and the original claimants are not in a position to furnish any security, while permitting the original claimants to withdraw the amount of enhanced compensation awarded by the learned Reference Court, to strike the balance and to consider the interest of both the parties and recording the statement of Shri P.S. Narasimha, learned Senior Advocate appearing on behalf of the appellant that the appellant is ready and willing to deposit the entire enhanced amount of compensation awarded by the learned Reference Court, together with interest and cost, we are of the opinion that if the original claimants are permitted to withdraw 25% of the enhanced amount of compensation, as awarded by the learned Reference Court, together with proportionate interest and cost, without furnishing any security and the balance 75% of the enhanced amount of compensation, together with proportionate cost and interest, as awarded by the learned Reference Court is permitted to be invested in a fixed deposit in any nationalised bank with cumulative interest, it will meet the end of justice and take care of the interest of both the parties. | 1[ds]6. Having heard learned counsel for the respective parties at length and the fact that the lands of the original claimants have been acquired in the year 1996 and the learned Reference Court has enhanced the amount of compensation after a period of approximately 17 years (by now 20 years), and the original claimants are not in a position to furnish any security, while permitting the original claimants to withdraw the amount of enhanced compensation awarded by the learned Reference Court, to strike the balance and to consider the interest of both the parties and recording the statement of Shri P.S. Narasimha, learned Senior Advocate appearing on behalf of the appellant that the appellant is ready and willing to deposit the entire enhanced amount of compensation awarded by the learned Reference Court, together with interest and cost, we are of the opinion that if the original claimants are permitted to withdraw 25% of the enhanced amount of compensation, as awarded by the learned Reference Court, together with proportionate interest and cost, without furnishing any security and the balance 75% of the enhanced amount of compensation, together with proportionate cost and interest, as awarded by the learned Reference Court is permitted to be invested in a fixed deposit in any nationalised bank with cumulative interest, it will meet the end of justice and take care of the interest of both the parties. | 1 | 1,122 | 254 | ### 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:
with the impugned order dated 18.08.2020 passed by the High Court of Gujarat in Civil Application (For Stay) No. 1 of 2020 in First Appeal No. 1543 of 2020 and the subsequent order dated 30.09.2020 passed in Misc. Civil Application (for modification of order) No. 2 of 2020 in First Appeal No. 1543 of 2020, permitting the original claimants to withdraw 50% of the 80% of the amount, as awarded by the learned Reference Court, without furnishing any security, the appellant herein – the appellant/applicant before the High Court has preferred the present appeals. 3. Feeling aggrieved and dissatisfied with the judgment and award passed by the learned Reference Court enhancing the amount of compensation for the land acquired, the appellant herein has preferred the first appeal before the High Court being First Appeal No. 1543 of 2020. In the said appeal, the appellant filed Civil Application (for Stay) no. 1 of 2020 praying to stay the judgment and order passed by the learned Reference Court. By the impugned order dated 18.08.2020, the High Court has stayed the execution, implementation and operation of the judgment and award passed by the learned Reference Court, on condition that the appellant shall deposit 80% of the awarded amount along with proportionate cost and interest before the learned Reference Court. The High Court has further passed an order that upon deposit of the aforesaid amount, the learned Reference Court to deposit 50% out of the said deposited amount (80% of the amount awarded by the learned Reference Court), together with proportionate cost and interest, in the cumulative fixed deposit, in any nationalised bank, initially for a period of five years, in the names of the original claimants, which shall be continued to be renewed from time to time, till the final disposal of the main first appeal. The High Court has further passed an order that balance 50% of the 80% of the awarded amount together with proportionate cost and interest is permitted to be withdrawn by the original claimants. The High Court has further passed an order that original claimants shall be entitled to withdraw 50% of the accrued principal interest on the fixed deposit. That thereafter the appellant herein filed an application to modify the aforesaid order pointing out that in case of relied upon judgment, relied upon by the learned Reference Court, an appal has been preferred and there is an unconditional stay granted by the High Court – Coordinate Bench, and therefore, it was prayed to modify the aforesaid interim order. By order dated 30.09.2020, the learned Single Judge of the High Court has dismissed the said application. Hence, the present appeals have been preferred by the original applicant – acquiring body. 4. Shri P.S. Narasimha, learned Senior Advocate appearing on behalf of the appellant has stated at the Bar that instead of 80% of the awarded amount, as directed by the High Court by the first impugned interim order, the appellant is ready and willing to deposit the entire 100% of the enhanced awarded amount, together with interest and cost granted by the Reference Court, as a condition for stay of the award. It is submitted that, however, the claimants may not be permitted to withdraw the amount without furnishing any security or solvency certificate to the satisfaction of the learned Reference Court or the Executing Court. 4.1 It is further submitted that if the claimants are permitted to withdraw the amount of compensation, as awarded by the learned Reference Court, without furnishing any security, in that case and ultimately if the appellant succeeds before the High Court, it will be very difficult for the appellant to recover any amount from the original claimants. It is submitted that therefore while permitting withdrawal, the High Court ought to have put some conditions for giving security for withdrawal, so that there may not be any difficulty for realising back the amount, in the event the first appeal of the appellant is allowed by the High Court. 5. Learned counsel appearing on behalf of the original claimants has submitted that the acquisition is of the year 1996 and after a period of approximately 17 years, the learned Reference Court enhanced the amount of compensation. It is submitted that the original claimants are agriculturists and their lands have been acquired and that they are not in a position to furnish any security. It is submitted that the High Court has not committed any error in passing the impugned interim order and permitting the original claimants to withdraw 50% of the 80% of the enhanced amount of compensation awarded by the Reference Court. 6. Having heard learned counsel for the respective parties at length and the fact that the lands of the original claimants have been acquired in the year 1996 and the learned Reference Court has enhanced the amount of compensation after a period of approximately 17 years (by now 20 years), and the original claimants are not in a position to furnish any security, while permitting the original claimants to withdraw the amount of enhanced compensation awarded by the learned Reference Court, to strike the balance and to consider the interest of both the parties and recording the statement of Shri P.S. Narasimha, learned Senior Advocate appearing on behalf of the appellant that the appellant is ready and willing to deposit the entire enhanced amount of compensation awarded by the learned Reference Court, together with interest and cost, we are of the opinion that if the original claimants are permitted to withdraw 25% of the enhanced amount of compensation, as awarded by the learned Reference Court, together with proportionate interest and cost, without furnishing any security and the balance 75% of the enhanced amount of compensation, together with proportionate cost and interest, as awarded by the learned Reference Court is permitted to be invested in a fixed deposit in any nationalised bank with cumulative interest, it will meet the end of justice and take care of the interest of both the parties.
### Response:
1
### Explanation:
6. Having heard learned counsel for the respective parties at length and the fact that the lands of the original claimants have been acquired in the year 1996 and the learned Reference Court has enhanced the amount of compensation after a period of approximately 17 years (by now 20 years), and the original claimants are not in a position to furnish any security, while permitting the original claimants to withdraw the amount of enhanced compensation awarded by the learned Reference Court, to strike the balance and to consider the interest of both the parties and recording the statement of Shri P.S. Narasimha, learned Senior Advocate appearing on behalf of the appellant that the appellant is ready and willing to deposit the entire enhanced amount of compensation awarded by the learned Reference Court, together with interest and cost, we are of the opinion that if the original claimants are permitted to withdraw 25% of the enhanced amount of compensation, as awarded by the learned Reference Court, together with proportionate interest and cost, without furnishing any security and the balance 75% of the enhanced amount of compensation, together with proportionate cost and interest, as awarded by the learned Reference Court is permitted to be invested in a fixed deposit in any nationalised bank with cumulative interest, it will meet the end of justice and take care of the interest of both the parties.
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M. Karunanidhi Vs. Dr. H. V. Hande & Others | allegations contained therein, depends on whether it is a part of the pleadings. Upon the view that the photograph was not merely a document accompanying the election petition but was a part and parcel of the pleading contained in paragraph 18 (b), it is unnecessary for us to deal with the submission based on Order 7, Rule 14 of the Code of Civil Procedure, 1908. Our attention was drawn to the passage in Sahodrabai case at SCR page 18 of the report. The Court observed that under Order 7, Rule 14 where a plaintiff sues upon a document in his possession or power, he is required to file only one copy of the document and not as many copies as there are defendants and therefore a copy of the document is not expected to be deliberate with the copy of the plaint to the answering defendants when summons is served on them, and that it would be too strict a reading of the provisions of sub-section (3) of Section 81 and sub-section (2) of Section 83 to lay down that the election law provides anything different. These observations cannot, in our opinion, be read out of context. The decision in Sahodrabai case was that since the election petition itself reproduced the whole of the pamphlet in a translation in English, the pamphlet filed along with the petition had to be treated as a document and not as a part of the election petition and that being so, the Court observed that it would be stretching the words of sub-section (3) of Section 81 and sub-section (2) of Section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. 40. We would add for the sake of completeness that we have been referred to the decision of this Court in Sharif-Ud-Din v. Abdul Gani Lone but that decision is not directly in point. One of us (Venkataramiah, J.) had occasion to deal with the corresponding sub-section (3) of Section 89 of the Jammu & Kashmir Representation of the People Act, 1957 which reads : Every election petition would be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition. In that case, both the copies of the election petition contained the endorsement Attested true copy, Piyare Lal Handoo, Advocate. The question arose whether there was a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act. The Court pointed out that sub-section (3) of Section 89 consists of two parts. The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The first part of the section has been held to be a mandatory requirement by this Court in Satya Narain case 17. The Court held the second part also to be mandatory and observed : [SCC p. 410, para 18] It is true that Section 89 (3) of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, courts have no option but to enforce the law as it is.Upon that view it was held that the attestation of the copies by counsel for the election petitioner as true copies was not a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act as it required attestation by the election petitioner himself. The decision is an application of the rule that mandatory provisions must be fulfilled exactly. 41. It is obvious that the photograph was a part of the averment contained in paragraph 18 (b). In the absence of the photograph the averment contained in paragraph 18 (b) would be incomplete. The photograph referred to in paragraph 18 (b) was therefore an integral part of the election petition. It follows that there was total non-compliance with the requirements of sub-section (3) of section 81 of the Act by failure to serve the appellant with a copy of the election petition. In Ch. Subbarao case 15, the Court held that if there is a total complete non-compliance with the provisions of sub-section (3) of Section 81, the election petition could not be treated an election petition presented in accordance with the provisions of this Part within the meaning of Section 80 of the act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan. 42. The conclusion is irresistible that the words copies thereofin sub-section (3) of Section 81 read in the context of sub-section (2) of Section 83 must necessarily refer not only to the election petition proper but also to schedules or annexure thereto containing particulars of any corrupt practice alleged therein. That being so, we are constrained to reverse the judgment of the High Court insofar as it holds that the photograph of the fancy banner adverted to in paragraph; h 18 (b) could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of sub-section (3) of Section 81 of the Act. | 0[ds]33. The High Court rests its conclusion on the decision of this Court in Sahodrabai case 1, but that decision, in our opinion, is inapplicable to the facts and circumstances of the present case. In Sahodrabai case 1, an election petition was filed together with a pamphlet as annexure thereto. A translation in English of the pamphlet was incorporated in the body of the election petition and it was stated that it formed part of the petition. A preliminary objection was raised that a copy of the pamphlet had not been annexed to the copy of the petition served on the returned candidate and therefore the election petition was liable to be dismissed under sub-section (1) of Section 86 of the Act. The Madhya Pradesh High Court sustained the preliminary objection and dismissed the election petition. On appeal, this Court held that the words used in sub-section (1) of Section 81 are only the election petition and there was no mention of documents accompanying the election petition. Since the election petition itself reproduced the whole of the pamphlet in translation in English, it could not be said that the averments with regard to the pamphlet were themselves a part of the petition and therefore the pamphlet had in fact been served on the returned candidate although in a translation and not in the original. The Court then stated that even if it were not so, sub-section (2) of Section 83 of the Act has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put, not in the election petition, but in the accompanying schedules or annexures39. The test to be applied in determining whether the photograph referred to in paragraph 18 (b) is an integral part of the election petition or was merely a piece of evidence in proof of the allegations contained therein, depends on whether it is a part of the pleadings. Upon the view that the photograph was not merely a document accompanying the election petition but was a part and parcel of the pleading contained in paragraph 18 (b), it is unnecessary for us to deal with the submission based on Order 7, Rule 14 of theCode of Civil Procedure, 1908. Our attention was drawn to the passage in Sahodrabai case at SCR page 18 of the report. The Court observed that under Order 7, Rule 14 where a plaintiff sues upon a document in his possession or power, he is required to file only one copy of the document and not as many copies as there are defendants and therefore a copy of the document is not expected to be deliberate with the copy of the plaint to the answering defendants when summons is served on them, and that it would be too strict a reading of the provisions of sub-section (3) of Section 81 and sub-section (2) of Section 83 to lay down that the election law provides anything different. These observations cannot, in our opinion, be read out of context. The decision in Sahodrabai case was that since the election petition itself reproduced the whole of the pamphlet in a translation in English, the pamphlet filed along with the petition had to be treated as a document and not as a part of the election petition and that being so, the Court observed that it would be stretching the words of sub-section (3) of Section 81 and sub-section (2) of Section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper40. We would add for the sake of completeness that we have been referred to the decision of this Court in Sharif-Ud-Din v. Abdul Gani Lone but that decision is not directly in point. One of us (Venkataramiah, J.) had occasion to deal with the corresponding sub-section (3) of Section 89 of the Jammu & Kashmir Representation of the People Act, 1957 which reads :Every election petition would be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petitionIn that case, both the copies of the election petition contained the endorsement Attested true copy, Piyare Lal Handoo, Advocate. The question arose whether there was a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act. The Court pointed out that sub-section (3) of Section 89 consists of two parts. The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The first part of the section has been held to be a mandatory requirement by this Court in Satya Narain case 17. The Court held the second part also to be mandatory and observed : [SCC p. 410, para 18]It is true that Section 89 (3) of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, courts have no option but to enforce the law as it is.Upon that view it was held that the attestation of the copies by counsel for the election petitioner as true copies was not a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act as it required attestation by the election petitioner himself. The decision is an application of the rule that mandatory provisions must be fulfilled exactly41. It is obvious that the photograph was a part of the averment contained in paragraph 18 (b). In the absence of the photograph the averment contained in paragraph 18 (b) would be incomplete. The photograph referred to in paragraph 18 (b) was therefore an integral part of the election petition. It follows that there was total non-compliance with the requirements of sub-section (3) of section 81 of the Act by failure to serve the appellant with a copy of the election petition. In Ch. Subbarao case 15, the Court held that if there is a total complete non-compliance with the provisions of sub-section (3) of Section 81, the election petition could not be treated an election petition presented in accordance with the provisions of this Part within the meaning of Section 80 of the act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan42. The conclusion is irresistible that the words copies thereofin sub-section (3) of Section 81 read in the context of sub-section (2) of Section 83 must necessarily refer not only to the election petition proper but also to schedules or annexure thereto containing particulars of any corrupt practice alleged therein. That being so, we are constrained to reverse the judgment of the High Court insofar as it holds that the photograph of the fancy banner adverted to in paragraph; h 18 (b) could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of sub-section (3) of Section 81 of the Act. | 0 | 12,956 | 1,433 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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allegations contained therein, depends on whether it is a part of the pleadings. Upon the view that the photograph was not merely a document accompanying the election petition but was a part and parcel of the pleading contained in paragraph 18 (b), it is unnecessary for us to deal with the submission based on Order 7, Rule 14 of the Code of Civil Procedure, 1908. Our attention was drawn to the passage in Sahodrabai case at SCR page 18 of the report. The Court observed that under Order 7, Rule 14 where a plaintiff sues upon a document in his possession or power, he is required to file only one copy of the document and not as many copies as there are defendants and therefore a copy of the document is not expected to be deliberate with the copy of the plaint to the answering defendants when summons is served on them, and that it would be too strict a reading of the provisions of sub-section (3) of Section 81 and sub-section (2) of Section 83 to lay down that the election law provides anything different. These observations cannot, in our opinion, be read out of context. The decision in Sahodrabai case was that since the election petition itself reproduced the whole of the pamphlet in a translation in English, the pamphlet filed along with the petition had to be treated as a document and not as a part of the election petition and that being so, the Court observed that it would be stretching the words of sub-section (3) of Section 81 and sub-section (2) of Section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. 40. We would add for the sake of completeness that we have been referred to the decision of this Court in Sharif-Ud-Din v. Abdul Gani Lone but that decision is not directly in point. One of us (Venkataramiah, J.) had occasion to deal with the corresponding sub-section (3) of Section 89 of the Jammu & Kashmir Representation of the People Act, 1957 which reads : Every election petition would be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition. In that case, both the copies of the election petition contained the endorsement Attested true copy, Piyare Lal Handoo, Advocate. The question arose whether there was a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act. The Court pointed out that sub-section (3) of Section 89 consists of two parts. The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The first part of the section has been held to be a mandatory requirement by this Court in Satya Narain case 17. The Court held the second part also to be mandatory and observed : [SCC p. 410, para 18] It is true that Section 89 (3) of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, courts have no option but to enforce the law as it is.Upon that view it was held that the attestation of the copies by counsel for the election petitioner as true copies was not a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act as it required attestation by the election petitioner himself. The decision is an application of the rule that mandatory provisions must be fulfilled exactly. 41. It is obvious that the photograph was a part of the averment contained in paragraph 18 (b). In the absence of the photograph the averment contained in paragraph 18 (b) would be incomplete. The photograph referred to in paragraph 18 (b) was therefore an integral part of the election petition. It follows that there was total non-compliance with the requirements of sub-section (3) of section 81 of the Act by failure to serve the appellant with a copy of the election petition. In Ch. Subbarao case 15, the Court held that if there is a total complete non-compliance with the provisions of sub-section (3) of Section 81, the election petition could not be treated an election petition presented in accordance with the provisions of this Part within the meaning of Section 80 of the act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan. 42. The conclusion is irresistible that the words copies thereofin sub-section (3) of Section 81 read in the context of sub-section (2) of Section 83 must necessarily refer not only to the election petition proper but also to schedules or annexure thereto containing particulars of any corrupt practice alleged therein. That being so, we are constrained to reverse the judgment of the High Court insofar as it holds that the photograph of the fancy banner adverted to in paragraph; h 18 (b) could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of sub-section (3) of Section 81 of the Act.
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piece of evidence in proof of the allegations contained therein, depends on whether it is a part of the pleadings. Upon the view that the photograph was not merely a document accompanying the election petition but was a part and parcel of the pleading contained in paragraph 18 (b), it is unnecessary for us to deal with the submission based on Order 7, Rule 14 of theCode of Civil Procedure, 1908. Our attention was drawn to the passage in Sahodrabai case at SCR page 18 of the report. The Court observed that under Order 7, Rule 14 where a plaintiff sues upon a document in his possession or power, he is required to file only one copy of the document and not as many copies as there are defendants and therefore a copy of the document is not expected to be deliberate with the copy of the plaint to the answering defendants when summons is served on them, and that it would be too strict a reading of the provisions of sub-section (3) of Section 81 and sub-section (2) of Section 83 to lay down that the election law provides anything different. These observations cannot, in our opinion, be read out of context. The decision in Sahodrabai case was that since the election petition itself reproduced the whole of the pamphlet in a translation in English, the pamphlet filed along with the petition had to be treated as a document and not as a part of the election petition and that being so, the Court observed that it would be stretching the words of sub-section (3) of Section 81 and sub-section (2) of Section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper40. We would add for the sake of completeness that we have been referred to the decision of this Court in Sharif-Ud-Din v. Abdul Gani Lone but that decision is not directly in point. One of us (Venkataramiah, J.) had occasion to deal with the corresponding sub-section (3) of Section 89 of the Jammu & Kashmir Representation of the People Act, 1957 which reads :Every election petition would be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petitionIn that case, both the copies of the election petition contained the endorsement Attested true copy, Piyare Lal Handoo, Advocate. The question arose whether there was a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act. The Court pointed out that sub-section (3) of Section 89 consists of two parts. The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The first part of the section has been held to be a mandatory requirement by this Court in Satya Narain case 17. The Court held the second part also to be mandatory and observed : [SCC p. 410, para 18]It is true that Section 89 (3) of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, courts have no option but to enforce the law as it is.Upon that view it was held that the attestation of the copies by counsel for the election petitioner as true copies was not a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act as it required attestation by the election petitioner himself. The decision is an application of the rule that mandatory provisions must be fulfilled exactly41. It is obvious that the photograph was a part of the averment contained in paragraph 18 (b). In the absence of the photograph the averment contained in paragraph 18 (b) would be incomplete. The photograph referred to in paragraph 18 (b) was therefore an integral part of the election petition. It follows that there was total non-compliance with the requirements of sub-section (3) of section 81 of the Act by failure to serve the appellant with a copy of the election petition. In Ch. Subbarao case 15, the Court held that if there is a total complete non-compliance with the provisions of sub-section (3) of Section 81, the election petition could not be treated an election petition presented in accordance with the provisions of this Part within the meaning of Section 80 of the act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan42. The conclusion is irresistible that the words copies thereofin sub-section (3) of Section 81 read in the context of sub-section (2) of Section 83 must necessarily refer not only to the election petition proper but also to schedules or annexure thereto containing particulars of any corrupt practice alleged therein. That being so, we are constrained to reverse the judgment of the High Court insofar as it holds that the photograph of the fancy banner adverted to in paragraph; h 18 (b) could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of sub-section (3) of Section 81 of the Act.
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M/S Polyflex (India) Pvt. Ltd Vs. Commissioner Of Income Tax, Karnataka | following analysis of the section occurring in the judgment "in short, what this provision means is that if an assessee has been allowed a deduction in the computation of its total income of any liability on account of loss or expenditure and if, subsequently, the liability of the assessee on account of such loss or expenditure is remitted or ceases, that part of the liability which is remitted or ceases shall be treated to be the income of the assessee of the previous year in which such remission or cessation takes place." The High Court proceeded on the assumption that the words, remission and cessation thereof could be transposed into the first clause which speaks of obtaining any amount in respect of loss or expenditure. The High Court could have merely said that the trading liability provided for in the books of account and for which deduction was allowed earlier did not cease in view of the pendency of the dispute. Instead, the High Court referred to the expression "loss or expenditure" occurring in the first limb. As the assessee-company did not obtain any amount by way of refund on excise duty account, the first clause of S. 41(1) will not be applicable; it is only the latter part that applies in which case the remission or cessation of liability would assume importance. However, in the present case, as discussed above,it is the first clause that squarely applies but not the second one. Whether there was cessation or remission of liability would be an irrelevant time of enquiry here. The correct way of understanding S. 41(1) would be to read the latter clause - "some benefit in respect of such trading liability by way of remission or cessation thereof" as a distinct and self-contained provision. To read the phrase "by way of remission or cessation thereof" as governing the previous clause as well, i.e. "obtained any amount in respect of such loss or expenditure," would be doing violence to the language and structure of the provision. That apart, the operation of the provision which is designed to have widest amplitude will get constricted and truncated by reason of such interpretation. (15) Learned counsel for the appellant has also relied on a decision of the Gujarat High Court in V. T. Audyogik Sahakari Mandli Ltd. v. C.I.T. (242 ITR 627) . That decision prima facie supports the appellant. The learned Judges proceeded on the basis that in all situations falling under S. 41(1) the test whether there was remission or cessation of trading liability has to be applied, and therefore, concluded that even if the amount of refund is received, S. 41(1) cannot be invoked so long as there is no final decision on the question of legality of levy. To reach such a conclusion, the decision in J. K. Syntheticss case (supra) and Rameshwar Prasads case (supra) were relied upon. We have already explained the ratio of those decisions. Another case on which strong reliance was placed by the learned Judges is the judgment of the Full Bench in C.I.T. v. Bharat Iron and Steel Industries (199 ITR 67). In the said Full Bench decision, though the discussion by and large proceeded on right lines, we find that the actual decision reached in the concluding para is based on a wrong interpretation of the provision. The Full Bench was of the view that the assessees claim for refund of excise duty was in jeopardy in view of the pending revisional proceeding although the assessee obtained refund. The assessee received the refund of excise duty on 8-8-1975. The High Court took the view that the assessee obtained the refund only on 30-4-1976 when the proposed revision was withdrawn. It was, therefore, held that the refunded amount became includible in the assessees total income for the assessment year 1976-1977 under S. 41(1) of the Act, but not for the assessment year 1974-1975. The expression obtained any amount was virtually given an interpretation which is contrary to its plain meaning. However, it must be noted that the High Court rightly avoided reference to the expression remission or cessation thereof.(16) With respect, we are unable to accept the view taken by Gujarat High Court in the two decisions aforementioned as correct.(17) The decision of Karnataka High Court in K. G. Subramanyam v. C.I.T. (195 ITR 199) is quite opposite in the context of present case. The State of Karnataka levied litre fee which is in the nature of a duty of excise. The levy was challenged by the assessee. Pending such challenge, the assessee paid the litre fee which was allowed as deduction while computing the assessees income. Later on the levy of litre fee was declared as unconstitutional and the fee collected was refunded to the assessee. Relying on S. 41(1), the refunded amount was subjected to tax treating it as income of the year during which refund was obtained. The Tribunal and the High Court held that S. 41(1) was attracted and the Revenue was well justified in assessing the same. The High Court held that the payment in discharge of statutory liability incurred while earning the income is an expenditure and even if it is possible in some cases that such payment is liable to be excluded from the income as a liability incurred in the course of trade, it does not detract from its character as expenditure. It was, therefore, held : "We have no hesitation that the deduction given to the assessee in respect of the litre fee paid by him was by way of an expenditure; therefore, the amounts refunded on the levy being held unconstitutional were the amounts received by him in respect of the said expenditure and such receipts are liable to be taxed under S. 41(1)." The High Court observed that on the facts of that case, the question of cessation or remission of liability did not arise for consideration at all. We are in agreement with the view expressed by the Karnataka High Court. | 0[ds](4) It is true that in Thirumalaiswamy Naidus case the question of interpretation or applicability of any particular limb of S. 41(1) of the Act did not specifically fall for consideration. However, this Court did make it clear that when the assessee actually made payment towards statutory levy (sales tax) and later got back the amount by way of refund as a sequel to the judgment of the High Court, it becomes a revenue receipt and in such a situation, S. 41(1) is clearlyWe are of the view, apart from what has been laid down in Thirumalaiswamy Naidus case (supra), that the ingredients of S. 41(1) are satisfied in the instant case and, therefore, the amount of excise duty refunded becomes taxable during the year in question. This is a case in which the assessee can be said to have obtained the amount by way of refund in respect of the business expenditure incurred by it during an earlier year, for which the assessee had the benefit of deduction or allowance. Normally, the payment of certain amount to discharge the statutory levy such as sales tax, excise duty in the course of carrying on business is ane the assessee gets back the amount which was claimed and allowed as business expenditure during the earlier year, the deeming provision in S. 41(1) of the Act comes into play and it is not necessary that the Revenue should await the verdict of higher Court or Tribunal. If the Court or Tribunal upholds the levy at a later date, the assessee will not be without remedy to get back the relief.(8) True, expenditure and trading liability may be overlapping concepts; but theapparently intended to deal with allied concepts separately and specifically so as to make the provision as comprehensive as possible in order to effectuate the objective underlying the provision. The anatomy of the section and the collocation of the words employed therein would suggest that the test of cessation or remission of liability has to be appliedtrading liability and it cannot be projected into the previous clause.The High Court correctly appreciated the scope of S. 41(1) and applied the second limb of theto the fact situation. It may be noted that the assessee did neither pay the excise duty to the Government nor did it get refund of duty from the concerned authority. Notwithstanding the High Courts judgment in favour of the petitioner, the stage had not yet reached when it can be said that the liability for which allowance was given earlier ceased. The view taken by the High Court in substance is that the benefit in respect of the trading liability would accrue only when the liability definitely ceased after the termination of the proceedings in the Apex Court in favour of the petitioner. This very decision of the Allahabad High Court was relied upon by the Tribunal without appreciating the correct ratio of theThough, the conclusion of the High Court which was affirmed by this Court cannot be legally faulted, we cannot however approve of the following analysis of the section occurring in the judgment "in short, what this provision means is that if an assessee has been allowed a deduction in the computation of its total income of any liability on account of loss or expenditure and if, subsequently, the liability of the assessee on account of such loss or expenditure is remitted or ceases, that part of the liability which is remitted or ceases shall be treated to be the income of the assessee of the previous year in which such remission or cessation takes place." The High Court proceeded on the assumption that the words, remission and cessation thereof could be transposed into the first clause which speaks of obtaining any amount in respect of loss or expenditure. The High Court could have merely said that the trading liability provided for in the books of account and for which deduction was allowed earlier did not cease in view of the pendency of the dispute. Instead, the High Court referred to the expression "loss or expenditure" occurring in the first limb. As thedid not obtain any amount by way of refund on excise duty account, the first clause of S. 41(1) will not be applicable; it is only the latter part that applies in which case the remission or cessation of liability would assume importance. However, in the present case, as discussed above,it is the first clause that squarely applies but not the second one. Whether there was cessation or remission of liability would be an irrelevant time of enquiry here. The correct way of understanding S. 41(1) would be to read the latter clause"some benefit in respect of such trading liability by way of remission or cessation thereof" as a distinct andprovision. To read the phrase "by way of remission or cessation thereof" as governing the previous clause as well, i.e. "obtained any amount in respect of such loss or expenditure," would be doing violence to the language and structure of the provision. That apart, the operation of the provision which is designed to have widest amplitude will get constricted and truncated by reason of such interpretation.The Full Bench was of the view that the assessees claim for refund of excise duty was in jeopardy in view of the pending revisional proceeding although the assessee obtained refund. The assessee received the refund of excise duty onThe High Court took the view that the assessee obtained the refund only onwhen the proposed revision was withdrawn. It was, therefore, held that the refunded amount became includible in the assessees total income for the assessment yearunder S. 41(1) of the Act, but not for the assessment yearThe expression obtained any amount was virtually given an interpretation which is contrary to its plain meaning. However, it must be noted that the High Court rightly avoided reference to the expression remission or cessation thereof.(16) With respect, we are unable to accept the view taken by Gujarat High Court in the two decisions aforementioned as correct.(17) The decision of Karnataka High Court in K. G. Subramanyam v. C.I.T. (195 ITR 199) is quite opposite in the context of present case. The State of Karnataka levied litre fee which is in the nature of a duty of excise. The levy was challenged by the assessee. Pending such challenge, the assessee paid the litre fee which was allowed as deduction while computing the assessees income. Later on the levy of litre fee was declared as unconstitutional and the fee collected was refunded to the assessee. Relying on S. 41(1), the refunded amount was subjected to tax treating it as income of the year during which refund was obtained. The Tribunal and the High Court held that S. 41(1) was attracted and the Revenue was well justified in assessing the same. The High Court held that the payment in discharge of statutory liability incurred while earning the income is an expenditure and even if it is possible in some cases that such payment is liable to be excluded from the income as a liability incurred in the course of trade, it does not detract from its character as expenditure. It was, therefore, held : "We have no hesitation that the deduction given to the assessee in respect of the litre fee paid by him was by way of an expenditure; therefore, the amounts refunded on the levy being held unconstitutional were the amounts received by him in respect of the said expenditure and such receipts are liable to be taxed under S. 41(1)." The High Court observed that on the facts of that case, the question of cessation or remission of liability did not arise for consideration at all. We are in agreement with the view expressed by the Karnataka High Court. | 0 | 4,240 | 1,449 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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following analysis of the section occurring in the judgment "in short, what this provision means is that if an assessee has been allowed a deduction in the computation of its total income of any liability on account of loss or expenditure and if, subsequently, the liability of the assessee on account of such loss or expenditure is remitted or ceases, that part of the liability which is remitted or ceases shall be treated to be the income of the assessee of the previous year in which such remission or cessation takes place." The High Court proceeded on the assumption that the words, remission and cessation thereof could be transposed into the first clause which speaks of obtaining any amount in respect of loss or expenditure. The High Court could have merely said that the trading liability provided for in the books of account and for which deduction was allowed earlier did not cease in view of the pendency of the dispute. Instead, the High Court referred to the expression "loss or expenditure" occurring in the first limb. As the assessee-company did not obtain any amount by way of refund on excise duty account, the first clause of S. 41(1) will not be applicable; it is only the latter part that applies in which case the remission or cessation of liability would assume importance. However, in the present case, as discussed above,it is the first clause that squarely applies but not the second one. Whether there was cessation or remission of liability would be an irrelevant time of enquiry here. The correct way of understanding S. 41(1) would be to read the latter clause - "some benefit in respect of such trading liability by way of remission or cessation thereof" as a distinct and self-contained provision. To read the phrase "by way of remission or cessation thereof" as governing the previous clause as well, i.e. "obtained any amount in respect of such loss or expenditure," would be doing violence to the language and structure of the provision. That apart, the operation of the provision which is designed to have widest amplitude will get constricted and truncated by reason of such interpretation. (15) Learned counsel for the appellant has also relied on a decision of the Gujarat High Court in V. T. Audyogik Sahakari Mandli Ltd. v. C.I.T. (242 ITR 627) . That decision prima facie supports the appellant. The learned Judges proceeded on the basis that in all situations falling under S. 41(1) the test whether there was remission or cessation of trading liability has to be applied, and therefore, concluded that even if the amount of refund is received, S. 41(1) cannot be invoked so long as there is no final decision on the question of legality of levy. To reach such a conclusion, the decision in J. K. Syntheticss case (supra) and Rameshwar Prasads case (supra) were relied upon. We have already explained the ratio of those decisions. Another case on which strong reliance was placed by the learned Judges is the judgment of the Full Bench in C.I.T. v. Bharat Iron and Steel Industries (199 ITR 67). In the said Full Bench decision, though the discussion by and large proceeded on right lines, we find that the actual decision reached in the concluding para is based on a wrong interpretation of the provision. The Full Bench was of the view that the assessees claim for refund of excise duty was in jeopardy in view of the pending revisional proceeding although the assessee obtained refund. The assessee received the refund of excise duty on 8-8-1975. The High Court took the view that the assessee obtained the refund only on 30-4-1976 when the proposed revision was withdrawn. It was, therefore, held that the refunded amount became includible in the assessees total income for the assessment year 1976-1977 under S. 41(1) of the Act, but not for the assessment year 1974-1975. The expression obtained any amount was virtually given an interpretation which is contrary to its plain meaning. However, it must be noted that the High Court rightly avoided reference to the expression remission or cessation thereof.(16) With respect, we are unable to accept the view taken by Gujarat High Court in the two decisions aforementioned as correct.(17) The decision of Karnataka High Court in K. G. Subramanyam v. C.I.T. (195 ITR 199) is quite opposite in the context of present case. The State of Karnataka levied litre fee which is in the nature of a duty of excise. The levy was challenged by the assessee. Pending such challenge, the assessee paid the litre fee which was allowed as deduction while computing the assessees income. Later on the levy of litre fee was declared as unconstitutional and the fee collected was refunded to the assessee. Relying on S. 41(1), the refunded amount was subjected to tax treating it as income of the year during which refund was obtained. The Tribunal and the High Court held that S. 41(1) was attracted and the Revenue was well justified in assessing the same. The High Court held that the payment in discharge of statutory liability incurred while earning the income is an expenditure and even if it is possible in some cases that such payment is liable to be excluded from the income as a liability incurred in the course of trade, it does not detract from its character as expenditure. It was, therefore, held : "We have no hesitation that the deduction given to the assessee in respect of the litre fee paid by him was by way of an expenditure; therefore, the amounts refunded on the levy being held unconstitutional were the amounts received by him in respect of the said expenditure and such receipts are liable to be taxed under S. 41(1)." The High Court observed that on the facts of that case, the question of cessation or remission of liability did not arise for consideration at all. We are in agreement with the view expressed by the Karnataka High Court.
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possible in order to effectuate the objective underlying the provision. The anatomy of the section and the collocation of the words employed therein would suggest that the test of cessation or remission of liability has to be appliedtrading liability and it cannot be projected into the previous clause.The High Court correctly appreciated the scope of S. 41(1) and applied the second limb of theto the fact situation. It may be noted that the assessee did neither pay the excise duty to the Government nor did it get refund of duty from the concerned authority. Notwithstanding the High Courts judgment in favour of the petitioner, the stage had not yet reached when it can be said that the liability for which allowance was given earlier ceased. The view taken by the High Court in substance is that the benefit in respect of the trading liability would accrue only when the liability definitely ceased after the termination of the proceedings in the Apex Court in favour of the petitioner. This very decision of the Allahabad High Court was relied upon by the Tribunal without appreciating the correct ratio of theThough, the conclusion of the High Court which was affirmed by this Court cannot be legally faulted, we cannot however approve of the following analysis of the section occurring in the judgment "in short, what this provision means is that if an assessee has been allowed a deduction in the computation of its total income of any liability on account of loss or expenditure and if, subsequently, the liability of the assessee on account of such loss or expenditure is remitted or ceases, that part of the liability which is remitted or ceases shall be treated to be the income of the assessee of the previous year in which such remission or cessation takes place." The High Court proceeded on the assumption that the words, remission and cessation thereof could be transposed into the first clause which speaks of obtaining any amount in respect of loss or expenditure. The High Court could have merely said that the trading liability provided for in the books of account and for which deduction was allowed earlier did not cease in view of the pendency of the dispute. Instead, the High Court referred to the expression "loss or expenditure" occurring in the first limb. As thedid not obtain any amount by way of refund on excise duty account, the first clause of S. 41(1) will not be applicable; it is only the latter part that applies in which case the remission or cessation of liability would assume importance. However, in the present case, as discussed above,it is the first clause that squarely applies but not the second one. Whether there was cessation or remission of liability would be an irrelevant time of enquiry here. The correct way of understanding S. 41(1) would be to read the latter clause"some benefit in respect of such trading liability by way of remission or cessation thereof" as a distinct andprovision. To read the phrase "by way of remission or cessation thereof" as governing the previous clause as well, i.e. "obtained any amount in respect of such loss or expenditure," would be doing violence to the language and structure of the provision. That apart, the operation of the provision which is designed to have widest amplitude will get constricted and truncated by reason of such interpretation.The Full Bench was of the view that the assessees claim for refund of excise duty was in jeopardy in view of the pending revisional proceeding although the assessee obtained refund. The assessee received the refund of excise duty onThe High Court took the view that the assessee obtained the refund only onwhen the proposed revision was withdrawn. It was, therefore, held that the refunded amount became includible in the assessees total income for the assessment yearunder S. 41(1) of the Act, but not for the assessment yearThe expression obtained any amount was virtually given an interpretation which is contrary to its plain meaning. However, it must be noted that the High Court rightly avoided reference to the expression remission or cessation thereof.(16) With respect, we are unable to accept the view taken by Gujarat High Court in the two decisions aforementioned as correct.(17) The decision of Karnataka High Court in K. G. Subramanyam v. C.I.T. (195 ITR 199) is quite opposite in the context of present case. The State of Karnataka levied litre fee which is in the nature of a duty of excise. The levy was challenged by the assessee. Pending such challenge, the assessee paid the litre fee which was allowed as deduction while computing the assessees income. Later on the levy of litre fee was declared as unconstitutional and the fee collected was refunded to the assessee. Relying on S. 41(1), the refunded amount was subjected to tax treating it as income of the year during which refund was obtained. The Tribunal and the High Court held that S. 41(1) was attracted and the Revenue was well justified in assessing the same. The High Court held that the payment in discharge of statutory liability incurred while earning the income is an expenditure and even if it is possible in some cases that such payment is liable to be excluded from the income as a liability incurred in the course of trade, it does not detract from its character as expenditure. It was, therefore, held : "We have no hesitation that the deduction given to the assessee in respect of the litre fee paid by him was by way of an expenditure; therefore, the amounts refunded on the levy being held unconstitutional were the amounts received by him in respect of the said expenditure and such receipts are liable to be taxed under S. 41(1)." The High Court observed that on the facts of that case, the question of cessation or remission of liability did not arise for consideration at all. We are in agreement with the view expressed by the Karnataka High Court.
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Kail Ltd. Formerly Kitchen Appl.(I) Ld Vs. State Of Kerala Tr.Jt.Commr.(Law) | held company.5. I further say that Dhoot Brothers are also promoters of Videocon International Ltd. and based on the facts and the filings made by the company, from time to time, with the Stock Exchanges, the promoters together with various Videocon Group Companies were holding 35.11% of equity shares in Videocon International Ltd. as on 31/3/0000. Copy of shareholding pattern of Videocon International Ltd as on 31/3/2000 is produced herewith and marked as Annexure R-1 (G).6. I respectfully further say and submit that at no point of time the respondent company was a subsidiary of Videocon International Limited. The same is evident from various filings made by Videocon International Limited and the respondent company. Videocon International Limited and, KAIL Limited were/are part of Videocon Group.Affiliated Group"The principal operating companies in the Wider Videocon Group outside the Videocon Group, including: Videocon Appliances Limited, Videocon Communication Limited, Applicomp India Limited, Kitchen Appliances India Limited, Millennium Appliances (India) Limited and their consolidated subsidiaries."In this context, other related/relevant definitions are:-Dhoot FamilyMr. V.N. Dhoot, Mr. P.N. Dhoot, Mr. R.N. Dhoot and their blood and marital relations and companies or other entities outside the Wider Videocon Group owned and/or controlled directly or indirectly by all or any such persons.Wider Videocon GroupThe affiliated Group and Videocon GroupVideocon GroupVideocon Industries Limited, and where the context permits, its subsidiaries...." 12. Similarly, paragraph 6 of the same affidavit shows that Videocon International Ltd and KAIL Ltd are part of Videocon group. It also shows that during 1999-2000, the appellant-Company had manufactured 2057 colour television sets and 961 black and white television sets in SANSUI brand at Calcutta factory. Furthermore, at page Nos. 109-110 of the website publication produced by learned senior counsel for the appellant-Company in the High Court shows that as on 30.06.2006, 100% shares of Kitchen Appliances India Ltd. were held by Dhoot family. The given evidences are sufficient enough to show that the appellant-Company is a subsidiary and/or a group company of M/s Videocon International Ltd and hence, is also allowed to use the brand name SANSUI. Further, evidence on record shows that even the letter head used by the appellant-Company for correspondence is printed with the name of SANSUI with their logo and trademark. 13. In Cryptm Confectioneries (P) Ltd. v. State of Kerala (2015) 13 SCC 492, this Court while dealing with exactly similar incidence of tax held as under:- "9. In order to attract Section 5(2) of the Act, the following conditions are to be satisfied:(i) Sale of manufactured goods other than tea;(ii) Sale of the said goods is under a trade mark/brand name; and(iii) The sale is by the brand name holder or the trade mark holder within the State.If the above three conditions are satisfied, the sale by the brand name holder or the trade mark holder shall be the first sale for the purpose of the Act.10. The aforesaid sub-section commences with a non obstante clause i.e. irrespective of Section 5(1) of the Act or any other provision under the Act. The said sub-section speaks of a sale made by a brand name holder or the trade mark holder within the State. The legislature deems that such a sale by the brand name holder or the trade mark holder shall be the first sale within the State. In our opinion this is the only possible construction that can be given to sub-section (2) of Section 5 of the Act." Further, we are of the view that when a product is marketed under a brand name, the Assessing Authority is entitled to assume that the sale is by the holder of the brand name or by a person, who is entitled to use the brand name in India. Apart from this, in this case, the marketing is actually done by fully owned subsidiary and/or a group company of the holding company, which was allowed to use the brand name "Sansui". 14. Brand name has no relevance when the products are manufactured and sold in bulk by the holding company to its subsidiary company for marketing. However, the brand name assumes significance when goods are marketed with publicity in the market. Moreover, when the goods are sold under the brand name, necessarily, it has to assume that the marketing company is the holder of the brand name or has the right to market the products in the brand name because, it is the first company introducing the products in the market. The objective of Sec 5(2) of KGST Act is to assess the sale of branded goods by the brand name holder to the market and the inter se sale between the brand name holders is not intended to be covered by Sec. 5(2) of the KGST Act. 15. However, if the sale between the holding company and the subsidiary company, both having the right to use the same brand name, is at realistic price and the marketing company namely, the appellant-Company charged only usual margins in the trade, then there is no scope for ignoring the first sale, particularly, when the first seller was also the holder of the brand name and was free to market the products in the brand name. However, the evidence on record shows that the margin charged by the appellant-Company while making the further sale of product is unusually high. So the inter se sale between the groups of companies under the control of the same family was only to reduce tax liability and was rightly ignored by the assessing officer by levying tax under Section 5(2) of the KGST Act. 16. In view of the foregoing discussion, we are of the opinion that the tax invoking Section 5(2) of the KGST Act was rightly levied on the appellant-Company for the relevant period as it is proved beyond reasonable doubt that the appellant-Company is the brand name holder of "Sansui". We uphold the decisions rendered by the High Court in revision petition and review petition and no interference is warranted into it.17. Above being the position, the | 0[ds]9. As is clear from the language itself that in order to attract sub-Section (2) of Section 5, the following conditions are to beSale of manufactured goods other than tea;(ii) Sale of the said goods is under a trade mark or brand name; and(iii) The sale is by the brand name holder or the trade mark holder within theall the aforesaid conditions are satisfied, the sale by the brand name holder or the trade mark holder shall be the first sale for the purposes of the KGST Act.10. Applying the aforementioned conditions to the facts of the present case, it is an admitted fact that the goods sold by the appellant-Company are manufactured goods other than tea. The first condition is satisfied. The next condition to be satisfied is that the sale of goods is under a trade mark or brand name. It is an undisputed fact that the manufactured goods sold by the appellant-Company were home appliances under the brand name "Sansui". Thus the second condition is alsoare of the view that when a product is marketed under a brand name, the Assessing Authority is entitled to assume that the sale is by the holder of the brand name or by a person, who is entitled to use the brand name in India. Apart from this, in this case, the marketing is actually done by fully owned subsidiary and/or a group company of the holding company, which was allowed to use the brand namethe evidence on record shows that the margin charged by the appellant-Company while making the further sale of product is unusually high. So the inter se sale between the groups of companies under the control of the same family was only to reduce tax liability and was rightly ignored by the assessing officer by levying tax under Section 5(2) of the KGSTare of the opinion that the tax invoking Section 5(2) of the KGST Act was rightly levied on the appellant-Company for the relevant period as it is proved beyond reasonable doubt that the appellant-Company is the brand name holder of "Sansui". We uphold the decisions rendered by the High Court in revision petition and review petition and no interference is warranted into it. | 0 | 3,376 | 410 | ### 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:
held company.5. I further say that Dhoot Brothers are also promoters of Videocon International Ltd. and based on the facts and the filings made by the company, from time to time, with the Stock Exchanges, the promoters together with various Videocon Group Companies were holding 35.11% of equity shares in Videocon International Ltd. as on 31/3/0000. Copy of shareholding pattern of Videocon International Ltd as on 31/3/2000 is produced herewith and marked as Annexure R-1 (G).6. I respectfully further say and submit that at no point of time the respondent company was a subsidiary of Videocon International Limited. The same is evident from various filings made by Videocon International Limited and the respondent company. Videocon International Limited and, KAIL Limited were/are part of Videocon Group.Affiliated Group"The principal operating companies in the Wider Videocon Group outside the Videocon Group, including: Videocon Appliances Limited, Videocon Communication Limited, Applicomp India Limited, Kitchen Appliances India Limited, Millennium Appliances (India) Limited and their consolidated subsidiaries."In this context, other related/relevant definitions are:-Dhoot FamilyMr. V.N. Dhoot, Mr. P.N. Dhoot, Mr. R.N. Dhoot and their blood and marital relations and companies or other entities outside the Wider Videocon Group owned and/or controlled directly or indirectly by all or any such persons.Wider Videocon GroupThe affiliated Group and Videocon GroupVideocon GroupVideocon Industries Limited, and where the context permits, its subsidiaries...." 12. Similarly, paragraph 6 of the same affidavit shows that Videocon International Ltd and KAIL Ltd are part of Videocon group. It also shows that during 1999-2000, the appellant-Company had manufactured 2057 colour television sets and 961 black and white television sets in SANSUI brand at Calcutta factory. Furthermore, at page Nos. 109-110 of the website publication produced by learned senior counsel for the appellant-Company in the High Court shows that as on 30.06.2006, 100% shares of Kitchen Appliances India Ltd. were held by Dhoot family. The given evidences are sufficient enough to show that the appellant-Company is a subsidiary and/or a group company of M/s Videocon International Ltd and hence, is also allowed to use the brand name SANSUI. Further, evidence on record shows that even the letter head used by the appellant-Company for correspondence is printed with the name of SANSUI with their logo and trademark. 13. In Cryptm Confectioneries (P) Ltd. v. State of Kerala (2015) 13 SCC 492, this Court while dealing with exactly similar incidence of tax held as under:- "9. In order to attract Section 5(2) of the Act, the following conditions are to be satisfied:(i) Sale of manufactured goods other than tea;(ii) Sale of the said goods is under a trade mark/brand name; and(iii) The sale is by the brand name holder or the trade mark holder within the State.If the above three conditions are satisfied, the sale by the brand name holder or the trade mark holder shall be the first sale for the purpose of the Act.10. The aforesaid sub-section commences with a non obstante clause i.e. irrespective of Section 5(1) of the Act or any other provision under the Act. The said sub-section speaks of a sale made by a brand name holder or the trade mark holder within the State. The legislature deems that such a sale by the brand name holder or the trade mark holder shall be the first sale within the State. In our opinion this is the only possible construction that can be given to sub-section (2) of Section 5 of the Act." Further, we are of the view that when a product is marketed under a brand name, the Assessing Authority is entitled to assume that the sale is by the holder of the brand name or by a person, who is entitled to use the brand name in India. Apart from this, in this case, the marketing is actually done by fully owned subsidiary and/or a group company of the holding company, which was allowed to use the brand name "Sansui". 14. Brand name has no relevance when the products are manufactured and sold in bulk by the holding company to its subsidiary company for marketing. However, the brand name assumes significance when goods are marketed with publicity in the market. Moreover, when the goods are sold under the brand name, necessarily, it has to assume that the marketing company is the holder of the brand name or has the right to market the products in the brand name because, it is the first company introducing the products in the market. The objective of Sec 5(2) of KGST Act is to assess the sale of branded goods by the brand name holder to the market and the inter se sale between the brand name holders is not intended to be covered by Sec. 5(2) of the KGST Act. 15. However, if the sale between the holding company and the subsidiary company, both having the right to use the same brand name, is at realistic price and the marketing company namely, the appellant-Company charged only usual margins in the trade, then there is no scope for ignoring the first sale, particularly, when the first seller was also the holder of the brand name and was free to market the products in the brand name. However, the evidence on record shows that the margin charged by the appellant-Company while making the further sale of product is unusually high. So the inter se sale between the groups of companies under the control of the same family was only to reduce tax liability and was rightly ignored by the assessing officer by levying tax under Section 5(2) of the KGST Act. 16. In view of the foregoing discussion, we are of the opinion that the tax invoking Section 5(2) of the KGST Act was rightly levied on the appellant-Company for the relevant period as it is proved beyond reasonable doubt that the appellant-Company is the brand name holder of "Sansui". We uphold the decisions rendered by the High Court in revision petition and review petition and no interference is warranted into it.17. Above being the position, the
### Response:
0
### Explanation:
9. As is clear from the language itself that in order to attract sub-Section (2) of Section 5, the following conditions are to beSale of manufactured goods other than tea;(ii) Sale of the said goods is under a trade mark or brand name; and(iii) The sale is by the brand name holder or the trade mark holder within theall the aforesaid conditions are satisfied, the sale by the brand name holder or the trade mark holder shall be the first sale for the purposes of the KGST Act.10. Applying the aforementioned conditions to the facts of the present case, it is an admitted fact that the goods sold by the appellant-Company are manufactured goods other than tea. The first condition is satisfied. The next condition to be satisfied is that the sale of goods is under a trade mark or brand name. It is an undisputed fact that the manufactured goods sold by the appellant-Company were home appliances under the brand name "Sansui". Thus the second condition is alsoare of the view that when a product is marketed under a brand name, the Assessing Authority is entitled to assume that the sale is by the holder of the brand name or by a person, who is entitled to use the brand name in India. Apart from this, in this case, the marketing is actually done by fully owned subsidiary and/or a group company of the holding company, which was allowed to use the brand namethe evidence on record shows that the margin charged by the appellant-Company while making the further sale of product is unusually high. So the inter se sale between the groups of companies under the control of the same family was only to reduce tax liability and was rightly ignored by the assessing officer by levying tax under Section 5(2) of the KGSTare of the opinion that the tax invoking Section 5(2) of the KGST Act was rightly levied on the appellant-Company for the relevant period as it is proved beyond reasonable doubt that the appellant-Company is the brand name holder of "Sansui". We uphold the decisions rendered by the High Court in revision petition and review petition and no interference is warranted into it.
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ASHIM RANJAN DAS (D) BY LRS Vs. SHIBU BODHAK AND OTHERS | Reforms Officer forwarded the annulment proposal to the Sub-Divisional Officer (‘SDO’) for taking necessary action in terms of the order passed by the Tribunal. The SDO in turn issued notice to the patta holders for hearing.13. Shibu Bodhak and Tapan Malik respondents No.1 and 2 herein respectively, filed an application in the High Court of Calcutta registered as W.P.L.R.T. No.1045/2001, being an appeal filed u/s 11 of the WB Land Reforms & Tenancy Act and also invoking Article 226 of the Constitution of India, inter alia praying for issuance of a writ in the nature of mandamus, commanding the respondents to set aside the order dated 19.9.2000 and 22.3.2001 passed by the Tribunal in Appeal No.401/2000, which was transferred from the High Court, and also directing the respondents to set aside the action of the appropriate authority under The West Bengal Land Reforms Act, 1955 (hereinafter referred to as the ‘WB Land Reforms Act’) which had issued a notice dated 17.4.01 for the cancellation of patta. Mr. Shibu Bodhak and Tapan Malik challenged the order of the Tribunal directing the authorities to cancel the pattas of patta holders inter alia on the ground of absence of opportunity of being heard.14. We may notice here that the WB Land Reforms Act was enacted with the objective as set out in the Preamble, which reads as under:“An Act to reform the law relating to land tenure consequent on the vesting of all estates and of certain rights therein [and also to consolidate the law relating to land reforms] in the State.”The WB Land Reforms Act sought to vest the rights in the land in the raiyat (a person or an institution holding land for any purpose whatsoever).15. This was opposed by the appellant before us on the ground that since the vesting in the State Government had been set aside by the High Court on 1.6.1973 albeit at the behest of Golap Bala Saha Mondal, the grant of pattas by the State Government was void ab initio including in respect of the present first two respondents in July, 1980. We may add here that the rights of the appellant are derived from Jitendra Lal Paul for which the writ petition was filed only in the year 1990. It appears that in the interregnum period the land was transferred to respondent Nos.1 & 2. It was also contended by the appellant that the first two respondents could not complain or make a grievance for not being made parties in Appeal No.401/2000 since the issue of the proceedings under Section 44(2a) of the Acquisition Act already stood resolved and had attained finality.16. The aforesaid appeal filed by respondent Nos.1 & 2 was, however, allowed vide impugned order dated 7.5.2004, noticing that respondent Nos.1 & 2 herein were the patta holders in respect of the land and were not heard by the Tribunal before directing the cancellation of the pattas given to them. They had continued in possession since 1980 and it is only on issuance of notice by the appropriate authority in April, 2001 that they came to know of the cancellation of the patta. The writ petition filed, which was transferred to the Tribunal only made a prayer for mutation of the land in the name of the appellant for which patta was held by respondent Nos.1 & 2 and they were not parties. It was further opined that the Tribunal having already reached a finding and issuing directions to the authorities for mutation of the plots in favour of the appellant, the hearing to be given by the Block Land and Reforms Officer would be of no consequence. The order dated 19.9.2000 of the Tribunal was, thus, set aside as also all proceedings thereto. However, no observations were made on the merit of the controversy and this setting aside was necessitated on account of violation of principles of natural justice. The Tribunal was directed to give a chance to the first two respondents herein to file their affidavits and thereafter pass an order on the merits of the controversy raised by the appellant.17. The appellant is aggrieved by this remitting of the matter to the Appellate Tribunal. We may also note that this appeal was filed originally in the year 2004 and 14 years have elapsed since then.18. We believe the endeavour of the appellant through the present proceedings has proved to be a fruitless exercise as by now the matter on being remanded would have been adjudicated, after giving opportunities to the first two respondents. The case has had a chequered factual history. No doubt the proceedings initiated under Section 44(2a) of the Acquisition Act in 1969 were set at naught by the order of the High Court dated 1.6.1973, but then only Golap Bala Saha Mondal had initiated the process while no such process was initiated by Jitendra Lal Paul. After the proceedings of the Revenue Officer were set aside on 1.6.1973, it appears that action was taken qua the land of Jitendra Lal Paul and that is how respondent Nos.1 & 2 have registered pattas issued by the State authorities in July, 1980 and claim to be in possession. The appellant purchased the same land in 1987 and possibly at the behest of the heirs of Jitendra Lal Paul, woke up to file the writ petition in the year 1990. The appellant and the respondents herein, were made a party in those proceedings. Predicated on the reasoning of the order dated 1.6.1973, this petition succeeded by the order dated 17.7.1997. It is thereafter that the appellant filed the writ petition, which was transferred to the Tribunal without impleading respondent Nos.1 & 2 as parties in whom the land vested, rightly or wrongly. In such a situation the first two respondents, at least, have a right to be heard and that is what has weighed with the High Court while setting at naught the directions of the Tribunal dated 19.9.2000 and subsequent proceedings thereto, vide order in appeal dated 7.5.2004. | 0[ds]18. We believe the endeavour of the appellant through the presents has proved to be a fruitless exercise as by now the matter on being remanded would have been adjudicated, after giving opportunities to the first two respondents. The case has had a chequered factual history. No doubt the proceedings initiated under Section 44(2a) of the Acquisition Act in 1969 were set at naught by the order of the High Court dated 1.6.1973, but then only Golap Bala Saha Mondal had initiated the process while no such process was initiated by Jitendra Lal Paul. After the proceedings of the Revenue Officer were set aside on 1.6.1973, it appears that action was taken qua the land of Jitendra Lal Paul and that is how respondent Nos.1 & 2 have registered pattas issued by the State authorities in July, 1980 and claim to be in possession. The appellant purchased the same land in 1987 and possibly at the behest of the heirs of Jitendra Lal Paul, woke up to file the writ petition in the year 1990. The appellant and the respondents herein, were made a party in those proceedings. Predicated on the reasoning of the order dated 1.6.1973, this petition succeeded by the order dated 17.7.1997. It is thereafter that the appellant filed the writ petition, which was transferred to the Tribunal without impleading respondent Nos.1 & 2 as parties in whom the landd, rightly or wrongly. In such a situation the first two respondents, at least, have a right to be heard and that is what has weighed with the High Court while setting at naught the directions of the Tribunal dated 19.9.2000 and subsequent proceedings thereto, vide order in appeal dated 7.5.2004. | 0 | 3,574 | 312 | ### 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:
Reforms Officer forwarded the annulment proposal to the Sub-Divisional Officer (‘SDO’) for taking necessary action in terms of the order passed by the Tribunal. The SDO in turn issued notice to the patta holders for hearing.13. Shibu Bodhak and Tapan Malik respondents No.1 and 2 herein respectively, filed an application in the High Court of Calcutta registered as W.P.L.R.T. No.1045/2001, being an appeal filed u/s 11 of the WB Land Reforms & Tenancy Act and also invoking Article 226 of the Constitution of India, inter alia praying for issuance of a writ in the nature of mandamus, commanding the respondents to set aside the order dated 19.9.2000 and 22.3.2001 passed by the Tribunal in Appeal No.401/2000, which was transferred from the High Court, and also directing the respondents to set aside the action of the appropriate authority under The West Bengal Land Reforms Act, 1955 (hereinafter referred to as the ‘WB Land Reforms Act’) which had issued a notice dated 17.4.01 for the cancellation of patta. Mr. Shibu Bodhak and Tapan Malik challenged the order of the Tribunal directing the authorities to cancel the pattas of patta holders inter alia on the ground of absence of opportunity of being heard.14. We may notice here that the WB Land Reforms Act was enacted with the objective as set out in the Preamble, which reads as under:“An Act to reform the law relating to land tenure consequent on the vesting of all estates and of certain rights therein [and also to consolidate the law relating to land reforms] in the State.”The WB Land Reforms Act sought to vest the rights in the land in the raiyat (a person or an institution holding land for any purpose whatsoever).15. This was opposed by the appellant before us on the ground that since the vesting in the State Government had been set aside by the High Court on 1.6.1973 albeit at the behest of Golap Bala Saha Mondal, the grant of pattas by the State Government was void ab initio including in respect of the present first two respondents in July, 1980. We may add here that the rights of the appellant are derived from Jitendra Lal Paul for which the writ petition was filed only in the year 1990. It appears that in the interregnum period the land was transferred to respondent Nos.1 & 2. It was also contended by the appellant that the first two respondents could not complain or make a grievance for not being made parties in Appeal No.401/2000 since the issue of the proceedings under Section 44(2a) of the Acquisition Act already stood resolved and had attained finality.16. The aforesaid appeal filed by respondent Nos.1 & 2 was, however, allowed vide impugned order dated 7.5.2004, noticing that respondent Nos.1 & 2 herein were the patta holders in respect of the land and were not heard by the Tribunal before directing the cancellation of the pattas given to them. They had continued in possession since 1980 and it is only on issuance of notice by the appropriate authority in April, 2001 that they came to know of the cancellation of the patta. The writ petition filed, which was transferred to the Tribunal only made a prayer for mutation of the land in the name of the appellant for which patta was held by respondent Nos.1 & 2 and they were not parties. It was further opined that the Tribunal having already reached a finding and issuing directions to the authorities for mutation of the plots in favour of the appellant, the hearing to be given by the Block Land and Reforms Officer would be of no consequence. The order dated 19.9.2000 of the Tribunal was, thus, set aside as also all proceedings thereto. However, no observations were made on the merit of the controversy and this setting aside was necessitated on account of violation of principles of natural justice. The Tribunal was directed to give a chance to the first two respondents herein to file their affidavits and thereafter pass an order on the merits of the controversy raised by the appellant.17. The appellant is aggrieved by this remitting of the matter to the Appellate Tribunal. We may also note that this appeal was filed originally in the year 2004 and 14 years have elapsed since then.18. We believe the endeavour of the appellant through the present proceedings has proved to be a fruitless exercise as by now the matter on being remanded would have been adjudicated, after giving opportunities to the first two respondents. The case has had a chequered factual history. No doubt the proceedings initiated under Section 44(2a) of the Acquisition Act in 1969 were set at naught by the order of the High Court dated 1.6.1973, but then only Golap Bala Saha Mondal had initiated the process while no such process was initiated by Jitendra Lal Paul. After the proceedings of the Revenue Officer were set aside on 1.6.1973, it appears that action was taken qua the land of Jitendra Lal Paul and that is how respondent Nos.1 & 2 have registered pattas issued by the State authorities in July, 1980 and claim to be in possession. The appellant purchased the same land in 1987 and possibly at the behest of the heirs of Jitendra Lal Paul, woke up to file the writ petition in the year 1990. The appellant and the respondents herein, were made a party in those proceedings. Predicated on the reasoning of the order dated 1.6.1973, this petition succeeded by the order dated 17.7.1997. It is thereafter that the appellant filed the writ petition, which was transferred to the Tribunal without impleading respondent Nos.1 & 2 as parties in whom the land vested, rightly or wrongly. In such a situation the first two respondents, at least, have a right to be heard and that is what has weighed with the High Court while setting at naught the directions of the Tribunal dated 19.9.2000 and subsequent proceedings thereto, vide order in appeal dated 7.5.2004.
### Response:
0
### Explanation:
18. We believe the endeavour of the appellant through the presents has proved to be a fruitless exercise as by now the matter on being remanded would have been adjudicated, after giving opportunities to the first two respondents. The case has had a chequered factual history. No doubt the proceedings initiated under Section 44(2a) of the Acquisition Act in 1969 were set at naught by the order of the High Court dated 1.6.1973, but then only Golap Bala Saha Mondal had initiated the process while no such process was initiated by Jitendra Lal Paul. After the proceedings of the Revenue Officer were set aside on 1.6.1973, it appears that action was taken qua the land of Jitendra Lal Paul and that is how respondent Nos.1 & 2 have registered pattas issued by the State authorities in July, 1980 and claim to be in possession. The appellant purchased the same land in 1987 and possibly at the behest of the heirs of Jitendra Lal Paul, woke up to file the writ petition in the year 1990. The appellant and the respondents herein, were made a party in those proceedings. Predicated on the reasoning of the order dated 1.6.1973, this petition succeeded by the order dated 17.7.1997. It is thereafter that the appellant filed the writ petition, which was transferred to the Tribunal without impleading respondent Nos.1 & 2 as parties in whom the landd, rightly or wrongly. In such a situation the first two respondents, at least, have a right to be heard and that is what has weighed with the High Court while setting at naught the directions of the Tribunal dated 19.9.2000 and subsequent proceedings thereto, vide order in appeal dated 7.5.2004.
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M/S. GHAI CONSTRUCTION ENGINEERS AND CONTRACTORS Vs. GODAVARI MARATHWADA IRRIGATION DEVELOPMENT CORPORATION | Rohinton Fali Nariman, J.—Leave granted. 2. In the present case, an award was passed on 14.02.2002 by which a sum Rs. 22.90 Lakhs for two contracts each was awarded to the claimant. 3. A Section 34 petition was rejected on 30.12.2003 stating that the office objections were not complied with. Nothing was done to pursue the Section 34 petition thereafter. A writ petition after 11 years was then filed on 22.08.2014 questioning the order of 30.12.2003. 4. The High Court, by the impugned order dated 15.12.2016, has gone into the merits of the order dated 30.12.2003 and found that none of those objections were valid on merits and since the writ petition, though filed after 11 years, deals with public money, the writ petition was allowed and the Section 34 petition was reinstated to be heard on merits. 5. Learned counsel appearing on behalf of the appellant before us stated that the only ground made out in the writ petition for the delay of 11 years was that the respondents were unaware of the order dated 30.12.2003 because of the negligence of their lawyers. This being the case, it is clear that this is no reason to condone the massive delay of 11 years and the High Court was, therefore, incorrect in not adverting to this ground at all, and instead merely said that since public monies are involved, the order was set aside. 6. Mr. B.H. Marlapalle, learned senior counsel appearing on behalf of the respondent, on the other hand, has relied strongly upon paragraph 10 of the impugned order in which senior counsels submissions for the Cooperative Society stated that when it was realized for the first time that the impugned order was made, and an order of attachment came to be made in execution proceeding, the Corporation has deposited Rs. One Crore in each matter to show its bonafides. 7. Taking this into account, and taking the fact that public monies are involved, according to Mr. Marlapalle, learned senior counsel, there is no reason to interfere under Article 136 of the Constitution of India. 8. Mr. Marlapalle, learned senior counsel has also argued that the order dated 30.12.2003 was not a judicial order but merely an administrative order, and should, therefore, not to be set aside in any case. 9. Having heard learned counsel for the parties, we are of the view that ordinarily in a writ petition filed under Article 226 or 227, as has been stated in State of Madhya Pradesh v. Bhailal Bhai & Ors., (1964) 6 SCR 261 , the outer period of laches for approaching the Court would be a period of three years. It is conceivable, of course, that even within the aforesaid three years period, the writ petition may be dismissed on the ground of laches where, for example, laches are coupled with third party rights that may have arisen in the meanwhile, thereby causing prejudice to those rights. 10. An extremely long period of 11 years would require a herculean effort to condone. Merely stating that the appellant has shown its bonafides, i.e. after 11 years, by depositing two crores of rupees and by stating that public monies are involved is not sufficient cause to condone delay. Further, whether the order is administrative or otherwise does not make the least difference insofar as the doctrine of laches is concerned. The High Court did not even advert to the excuse given in the writ petition, presumably because it realized that mere negligence of counsel without more cannot condone an inordinately long period of delay. | 1[ds]7. Taking this into account, and taking the fact that public monies are involved, according to Mr. Marlapalle, learned senior counsel, there is no reason to interfere under Article 136 of the Constitution of India.9. Having heard learned counsel for the parties, we are of the view that ordinarily in a writ petition filed under Article 226 or 227, as has been stated in State of Madhya Pradesh v. Bhailal Bhai & Ors., (1964) 6 SCR 261 , the outer period of laches for approaching the Court would be a period of three years. It is conceivable, of course, that even within the aforesaid three years period, the writ petition may be dismissed on the ground of laches where, for example, laches are coupled with third party rights that may have arisen in the meanwhile, thereby causing prejudice to those rights.10. An extremely long period of 11 years would require a herculean effort to condone. Merely stating that the appellant has shown its bonafides, i.e. after 11 years, by depositing two crores of rupees and by stating that public monies are involved is not sufficient cause to condone delay. Further, whether the order is administrative or otherwise does not make the least difference insofar as the doctrine of laches is concerned. The High Court did not even advert to the excuse given in the writ petition, presumably because it realized that mere negligence of counsel without more cannot condone an inordinately long period of delay. | 1 | 665 | 278 | ### 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:
Rohinton Fali Nariman, J.—Leave granted. 2. In the present case, an award was passed on 14.02.2002 by which a sum Rs. 22.90 Lakhs for two contracts each was awarded to the claimant. 3. A Section 34 petition was rejected on 30.12.2003 stating that the office objections were not complied with. Nothing was done to pursue the Section 34 petition thereafter. A writ petition after 11 years was then filed on 22.08.2014 questioning the order of 30.12.2003. 4. The High Court, by the impugned order dated 15.12.2016, has gone into the merits of the order dated 30.12.2003 and found that none of those objections were valid on merits and since the writ petition, though filed after 11 years, deals with public money, the writ petition was allowed and the Section 34 petition was reinstated to be heard on merits. 5. Learned counsel appearing on behalf of the appellant before us stated that the only ground made out in the writ petition for the delay of 11 years was that the respondents were unaware of the order dated 30.12.2003 because of the negligence of their lawyers. This being the case, it is clear that this is no reason to condone the massive delay of 11 years and the High Court was, therefore, incorrect in not adverting to this ground at all, and instead merely said that since public monies are involved, the order was set aside. 6. Mr. B.H. Marlapalle, learned senior counsel appearing on behalf of the respondent, on the other hand, has relied strongly upon paragraph 10 of the impugned order in which senior counsels submissions for the Cooperative Society stated that when it was realized for the first time that the impugned order was made, and an order of attachment came to be made in execution proceeding, the Corporation has deposited Rs. One Crore in each matter to show its bonafides. 7. Taking this into account, and taking the fact that public monies are involved, according to Mr. Marlapalle, learned senior counsel, there is no reason to interfere under Article 136 of the Constitution of India. 8. Mr. Marlapalle, learned senior counsel has also argued that the order dated 30.12.2003 was not a judicial order but merely an administrative order, and should, therefore, not to be set aside in any case. 9. Having heard learned counsel for the parties, we are of the view that ordinarily in a writ petition filed under Article 226 or 227, as has been stated in State of Madhya Pradesh v. Bhailal Bhai & Ors., (1964) 6 SCR 261 , the outer period of laches for approaching the Court would be a period of three years. It is conceivable, of course, that even within the aforesaid three years period, the writ petition may be dismissed on the ground of laches where, for example, laches are coupled with third party rights that may have arisen in the meanwhile, thereby causing prejudice to those rights. 10. An extremely long period of 11 years would require a herculean effort to condone. Merely stating that the appellant has shown its bonafides, i.e. after 11 years, by depositing two crores of rupees and by stating that public monies are involved is not sufficient cause to condone delay. Further, whether the order is administrative or otherwise does not make the least difference insofar as the doctrine of laches is concerned. The High Court did not even advert to the excuse given in the writ petition, presumably because it realized that mere negligence of counsel without more cannot condone an inordinately long period of delay.
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1
### Explanation:
7. Taking this into account, and taking the fact that public monies are involved, according to Mr. Marlapalle, learned senior counsel, there is no reason to interfere under Article 136 of the Constitution of India.9. Having heard learned counsel for the parties, we are of the view that ordinarily in a writ petition filed under Article 226 or 227, as has been stated in State of Madhya Pradesh v. Bhailal Bhai & Ors., (1964) 6 SCR 261 , the outer period of laches for approaching the Court would be a period of three years. It is conceivable, of course, that even within the aforesaid three years period, the writ petition may be dismissed on the ground of laches where, for example, laches are coupled with third party rights that may have arisen in the meanwhile, thereby causing prejudice to those rights.10. An extremely long period of 11 years would require a herculean effort to condone. Merely stating that the appellant has shown its bonafides, i.e. after 11 years, by depositing two crores of rupees and by stating that public monies are involved is not sufficient cause to condone delay. Further, whether the order is administrative or otherwise does not make the least difference insofar as the doctrine of laches is concerned. The High Court did not even advert to the excuse given in the writ petition, presumably because it realized that mere negligence of counsel without more cannot condone an inordinately long period of delay.
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M/S. S.M.Dyechem Ltd., Mumbai Vs. M/S.Cadbury (India) Ltd., Mumbai | Bros. AIR 1948 Mad. 181, the passing off action failed. But thereafter James Chadwick Co. succeeded in an appeal arising out of the registration proceedings and the said judgment was confirmed by this Court in N.S. Thread & Co. v. James Chadwick & Bros., AIR 1953 SC 357 . It was held that the judgment in the passing off case could not be relied upon by the opposite side in latter registration proceedings. 43. In the same tone, Halsbury (Trade Marks, 4th Ed., 1984 Vol. 48, para 187) says that in a passing off action the "degree of similarity of the name, mark or other features concerned is important but not necessarily decisive, so that an action for infringement of a registered trade mark may succeed on the same facts where a passing off action fails or vice versa". As to vice-versa, Kerly says (para 16.12), an infringement action may fail where plaintiff cannot prove registration or that its registration extends to the goods or to all the goods in question or because the registration is invalid and yet the plaintiff may show that by the imitating the mark or otherwise, the defendant has done what is calculated to pass off his goods as those of plaintiff. 44. In Schweppes Ltd. v. Gibbens, 1905(22) RPC 601(HL) Lord Halsbury said, while dealing with a passing off action that "the whole question in these cases is whether the thing - taken in its entirety, looking at the whole thing - is such that in the ordinary course of things a person with reasonable comprehension and with proper insight would be deceived". Defendants name on his goods is an indication of there being no case of passing off : In the present case, defendants goods contain the words `Cadbury on their wrapper. As per the principle laid down in Fisons Ltd. v. E.J. Godwin, (1976) RPC 653, the occurrence of the name `Cadbury on the defendants wrapper is a factor to be considered while deciding the question of passing off. Similarly in King & Co. Ltd. v. Gillard and Co. Ltd., 22 RPC 327 amd Cadbury-Schweppes Pty. Ltd. v. The Pub. Squash Ltd., (1981) RPC 429, it was held that the presence of defendants name on his goods was an indication that there was no passing off, even if the trade dress was similar. The fact that the defendants wrapper contains the word `Cadbury above the words PICNIC in therefore a factor which is to be taken into account. Buyers ignorance and chances of being deceived : As to scope of a buyer being deceived, in a passing off action, the following principles have to be borne in mind. Lord Romer, LJ has said in Payton & Co. v. Snelling Lampard & Co., 1900(17) RPC 48 that it is a misconception to refer to the confusion that can be created upon an ignorant customer. The kind of customer that the Courts ought to think of in these cases is the customer who knows the distinguishing characteristics of the plaintiffs goods, those characteristics which distinguish his goods from other goods in the market so far as relates to general characteristics. If he does not know that, he is not a customer whose views can properly be regarded by the Court. [See the cases quoted in N.S. Thread & Co. v. Chadwick & Bros., AIR 1948 Mad. 481 , which was a passing off action]. In Schweppes case, Lord Halsubury said, if a person is so careless that he does not look and does not treat the label fairly but takes the bottle without sufficient consideration and without reading what is written very plainly indeed up the face of the label, you cannot say he is deceived. 45. In our view, the trial Court in the present case went wrong in principle in holding that there was scope for a purchaser being misled. The conclusion was arrived at without noticing the above principles. 46. In the result, on the question of passing off, the relative strength of the case again appears to us to be more in defendants favour. Point 6 is decided accordingly. 47. The issue of laches of the appellant-plaintiff, though relied upon by the respondent, does not, in view of our finding at Point 5, assume any significance in this case. 48. Coming to the question whether the appellate court was right in interfering with the discretion of the trial Court and in vacating infunction, we are of the view that, on facts, interference was justifiable. If wrong principles were applied by the trial Court under Order 39, Rule 1 CPC, the appellate Court could certainly interfere in interlocutory proceedings under Order 39, Rule 1 CPC. Here, the trial Court gave importance to phonetic similarity and did not refer to the differences in essential features. It did not also have the wary customer in mind. On the other hand, the High Courts approach in this behalf was right as it noticed the dissimilarities in the essential features and concluded that viewed as a whole, there was neither similarity nor scope for deception nor confusion. (No doubt both Courts went into the validity of the plaintiffs registered mark and into the question of `distinctiveness of the word PIKNIK under section 9(1)(e). But in our view that was not necessary). Thus, when wrong principles were applied by the trial Court while refusing temporary injunction, the High Court could certainly interfere. Point 7 is decided accordingly. 49. In the result, the appeal is dismissed. We, however, reiterate the direction given by High Court in regard to maintenance of accounts and the undertaking to be given by the defendant for damages, if any, that may be granted in the suit, in case the suit succeeds. 50. We make it clear that the above findings on facts are for the purpose of the temporary injunction and will not come in the way of the Court in the suit to decide the matter on the evidence produced. 51. | 0[ds]The provisions of section 111 deal with `stay of proceedings where the validity of registration of the trade mark is questioned etc.. In the present case, while the plaintiff - appellant has filed the present suit on 18.2.99 for permanent injunction etc. against the defendant-respondent on the ground of `infringement and `passing off, the defendant has filed an application for rectification on 19.3.99 in the High Court of Bombay. Now Section 111 is intended to protect the plaintiff. The defendant, by filing a rectification proceeding late in the High Court cannot preclude the plaintiff from seeking interim relief in view of sectionour view, any decision on the question of `validity of the appellants trade raised as a defence in the present application filed under Order 39 Rule 1 CPC will seriously jeopardise a decision on the same issue now pending in the rectification proceedings filed by the respondent in the Bombay High Court. We would therefore not go into the question of `validity or `distinctiveness of the plaintiffs trade mark nor into the applicability of National Bell Co. Case (1970(3) SCC 665) as thoseare to bedecided in the rectification proceedings. We are of the view that the case before us can be disposed of by considering whether there is prima facie any deception and hence infringement and whether there is any `passing off. Points 1, 2 and 3 are therefore notlearned Judge observed that in American Cyanamid, Lord Diplock did not lay down that the relative strength of the case of each party need not be gone into. Thereafter, this Court in Palmolive case has referred to Laddie, Js view and said hat the view of Laddie, J. is correct and that American Cyanamid cannot be understood as having laid down anything inconsistent with the `old practice. We may also add that now the courts in England go into the question whether the plaintiff is likely or unlikely to win in the suit i.e. into the comparative strength of the case of the rival parties - apart from the question of balance of convenience. See again Laddie, J. in BarclaysBank Inc v. R.B.S. Advanta, 1998 RPC307 where such a question is posed and where Series 5 Software was followed. Therefore, in trade mark matters, it is now necessary to go into the question of `comparable strength of the cases of either party, apart from balance of convenience. Point 4 is decidedour view, the trial Court in the present case went wrong in principle in holding that there was scope for a purchaser being misled. The conclusion was arrived at without noticing the above principles. | 0 | 10,730 | 485 | ### 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:
Bros. AIR 1948 Mad. 181, the passing off action failed. But thereafter James Chadwick Co. succeeded in an appeal arising out of the registration proceedings and the said judgment was confirmed by this Court in N.S. Thread & Co. v. James Chadwick & Bros., AIR 1953 SC 357 . It was held that the judgment in the passing off case could not be relied upon by the opposite side in latter registration proceedings. 43. In the same tone, Halsbury (Trade Marks, 4th Ed., 1984 Vol. 48, para 187) says that in a passing off action the "degree of similarity of the name, mark or other features concerned is important but not necessarily decisive, so that an action for infringement of a registered trade mark may succeed on the same facts where a passing off action fails or vice versa". As to vice-versa, Kerly says (para 16.12), an infringement action may fail where plaintiff cannot prove registration or that its registration extends to the goods or to all the goods in question or because the registration is invalid and yet the plaintiff may show that by the imitating the mark or otherwise, the defendant has done what is calculated to pass off his goods as those of plaintiff. 44. In Schweppes Ltd. v. Gibbens, 1905(22) RPC 601(HL) Lord Halsbury said, while dealing with a passing off action that "the whole question in these cases is whether the thing - taken in its entirety, looking at the whole thing - is such that in the ordinary course of things a person with reasonable comprehension and with proper insight would be deceived". Defendants name on his goods is an indication of there being no case of passing off : In the present case, defendants goods contain the words `Cadbury on their wrapper. As per the principle laid down in Fisons Ltd. v. E.J. Godwin, (1976) RPC 653, the occurrence of the name `Cadbury on the defendants wrapper is a factor to be considered while deciding the question of passing off. Similarly in King & Co. Ltd. v. Gillard and Co. Ltd., 22 RPC 327 amd Cadbury-Schweppes Pty. Ltd. v. The Pub. Squash Ltd., (1981) RPC 429, it was held that the presence of defendants name on his goods was an indication that there was no passing off, even if the trade dress was similar. The fact that the defendants wrapper contains the word `Cadbury above the words PICNIC in therefore a factor which is to be taken into account. Buyers ignorance and chances of being deceived : As to scope of a buyer being deceived, in a passing off action, the following principles have to be borne in mind. Lord Romer, LJ has said in Payton & Co. v. Snelling Lampard & Co., 1900(17) RPC 48 that it is a misconception to refer to the confusion that can be created upon an ignorant customer. The kind of customer that the Courts ought to think of in these cases is the customer who knows the distinguishing characteristics of the plaintiffs goods, those characteristics which distinguish his goods from other goods in the market so far as relates to general characteristics. If he does not know that, he is not a customer whose views can properly be regarded by the Court. [See the cases quoted in N.S. Thread & Co. v. Chadwick & Bros., AIR 1948 Mad. 481 , which was a passing off action]. In Schweppes case, Lord Halsubury said, if a person is so careless that he does not look and does not treat the label fairly but takes the bottle without sufficient consideration and without reading what is written very plainly indeed up the face of the label, you cannot say he is deceived. 45. In our view, the trial Court in the present case went wrong in principle in holding that there was scope for a purchaser being misled. The conclusion was arrived at without noticing the above principles. 46. In the result, on the question of passing off, the relative strength of the case again appears to us to be more in defendants favour. Point 6 is decided accordingly. 47. The issue of laches of the appellant-plaintiff, though relied upon by the respondent, does not, in view of our finding at Point 5, assume any significance in this case. 48. Coming to the question whether the appellate court was right in interfering with the discretion of the trial Court and in vacating infunction, we are of the view that, on facts, interference was justifiable. If wrong principles were applied by the trial Court under Order 39, Rule 1 CPC, the appellate Court could certainly interfere in interlocutory proceedings under Order 39, Rule 1 CPC. Here, the trial Court gave importance to phonetic similarity and did not refer to the differences in essential features. It did not also have the wary customer in mind. On the other hand, the High Courts approach in this behalf was right as it noticed the dissimilarities in the essential features and concluded that viewed as a whole, there was neither similarity nor scope for deception nor confusion. (No doubt both Courts went into the validity of the plaintiffs registered mark and into the question of `distinctiveness of the word PIKNIK under section 9(1)(e). But in our view that was not necessary). Thus, when wrong principles were applied by the trial Court while refusing temporary injunction, the High Court could certainly interfere. Point 7 is decided accordingly. 49. In the result, the appeal is dismissed. We, however, reiterate the direction given by High Court in regard to maintenance of accounts and the undertaking to be given by the defendant for damages, if any, that may be granted in the suit, in case the suit succeeds. 50. We make it clear that the above findings on facts are for the purpose of the temporary injunction and will not come in the way of the Court in the suit to decide the matter on the evidence produced. 51.
### Response:
0
### Explanation:
The provisions of section 111 deal with `stay of proceedings where the validity of registration of the trade mark is questioned etc.. In the present case, while the plaintiff - appellant has filed the present suit on 18.2.99 for permanent injunction etc. against the defendant-respondent on the ground of `infringement and `passing off, the defendant has filed an application for rectification on 19.3.99 in the High Court of Bombay. Now Section 111 is intended to protect the plaintiff. The defendant, by filing a rectification proceeding late in the High Court cannot preclude the plaintiff from seeking interim relief in view of sectionour view, any decision on the question of `validity of the appellants trade raised as a defence in the present application filed under Order 39 Rule 1 CPC will seriously jeopardise a decision on the same issue now pending in the rectification proceedings filed by the respondent in the Bombay High Court. We would therefore not go into the question of `validity or `distinctiveness of the plaintiffs trade mark nor into the applicability of National Bell Co. Case (1970(3) SCC 665) as thoseare to bedecided in the rectification proceedings. We are of the view that the case before us can be disposed of by considering whether there is prima facie any deception and hence infringement and whether there is any `passing off. Points 1, 2 and 3 are therefore notlearned Judge observed that in American Cyanamid, Lord Diplock did not lay down that the relative strength of the case of each party need not be gone into. Thereafter, this Court in Palmolive case has referred to Laddie, Js view and said hat the view of Laddie, J. is correct and that American Cyanamid cannot be understood as having laid down anything inconsistent with the `old practice. We may also add that now the courts in England go into the question whether the plaintiff is likely or unlikely to win in the suit i.e. into the comparative strength of the case of the rival parties - apart from the question of balance of convenience. See again Laddie, J. in BarclaysBank Inc v. R.B.S. Advanta, 1998 RPC307 where such a question is posed and where Series 5 Software was followed. Therefore, in trade mark matters, it is now necessary to go into the question of `comparable strength of the cases of either party, apart from balance of convenience. Point 4 is decidedour view, the trial Court in the present case went wrong in principle in holding that there was scope for a purchaser being misled. The conclusion was arrived at without noticing the above principles.
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United India Insurance Company Limited, Through It'S Divisional Manager, S.V. Devbhankar Vs. Shaikh Akbar Najir & Another | of the judicial records (in pre-litigation matter, the original award may be kept with the legal services authority or committee, concerned) and a copy of the award shall be given to each of the parties duly certifying them to be true by the officer designated by the Member Secretary or Secretary of the High Court Legal Services Committee or District Legal Services Authority or, as the case may be, the Chairman of Taluka Legal Services Committees free of cost and the official seal of the Authority concerned or Committee shall be affixed on all awards.13. Thus, the conjoint reading of Section 20 of the Act of 1987 and the Regulation no.17 of Regulations 2009 indicates that, the Lok-Adalats shall while determining any reference, act with utmost expedition to arrive at a compromise or settlement between the parties and such a compromise or settlement if it is signed by both the parties and countersigned by the Members of Lok Adalat, becomes an award. If the parties are represented by counsel, they should also be required to sign the settlement or award before the Members of Lok-Adalat, affix their signatures on it.14. In view of sub-section 2 of Section 22 of the Act of 1987, the Lok Adalats shall have the requisite powers to specify its own procedure for the determination of any dispute coming before it. The Regulations of 2009 prescribes the procedure for organizing the Lok Adalats, allotment of cases to Lok Adalats and the procedure to be followed in Lok Adalats at all levels. It has prescribed in Regulation No.13, more particularly in sub-regulation Nos.3 and 4 of Regulations 2009 that, the Members of the Lok Adalat shall discuss the subject matter with the parties for arriving at a just settlement or compromise and such members of the Lok Adalat shall assist the parties in an independent and impartial manner in an attempt to reach amicable settlement of their dispute. In that process, the members of the Lok Adalat shall be guided by the principles of natural justice, equity, fairplay, objectivity, giving consideration to, among other things, the rights and obligations of the parties, custom and usages and the circumstances surrounding the dispute. The relevant Clause Nos. 3 and 4 of Regulation No.13 reads as under:13. Procedure in Lok Adalats:(1).............................................................(2)............................................................(3). In a Lok Adalat the members shall discuss the subject matter with the parties for arriving at a just settlement or compromise and such members of Lok Adalat shall assist the parties in an independent and impartial manner in their attempt to reach amicable settlement of their dispute:Provided that if it found necessary the assistance of an independent person or a trained mediator may also be availed by the Lok Adalat.(4) Members of Lok Adalat shall be guided by principles of natural justice, equity, fair-play, objectivity, giving consideration to, among other things, the rights and obligations of the parties, custom and usages and the circumstances surrounding the dispute.(5)..............................................................(6)..............................................................It thus appears that, prime importance is given to the participation of the parties to the litigation in the Lok Adalat process and an attempt to reach amicable settlement of their dispute can only be possible if the parties are arriving at a settlement or compromise.15. In a case ByramPestonji Gariwala, Vs. Union Bank of India and others, Reported in AIR 1991 Supreme Court 2234, the question arose for consideration as regards to the construction of Order 23 Rule 3 of Code of Civil Procedure. The Honble Apex Court has observed that the words in writing and signed by the parties inserted in Order 23 Rule 3 of Code of civil Procedure necessarily mean and include duly authorized representative and counsel. It is also held that, a compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, is valid and binding on the parties and is executable even if the compromise relates to matters concerning the parties, but extending beyond the subject matter of the suit. The Honble Apex Court, however, in paragraph no.37 of the Judgment has also made following observations:37. We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor integrity is ever doubted. This essential precaution will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession.16. In the instant case, the learned counsel had no express authority in writing to compromise or settle the matter on behalf of the petitioner company. The provisions of the Act of 1987 and the Regulations of 2009 contemplates participation of parties to the litigation in the Lok Adalat process. The Lok Adalats are being constituted and organized for disposal of the matters through the process of settlement between the parties. In view of this, parties presence before the Lok Adalat is essential and only after signing the compromise or settlement and countersigned by the Members, such compromise becomes an award. However, in case of any extreme hardship, or if it is warranted by the exigency of circumstances, the Counsel may settle or compromise the matter on behalf of his client only after procuring an express authority in writing from his client in this regard.17. In view of this, we do not think that said compromise and consequential award passed on its basis is in terms of the provisions of Section 20 of the Act of 1987 read with Regulation No.17 of Regulations 2009. Thus, said compromise and consequential award passed on its basis is nullity and not an award in the eyes of law. | 1[ds]11. In the instant case, even though statutory defence was available to the petitioner company, matter was referred toIn our opinion, greater responsibility is fixed upon the Courts to avoid mechanical reference of a case.In the instant case, the learned counsel had no express authority in writing to compromise or settle the matter on behalf of the petitioner company. The provisions of the Act of 1987 and the Regulations of 2009 contemplates participation of parties to the litigation in the Lok Adalat process. The Lok Adalats are being constituted and organized for disposal of the matters through the process of settlement between the parties. In view of this, parties presence before the Lok Adalat is essential and only after signing the compromise or settlement and countersigned by the Members, such compromise becomes an award. However, in case of any extreme hardship, or if it is warranted by the exigency of circumstances, the Counsel may settle or compromise the matter on behalf of his client only after procuring an express authority in writing from his client in this regard.17. In view of this, we do not think that said compromise and consequential award passed on its basis is in terms of the provisions of Section 20 of the Act of 1987 read with Regulation No.17 of Regulations 2009. Thus, said compromise and consequential award passed on its basis is nullity and not an award in the eyes of law. | 1 | 3,388 | 261 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
of the judicial records (in pre-litigation matter, the original award may be kept with the legal services authority or committee, concerned) and a copy of the award shall be given to each of the parties duly certifying them to be true by the officer designated by the Member Secretary or Secretary of the High Court Legal Services Committee or District Legal Services Authority or, as the case may be, the Chairman of Taluka Legal Services Committees free of cost and the official seal of the Authority concerned or Committee shall be affixed on all awards.13. Thus, the conjoint reading of Section 20 of the Act of 1987 and the Regulation no.17 of Regulations 2009 indicates that, the Lok-Adalats shall while determining any reference, act with utmost expedition to arrive at a compromise or settlement between the parties and such a compromise or settlement if it is signed by both the parties and countersigned by the Members of Lok Adalat, becomes an award. If the parties are represented by counsel, they should also be required to sign the settlement or award before the Members of Lok-Adalat, affix their signatures on it.14. In view of sub-section 2 of Section 22 of the Act of 1987, the Lok Adalats shall have the requisite powers to specify its own procedure for the determination of any dispute coming before it. The Regulations of 2009 prescribes the procedure for organizing the Lok Adalats, allotment of cases to Lok Adalats and the procedure to be followed in Lok Adalats at all levels. It has prescribed in Regulation No.13, more particularly in sub-regulation Nos.3 and 4 of Regulations 2009 that, the Members of the Lok Adalat shall discuss the subject matter with the parties for arriving at a just settlement or compromise and such members of the Lok Adalat shall assist the parties in an independent and impartial manner in an attempt to reach amicable settlement of their dispute. In that process, the members of the Lok Adalat shall be guided by the principles of natural justice, equity, fairplay, objectivity, giving consideration to, among other things, the rights and obligations of the parties, custom and usages and the circumstances surrounding the dispute. The relevant Clause Nos. 3 and 4 of Regulation No.13 reads as under:13. Procedure in Lok Adalats:(1).............................................................(2)............................................................(3). In a Lok Adalat the members shall discuss the subject matter with the parties for arriving at a just settlement or compromise and such members of Lok Adalat shall assist the parties in an independent and impartial manner in their attempt to reach amicable settlement of their dispute:Provided that if it found necessary the assistance of an independent person or a trained mediator may also be availed by the Lok Adalat.(4) Members of Lok Adalat shall be guided by principles of natural justice, equity, fair-play, objectivity, giving consideration to, among other things, the rights and obligations of the parties, custom and usages and the circumstances surrounding the dispute.(5)..............................................................(6)..............................................................It thus appears that, prime importance is given to the participation of the parties to the litigation in the Lok Adalat process and an attempt to reach amicable settlement of their dispute can only be possible if the parties are arriving at a settlement or compromise.15. In a case ByramPestonji Gariwala, Vs. Union Bank of India and others, Reported in AIR 1991 Supreme Court 2234, the question arose for consideration as regards to the construction of Order 23 Rule 3 of Code of Civil Procedure. The Honble Apex Court has observed that the words in writing and signed by the parties inserted in Order 23 Rule 3 of Code of civil Procedure necessarily mean and include duly authorized representative and counsel. It is also held that, a compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, is valid and binding on the parties and is executable even if the compromise relates to matters concerning the parties, but extending beyond the subject matter of the suit. The Honble Apex Court, however, in paragraph no.37 of the Judgment has also made following observations:37. We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor integrity is ever doubted. This essential precaution will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession.16. In the instant case, the learned counsel had no express authority in writing to compromise or settle the matter on behalf of the petitioner company. The provisions of the Act of 1987 and the Regulations of 2009 contemplates participation of parties to the litigation in the Lok Adalat process. The Lok Adalats are being constituted and organized for disposal of the matters through the process of settlement between the parties. In view of this, parties presence before the Lok Adalat is essential and only after signing the compromise or settlement and countersigned by the Members, such compromise becomes an award. However, in case of any extreme hardship, or if it is warranted by the exigency of circumstances, the Counsel may settle or compromise the matter on behalf of his client only after procuring an express authority in writing from his client in this regard.17. In view of this, we do not think that said compromise and consequential award passed on its basis is in terms of the provisions of Section 20 of the Act of 1987 read with Regulation No.17 of Regulations 2009. Thus, said compromise and consequential award passed on its basis is nullity and not an award in the eyes of law.
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1
### Explanation:
11. In the instant case, even though statutory defence was available to the petitioner company, matter was referred toIn our opinion, greater responsibility is fixed upon the Courts to avoid mechanical reference of a case.In the instant case, the learned counsel had no express authority in writing to compromise or settle the matter on behalf of the petitioner company. The provisions of the Act of 1987 and the Regulations of 2009 contemplates participation of parties to the litigation in the Lok Adalat process. The Lok Adalats are being constituted and organized for disposal of the matters through the process of settlement between the parties. In view of this, parties presence before the Lok Adalat is essential and only after signing the compromise or settlement and countersigned by the Members, such compromise becomes an award. However, in case of any extreme hardship, or if it is warranted by the exigency of circumstances, the Counsel may settle or compromise the matter on behalf of his client only after procuring an express authority in writing from his client in this regard.17. In view of this, we do not think that said compromise and consequential award passed on its basis is in terms of the provisions of Section 20 of the Act of 1987 read with Regulation No.17 of Regulations 2009. Thus, said compromise and consequential award passed on its basis is nullity and not an award in the eyes of law.
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John Mowlem and Company Limited Vs. Commissioner of Sales Tax, Orissa | after having them certified by the Director-General India Stores Department, London.The Chief Accounting Officer will pay the contractor on the pro forma invoices, and the contractor will open a separate bank account ............. to be called the Madras Account into which these sums will be paid. As soon as the money is received the contractor will place formal orders for the plant and equipment. He will pay the suppliers from the funds made available in the Madras Account, and will give the purchaser credit for any cash discounts received. He will also be responsible for arranging the transportation and insurance of the plant and equipment to the site. The invoices to be rendered by the contractor in India will be checked and countersigned by the contractors auditors.The purchaser, through its agent the Chief Accounting Officer, will make an advance to the contractor of Rs. 2 lakhs, and this sum will also be credited to the same Madras Account with the bank. This sum will cover the following expenditure :-(i) Salaries, travelling expenses, kit allowances, insurance etc. of personnel despatched to the project.(ii) The salaries of the London clerical and technical staff of the contractor to the extent they are employed on the project. The staff involved will keep monthly time records and will charge the appropriate percentage of their salary.(iii) The salaries, or portion of salaries, requested by the staff on the project to be paid in London.(iv) Insurance and freight charges.(v) Withdrawals on account of anticipated initial profit.(vi) The 2 1/2 per cent. purchasing commission on all new or second-hand plant, machinery, equipment or stores purchased by the contractors London Office.(vii) All other items of prime cost properly chargeable to the project."The "Accountancy Procedure" also contains directions relating to replenishment of the advance of Rs. 2 lakhs and the manner in which the expenses are to be incurred. In paragraph 2 it is directed that the New Delhi office of the contractor will provide supervision over the project as well as over purchasing goods, directing insurances etc. and will prepare monthly accounts with supporting vouchers of all sums paid out on behalf of the project including proportions of salaries and 2 1/2 per cent. purchasing commission. The remaining directions are not material.6. The effect of paragraphs 8, 9, 10 and the Accountancy Procedure is that the State of Madras had under the terms of the contract agreed to make available Rs. 2 lakhs which were to be replenished as and when expenses were incurred out of that amount for purposes mentioned in paragraph 9 of the contract, and in the Accountancy Procedure; that the appellants were to purchase the plant and machinery after approval by the Chief Accounting Officer of the High Commissioner for India, and funds were provided; that the appellants were to receive a commission of 2 1/2 per cent. and all trade discounts were to be accounted for by the appellants to the State, and that the appellants were to be reimbursed for all necessary costs incurred in accomplishing the work, and were to hold money received from the insurers in trust for the Government of the State of Madras. The contract does not provide that the appellants were to sell the machinery described in Appendix B, Part II, to the State of Madras, and the covenants of the contract are consistent only with the appellants being purchasing agents for the State of Madras.Barman, J., who delivered the principal judgment of the High Court was of the view that a contract of sale of the plant, machinery and equipment could be inferred from the existence of three covenants: (1) that the contractors were to remain responsible for transportation and insurance till the plant reached the site of the Machkund Dam as provided in clause 8(a) of the agreement;(2) that under the agreement the contractors were to effect insurance in the joint names of the Government and the contractors, and that showed that they had insurable interest in the goods; and(3) that no customs duty was included in the "target estimates" and if the State of Madras was obliged to pay any duty on equipment or materials provided for the contractor such payment would be accounted for separately in addition to the "final target", indicating thereby that the State of Madras was not liable to pay customs duty. Narasimham, C.J., agreed with Barman, J. He observed that the first two grounds in the judgment of Barman, J., justified the raising of the inference that there was a sale of plant and machinery, but the third ground was inconclusive.7. We are unable to agree with the learned Judges of the High Court. A covenant in the contract whereby the appellants undertook to deliver goods purchased by them on behalf of the State at the site where they were required by the latter is not inconsistent with the relation between them being of agent and principal, and a stipulation that the appellants "will remain responsible for transportation and insurance as far as the site" also does not detract from the overwhelming indications furnished by the other terms of the contract. The stipulation that goods purchased will be insured in the joint names of the Government of the State of Madras and the appellants is susceptible of no positive inference in favour of either case, and the learned Chief Justice was right in observing that the term about the contractors liability to pay customs duty, if any, was inconclusive. It is not possible to raise an inference from the clause, "the final accounting for the plant, and its passing into the hands of the purchaser will take place" in paragraph 8 of the contract, that till it was delivered at the site of the Machkund Dam, the appellants were the owners of the plant. The clause deals merely with the obligations undertaken by the appellants for "transportation and insurance" of the plant, and not with the passing of property in the plant from the appellants to the State of Madras.8. | 1[ds]The first question referred to the High Court was answered in the affirmative and no serious argument has been raised by counsel for the appellants challenging the correctness of the answer.The third question is easy of solution. Under the terms of the contract, the appellants were not only to carry out the works contract, but also to procure certain plant, machinery and equipment for use in the execution of the works contract. The agreement, it is true, relates to a "target estimate" of Rs. 80, 40, 543 "which is calculated to cover the work in the specifications", and represents an estimate based on the appellants "knowledge and experience of the reasonable and probable cost under efficient management", and is "adjustable in accordance with the alterations to the specification or to the quantities, and with variations in labour rates and cost of materials." But the contract also contains an arrangement under which the appellants were to procure certain plant, machinery, equipment and small tools, details whereof are to be found in Appendix B, Part II, under the heading "to be supplied by the contractor".We are unable to agree with the learned Judges of the High Court. A covenant in the contract whereby the appellants undertook to deliver goods purchased by them on behalf of the State at the site where they were required by the latter is not inconsistent with the relation between them being of agent and principal, and a stipulation that the appellants "will remain responsible for transportation and insurance as far as the site" also does not detract from the overwhelming indications furnished by the other terms of the contract. The stipulation that goods purchased will be insured in the joint names of the Government of the State of Madras and the appellants is susceptible of no positive inference in favour of either case, and the learned Chief Justice was right in observing that the term about the contractors liability to pay customs duty, if any, was inconclusive. It is not possible to raise an inference from the clause, "the final accounting for the plant, and its passing into the hands of the purchaser will take place" in paragraph 8 of the contract, that till it was delivered at the site of the Machkund Dam, the appellants were the owners of the plant. The clause deals merely with the obligations undertaken by the appellants for "transportation and insurance" of the plant, and not with the passing of property in the plant from the appellants to the State of Madras. | 1 | 3,234 | 475 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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after having them certified by the Director-General India Stores Department, London.The Chief Accounting Officer will pay the contractor on the pro forma invoices, and the contractor will open a separate bank account ............. to be called the Madras Account into which these sums will be paid. As soon as the money is received the contractor will place formal orders for the plant and equipment. He will pay the suppliers from the funds made available in the Madras Account, and will give the purchaser credit for any cash discounts received. He will also be responsible for arranging the transportation and insurance of the plant and equipment to the site. The invoices to be rendered by the contractor in India will be checked and countersigned by the contractors auditors.The purchaser, through its agent the Chief Accounting Officer, will make an advance to the contractor of Rs. 2 lakhs, and this sum will also be credited to the same Madras Account with the bank. This sum will cover the following expenditure :-(i) Salaries, travelling expenses, kit allowances, insurance etc. of personnel despatched to the project.(ii) The salaries of the London clerical and technical staff of the contractor to the extent they are employed on the project. The staff involved will keep monthly time records and will charge the appropriate percentage of their salary.(iii) The salaries, or portion of salaries, requested by the staff on the project to be paid in London.(iv) Insurance and freight charges.(v) Withdrawals on account of anticipated initial profit.(vi) The 2 1/2 per cent. purchasing commission on all new or second-hand plant, machinery, equipment or stores purchased by the contractors London Office.(vii) All other items of prime cost properly chargeable to the project."The "Accountancy Procedure" also contains directions relating to replenishment of the advance of Rs. 2 lakhs and the manner in which the expenses are to be incurred. In paragraph 2 it is directed that the New Delhi office of the contractor will provide supervision over the project as well as over purchasing goods, directing insurances etc. and will prepare monthly accounts with supporting vouchers of all sums paid out on behalf of the project including proportions of salaries and 2 1/2 per cent. purchasing commission. The remaining directions are not material.6. The effect of paragraphs 8, 9, 10 and the Accountancy Procedure is that the State of Madras had under the terms of the contract agreed to make available Rs. 2 lakhs which were to be replenished as and when expenses were incurred out of that amount for purposes mentioned in paragraph 9 of the contract, and in the Accountancy Procedure; that the appellants were to purchase the plant and machinery after approval by the Chief Accounting Officer of the High Commissioner for India, and funds were provided; that the appellants were to receive a commission of 2 1/2 per cent. and all trade discounts were to be accounted for by the appellants to the State, and that the appellants were to be reimbursed for all necessary costs incurred in accomplishing the work, and were to hold money received from the insurers in trust for the Government of the State of Madras. The contract does not provide that the appellants were to sell the machinery described in Appendix B, Part II, to the State of Madras, and the covenants of the contract are consistent only with the appellants being purchasing agents for the State of Madras.Barman, J., who delivered the principal judgment of the High Court was of the view that a contract of sale of the plant, machinery and equipment could be inferred from the existence of three covenants: (1) that the contractors were to remain responsible for transportation and insurance till the plant reached the site of the Machkund Dam as provided in clause 8(a) of the agreement;(2) that under the agreement the contractors were to effect insurance in the joint names of the Government and the contractors, and that showed that they had insurable interest in the goods; and(3) that no customs duty was included in the "target estimates" and if the State of Madras was obliged to pay any duty on equipment or materials provided for the contractor such payment would be accounted for separately in addition to the "final target", indicating thereby that the State of Madras was not liable to pay customs duty. Narasimham, C.J., agreed with Barman, J. He observed that the first two grounds in the judgment of Barman, J., justified the raising of the inference that there was a sale of plant and machinery, but the third ground was inconclusive.7. We are unable to agree with the learned Judges of the High Court. A covenant in the contract whereby the appellants undertook to deliver goods purchased by them on behalf of the State at the site where they were required by the latter is not inconsistent with the relation between them being of agent and principal, and a stipulation that the appellants "will remain responsible for transportation and insurance as far as the site" also does not detract from the overwhelming indications furnished by the other terms of the contract. The stipulation that goods purchased will be insured in the joint names of the Government of the State of Madras and the appellants is susceptible of no positive inference in favour of either case, and the learned Chief Justice was right in observing that the term about the contractors liability to pay customs duty, if any, was inconclusive. It is not possible to raise an inference from the clause, "the final accounting for the plant, and its passing into the hands of the purchaser will take place" in paragraph 8 of the contract, that till it was delivered at the site of the Machkund Dam, the appellants were the owners of the plant. The clause deals merely with the obligations undertaken by the appellants for "transportation and insurance" of the plant, and not with the passing of property in the plant from the appellants to the State of Madras.8.
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### Explanation:
The first question referred to the High Court was answered in the affirmative and no serious argument has been raised by counsel for the appellants challenging the correctness of the answer.The third question is easy of solution. Under the terms of the contract, the appellants were not only to carry out the works contract, but also to procure certain plant, machinery and equipment for use in the execution of the works contract. The agreement, it is true, relates to a "target estimate" of Rs. 80, 40, 543 "which is calculated to cover the work in the specifications", and represents an estimate based on the appellants "knowledge and experience of the reasonable and probable cost under efficient management", and is "adjustable in accordance with the alterations to the specification or to the quantities, and with variations in labour rates and cost of materials." But the contract also contains an arrangement under which the appellants were to procure certain plant, machinery, equipment and small tools, details whereof are to be found in Appendix B, Part II, under the heading "to be supplied by the contractor".We are unable to agree with the learned Judges of the High Court. A covenant in the contract whereby the appellants undertook to deliver goods purchased by them on behalf of the State at the site where they were required by the latter is not inconsistent with the relation between them being of agent and principal, and a stipulation that the appellants "will remain responsible for transportation and insurance as far as the site" also does not detract from the overwhelming indications furnished by the other terms of the contract. The stipulation that goods purchased will be insured in the joint names of the Government of the State of Madras and the appellants is susceptible of no positive inference in favour of either case, and the learned Chief Justice was right in observing that the term about the contractors liability to pay customs duty, if any, was inconclusive. It is not possible to raise an inference from the clause, "the final accounting for the plant, and its passing into the hands of the purchaser will take place" in paragraph 8 of the contract, that till it was delivered at the site of the Machkund Dam, the appellants were the owners of the plant. The clause deals merely with the obligations undertaken by the appellants for "transportation and insurance" of the plant, and not with the passing of property in the plant from the appellants to the State of Madras.
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Ghanshiam Das Vs. Devi Prasad & Another | the meaning of S. 9 of the Act and the title to the two plots of land did not vest in the State and the respondents acquired the rights of statutory tenants under S. 9 of the Act and they had a right to demand rent from the appellant under the terms of the lease. The High Court accordingly allowed both the Second Appeals and granted a decree to the respondents for the entire amount of rent claimed.3. Section 4 of the Act deals with the acquisition of the interests of intermediaries. The section provides as follows:"4. (1) As soon as may be after the commencement of this Act the State Government may, by notification, declare that as from a date to be specified, all estates situate in Uttar Pradesh shall vest in the State and, as from the beginning of the date so specified (hereinafter called the date of vesting), all such estates shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances.(2) It shall be lawful for the State Government, if it so considers necessary, to issue, from time to time, the notification referred to in sub-s. (1) in respect only of such area or areas as may be specified and all the provisions of sub-s. (1) shall be applicable to and in the case of every such notification."Section 6 (a) sets out the consequences of the vesting of an estate in the State. Section 6 (a) reads as follows:"6. When the notification under S. 4 has been published in the Gazettee then notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the date of vesting, ensue in the area to which the notification relates, namely-(a) all rights, title and interest of all the intermediaries-(i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars, and melas held upon land to which Cls. (a) to (c) of sub-s. (1) of S. 18 apply and,(ii) in all sub-soil in such estate including rights, if any, in mines and minerals, whether being worked or not; shall cease and be vested in the State of Uttar Pradesh free from all encumbrances;"Section 9 of the Act states:"9. All wells, trees in abadi, and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the site of the wells or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed."4. The word "building" has not been defined in the Act and must, therefore, be constructed in its ordinary grammatical sense unless there is something in the context or object of the statute to show that it is used in a special sense different from its ordinary grammatical sense. In the Websters New International Dictionary the word "building" has been defined as follows:"That which is built specif: (a) as now generally used a fabric or edifice, framed or constructed, designed to stand more or less permanently and covering a space of land for use as a dwelling, store house, factory, shelter for beasts or some other useful purpose. Building in this sense does not include a mere wall, fence, monument, hoarding or similar structure though designed for permanent use where it stands, nor a steamboat ship or other vessel of navigation."From this definition it does not appear that the existence of a roof is always necessary for a structure to be regarded as a building. Residential buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. A large stadium or an open-air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for a useful purpose. The question as to what is a "building" under S. 9 of the Act must always be a question of degree-a question depending on the facts and circumstance of each case. As Blackburn, J. observed in R. v. Neath Canal Navigation Co., (1871) 40 LJMC 193 (197)."The masonry on the sides of a canal is not sufficient to constitute it a building. A London street, though paved and faced with stonework, would yet be land; whilst the Holborn Viaduct would be a building."The question for determination in the present case, therefore, is whether the kiln leased out to the appellant is a "building" within the meaning of S. 9 of the Act. It has been found by the first appellate Court that the brick kiln has no site and is not a roofed structure. It was a mere pit with some bricks by its sides. It is also admitted in this case that there was no structure standing on the Bhatta. Upon these facts, it is clear that the brick kiln has no walls and no roof but it is a mere pit dug in the ground with bricks by its side. In the circumstances, we are of the opinion that the brick kiln leased out to the appellant, in the present case, is not a "building" within the meaning of S. 9 of the Act. It follows, therefore, that the title to both the plots Nos. 596 and 597 along with the brick kiln vested in the State Government with effect from July 1, 1952 and the respondents are not entitled to claim any rent from the appellant for the period from October 1, 1952 to September 30, 1953. | 0[ds]4. The word "building" has not been defined in the Act and must, therefore, be constructed in its ordinary grammatical sense unless there is something in the context or object of the statute to show that it is used in a special sense different from its ordinary grammaticalthis definition it does not appear that the existence of a roof is always necessary for a structure to be regarded as a building. Residential buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. A large stadium or an open-air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for a useful purpose. The question as to what is a "building" under S. 9 of the Act must always be a question of degree-a question depending on the facts and circumstance of eachhas been found by the first appellate Court that the brick kiln has no site and is not a roofed structure. It was a mere pit with some bricks by its sides. It is also admitted in this case that there was no structure standing on the Bhatta. Upon these facts, it is clear that the brick kiln has no walls and no roof but it is a mere pit dug in the ground with bricks by its side. In the circumstances, we are of the opinion that the brick kiln leased out to the appellant, in the present case, is not a "building" within the meaning of S. 9 of the Act. It follows, therefore, that the title to both the plots Nos. 596 and 597 along with the brick kiln vested in the State Government with effect from July 1, 1952 and the respondents are not entitled to claim any rent from the appellant for the period from October 1, 1952 to September 30, 1953. | 0 | 1,711 | 347 | ### Instruction:
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the meaning of S. 9 of the Act and the title to the two plots of land did not vest in the State and the respondents acquired the rights of statutory tenants under S. 9 of the Act and they had a right to demand rent from the appellant under the terms of the lease. The High Court accordingly allowed both the Second Appeals and granted a decree to the respondents for the entire amount of rent claimed.3. Section 4 of the Act deals with the acquisition of the interests of intermediaries. The section provides as follows:"4. (1) As soon as may be after the commencement of this Act the State Government may, by notification, declare that as from a date to be specified, all estates situate in Uttar Pradesh shall vest in the State and, as from the beginning of the date so specified (hereinafter called the date of vesting), all such estates shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances.(2) It shall be lawful for the State Government, if it so considers necessary, to issue, from time to time, the notification referred to in sub-s. (1) in respect only of such area or areas as may be specified and all the provisions of sub-s. (1) shall be applicable to and in the case of every such notification."Section 6 (a) sets out the consequences of the vesting of an estate in the State. Section 6 (a) reads as follows:"6. When the notification under S. 4 has been published in the Gazettee then notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the date of vesting, ensue in the area to which the notification relates, namely-(a) all rights, title and interest of all the intermediaries-(i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars, and melas held upon land to which Cls. (a) to (c) of sub-s. (1) of S. 18 apply and,(ii) in all sub-soil in such estate including rights, if any, in mines and minerals, whether being worked or not; shall cease and be vested in the State of Uttar Pradesh free from all encumbrances;"Section 9 of the Act states:"9. All wells, trees in abadi, and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the site of the wells or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed."4. The word "building" has not been defined in the Act and must, therefore, be constructed in its ordinary grammatical sense unless there is something in the context or object of the statute to show that it is used in a special sense different from its ordinary grammatical sense. In the Websters New International Dictionary the word "building" has been defined as follows:"That which is built specif: (a) as now generally used a fabric or edifice, framed or constructed, designed to stand more or less permanently and covering a space of land for use as a dwelling, store house, factory, shelter for beasts or some other useful purpose. Building in this sense does not include a mere wall, fence, monument, hoarding or similar structure though designed for permanent use where it stands, nor a steamboat ship or other vessel of navigation."From this definition it does not appear that the existence of a roof is always necessary for a structure to be regarded as a building. Residential buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. A large stadium or an open-air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for a useful purpose. The question as to what is a "building" under S. 9 of the Act must always be a question of degree-a question depending on the facts and circumstance of each case. As Blackburn, J. observed in R. v. Neath Canal Navigation Co., (1871) 40 LJMC 193 (197)."The masonry on the sides of a canal is not sufficient to constitute it a building. A London street, though paved and faced with stonework, would yet be land; whilst the Holborn Viaduct would be a building."The question for determination in the present case, therefore, is whether the kiln leased out to the appellant is a "building" within the meaning of S. 9 of the Act. It has been found by the first appellate Court that the brick kiln has no site and is not a roofed structure. It was a mere pit with some bricks by its sides. It is also admitted in this case that there was no structure standing on the Bhatta. Upon these facts, it is clear that the brick kiln has no walls and no roof but it is a mere pit dug in the ground with bricks by its side. In the circumstances, we are of the opinion that the brick kiln leased out to the appellant, in the present case, is not a "building" within the meaning of S. 9 of the Act. It follows, therefore, that the title to both the plots Nos. 596 and 597 along with the brick kiln vested in the State Government with effect from July 1, 1952 and the respondents are not entitled to claim any rent from the appellant for the period from October 1, 1952 to September 30, 1953.
### Response:
0
### Explanation:
4. The word "building" has not been defined in the Act and must, therefore, be constructed in its ordinary grammatical sense unless there is something in the context or object of the statute to show that it is used in a special sense different from its ordinary grammaticalthis definition it does not appear that the existence of a roof is always necessary for a structure to be regarded as a building. Residential buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. A large stadium or an open-air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for a useful purpose. The question as to what is a "building" under S. 9 of the Act must always be a question of degree-a question depending on the facts and circumstance of eachhas been found by the first appellate Court that the brick kiln has no site and is not a roofed structure. It was a mere pit with some bricks by its sides. It is also admitted in this case that there was no structure standing on the Bhatta. Upon these facts, it is clear that the brick kiln has no walls and no roof but it is a mere pit dug in the ground with bricks by its side. In the circumstances, we are of the opinion that the brick kiln leased out to the appellant, in the present case, is not a "building" within the meaning of S. 9 of the Act. It follows, therefore, that the title to both the plots Nos. 596 and 597 along with the brick kiln vested in the State Government with effect from July 1, 1952 and the respondents are not entitled to claim any rent from the appellant for the period from October 1, 1952 to September 30, 1953.
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The Bihar State Co-Operativebank Ltd Vs. The Commissioner Of Income-Tax | the profits were within the exemption, but not if the business was of the nature not covered by the objects of the society. This line of reasoning has not formed part of the respondents argument in this Court and the case therefore has no application to the facts of the present case. The decision in 1956-30 ITR 356 (Trav-Co) proceeded on the same ground. In that case the profit which was held not to be exempt under the Notification was the apportioned profit of the society from its dealings with non-members.8. In the Surat Peoples Co-operative Bank Ltd. v. The Commissioner of Income-tax, Ahmedabad, 1958-33 ITR 396 : (AIR 1958 Bom 443 ) the profit arose during the course of banking business out of the sale of Government securities which formed part of the stock-in-trade and as it was a Co-operative bank the profits made from such sales were held to be exempt from taxation under the Notification.9. In the instant case the co-operative society (the appellant) is a Bank. One of its objects is to carry on the general business of banking. Like other banks money is its stock-in-trade or circulating capital and its normal business is to deal in money and credit. It cannot be said that the business of such a Bank consists only in receiving deposits and lending money to its members or such other societies as are mentioned in the objects and that when it lays out its moneys so that they may be readily available to meet demand of its depositors if and when they arise, it is not a legitimate mode of carrying on of its banking business. The Privy Council in 1940-8 ITR 635 : (AIR 1940 PC 230 ) where the profits arose from the sale of Government securities pointed out at page 645 (of ITR ) : (at p. 236 of AIR), that in the ordinary cases the business of a Bank essentially consists of dealing with money and credit. Depositors put their money in the Bank at a small rate interest and in order to meet their demands if and when they arise the Bank has always to keep sufficient cash or easily realisable securities. That is a normal step in the carrying on of the banking business. In other words that is an act done in what is truly the carrying on or carrying out of a business. It may be added that another mode of conducting business of a Bank is to place its funds in deposit with other banks and that also is to meet demands which may be made on it. It was however argued that in the instant case the moneys had been deposited with the Imperial Bank on long term deposits inasmuch as they were deposited for one year and were renewed from time to time also for a year; but as is shown by the accounts these deposits fell due at short intervals and would have been available to the appellant had any need arisen.10. Stress was laid on the use of the word surplus both by the tribunal as well as by the High Court and it was also contended before us that in the bye-laws under the heading business of the bank it was provided, that the bank could invest surplus funds when not required for the business of the bank in one or more ways specified in S. 19 of the Bihar Act (Cl. 4 III (I) of the Bye- Laws). Whether funds invested as provided in S. 19 of the Bihar Act would be surplus or not does not arise for decision in this case, but it has not been shown that the moneys which were in deposit with other banks were surplus within that bye- law so as to take it our of banking business.As we have pointed out above, it is a normal mode of carrying on banking business to invest moneys in a manner that they are readily available and that is just as much a part of the mode of conducting a Banks business as receiving deposits or lending moneys or discounting hundies or issuing demand drafts. That is how the circulating capital is employed and that is the normal course of business of a bank. The moneys laid out in the form of deposits as in the instant case would not cease to be a part of the circulating capital of the appellant nor would they cease to form part of its banking business. The returns flowing from them would form part of its profits from its business. In a commercial sense the directors of the company owe it to the bank to make investments which earn them interest instead of letting moneys lie idle. It cannot be said that the funds of the Bank which were not lent to borrowers but were laid out in the form of deposits in another bank to add to the profit instead of lying idle necessarily ceased to be a part of the stockin-trade of the bank, or that the interest arising therefrom did not form part of its business profits.Under the bye-laws one of the objects of the appellant bank is to carry on the general business of banking and therefore subject to the Co- operative Societies Act, it has to carry on its business in the manner that ordinary banks do.It may be added that the various heads under S. 6 of the Income-Tax Act and the provisions of that Act applicable to these various heads are mutually exclusive. Section 12 is a residuary section and does not come into operation until the preceding heads are excluded : Commissioner of Income-tax v. Basant Rai Takhat Singh, 1933-1 ITR 197 at p. 201 : (AIR 1933 PC 180 , 182).11. In our opinion, the High Court was in error in treating interest derived from deposits as not arising from the business of the Bank and therefore not falling within the income exempted under the Notification. | 1[ds]4. The ground of mutuality was not relied upon before us by the learned Solicitor-General who appeared for thecontention is not sustainable. It has not been treated as a finding of fact either by the Appellate Tribunal or by the High Court. They have both treated it as a question of law and it is on that basis that the reference was made. The decision of the question depends on what is comprised within the ordinary business of a bank and whether the business of the appellant bank is in any waynone of these cases supports the argument raised on behalf of theIn the instant case the co-operative society (the appellant) is a Bank. One of its objects is to carry on the general business of banking. Like other banks money is its stock-in-trade or circulating capital and its normal business is to deal in money and credit. It cannot be said that the business of such a Bank consists only in receiving deposits and lending money to its members or such other societies as are mentioned in the objects and that when it lays out its moneys so that they may be readily available to meet demand of its depositors if and when they arise, it is not a legitimate mode of carrying on of its bankingwe have pointed out above, it is a normal mode of carrying on banking business to invest moneys in a manner that they are readily available and that is just as much a part of the mode of conducting a Banks business as receiving deposits or lending moneys or discounting hundies or issuing demand drafts. That is how the circulating capital is employed and that is the normal course of business of a bank. The moneys laid out in the form of deposits as in the instant case would not cease to be a part of the circulating capital of the appellant nor would they cease to form part of its banking business. The returns flowing from them would form part of its profits from its business. In a commercial sense the directors of the company owe it to the bank to make investments which earn them interest instead of letting moneys lie idle. It cannot be said that the funds of the Bank which were not lent to borrowers but were laid out in the form of deposits in another bank to add to the profit instead of lying idle necessarily ceased to be a part of the stockin-trade of the bank, or that the interest arising therefrom did not form part of its business profits.Under the bye-laws one of the objects of the appellant bank is to carry on the general business of banking and therefore subject to the Co- operative Societies Act, it has to carry on its business in the manner that ordinary banks do.It may be added that the various heads under S. 6 of the Income-Tax Act and the provisions of that Act applicable to these various heads are mutually exclusive. Section 12 is a residuary section and does not come into operation until the preceding heads are excluded11. In our opinion, the High Court was in error in treating interest derived from deposits as not arising from the business of the Bank and therefore not falling within the income exempted under the Notification. | 1 | 3,713 | 585 | ### Instruction:
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the profits were within the exemption, but not if the business was of the nature not covered by the objects of the society. This line of reasoning has not formed part of the respondents argument in this Court and the case therefore has no application to the facts of the present case. The decision in 1956-30 ITR 356 (Trav-Co) proceeded on the same ground. In that case the profit which was held not to be exempt under the Notification was the apportioned profit of the society from its dealings with non-members.8. In the Surat Peoples Co-operative Bank Ltd. v. The Commissioner of Income-tax, Ahmedabad, 1958-33 ITR 396 : (AIR 1958 Bom 443 ) the profit arose during the course of banking business out of the sale of Government securities which formed part of the stock-in-trade and as it was a Co-operative bank the profits made from such sales were held to be exempt from taxation under the Notification.9. In the instant case the co-operative society (the appellant) is a Bank. One of its objects is to carry on the general business of banking. Like other banks money is its stock-in-trade or circulating capital and its normal business is to deal in money and credit. It cannot be said that the business of such a Bank consists only in receiving deposits and lending money to its members or such other societies as are mentioned in the objects and that when it lays out its moneys so that they may be readily available to meet demand of its depositors if and when they arise, it is not a legitimate mode of carrying on of its banking business. The Privy Council in 1940-8 ITR 635 : (AIR 1940 PC 230 ) where the profits arose from the sale of Government securities pointed out at page 645 (of ITR ) : (at p. 236 of AIR), that in the ordinary cases the business of a Bank essentially consists of dealing with money and credit. Depositors put their money in the Bank at a small rate interest and in order to meet their demands if and when they arise the Bank has always to keep sufficient cash or easily realisable securities. That is a normal step in the carrying on of the banking business. In other words that is an act done in what is truly the carrying on or carrying out of a business. It may be added that another mode of conducting business of a Bank is to place its funds in deposit with other banks and that also is to meet demands which may be made on it. It was however argued that in the instant case the moneys had been deposited with the Imperial Bank on long term deposits inasmuch as they were deposited for one year and were renewed from time to time also for a year; but as is shown by the accounts these deposits fell due at short intervals and would have been available to the appellant had any need arisen.10. Stress was laid on the use of the word surplus both by the tribunal as well as by the High Court and it was also contended before us that in the bye-laws under the heading business of the bank it was provided, that the bank could invest surplus funds when not required for the business of the bank in one or more ways specified in S. 19 of the Bihar Act (Cl. 4 III (I) of the Bye- Laws). Whether funds invested as provided in S. 19 of the Bihar Act would be surplus or not does not arise for decision in this case, but it has not been shown that the moneys which were in deposit with other banks were surplus within that bye- law so as to take it our of banking business.As we have pointed out above, it is a normal mode of carrying on banking business to invest moneys in a manner that they are readily available and that is just as much a part of the mode of conducting a Banks business as receiving deposits or lending moneys or discounting hundies or issuing demand drafts. That is how the circulating capital is employed and that is the normal course of business of a bank. The moneys laid out in the form of deposits as in the instant case would not cease to be a part of the circulating capital of the appellant nor would they cease to form part of its banking business. The returns flowing from them would form part of its profits from its business. In a commercial sense the directors of the company owe it to the bank to make investments which earn them interest instead of letting moneys lie idle. It cannot be said that the funds of the Bank which were not lent to borrowers but were laid out in the form of deposits in another bank to add to the profit instead of lying idle necessarily ceased to be a part of the stockin-trade of the bank, or that the interest arising therefrom did not form part of its business profits.Under the bye-laws one of the objects of the appellant bank is to carry on the general business of banking and therefore subject to the Co- operative Societies Act, it has to carry on its business in the manner that ordinary banks do.It may be added that the various heads under S. 6 of the Income-Tax Act and the provisions of that Act applicable to these various heads are mutually exclusive. Section 12 is a residuary section and does not come into operation until the preceding heads are excluded : Commissioner of Income-tax v. Basant Rai Takhat Singh, 1933-1 ITR 197 at p. 201 : (AIR 1933 PC 180 , 182).11. In our opinion, the High Court was in error in treating interest derived from deposits as not arising from the business of the Bank and therefore not falling within the income exempted under the Notification.
### Response:
1
### Explanation:
4. The ground of mutuality was not relied upon before us by the learned Solicitor-General who appeared for thecontention is not sustainable. It has not been treated as a finding of fact either by the Appellate Tribunal or by the High Court. They have both treated it as a question of law and it is on that basis that the reference was made. The decision of the question depends on what is comprised within the ordinary business of a bank and whether the business of the appellant bank is in any waynone of these cases supports the argument raised on behalf of theIn the instant case the co-operative society (the appellant) is a Bank. One of its objects is to carry on the general business of banking. Like other banks money is its stock-in-trade or circulating capital and its normal business is to deal in money and credit. It cannot be said that the business of such a Bank consists only in receiving deposits and lending money to its members or such other societies as are mentioned in the objects and that when it lays out its moneys so that they may be readily available to meet demand of its depositors if and when they arise, it is not a legitimate mode of carrying on of its bankingwe have pointed out above, it is a normal mode of carrying on banking business to invest moneys in a manner that they are readily available and that is just as much a part of the mode of conducting a Banks business as receiving deposits or lending moneys or discounting hundies or issuing demand drafts. That is how the circulating capital is employed and that is the normal course of business of a bank. The moneys laid out in the form of deposits as in the instant case would not cease to be a part of the circulating capital of the appellant nor would they cease to form part of its banking business. The returns flowing from them would form part of its profits from its business. In a commercial sense the directors of the company owe it to the bank to make investments which earn them interest instead of letting moneys lie idle. It cannot be said that the funds of the Bank which were not lent to borrowers but were laid out in the form of deposits in another bank to add to the profit instead of lying idle necessarily ceased to be a part of the stockin-trade of the bank, or that the interest arising therefrom did not form part of its business profits.Under the bye-laws one of the objects of the appellant bank is to carry on the general business of banking and therefore subject to the Co- operative Societies Act, it has to carry on its business in the manner that ordinary banks do.It may be added that the various heads under S. 6 of the Income-Tax Act and the provisions of that Act applicable to these various heads are mutually exclusive. Section 12 is a residuary section and does not come into operation until the preceding heads are excluded11. In our opinion, the High Court was in error in treating interest derived from deposits as not arising from the business of the Bank and therefore not falling within the income exempted under the Notification.
|
Hoshiarpur Central Co-Operative Bank Ltd Vs. Commissioner Of Income-Tax, Simla | "other sources" there has reference to the scheme of S. 6 of the Indian Income-tax Act, and profits from business of whatever kind, are dealt with under S. 10 of the Act. The short question thus is whether para. 2 is confined only to profits made by a Co-operative Society from transactions with its own members and does not cover profits made in business with outsiders. 6. It may be pointed out that there are some cases to be found, in which it was held, before the notification was amended by the addition of the Explanation, that the second para. exempted profits made by a Co-operative Society in transaction with its members and not to profits made in any other way. The question is whether such a restricted meaning can be imputed to the very wide and general terms in which para. 2 is couched. 7. The question is plainly one of construction of the notification. In support of the case of the Department, the learned Attorney-General relies on two arguments. He first refers to the opening words of the second para. of the notification, viz., "The profits of any Co-operative Society". These words, it is argued, refer to profits made by a Co-operative Society in its business as a pure Co-operative Society, or, in other words, in business with its own members within the four corners of the Co-operative Societies Act, 1912 and the bye-laws made under that Act. 8. No doubt, a Co-operative Society primarily exists for business with members and not for business with non-members; but the words of the notification and even those more specifically relied upon, are wide enough to include any business whether of the one kind or other.It cannot be denied that the Bank is a Co-operative Society and is claiming the exemption only as such, and further that it is claiming the exemption in respect of profits from a business carried on by it.It was for this reason that the attempt to bring the profits within "other sources" covered by S. 12 of the Indian Income-tax Act was rightly abandoned in this Court. If this is the obvious position, it follows that the words "the profits of any Co-operative Society" are wide enough to cover profits from any business, and there is nothing to show that the profits there mentioned are only the profits from business with members. 9. It is next argued that a Co-operative Society exists for business with members, and that the co-operative Societies Act and the bye-laws of the Bank reflect this character of the business undertakings. This intention underlying the Co-operative Societies Act and the bye-laws, it is urged, is the key to the interpretation of the notification, and it must, therefore, be limited to profits from business with members only. In support of this argument, reference is made to observations in Madras Central Urban Bank Ltd. v. Commissioner of Income-tax ILR 52 Mad 640: (AIR 1929 Mad 387) (FB); Madras Provincial Co-operative Bank Ltd. v. Commissioner of Income-tax, ILR 56 Mad 837 : (AIR 1933 Mad 489 ) (SB) and Commissioner of Income-tax, Burma v. Bengalee Urban Co-operative Credit Society, Ltd., ILR 11 Rang 521: (AIR 1934 Rang 27) (SB) where it was pointed out that the notification covered only profits from business with members. The first two cases were of interest derived from moneys invested in Government Securities to comply with orders of Government to the Societies to keep 40 per cent, of the total liabilities always ready at hand, and it was said that the profits were not from business with members. In the last of the three cases, it was pointed out that the exemption was grounded on the principle that a person cannot make a loss or profits out of himself, and strictly speaking, only such profits as were made in business with members were exempt. 10. The position since these cases were decided has been materially altered by the addition of the Explanation. The Explanation now takes us back to the kinds of income to be found in S. 6 of the Indian Income-tax Act where business profits are, in a category by themselves, more exhaustively treated in S. 10. There are other heads of income of distinct characteristics which are treated separately, and then there is a residuary head which includes income from "other sources" which for that reason are innominate. The Explanation cannot be said to imply a general approval of the earlier decisions. Such a conclusion does not necessarily follow, because if the paragraph of the notification was clear enough there was hardly any need for the Explanation. The addition of the Explanation clears once for all any doubt that might have arisen as to the ambit of the word "profits". After the addition of the Explanation and even before it, the word denoted profits from business and not income which arose, apart from business. 11. It must not be overlooked that at the time when the notification was first issued and also when it was amended, it was not even contemplated that Co-operative Societies would be permitted to deal in commodities in short supply with a view to ensuring their equitable distribution among the consumers. It was, however, always open to the appropriate Government to allow a Society to extent its business operations to trading with persons other than its members subject to conditions and restrictions, vide S. 31 of the Co-operative Societies Act. This has, in fact, been done here. 12.Once there is this extension of the business of a Co-operative Society, the general words of the notification include the profits from such business within the exemption, and it would require more than a supposed underlying intention to negative the exemption. To gather the meaning of the notification in the light of an alleged intention is to reverse the well-known canon of interpretation. In our opinion, the profits were exempt under the notification, and the answer to the question ought to have been in the affirmative. | 1[ds]3. It is admitted on all hands that the profits were made from trading in certain commodities with the approval of the Registrar of Co-operative Societies. The quantum and the manner in which those profits were made, are not in dispute. The short question in this appeal is whether the exemption granted by the notification covers the case8. No doubt, a Co-operative Society primarily exists for business with members and not for business with non-members; but the words of the notification and even those more specifically relied upon, are wide enough to include any business whether of the one kind or other.It cannot be denied that the Bank is a Co-operative Society and is claiming the exemption only as such, and further that it is claiming the exemption in respect of profits from a business carried on by it.It was for this reason that the attempt to bring the profits within "other sources" covered by S. 12 of the Indian Income-tax Act was rightly abandoned in this Court. If this is the obvious position, it follows that the words "the profits of any Co-operative Society" are wide enough to cover profits from any business, and there is nothing to show that the profits there mentioned are only the profits from business with members10. The position since these cases were decided has been materially altered by the addition of the Explanation. The Explanation now takes us back to the kinds of income to be found in S. 6 of the Indian Income-tax Act where business profits are, in a category by themselves, more exhaustively treated in S. 10. There are other heads of income of distinct characteristics which are treated separately, and then there is a residuary head which includes income from "other sources" which for that reason are innominate. The Explanation cannot be said to imply a general approval of the earlier decisions. Such a conclusion does not necessarily follow, because if the paragraph of the notification was clear enough there was hardly any need for the Explanation. The addition of the Explanation clears once for all any doubt that might have arisen as to the ambit of the word "profits". After the addition of the Explanation and even before it, the word denoted profits from business and not income which arose, apart from business11. It must not be overlooked that at the time when the notification was first issued and also when it was amended, it was not even contemplated that Co-operative Societies would be permitted to deal in commodities in short supply with a view to ensuring their equitable distribution among the consumers. It was, however, always open to the appropriate Government to allow a Society to extent its business operations to trading with persons other than its members subject to conditions and restrictions, vide S. 31 of the Co-operative Societies Act. This has, in fact, been done here12.Once there is this extension of the business of a Co-operative Society, the general words of the notification include the profits from such business within the exemption, and it would require more than a supposed underlying intention to negative the exemption. To gather the meaning of the notification in the light of an alleged intention is to reverse the well-known canon of interpretation. In our opinion, the profits were exempt under the notification, and the answer to the question ought to have been in the affirmative. | 1 | 1,943 | 621 | ### Instruction:
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"other sources" there has reference to the scheme of S. 6 of the Indian Income-tax Act, and profits from business of whatever kind, are dealt with under S. 10 of the Act. The short question thus is whether para. 2 is confined only to profits made by a Co-operative Society from transactions with its own members and does not cover profits made in business with outsiders. 6. It may be pointed out that there are some cases to be found, in which it was held, before the notification was amended by the addition of the Explanation, that the second para. exempted profits made by a Co-operative Society in transaction with its members and not to profits made in any other way. The question is whether such a restricted meaning can be imputed to the very wide and general terms in which para. 2 is couched. 7. The question is plainly one of construction of the notification. In support of the case of the Department, the learned Attorney-General relies on two arguments. He first refers to the opening words of the second para. of the notification, viz., "The profits of any Co-operative Society". These words, it is argued, refer to profits made by a Co-operative Society in its business as a pure Co-operative Society, or, in other words, in business with its own members within the four corners of the Co-operative Societies Act, 1912 and the bye-laws made under that Act. 8. No doubt, a Co-operative Society primarily exists for business with members and not for business with non-members; but the words of the notification and even those more specifically relied upon, are wide enough to include any business whether of the one kind or other.It cannot be denied that the Bank is a Co-operative Society and is claiming the exemption only as such, and further that it is claiming the exemption in respect of profits from a business carried on by it.It was for this reason that the attempt to bring the profits within "other sources" covered by S. 12 of the Indian Income-tax Act was rightly abandoned in this Court. If this is the obvious position, it follows that the words "the profits of any Co-operative Society" are wide enough to cover profits from any business, and there is nothing to show that the profits there mentioned are only the profits from business with members. 9. It is next argued that a Co-operative Society exists for business with members, and that the co-operative Societies Act and the bye-laws of the Bank reflect this character of the business undertakings. This intention underlying the Co-operative Societies Act and the bye-laws, it is urged, is the key to the interpretation of the notification, and it must, therefore, be limited to profits from business with members only. In support of this argument, reference is made to observations in Madras Central Urban Bank Ltd. v. Commissioner of Income-tax ILR 52 Mad 640: (AIR 1929 Mad 387) (FB); Madras Provincial Co-operative Bank Ltd. v. Commissioner of Income-tax, ILR 56 Mad 837 : (AIR 1933 Mad 489 ) (SB) and Commissioner of Income-tax, Burma v. Bengalee Urban Co-operative Credit Society, Ltd., ILR 11 Rang 521: (AIR 1934 Rang 27) (SB) where it was pointed out that the notification covered only profits from business with members. The first two cases were of interest derived from moneys invested in Government Securities to comply with orders of Government to the Societies to keep 40 per cent, of the total liabilities always ready at hand, and it was said that the profits were not from business with members. In the last of the three cases, it was pointed out that the exemption was grounded on the principle that a person cannot make a loss or profits out of himself, and strictly speaking, only such profits as were made in business with members were exempt. 10. The position since these cases were decided has been materially altered by the addition of the Explanation. The Explanation now takes us back to the kinds of income to be found in S. 6 of the Indian Income-tax Act where business profits are, in a category by themselves, more exhaustively treated in S. 10. There are other heads of income of distinct characteristics which are treated separately, and then there is a residuary head which includes income from "other sources" which for that reason are innominate. The Explanation cannot be said to imply a general approval of the earlier decisions. Such a conclusion does not necessarily follow, because if the paragraph of the notification was clear enough there was hardly any need for the Explanation. The addition of the Explanation clears once for all any doubt that might have arisen as to the ambit of the word "profits". After the addition of the Explanation and even before it, the word denoted profits from business and not income which arose, apart from business. 11. It must not be overlooked that at the time when the notification was first issued and also when it was amended, it was not even contemplated that Co-operative Societies would be permitted to deal in commodities in short supply with a view to ensuring their equitable distribution among the consumers. It was, however, always open to the appropriate Government to allow a Society to extent its business operations to trading with persons other than its members subject to conditions and restrictions, vide S. 31 of the Co-operative Societies Act. This has, in fact, been done here. 12.Once there is this extension of the business of a Co-operative Society, the general words of the notification include the profits from such business within the exemption, and it would require more than a supposed underlying intention to negative the exemption. To gather the meaning of the notification in the light of an alleged intention is to reverse the well-known canon of interpretation. In our opinion, the profits were exempt under the notification, and the answer to the question ought to have been in the affirmative.
### Response:
1
### Explanation:
3. It is admitted on all hands that the profits were made from trading in certain commodities with the approval of the Registrar of Co-operative Societies. The quantum and the manner in which those profits were made, are not in dispute. The short question in this appeal is whether the exemption granted by the notification covers the case8. No doubt, a Co-operative Society primarily exists for business with members and not for business with non-members; but the words of the notification and even those more specifically relied upon, are wide enough to include any business whether of the one kind or other.It cannot be denied that the Bank is a Co-operative Society and is claiming the exemption only as such, and further that it is claiming the exemption in respect of profits from a business carried on by it.It was for this reason that the attempt to bring the profits within "other sources" covered by S. 12 of the Indian Income-tax Act was rightly abandoned in this Court. If this is the obvious position, it follows that the words "the profits of any Co-operative Society" are wide enough to cover profits from any business, and there is nothing to show that the profits there mentioned are only the profits from business with members10. The position since these cases were decided has been materially altered by the addition of the Explanation. The Explanation now takes us back to the kinds of income to be found in S. 6 of the Indian Income-tax Act where business profits are, in a category by themselves, more exhaustively treated in S. 10. There are other heads of income of distinct characteristics which are treated separately, and then there is a residuary head which includes income from "other sources" which for that reason are innominate. The Explanation cannot be said to imply a general approval of the earlier decisions. Such a conclusion does not necessarily follow, because if the paragraph of the notification was clear enough there was hardly any need for the Explanation. The addition of the Explanation clears once for all any doubt that might have arisen as to the ambit of the word "profits". After the addition of the Explanation and even before it, the word denoted profits from business and not income which arose, apart from business11. It must not be overlooked that at the time when the notification was first issued and also when it was amended, it was not even contemplated that Co-operative Societies would be permitted to deal in commodities in short supply with a view to ensuring their equitable distribution among the consumers. It was, however, always open to the appropriate Government to allow a Society to extent its business operations to trading with persons other than its members subject to conditions and restrictions, vide S. 31 of the Co-operative Societies Act. This has, in fact, been done here12.Once there is this extension of the business of a Co-operative Society, the general words of the notification include the profits from such business within the exemption, and it would require more than a supposed underlying intention to negative the exemption. To gather the meaning of the notification in the light of an alleged intention is to reverse the well-known canon of interpretation. In our opinion, the profits were exempt under the notification, and the answer to the question ought to have been in the affirmative.
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Municipal Committee, Amritsar & Ors Vs. State Of Punjab & Anr | wholly void and illegal.11. Under Section 6 of the Act it is only after the local authority has passed a resolution under Section 3 or the State Government has taken over management of the aided schools under Section 5 that Sections 52 and 59 of the Punjab Municipal Act would be deemed to have been amended in the manner specified in the schedule with effect from October 1, 1957, or from the date aided schools are taken over as the case may be. If the notification dated September 26, 1960 could not be given retrospective operation, the amendments in the aforesaid provisions of the Punjab Municipal Act would be effective only after the date of the notification and not for the prior period. Thus even on the assumption that the provisions of the Act are valid the State could not ask for any contribution from the Committee for the period prior to the date of the notification.But the addition of Clause (g) after Clause (f) in sub-section (1) of Section 52 of the Punjab Municipal Act is void and wholly ineffective for the reasons which will be presently noticed.12. Chapter IV of the Punjab Municipal Act relates to municipal fund and property. Section 51 deals with the constitution of the municipal fund. Section 52 provides for the application of the fund. Before the amendment made by the Act sub-section (1) had six clauses containing the provisions for the application of the fund. It is noteworthy that although the State Government has been empowered to require the Committee to make contributions but in each case that is confined to an eventuality or a situation where certain cost has been incurred by the Government which had to be defrayed by the Committee, e.g, Clause (b), (d) and (f). According to Clause (e), however, the Committee may be required by the State Government to contribute towards the maintenance of pauper lunatics or lepers sent from any place in the State to mental has haspitals or public asylums whether in or outside the State. Sub-section (2) says that subject to the charges specified in sub-section (1) the municipal fund shall be applicable to the payable of the matters set out in Clauses (a) to (1). Clause (c) is in these terms:"the constitution, establishment and maintenance of schools, hospitals and dispensaries, and other institutions for the promotion of education or for the benefit of the public health .........."In the context of Section 52 it is difficult to envisage that the municipal fund of a particular Committee could be diverted to such institutions which had no connection with the Committee. We are, however, not called upon to pronounce upon the true scope, ambit and validity of all the provisions in Section 52.Clause (g) which has now been inserted by means of Section 6 of the Act has to be tested by the guarantees in Part III of the Constitution. By asking the Committee to make contribution from its funds to the cost of the schools which have been taken over by the State part of its funds are being compulsorily acquired by the State.This is something which could not be done except in accordance with the provisions contained in Art. 31 (2) of the Constitution. In Writ Petn. No. 295 of 1968, D/- 30-1-1969 = (reported in AIR 1969 SC 1100 ), Municipal Committee, Amritsar v. State of Punjab in which the provisions of the Punjab Cattle Fairs (Regulation) Act, 1968 came up for examination, it was laid down by this Court that the State was incompetent to declare land belonging to the Municipal Committee as falling within the fair area and to take possession of that land in exercise of the power conferred by the Act without providing for payment of compensation guaranteed by Article 31 (2).Clause (g), therefore which has been inserted in Section 52 of the Punjab Municipal Act is void and illegal as it contravenes Article 31 (2) of the Constitution.13. It may be mentioned that the learned Attorney General has also pointed out that the State legislature did not have the competence, under any of the entries in List II of the Seventh Schedule, to enact legislation of the nature embodied in Clause (g) which was inserted in Section 52 relating to compulsory contribution by the Committee to the State Government. Counsel for the State has sought to rely on Entries 5 and 11 in List II which relate to local Government and education. It is unnecessary to decide this matter since it has been held by us that the impugned provisions with regard to contribution contravene Article 31 (2) of the Constitution.14. We may now determine the provisions of the Act which are unconstitutional and invalid. There is nothing in Section 3 (1), 4 and 5 of the Act per se which would bring them into conflict with the constitutional provisions, particularly,in view of Article 31-A (1) (b) under which the management of the schools could be taken over by the State for a limited period in public interest. But the difficulty arises about Sections 3 (2) and 6 which have to be read together. When the State Government makes a direction under Section 3 (2) that the aided schools shall be taken over all rights and interests of the Committee including the rights of maintenance, management and control shall be transferred to and vest in the State Government. This essentially has reference to proprietary and ownership rights apart from the rights pertaining to management and control. Section 6 comes into operation as soon as a local authority has passed a resolution under Section 3 or the State Government has taken over management under Section 5. Then the provisions relating to acquisition of property of the Committee as also of its funds by way of contribution come immediately into operation by virtue of the amendments effected in Section 52 (1) and 59 of Punjab Municipal Act. These provisions are clearly unconstitutional as they contravene Article 31 (2) of the Constitution. | 1[ds]7. Under the above Article it is only the management of any property which can be taken over for a limited period either in the public interest or in order to secure its properall deference to the High Court we have not been able to properly appreciate the decision on this point given in the paragraph extracted above. The High Court did not consider the true import and effect of the amendment made in Section 59 of the Punjab Municipal Act by virtue of which all rights and interests in the lands, buildings, playgrounds, hostels of the schools as also in the movable property like furniture, books, apparatus, maps and equipment pertaining thereto shall be deemed to have been transferred to the State Government with effect from October 1, 1957. We are, therefore, unable to uphold the view which leads to the result that property can be acquired while taking over management and control under Article 31-A (1) (b) in complete negation and contravention of Article 31 (2) of the Constitution.As regards the notification having retrospective operation we are unable to agree with the High Court that any such effect could be given to it. There is nothing to indicate in the notification that it was intended to operate retrospectively.The mere fact that the Act in terms was retrospective would not make the notification issued under the proviso to Section 5 retrospective in the absence of express words or appropriate language from which retrospectively would be implied. All that the notification says is that the Governor of Punjab is taking over for a period of 10 years the management of the schools of the Committee in exercise of the powers conferred by the proviso to Section 5 of the Act. This clearly means that the management is taken were from the date of the notification and not from any prior date. It would follow that whatever was done before the date of the notification regarding the assumption of management and vesting of the Committees properties was wholly void and illegal.11. Under Section 6 of the Act it is only after the local authority has passed a resolution under Section 3 or the State Government has taken over management of the aided schools under Section 5 that Sections 52 and 59 of the Punjab Municipal Act would be deemed to have been amended in the manner specified in the schedule with effect from October 1, 1957, or from the date aided schools are taken over as the case may be. If the notification dated September 26, 1960 could not be given retrospective operation, the amendments in the aforesaid provisions of the Punjab Municipal Act would be effective only after the date of the notification and not for the prior period. Thus even on the assumption that the provisions of the Act are valid the State could not ask for any contribution from the Committee for the period prior to the date of the notification.But the addition of Clause (g) after Clause (f) in sub-section (1) of Section 52 of the Punjab Municipal Act is void and wholly ineffective for the reasons which will be presently noticed.12. Chapter IV of the Punjab Municipal Act relates to municipal fund and property. Section 51 deals with the constitution of the municipal fund. Section 52 provides for the application of the fund. Before the amendment made by the Act sub-section (1) had six clauses containing the provisions for the application of the fund. It is noteworthy that although the State Government has been empowered to require the Committee to make contributions but in each case that is confined to an eventuality or a situation where certain cost has been incurred by the Government which had to be defrayed by the Committee, e.g, Clause (b), (d) and (f). According to Clause (e), however, the Committee may be required by the State Government to contribute towards the maintenance of pauper lunatics or lepers sent from any place in the State to mental has haspitals or public asylums whether in or outside the State. Sub-section (2) says that subject to the charges specified in sub-section (1) the municipal fund shall be applicable to the payable of the matters set out in Clauses (a) tothe context of Section 52 it is difficult to envisage that the municipal fund of a particular Committee could be diverted to such institutions which had no connection with the Committee. We are, however, not called upon to pronounce upon the true scope, ambit and validity of all the provisions in Section 52.Clause (g) which has now been inserted by means of Section 6 of the Act has to be tested by the guarantees in Part III of the Constitution. By asking the Committee to make contribution from its funds to the cost of the schools which have been taken over by the State part of its funds are being compulsorily acquired by the State.This is something which could not be done except in accordance with the provisions contained in Art. 31 (2) of the(g), therefore which has been inserted in Section 52 of the Punjab Municipal Act is void and illegal as it contravenes Article 31 (2) of the Constitution.Constitution.14. We may now determine the provisions of the Act which are unconstitutional and invalid. There is nothing in Section 3 (1), 4 and 5 of the Act per se which would bring them into conflict with the constitutional provisions, particularly,in view of Article 31-A (1) (b) under which the management of the schools could be taken over by the State for a limited period in public interest. But the difficulty arises about Sections 3 (2) and 6 which have to be read together. When the State Government makes a direction under Section 3 (2) that the aided schools shall be taken over all rights and interests of the Committee including the rights of maintenance, management and control shall be transferred to and vest in the State Government. This essentially has reference to proprietary and ownership rights apart from the rights pertaining to management and control. Section 6 comes into operation as soon as a local authority has passed a resolution under Section 3 or the State Government has taken over management under Section 5. Then the provisions relating to acquisition of property of the Committee as also of its funds by way of contribution come immediately into operation by virtue of the amendments effected in Section 52 (1) and 59 of Punjab Municipal Act. These provisions are clearly unconstitutional as they contravene Article 31 (2) of the Constitution.The next question iswhether there was due compliance with the provisions of the proviso to Section 5 of the Act.In the notification which was issued on September 26, 1960 there is no indication that the management of the schools was being taken over because of certain emergency having arisen. If any emergency existed it was the creation of the government itself which had proceeded to take over the management and control of the aided schools along with the properties pertaining to them without any authority of law prior to the enactment of the Act. That was the reason why the Act had to be given retrospective operation. According to the High Court the moment the State Government was satisfied that it was in the interest of the students to take over the management of the schools it became a case of emergency. It also relied on the principle that it was not necessary to mention the actual emergency which had arisen in the notification itself or to make a recital that an emergency had arisen.The State could not show by placing material before the Court that it was a case of emergency justifying the action under the proviso to Section 5 because no foundation in this behalf had been laid in the writ petition. The third point pressed by the learned Attorney General, therefore, cannot be acceded to. | 1 | 6,039 | 1,441 | ### Instruction:
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wholly void and illegal.11. Under Section 6 of the Act it is only after the local authority has passed a resolution under Section 3 or the State Government has taken over management of the aided schools under Section 5 that Sections 52 and 59 of the Punjab Municipal Act would be deemed to have been amended in the manner specified in the schedule with effect from October 1, 1957, or from the date aided schools are taken over as the case may be. If the notification dated September 26, 1960 could not be given retrospective operation, the amendments in the aforesaid provisions of the Punjab Municipal Act would be effective only after the date of the notification and not for the prior period. Thus even on the assumption that the provisions of the Act are valid the State could not ask for any contribution from the Committee for the period prior to the date of the notification.But the addition of Clause (g) after Clause (f) in sub-section (1) of Section 52 of the Punjab Municipal Act is void and wholly ineffective for the reasons which will be presently noticed.12. Chapter IV of the Punjab Municipal Act relates to municipal fund and property. Section 51 deals with the constitution of the municipal fund. Section 52 provides for the application of the fund. Before the amendment made by the Act sub-section (1) had six clauses containing the provisions for the application of the fund. It is noteworthy that although the State Government has been empowered to require the Committee to make contributions but in each case that is confined to an eventuality or a situation where certain cost has been incurred by the Government which had to be defrayed by the Committee, e.g, Clause (b), (d) and (f). According to Clause (e), however, the Committee may be required by the State Government to contribute towards the maintenance of pauper lunatics or lepers sent from any place in the State to mental has haspitals or public asylums whether in or outside the State. Sub-section (2) says that subject to the charges specified in sub-section (1) the municipal fund shall be applicable to the payable of the matters set out in Clauses (a) to (1). Clause (c) is in these terms:"the constitution, establishment and maintenance of schools, hospitals and dispensaries, and other institutions for the promotion of education or for the benefit of the public health .........."In the context of Section 52 it is difficult to envisage that the municipal fund of a particular Committee could be diverted to such institutions which had no connection with the Committee. We are, however, not called upon to pronounce upon the true scope, ambit and validity of all the provisions in Section 52.Clause (g) which has now been inserted by means of Section 6 of the Act has to be tested by the guarantees in Part III of the Constitution. By asking the Committee to make contribution from its funds to the cost of the schools which have been taken over by the State part of its funds are being compulsorily acquired by the State.This is something which could not be done except in accordance with the provisions contained in Art. 31 (2) of the Constitution. In Writ Petn. No. 295 of 1968, D/- 30-1-1969 = (reported in AIR 1969 SC 1100 ), Municipal Committee, Amritsar v. State of Punjab in which the provisions of the Punjab Cattle Fairs (Regulation) Act, 1968 came up for examination, it was laid down by this Court that the State was incompetent to declare land belonging to the Municipal Committee as falling within the fair area and to take possession of that land in exercise of the power conferred by the Act without providing for payment of compensation guaranteed by Article 31 (2).Clause (g), therefore which has been inserted in Section 52 of the Punjab Municipal Act is void and illegal as it contravenes Article 31 (2) of the Constitution.13. It may be mentioned that the learned Attorney General has also pointed out that the State legislature did not have the competence, under any of the entries in List II of the Seventh Schedule, to enact legislation of the nature embodied in Clause (g) which was inserted in Section 52 relating to compulsory contribution by the Committee to the State Government. Counsel for the State has sought to rely on Entries 5 and 11 in List II which relate to local Government and education. It is unnecessary to decide this matter since it has been held by us that the impugned provisions with regard to contribution contravene Article 31 (2) of the Constitution.14. We may now determine the provisions of the Act which are unconstitutional and invalid. There is nothing in Section 3 (1), 4 and 5 of the Act per se which would bring them into conflict with the constitutional provisions, particularly,in view of Article 31-A (1) (b) under which the management of the schools could be taken over by the State for a limited period in public interest. But the difficulty arises about Sections 3 (2) and 6 which have to be read together. When the State Government makes a direction under Section 3 (2) that the aided schools shall be taken over all rights and interests of the Committee including the rights of maintenance, management and control shall be transferred to and vest in the State Government. This essentially has reference to proprietary and ownership rights apart from the rights pertaining to management and control. Section 6 comes into operation as soon as a local authority has passed a resolution under Section 3 or the State Government has taken over management under Section 5. Then the provisions relating to acquisition of property of the Committee as also of its funds by way of contribution come immediately into operation by virtue of the amendments effected in Section 52 (1) and 59 of Punjab Municipal Act. These provisions are clearly unconstitutional as they contravene Article 31 (2) of the Constitution.
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of the notification regarding the assumption of management and vesting of the Committees properties was wholly void and illegal.11. Under Section 6 of the Act it is only after the local authority has passed a resolution under Section 3 or the State Government has taken over management of the aided schools under Section 5 that Sections 52 and 59 of the Punjab Municipal Act would be deemed to have been amended in the manner specified in the schedule with effect from October 1, 1957, or from the date aided schools are taken over as the case may be. If the notification dated September 26, 1960 could not be given retrospective operation, the amendments in the aforesaid provisions of the Punjab Municipal Act would be effective only after the date of the notification and not for the prior period. Thus even on the assumption that the provisions of the Act are valid the State could not ask for any contribution from the Committee for the period prior to the date of the notification.But the addition of Clause (g) after Clause (f) in sub-section (1) of Section 52 of the Punjab Municipal Act is void and wholly ineffective for the reasons which will be presently noticed.12. Chapter IV of the Punjab Municipal Act relates to municipal fund and property. Section 51 deals with the constitution of the municipal fund. Section 52 provides for the application of the fund. Before the amendment made by the Act sub-section (1) had six clauses containing the provisions for the application of the fund. It is noteworthy that although the State Government has been empowered to require the Committee to make contributions but in each case that is confined to an eventuality or a situation where certain cost has been incurred by the Government which had to be defrayed by the Committee, e.g, Clause (b), (d) and (f). According to Clause (e), however, the Committee may be required by the State Government to contribute towards the maintenance of pauper lunatics or lepers sent from any place in the State to mental has haspitals or public asylums whether in or outside the State. Sub-section (2) says that subject to the charges specified in sub-section (1) the municipal fund shall be applicable to the payable of the matters set out in Clauses (a) tothe context of Section 52 it is difficult to envisage that the municipal fund of a particular Committee could be diverted to such institutions which had no connection with the Committee. We are, however, not called upon to pronounce upon the true scope, ambit and validity of all the provisions in Section 52.Clause (g) which has now been inserted by means of Section 6 of the Act has to be tested by the guarantees in Part III of the Constitution. By asking the Committee to make contribution from its funds to the cost of the schools which have been taken over by the State part of its funds are being compulsorily acquired by the State.This is something which could not be done except in accordance with the provisions contained in Art. 31 (2) of the(g), therefore which has been inserted in Section 52 of the Punjab Municipal Act is void and illegal as it contravenes Article 31 (2) of the Constitution.Constitution.14. We may now determine the provisions of the Act which are unconstitutional and invalid. There is nothing in Section 3 (1), 4 and 5 of the Act per se which would bring them into conflict with the constitutional provisions, particularly,in view of Article 31-A (1) (b) under which the management of the schools could be taken over by the State for a limited period in public interest. But the difficulty arises about Sections 3 (2) and 6 which have to be read together. When the State Government makes a direction under Section 3 (2) that the aided schools shall be taken over all rights and interests of the Committee including the rights of maintenance, management and control shall be transferred to and vest in the State Government. This essentially has reference to proprietary and ownership rights apart from the rights pertaining to management and control. Section 6 comes into operation as soon as a local authority has passed a resolution under Section 3 or the State Government has taken over management under Section 5. Then the provisions relating to acquisition of property of the Committee as also of its funds by way of contribution come immediately into operation by virtue of the amendments effected in Section 52 (1) and 59 of Punjab Municipal Act. These provisions are clearly unconstitutional as they contravene Article 31 (2) of the Constitution.The next question iswhether there was due compliance with the provisions of the proviso to Section 5 of the Act.In the notification which was issued on September 26, 1960 there is no indication that the management of the schools was being taken over because of certain emergency having arisen. If any emergency existed it was the creation of the government itself which had proceeded to take over the management and control of the aided schools along with the properties pertaining to them without any authority of law prior to the enactment of the Act. That was the reason why the Act had to be given retrospective operation. According to the High Court the moment the State Government was satisfied that it was in the interest of the students to take over the management of the schools it became a case of emergency. It also relied on the principle that it was not necessary to mention the actual emergency which had arisen in the notification itself or to make a recital that an emergency had arisen.The State could not show by placing material before the Court that it was a case of emergency justifying the action under the proviso to Section 5 because no foundation in this behalf had been laid in the writ petition. The third point pressed by the learned Attorney General, therefore, cannot be acceded to.
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Southern Roadways Ltd., Madurai, Byits Secretary Vs. S.M. Krishnan | received after Ann Duncans death ? Not by the respondent for himself, or on his own behalf, any more than during her lifetime. " Emphasising the fiduciary character of the agent his possession was likened to that of trustee, a solicitor or an agent receiving the rent under a power of attorney. Another English case of Williams v. Pott (LR 12 Eq Cas 149), arising out of the circumstances similar to the present case was more interesting. The agent in that case was the real owner of the estate but he collected the rents for a considerably long period as the agent of his principal who was his mother. After the agents death his heir claimed the estate. The mother (the principal) had also by then died after purporting by her will to devise the disputed lands to the defendants upon certain trusts. The claim of the plaintiff was dismissed on the plea of adverse possession. Lord Romilly, M.R., in his judgment observed that since the possession of the agent was the possession of the principal, the agent could not have made an entry as long as he was in the position of the agent for his mother, and that he could not get into possession without first resigning his position as her agent which he could have done by saying : "The property is mine; I claim the rents, and I shall apply the rents for my own purposes. " The agent had thus lost his title by reason of his own possession as agent of the principal." 17. We wish to add that it is not every agent who is in a fiduciary position vis-a-vis his principal. For example if A appoints B to be his agent merely to sign a memorandum and places no particular trust in B, the doctrine of fiduciary relations would not apply. Likewise, where the principal authorises an agent to do particular or specified acts, the doctrine of fiduciary relation may not arise. What we want to emphasise is, in all cases of general agency, the relation may be generally fiduciary, but in other kinds of agencies, the relation may vary with the confidence which the principal chooses to repose in the agent. It may also depend upon the power which the agent exercises over the subject matter under the terms of the contract of agency or by virtue of the incident of law and usage of the business which the relationship implies. Thus the fiduciary element in agency, though the key to much of the law governing this relation, is not the essential element in the relation. 18. The crux of the matter is that an agent holds the principals property only on behalf of the principal. He acquires no interest for himself in such property. He cannot deny principals title to property. Nor he can convert it into any other kind or use. His possession is the possession of the principal for all purposes. As the Kerala High Court in Narayani Amma v. Bhaskaran Pillai (AIR 1969 Ker 214 : 1968 Ker LJ 738) observed : (AIR p. 217, para 6) "The agent has no possession of his own. What is called a caretakers possession is the possession of the principal." 19. So much is, we think, established law as regards agents right to property belonging to the principal. Dr. Chitale, learned counsel for the respondent, however, cited in this context, two decisions : (i) Abdul Nabi Sahib v. Bajan Sahib (AIR 1944 Mad 221 : (1944) 1 MLJ 87) and (ii) Jemma v. Raghu (AIR 1977 Ori 12 : 42 Cut LT 940). In the former case of the Madras High Court, the suit was for a permanent injunction restraining the defendant from interfering with the plaintiffs peaceful possession and enjoyment of the suit properties and performance of the religious services. The defendant admitted that he was agent of the plaintiff but set up title to the property in himself as done. He has also set up title by adverse possession. On these claims, Kunhi Raman, J., observed: "Since the plaintiff had not got possession of the property, it would not be sufficient to show that he was in constructive possession and the theory of constructive possession as between the principal and agent, cannot be relied upon by the principal for the purpose of meeting the contention of the description raised on behalf of the defendant, who is the agent." 20. If the defendant in the above case, has admitted that he was the agent of the plaintiff and yet set up title to the property of his principal, the above observation may not be consistent with the settled principle of law. We have already stated that the agent acquires no interest in the property of the principal and he cannot, therefore, non-suit the principal on the possessory title as agent. 21. The second case in Jemma v. Raghu (AIR 1977 Ori 12 : 42 Cut LT 940) referred to us is the decision of the Orissa High Court. That case dealt with the general principle that the plaintiff who is not in possession of the suit premises is not entitled to relief of injunction. The plaintiff must ask for recovery of possession. But this principle has no application with regard to dispute between the principal and agent in respect of principals property. 22. In this case, the respondents possession of the suit premises was on behalf of the company and not on his own right. It is, therefore, unnecessary for the company to file a suit for recovery of possession. The respondent has no right to remain in possession of the suit premises after termination of his agency. He has also no right to interfere with the companys business. The case, therefore, deserves the grant of temporary injunction. The learned Single Judge of the High Court in our judgment, was justified in issuing the injunction. The Division Bench of the High Court was clearly in error in vacating it. | 1[ds]17. We wish to add that it is not every agent who is in a fiduciary position vis-a-vis his principal. For example if A appoints B to be his agent merely to sign a memorandum and places no particular trust in B, the doctrine of fiduciary relations would not apply. Likewise, where the principal authorises an agent to do particular or specified acts, the doctrine of fiduciary relation may not arise. What we want to emphasise is, in all cases of general agency, the relation may be generally fiduciary, but in other kinds of agencies, the relation may vary with the confidence which the principal chooses to repose in the agent. It may also depend upon the power which the agent exercises over the subject matter under the terms of the contract of agency or by virtue of the incident of law and usage of the business which the relationship implies. Thus the fiduciary element in agency, though the key to much of the law governing this relation, is not the essential element in theThe crux of the matter is that an agent holds the principals property only on behalf of the principal. He acquires no interest for himself in such property. He cannot deny principals title to property. Nor he can convert it into any other kind or use. His possession is the possession of the principal for all purposes. As the Kerala High Court in Narayani Amma v. Bhaskaran Pillai (AIR 1969 Ker 214 : 1968 Ker LJ 738) observed : (AIR p. 217, paraagent has no possession of his own. What is called a caretakers possession is the possession of the principal.So much is, we think, established law as regards agents right to property belonging to the principal. Dr. Chitale, learned counsel for the respondent, however, cited in this context, two decisions : (i) Abdul Nabi Sahib v. Bajan Sahib (AIR 1944 Mad 221 : (1944) 1 MLJ 87) and (ii) Jemma v. Raghu (AIR 1977 Ori 12 : 42 Cut LT 940). In the former case of the Madras High Court, the suit was for a permanent injunction restraining the defendant from interfering with the plaintiffs peaceful possession and enjoyment of the suit properties and performance of the religious services. The defendant admitted that he was agent of the plaintiff but set up title to the property in himself as done. He has also set up title by adverse possession. On these claims, Kunhi Raman, J.,the plaintiff had not got possession of the property, it would not be sufficient to show that he was in constructive possession and the theory of constructive possession as between the principal and agent, cannot be relied upon by the principal for the purpose of meeting the contention of the description raised on behalf of the defendant, who is the agent.If the defendant in the above case, has admitted that he was the agent of the plaintiff and yet set up title to the property of his principal, the above observation may not be consistent with the settled principle of law. We have already stated that the agent acquires no interest in the property of the principal and he cannot, therefore, non-suit the principal on the possessory title asThe second case in Jemma v. Raghu (AIR 1977 Ori 12 : 42 Cut LT 940) referred to us is the decision of the Orissa High Court. That case dealt with the general principle that the plaintiff who is not in possession of the suit premises is not entitled to relief of injunction. The plaintiff must ask for recovery of possession. But this principle has no application with regard to dispute between the principal and agent in respect of principalsIn this case, the respondents possession of the suit premises was on behalf of the company and not on his own right. It is, therefore, unnecessary for the company to file a suit for recovery of possession. The respondent has no right to remain in possession of the suit premises after termination of his agency. He has also no right to interfere with the companys business. The case, therefore, deserves the grant of temporary injunction. The learned Single Judge of the High Court in our judgment, was justified in issuing the injunction. The Division Bench of the High Court was clearly in error in vacating it | 1 | 3,455 | 805 | ### Instruction:
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received after Ann Duncans death ? Not by the respondent for himself, or on his own behalf, any more than during her lifetime. " Emphasising the fiduciary character of the agent his possession was likened to that of trustee, a solicitor or an agent receiving the rent under a power of attorney. Another English case of Williams v. Pott (LR 12 Eq Cas 149), arising out of the circumstances similar to the present case was more interesting. The agent in that case was the real owner of the estate but he collected the rents for a considerably long period as the agent of his principal who was his mother. After the agents death his heir claimed the estate. The mother (the principal) had also by then died after purporting by her will to devise the disputed lands to the defendants upon certain trusts. The claim of the plaintiff was dismissed on the plea of adverse possession. Lord Romilly, M.R., in his judgment observed that since the possession of the agent was the possession of the principal, the agent could not have made an entry as long as he was in the position of the agent for his mother, and that he could not get into possession without first resigning his position as her agent which he could have done by saying : "The property is mine; I claim the rents, and I shall apply the rents for my own purposes. " The agent had thus lost his title by reason of his own possession as agent of the principal." 17. We wish to add that it is not every agent who is in a fiduciary position vis-a-vis his principal. For example if A appoints B to be his agent merely to sign a memorandum and places no particular trust in B, the doctrine of fiduciary relations would not apply. Likewise, where the principal authorises an agent to do particular or specified acts, the doctrine of fiduciary relation may not arise. What we want to emphasise is, in all cases of general agency, the relation may be generally fiduciary, but in other kinds of agencies, the relation may vary with the confidence which the principal chooses to repose in the agent. It may also depend upon the power which the agent exercises over the subject matter under the terms of the contract of agency or by virtue of the incident of law and usage of the business which the relationship implies. Thus the fiduciary element in agency, though the key to much of the law governing this relation, is not the essential element in the relation. 18. The crux of the matter is that an agent holds the principals property only on behalf of the principal. He acquires no interest for himself in such property. He cannot deny principals title to property. Nor he can convert it into any other kind or use. His possession is the possession of the principal for all purposes. As the Kerala High Court in Narayani Amma v. Bhaskaran Pillai (AIR 1969 Ker 214 : 1968 Ker LJ 738) observed : (AIR p. 217, para 6) "The agent has no possession of his own. What is called a caretakers possession is the possession of the principal." 19. So much is, we think, established law as regards agents right to property belonging to the principal. Dr. Chitale, learned counsel for the respondent, however, cited in this context, two decisions : (i) Abdul Nabi Sahib v. Bajan Sahib (AIR 1944 Mad 221 : (1944) 1 MLJ 87) and (ii) Jemma v. Raghu (AIR 1977 Ori 12 : 42 Cut LT 940). In the former case of the Madras High Court, the suit was for a permanent injunction restraining the defendant from interfering with the plaintiffs peaceful possession and enjoyment of the suit properties and performance of the religious services. The defendant admitted that he was agent of the plaintiff but set up title to the property in himself as done. He has also set up title by adverse possession. On these claims, Kunhi Raman, J., observed: "Since the plaintiff had not got possession of the property, it would not be sufficient to show that he was in constructive possession and the theory of constructive possession as between the principal and agent, cannot be relied upon by the principal for the purpose of meeting the contention of the description raised on behalf of the defendant, who is the agent." 20. If the defendant in the above case, has admitted that he was the agent of the plaintiff and yet set up title to the property of his principal, the above observation may not be consistent with the settled principle of law. We have already stated that the agent acquires no interest in the property of the principal and he cannot, therefore, non-suit the principal on the possessory title as agent. 21. The second case in Jemma v. Raghu (AIR 1977 Ori 12 : 42 Cut LT 940) referred to us is the decision of the Orissa High Court. That case dealt with the general principle that the plaintiff who is not in possession of the suit premises is not entitled to relief of injunction. The plaintiff must ask for recovery of possession. But this principle has no application with regard to dispute between the principal and agent in respect of principals property. 22. In this case, the respondents possession of the suit premises was on behalf of the company and not on his own right. It is, therefore, unnecessary for the company to file a suit for recovery of possession. The respondent has no right to remain in possession of the suit premises after termination of his agency. He has also no right to interfere with the companys business. The case, therefore, deserves the grant of temporary injunction. The learned Single Judge of the High Court in our judgment, was justified in issuing the injunction. The Division Bench of the High Court was clearly in error in vacating it.
### Response:
1
### Explanation:
17. We wish to add that it is not every agent who is in a fiduciary position vis-a-vis his principal. For example if A appoints B to be his agent merely to sign a memorandum and places no particular trust in B, the doctrine of fiduciary relations would not apply. Likewise, where the principal authorises an agent to do particular or specified acts, the doctrine of fiduciary relation may not arise. What we want to emphasise is, in all cases of general agency, the relation may be generally fiduciary, but in other kinds of agencies, the relation may vary with the confidence which the principal chooses to repose in the agent. It may also depend upon the power which the agent exercises over the subject matter under the terms of the contract of agency or by virtue of the incident of law and usage of the business which the relationship implies. Thus the fiduciary element in agency, though the key to much of the law governing this relation, is not the essential element in theThe crux of the matter is that an agent holds the principals property only on behalf of the principal. He acquires no interest for himself in such property. He cannot deny principals title to property. Nor he can convert it into any other kind or use. His possession is the possession of the principal for all purposes. As the Kerala High Court in Narayani Amma v. Bhaskaran Pillai (AIR 1969 Ker 214 : 1968 Ker LJ 738) observed : (AIR p. 217, paraagent has no possession of his own. What is called a caretakers possession is the possession of the principal.So much is, we think, established law as regards agents right to property belonging to the principal. Dr. Chitale, learned counsel for the respondent, however, cited in this context, two decisions : (i) Abdul Nabi Sahib v. Bajan Sahib (AIR 1944 Mad 221 : (1944) 1 MLJ 87) and (ii) Jemma v. Raghu (AIR 1977 Ori 12 : 42 Cut LT 940). In the former case of the Madras High Court, the suit was for a permanent injunction restraining the defendant from interfering with the plaintiffs peaceful possession and enjoyment of the suit properties and performance of the religious services. The defendant admitted that he was agent of the plaintiff but set up title to the property in himself as done. He has also set up title by adverse possession. On these claims, Kunhi Raman, J.,the plaintiff had not got possession of the property, it would not be sufficient to show that he was in constructive possession and the theory of constructive possession as between the principal and agent, cannot be relied upon by the principal for the purpose of meeting the contention of the description raised on behalf of the defendant, who is the agent.If the defendant in the above case, has admitted that he was the agent of the plaintiff and yet set up title to the property of his principal, the above observation may not be consistent with the settled principle of law. We have already stated that the agent acquires no interest in the property of the principal and he cannot, therefore, non-suit the principal on the possessory title asThe second case in Jemma v. Raghu (AIR 1977 Ori 12 : 42 Cut LT 940) referred to us is the decision of the Orissa High Court. That case dealt with the general principle that the plaintiff who is not in possession of the suit premises is not entitled to relief of injunction. The plaintiff must ask for recovery of possession. But this principle has no application with regard to dispute between the principal and agent in respect of principalsIn this case, the respondents possession of the suit premises was on behalf of the company and not on his own right. It is, therefore, unnecessary for the company to file a suit for recovery of possession. The respondent has no right to remain in possession of the suit premises after termination of his agency. He has also no right to interfere with the companys business. The case, therefore, deserves the grant of temporary injunction. The learned Single Judge of the High Court in our judgment, was justified in issuing the injunction. The Division Bench of the High Court was clearly in error in vacating it
|
Burn & Company Limited & Another Vs. Their Employees | 1. The principal point which this appeal by special leave raises for our decision is in regard to the distribution of the available surplus between the appellants, Burn & Co., Ltd., and another, and the respondents, their employees. The award under appeal was passed by the industrial tribunal in an industrial dispute which was referred to it in respect of the respondents claim for bonus for the year 1954 payable in 1956. The other dispute referred for adjudication was whether any interim bonus should be paid before the Pujas but with it we are not concerned in the present appeal. The industrial tribunal has applied the Full Bench formula in deciding this dispute. It appears that the respondents claimed four months basic wages by way of bonus whereas by the award they have been given 2 1/2 months basic wages as bonus for the relevant year. Mr. Sanyal, for the appellants, contends that having regard to the surplus available for distribution the award of 2 1/2 months basic wages as bonus is unduly generous to the respondents; and in support of this argument he has invited our attention to the decision of this Court in the Management of the Jawahar Mills, Ltd., and others v. Their workmen [Civil Appeals Nos. 294-296 of 1958, decided on 11 February, 1960]. In that case this Court has observed that while no inflexible rule can possibly be laid down as regards the distribution of the available surplus, a workable rule, where the surplus is not considerable, very often is that, when no other evidence as regards relevant factors is available, the distribution should be half and half between the employees on the one hand and the industry and shareholders on the other. It would be noticed that the judgment does not purport to lay down any rule and the working rule to which it refers is also intended to be confined to cases where the surplus is not considerable.In the present case the gross income derived from the profit and loss account by the appellants is Rs. 55.85 lakhs; and after the calculations are made according to the formula the available surplus is found to be Rs. 13.72 lakhs. Under the award Rs. 10.20 lakhs or so would be available to the respondents by way of bonus, because it appears that the total bill of the average salaries payable to the appellant is Rs. 4.08 lakhs, but this amount would earn a rebate of income-tax which would be in the neighbourhood of Rs. 4.45 lakhs. If the appellants are given credit for this amount, the result would be that it would get nearly Rs. 8 lakhs and the respondents would get nearly Rs. 10 lakhs. Though this result has worked slightly in excess of 50 per cent in favour of the respondents, we do not see how we would be justified in interfering with the award solely on that ground. We have repeatedly held that inflexible rule can be laid down in regard to the distribution of available surplus under the working of the Full Bench formula. It is a matter which must always be left to the discretion of the tribunal. It is only when this Court is satisfied that in exercise of its discretion the tribunal had acted improperly that a case may be made out for our consideration of the matter. Having regard to the circumstances of this case, we do not think that such a case has been made out in the present appeal.2. Mr. Sanyal then contended that the tribunal was in error in not allowing interest at 4 per cent on the reserves used as working capital; the tribunal has allowed 2 per cent interest on the said reserve. This again is not a matter of law. In several instances interest at 2 per cent has been allowed by tribunals on reserves used as working capital. As in the case of the distribution of available surplus, so in the case of awarding interest on working capital the decision must normally be left to the discretion of the tribunal. We are, therefore, not inclined to accede to the argument that the said interest should be raised to 4 per cent.3. | 0[ds]It would be noticed that the judgment does not purport to lay down any rule and the working rule to which it refers is also intended to be confined to cases where the surplus is not considerable.In the present case the gross income derived from the profit and loss account by the appellants is Rs. 55.85 lakhs; and after the calculations are made according to the formula the available surplus is found to be Rs. 13.72 lakhs. Under the award Rs. 10.20 lakhs or so would be available to the respondents by way of bonus, because it appears that the total bill of the average salaries payable to the appellant is Rs. 4.08 lakhs, but this amount would earn a rebate ofwhich would be in the neighbourhood of Rs. 4.45 lakhs. If the appellants are given credit for this amount, the result would be that it would get nearly Rs. 8 lakhs and the respondents would get nearly Rs. 10 lakhs. Though this result has worked slightly in excess of 50 per cent in favour of the respondents, we do not see how we would be justified in interfering with the award solely on that ground. We have repeatedly held that inflexible rule can be laid down in regard to the distribution of available surplus under the working of the Full Bench formula. It is a matter which must always be left to the discretion of the tribunal. It is only when this Court is satisfied that in exercise of its discretion the tribunal had acted improperly that a case may be made out for our consideration of the matter. Having regard to the circumstances of this case, we do not think that such a case has been made out in the present appeal.l then contended that the tribunal was in error in not allowing interest at 4 per cent on the reserves used as working capital; the tribunal has allowed 2 per cent interest on the said reserve.This again is not a matter of law. In several instances interest at 2 per cent has been allowed by tribunals on reserves used as working capital. As in the case of the distribution of available surplus, so in the case of awarding interest on working capital the decision must normally be left to the discretion of the tribunal. We are, therefore, not inclined to accede to the argument that the said interest should be raised to 4 per cent. | 0 | 759 | 440 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
1. The principal point which this appeal by special leave raises for our decision is in regard to the distribution of the available surplus between the appellants, Burn & Co., Ltd., and another, and the respondents, their employees. The award under appeal was passed by the industrial tribunal in an industrial dispute which was referred to it in respect of the respondents claim for bonus for the year 1954 payable in 1956. The other dispute referred for adjudication was whether any interim bonus should be paid before the Pujas but with it we are not concerned in the present appeal. The industrial tribunal has applied the Full Bench formula in deciding this dispute. It appears that the respondents claimed four months basic wages by way of bonus whereas by the award they have been given 2 1/2 months basic wages as bonus for the relevant year. Mr. Sanyal, for the appellants, contends that having regard to the surplus available for distribution the award of 2 1/2 months basic wages as bonus is unduly generous to the respondents; and in support of this argument he has invited our attention to the decision of this Court in the Management of the Jawahar Mills, Ltd., and others v. Their workmen [Civil Appeals Nos. 294-296 of 1958, decided on 11 February, 1960]. In that case this Court has observed that while no inflexible rule can possibly be laid down as regards the distribution of the available surplus, a workable rule, where the surplus is not considerable, very often is that, when no other evidence as regards relevant factors is available, the distribution should be half and half between the employees on the one hand and the industry and shareholders on the other. It would be noticed that the judgment does not purport to lay down any rule and the working rule to which it refers is also intended to be confined to cases where the surplus is not considerable.In the present case the gross income derived from the profit and loss account by the appellants is Rs. 55.85 lakhs; and after the calculations are made according to the formula the available surplus is found to be Rs. 13.72 lakhs. Under the award Rs. 10.20 lakhs or so would be available to the respondents by way of bonus, because it appears that the total bill of the average salaries payable to the appellant is Rs. 4.08 lakhs, but this amount would earn a rebate of income-tax which would be in the neighbourhood of Rs. 4.45 lakhs. If the appellants are given credit for this amount, the result would be that it would get nearly Rs. 8 lakhs and the respondents would get nearly Rs. 10 lakhs. Though this result has worked slightly in excess of 50 per cent in favour of the respondents, we do not see how we would be justified in interfering with the award solely on that ground. We have repeatedly held that inflexible rule can be laid down in regard to the distribution of available surplus under the working of the Full Bench formula. It is a matter which must always be left to the discretion of the tribunal. It is only when this Court is satisfied that in exercise of its discretion the tribunal had acted improperly that a case may be made out for our consideration of the matter. Having regard to the circumstances of this case, we do not think that such a case has been made out in the present appeal.2. Mr. Sanyal then contended that the tribunal was in error in not allowing interest at 4 per cent on the reserves used as working capital; the tribunal has allowed 2 per cent interest on the said reserve. This again is not a matter of law. In several instances interest at 2 per cent has been allowed by tribunals on reserves used as working capital. As in the case of the distribution of available surplus, so in the case of awarding interest on working capital the decision must normally be left to the discretion of the tribunal. We are, therefore, not inclined to accede to the argument that the said interest should be raised to 4 per cent.3.
### Response:
0
### Explanation:
It would be noticed that the judgment does not purport to lay down any rule and the working rule to which it refers is also intended to be confined to cases where the surplus is not considerable.In the present case the gross income derived from the profit and loss account by the appellants is Rs. 55.85 lakhs; and after the calculations are made according to the formula the available surplus is found to be Rs. 13.72 lakhs. Under the award Rs. 10.20 lakhs or so would be available to the respondents by way of bonus, because it appears that the total bill of the average salaries payable to the appellant is Rs. 4.08 lakhs, but this amount would earn a rebate ofwhich would be in the neighbourhood of Rs. 4.45 lakhs. If the appellants are given credit for this amount, the result would be that it would get nearly Rs. 8 lakhs and the respondents would get nearly Rs. 10 lakhs. Though this result has worked slightly in excess of 50 per cent in favour of the respondents, we do not see how we would be justified in interfering with the award solely on that ground. We have repeatedly held that inflexible rule can be laid down in regard to the distribution of available surplus under the working of the Full Bench formula. It is a matter which must always be left to the discretion of the tribunal. It is only when this Court is satisfied that in exercise of its discretion the tribunal had acted improperly that a case may be made out for our consideration of the matter. Having regard to the circumstances of this case, we do not think that such a case has been made out in the present appeal.l then contended that the tribunal was in error in not allowing interest at 4 per cent on the reserves used as working capital; the tribunal has allowed 2 per cent interest on the said reserve.This again is not a matter of law. In several instances interest at 2 per cent has been allowed by tribunals on reserves used as working capital. As in the case of the distribution of available surplus, so in the case of awarding interest on working capital the decision must normally be left to the discretion of the tribunal. We are, therefore, not inclined to accede to the argument that the said interest should be raised to 4 per cent.
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HANUMAPPA (SINCE DECEASED) BY HIS LRS Vs. THE STATE OF KARNATAKA | whether the petitioner has made out a case for continuation of the order of status-quo during the pendency of the Special Leave Petition. As noticed, the claim of the petitioner is that he was a tenant in cultivation of the property as on 01.03.1974. Such claim is sought to be justified by contending that his name is indicated in the cultivators Column of the RTC and that such tenancy was on crop sharing basis. The respondent No.4 who has filed the instant application has however disputed the claim. Though the respondent No.4 purchased the property on 26.04.1978 i.e. subsequent to the appointed date, the interest in the property as claimed by the respondent No.4 has been accepted by the High Court in Writ Petition No.30301/1982 through the order dated 23.09.1997 and the matter had been remanded to the Land Tribunal for fresh consideration after providing opportunity to the respondent No.4/applicant. 7. If that be the position, all that is to be taken note at this juncture is as to whether the claim of the petitioner that he was a tenant of the land in question is to be accepted as unassailable and whether the continuation of the status-quo as contended by the petitioner in special leave petition merits consideration. For the limited purpose, a perusal of the order dated 16.09.1998 passed by the Land Tribunal would prima facie disclose that a detailed consideration of the evidence and the analysis of rival contentions has been made. It is in that light the application in Form No.7 has been rejected. The contention of Mr. S.N. Bhat, learned counsel is that the RTC extracts indicates the name of the petitioner as a cultivator in Column No.12(2) thereof. We notice that the Land Tribunal in fact has referred to this aspect in detail and has noted that the RTC extracts from 1971-72 to 1977-78 indicates the name of the respondent No.3 i.e. that the predecessor in title to respondent No.4 as a cultivator. The Tribunal has also referred to certain stray entries in the name of the petitioner in the year 1974-75 and 1975-76 in the cultivators column. In that light the Tribunal has proceeded further to consider the other evidence available on record and has arrived at the conclusion that the said entries are not supported by any other evidence, more particularly the petitioner had not produced any documentary evidence for having given Rs.3000/- to the respondent No.3, being 50 per cent of the value of Eucalyptus trees which was claimed to be sold by him for Rs.6000/- to establish the claim of tenancy being on crop sharing basis. Further no other document was produced to indicate that there was an arrangement on crop sharing basis. Such conclusion reached by the Land Tribunal has been concurrently upheld by the learned Single Judge of the High Court in W.P. No.30602/1998 by the order dated 14.10.1998 and by the Division Bench in Writ Appeal No.1818/2008(LR) through the order dated 03.12.2015. The Review Petition filed against the same in Review Petition No.28/2017 was also dismissed on 21.06.2017. 8. No doubt Mr. S.N.Bhat, learned counsel sought to contend that the petitioner had the benefit of the order of status-quo during the pendency of the proceedings before the High Court and as such the same benefit be continued. Even if that be the position; as rightly pointed out by Mr. Sajan Poovayya, learned senior counsel, the Writ Appeal filed by the petitioner herein in Writ Appeal No.1818/2008(LR) was dismissed as early as on 03.12.2015 and the interim order if any had ceased to exist. The instant Special Leave Petition was filed only in the year 2017 with a delay of 546 days. True it is that the Review Petition had been filed in the meanwhile. However, the said Review Petition itself was filed with a delay of 380 days from the date of disposal of the Writ Appeal and in any event the petitioner herein cannot claim benefit of an interim order from the date of disposal of the Writ Appeal on 03.12.2015. In such event, though this Court has condoned the delay, the grant of an order of status-quo at that juncture was without reference to all these aspects. 9. That apart, the petitioner had also filed a Civil Suit in O.S. No.333/2017 in the Court of the Principal Civil Judge, Bengaluru Rural District seeking for decree of permanent injunction. In the suit an application seeking temporary injunction was also filed but no interim order had been granted therein. This conduct of the petitioners would also disclose that the petitioners having not agitated the matter after disposal of the Writ Appeal on 03.12.2015 had begun to reagitate the matter only when the respondent No.4 was taking steps to develop the property. In that regard, the documents produced by respondent No.4 in its reply statement along with an application would disclose that the respondent No.4 having entered into a Joint Development Agreement dated 27.06.2016 (Annexure A2); the developer was taking further steps for securing Environment Impact Assessment Certificate and appropriate registration before the Real Estate Regulatory Authority. The said proceedings would also indicate that the property at this point has lost its character as agricultural property. If that be the position, the petitioner continuing to cultivate the property or being in possession thereof cannot be accepted at this juncture to continue the order of status-quo. Be that as it may, even if on assessment of the entire case while considering the Special Leave Petition on merits if the right claimed to be a tenant as on 01.03.1974 is accepted, the interest of the petitioner would lie in the developed property and can be appropriately compensated. Thus even on applying the tripod test, the balance of convenience to vacate the order of status-quo is in favour of the respondent No.4. Needless to mention that the change in the nature of the land and the development made therein would therefore remain subject to the result of the Special Leave Petition. | 1[ds]Though the respondent No.4 purchased the property on 26.04.1978 i.e. subsequent to the appointed date, the interest in the property as claimed by the respondent No.4 has been accepted by the High Court in Writ Petition No.30301/1982 through the order dated 23.09.1997 and the matter had been remanded to the Land Tribunal for fresh consideration after providing opportunity to the respondent No.4/applicant.For the limited purpose, a perusal of the order dated 16.09.1998 passed by the Land Tribunal would prima facie disclose that a detailed consideration of the evidence and the analysis of rival contentions has been made. It is in that light the application in Form No.7 has been rejected.We notice that the Land Tribunal in fact has referred to this aspect in detail and has noted that the RTC extracts from 1971-72 to 1977-78 indicates the name of the respondent No.3 i.e. that the predecessor in title to respondent No.4 as a cultivator. The Tribunal has also referred to certain stray entries in the name of the petitioner in the year 1974-75 and 1975-76 in the cultivators column. In that light the Tribunal has proceeded further to consider the other evidence available on record and has arrived at the conclusion that the said entries are not supported by any other evidence, more particularly the petitioner had not produced any documentary evidence for having given Rs.3000/- to the respondent No.3, being 50 per cent of the value of Eucalyptus trees which was claimed to be sold by him for Rs.6000/- to establish the claim of tenancy being on crop sharing basis. Further no other document was produced to indicate that there was an arrangement on crop sharing basis. Such conclusion reached by the Land Tribunal has been concurrently upheld by the learned Single Judge of the High Court in W.P. No.30602/1998 by the order dated 14.10.1998 and by the Division Bench in Writ Appeal No.1818/2008(LR) through the order dated 03.12.2015. The Review Petition filed against the same in Review Petition No.28/2017 was also dismissed on 21.06.2017.True it is that the Review Petition had been filed in the meanwhile. However, the said Review Petition itself was filed with a delay of 380 days from the date of disposal of the Writ Appeal and in any event the petitioner herein cannot claim benefit of an interim order from the date of disposal of the Writ Appeal on 03.12.2015. In such event, though this Court has condoned the delay, the grant of an order of status-quo at that juncture was without reference to all these aspects.9. That apart, the petitioner had also filed a Civil Suit in O.S. No.333/2017 in the Court of the Principal Civil Judge, Bengaluru Rural District seeking for decree of permanent injunction. In the suit an application seeking temporary injunction was also filed but no interim order had been granted therein. This conduct of the petitioners would also disclose that the petitioners having not agitated the matter after disposal of the Writ Appeal on 03.12.2015 had begun to reagitate the matter only when the respondent No.4 was taking steps to develop the property. In that regard, the documents produced by respondent No.4 in its reply statement along with an application would disclose that the respondent No.4 having entered into a Joint Development Agreement dated 27.06.2016 (Annexure A2); the developer was taking further steps for securing Environment Impact Assessment Certificate and appropriate registration before the Real Estate Regulatory Authority. The said proceedings would also indicate that the property at this point has lost its character as agricultural property. If that be the position, the petitioner continuing to cultivate the property or being in possession thereof cannot be accepted at this juncture to continue the order of status-quo. Be that as it may, even if on assessment of the entire case while considering the Special Leave Petition on merits if the right claimed to be a tenant as on 01.03.1974 is accepted, the interest of the petitioner would lie in the developed property and can be appropriately compensated.Thus even on applying the tripod test, the balance of convenience to vacate the order of status-quo is in favour of the respondent No.4. | 1 | 1,615 | 736 | ### 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:
whether the petitioner has made out a case for continuation of the order of status-quo during the pendency of the Special Leave Petition. As noticed, the claim of the petitioner is that he was a tenant in cultivation of the property as on 01.03.1974. Such claim is sought to be justified by contending that his name is indicated in the cultivators Column of the RTC and that such tenancy was on crop sharing basis. The respondent No.4 who has filed the instant application has however disputed the claim. Though the respondent No.4 purchased the property on 26.04.1978 i.e. subsequent to the appointed date, the interest in the property as claimed by the respondent No.4 has been accepted by the High Court in Writ Petition No.30301/1982 through the order dated 23.09.1997 and the matter had been remanded to the Land Tribunal for fresh consideration after providing opportunity to the respondent No.4/applicant. 7. If that be the position, all that is to be taken note at this juncture is as to whether the claim of the petitioner that he was a tenant of the land in question is to be accepted as unassailable and whether the continuation of the status-quo as contended by the petitioner in special leave petition merits consideration. For the limited purpose, a perusal of the order dated 16.09.1998 passed by the Land Tribunal would prima facie disclose that a detailed consideration of the evidence and the analysis of rival contentions has been made. It is in that light the application in Form No.7 has been rejected. The contention of Mr. S.N. Bhat, learned counsel is that the RTC extracts indicates the name of the petitioner as a cultivator in Column No.12(2) thereof. We notice that the Land Tribunal in fact has referred to this aspect in detail and has noted that the RTC extracts from 1971-72 to 1977-78 indicates the name of the respondent No.3 i.e. that the predecessor in title to respondent No.4 as a cultivator. The Tribunal has also referred to certain stray entries in the name of the petitioner in the year 1974-75 and 1975-76 in the cultivators column. In that light the Tribunal has proceeded further to consider the other evidence available on record and has arrived at the conclusion that the said entries are not supported by any other evidence, more particularly the petitioner had not produced any documentary evidence for having given Rs.3000/- to the respondent No.3, being 50 per cent of the value of Eucalyptus trees which was claimed to be sold by him for Rs.6000/- to establish the claim of tenancy being on crop sharing basis. Further no other document was produced to indicate that there was an arrangement on crop sharing basis. Such conclusion reached by the Land Tribunal has been concurrently upheld by the learned Single Judge of the High Court in W.P. No.30602/1998 by the order dated 14.10.1998 and by the Division Bench in Writ Appeal No.1818/2008(LR) through the order dated 03.12.2015. The Review Petition filed against the same in Review Petition No.28/2017 was also dismissed on 21.06.2017. 8. No doubt Mr. S.N.Bhat, learned counsel sought to contend that the petitioner had the benefit of the order of status-quo during the pendency of the proceedings before the High Court and as such the same benefit be continued. Even if that be the position; as rightly pointed out by Mr. Sajan Poovayya, learned senior counsel, the Writ Appeal filed by the petitioner herein in Writ Appeal No.1818/2008(LR) was dismissed as early as on 03.12.2015 and the interim order if any had ceased to exist. The instant Special Leave Petition was filed only in the year 2017 with a delay of 546 days. True it is that the Review Petition had been filed in the meanwhile. However, the said Review Petition itself was filed with a delay of 380 days from the date of disposal of the Writ Appeal and in any event the petitioner herein cannot claim benefit of an interim order from the date of disposal of the Writ Appeal on 03.12.2015. In such event, though this Court has condoned the delay, the grant of an order of status-quo at that juncture was without reference to all these aspects. 9. That apart, the petitioner had also filed a Civil Suit in O.S. No.333/2017 in the Court of the Principal Civil Judge, Bengaluru Rural District seeking for decree of permanent injunction. In the suit an application seeking temporary injunction was also filed but no interim order had been granted therein. This conduct of the petitioners would also disclose that the petitioners having not agitated the matter after disposal of the Writ Appeal on 03.12.2015 had begun to reagitate the matter only when the respondent No.4 was taking steps to develop the property. In that regard, the documents produced by respondent No.4 in its reply statement along with an application would disclose that the respondent No.4 having entered into a Joint Development Agreement dated 27.06.2016 (Annexure A2); the developer was taking further steps for securing Environment Impact Assessment Certificate and appropriate registration before the Real Estate Regulatory Authority. The said proceedings would also indicate that the property at this point has lost its character as agricultural property. If that be the position, the petitioner continuing to cultivate the property or being in possession thereof cannot be accepted at this juncture to continue the order of status-quo. Be that as it may, even if on assessment of the entire case while considering the Special Leave Petition on merits if the right claimed to be a tenant as on 01.03.1974 is accepted, the interest of the petitioner would lie in the developed property and can be appropriately compensated. Thus even on applying the tripod test, the balance of convenience to vacate the order of status-quo is in favour of the respondent No.4. Needless to mention that the change in the nature of the land and the development made therein would therefore remain subject to the result of the Special Leave Petition.
### Response:
1
### Explanation:
Though the respondent No.4 purchased the property on 26.04.1978 i.e. subsequent to the appointed date, the interest in the property as claimed by the respondent No.4 has been accepted by the High Court in Writ Petition No.30301/1982 through the order dated 23.09.1997 and the matter had been remanded to the Land Tribunal for fresh consideration after providing opportunity to the respondent No.4/applicant.For the limited purpose, a perusal of the order dated 16.09.1998 passed by the Land Tribunal would prima facie disclose that a detailed consideration of the evidence and the analysis of rival contentions has been made. It is in that light the application in Form No.7 has been rejected.We notice that the Land Tribunal in fact has referred to this aspect in detail and has noted that the RTC extracts from 1971-72 to 1977-78 indicates the name of the respondent No.3 i.e. that the predecessor in title to respondent No.4 as a cultivator. The Tribunal has also referred to certain stray entries in the name of the petitioner in the year 1974-75 and 1975-76 in the cultivators column. In that light the Tribunal has proceeded further to consider the other evidence available on record and has arrived at the conclusion that the said entries are not supported by any other evidence, more particularly the petitioner had not produced any documentary evidence for having given Rs.3000/- to the respondent No.3, being 50 per cent of the value of Eucalyptus trees which was claimed to be sold by him for Rs.6000/- to establish the claim of tenancy being on crop sharing basis. Further no other document was produced to indicate that there was an arrangement on crop sharing basis. Such conclusion reached by the Land Tribunal has been concurrently upheld by the learned Single Judge of the High Court in W.P. No.30602/1998 by the order dated 14.10.1998 and by the Division Bench in Writ Appeal No.1818/2008(LR) through the order dated 03.12.2015. The Review Petition filed against the same in Review Petition No.28/2017 was also dismissed on 21.06.2017.True it is that the Review Petition had been filed in the meanwhile. However, the said Review Petition itself was filed with a delay of 380 days from the date of disposal of the Writ Appeal and in any event the petitioner herein cannot claim benefit of an interim order from the date of disposal of the Writ Appeal on 03.12.2015. In such event, though this Court has condoned the delay, the grant of an order of status-quo at that juncture was without reference to all these aspects.9. That apart, the petitioner had also filed a Civil Suit in O.S. No.333/2017 in the Court of the Principal Civil Judge, Bengaluru Rural District seeking for decree of permanent injunction. In the suit an application seeking temporary injunction was also filed but no interim order had been granted therein. This conduct of the petitioners would also disclose that the petitioners having not agitated the matter after disposal of the Writ Appeal on 03.12.2015 had begun to reagitate the matter only when the respondent No.4 was taking steps to develop the property. In that regard, the documents produced by respondent No.4 in its reply statement along with an application would disclose that the respondent No.4 having entered into a Joint Development Agreement dated 27.06.2016 (Annexure A2); the developer was taking further steps for securing Environment Impact Assessment Certificate and appropriate registration before the Real Estate Regulatory Authority. The said proceedings would also indicate that the property at this point has lost its character as agricultural property. If that be the position, the petitioner continuing to cultivate the property or being in possession thereof cannot be accepted at this juncture to continue the order of status-quo. Be that as it may, even if on assessment of the entire case while considering the Special Leave Petition on merits if the right claimed to be a tenant as on 01.03.1974 is accepted, the interest of the petitioner would lie in the developed property and can be appropriately compensated.Thus even on applying the tripod test, the balance of convenience to vacate the order of status-quo is in favour of the respondent No.4.
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Shri Digvijay Woollen Mills Ltd. Etc Vs. Mahendra Prataprai Buch Etc | Digvijay Woollen Mills Limited-appellant v. Shri Mahendra Prataprai Buch-respondent) the respondent ceased to be an employee on attaining the age of superannuation after completing 19 years of service. The appellant company calculated the amount of gratuity payable to him on the basis that fifteen days wages was half of the monthly wages last drawn by him. The respondent demanded an additional sum as gratuity on the ground that his monthly wages should be taken as what he got for 26 working days, his daily wages should be ascertained on that basis and his fifteen days wages worked out accordingly, not by just taking half of his wages for a month of 30 days or fixing his daily wages by dividing his monthly wages by 30. The Controlling Authority under the Act accepted the respondents contention and his decision was affirmed by the appellate authority. A division bench of the High Court of Gujarat at Ahmedabad summarily dismissed the petition under Article 227 of the Constitution made by the appellant company challenging the decision of the authorities under the Act. The learned Judges however gave reasons in support of the order made. The appeal before us is by special leave.3. In Civil Appeal 480 of 1977 (The Maharana Mills Limited-appellant v. Shri Gopal Das Ladhabhai Kakkad respondent) the respondent resigned his job after a little over 22 years of service. The appellant company paid hi m gratuity calculating his daily wages by dividing his monthly wages by 30 and computing fifteen days wages on that basis. Here also the respondent claimed an additional sum as gratuity and the basis of the claim was the same as in the other appeal. The Controlling Authority accepted the respondents contention and the appellate authority affirmed his decision following the view taken by the Gujarat High Court in the other case. In this case also the Gujarat High Court summarily rejected the petition made by the appellant company challenging the decision of the authorities under the Act. This appeal however is brought on a certificate granted by the High Court.4. In dismissing the petition in Digvijay Woollen Mills case the division bench of the Gujarat High Court observed as follows:"The employee is to be paid gratuity for every completed year of service and the only yardstick provided is that the rate of wages last drawn by an employee concerned shall be utilised and on that basis at the rate of fifteen days wages for each year of service, the gratuity would be computed. In any factory it is well known that an employee never works and could never be permitted to work for all the 30 days of the month. He gets 52 Sundays in a year as paid holidays and, therefore, the basic wages and dearness allowance are always fixed by taking into consideration this economic reality........A worker gets full months wages not by remaining on duty for all the 30 days within a month but by remaining on work and doing duty for only 26 days. The other extra holidays may make some marginal variation into 26 working days, but all wage boards and wage fixing authorities or Tribunals in the country have always followed this pattern of fixation of wages by this method of 26 working days."5. The view expressed in the extract quoted above appears to be legitimate and reasonable. Ordinarily of course a month is understood to mean 30 days, but the manner of calculating gratuity payable under the Act to the employees who work for 26 days a month followed by the Gujarat High Court cannot be called perverse. It is not necessary to consider whether another view is possible. The High Court summarily dismissed the petition of the appellant in both the appeals before us and upheld the decision of the authorities under the Act. We are not inclined to interfere with the decision of the High Court because it seems to us that the view taken by the authorities is not in any way unreasonable or perverse.6. Incidentally, to indicate that treating monthly wages as wages for 26 working days is not anything unique or unknown, we may refer to a passage from the judgment of this Court in Delhi Cloth and General Mills Company Ltd. v. Workmen and other etc.(1) which disposed of several appeals arising out of an award made by the Industrial Tribunal, Delhi. In the award schemes were framed relating to the payment of gratuity. The expression "average of the basic wage" occurring in the schemes was explained by this Court as follows:"It was also urged by Mr. Ramamurthi that the expression "average of the basic wage" in the definition of "wages" in Cl. 4 of the Schemes is likely to create complications in the implementation of the Schemes. He urged that if the wages earned by a workman during a month are divided by the total number of working days, the expression "wages" will have an artificial meaning and especially where the workman is old or disabled or incapacitated from rendering service, gratuity payable to him will be substantially reduced. We do not think that there is any cause for such apprehension. The expression "average of the basic wage" can only mean the wage earned by a workman during a month divided by the number of days for which he has worked and multiplied by 26 in order to arrive at the monthly wage for the computation of gratuity payable. Counsel for the employers agree to this interpretation. "In the view we take we do not find it necessary to consider the decisions of some of the High Courts cited at the bar taking one view or the other on the question involved in these appeals; also, the decisions based on some provisions of the Minimum Wages Act and other statutes which were relied on by either side are in our opinion not relevant on the question of computation of fifteen days wages under section 4(2) of the Payment of Gratuity Act.7. | 0[ds]The view expressed in the extract quoted above appears to be legitimate and reasonable. Ordinarily of course a month is understood to mean 30 days, but the manner of calculating gratuity payable under the Act to the employees who work for 26 days a month followed by the Gujarat High Court cannot be called perverse. It is not necessary to consider whether another view is possible. The High Court summarily dismissed the petition of the appellant in both the appeals before us and upheld the decision of the authorities under the Act. We are not inclined to interfere with the decision of the High Court because it seems to us that the view taken by the authorities is not in any way unreasonable or perverse.Incidentally, to indicate that treating monthly wages as wages for 26 working days is not anything unique or unknown, we may refer to a passage from the judgment of this Court in Delhi Cloth and General Mills Company Ltd. v. Workmen and other etc.(1) which disposed of several appeals arising out of an award made by the Industrial Tribunal, Delhi. In the award schemes were framed relating to the payment ofthe view we take we do not find it necessary to consider the decisions of some of the High Courts cited at the bar taking one view or the other on the question involved in these appeals; also, the decisions based on some provisions of the Minimum Wages Act and other statutes which were relied on by either side are in our opinion not relevant on the question of computation of fifteen days wages under section 4(2) of the Payment of Gratuity Act. | 0 | 1,401 | 301 | ### 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:
Digvijay Woollen Mills Limited-appellant v. Shri Mahendra Prataprai Buch-respondent) the respondent ceased to be an employee on attaining the age of superannuation after completing 19 years of service. The appellant company calculated the amount of gratuity payable to him on the basis that fifteen days wages was half of the monthly wages last drawn by him. The respondent demanded an additional sum as gratuity on the ground that his monthly wages should be taken as what he got for 26 working days, his daily wages should be ascertained on that basis and his fifteen days wages worked out accordingly, not by just taking half of his wages for a month of 30 days or fixing his daily wages by dividing his monthly wages by 30. The Controlling Authority under the Act accepted the respondents contention and his decision was affirmed by the appellate authority. A division bench of the High Court of Gujarat at Ahmedabad summarily dismissed the petition under Article 227 of the Constitution made by the appellant company challenging the decision of the authorities under the Act. The learned Judges however gave reasons in support of the order made. The appeal before us is by special leave.3. In Civil Appeal 480 of 1977 (The Maharana Mills Limited-appellant v. Shri Gopal Das Ladhabhai Kakkad respondent) the respondent resigned his job after a little over 22 years of service. The appellant company paid hi m gratuity calculating his daily wages by dividing his monthly wages by 30 and computing fifteen days wages on that basis. Here also the respondent claimed an additional sum as gratuity and the basis of the claim was the same as in the other appeal. The Controlling Authority accepted the respondents contention and the appellate authority affirmed his decision following the view taken by the Gujarat High Court in the other case. In this case also the Gujarat High Court summarily rejected the petition made by the appellant company challenging the decision of the authorities under the Act. This appeal however is brought on a certificate granted by the High Court.4. In dismissing the petition in Digvijay Woollen Mills case the division bench of the Gujarat High Court observed as follows:"The employee is to be paid gratuity for every completed year of service and the only yardstick provided is that the rate of wages last drawn by an employee concerned shall be utilised and on that basis at the rate of fifteen days wages for each year of service, the gratuity would be computed. In any factory it is well known that an employee never works and could never be permitted to work for all the 30 days of the month. He gets 52 Sundays in a year as paid holidays and, therefore, the basic wages and dearness allowance are always fixed by taking into consideration this economic reality........A worker gets full months wages not by remaining on duty for all the 30 days within a month but by remaining on work and doing duty for only 26 days. The other extra holidays may make some marginal variation into 26 working days, but all wage boards and wage fixing authorities or Tribunals in the country have always followed this pattern of fixation of wages by this method of 26 working days."5. The view expressed in the extract quoted above appears to be legitimate and reasonable. Ordinarily of course a month is understood to mean 30 days, but the manner of calculating gratuity payable under the Act to the employees who work for 26 days a month followed by the Gujarat High Court cannot be called perverse. It is not necessary to consider whether another view is possible. The High Court summarily dismissed the petition of the appellant in both the appeals before us and upheld the decision of the authorities under the Act. We are not inclined to interfere with the decision of the High Court because it seems to us that the view taken by the authorities is not in any way unreasonable or perverse.6. Incidentally, to indicate that treating monthly wages as wages for 26 working days is not anything unique or unknown, we may refer to a passage from the judgment of this Court in Delhi Cloth and General Mills Company Ltd. v. Workmen and other etc.(1) which disposed of several appeals arising out of an award made by the Industrial Tribunal, Delhi. In the award schemes were framed relating to the payment of gratuity. The expression "average of the basic wage" occurring in the schemes was explained by this Court as follows:"It was also urged by Mr. Ramamurthi that the expression "average of the basic wage" in the definition of "wages" in Cl. 4 of the Schemes is likely to create complications in the implementation of the Schemes. He urged that if the wages earned by a workman during a month are divided by the total number of working days, the expression "wages" will have an artificial meaning and especially where the workman is old or disabled or incapacitated from rendering service, gratuity payable to him will be substantially reduced. We do not think that there is any cause for such apprehension. The expression "average of the basic wage" can only mean the wage earned by a workman during a month divided by the number of days for which he has worked and multiplied by 26 in order to arrive at the monthly wage for the computation of gratuity payable. Counsel for the employers agree to this interpretation. "In the view we take we do not find it necessary to consider the decisions of some of the High Courts cited at the bar taking one view or the other on the question involved in these appeals; also, the decisions based on some provisions of the Minimum Wages Act and other statutes which were relied on by either side are in our opinion not relevant on the question of computation of fifteen days wages under section 4(2) of the Payment of Gratuity Act.7.
### Response:
0
### Explanation:
The view expressed in the extract quoted above appears to be legitimate and reasonable. Ordinarily of course a month is understood to mean 30 days, but the manner of calculating gratuity payable under the Act to the employees who work for 26 days a month followed by the Gujarat High Court cannot be called perverse. It is not necessary to consider whether another view is possible. The High Court summarily dismissed the petition of the appellant in both the appeals before us and upheld the decision of the authorities under the Act. We are not inclined to interfere with the decision of the High Court because it seems to us that the view taken by the authorities is not in any way unreasonable or perverse.Incidentally, to indicate that treating monthly wages as wages for 26 working days is not anything unique or unknown, we may refer to a passage from the judgment of this Court in Delhi Cloth and General Mills Company Ltd. v. Workmen and other etc.(1) which disposed of several appeals arising out of an award made by the Industrial Tribunal, Delhi. In the award schemes were framed relating to the payment ofthe view we take we do not find it necessary to consider the decisions of some of the High Courts cited at the bar taking one view or the other on the question involved in these appeals; also, the decisions based on some provisions of the Minimum Wages Act and other statutes which were relied on by either side are in our opinion not relevant on the question of computation of fifteen days wages under section 4(2) of the Payment of Gratuity Act.
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UNIVERSITY OF DELHI Vs. DELHI UNIVERSITY CONTRACT EMPLOYEES UNION & ORS | follows: (SCC pp. 250-51, paras 9-11) 9. The term one-time measure has to be under- stood in its proper perspective. This would nor- mally mean that after the decision in Umadevi (2006) 4 SCC 1 , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services. 10. At the end of six months from the date of de- cision in Umadevi (2006) 4 SCC 1 , cases of several daily- wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one- time regularisation process. On the other hand, some government departments or instrumentali- ties undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (2006) 4 SCC 1 , will not lose their right to be considered for regu- larisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (2006) 4 SCC 1 has expired. The one-time exer- cise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the pro- tection of any interim orders of courts or tri- bunals. If any employer had held the one-time ex- ercise in terms of para 53 of Umadevi (2006) 4 SCC 1 , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (2006) 4 SCC 1 , the employer concerned should con- sider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (2006) 4 SCC 1 , are so considered. 11. The object behind the said direction in para 53 of Umadevi (2006) 4 SCC 1 is twofold. First is to ensure that those who have put in more than ten years of con- tinuous service without the protection of any in- terim orders of courts or tribunals, before the date of decision in Umadevi (2006) 4 SCC 1 was rendered, are con- sidered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appoint- ment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (2006) 4 SCC 1 without the protection of any in- terim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (2006) 4 SCC 1 or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be con- sidered for regularisation in terms of the above directions in Umadevi (2006) 4 SCC 1 as a one-time measure. 7. The purpose and intent of the decision in Umadevi (2006) 4 SCC 1 was therefore twofold, namely, to prevent irregular or ille- gal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (2006) 4 SCC 1 is a clear indication that it believes that it was all right to continue with irregular appoint- ments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (2006) 4 SCC 1 and Kesari (2010) 9 SCC 247 [Paras 7 & 8], sought to avoid. 10. The decision in Narendra Kumar Tiwari (2018) 8 SCC 238 has to be understood in the backdrop of the facts of that case. 11. The contract employees in the present case cannot, therefore, claim the relief of regularization in terms of paragraph 53 of the decision in Umadevi (2006) 4 SCC 1. The rejection of their petition by the single Judge of the High Court was quite correct and there was no occasion for the Division Bench to interfere in the matter. 12. It is true that, as on the day when the judgment in Umadevi (2006) 4 SCC 1 was delivered by this Court, the contract employees had put in just about 3 to 4 years of service. But, as of now, most of them have completed more than 10 years of service on contract basis. Though the benefit of regularization cannot be granted, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University, on the other hand, will give them adequate chance and benefit to appear in the ensuing selection. | 1[ds]7. The decision of the Constitution Bench of this Court in Umadevi (2006) 4 SCC 1 was pronounced on 10.04.2006 by which time, the earliest contract employees had put in only 3-4 years of service and most of the contract employees were engaged after the decision in Umadevi (2006) 4 SCC 1. In paragraphs 47, 49 and 53 of the decision in Umadevi (2006) 4 SCC 1 , this Court stated:-47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.… … …49. It is contended that the State action in not regularising the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.… … …53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa AIR 1967 SC 1071 , R.N. Nanjundappa (1972) 1 SCC 409 and B.N. Nagarajan (1979) 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.9. All the decisions relied upon by Mr. Colin Gonsalves, learned Senior Advocate were by Benches of two Judges of this Court and in each of those cases, the concerned employees had put in more than 10 years of service and could claim benefit in terms of paragraph 53 of the decision in Umadevi (2006) 4 SCC 1. In the last of those decisions i.e. in Narendra Kumar Tiwari (2018) 8 SCC 238 , the submission was that the employees had not put in more than 10 years of service with the newly created State of Jharkhand and, therefore, there was no entitlement in terms of the decision in Umadevi (2006) 4 SCC 1. Relying on the concept of one-time measure elaborated in M.L. Kesari (2010) 9 SCC 247 [Paras 7 & 8], it was observed:-3. The appellants had contended before the High Court that the State of Jharkhand was created only on 15-11-2000 and therefore no one could have completed 10 years of ser- vice with the State of Jharkhand on the cut-off date of 10- 4-2006. Therefore, no one could get the benefit of the Reg- ularisation Rules which made the entire legislative exercise totally meaningless. The appellants had pointed out in the High Court that the State had issued Resolutions on 18-7- 2009 and 19-7-2009 permitting the regularisation of some employees of the State, who had obviously not put in 10 years of service with the State. Consequently, it was sub- mitted that the appellants were discriminated against for no fault of theirs and in an irrational manner.… … …6. The concept of a one-time measure was further ex- plained in Kesari (2010) 9 SCC 247 [Paras 7 & 8] in paras 9, 10 and 11 of the Report which read as follows: (SCC pp. 250-51, paras 9-11)9. The term one-time measure has to be under- stood in its proper perspective. This would nor- mally mean that after the decision in Umadevi (2006) 4 SCC 1 , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.10. At the end of six months from the date of de- cision in Umadevi (2006) 4 SCC 1 , cases of several daily- wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one- time regularisation process. On the other hand, some government departments or instrumentali- ties undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (2006) 4 SCC 1 , will not lose their right to be considered for regu- larisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (2006) 4 SCC 1 has expired. The one-time exer- cise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the pro- tection of any interim orders of courts or tri- bunals. If any employer had held the one-time ex- ercise in terms of para 53 of Umadevi (2006) 4 SCC 1 , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (2006) 4 SCC 1 , the employer concerned should con- sider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (2006) 4 SCC 1 , are so considered.11. The object behind the said direction in para 53 of Umadevi (2006) 4 SCC 1 is twofold. First is to ensure that those who have put in more than ten years of con- tinuous service without the protection of any in- terim orders of courts or tribunals, before the date of decision in Umadevi (2006) 4 SCC 1 was rendered, are con- sidered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appoint- ment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (2006) 4 SCC 1 without the protection of any in- terim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (2006) 4 SCC 1 or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be con- sidered for regularisation in terms of the above directions in Umadevi (2006) 4 SCC 1 as a one-time measure.7. The purpose and intent of the decision in Umadevi (2006) 4 SCC 1 was therefore twofold, namely, to prevent irregular or ille- gal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (2006) 4 SCC 1 is a clear indication that it believes that it was all right to continue with irregular appoint- ments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (2006) 4 SCC 1 and Kesari (2010) 9 SCC 247 [Paras 7 & 8], sought to avoid.10. The decision in Narendra Kumar Tiwari (2018) 8 SCC 238 has to be understood in the backdrop of the facts of that case.11. The contract employees in the present case cannot, therefore, claim the relief of regularization in terms of paragraph 53 of the decision in Umadevi (2006) 4 SCC 1. The rejection of their petition by the single Judge of the High Court was quite correct and there was no occasion for the Division Bench to interfere in the matter.12. It is true that, as on the day when the judgment in Umadevi (2006) 4 SCC 1 was delivered by this Court, the contract employees had put in just about 3 to 4 years of service. But, as of now, most of them have completed more than 10 years of service on contract basis. Though the benefit of regularization cannot be granted, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University, on the other hand, will give them adequate chance and benefit to appear in the ensuing selection. | 1 | 6,137 | 2,247 | ### 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:
follows: (SCC pp. 250-51, paras 9-11) 9. The term one-time measure has to be under- stood in its proper perspective. This would nor- mally mean that after the decision in Umadevi (2006) 4 SCC 1 , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services. 10. At the end of six months from the date of de- cision in Umadevi (2006) 4 SCC 1 , cases of several daily- wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one- time regularisation process. On the other hand, some government departments or instrumentali- ties undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (2006) 4 SCC 1 , will not lose their right to be considered for regu- larisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (2006) 4 SCC 1 has expired. The one-time exer- cise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the pro- tection of any interim orders of courts or tri- bunals. If any employer had held the one-time ex- ercise in terms of para 53 of Umadevi (2006) 4 SCC 1 , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (2006) 4 SCC 1 , the employer concerned should con- sider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (2006) 4 SCC 1 , are so considered. 11. The object behind the said direction in para 53 of Umadevi (2006) 4 SCC 1 is twofold. First is to ensure that those who have put in more than ten years of con- tinuous service without the protection of any in- terim orders of courts or tribunals, before the date of decision in Umadevi (2006) 4 SCC 1 was rendered, are con- sidered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appoint- ment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (2006) 4 SCC 1 without the protection of any in- terim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (2006) 4 SCC 1 or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be con- sidered for regularisation in terms of the above directions in Umadevi (2006) 4 SCC 1 as a one-time measure. 7. The purpose and intent of the decision in Umadevi (2006) 4 SCC 1 was therefore twofold, namely, to prevent irregular or ille- gal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (2006) 4 SCC 1 is a clear indication that it believes that it was all right to continue with irregular appoint- ments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (2006) 4 SCC 1 and Kesari (2010) 9 SCC 247 [Paras 7 & 8], sought to avoid. 10. The decision in Narendra Kumar Tiwari (2018) 8 SCC 238 has to be understood in the backdrop of the facts of that case. 11. The contract employees in the present case cannot, therefore, claim the relief of regularization in terms of paragraph 53 of the decision in Umadevi (2006) 4 SCC 1. The rejection of their petition by the single Judge of the High Court was quite correct and there was no occasion for the Division Bench to interfere in the matter. 12. It is true that, as on the day when the judgment in Umadevi (2006) 4 SCC 1 was delivered by this Court, the contract employees had put in just about 3 to 4 years of service. But, as of now, most of them have completed more than 10 years of service on contract basis. Though the benefit of regularization cannot be granted, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University, on the other hand, will give them adequate chance and benefit to appear in the ensuing selection.
### Response:
1
### Explanation:
(SCC pp. 250-51, paras 9-11)9. The term one-time measure has to be under- stood in its proper perspective. This would nor- mally mean that after the decision in Umadevi (2006) 4 SCC 1 , each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.10. At the end of six months from the date of de- cision in Umadevi (2006) 4 SCC 1 , cases of several daily- wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one- time regularisation process. On the other hand, some government departments or instrumentali- ties undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (2006) 4 SCC 1 , will not lose their right to be considered for regu- larisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi (2006) 4 SCC 1 has expired. The one-time exer- cise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the pro- tection of any interim orders of courts or tri- bunals. If any employer had held the one-time ex- ercise in terms of para 53 of Umadevi (2006) 4 SCC 1 , but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (2006) 4 SCC 1 , the employer concerned should con- sider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (2006) 4 SCC 1 , are so considered.11. The object behind the said direction in para 53 of Umadevi (2006) 4 SCC 1 is twofold. First is to ensure that those who have put in more than ten years of con- tinuous service without the protection of any in- terim orders of courts or tribunals, before the date of decision in Umadevi (2006) 4 SCC 1 was rendered, are con- sidered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appoint- ment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (2006) 4 SCC 1 without the protection of any in- terim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (2006) 4 SCC 1 or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be con- sidered for regularisation in terms of the above directions in Umadevi (2006) 4 SCC 1 as a one-time measure.7. The purpose and intent of the decision in Umadevi (2006) 4 SCC 1 was therefore twofold, namely, to prevent irregular or ille- gal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (2006) 4 SCC 1 is a clear indication that it believes that it was all right to continue with irregular appoint- ments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (2006) 4 SCC 1 and Kesari (2010) 9 SCC 247 [Paras 7 & 8], sought to avoid.10. The decision in Narendra Kumar Tiwari (2018) 8 SCC 238 has to be understood in the backdrop of the facts of that case.11. The contract employees in the present case cannot, therefore, claim the relief of regularization in terms of paragraph 53 of the decision in Umadevi (2006) 4 SCC 1. The rejection of their petition by the single Judge of the High Court was quite correct and there was no occasion for the Division Bench to interfere in the matter.12. It is true that, as on the day when the judgment in Umadevi (2006) 4 SCC 1 was delivered by this Court, the contract employees had put in just about 3 to 4 years of service. But, as of now, most of them have completed more than 10 years of service on contract basis. Though the benefit of regularization cannot be granted, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University, on the other hand, will give them adequate chance and benefit to appear in the ensuing selection.
|
Mahadeo Vs. Babu Udai Pratap Singh And Others | us by Mr. Bishan Singh for respondent No. 1 that evidence on the record shows that Udai Bhan Pratap Singh is, in fact, the name of the grandfather of respondent No.1, and he attempted to argue that the printing of Udai Bhan Pratap Singhs name on the ballot papers may have given a wrong impression to the voters that it was the grandfather of respondent No. 1 who was standing for election and not respondent No. 1 himself. Such a plea has not been made by respondent No. 1 in his election petition and does not appeal to have been pressed either before the Election Tribunal or the High Court. Therefore, we do not propose to consider this plea.14. Nevertheless, it cannot be disputed that there has been a printing error in the matter of the name of respondent No. 1 on the ballot papers and that has introduced an infirmity in the ballot papers. It is common ground that R. 22 requires that the postal ballot paper shall be in such form, and the particulars therein shall be in such language or languages as the Election Commission may direct; and the form quite clearly imposes the obligation on the authorities concerned to print the name of the candidate correctly. But it is also clear that the symbol chosen by respondent No. 1 which was a lamp (Deepak) has been correctly shown against the misprinted name; and it would not be unreasonable to take into account the fact that a large majority of votes concentrate on the symbol chosen by the candidate rather than on his name. In fact, some of the evidence adduced in the present case itself shows that the voters looked at the symbols and put their votes. Mr. Gur Datta Singh who was the election agent of respondent No. 1 has given evidence in the present proceedings. He has frankly admitted that when he went to cast his vote, he was in a hurry, and so, he affixed the seal in the second column on the symbol of Deepak; he did not see the name written in that column. In fact, as we have already mentioned, as many as 10,985 voters voted for respondent No. 1. So, we think the irregularity on which respondent No. 1 strongly relies lose some of its significance and cannot be treated as anything more than a misdescription of his name. From such misdescription it would be wholly unreasonable to infer that the voters must have come to the conclusion that respondent No. 1 was not a candidate at the election at all. The High Court has rejected the case of respondent No. 1 in so far as he had alleged that his opponents has spread a rumour that he had withdrawn from the election; and yet, in a part of its judgment the High Court seems to have held that the result of the misprint was that from the point of view of the voters, respondent No. 1 had, in substance, been eliminated from the election. We are unable to agree with this conclusion.15. Then as to the design of the ballot paper, the High Court has reversed the finding of the Election Tribunal that the design of the ballot paper suffered from any irregularity. The Rule in respect of the design is R. 30. Clause (1) of this rule says that every ballot paper shall be in such form, and the particulars therein shall be in such language or languages as the Election Commission may direct. Then follow the other two clauses of this Rule which are not relevant. This Rule in terms deals with the form of the ballot paper and this fact has to be borne in mind in considering the applicability of R. 56 on which respondent No. 1 relies. Rule 56 (1) provides that the ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised. Sub-rule (2) then enumerates the cases in which the returning officer has to reject the ballot paper. One of these cases is specified in Cl. (g) of Sub-Rule (2); if the ballot paper bears a serial number, or is of a design, different from the serial numbers or, as the case may be, design, of the ballot papers authorised for use at the particular polling station, the ballot paper has to be rejected. The argument urged by respondent No. 1 before the Election Tribunal was that the misprint of the name constituted a serious irregularity in the form or design of the ballot paper, and that attracted the provisions of R. 56 (2) (g) of the Rules; and since, notwithstanding the contravention of R. 30, the ballot papers had not been rejected, that made the election invalid. We are unable to see either the logic or the reasonableness of this argument. The design to which R. 56 (2) (g) refers is the form, the pattern, or the outline of the ballot paper. The symbol chosen by respondent No. 1 was correctly shown on the ballot papers, though his name had been misprinted. On these facts, we are satisfied that the High Court was right in holding that R. 56 (2) (g) had not been contravened.16. Therefore, we are left with only one irregularity, and that has been introduced by the misprinting of the name of respondent No. 1 on the ballot papers; and this irregularity can legitimately be treated as falling under S. 100 (1) (d) (iv) of the Act. Misprinting of the name of respondent No. 1 on the ballot papers amounts to non-compliance with R. 22 of the Rules; but the proof of such non-compliance does not necessarily or automatically rendered the election of the appellant void. To make the said election void, respondent No. 1 has to prove the non-compliance in question, and its material effect on the election. This latter fact he has failed to prove, and so, his challenge to the validity of the appellants election cannot be sustained. | 1[ds]13. Let us now examine the character of the infirmity on which the election of the appellant has been declared void by the High Court as well as the Election Tribunal. We have already noticed that the ballot papers show the name of respondent No. 1 as Udai Bhan Pratap Singh, whereas it should have been shown as Udai Pratap Singh. It has been urged before us by Mr. Bishan Singh for respondent No. 1 that evidence on the record shows that Udai Bhan Pratap Singh is, in fact, the name of the grandfather of respondent No.1, and he attempted to argue that the printing of Udai Bhan Pratap Singhs name on the ballot papers may have given a wrong impression to the voters that it was the grandfather of respondent No. 1 who was standing for election and not respondent No. 1 himself. Such a plea has not been made by respondent No. 1 in his election petition and does not appeal to have been pressed either before the Election Tribunal or the High Court. Therefore, we do not propose to consider this plea.14. Nevertheless, it cannot be disputed that there has been a printing error in the matter of the name of respondent No. 1 on the ballot papers and that has introduced an infirmity in the ballot papers. It is common ground that R. 22 requires that the postal ballot paper shall be in such form, and the particulars therein shall be in such language or languages as the Election Commission may direct; and the form quite clearly imposes the obligation on the authorities concerned to print the name of the candidate correctly. But it is also clear that the symbol chosen by respondent No. 1 which was a lamp (Deepak) has been correctly shown against the misprinted name; and it would not be unreasonable to take into account the fact that a large majority of votes concentrate on the symbol chosen by the candidate rather than on his name. In fact, some of the evidence adduced in the present case itself shows that the voters looked at the symbols and put their votes. Mr. Gur Datta Singh who was the election agent of respondent No. 1 has given evidence in the present proceedings. He has frankly admitted that when he went to cast his vote, he was in a hurry, and so, he affixed the seal in the second column on the symbol of Deepak; he did not see the name written in that column. In fact, as we have already mentioned, as many as 10,985 voters voted for respondent No. 1. So, we think the irregularity on which respondent No. 1 strongly relies lose some of its significance and cannot be treated as anything more than a misdescription of his name. From such misdescription it would be wholly unreasonable to infer that the voters must have come to the conclusion that respondent No. 1 was not a candidate at the election at all. The High Court has rejected the case of respondent No. 1 in so far as he had alleged that his opponents has spread a rumour that he had withdrawn from the election; and yet, in a part of its judgment the High Court seems to have held that the result of the misprint was that from the point of view of the voters, respondent No. 1 had, in substance, been eliminated from the election. We are unable to agree with this conclusion.15. Then as to the design of the ballot paper, the High Court has reversed the finding of the Election Tribunal that the design of the ballot paper suffered from any irregularity. The Rule in respect of the design is R. 30. Clause (1) of this rule says that every ballot paper shall be in such form, and the particulars therein shall be in such language or languages as the Election Commission may direct. Then follow the other two clauses of this Rule which are not relevant. This Rule in terms deals with the form of the ballot paper and this fact has to be borne in mind in considering the applicability of R. 56 on which respondent No. 1 relies. Rule 56 (1) provides that the ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised. Sub-rule (2) then enumerates the cases in which the returning officer has to reject the ballot paper. One of these cases is specified in Cl. (g) of Sub-Rule (2); if the ballot paper bears a serial number, or is of a design, different from the serial numbers or, as the case may be, design, of the ballot papers authorised for use at the particular polling station, the ballot paper has to be rejected. The argument urged by respondent No. 1 before the Election Tribunal was that the misprint of the name constituted a serious irregularity in the form or design of the ballot paper, and that attracted the provisions of R. 56 (2) (g) of the Rules; and since, notwithstanding the contravention of R. 30, the ballot papers had not been rejected, that made the election invalid. We are unable to see either the logic or the reasonableness of this argument. The design to which R. 56 (2) (g) refers is the form, the pattern, or the outline of the ballot paper. The symbol chosen by respondent No. 1 was correctly shown on the ballot papers, though his name had been misprinted. On these facts, we are satisfied that the High Court was right in holding that R. 56 (2) (g) had not been contravened.16. Therefore, we are left with only one irregularity, and that has been introduced by the misprinting of the name of respondent No. 1 on the ballot papers; and this irregularity can legitimately be treated as falling under S. 100 (1) (d) (iv) of the Act. Misprinting of the name of respondent No. 1 on the ballot papers amounts to non-compliance with R. 22 of the Rules; but the proof of such non-compliance does not necessarily or automatically rendered the election of the appellant void. To make the said election void, respondent No. 1 has to prove the non-compliance in question, and its material effect on the election. This latter fact he has failed to prove, and so, his challenge to the validity of the appellants election cannot be sustained. | 1 | 3,920 | 1,205 | ### 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:
us by Mr. Bishan Singh for respondent No. 1 that evidence on the record shows that Udai Bhan Pratap Singh is, in fact, the name of the grandfather of respondent No.1, and he attempted to argue that the printing of Udai Bhan Pratap Singhs name on the ballot papers may have given a wrong impression to the voters that it was the grandfather of respondent No. 1 who was standing for election and not respondent No. 1 himself. Such a plea has not been made by respondent No. 1 in his election petition and does not appeal to have been pressed either before the Election Tribunal or the High Court. Therefore, we do not propose to consider this plea.14. Nevertheless, it cannot be disputed that there has been a printing error in the matter of the name of respondent No. 1 on the ballot papers and that has introduced an infirmity in the ballot papers. It is common ground that R. 22 requires that the postal ballot paper shall be in such form, and the particulars therein shall be in such language or languages as the Election Commission may direct; and the form quite clearly imposes the obligation on the authorities concerned to print the name of the candidate correctly. But it is also clear that the symbol chosen by respondent No. 1 which was a lamp (Deepak) has been correctly shown against the misprinted name; and it would not be unreasonable to take into account the fact that a large majority of votes concentrate on the symbol chosen by the candidate rather than on his name. In fact, some of the evidence adduced in the present case itself shows that the voters looked at the symbols and put their votes. Mr. Gur Datta Singh who was the election agent of respondent No. 1 has given evidence in the present proceedings. He has frankly admitted that when he went to cast his vote, he was in a hurry, and so, he affixed the seal in the second column on the symbol of Deepak; he did not see the name written in that column. In fact, as we have already mentioned, as many as 10,985 voters voted for respondent No. 1. So, we think the irregularity on which respondent No. 1 strongly relies lose some of its significance and cannot be treated as anything more than a misdescription of his name. From such misdescription it would be wholly unreasonable to infer that the voters must have come to the conclusion that respondent No. 1 was not a candidate at the election at all. The High Court has rejected the case of respondent No. 1 in so far as he had alleged that his opponents has spread a rumour that he had withdrawn from the election; and yet, in a part of its judgment the High Court seems to have held that the result of the misprint was that from the point of view of the voters, respondent No. 1 had, in substance, been eliminated from the election. We are unable to agree with this conclusion.15. Then as to the design of the ballot paper, the High Court has reversed the finding of the Election Tribunal that the design of the ballot paper suffered from any irregularity. The Rule in respect of the design is R. 30. Clause (1) of this rule says that every ballot paper shall be in such form, and the particulars therein shall be in such language or languages as the Election Commission may direct. Then follow the other two clauses of this Rule which are not relevant. This Rule in terms deals with the form of the ballot paper and this fact has to be borne in mind in considering the applicability of R. 56 on which respondent No. 1 relies. Rule 56 (1) provides that the ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised. Sub-rule (2) then enumerates the cases in which the returning officer has to reject the ballot paper. One of these cases is specified in Cl. (g) of Sub-Rule (2); if the ballot paper bears a serial number, or is of a design, different from the serial numbers or, as the case may be, design, of the ballot papers authorised for use at the particular polling station, the ballot paper has to be rejected. The argument urged by respondent No. 1 before the Election Tribunal was that the misprint of the name constituted a serious irregularity in the form or design of the ballot paper, and that attracted the provisions of R. 56 (2) (g) of the Rules; and since, notwithstanding the contravention of R. 30, the ballot papers had not been rejected, that made the election invalid. We are unable to see either the logic or the reasonableness of this argument. The design to which R. 56 (2) (g) refers is the form, the pattern, or the outline of the ballot paper. The symbol chosen by respondent No. 1 was correctly shown on the ballot papers, though his name had been misprinted. On these facts, we are satisfied that the High Court was right in holding that R. 56 (2) (g) had not been contravened.16. Therefore, we are left with only one irregularity, and that has been introduced by the misprinting of the name of respondent No. 1 on the ballot papers; and this irregularity can legitimately be treated as falling under S. 100 (1) (d) (iv) of the Act. Misprinting of the name of respondent No. 1 on the ballot papers amounts to non-compliance with R. 22 of the Rules; but the proof of such non-compliance does not necessarily or automatically rendered the election of the appellant void. To make the said election void, respondent No. 1 has to prove the non-compliance in question, and its material effect on the election. This latter fact he has failed to prove, and so, his challenge to the validity of the appellants election cannot be sustained.
### Response:
1
### Explanation:
us by Mr. Bishan Singh for respondent No. 1 that evidence on the record shows that Udai Bhan Pratap Singh is, in fact, the name of the grandfather of respondent No.1, and he attempted to argue that the printing of Udai Bhan Pratap Singhs name on the ballot papers may have given a wrong impression to the voters that it was the grandfather of respondent No. 1 who was standing for election and not respondent No. 1 himself. Such a plea has not been made by respondent No. 1 in his election petition and does not appeal to have been pressed either before the Election Tribunal or the High Court. Therefore, we do not propose to consider this plea.14. Nevertheless, it cannot be disputed that there has been a printing error in the matter of the name of respondent No. 1 on the ballot papers and that has introduced an infirmity in the ballot papers. It is common ground that R. 22 requires that the postal ballot paper shall be in such form, and the particulars therein shall be in such language or languages as the Election Commission may direct; and the form quite clearly imposes the obligation on the authorities concerned to print the name of the candidate correctly. But it is also clear that the symbol chosen by respondent No. 1 which was a lamp (Deepak) has been correctly shown against the misprinted name; and it would not be unreasonable to take into account the fact that a large majority of votes concentrate on the symbol chosen by the candidate rather than on his name. In fact, some of the evidence adduced in the present case itself shows that the voters looked at the symbols and put their votes. Mr. Gur Datta Singh who was the election agent of respondent No. 1 has given evidence in the present proceedings. He has frankly admitted that when he went to cast his vote, he was in a hurry, and so, he affixed the seal in the second column on the symbol of Deepak; he did not see the name written in that column. In fact, as we have already mentioned, as many as 10,985 voters voted for respondent No. 1. So, we think the irregularity on which respondent No. 1 strongly relies lose some of its significance and cannot be treated as anything more than a misdescription of his name. From such misdescription it would be wholly unreasonable to infer that the voters must have come to the conclusion that respondent No. 1 was not a candidate at the election at all. The High Court has rejected the case of respondent No. 1 in so far as he had alleged that his opponents has spread a rumour that he had withdrawn from the election; and yet, in a part of its judgment the High Court seems to have held that the result of the misprint was that from the point of view of the voters, respondent No. 1 had, in substance, been eliminated from the election. We are unable to agree with this conclusion.15. Then as to the design of the ballot paper, the High Court has reversed the finding of the Election Tribunal that the design of the ballot paper suffered from any irregularity. The Rule in respect of the design is R. 30. Clause (1) of this rule says that every ballot paper shall be in such form, and the particulars therein shall be in such language or languages as the Election Commission may direct. Then follow the other two clauses of this Rule which are not relevant. This Rule in terms deals with the form of the ballot paper and this fact has to be borne in mind in considering the applicability of R. 56 on which respondent No. 1 relies. Rule 56 (1) provides that the ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised. Sub-rule (2) then enumerates the cases in which the returning officer has to reject the ballot paper. One of these cases is specified in Cl. (g) of Sub-Rule (2); if the ballot paper bears a serial number, or is of a design, different from the serial numbers or, as the case may be, design, of the ballot papers authorised for use at the particular polling station, the ballot paper has to be rejected. The argument urged by respondent No. 1 before the Election Tribunal was that the misprint of the name constituted a serious irregularity in the form or design of the ballot paper, and that attracted the provisions of R. 56 (2) (g) of the Rules; and since, notwithstanding the contravention of R. 30, the ballot papers had not been rejected, that made the election invalid. We are unable to see either the logic or the reasonableness of this argument. The design to which R. 56 (2) (g) refers is the form, the pattern, or the outline of the ballot paper. The symbol chosen by respondent No. 1 was correctly shown on the ballot papers, though his name had been misprinted. On these facts, we are satisfied that the High Court was right in holding that R. 56 (2) (g) had not been contravened.16. Therefore, we are left with only one irregularity, and that has been introduced by the misprinting of the name of respondent No. 1 on the ballot papers; and this irregularity can legitimately be treated as falling under S. 100 (1) (d) (iv) of the Act. Misprinting of the name of respondent No. 1 on the ballot papers amounts to non-compliance with R. 22 of the Rules; but the proof of such non-compliance does not necessarily or automatically rendered the election of the appellant void. To make the said election void, respondent No. 1 has to prove the non-compliance in question, and its material effect on the election. This latter fact he has failed to prove, and so, his challenge to the validity of the appellants election cannot be sustained.
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