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Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors | either religious or the occult.43. Primitive man does practically nothing without making it wear a religious garb because his understanding of the physical world, of human nature, and of social needs and realities, is limited. He surrounds customary modes of action with an aura of superstitious reverence. He is fearful of departures from these lest he is visited by Divine wrath. Modern man, with his greater range of scientific knowledge and better understanding of his own needs as well as of the nature of the Universe, attempts to confine religion to its proper sphere that where he reaches a satisfying relationship between himself and the Divinity he believes in so as to get an inner strength and solace which enable him to overcome psychological crises or fears when confronted with disturbing or disrupting events, such as a Death, or their prospects. He does permit his religion, which should be essentially his individual affair, to invade what are properly the spheres of law, politics, ethics, aesthetics, economics, and technology, even where its administration is institutionalised and it operates as a social force.44. The Secular State, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds. Maitland had pointed out that such a State has to ensure, through its laws, that the existence or exercise of a political or Civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practise of any particular religion. Therefore, candidates at an election to a legislature, which is a part of "the State", cannot be allowed to tell electors that their rivals are unfit to act as their representatives on grounds of their religious professions or practices. To permit such propaganda would be not merely to permit undignified personal attacks on candidates concerned but also to allow assaults on what sustains the basic structure of our Democratic State.45. Our Constitution and the laws framed thereunder leave citizens free to work out happy and harmonious relationships between their religions and the quite separable secular fields of law and politics. But, they do not permit an injustifiable invasion at what belongs to one sphere by what appertains really to another. It is for Courts to determine, in a case of dispute, whether any sphere was or was not properly interfered with, in accordance with the Constitution, even by a purported law.The validity of Sections 123 (2), (3) and (3A) has not been questioned before us. And, we have explained above what these provisions are meant for.46. To retum to the precise question before us now, we may repeat that what is relevant in such a case is what is professed or put forward by a candidate as a ground for preferring him over another and not the motive or reality behind the profession which may or may not be very secular or mundane. It is the professed or ostensible ground that matters. If that ground is religion which is put on the same footing as race, caste, or language as an objectionable ground for seeking votes, it is not permissible. On the other hand if support is sought on a ground distinguishable from those falling in the prohibited categories, it will not be struck by Section 123 of the Act whatever else it may or may not offend. It is then left to the electorate to decide whether a permissible view is right or wrong.47. According to his own professions the appellant wanted votes for himself on the grounds that he staunchly adhered to what he believed to be Muslim religion as contrasted with Chagla who did not. There is no doubt whatsoever in our minds. that the High Court had rightly found the appellant guilty of the corrupt practices defined by the provisions of Sections 123 (2), 123 (3) an 123 (3A) of the Act by making the various speeches closely examined by us also.48. Lastly we have before us the order for costs made by the High Court in the following terms:"Having regard to the provisions of Section 99 of the Act and Rules 24 and 26 of the Rules framed by this Court under the Act, I order the first respondent to pay to the petitioner the sum of Rs. 12,000 /- for costs. I also order the first respondent to pay to the second respondent the sum of Rs. 3,000/- for costs. There will be no order in regard to costs of the other respondents as they have not filed written statements or appeared at the hearing".49. We think that, although Section 99 of the Act may permit the award of special costs in suitable cases, and, although, the appellant has been found guilty of corrupt practices of quite an offensive kind, yet, the order for costs appears to us to err on the side of severity. If the respondent Chagla is aggrieved in such a manner that he has grounds for some actionable claim against the appellant, he can, if so advised, take other steps which may be open to him under the law. An order for costs should not become a substitute for such other action with which we are not concerned here. Moreover, in the case before us, the petition itself was not filed by the 2nd respondent Chagla. In these circumstances, we do not think that there should have been an order for costs payable by the appellant to the second respondent Chagla. We therefore, set aside the order awarding Rs.. 3,000/- as costs to Chagla. We also reduce by half the costs awarded to the successful petitioner, that is to say, from Rs. 12,000/- to Rs. 6,000/-.We, however, think that the appellant must pay respondents 1 and 2 in this Court their costs occasioned by his appeal to this Court. | 0[ds]from the fact that the High Court dealing with this question had, in our opinion, rightly recorded the finding that the issue No. 2, framed on this objection, was specifically given up in its entirety by the learned Counsel for the appellant, so that he could not wriggle out of it by a vague reservation of some right to urge that the affidavit filed was not in proper form, we were not shown any defect of form at all in the affidavit filed. All that was urged is that the relevant affidavit does not give the sources of information so far as corrupt practices under Section 123 (3) and 123 (3A) are concerned. As was pointed out by this Court in Hardwari Lal v. Kanwal Singh, (1972) 2 SCR 742 = (AIR 1972 SC 515 ) this is not a defect of the required form but may, in suitable cases, form theof an objection based on Section 86 and S. 123 (7) of the Act relating to supply of material particulars. It was indicated by this Court in Prabhu Narayan v. A. K. Srivastava, C.A. No. 1174 of 1973, delivered on= (AIR 1975 SC 968 ) that a petition can only be dismissed for a substantial defect.Still another objection was that the Trial Court had erroneously allowed an amendment of the election petition by an order datedReliance was placed upon this Courts decision in Manubhai Nandlal v. Popatlal Manilal Joshi, (1969) 3 SCR 217 = (AIR 1969 SC 734 ) and Samant N. Balakrishna v. George Fernandes, (1969) 3 SCR 603 = (AIR 1969 SC 1201 ), to contend that the amendment asked for should not have been allowed. We have examined the application for amendments of the petition sought by the petitioner and allowed by the Court. We think that the amendments really removed vagueness from the petition by confining the allegations of corrupt practice to what the appellant Bukhari himself had said in his speeches. Attributions of those very statements to his agents, in the alternative, which introduced some ambiguity, were deleted. Another amendment sought was the insertion of names of persons said to have made certain other speeches. The High court had allowed the amendments on the ground that they did not amount to any allegation of a fresh corrupt practice. The question whether the speeches of certain persons other than the appellant were rightly permitted to become theof consideration by the amendment has lost all importance as the appellant has been held guilty of corrupt practices solely for speeches made by himself and we propose to deal with these only. We, therefore, find no force in the objections to the order allowing amendment of the election petition, which only clarified the petitionersare, however, unable to find, from material on record that the conduct at the trial by the learned trial Judge was unfair in any respect. Moreover we think that the only really material questions before the Court for decision, on which we have ourselves reexamined the whole evidence on record, were: Did the appellants speeches contain what was said to beand also sought to be proved by oral evidence supported by the notes of those who are alleged to have heard these speeches themselves? If this was so, was their effect upon the ordinary average voters of this country such as to come within the mischief provided for by any of the three heads of provisions of Section 123 of the Act set out above? These are questions capable of determination objectively irrespective of the subjective inclinations or opinions of the Judge deciding such issues although we cannot, and should not even try to, escape the consequences, upon any case before us, of our conclusions about the purposes and meanings of the relevant provisions of Section 123 of the Act, set out above, reached by applying relevant rules of interpretation of such provisions.In our opinion the High Court had rightly relied upon the tape recorded reproductions of the appellants speeches. It had given three grounds for considering the tape records to be reliable and authentic; firstly, the tape records had been prepared and preserved safely by an independent authority, the police, and not by a party to the case; secondly, the transcripts from the tape records, shown to have been duly prepared under independent supervision and control very soon afterwards, made subsequent tampering with the cassettes easy to detect; and, thirdly, the police had made the tape records as parts of its routine duties in relation to election speeches and not for the purpose of laying any trap to procure evidence.evidence.25. As regards the shorthand notes full shorthand transcripts made by those who heard the speeches, the High Court had treated these also as corroborative evidence which could be used by a witness to refresh his memory as laid down in Section 159 of the Evidence Act. It held that their contents could be brought on record by direct oral evidence in the manner prescribed by Section 160 of the Evidence Act, a course the propriety of which has the support of decisions in this Court in Laxminarayan v. Returning Officer, (1974) 3 SCC 425 = (AIR 1974 SC 66 ) and in Kanti Prasad Jayshanker v. Purshottamdas Ranchhoddas, (1969) 3 SCR 400 = (AIR 1969 SC 851 ). We find no errors in the views adopted by the High Court on these questions.We think that, although Section 99 of the Act may permit the award of special costs in suitable cases, and, although, the appellant has been found guilty of corrupt practices of quite an offensive kind, yet, the order for costs appears to us to err on the side of severity. If the respondent Chagla is aggrieved in such a manner that he has grounds for some actionable claim against the appellant, he can, if so advised, take other steps which may be open to him under the law. An order for costs should not become a substitute for such other action with which we are not concerned here. Moreover, in the case before us, the petition itself was not filed by the 2nd respondent Chagla. In these circumstances, we do not think that there should have been an order for costs payable by the appellant to the second respondent Chagla. We therefore, set aside the order awarding Rs.. 3,000/as costs to Chagla. We also reduce by half the costs awarded to the successful petitioner, that is to say, from Rs. 12,000/e, however, think that the appellant must pay respondents 1 and 2 in this Court their costs occasioned by his appeal to this Court. | 0 | 8,641 | 1,223 | ### Instruction:
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either religious or the occult.43. Primitive man does practically nothing without making it wear a religious garb because his understanding of the physical world, of human nature, and of social needs and realities, is limited. He surrounds customary modes of action with an aura of superstitious reverence. He is fearful of departures from these lest he is visited by Divine wrath. Modern man, with his greater range of scientific knowledge and better understanding of his own needs as well as of the nature of the Universe, attempts to confine religion to its proper sphere that where he reaches a satisfying relationship between himself and the Divinity he believes in so as to get an inner strength and solace which enable him to overcome psychological crises or fears when confronted with disturbing or disrupting events, such as a Death, or their prospects. He does permit his religion, which should be essentially his individual affair, to invade what are properly the spheres of law, politics, ethics, aesthetics, economics, and technology, even where its administration is institutionalised and it operates as a social force.44. The Secular State, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds. Maitland had pointed out that such a State has to ensure, through its laws, that the existence or exercise of a political or Civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practise of any particular religion. Therefore, candidates at an election to a legislature, which is a part of "the State", cannot be allowed to tell electors that their rivals are unfit to act as their representatives on grounds of their religious professions or practices. To permit such propaganda would be not merely to permit undignified personal attacks on candidates concerned but also to allow assaults on what sustains the basic structure of our Democratic State.45. Our Constitution and the laws framed thereunder leave citizens free to work out happy and harmonious relationships between their religions and the quite separable secular fields of law and politics. But, they do not permit an injustifiable invasion at what belongs to one sphere by what appertains really to another. It is for Courts to determine, in a case of dispute, whether any sphere was or was not properly interfered with, in accordance with the Constitution, even by a purported law.The validity of Sections 123 (2), (3) and (3A) has not been questioned before us. And, we have explained above what these provisions are meant for.46. To retum to the precise question before us now, we may repeat that what is relevant in such a case is what is professed or put forward by a candidate as a ground for preferring him over another and not the motive or reality behind the profession which may or may not be very secular or mundane. It is the professed or ostensible ground that matters. If that ground is religion which is put on the same footing as race, caste, or language as an objectionable ground for seeking votes, it is not permissible. On the other hand if support is sought on a ground distinguishable from those falling in the prohibited categories, it will not be struck by Section 123 of the Act whatever else it may or may not offend. It is then left to the electorate to decide whether a permissible view is right or wrong.47. According to his own professions the appellant wanted votes for himself on the grounds that he staunchly adhered to what he believed to be Muslim religion as contrasted with Chagla who did not. There is no doubt whatsoever in our minds. that the High Court had rightly found the appellant guilty of the corrupt practices defined by the provisions of Sections 123 (2), 123 (3) an 123 (3A) of the Act by making the various speeches closely examined by us also.48. Lastly we have before us the order for costs made by the High Court in the following terms:"Having regard to the provisions of Section 99 of the Act and Rules 24 and 26 of the Rules framed by this Court under the Act, I order the first respondent to pay to the petitioner the sum of Rs. 12,000 /- for costs. I also order the first respondent to pay to the second respondent the sum of Rs. 3,000/- for costs. There will be no order in regard to costs of the other respondents as they have not filed written statements or appeared at the hearing".49. We think that, although Section 99 of the Act may permit the award of special costs in suitable cases, and, although, the appellant has been found guilty of corrupt practices of quite an offensive kind, yet, the order for costs appears to us to err on the side of severity. If the respondent Chagla is aggrieved in such a manner that he has grounds for some actionable claim against the appellant, he can, if so advised, take other steps which may be open to him under the law. An order for costs should not become a substitute for such other action with which we are not concerned here. Moreover, in the case before us, the petition itself was not filed by the 2nd respondent Chagla. In these circumstances, we do not think that there should have been an order for costs payable by the appellant to the second respondent Chagla. We therefore, set aside the order awarding Rs.. 3,000/- as costs to Chagla. We also reduce by half the costs awarded to the successful petitioner, that is to say, from Rs. 12,000/- to Rs. 6,000/-.We, however, think that the appellant must pay respondents 1 and 2 in this Court their costs occasioned by his appeal to this Court.
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this Court in Hardwari Lal v. Kanwal Singh, (1972) 2 SCR 742 = (AIR 1972 SC 515 ) this is not a defect of the required form but may, in suitable cases, form theof an objection based on Section 86 and S. 123 (7) of the Act relating to supply of material particulars. It was indicated by this Court in Prabhu Narayan v. A. K. Srivastava, C.A. No. 1174 of 1973, delivered on= (AIR 1975 SC 968 ) that a petition can only be dismissed for a substantial defect.Still another objection was that the Trial Court had erroneously allowed an amendment of the election petition by an order datedReliance was placed upon this Courts decision in Manubhai Nandlal v. Popatlal Manilal Joshi, (1969) 3 SCR 217 = (AIR 1969 SC 734 ) and Samant N. Balakrishna v. George Fernandes, (1969) 3 SCR 603 = (AIR 1969 SC 1201 ), to contend that the amendment asked for should not have been allowed. We have examined the application for amendments of the petition sought by the petitioner and allowed by the Court. We think that the amendments really removed vagueness from the petition by confining the allegations of corrupt practice to what the appellant Bukhari himself had said in his speeches. Attributions of those very statements to his agents, in the alternative, which introduced some ambiguity, were deleted. Another amendment sought was the insertion of names of persons said to have made certain other speeches. The High court had allowed the amendments on the ground that they did not amount to any allegation of a fresh corrupt practice. The question whether the speeches of certain persons other than the appellant were rightly permitted to become theof consideration by the amendment has lost all importance as the appellant has been held guilty of corrupt practices solely for speeches made by himself and we propose to deal with these only. We, therefore, find no force in the objections to the order allowing amendment of the election petition, which only clarified the petitionersare, however, unable to find, from material on record that the conduct at the trial by the learned trial Judge was unfair in any respect. Moreover we think that the only really material questions before the Court for decision, on which we have ourselves reexamined the whole evidence on record, were: Did the appellants speeches contain what was said to beand also sought to be proved by oral evidence supported by the notes of those who are alleged to have heard these speeches themselves? If this was so, was their effect upon the ordinary average voters of this country such as to come within the mischief provided for by any of the three heads of provisions of Section 123 of the Act set out above? These are questions capable of determination objectively irrespective of the subjective inclinations or opinions of the Judge deciding such issues although we cannot, and should not even try to, escape the consequences, upon any case before us, of our conclusions about the purposes and meanings of the relevant provisions of Section 123 of the Act, set out above, reached by applying relevant rules of interpretation of such provisions.In our opinion the High Court had rightly relied upon the tape recorded reproductions of the appellants speeches. It had given three grounds for considering the tape records to be reliable and authentic; firstly, the tape records had been prepared and preserved safely by an independent authority, the police, and not by a party to the case; secondly, the transcripts from the tape records, shown to have been duly prepared under independent supervision and control very soon afterwards, made subsequent tampering with the cassettes easy to detect; and, thirdly, the police had made the tape records as parts of its routine duties in relation to election speeches and not for the purpose of laying any trap to procure evidence.evidence.25. As regards the shorthand notes full shorthand transcripts made by those who heard the speeches, the High Court had treated these also as corroborative evidence which could be used by a witness to refresh his memory as laid down in Section 159 of the Evidence Act. It held that their contents could be brought on record by direct oral evidence in the manner prescribed by Section 160 of the Evidence Act, a course the propriety of which has the support of decisions in this Court in Laxminarayan v. Returning Officer, (1974) 3 SCC 425 = (AIR 1974 SC 66 ) and in Kanti Prasad Jayshanker v. Purshottamdas Ranchhoddas, (1969) 3 SCR 400 = (AIR 1969 SC 851 ). We find no errors in the views adopted by the High Court on these questions.We think that, although Section 99 of the Act may permit the award of special costs in suitable cases, and, although, the appellant has been found guilty of corrupt practices of quite an offensive kind, yet, the order for costs appears to us to err on the side of severity. If the respondent Chagla is aggrieved in such a manner that he has grounds for some actionable claim against the appellant, he can, if so advised, take other steps which may be open to him under the law. An order for costs should not become a substitute for such other action with which we are not concerned here. Moreover, in the case before us, the petition itself was not filed by the 2nd respondent Chagla. In these circumstances, we do not think that there should have been an order for costs payable by the appellant to the second respondent Chagla. We therefore, set aside the order awarding Rs.. 3,000/as costs to Chagla. We also reduce by half the costs awarded to the successful petitioner, that is to say, from Rs. 12,000/e, however, think that the appellant must pay respondents 1 and 2 in this Court their costs occasioned by his appeal to this Court.
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M.M. Thomas and Ors Vs. Union of India (UOI) and Ors | the inclusion of their names in the rank list for promotion to the post of Enforcement Officer/Accounts Officer (for short, the EO/AO). The Tribunal further held that if the private party Respondents are otherwise eligible, the official Respondents are directed to take steps to consider their rank obtained in the examination and include their names in the appropriate place in the rank list for promotion to the post of EO/AO. The Tribunal also directed that the next available candidate in the rank list should be included in the rank list, according to the rank obtained by them.3. The facts of the case in nutshell are as follows:The Appellants were working as Social Security Assistants (SSAs) in the Karnataka/Tamil Nadu regions of the Employees Provident Fund Organisation (for short, the EPFO). They were transferred to Kerala region and kept at the bottom in the seniority list. The notification was issued to fill up the post of EO/AO in the Kerala region. Both the Appellants and the private party Respondents participated in the aforesaid examination. Subsequently, the rank list was published. The Appellants are at Serial No. 1, 2, 4 and 5 respectively in the rank list and the promotion list. It was contended by the private party Respondents that the inclusion of the names of the Appellants in these lists is arbitrary and illegal, because they were not eligible.4. The Rule that governs the eligibility of the Appellants reads as follows:5. The Appellants as also the private party Respondents passed the departmental competitive examination for the post of EO/AO.Apprehending that the Appellants will be promoted earlier, the private party Respondents approached the Tribunal by way of filing original applications. The Tribunal allowed the said applications and held that the Appellants herein were not treated as qualified for promotion i.e. eligible on the ground that they had not put in five years service in the Kerala region of EPFO, having relied on the words in the above quoted Rule which requires five years regular service "in the respective regions".6. Being aggrieved, the Appellants filed original petitions before the High Court which were also dismissed. Hence these appeals by special leave.7. Thus, the only issue before us is whether under the aforesaid Rule, the candidates who seek promotion through departmental competitive examination for the post of EO/AO, should have served, both in their earlier place of posting and their present place of posting for a period of five years, or whether the candidates should have served for five years in the region where they seek promotion, which in this case is Kerala region.8. Having heard learned Counsel appearing for the parties and upon perusal of the record, we are of the view that the words of the aforesaid Rule require five years regular service "in the respective regions". Thus, these words must be understood to mean that the candidates should have served in the respective regions, that is, the regions where they were posted earlier and the region where they seek promotion all together for five years. Thus if a candidate has served in one region and then transferred to another, and seeks promotion in that region, the Rule does not require that the candidate must have acquired experience of five years in the region where he seeks promotion, for being considered eligible. What is necessary is a total experience of five years. This must necessarily be so because the service to which the rival parties belong, is an All India Services, in which the country is demarcated into several regions. In All India Service, the officers are posted from one region to the other in a routine manner. The purpose of the Rule is that such officers are not deprived of their experience in the feeder cadre merely because they have been transferred from one place to another.9. It might be noticed that in the transfer order of the Appellants bearing No. HRM-III/14/1/07/IRT/Genl. Dated 19.06.2008, issued by Regional PF Commissioner (HRM), EPFO, Ministry of Labour, Government of India, and addressed to the Regional PF Commissioners in-charge of the Region Tamil Nadu, the following is stated as a condition of transfer:His/her past service rendered in cadre of SSA will be counted for the purpose of appearing in the departmental examination....The above condition of transfer fortifies our view regarding the intent and purpose of the promotion rule.10. In a similar context, this Court in Union of India and Ors. v. C.N. Ponnappan (1996) 1 SCC 524 held that an employee who is transferred from one unit to another on compassionate ground, though placed at the bottom of seniority list is entitled to have the service rendered at an earlier unit, counted for the purpose of eligibility for promotion in the unit in which he is transferred. It was observed in Para 4 as follows:The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said services, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred....When confronted once again with the similar question in Scientific Advisor to Raksha Mantri and Anr. v. V.M. Joseph (1998) 5 SCC 305 , this Court relying on earlier decision in Union of India (supra) held that the length of service rendered on an equivalent post in another organization before the transfer counts, for determining the eligibility for promotion though such service may not count for seniority. | 1[ds]8. Having heard learned Counsel appearing for the parties and upon perusal of the record, we are of the view that the words of the aforesaid Rule require five years regular service "in the respective regions". Thus, these words must be understood to mean that the candidates should have served in the respective regions, that is, the regions where they were posted earlier and the region where they seek promotion all together for five years. Thus if a candidate has served in one region and then transferred to another, and seeks promotion in that region, the Rule does not require that the candidate must have acquired experience of five years in the region where he seeks promotion, for being considered eligible. What is necessary is a total experience of five years. This must necessarily be so because the service to which the rival parties belong, is an All India Services, in which the country is demarcated into several regions. In All India Service, the officers are posted from one region to the other in a routine manner. The purpose of the Rule is that such officers are not deprived of their experience in the feeder cadre merely because they have been transferred from one place to another9. It might be noticed that in the transfer order of the Appellants bearing No. HRM-III/14/1/07/IRT/Genl. Dated 19.06.2008, issued by Regional PF Commissioner (HRM), EPFO, Ministry of Labour, Government of India, and addressed to the Regional PF Commissioners in-charge of the Region Tamil Nadu, the following is stated as a condition of transfer:His/her past service rendered in cadre of SSA will be counted for the purpose of appearing in the departmental examinationThe above condition of transfer fortifies our view regarding the intent and purpose of the promotion rule10. In a similar context, this Court in Union of India and Ors. v. C.N. Ponnappan (1996) 1 SCC 524 held that an employee who is transferred from one unit to another on compassionate ground, though placed at the bottom of seniority list is entitled to have the service rendered at an earlier unit, counted for the purpose of eligibility for promotion in the unit in which he is transferred. It was observed in Para 4 as follows:The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said services, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferredWhen confronted once again with the similar question in Scientific Advisor to Raksha Mantri and Anr. v. V.M. Joseph (1998) 5 SCC 305 , this Court relying on earlier decision in Union of India (supra) held that the length of service rendered on an equivalent post in another organization before the transfer counts, for determining the eligibility for promotion though such service may not count for seniority. | 1 | 1,223 | 633 | ### Instruction:
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the inclusion of their names in the rank list for promotion to the post of Enforcement Officer/Accounts Officer (for short, the EO/AO). The Tribunal further held that if the private party Respondents are otherwise eligible, the official Respondents are directed to take steps to consider their rank obtained in the examination and include their names in the appropriate place in the rank list for promotion to the post of EO/AO. The Tribunal also directed that the next available candidate in the rank list should be included in the rank list, according to the rank obtained by them.3. The facts of the case in nutshell are as follows:The Appellants were working as Social Security Assistants (SSAs) in the Karnataka/Tamil Nadu regions of the Employees Provident Fund Organisation (for short, the EPFO). They were transferred to Kerala region and kept at the bottom in the seniority list. The notification was issued to fill up the post of EO/AO in the Kerala region. Both the Appellants and the private party Respondents participated in the aforesaid examination. Subsequently, the rank list was published. The Appellants are at Serial No. 1, 2, 4 and 5 respectively in the rank list and the promotion list. It was contended by the private party Respondents that the inclusion of the names of the Appellants in these lists is arbitrary and illegal, because they were not eligible.4. The Rule that governs the eligibility of the Appellants reads as follows:5. The Appellants as also the private party Respondents passed the departmental competitive examination for the post of EO/AO.Apprehending that the Appellants will be promoted earlier, the private party Respondents approached the Tribunal by way of filing original applications. The Tribunal allowed the said applications and held that the Appellants herein were not treated as qualified for promotion i.e. eligible on the ground that they had not put in five years service in the Kerala region of EPFO, having relied on the words in the above quoted Rule which requires five years regular service "in the respective regions".6. Being aggrieved, the Appellants filed original petitions before the High Court which were also dismissed. Hence these appeals by special leave.7. Thus, the only issue before us is whether under the aforesaid Rule, the candidates who seek promotion through departmental competitive examination for the post of EO/AO, should have served, both in their earlier place of posting and their present place of posting for a period of five years, or whether the candidates should have served for five years in the region where they seek promotion, which in this case is Kerala region.8. Having heard learned Counsel appearing for the parties and upon perusal of the record, we are of the view that the words of the aforesaid Rule require five years regular service "in the respective regions". Thus, these words must be understood to mean that the candidates should have served in the respective regions, that is, the regions where they were posted earlier and the region where they seek promotion all together for five years. Thus if a candidate has served in one region and then transferred to another, and seeks promotion in that region, the Rule does not require that the candidate must have acquired experience of five years in the region where he seeks promotion, for being considered eligible. What is necessary is a total experience of five years. This must necessarily be so because the service to which the rival parties belong, is an All India Services, in which the country is demarcated into several regions. In All India Service, the officers are posted from one region to the other in a routine manner. The purpose of the Rule is that such officers are not deprived of their experience in the feeder cadre merely because they have been transferred from one place to another.9. It might be noticed that in the transfer order of the Appellants bearing No. HRM-III/14/1/07/IRT/Genl. Dated 19.06.2008, issued by Regional PF Commissioner (HRM), EPFO, Ministry of Labour, Government of India, and addressed to the Regional PF Commissioners in-charge of the Region Tamil Nadu, the following is stated as a condition of transfer:His/her past service rendered in cadre of SSA will be counted for the purpose of appearing in the departmental examination....The above condition of transfer fortifies our view regarding the intent and purpose of the promotion rule.10. In a similar context, this Court in Union of India and Ors. v. C.N. Ponnappan (1996) 1 SCC 524 held that an employee who is transferred from one unit to another on compassionate ground, though placed at the bottom of seniority list is entitled to have the service rendered at an earlier unit, counted for the purpose of eligibility for promotion in the unit in which he is transferred. It was observed in Para 4 as follows:The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said services, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred....When confronted once again with the similar question in Scientific Advisor to Raksha Mantri and Anr. v. V.M. Joseph (1998) 5 SCC 305 , this Court relying on earlier decision in Union of India (supra) held that the length of service rendered on an equivalent post in another organization before the transfer counts, for determining the eligibility for promotion though such service may not count for seniority.
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8. Having heard learned Counsel appearing for the parties and upon perusal of the record, we are of the view that the words of the aforesaid Rule require five years regular service "in the respective regions". Thus, these words must be understood to mean that the candidates should have served in the respective regions, that is, the regions where they were posted earlier and the region where they seek promotion all together for five years. Thus if a candidate has served in one region and then transferred to another, and seeks promotion in that region, the Rule does not require that the candidate must have acquired experience of five years in the region where he seeks promotion, for being considered eligible. What is necessary is a total experience of five years. This must necessarily be so because the service to which the rival parties belong, is an All India Services, in which the country is demarcated into several regions. In All India Service, the officers are posted from one region to the other in a routine manner. The purpose of the Rule is that such officers are not deprived of their experience in the feeder cadre merely because they have been transferred from one place to another9. It might be noticed that in the transfer order of the Appellants bearing No. HRM-III/14/1/07/IRT/Genl. Dated 19.06.2008, issued by Regional PF Commissioner (HRM), EPFO, Ministry of Labour, Government of India, and addressed to the Regional PF Commissioners in-charge of the Region Tamil Nadu, the following is stated as a condition of transfer:His/her past service rendered in cadre of SSA will be counted for the purpose of appearing in the departmental examinationThe above condition of transfer fortifies our view regarding the intent and purpose of the promotion rule10. In a similar context, this Court in Union of India and Ors. v. C.N. Ponnappan (1996) 1 SCC 524 held that an employee who is transferred from one unit to another on compassionate ground, though placed at the bottom of seniority list is entitled to have the service rendered at an earlier unit, counted for the purpose of eligibility for promotion in the unit in which he is transferred. It was observed in Para 4 as follows:The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said services, being regular service in the grade, has to be taken into account as part of his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferredWhen confronted once again with the similar question in Scientific Advisor to Raksha Mantri and Anr. v. V.M. Joseph (1998) 5 SCC 305 , this Court relying on earlier decision in Union of India (supra) held that the length of service rendered on an equivalent post in another organization before the transfer counts, for determining the eligibility for promotion though such service may not count for seniority.
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Ahmed Bin Salah & Another Vs. Mohd. Basha & Another | have that effect since the defendants father himself admitted in a subsequent document, Ex. A-1, that he had not paid any such amount, and further that he had executed the document Ex. A-1 at the instance of the to evidence the fact that the sale deed was fictitious as no sale had actually taken place. If Ex. A-1 were to be accepted as genuine, there would be no question of the defendants testimony. There would then remain only his uncorroborated word as regards that highly disputed fact. 11. Ex. A-1 in clear terms declared that the sale deed was a fictitious document and that there was in fact no sale by the plaintiffs mother in favour of its executant, the defendants father. It further declared that no amount, such as the amount of Rs. 15, 000 was paid to the plaintiffs mother on that occasion, and that the only amount due to him was the mortgage debt of Rs. 15, 000. The document also declared that the purpose for which the sale deed was executed was to save the property from a possible claim which the plaintiffs second wife might make in lieu of her dower and the fictitious amount of Rs. 30, 000 had to be shown in the sale deed as consideration, so that the purported sale would not appear or be challenged as collusive. By that document the defendants father further declared that the possession of the property which till then was occupied by the plaintiff had on the day of the sale deed been delivered to him, but that he would release it on satisfaction of the mortgage debt. If the mortgage debt was paid during his lifetime he would himself release the property. But, if that was not done, and the plaintiff or his mother were to pay it after his death, his son, the defendant, should release the property. 12. The document, Ex. A-1, was produced by and came from the plaintiffs custody, It was challenged by the defendant as being a forged document. That allegation obviously was reckless since the plaintiffs produced two witnesses, P.Ws. 2 and 6, who swore that they were the attesting witnesses and the defendants father had executed it in their presence. There being no reason to reject that testimony, the defendants challenge to the genuineness of Ex. A-1 was repelled concurrently by both the Trial Court and the High Court. In view of that evidence Ex. A-1 had to be accepted as genuine. Once that was done, its contents also had to be accepted, since the defendants father was not likely to make admissions found in Ex. A-1 against his own interest, if the sale had in fact taken place, and Rs. 15, 000 over and above the mortgage amount had been paid to make up the consideration of Rs. 30, 000. 13. In face of the evidence of the two attesting witnesses and the other evidence showing that the amount of Rs. 15, 000 was never paid, we must concur with the High Courts finding that no sale of the property had taken place and the sale deed Ex. B-1 was a fictitious document evidencing an equally fictitious sale entered into for the purpose stated in Ex. A-1. The logical result would be that the mortgages subsisted and so too the plaintiffs right as the only heir of his mother to redeem them, so long as that right was not foreclosed, even on the assumption that the mortgaged property solely belonged to her. 14. The Trial Court was in error to treat Ex. A-1 as a will containing a direction to the defendant to release the property on satisfaction of the mortgage debt and to find that direction was revoked by Ex. B-6, the last will and testament of the defendants father. It appears that such a misapprehension arose in the mind of the Trial Court because the document at one place has used the expression "by way of sale", and that meant that the title to the property had vested under the sale deed Ex. B-1, in the defendants father, and therefore, the property had to be reconveyed to the plaintiff and hence a suit for redemption could not lie. Such a reasoning, however, is not tenable. Once the purported sale and the sale deed Ex. B-1 were found to the fictitious, and there was in reality no sale, there was no question of any title having passed to the defendants father, which had to be reconveyed. There was equally no question of the defendants father having in his last will and testament Ex. B-6 revoked any directions contained in Ex. A-1. Ex. A-1 cannot by any stretch of imagination be termed a will, although it is so described, since it did not dispose of any property of its executant nor was it to come into effect on and after his death. Ex. A-1 itself stated that if the mortgage debt was discharged during his lifetime, the executant himself would release the property. The document was a unilateral declaration made by the defendants father putting on record the fact that no sale had taken place, and that therefore, neither he nor his son could claim the property as having been sold. Therefore, no question of reconveyance could arise and the only transactions which subsisted being the mortgages a suit for redemption was the proper and the only remedy of the plaintiff. 15. As regards the plaintiffs cross-appeal, there is no merit in it as the document Ex. A-1 on which he relied all throughout itself shows that he himself had occupied the property till the sale deed Ex. B-1 was executed, and that the rents received by the defendant s father and after him by the defendant were utilised towards meeting the cots of repairs and the municipal taxes. No question of defendant having to account for such rents or his having to pay the excess could arise and the plaintiffs claim was, therefore, rightly rejected. | 0[ds]9. It is somewhat strange that though the defendants father had been careful enough to have made both the plaintiff and his mother execute the mortgage deeds, he was content to have the sale deed Ex.1 executed by the plaintiffs mother alone, although the plaintiff was present at that time and had in fact signed the document as a witness identifying his mother, she being a pardanashin lady. The sale deed, no doubt, recited the three mortgages for the total amount of Rs. 15, 000, and also that another sum of Rs. 15, 000 had been paid to and received by the plaintiffs mother, thus making Rs. 30, 000 as the consideration for the sale. According to the defendants evidence the additional amount of Rs. 15, 000 was paid in cash to the plaintiffs mother in the morning and the sale deed was registered in the afternoon. No separate receipt was admittedly taken from the plaintiff or his mother when the amount of Rs. 15, 000 was said to have been paid, although the said deed yet remained to be registered. No endorsement was also secured from ther as regards the said payment as was done when the mortgage amount of Rs. 8, 000 was paid and that mortgage deed was registered. The absence of a separate receipt or an endorsement by ther as evidence of payment of Rs. 15, 000 would perhaps have not acquired much significance if the events which subsequently took place had not occurred. Anyway, it is somewhat doubtful whether the defendants father, who had taken all the precautions at the time when the mortgage for Rs. 8, 000 was entered into would not take the same precautions when the sale deed was executed and registered, particularly when he was said to have paid in cash almost the double amount namely, Rs. 15, 00010. As aforesaid, the defendants evidence was that this amount was paid in cash in the morning and the document was registered in the afternoon. He produced no other evidence by way of books of account or any other document to show that his father had kept with him such a large sum in cash ready to hand it over to the plaintiffs mother. The only evidence with regard to the payment, therefore, consisted of the defendants word and the assertion in the sale deed as regards that payment. Ordinarily, such a recital in the sale deed would go a long way to corroborate the purchasers word regarding payment of purchase price. But in the present case, such a recital does not have that effect since the defendants father himself admitted in a subsequent document, Ex., that he had not paid any such amount, and further that he had executed the document Ex.1 at the instance of the to evidence the fact that the sale deed was fictitious as no sale had actually taken place. If Ex.1 were to be accepted as genuine, there would be no question of the defendants testimony. There would then remain only his uncorroborated word as regards that highly disputed fact12. The document, Ex., was produced by and came from the plaintiffs custody, It was challenged by the defendant as being a forged document. That allegation obviously was reckless since the plaintiffs produced two witnesses, P.Ws. 2 and 6, who swore that they were the attesting witnesses and the defendants father had executed it in their presence. There being no reason to reject that testimony, the defendants challenge to the genuineness of Ex.1 was repelled concurrently by both the Trial Court and the High Court. In view of that evidence Ex.1 had to be accepted as genuine. Once that was done, its contents also had to be accepted, since the defendants father was not likely to make admissions found in Ex.1 against his own interest, if the sale had in fact taken place, and Rs. 15, 000 over and above the mortgage amount had been paid to make up the consideration of Rs. 30, 00013. In face of the evidence of the two attesting witnesses and the other evidence showing that the amount of Rs. 15, 000 was never paid, we must concur with the High Courts finding that no sale of the property had taken place and the sale deed Ex.1 was a fictitious document evidencing an equally fictitious sale entered into for the purpose stated in Ex.. The logical result would be that the mortgages subsisted and so too the plaintiffs right as the only heir of his mother to redeem them, so long as that right was not foreclosed, even on the assumption that the mortgaged property solely belonged to her14. The Trial Court was in error to treat Ex.1 as a will containing a direction to the defendant to release the property on satisfaction of the mortgage debt and to find that direction was revoked by Ex., the last will and testament of the defendants father. It appears that such a misapprehension arose in the mind of the Trial Court because the document at one place has used the expression "by way of sale", and that meant that the title to the property had vested under the sale deed Ex., in the defendants father, and therefore, the property had to be reconveyed to the plaintiff and hence a suit for redemption could not lie. Such a reasoning, however, is not tenable. Once the purported sale and the sale deed Ex.1 were found to the fictitious, and there was in reality no sale, there was no question of any title having passed to the defendants father, which had to be reconveyed. There was equally no question of the defendants father having in his last will and testament Ex.6 revoked any directions contained in Ex.. Ex.1 cannot by any stretch of imagination be termed a will, although it is so described, since it did not dispose of any property of its executant nor was it to come into effect on and after his. Ex.1 itself stated that if the mortgage debt was discharged during his lifetime, the executant himself would release the property. The document was a unilateral declaration made by the defendants father putting on record the fact that no sale had taken place, and that therefore, neither he nor his son could claim the property as having been sold. Therefore, no question of reconveyance could arise and the only transactions which subsisted being the mortgages a suit for redemption was the proper and the only remedy of the plaintiff15. As regards the plaintiffs, there is no merit in it as the document Ex.1 on which he relied all throughout itself shows that he himself had occupied the property till the sale deed Ex.1 was executed, and that the rents received by the defendant s father and after him by the defendant were utilised towards meeting the cots of repairs and the municipal taxes. No question of defendant having to account for such rents or his having to pay the excess could arise and the plaintiffs claim was, therefore, rightly rejected. | 0 | 4,172 | 1,295 | ### 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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have that effect since the defendants father himself admitted in a subsequent document, Ex. A-1, that he had not paid any such amount, and further that he had executed the document Ex. A-1 at the instance of the to evidence the fact that the sale deed was fictitious as no sale had actually taken place. If Ex. A-1 were to be accepted as genuine, there would be no question of the defendants testimony. There would then remain only his uncorroborated word as regards that highly disputed fact. 11. Ex. A-1 in clear terms declared that the sale deed was a fictitious document and that there was in fact no sale by the plaintiffs mother in favour of its executant, the defendants father. It further declared that no amount, such as the amount of Rs. 15, 000 was paid to the plaintiffs mother on that occasion, and that the only amount due to him was the mortgage debt of Rs. 15, 000. The document also declared that the purpose for which the sale deed was executed was to save the property from a possible claim which the plaintiffs second wife might make in lieu of her dower and the fictitious amount of Rs. 30, 000 had to be shown in the sale deed as consideration, so that the purported sale would not appear or be challenged as collusive. By that document the defendants father further declared that the possession of the property which till then was occupied by the plaintiff had on the day of the sale deed been delivered to him, but that he would release it on satisfaction of the mortgage debt. If the mortgage debt was paid during his lifetime he would himself release the property. But, if that was not done, and the plaintiff or his mother were to pay it after his death, his son, the defendant, should release the property. 12. The document, Ex. A-1, was produced by and came from the plaintiffs custody, It was challenged by the defendant as being a forged document. That allegation obviously was reckless since the plaintiffs produced two witnesses, P.Ws. 2 and 6, who swore that they were the attesting witnesses and the defendants father had executed it in their presence. There being no reason to reject that testimony, the defendants challenge to the genuineness of Ex. A-1 was repelled concurrently by both the Trial Court and the High Court. In view of that evidence Ex. A-1 had to be accepted as genuine. Once that was done, its contents also had to be accepted, since the defendants father was not likely to make admissions found in Ex. A-1 against his own interest, if the sale had in fact taken place, and Rs. 15, 000 over and above the mortgage amount had been paid to make up the consideration of Rs. 30, 000. 13. In face of the evidence of the two attesting witnesses and the other evidence showing that the amount of Rs. 15, 000 was never paid, we must concur with the High Courts finding that no sale of the property had taken place and the sale deed Ex. B-1 was a fictitious document evidencing an equally fictitious sale entered into for the purpose stated in Ex. A-1. The logical result would be that the mortgages subsisted and so too the plaintiffs right as the only heir of his mother to redeem them, so long as that right was not foreclosed, even on the assumption that the mortgaged property solely belonged to her. 14. The Trial Court was in error to treat Ex. A-1 as a will containing a direction to the defendant to release the property on satisfaction of the mortgage debt and to find that direction was revoked by Ex. B-6, the last will and testament of the defendants father. It appears that such a misapprehension arose in the mind of the Trial Court because the document at one place has used the expression "by way of sale", and that meant that the title to the property had vested under the sale deed Ex. B-1, in the defendants father, and therefore, the property had to be reconveyed to the plaintiff and hence a suit for redemption could not lie. Such a reasoning, however, is not tenable. Once the purported sale and the sale deed Ex. B-1 were found to the fictitious, and there was in reality no sale, there was no question of any title having passed to the defendants father, which had to be reconveyed. There was equally no question of the defendants father having in his last will and testament Ex. B-6 revoked any directions contained in Ex. A-1. Ex. A-1 cannot by any stretch of imagination be termed a will, although it is so described, since it did not dispose of any property of its executant nor was it to come into effect on and after his death. Ex. A-1 itself stated that if the mortgage debt was discharged during his lifetime, the executant himself would release the property. The document was a unilateral declaration made by the defendants father putting on record the fact that no sale had taken place, and that therefore, neither he nor his son could claim the property as having been sold. Therefore, no question of reconveyance could arise and the only transactions which subsisted being the mortgages a suit for redemption was the proper and the only remedy of the plaintiff. 15. As regards the plaintiffs cross-appeal, there is no merit in it as the document Ex. A-1 on which he relied all throughout itself shows that he himself had occupied the property till the sale deed Ex. B-1 was executed, and that the rents received by the defendant s father and after him by the defendant were utilised towards meeting the cots of repairs and the municipal taxes. No question of defendant having to account for such rents or his having to pay the excess could arise and the plaintiffs claim was, therefore, rightly rejected.
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yet remained to be registered. No endorsement was also secured from ther as regards the said payment as was done when the mortgage amount of Rs. 8, 000 was paid and that mortgage deed was registered. The absence of a separate receipt or an endorsement by ther as evidence of payment of Rs. 15, 000 would perhaps have not acquired much significance if the events which subsequently took place had not occurred. Anyway, it is somewhat doubtful whether the defendants father, who had taken all the precautions at the time when the mortgage for Rs. 8, 000 was entered into would not take the same precautions when the sale deed was executed and registered, particularly when he was said to have paid in cash almost the double amount namely, Rs. 15, 00010. As aforesaid, the defendants evidence was that this amount was paid in cash in the morning and the document was registered in the afternoon. He produced no other evidence by way of books of account or any other document to show that his father had kept with him such a large sum in cash ready to hand it over to the plaintiffs mother. The only evidence with regard to the payment, therefore, consisted of the defendants word and the assertion in the sale deed as regards that payment. Ordinarily, such a recital in the sale deed would go a long way to corroborate the purchasers word regarding payment of purchase price. But in the present case, such a recital does not have that effect since the defendants father himself admitted in a subsequent document, Ex., that he had not paid any such amount, and further that he had executed the document Ex.1 at the instance of the to evidence the fact that the sale deed was fictitious as no sale had actually taken place. If Ex.1 were to be accepted as genuine, there would be no question of the defendants testimony. There would then remain only his uncorroborated word as regards that highly disputed fact12. The document, Ex., was produced by and came from the plaintiffs custody, It was challenged by the defendant as being a forged document. That allegation obviously was reckless since the plaintiffs produced two witnesses, P.Ws. 2 and 6, who swore that they were the attesting witnesses and the defendants father had executed it in their presence. There being no reason to reject that testimony, the defendants challenge to the genuineness of Ex.1 was repelled concurrently by both the Trial Court and the High Court. In view of that evidence Ex.1 had to be accepted as genuine. Once that was done, its contents also had to be accepted, since the defendants father was not likely to make admissions found in Ex.1 against his own interest, if the sale had in fact taken place, and Rs. 15, 000 over and above the mortgage amount had been paid to make up the consideration of Rs. 30, 00013. In face of the evidence of the two attesting witnesses and the other evidence showing that the amount of Rs. 15, 000 was never paid, we must concur with the High Courts finding that no sale of the property had taken place and the sale deed Ex.1 was a fictitious document evidencing an equally fictitious sale entered into for the purpose stated in Ex.. The logical result would be that the mortgages subsisted and so too the plaintiffs right as the only heir of his mother to redeem them, so long as that right was not foreclosed, even on the assumption that the mortgaged property solely belonged to her14. The Trial Court was in error to treat Ex.1 as a will containing a direction to the defendant to release the property on satisfaction of the mortgage debt and to find that direction was revoked by Ex., the last will and testament of the defendants father. It appears that such a misapprehension arose in the mind of the Trial Court because the document at one place has used the expression "by way of sale", and that meant that the title to the property had vested under the sale deed Ex., in the defendants father, and therefore, the property had to be reconveyed to the plaintiff and hence a suit for redemption could not lie. Such a reasoning, however, is not tenable. Once the purported sale and the sale deed Ex.1 were found to the fictitious, and there was in reality no sale, there was no question of any title having passed to the defendants father, which had to be reconveyed. There was equally no question of the defendants father having in his last will and testament Ex.6 revoked any directions contained in Ex.. Ex.1 cannot by any stretch of imagination be termed a will, although it is so described, since it did not dispose of any property of its executant nor was it to come into effect on and after his. Ex.1 itself stated that if the mortgage debt was discharged during his lifetime, the executant himself would release the property. The document was a unilateral declaration made by the defendants father putting on record the fact that no sale had taken place, and that therefore, neither he nor his son could claim the property as having been sold. Therefore, no question of reconveyance could arise and the only transactions which subsisted being the mortgages a suit for redemption was the proper and the only remedy of the plaintiff15. As regards the plaintiffs, there is no merit in it as the document Ex.1 on which he relied all throughout itself shows that he himself had occupied the property till the sale deed Ex.1 was executed, and that the rents received by the defendant s father and after him by the defendant were utilised towards meeting the cots of repairs and the municipal taxes. No question of defendant having to account for such rents or his having to pay the excess could arise and the plaintiffs claim was, therefore, rightly rejected.
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K. Jagannadha Rao Vs. State of Andhra Pradesh and Others | provides that Deputy Superintendents of Police in category 2 may be appointed by (a) direct recruit ment, or (b) recruitment by transfer from Inspectors of Police, class I, in the Andhra Pradesh Police Subordinate Service, which is really a promotion for them, or (c) appointment from category 3 which is a State service. The validity of the rul e 3 (a) has not been challenged. It is to be noted that rule 3 (a) itself treats appointment from category 3 as distinct from either direct recruitment or promotion. It was contended on behalf of the appellant that if appointment to category 2 fro m category 3 was not direct recruitment or promotion, it could only be by way of transfer. The point was urged also in the High Court. On behalf of the appellant reference was made to fundamental rule 15 which authorises the transfer of a governm ent servant from one post to another provided that the post to which he is transferred does not carry less pay. Rule 33 (c) of the Andhra Pradesh State and Subordinate Services Rules, 1962 says:"The transfer of a person from one class or category of a service to another class or category carrying the same pay scale of pay shall not be treated as first appointment to the latter for purposes of seniority; and the seniority of a person so transferred shall be determined with reference to the date of his first appointment to the class or category from which he was transferred."7. The rule adds:Where any difficultly or doubt arises in applying this Sub-rule, seniority shall be determined by the appointing authority."8. Of course rule 3 of the Andhra Pradesh Police Service Rules not states specifically that appointments to category 2 from category 3 shall be considered as transfer making rule 33 (c) of the Andhra Pradesh State and Subordinate Services Rules applicable. The answer of the respondents is that such appointments could not be treated as transfer because category 2 and category 3 are not of equal status. There is however no rule saying that services in category 3 are inferior to those in category 2; both are State Services. The learned single Judge of the High Court explains in his judgment why the fact that the Deputy Superintendents of Police in category 3 have to pass tests and undergo training and probation for appointment to category 2 does not warrant the conclusion that such appointment are by way of promotion:"Since the higher posts of Additional Superintendents of Police, Posts in the Indian Police Service etc., involve what may be called the ordinary police duties with which the members of the Andhra Pradesh Special Police are not likely to be familiar, the Government has further prescribed t hat officers appointed from category 3 to category 2 must pass certain tests and undergo further training and probation. It is important to realise that the appointment of some outstanding officers from categor y 3 to category 2 is designed to achieve the two fold object of providing avenues of promotion for such outstanding officers and injecting new but proven blood, as it were, into category 2. If this twin object is realised it becomes evident that appointment to category 2 from category 3 cannot be considered to be a promotion."9. In our view the explanation given by the single Judge is sound. We find no basis for the claim that category 3 is inferior to category 2 in status.We do not however think it necessary to decide whatever appointments to category 2 from category 3 amount to transfer attracting rule 33 (c) of the Andhra Pradesh State and Subordinate Services Rules. Under Rule 3 (a) of the Andhra Pradesh Police Service Rules, 1966 appointment from category 3 is one method of recruitment to category 2 and the only question is whether giving credit to such appointees for past service in another category in the S tate Service is justified. We have mentioned above the points of similarity in matters of recruitment and promotion to the two respective categories. It has been noticed also that they carry the same scale of pay. Whether or not some credit s hould be given for past service in such circumstances is a matter of policy resting with government. We do not find anything arbitrary or absurd in what rule 3 (d) prescribes, and that being so, the court cannot examine the matter and come to its ow n conclusion about what should be the length of past service for which credit should be given. In Tamil Nadu Education Department Ministerial and General Subordinate Service Association v. State of Tamil Nadu and another.(1) this Court considering a similar contention that the length of service taken into consideration for fixing seniority had worked hardship on some of the employees, took the view that in such matters the court can only take an "overall view and should not attempt "a meticulous dissection" of the matter. Once the principle is found to be rational", it was observed, a few "instances of hardship cannot be a ground to invalidate the order or the policy...this is an area where, absent arbitrariness and irrationality, the court has to adopt a hands-off policy". There is nothing irrational in giving the Deputy Superintendents of Police appointed to category 2 from category 3 credit for past services rendered by them in category 2 from 3 which is also a State Service as category 2. The main ground on which the length of the past service for which credit has been given is questioned in this case is not that it was not rational but that category 3 being inferior in status to category 2, no credit co uld at all be given for past service in category 3. We found no basis to support the claim of superiority for category 2 and in the facts of the case we do not think that the length of past service for which credit has been given is improper. | 1[ds]6. The duties of the Deputy Superintendents of Police of category 2 and category 3 are however of a different nature. The Deputy Superintendents of Police of Category 2 are normally concerned with the prevention, detection and investigation of crime and maintenance of law and order. They constitute the principal police service of the State. Assistant Commandants, Andhra Pradesh Special Police, are also designated as Deputy Superintendents of Police in category 3. They are primarily a striking force employed also for maintaining law and order, but they are not concerned with the routine duties of the principal police service. Th e promotional avenues for the officers of the two categories are also not the same. Officers belonging to category 2 of the Andhra Pradesh Police Service are eligible to be promoted as Commandants, Home Guards, and Assistant Superintendent of Police. They are also eligible to be considered for appointment to the Indian Police Service. Officers of category 3 are eligible to be promoted as Commandants, Home Guards, but not as Assistant Superintendents of Police, nor ar e they eligible to be considered for appointment to the Indian Police Service. It appears from the counter affidavit filed on behalf of the State of Andhra Pradesh in the High Court which is based on Government Order No. 1513 dated November 28, 1961 that the limited chances of promotion open before officers of category 3 gave rise to discontent among them, and to prevent stagnation and avoid frustration among officers belonging to that category, government decided to throw ope n avenues of promotion of the officers of category 3 which were available to the officers belonging to category 2; however, the opportunity made available was a limited one in the sense that only to Deputy Superintendents of Police from category 3 were to be appointed as Deputy Superintendents of Police, category 2, in a year.Rule 3 (a) of the Andhra Pradesh Police Service Rules, 1966 provides that Deputy Superintendents of Police in category 2 may be appointed by (a) direct recruit ment, or (b) recruitment by transfer from Inspectors of Police, class I, in the Andhra Pradesh Police Subordinate Service, which is really a promotion for them, or (c) appointment from category 3 which is a State service. The validity of the rul e 3 (a) has not been challenged. It is to be noted that rule 3 (a) itself treats appointment from category 3 as distinct from either direct recruitment orpoint was urged also in the High Court. On behalf of the appellant reference was made to fundamental rule 15 which authorises the transfer of a governm ent servant from one post to another provided that the post to which he is transferred does not carry less pay.Of course rule 3 of the Andhra Pradesh Police Service Rules not states specifically that appointments to category 2 from category 3 shall be considered as transfer making rule 33 (c) of the Andhra Pradesh State and Subordinate Services Rulesis however no rule saying that services in category 3 are inferior to those in category 2; both are State Services. The learned single Judge of the High Court explains in his judgment why the fact that the Deputy Superintendents of Police in category 3 have to pass tests and undergo training and probation for appointment to category 2 does not warrant the conclusion that such appointment are by way ofthe higher posts of Additional Superintendents of Police, Posts in the Indian Police Service etc., involve what may be called the ordinary police duties with which the members of the Andhra Pradesh Special Police are not likely to be familiar, the Government has further prescribed t hat officers appointed from category 3 to category 2 must pass certain tests and undergo further training and probation. It is important to realise that the appointment of some outstanding officers from categor y 3 to category 2 is designed to achieve the two fold object of providing avenues of promotion for such outstanding officers and injecting new but proven blood, as it were, into category 2. If this twin object is realised it becomes evident that appointment to category 2 from category 3 cannot be considered to be a promotion.In our view the explanation given by the single Judge is sound. We find no basis for the claim that category 3 is inferior to category 2 in status.We do not however think it necessary to decide whatever appointments to category 2 from category 3 amount to transfer attracting rule 33 (c) of the Andhra Pradesh State and Subordinate Services Rules. Under Rule 3 (a) of the Andhra Pradesh Police Service Rules, 1966 appointment from category 3 is one method of recruitment to category 2 and the only question is whether giving credit to such appointees for past service in another category in the S tate Service is justified. We have mentioned above the points of similarity in matters of recruitment and promotion to the two respective categories. It has been noticed also that they carry the same scale of pay. Whether or not some credit s hould be given for past service in such circumstances is a matter of policy resting with government. We do not find anything arbitrary or absurd in what rule 3 (d) prescribes, and that being so, the court cannot examine the matter and come to its ow n conclusion about what should be the length of past service for which credit should be given. In Tamil Nadu Education Department Ministerial and General Subordinate Service Association v. State of Tamil Nadu and another.(1) this Court considering a similar contention that the length of service taken into consideration for fixing seniority had worked hardship on some of the employees, took the view that in such matters the court can only take an "overall view and should not attempt "a meticulous dissection" of the matter. Once the principle is found to be rational", it was observed, a few "instances of hardship cannot be a ground to invalidate the order or the policy...this is an area where, absent arbitrariness and irrationality, the court has to adopt apolicy". There is nothing irrational in giving the Deputy Superintendents of Police appointed to category 2 from category 3 credit for past services rendered by them in category 2 from 3 which is also a State Service as category 2. The main ground on which the length of the past service for which credit has been given is questioned in this case is not that it was not rational but that category 3 being inferior in status to category 2, no credit co uld at all be given for past service in category 3. We found no basis to support the claim of superiority for category 2 and in the facts of the case we do not think that the length of past service for which credit has been given is improper. | 1 | 2,618 | 1,255 | ### 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:
provides that Deputy Superintendents of Police in category 2 may be appointed by (a) direct recruit ment, or (b) recruitment by transfer from Inspectors of Police, class I, in the Andhra Pradesh Police Subordinate Service, which is really a promotion for them, or (c) appointment from category 3 which is a State service. The validity of the rul e 3 (a) has not been challenged. It is to be noted that rule 3 (a) itself treats appointment from category 3 as distinct from either direct recruitment or promotion. It was contended on behalf of the appellant that if appointment to category 2 fro m category 3 was not direct recruitment or promotion, it could only be by way of transfer. The point was urged also in the High Court. On behalf of the appellant reference was made to fundamental rule 15 which authorises the transfer of a governm ent servant from one post to another provided that the post to which he is transferred does not carry less pay. Rule 33 (c) of the Andhra Pradesh State and Subordinate Services Rules, 1962 says:"The transfer of a person from one class or category of a service to another class or category carrying the same pay scale of pay shall not be treated as first appointment to the latter for purposes of seniority; and the seniority of a person so transferred shall be determined with reference to the date of his first appointment to the class or category from which he was transferred."7. The rule adds:Where any difficultly or doubt arises in applying this Sub-rule, seniority shall be determined by the appointing authority."8. Of course rule 3 of the Andhra Pradesh Police Service Rules not states specifically that appointments to category 2 from category 3 shall be considered as transfer making rule 33 (c) of the Andhra Pradesh State and Subordinate Services Rules applicable. The answer of the respondents is that such appointments could not be treated as transfer because category 2 and category 3 are not of equal status. There is however no rule saying that services in category 3 are inferior to those in category 2; both are State Services. The learned single Judge of the High Court explains in his judgment why the fact that the Deputy Superintendents of Police in category 3 have to pass tests and undergo training and probation for appointment to category 2 does not warrant the conclusion that such appointment are by way of promotion:"Since the higher posts of Additional Superintendents of Police, Posts in the Indian Police Service etc., involve what may be called the ordinary police duties with which the members of the Andhra Pradesh Special Police are not likely to be familiar, the Government has further prescribed t hat officers appointed from category 3 to category 2 must pass certain tests and undergo further training and probation. It is important to realise that the appointment of some outstanding officers from categor y 3 to category 2 is designed to achieve the two fold object of providing avenues of promotion for such outstanding officers and injecting new but proven blood, as it were, into category 2. If this twin object is realised it becomes evident that appointment to category 2 from category 3 cannot be considered to be a promotion."9. In our view the explanation given by the single Judge is sound. We find no basis for the claim that category 3 is inferior to category 2 in status.We do not however think it necessary to decide whatever appointments to category 2 from category 3 amount to transfer attracting rule 33 (c) of the Andhra Pradesh State and Subordinate Services Rules. Under Rule 3 (a) of the Andhra Pradesh Police Service Rules, 1966 appointment from category 3 is one method of recruitment to category 2 and the only question is whether giving credit to such appointees for past service in another category in the S tate Service is justified. We have mentioned above the points of similarity in matters of recruitment and promotion to the two respective categories. It has been noticed also that they carry the same scale of pay. Whether or not some credit s hould be given for past service in such circumstances is a matter of policy resting with government. We do not find anything arbitrary or absurd in what rule 3 (d) prescribes, and that being so, the court cannot examine the matter and come to its ow n conclusion about what should be the length of past service for which credit should be given. In Tamil Nadu Education Department Ministerial and General Subordinate Service Association v. State of Tamil Nadu and another.(1) this Court considering a similar contention that the length of service taken into consideration for fixing seniority had worked hardship on some of the employees, took the view that in such matters the court can only take an "overall view and should not attempt "a meticulous dissection" of the matter. Once the principle is found to be rational", it was observed, a few "instances of hardship cannot be a ground to invalidate the order or the policy...this is an area where, absent arbitrariness and irrationality, the court has to adopt a hands-off policy". There is nothing irrational in giving the Deputy Superintendents of Police appointed to category 2 from category 3 credit for past services rendered by them in category 2 from 3 which is also a State Service as category 2. The main ground on which the length of the past service for which credit has been given is questioned in this case is not that it was not rational but that category 3 being inferior in status to category 2, no credit co uld at all be given for past service in category 3. We found no basis to support the claim of superiority for category 2 and in the facts of the case we do not think that the length of past service for which credit has been given is improper.
### Response:
1
### Explanation:
the Indian Police Service. Officers of category 3 are eligible to be promoted as Commandants, Home Guards, but not as Assistant Superintendents of Police, nor ar e they eligible to be considered for appointment to the Indian Police Service. It appears from the counter affidavit filed on behalf of the State of Andhra Pradesh in the High Court which is based on Government Order No. 1513 dated November 28, 1961 that the limited chances of promotion open before officers of category 3 gave rise to discontent among them, and to prevent stagnation and avoid frustration among officers belonging to that category, government decided to throw ope n avenues of promotion of the officers of category 3 which were available to the officers belonging to category 2; however, the opportunity made available was a limited one in the sense that only to Deputy Superintendents of Police from category 3 were to be appointed as Deputy Superintendents of Police, category 2, in a year.Rule 3 (a) of the Andhra Pradesh Police Service Rules, 1966 provides that Deputy Superintendents of Police in category 2 may be appointed by (a) direct recruit ment, or (b) recruitment by transfer from Inspectors of Police, class I, in the Andhra Pradesh Police Subordinate Service, which is really a promotion for them, or (c) appointment from category 3 which is a State service. The validity of the rul e 3 (a) has not been challenged. It is to be noted that rule 3 (a) itself treats appointment from category 3 as distinct from either direct recruitment orpoint was urged also in the High Court. On behalf of the appellant reference was made to fundamental rule 15 which authorises the transfer of a governm ent servant from one post to another provided that the post to which he is transferred does not carry less pay.Of course rule 3 of the Andhra Pradesh Police Service Rules not states specifically that appointments to category 2 from category 3 shall be considered as transfer making rule 33 (c) of the Andhra Pradesh State and Subordinate Services Rulesis however no rule saying that services in category 3 are inferior to those in category 2; both are State Services. The learned single Judge of the High Court explains in his judgment why the fact that the Deputy Superintendents of Police in category 3 have to pass tests and undergo training and probation for appointment to category 2 does not warrant the conclusion that such appointment are by way ofthe higher posts of Additional Superintendents of Police, Posts in the Indian Police Service etc., involve what may be called the ordinary police duties with which the members of the Andhra Pradesh Special Police are not likely to be familiar, the Government has further prescribed t hat officers appointed from category 3 to category 2 must pass certain tests and undergo further training and probation. It is important to realise that the appointment of some outstanding officers from categor y 3 to category 2 is designed to achieve the two fold object of providing avenues of promotion for such outstanding officers and injecting new but proven blood, as it were, into category 2. If this twin object is realised it becomes evident that appointment to category 2 from category 3 cannot be considered to be a promotion.In our view the explanation given by the single Judge is sound. We find no basis for the claim that category 3 is inferior to category 2 in status.We do not however think it necessary to decide whatever appointments to category 2 from category 3 amount to transfer attracting rule 33 (c) of the Andhra Pradesh State and Subordinate Services Rules. Under Rule 3 (a) of the Andhra Pradesh Police Service Rules, 1966 appointment from category 3 is one method of recruitment to category 2 and the only question is whether giving credit to such appointees for past service in another category in the S tate Service is justified. We have mentioned above the points of similarity in matters of recruitment and promotion to the two respective categories. It has been noticed also that they carry the same scale of pay. Whether or not some credit s hould be given for past service in such circumstances is a matter of policy resting with government. We do not find anything arbitrary or absurd in what rule 3 (d) prescribes, and that being so, the court cannot examine the matter and come to its ow n conclusion about what should be the length of past service for which credit should be given. In Tamil Nadu Education Department Ministerial and General Subordinate Service Association v. State of Tamil Nadu and another.(1) this Court considering a similar contention that the length of service taken into consideration for fixing seniority had worked hardship on some of the employees, took the view that in such matters the court can only take an "overall view and should not attempt "a meticulous dissection" of the matter. Once the principle is found to be rational", it was observed, a few "instances of hardship cannot be a ground to invalidate the order or the policy...this is an area where, absent arbitrariness and irrationality, the court has to adopt apolicy". There is nothing irrational in giving the Deputy Superintendents of Police appointed to category 2 from category 3 credit for past services rendered by them in category 2 from 3 which is also a State Service as category 2. The main ground on which the length of the past service for which credit has been given is questioned in this case is not that it was not rational but that category 3 being inferior in status to category 2, no credit co uld at all be given for past service in category 3. We found no basis to support the claim of superiority for category 2 and in the facts of the case we do not think that the length of past service for which credit has been given is improper.
|
Commissioner of Income Tax Bombay Vs. Bar Council of Maharashtra Bar Council of India Bar Council | aforesaid functions. (2) A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of- (a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates; (b) giving legal aid or advice in accordance with the rules made in this behalf." 7. Sections 9, 9A and 10 of the Act provide for the constitution of various committees for the purposes mentioned therein. Section 15 confers power on the Bar Council to make rules to carry out the purposes of this Chapter. The rest of the provisions of the Act are not material for the purpose of the issue under consideration. 8. Counsel for the Revenue contended that the primary object or purpose with which the Bar Council of a State is constituted is to benefit the members of the legal profession inasmuch as under s.6 (1) (d) it is an obligatory function of the State Bar Council to safeguard the rights privileges and interests of the advocates of its roll and that other functions like promotion of law reform, conducting law seminars etc. are incidental objects and the benefit to the public is remote or indirect or incidental and, therefore, the assessee-Council could not be regarded as a body intended to advance the object of general public utility. It is impossible to accept this contention. It is clear that sub-s. (1) lays down the obligatory functions while sub-s. (2) indicates what are the optional or discretionary functions that could be undertaken by the State Bar Council and from amongst the obligatory functions it will be wrong to pick out one and say it is the primary or dominant object or purpose. All the clauses of sub-s. (1) will hav e to be considered in light of the main objective sought to be achieved as indicated in the Preamble. The functions mentioned in cls. (a) and (b) of sub-s. (1), namely, to admit persons as advocates on its roll and to prepare and maintai n such roll, are clearly regulatory in character intended to ensure that persons with requisite qualifications who are fit and otherwise proper to be advocates are available for being engaged by the litigating public; the function prescribed in cl. (c) has been enjoined upon avowedly with the objective of protecting the litigating public from unscrupulous professionals by taking them to task for any misconduct on their part; it is also one of the obligatory functions of a State Bar Council to promote and support measures for law reform as also to conduct law seminars and organise talks on legal topics by eminent jurists, obviously with a view to educate the general public, the function prescribed by cl. (eee) is obvious ly charitable in nature, the same being to organise legal aid to the poor. Amongst these various obligatory functions one under cl. (d) is to safeguard the rights, privileges and interests of the advocates on its roll and it is difficult to regard it as a primary or dominant function or purpose for which the body is constituted, Even this function apart from securing speedy discharge of obligations by the litigants to the lawyers ensures maintenance of high professio nal standards and independence of the Bar which are necessary in the performance of their duties to the society. In other words, the dominant purpose of a State Bar Council as reflected by the various obligatory functions is to ensure quality service of competent lawyers to the litigating public, to spread legal literacy, promote law reforms and provide legal assistance to the poor while the benefit accruing to the lawyer members is incidental. It is true that sub-s. (2) prov ides that a State Bar Council may constitute one or more funds for the purpose of giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates; but it is an optional or discretionary function to be undertaken by the Council. Apart from that, admittedly the assessee-Council has not so far constituted any such fund for the purpose specified in the instant case. As and when such a fund is constituted a question may arise for consideration and the Court may have to decide whether the function so undertaken by a State Bar Council has become the dominant purpose for which that Council is operating. Having regard to the Preamble of the Act and the nature of the various obligatory functions including t he one under cl. (d) enjoined upon every State Bar Council Under s.6 (1) of the Act, it is clear that the primary or dominant purpose of an institution like the assessee-Council is the advancement of the object of general public utility within the me aning of s.2 (15) of the Act, and as such the income from securities held by the assessee-Council would be exempt from any tax liability under s.11 of the Act.Having come to the aforesaid conclusion on applying the language of our Act to the natu re of functions undertaken by a State Bar Council under the Advocates Act 1961 it is truly unnecessary to deal with the English decisions cited during the course of arguments. However, we might indicate that in two cases (Royal College of Surgeo ns case and the General Medical Councils) case on an analysis of the functions undertaken by the two concerned institutions under the Statutes and Charters governing them the Court came to the conclusion that the institutions were not constituted for charitable purpose but they were more of professional institutions, the approach being to find out whether the objects satisfied the limited concept of charity within the spirit and intendment of the Statute of Elizabeth. In the other two cases (The Yorkshire Agricultural Societys case and The Institute of Civil Engineers case the Court took the view that both the institutions were constituted for charitable purposes entitled the exemptions under s.37 (1) (b) of the Income Tax Act, 1918, and the benefits accruing to the members were regarded as incidental. 9. | 0[ds]Having regard to the aforesaid manner in which the definition of "charitable purpose" given in s.2 (15) has been interpreted by this Court the question that arises for consideration in these appeals is whether the securities, interest from which is s ought to be exempted from tax liability, were held by the assessee-Council on trust wholly for a charitable purpose, namely, for the advancement of an object of general public utility? Admittedly the assessee- Council is not indulging in any act ivity for profit and hence the aspect of considering the applicability of the restrictive words does not arise and the answer to the question must depend upon the nature or character of the functions and activities which the assessee-Council can undertake underthe Advocates Act, 1961 for it is clear that it cannot go beyond what is prescribed by that ActIt is clear that sub-s. (1) lays down the obligatory functions while sub-s. (2) indicates what are the optional or discretionary functions that could be undertaken by the State Bar Council and from amongst the obligatory functions it will be wrong to pick out one and say it is the primary or dominant object or purpose. All the clauses of sub-s. (1) will hav e to be considered in light of the main objective sought to be achieved as indicated in the Preamble. The functions mentioned in cls. (a) and (b) of sub-s. (1), namely, to admit persons as advocates on its roll and to prepare and maintai n such roll, are clearly regulatory in character intended to ensure that persons with requisite qualifications who are fit and otherwise proper to be advocates are available for being engaged by the litigating public; the function prescribed in cl. (c) has been enjoined upon avowedly with the objective of protecting the litigating public from unscrupulous professionals by taking them to task for any misconduct on their part; it is also one of the obligatory functions of a State Bar Council to promote and support measures for law reform as also to conduct law seminars and organise talks on legal topics by eminent jurists, obviously with a view to educate the general public, the function prescribed by cl. (eee) is obvious ly charitable in nature, the same being to organise legal aid to the poor. Amongst these various obligatory functions one under cl. (d) is to safeguard the rights, privileges and interests of the advocates on its roll and it is difficult to regard it as a primary or dominant function or purpose for which the body is constituted, Even this function apart from securing speedy discharge of obligations by the litigants to the lawyers ensures maintenance of high professio nal standards and independence of the Bar which are necessary in the performance of their duties to the society. In other words, the dominant purpose of a State Bar Council as reflected by the various obligatory functions is to ensure quality service of competent lawyers to the litigating public, to spread legal literacy, promote law reforms and provide legal assistance to the poor while the benefit accruing to the lawyer members is incidental. It is true that sub-s. (2) prov ides that a State Bar Council may constitute one or more funds for the purpose of giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates; but it is an optional or discretionary function to be undertaken by the Council. Apart from that, admittedly the assessee-Council has not so far constituted any such fund for the purpose specified in the instant case. As and when such a fund is constituted a question may arise for consideration and the Court may have to decide whether the function so undertaken by a State Bar Council has become the dominant purpose for which that Council is operating. Having regard to the Preamble of the Act and the nature of the various obligatory functions including t he one under cl. (d) enjoined upon every State Bar Council Under s.6 (1) of the Act, it is clear that the primary or dominant purpose of an institution like the assessee-Council is the advancement of the object of general public utility within the me aning of s.2 (15) of the Act, and as such the income from securities held by the assessee-Council would be exempt from any tax liability under s.11 of the Act.Having come to the aforesaid conclusion on applying the language of our Act to the natu re of functions undertaken by a State Bar Council under the Advocates Act 1961 it is truly unnecessary to deal with the English decisions cited during the course of arguments. However, we might indicate that in two cases (Royal College of Surgeo ns case and the General Medical Councils) case on an analysis of the functions undertaken by the two concerned institutions under the Statutes and Charters governing them the Court came to the conclusion that the institutions were not constituted for charitable purpose but they were more of professional institutions, the approach being to find out whether the objects satisfied the limited concept of charity within the spirit and intendment of the Statute of Elizabeth. In the other two cases (The Yorkshire Agricultural Societys case and The Institute of Civil Engineers case the Court took the view that both the institutions were constituted for charitable purposes entitled the exemptions under s.37 (1) (b) of the Income Tax Act, 1918, and the benefits accruing to the members were regarded as incidental. | 0 | 3,909 | 1,000 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
aforesaid functions. (2) A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of- (a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates; (b) giving legal aid or advice in accordance with the rules made in this behalf." 7. Sections 9, 9A and 10 of the Act provide for the constitution of various committees for the purposes mentioned therein. Section 15 confers power on the Bar Council to make rules to carry out the purposes of this Chapter. The rest of the provisions of the Act are not material for the purpose of the issue under consideration. 8. Counsel for the Revenue contended that the primary object or purpose with which the Bar Council of a State is constituted is to benefit the members of the legal profession inasmuch as under s.6 (1) (d) it is an obligatory function of the State Bar Council to safeguard the rights privileges and interests of the advocates of its roll and that other functions like promotion of law reform, conducting law seminars etc. are incidental objects and the benefit to the public is remote or indirect or incidental and, therefore, the assessee-Council could not be regarded as a body intended to advance the object of general public utility. It is impossible to accept this contention. It is clear that sub-s. (1) lays down the obligatory functions while sub-s. (2) indicates what are the optional or discretionary functions that could be undertaken by the State Bar Council and from amongst the obligatory functions it will be wrong to pick out one and say it is the primary or dominant object or purpose. All the clauses of sub-s. (1) will hav e to be considered in light of the main objective sought to be achieved as indicated in the Preamble. The functions mentioned in cls. (a) and (b) of sub-s. (1), namely, to admit persons as advocates on its roll and to prepare and maintai n such roll, are clearly regulatory in character intended to ensure that persons with requisite qualifications who are fit and otherwise proper to be advocates are available for being engaged by the litigating public; the function prescribed in cl. (c) has been enjoined upon avowedly with the objective of protecting the litigating public from unscrupulous professionals by taking them to task for any misconduct on their part; it is also one of the obligatory functions of a State Bar Council to promote and support measures for law reform as also to conduct law seminars and organise talks on legal topics by eminent jurists, obviously with a view to educate the general public, the function prescribed by cl. (eee) is obvious ly charitable in nature, the same being to organise legal aid to the poor. Amongst these various obligatory functions one under cl. (d) is to safeguard the rights, privileges and interests of the advocates on its roll and it is difficult to regard it as a primary or dominant function or purpose for which the body is constituted, Even this function apart from securing speedy discharge of obligations by the litigants to the lawyers ensures maintenance of high professio nal standards and independence of the Bar which are necessary in the performance of their duties to the society. In other words, the dominant purpose of a State Bar Council as reflected by the various obligatory functions is to ensure quality service of competent lawyers to the litigating public, to spread legal literacy, promote law reforms and provide legal assistance to the poor while the benefit accruing to the lawyer members is incidental. It is true that sub-s. (2) prov ides that a State Bar Council may constitute one or more funds for the purpose of giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates; but it is an optional or discretionary function to be undertaken by the Council. Apart from that, admittedly the assessee-Council has not so far constituted any such fund for the purpose specified in the instant case. As and when such a fund is constituted a question may arise for consideration and the Court may have to decide whether the function so undertaken by a State Bar Council has become the dominant purpose for which that Council is operating. Having regard to the Preamble of the Act and the nature of the various obligatory functions including t he one under cl. (d) enjoined upon every State Bar Council Under s.6 (1) of the Act, it is clear that the primary or dominant purpose of an institution like the assessee-Council is the advancement of the object of general public utility within the me aning of s.2 (15) of the Act, and as such the income from securities held by the assessee-Council would be exempt from any tax liability under s.11 of the Act.Having come to the aforesaid conclusion on applying the language of our Act to the natu re of functions undertaken by a State Bar Council under the Advocates Act 1961 it is truly unnecessary to deal with the English decisions cited during the course of arguments. However, we might indicate that in two cases (Royal College of Surgeo ns case and the General Medical Councils) case on an analysis of the functions undertaken by the two concerned institutions under the Statutes and Charters governing them the Court came to the conclusion that the institutions were not constituted for charitable purpose but they were more of professional institutions, the approach being to find out whether the objects satisfied the limited concept of charity within the spirit and intendment of the Statute of Elizabeth. In the other two cases (The Yorkshire Agricultural Societys case and The Institute of Civil Engineers case the Court took the view that both the institutions were constituted for charitable purposes entitled the exemptions under s.37 (1) (b) of the Income Tax Act, 1918, and the benefits accruing to the members were regarded as incidental. 9.
### Response:
0
### Explanation:
Having regard to the aforesaid manner in which the definition of "charitable purpose" given in s.2 (15) has been interpreted by this Court the question that arises for consideration in these appeals is whether the securities, interest from which is s ought to be exempted from tax liability, were held by the assessee-Council on trust wholly for a charitable purpose, namely, for the advancement of an object of general public utility? Admittedly the assessee- Council is not indulging in any act ivity for profit and hence the aspect of considering the applicability of the restrictive words does not arise and the answer to the question must depend upon the nature or character of the functions and activities which the assessee-Council can undertake underthe Advocates Act, 1961 for it is clear that it cannot go beyond what is prescribed by that ActIt is clear that sub-s. (1) lays down the obligatory functions while sub-s. (2) indicates what are the optional or discretionary functions that could be undertaken by the State Bar Council and from amongst the obligatory functions it will be wrong to pick out one and say it is the primary or dominant object or purpose. All the clauses of sub-s. (1) will hav e to be considered in light of the main objective sought to be achieved as indicated in the Preamble. The functions mentioned in cls. (a) and (b) of sub-s. (1), namely, to admit persons as advocates on its roll and to prepare and maintai n such roll, are clearly regulatory in character intended to ensure that persons with requisite qualifications who are fit and otherwise proper to be advocates are available for being engaged by the litigating public; the function prescribed in cl. (c) has been enjoined upon avowedly with the objective of protecting the litigating public from unscrupulous professionals by taking them to task for any misconduct on their part; it is also one of the obligatory functions of a State Bar Council to promote and support measures for law reform as also to conduct law seminars and organise talks on legal topics by eminent jurists, obviously with a view to educate the general public, the function prescribed by cl. (eee) is obvious ly charitable in nature, the same being to organise legal aid to the poor. Amongst these various obligatory functions one under cl. (d) is to safeguard the rights, privileges and interests of the advocates on its roll and it is difficult to regard it as a primary or dominant function or purpose for which the body is constituted, Even this function apart from securing speedy discharge of obligations by the litigants to the lawyers ensures maintenance of high professio nal standards and independence of the Bar which are necessary in the performance of their duties to the society. In other words, the dominant purpose of a State Bar Council as reflected by the various obligatory functions is to ensure quality service of competent lawyers to the litigating public, to spread legal literacy, promote law reforms and provide legal assistance to the poor while the benefit accruing to the lawyer members is incidental. It is true that sub-s. (2) prov ides that a State Bar Council may constitute one or more funds for the purpose of giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates; but it is an optional or discretionary function to be undertaken by the Council. Apart from that, admittedly the assessee-Council has not so far constituted any such fund for the purpose specified in the instant case. As and when such a fund is constituted a question may arise for consideration and the Court may have to decide whether the function so undertaken by a State Bar Council has become the dominant purpose for which that Council is operating. Having regard to the Preamble of the Act and the nature of the various obligatory functions including t he one under cl. (d) enjoined upon every State Bar Council Under s.6 (1) of the Act, it is clear that the primary or dominant purpose of an institution like the assessee-Council is the advancement of the object of general public utility within the me aning of s.2 (15) of the Act, and as such the income from securities held by the assessee-Council would be exempt from any tax liability under s.11 of the Act.Having come to the aforesaid conclusion on applying the language of our Act to the natu re of functions undertaken by a State Bar Council under the Advocates Act 1961 it is truly unnecessary to deal with the English decisions cited during the course of arguments. However, we might indicate that in two cases (Royal College of Surgeo ns case and the General Medical Councils) case on an analysis of the functions undertaken by the two concerned institutions under the Statutes and Charters governing them the Court came to the conclusion that the institutions were not constituted for charitable purpose but they were more of professional institutions, the approach being to find out whether the objects satisfied the limited concept of charity within the spirit and intendment of the Statute of Elizabeth. In the other two cases (The Yorkshire Agricultural Societys case and The Institute of Civil Engineers case the Court took the view that both the institutions were constituted for charitable purposes entitled the exemptions under s.37 (1) (b) of the Income Tax Act, 1918, and the benefits accruing to the members were regarded as incidental.
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P.N. Krishna Iyer Vs. Commissioner of Income Tax, Kerala | (AIR 1968 SC 682 ). No useful purpose will be served by making an analysis of the earlier cases, because in our view three recent judgments of this Court lay down the principles which govern this class of cases. In V. D. Dhanwateys case, 1968=68 ITR 365 = (AIR 1968 SC 683 ), V, the Karta of a Hindu undivided family contributed to the capital of a firm out of the funds of the family. Under the agreement of partnership the general management and supervision of the partnership business was to be in the hands of V, and he was to be paid a monthly remuneration out of the gross earnings of the partnership business. V joined the partnership as representing the family and he became a partner on account of the investments of the joint family assets in the capital of the partnership and that the remuneration receive by. V was only an increased share of the profits paid to him as representing the family. This Court (Hegde, J. dissenting) held that the remuneration paid to V was directly related to the investments from the assets of the family in the partnership business and "there was real and sufficient connection between the investment from the joint family funds and the remuneration paid to V". The salary paid to V was therefore assessable as the income of the Hindu undivided family.10. In M. D. Dhanwateys case, 1968-69 ITR 385 = (AIR 1968 SC 682 ) the facts were parallel to the facts in V. D. Dhanwateys case, 1968-68 ITR 365 = (AIR 1968 SC 683 ) and salary received by the Karta of the Hindu undivided family was treated as income of the family.11. In S. RM. CT. PL. Palaniappa Chettiars case, 1968-68 ITR 221 = (AIR 1968 SC 678 ) the Karta of a Hindu undivided family acquired go out of. 300 shares in a transport company with the funds of the family. In course of time be became the managing director of the Company. As managing director the Karta was entitled to salary and commission on the net profits of the company, and was entrusted with control over the financial and administrative affairs of the company. The only qualification under the articles of association for the office of a director was the holding of not less than is shares in his own right. It was held that the shares were acquired by the family not with the object that the Karta should become the managing director, but in the ordinary course of investment, and there was no real connection between the investment of joint family funds in the purchase of the shares and the appointment of the Karta as managing director of the company. The remuneration of the managing director, it was held, was not earned on account of any detriment to the joint family assets and the amounts received by the Karta as managing directors remuneration, commission an "sitting fee" were not assessable as the income of the Hindu undivided family.12. Income received by a member of a Hindu undivided family from a firm or a company in which the funds of the Hindu undivided family are invested,even though the income may be partially traceable to personal exertion of the member, is taxable as the income of the Hindu undivided family, if it is earned by detriment to the family funds or with the aid or assistance of those funds; otherwise it is taxable as the members separate income.13. Counsel for the assessee contended that the Tribunal had found that the business of M/s. P. S. N. Motors was built up "by the sole exertions" of the assessee and when the business was converted into a private limited company the shares therein were allotted to the assessee in view of "the valuable services rendered" by him in the promotion of the company and the "large sacrifices" he had made in agreeing to place his services at the disposal of the Company and "the immense benefit that the Company received "on account of his long experience, goodwill and reputation in the line of business", and, there ore, the salary, commission and "sitting fee" were in consideration of the services which the assessee rendered and were not attributable to the fact that the family had contributed to the main capital o the Company. Counsel said that this was a finding of fact which was binding upon the High Court. But this Court in V. D. Dhanwateys case, 1968-68 ITR 365 = (AIR 1968 SC 683 ) has held that the question whether the income was the income of the Hindu undivided family or the individual income was a finding on a mixed question of law and fact, and the final conclusion drawn from the primary evidentiary facts was open to challenge on the plea that the relevant principle had been misapplied by the Tribunal.14. The shares which qualified the assessee to become a member of the Company were purchased with the aid of joint family funds. The shares which were allotted to the assessee in lieu of his services were also treated as shares belonging to the joint family. The entire capital assets of the Company originally belonged to the joint family and were made available to the Company in consideration of a mere promise to pay the amount for which the assets were valued. The income was primarily earned by utilising the joint family assets or funds and the mere act that in the process of gaining the advantage an element of personal service or skill or labour was involved did not alter the character of the income. In cases of this class the character of the receipt must be determined by reference to its source, its relation to the assets of the family of which the recipient was the member, and the primary object with which the benefit received was disbursed. The conclusion of the High Court can not be said to be vitiated by any error. | 0[ds]But in our judgment there is no ground for holding that the Commissioner has attempted to revise the order of the Appellate Assistant Commissioner. In computing the income of the assessee as an individual, the Appellate Assistant Commissioner had directed certain modifications to be made, and pursuant thereto the assessments of the assessee and of the Hindu undivided family of which the assessee was the karta were rectified. The order of assessment of the Hindu undivided family was never challenged in appeal to the Appellate Assistant Commissioner. The Commissioner revised the order passed by theOfficer in so far as it related to the Hindu undivided family. It is true that in conseqence of the order of the Commissioner the salary, commission and the "sitting fee" received by the assessee had to be excluded from the total income of the assessee. But the Commissioner had power to revise the order passed by theOfficer which had not been appealed from. Modification in the order of theOfficer in so far as it related to the assessment of the assessee was consequential upon that order : it was made to prevent double taxation of the same income. It is true that the assessment of the assessee as an individual had become final before the order of the Commissioner, but that did not bar the exercise of jurisdiction by the Commissioner under Section 33 B (1). The question referred at the instance of the assessee was, therefore, rightly answered by the HighIncome received by a member of a Hindu undivided family from a firm or a company in which the funds of the Hindu undivided family are invested,even though the income may be partially traceable to personal exertion of the member, is taxable as the income of the Hindu undivided family, if it is earned by detriment to the family funds or with the aid or assistance of those funds; otherwise it is taxable as the members separate income.The shares which qualified the assessee to become a member of the Company were purchased with the aid of joint family funds. The shares which were allotted to the assessee in lieu of his services were also treated as shares belonging to the joint family. The entire capital assets of the Company originally belonged to the joint family and were made available to the Company in consideration of a mere promise to pay the amount for which the assets were valued. The income was primarily earned by utilising the joint family assets or funds and the mere act that in the process of gaining the advantage an element of personal service or skill or labour was involved did not alter the character of the income. In cases of this class the character of the receipt must be determined by reference to its source, its relation to the assets of the family of which the recipient was the member, and the primary object with which the benefit received was disbursed. The conclusion of the High Court can not be said to be vitiated by anythis Court in V. D. Dhanwateys case,ITR 365 = (AIR 1968 SC 683 ) has held that the question whether the income was the income of the Hindu undivided family or the individual income was a finding on a mixed question of law and fact, and the final conclusion drawn from the primary evidentiary facts was open to challenge on the plea that the relevant principle had been misapplied by the Tribunal. | 0 | 2,990 | 617 | ### 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:
(AIR 1968 SC 682 ). No useful purpose will be served by making an analysis of the earlier cases, because in our view three recent judgments of this Court lay down the principles which govern this class of cases. In V. D. Dhanwateys case, 1968=68 ITR 365 = (AIR 1968 SC 683 ), V, the Karta of a Hindu undivided family contributed to the capital of a firm out of the funds of the family. Under the agreement of partnership the general management and supervision of the partnership business was to be in the hands of V, and he was to be paid a monthly remuneration out of the gross earnings of the partnership business. V joined the partnership as representing the family and he became a partner on account of the investments of the joint family assets in the capital of the partnership and that the remuneration receive by. V was only an increased share of the profits paid to him as representing the family. This Court (Hegde, J. dissenting) held that the remuneration paid to V was directly related to the investments from the assets of the family in the partnership business and "there was real and sufficient connection between the investment from the joint family funds and the remuneration paid to V". The salary paid to V was therefore assessable as the income of the Hindu undivided family.10. In M. D. Dhanwateys case, 1968-69 ITR 385 = (AIR 1968 SC 682 ) the facts were parallel to the facts in V. D. Dhanwateys case, 1968-68 ITR 365 = (AIR 1968 SC 683 ) and salary received by the Karta of the Hindu undivided family was treated as income of the family.11. In S. RM. CT. PL. Palaniappa Chettiars case, 1968-68 ITR 221 = (AIR 1968 SC 678 ) the Karta of a Hindu undivided family acquired go out of. 300 shares in a transport company with the funds of the family. In course of time be became the managing director of the Company. As managing director the Karta was entitled to salary and commission on the net profits of the company, and was entrusted with control over the financial and administrative affairs of the company. The only qualification under the articles of association for the office of a director was the holding of not less than is shares in his own right. It was held that the shares were acquired by the family not with the object that the Karta should become the managing director, but in the ordinary course of investment, and there was no real connection between the investment of joint family funds in the purchase of the shares and the appointment of the Karta as managing director of the company. The remuneration of the managing director, it was held, was not earned on account of any detriment to the joint family assets and the amounts received by the Karta as managing directors remuneration, commission an "sitting fee" were not assessable as the income of the Hindu undivided family.12. Income received by a member of a Hindu undivided family from a firm or a company in which the funds of the Hindu undivided family are invested,even though the income may be partially traceable to personal exertion of the member, is taxable as the income of the Hindu undivided family, if it is earned by detriment to the family funds or with the aid or assistance of those funds; otherwise it is taxable as the members separate income.13. Counsel for the assessee contended that the Tribunal had found that the business of M/s. P. S. N. Motors was built up "by the sole exertions" of the assessee and when the business was converted into a private limited company the shares therein were allotted to the assessee in view of "the valuable services rendered" by him in the promotion of the company and the "large sacrifices" he had made in agreeing to place his services at the disposal of the Company and "the immense benefit that the Company received "on account of his long experience, goodwill and reputation in the line of business", and, there ore, the salary, commission and "sitting fee" were in consideration of the services which the assessee rendered and were not attributable to the fact that the family had contributed to the main capital o the Company. Counsel said that this was a finding of fact which was binding upon the High Court. But this Court in V. D. Dhanwateys case, 1968-68 ITR 365 = (AIR 1968 SC 683 ) has held that the question whether the income was the income of the Hindu undivided family or the individual income was a finding on a mixed question of law and fact, and the final conclusion drawn from the primary evidentiary facts was open to challenge on the plea that the relevant principle had been misapplied by the Tribunal.14. The shares which qualified the assessee to become a member of the Company were purchased with the aid of joint family funds. The shares which were allotted to the assessee in lieu of his services were also treated as shares belonging to the joint family. The entire capital assets of the Company originally belonged to the joint family and were made available to the Company in consideration of a mere promise to pay the amount for which the assets were valued. The income was primarily earned by utilising the joint family assets or funds and the mere act that in the process of gaining the advantage an element of personal service or skill or labour was involved did not alter the character of the income. In cases of this class the character of the receipt must be determined by reference to its source, its relation to the assets of the family of which the recipient was the member, and the primary object with which the benefit received was disbursed. The conclusion of the High Court can not be said to be vitiated by any error.
### Response:
0
### Explanation:
But in our judgment there is no ground for holding that the Commissioner has attempted to revise the order of the Appellate Assistant Commissioner. In computing the income of the assessee as an individual, the Appellate Assistant Commissioner had directed certain modifications to be made, and pursuant thereto the assessments of the assessee and of the Hindu undivided family of which the assessee was the karta were rectified. The order of assessment of the Hindu undivided family was never challenged in appeal to the Appellate Assistant Commissioner. The Commissioner revised the order passed by theOfficer in so far as it related to the Hindu undivided family. It is true that in conseqence of the order of the Commissioner the salary, commission and the "sitting fee" received by the assessee had to be excluded from the total income of the assessee. But the Commissioner had power to revise the order passed by theOfficer which had not been appealed from. Modification in the order of theOfficer in so far as it related to the assessment of the assessee was consequential upon that order : it was made to prevent double taxation of the same income. It is true that the assessment of the assessee as an individual had become final before the order of the Commissioner, but that did not bar the exercise of jurisdiction by the Commissioner under Section 33 B (1). The question referred at the instance of the assessee was, therefore, rightly answered by the HighIncome received by a member of a Hindu undivided family from a firm or a company in which the funds of the Hindu undivided family are invested,even though the income may be partially traceable to personal exertion of the member, is taxable as the income of the Hindu undivided family, if it is earned by detriment to the family funds or with the aid or assistance of those funds; otherwise it is taxable as the members separate income.The shares which qualified the assessee to become a member of the Company were purchased with the aid of joint family funds. The shares which were allotted to the assessee in lieu of his services were also treated as shares belonging to the joint family. The entire capital assets of the Company originally belonged to the joint family and were made available to the Company in consideration of a mere promise to pay the amount for which the assets were valued. The income was primarily earned by utilising the joint family assets or funds and the mere act that in the process of gaining the advantage an element of personal service or skill or labour was involved did not alter the character of the income. In cases of this class the character of the receipt must be determined by reference to its source, its relation to the assets of the family of which the recipient was the member, and the primary object with which the benefit received was disbursed. The conclusion of the High Court can not be said to be vitiated by anythis Court in V. D. Dhanwateys case,ITR 365 = (AIR 1968 SC 683 ) has held that the question whether the income was the income of the Hindu undivided family or the individual income was a finding on a mixed question of law and fact, and the final conclusion drawn from the primary evidentiary facts was open to challenge on the plea that the relevant principle had been misapplied by the Tribunal.
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UNION OF INDIA Vs. PRIME LEATHERS | Civil Appeal No. 2176/2009, Civil Appeal No. 2099/2009 and Civil Appeal No. 4352/2009 : 1. Having regard to the nature of the order which we propose to pass in these appeals, it is not necessary to state the factual matrix of these cases in detail. Suffice is to state that according to the Directorate of Revenue Intelligence (hereinafter referred to as the Revenue), the respondents in these appeals are the exporters of leather goods. They had been exporting unfinished leather but had been showing in their invoices that the leather goods were finished goods and on that basis seeking exemption from payment of export duty. In this manner, according to the Revenue, the respondents avoided to pay huge amounts of duty. The premises of these respondents were raided by the D.R.I. and again, according to the Revenue, the aforesaid practice adopted by the respondents was accepted and they also deposited the duty in the sum of Rs. seventy lakh, Rs. one crore and Rs. one crore respectively. 2. Show cause notices were issued by Proper Officers, except in the case of M/s. Prime Leathers. At that stage, the respondents filed their writ petitions in the High Court. The High Court while allowing the writ petitions has inter alia come to the finding that the deposits were not made by them voluntarily and the confessions were also not voluntary. It is also mentioned that in some of the cases even the show cause notices have not been issued. In these circumstances, the High Court directed refund of the aforesaid amounts deposited by these respondents subject to furnishing of some appropriate security. At the same time, the Revenue was also given opportunity to issue appropriate show cause notices and conclude the proceedings within one year. 3. It is pointed out by learned Additional Solicitor General that this Court had held that Proper Officer was not empowered to issue such show cause notices. In order to overcome the aforesaid embargo, there was an amendment in Section 28 of the Customs Act, 1962 by incorporating sub-section (11) vide Act, 14 of 2011. According to the Revenue, the effect of the said section is to validate all the notices issued earlier even by the Proper Officers. However, the issue about the interpretation of the provision was raised before the High Court of Delhi in the case of M/s. Mangali Impex Ltd. v. Union of India and Ors., 2016 SCC Online Del 2597 = 2016 (335) E.L.T. 605 (Del.), and the High Court has held that the aforesaid provision would operate prospectively and the effect of that would be that the notices issued earlier would not be validated. Against that judgment of the Delhi High Court, the Revenue has preferred special leave petition in which notice has been issued and Order dated 1-8-2016 [2016 (339) E.L.T. A49 (S.C.)] has been passed staying the operation of the aforesaid judgment. 4. Notwithstanding the above, the Revenue has not proceeded with the adjudication of the said show cause notices. It is stated by the Learned Additional Solicitor General that it has happened because of the Circular(s) issued by the C.B.D.T. to award the decision in the special leave petition filed in this Court. However, in the case of M/s. Prime Leathers proceedings in the show cause notice are continuing. Because of the aforesaid reasons, insofar as these three appeals are concerned, no adjudication has taken place. 5. Having regard to the above, when these matters are pending for the last almost 10 years and no adjudication has taken place, it may not be appropriate to interfere with the directions of the High Court to refund the amount to the respondents. We may note that insofar as M/s. Prime Leather is concerned, the amount has already been refunded and the respondent has also furnished security in terms of the directions contained in the impugned judgment. In the other two appeals, the amount of Rs. 1 crore each collected by the respondent shall also be refunded by the appellant to the respondent, subject to furnishing adequate solvent security. | 0[ds]However, the issue about the interpretation of the provision was raised before the High Court of Delhi in the case of M/s. Mangali Impex Ltd. v. Union of India and Ors., 2016 SCC Online Del 2597 = 2016 (335) E.L.T. 605 (Del.), and the High Court has held that the aforesaid provision would operate prospectively and the effect of that would be that the notices issued earlier would not be validated. Against that judgment of the Delhi High Court, the Revenue has preferred special leave petition in which notice has been issued and Order dated 1-8-2016 [2016 (339) E.L.T. A49 (S.C.)] has been passed staying the operation of the aforesaid judgment.4. Notwithstanding the above, the Revenue has not proceeded with the adjudication of the said show cause notices. It is stated by the Learned Additional Solicitor General that it has happened because of the Circular(s) issued by the C.B.D.T. to award the decision in the special leave petition filed in this Court. However, in the case of M/s. Prime Leathers proceedings in the show cause notice are continuing. Because of the aforesaid reasons, insofar as these three appeals are concerned, no adjudication has taken place.5. Having regard to the above, when these matters are pending for the last almost 10 years and no adjudication has taken place, it may not be appropriate to interfere with the directions of the High Court to refund the amount to the respondents. We may note that insofar as M/s. Prime Leather is concerned, the amount has already been refunded and the respondent has also furnished security in terms of the directions contained in the impugned judgment. In the other two appeals, the amount of Rs. 1 crore each collected by the respondent shall also be refunded by the appellant to the respondent, subject to furnishing adequate solvent security. | 0 | 767 | 351 | ### 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:
Civil Appeal No. 2176/2009, Civil Appeal No. 2099/2009 and Civil Appeal No. 4352/2009 : 1. Having regard to the nature of the order which we propose to pass in these appeals, it is not necessary to state the factual matrix of these cases in detail. Suffice is to state that according to the Directorate of Revenue Intelligence (hereinafter referred to as the Revenue), the respondents in these appeals are the exporters of leather goods. They had been exporting unfinished leather but had been showing in their invoices that the leather goods were finished goods and on that basis seeking exemption from payment of export duty. In this manner, according to the Revenue, the respondents avoided to pay huge amounts of duty. The premises of these respondents were raided by the D.R.I. and again, according to the Revenue, the aforesaid practice adopted by the respondents was accepted and they also deposited the duty in the sum of Rs. seventy lakh, Rs. one crore and Rs. one crore respectively. 2. Show cause notices were issued by Proper Officers, except in the case of M/s. Prime Leathers. At that stage, the respondents filed their writ petitions in the High Court. The High Court while allowing the writ petitions has inter alia come to the finding that the deposits were not made by them voluntarily and the confessions were also not voluntary. It is also mentioned that in some of the cases even the show cause notices have not been issued. In these circumstances, the High Court directed refund of the aforesaid amounts deposited by these respondents subject to furnishing of some appropriate security. At the same time, the Revenue was also given opportunity to issue appropriate show cause notices and conclude the proceedings within one year. 3. It is pointed out by learned Additional Solicitor General that this Court had held that Proper Officer was not empowered to issue such show cause notices. In order to overcome the aforesaid embargo, there was an amendment in Section 28 of the Customs Act, 1962 by incorporating sub-section (11) vide Act, 14 of 2011. According to the Revenue, the effect of the said section is to validate all the notices issued earlier even by the Proper Officers. However, the issue about the interpretation of the provision was raised before the High Court of Delhi in the case of M/s. Mangali Impex Ltd. v. Union of India and Ors., 2016 SCC Online Del 2597 = 2016 (335) E.L.T. 605 (Del.), and the High Court has held that the aforesaid provision would operate prospectively and the effect of that would be that the notices issued earlier would not be validated. Against that judgment of the Delhi High Court, the Revenue has preferred special leave petition in which notice has been issued and Order dated 1-8-2016 [2016 (339) E.L.T. A49 (S.C.)] has been passed staying the operation of the aforesaid judgment. 4. Notwithstanding the above, the Revenue has not proceeded with the adjudication of the said show cause notices. It is stated by the Learned Additional Solicitor General that it has happened because of the Circular(s) issued by the C.B.D.T. to award the decision in the special leave petition filed in this Court. However, in the case of M/s. Prime Leathers proceedings in the show cause notice are continuing. Because of the aforesaid reasons, insofar as these three appeals are concerned, no adjudication has taken place. 5. Having regard to the above, when these matters are pending for the last almost 10 years and no adjudication has taken place, it may not be appropriate to interfere with the directions of the High Court to refund the amount to the respondents. We may note that insofar as M/s. Prime Leather is concerned, the amount has already been refunded and the respondent has also furnished security in terms of the directions contained in the impugned judgment. In the other two appeals, the amount of Rs. 1 crore each collected by the respondent shall also be refunded by the appellant to the respondent, subject to furnishing adequate solvent security.
### Response:
0
### Explanation:
However, the issue about the interpretation of the provision was raised before the High Court of Delhi in the case of M/s. Mangali Impex Ltd. v. Union of India and Ors., 2016 SCC Online Del 2597 = 2016 (335) E.L.T. 605 (Del.), and the High Court has held that the aforesaid provision would operate prospectively and the effect of that would be that the notices issued earlier would not be validated. Against that judgment of the Delhi High Court, the Revenue has preferred special leave petition in which notice has been issued and Order dated 1-8-2016 [2016 (339) E.L.T. A49 (S.C.)] has been passed staying the operation of the aforesaid judgment.4. Notwithstanding the above, the Revenue has not proceeded with the adjudication of the said show cause notices. It is stated by the Learned Additional Solicitor General that it has happened because of the Circular(s) issued by the C.B.D.T. to award the decision in the special leave petition filed in this Court. However, in the case of M/s. Prime Leathers proceedings in the show cause notice are continuing. Because of the aforesaid reasons, insofar as these three appeals are concerned, no adjudication has taken place.5. Having regard to the above, when these matters are pending for the last almost 10 years and no adjudication has taken place, it may not be appropriate to interfere with the directions of the High Court to refund the amount to the respondents. We may note that insofar as M/s. Prime Leather is concerned, the amount has already been refunded and the respondent has also furnished security in terms of the directions contained in the impugned judgment. In the other two appeals, the amount of Rs. 1 crore each collected by the respondent shall also be refunded by the appellant to the respondent, subject to furnishing adequate solvent security.
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Commissioner Of Income-Tax, Delhi And Rajasthan Vs. M/S. Bharat Carbon And Ribbon Manufacturing Co | assessment, even after setting off the tax paid under S. 18-A of Rs. 47,513 still an amount of Rs. 20,000 was still due from this assessee. The amount under S. 18-A has, therefore, been adjusted by the Pakistan authorities towards the payment of tax and the assessee cannot take credit for this amount again. Under these circumstances, it must be held that there was no balance of tax paid under S. 18-A left to be adjusted by the Income-tax Officer for the Indian assessment."6. The assessee filed an appeal before the Appellate Tribunal. The Tribunal allowed the claim on the ground that the language of S. 18-A (11) was mandatory, and it was the duty of the Income-tax Authorities to give credit for the amount paid by the assessee as advance tax in the regular assessment made under the Indian Income-tax Act. It observed:"What the Income-tax Authorities would do or may have done to the advance tax paid to the Income-tax Officer, Lahore, is entirely immaterial."7. At the instance of the Commissioner of Income-tax a reference was made to the High Court. The High Court held that if the direction contained in S. 18-A (11) had to be obeyed, credit had necessarily to be given to the assessee at the time of regular assessment. In reply to the argument of the learned counsel for the Commissioner of Income-tax that no adjustment was possible because the Pakistan authorities had already raised a demand against the assessee on January 28, 1948, and in part satisfaction of that demand wiped out the amount standing to the credit of the assessee, the High Court observed:"It is, however, obvious that what may have been done by the Pakistan authorities in January, 1948, cannot be called a proceeding under the Indian Income-tax Act and the fact that the money paid by the assessee under the Indian Income-tax Act may have been seized by the Pakistan Authorities or disposed of in some other manner, can in no way affect the right of the assessee under the Indian Income-tax Act."In the result, the High Court answered both the questions in the affirmative.8. Mr. A. V. Viswanatha Sastri, the learned counsel for the appellant, contends before us that by virtue of S. 18 (3) of the Indian Independence Act, the Income-tax Act as it existed before the coming into force of the Indian Independence Act, applied both to the Dominion of Pakistan and the Dominion of India, and the result of this simultaneous application to both the Dominions was that the advance tax paid by the assessee was liable to be adjusted against the assessments made both in Pakistan and in Indian, and Pakistan having made the adjustment there was no money left to be adjusted against the assessment in India.9. The learned counsel for the respondent relies on the reasoning of he High Court and on Dwarka Dass v. Income-tax, Officer, Kanpur, (1956) 29 ITR 60 (All) and says it was the obligation of the Government of India under S. 9 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, either to refund the money paid as advance tax or to give credit in the assessment in India.10. Section 18 (3) of the Indian Independence Act reads as follows:"Save as otherwise expressly provided in this Act, the law of British India and of the several parts thereof existing immediately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf."11. In our opinion the effect of S. 18 (3) of the Indian Independence Act was to change the incidents of the advance tax paid. Previously the advance tax was to be adjusted towards a single regular assessment to be made by British India. After the Indian Independence Act the advance tax was liable to be adjusted against two regular assessments, one by India and one by Pakistan. In Pakistan, under S. 18-A (11), the Pakistan Government was entitled to adjust the advance tax paid by the assessee against its demand. Similarly, the Government of India was entitled to adjust the amount against its demand. It follows that if the assessee has been given credit for the advance tax by the Pakistan Government, he cannot claim that credit should be given to him by the Indian Income-tax Authorities. The effect of the Indian Independence Act was not to double the advance money the assessee had paid. The amount of money he paid as advance tax remained the same. Having been given credit by the Pakistan Government he could not claim that there was any amount left on which S. 18-A (11) could operate. Dwarka Dasss case, (1956) 29 ITR 60 (All) relied on by the learned counsel for the assessee is distinguishable because that case proceeded on the assumption that no regular assessments had been made in Pakistan for the relevant years and only some assessment proceedings were pending. It was also common ground that excess payments had been made by the petitioner in that case under S. 18-A of the Indian Income-tax Act in Lahore in respect of the years 1946-47 and 1947-48, and it was only these excess payments that the Allahabad High Court had directed should be set off against the assessments of the subsequent years. But the facts in the present case are different. Here the Pakistan Authorities had made a regular assessment and had adjusted the advance tax paid by the assessee.12. In this view it is not necessary to consider the interpretation of S. 9 of the Indian Independence (Rights, Property and Liabilities) Order, 1947. By virtue of the simultaneous application of the Indian Income-tax Act in both the Dominions, there was a statutory modification of the incidents of the advance tax paid by the assessee.13 | 1[ds]11. In our opinion the effect of S. 18 (3) of the Indian Independence Act was to change the incidents of the advance tax paid. Previously the advance tax was to be adjusted towards a single regular assessment to be made by British India. After the Indian Independence Act the advance tax was liable to be adjusted against two regular assessments, one by India and one by Pakistan. In Pakistan, under S. 18-A (11), the Pakistan Government was entitled to adjust the advance tax paid by the assessee against its demand. Similarly, the Government of India was entitled to adjust the amount against its demand. It follows that if the assessee has been given credit for the advance tax by the Pakistan Government, he cannot claim that credit should be given to him by the Indian Income-tax Authorities. The effect of the Indian Independence Act was not to double the advance money the assessee had paid. The amount of money he paid as advance tax remained the same. Having been given credit by the Pakistan Government he could not claim that there was any amount left on which S. 18-A (11) could operate. Dwarka Dasss case, (1956) 29 ITR 60 (All) relied on by the learned counsel for the assessee is distinguishable because that case proceeded on the assumption that no regular assessments had been made in Pakistan for the relevant years and only some assessment proceedings were pending. It was also common ground that excess payments had been made by the petitioner in that case under S. 18-A of the Indian Income-tax Act in Lahore in respect of the years 1946-47 and 1947-48, and it was only these excess payments that the Allahabad High Court had directed should be set off against the assessments of the subsequent years. But the facts in the present case are different. Here the Pakistan Authorities had made a regular assessment and had adjusted the advance tax paid by the assessee.12. In this view it is not necessary to consider the interpretation of S. 9 of the Indian Independence (Rights, Property and Liabilities) Order, 1947. By virtue of the simultaneous application of the Indian Income-tax Act in both the Dominions, there was a statutory modification of the incidents of the advance tax paid by the assessee. | 1 | 1,770 | 425 | ### 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:
assessment, even after setting off the tax paid under S. 18-A of Rs. 47,513 still an amount of Rs. 20,000 was still due from this assessee. The amount under S. 18-A has, therefore, been adjusted by the Pakistan authorities towards the payment of tax and the assessee cannot take credit for this amount again. Under these circumstances, it must be held that there was no balance of tax paid under S. 18-A left to be adjusted by the Income-tax Officer for the Indian assessment."6. The assessee filed an appeal before the Appellate Tribunal. The Tribunal allowed the claim on the ground that the language of S. 18-A (11) was mandatory, and it was the duty of the Income-tax Authorities to give credit for the amount paid by the assessee as advance tax in the regular assessment made under the Indian Income-tax Act. It observed:"What the Income-tax Authorities would do or may have done to the advance tax paid to the Income-tax Officer, Lahore, is entirely immaterial."7. At the instance of the Commissioner of Income-tax a reference was made to the High Court. The High Court held that if the direction contained in S. 18-A (11) had to be obeyed, credit had necessarily to be given to the assessee at the time of regular assessment. In reply to the argument of the learned counsel for the Commissioner of Income-tax that no adjustment was possible because the Pakistan authorities had already raised a demand against the assessee on January 28, 1948, and in part satisfaction of that demand wiped out the amount standing to the credit of the assessee, the High Court observed:"It is, however, obvious that what may have been done by the Pakistan authorities in January, 1948, cannot be called a proceeding under the Indian Income-tax Act and the fact that the money paid by the assessee under the Indian Income-tax Act may have been seized by the Pakistan Authorities or disposed of in some other manner, can in no way affect the right of the assessee under the Indian Income-tax Act."In the result, the High Court answered both the questions in the affirmative.8. Mr. A. V. Viswanatha Sastri, the learned counsel for the appellant, contends before us that by virtue of S. 18 (3) of the Indian Independence Act, the Income-tax Act as it existed before the coming into force of the Indian Independence Act, applied both to the Dominion of Pakistan and the Dominion of India, and the result of this simultaneous application to both the Dominions was that the advance tax paid by the assessee was liable to be adjusted against the assessments made both in Pakistan and in Indian, and Pakistan having made the adjustment there was no money left to be adjusted against the assessment in India.9. The learned counsel for the respondent relies on the reasoning of he High Court and on Dwarka Dass v. Income-tax, Officer, Kanpur, (1956) 29 ITR 60 (All) and says it was the obligation of the Government of India under S. 9 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, either to refund the money paid as advance tax or to give credit in the assessment in India.10. Section 18 (3) of the Indian Independence Act reads as follows:"Save as otherwise expressly provided in this Act, the law of British India and of the several parts thereof existing immediately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf."11. In our opinion the effect of S. 18 (3) of the Indian Independence Act was to change the incidents of the advance tax paid. Previously the advance tax was to be adjusted towards a single regular assessment to be made by British India. After the Indian Independence Act the advance tax was liable to be adjusted against two regular assessments, one by India and one by Pakistan. In Pakistan, under S. 18-A (11), the Pakistan Government was entitled to adjust the advance tax paid by the assessee against its demand. Similarly, the Government of India was entitled to adjust the amount against its demand. It follows that if the assessee has been given credit for the advance tax by the Pakistan Government, he cannot claim that credit should be given to him by the Indian Income-tax Authorities. The effect of the Indian Independence Act was not to double the advance money the assessee had paid. The amount of money he paid as advance tax remained the same. Having been given credit by the Pakistan Government he could not claim that there was any amount left on which S. 18-A (11) could operate. Dwarka Dasss case, (1956) 29 ITR 60 (All) relied on by the learned counsel for the assessee is distinguishable because that case proceeded on the assumption that no regular assessments had been made in Pakistan for the relevant years and only some assessment proceedings were pending. It was also common ground that excess payments had been made by the petitioner in that case under S. 18-A of the Indian Income-tax Act in Lahore in respect of the years 1946-47 and 1947-48, and it was only these excess payments that the Allahabad High Court had directed should be set off against the assessments of the subsequent years. But the facts in the present case are different. Here the Pakistan Authorities had made a regular assessment and had adjusted the advance tax paid by the assessee.12. In this view it is not necessary to consider the interpretation of S. 9 of the Indian Independence (Rights, Property and Liabilities) Order, 1947. By virtue of the simultaneous application of the Indian Income-tax Act in both the Dominions, there was a statutory modification of the incidents of the advance tax paid by the assessee.13
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11. In our opinion the effect of S. 18 (3) of the Indian Independence Act was to change the incidents of the advance tax paid. Previously the advance tax was to be adjusted towards a single regular assessment to be made by British India. After the Indian Independence Act the advance tax was liable to be adjusted against two regular assessments, one by India and one by Pakistan. In Pakistan, under S. 18-A (11), the Pakistan Government was entitled to adjust the advance tax paid by the assessee against its demand. Similarly, the Government of India was entitled to adjust the amount against its demand. It follows that if the assessee has been given credit for the advance tax by the Pakistan Government, he cannot claim that credit should be given to him by the Indian Income-tax Authorities. The effect of the Indian Independence Act was not to double the advance money the assessee had paid. The amount of money he paid as advance tax remained the same. Having been given credit by the Pakistan Government he could not claim that there was any amount left on which S. 18-A (11) could operate. Dwarka Dasss case, (1956) 29 ITR 60 (All) relied on by the learned counsel for the assessee is distinguishable because that case proceeded on the assumption that no regular assessments had been made in Pakistan for the relevant years and only some assessment proceedings were pending. It was also common ground that excess payments had been made by the petitioner in that case under S. 18-A of the Indian Income-tax Act in Lahore in respect of the years 1946-47 and 1947-48, and it was only these excess payments that the Allahabad High Court had directed should be set off against the assessments of the subsequent years. But the facts in the present case are different. Here the Pakistan Authorities had made a regular assessment and had adjusted the advance tax paid by the assessee.12. In this view it is not necessary to consider the interpretation of S. 9 of the Indian Independence (Rights, Property and Liabilities) Order, 1947. By virtue of the simultaneous application of the Indian Income-tax Act in both the Dominions, there was a statutory modification of the incidents of the advance tax paid by the assessee.
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The Regional Director Employees State Insurance Corporation Vs. M/S. Eastern Engineering Company | number of employees as :JanFebMarchAprilMayJuneJulyAug.Sep.Oct.Nov.Dec.1980WR262626262727272626262727MR222223232424242423222222 24. The counsel for the respondent tried to explain these figures that these figures are given at the instance and insistence of the factory inspector. He submitted that the respondent company is working as Commission agent at Mumbai having various branches at Jamshedpur, Delhi, Kolkatta and has got independent factory at Bangalore. He submitted that the number of employees who are working at the office at Mumbai, Delhi, Kolkata and Jamshedpur are mentioned and therefore, the number of these employees cannot be taken into account.25. My attention is drawn by the learned counsel for the appellant to Form No. O-1 which is Employers Registration Form Regulation 10-B. This form was filled in by the Accountant of the respondent and where the same figures of the attendance of the employees and wage roll of the employees is shown in the year 1980. Thus, the figures mentioned in the report of the factory inspector cannot be disputed. So far as counting the number of employees in the branches is concerned, Section 2(9) is very clear.26. Thus, as per the Act, the employees from all the branches are also to be taken into account for the purpose of definition of the employees. Moreover, in the evidence of Shekhar Hovaya Shetty, the witness for the applicant, who is the Chartered Accountant of the respondent, has given evidence and he has specifically mentioned that the companys independent factory situates at Bangalore in which the company manufactures pressed sheet metal components and celing jobs. Bangalore factory started in the year 1971-72 and the employees of the Bangalore office are not mentioned in the submission to the factory inspector. Thus, as per his evidence, there may be less employees working at Mumbai office alone which is a HUB but the employees working in the branches, excluding Bangalore, if taken into account, the figure goes above 20 and therefore, ESI Act is applicable to this respondent.27. The appellant has taken defence that some workers in the factory are drawing wages above ceiling, i.e., then ceiling was Rs.1,000/-. The trial Court has committed error in putting burden to prove this fact on the respondent/Corporation. The learned Judge of Employees Insurance Court has stated that the Corporation has failed to discharge the burden on the point that 20 workers in the establishment were drawing salary below the ceiling. The burden in fact lies not on the Corporation but on the appellant-company itself. The persons are in employment of the appellant and hence the fact that how much wages are paid to each of them is within the knowledge of the appellant. The Corporation when alleges that the number is 20 and they are in employment of the appellant and therefore, demands contribution, then the onus lies on the appellant to come forward and adduce evidence and show that some of the workers are paid wages above the ceiling and hence E.S.I. Act is not applicable to the appellant. The burden should be put on the person who asserts and the fact is within whose knowledge. A person may claim certain things on the basis of certain physical facts. The burden is on the Corporation to show that 20 persons were employed in the premises when it was inspected by their officer. When it is shown that the persons are 20 and it is claimed that they are drawing the wages below the ceiling, it is not possible for the Corporation to prove this fact that they are below the ceiling, as the Corporation is not the employer of these persons. About the wages and payment, the knowledge is not with the corporation but being the employer, with the appellant. Therefore, onus shifts on the appellant to prove that some of these 20 employees were drawing wages below Rs.1000/-. The documentary proof of the payments and receipts of the same is with the appellant and, therefore, those things should have been produced before the learned Judge at the time of evidence by the appellant. Thus finding given by the learned Judge of Employees Insurance Court is wrong and deserves to be set aside.28. So far as coverage is concerned, the applicant admittedly is not involved in the manufacturing activities in Mumbai or other branches except Bangalore. It is considered as a shop, hence, covered under the Act. The shop is not included in the Act but by Government Notification No, ESI/1677/3910/P.11-15 dated 18th September, 1978, the Government of Maharashtra has enhanced the coverage of the ESI Act to the establishment wherein hotels, restaurants, shops, cinemas, newspaper establishments are also included. Clause No. 3 of the Schedule of the said Notification is very relevant for the purpose of of application and coverage of the Act.29. In the case of Bangalore Turf Club Limited (supra), the issue before the Court was whether Race Club is an establishment for the purposes of E.S.I. Act and whether the Turf Clubs fall within the scope of the definition of word shop as categorized in the notifications. In the said judgment, the Honble Supreme Court while considering the object of E.S.I. Act has held that E.S.I. Act should receive a liberal and beneficial construction so as to achieve legislative purpose without doing violence to the language of the enactment and the Act was enacted to provide certain benefits to employees in case of sickness, maternity in case of female employees, employment injury and to make provision in certain other matters in relation thereto. It is further held as under:The test of finding out whether professional activity falls within the meaning of the expression establishment is whether the activity is systematically and habitually undertaken for production or distribution of the goods or services to the community with the help of employees in the manner of a trade or business in such an undertaking. If a systematic economic or commercial activity is carried on in the premises, it would follow that the establishment at which such an activity is carried on is a shop. | 1[ds]14. Thus, the distinction between Sections 2(9) and 2(10) is mainly wage based and the ceiling is placed on the basis of amount of wages earned by the employee. If that yardstick is applied, then we may get two types of employees in one establishment or factory. There may be different pay scales or increase in wages due to increment because of experience, skill etc. There can be skilled or unskilled workers. There may be freshers or experienced workers. On that basis, the wages may differ. However, some of these employees may be getting wages below the ceiling and some above the ceiling. However, they all are getting wages and not salary. Therefore, they all are to be considered as employees.15. This is supported by further sub section, i.e., Section 2(10) of the Act wherein the term exempted employee is defined an employee who is not liable under this Act to pay the employees contribution. That means, though he is an employee under the Act, he is that class of employee may be drawing salary or wages but above the ceiling hence is not liable to pay the employees contribution and, therefore, will not get the medical benefits under the Scheme as they are getting better payment. The legislature has thoughtfully considered the possibility of difference in the wages of the employees working under the same factory or establishment and the employees, who are getting salary less than prescribed wages, are categorized and defined under Section 2(9) of the Act. For those employees, it is obligation on the part of the employer to pay the contribution on their behalf. Section 2(9) does not only define the employees on the basis of wages but it also further defines and covers the class of employees on the basis of relationship with the employer, i.e., contractual workers who are having a temporary service and so also the employees working in other department and branches.d Counsel for the ESIC argued by giving example that the employer has to pay the contribution of the workers who are earning less than Rs.1,000/but for the application of the Act, the minimum number of employees should be 20.Thus, out of 20, there may be two employees who are drawing less than Rs.1,000/or there may be 18 employees who are drawing less thanfor those employees only the employer is required to pay the contribution. For applicability of the Act, if such criterion of 20 employees earning less than Rs.1000/is applied, then it is very easy for the employer to giveto the scheme, just by paying wages of Rs.1,001/to one or more employees. Such situation is not contemplated under the Act, as it will defeat the object of the Act.18. In the case of Employees State Insurance Corporation vs. M/s. M.M. SuriAssociates (supra), the Honble Supreme Court held that 20 or more persons should be those who fall under the definition of employee as given in Section 2(9) of the Act. The Supreme Court observed that though 6 to 7 persons drawing wages less than prescribed ceiling of the wages and other employees drawing above that ceiling and though the number is 20 or more, the scheme cannot be applied, as the definition of number of 20 employees under section 2(9) of the Act is not complete. The Supreme Court has considered the earlier rulings in the case of Regional Director, Employees State Insurance Corporation, Trichur vs, Ramanuja Match Industries, AIR 1985 SC 278 . In that case, the question before the Court was whether a partner of the firm is an employee and it was answered No because he was not drawing wages. Thus, the Court in the case of M.M. Suri has mainly applied the yardstick of wages which is defined under section 2(22) of the Act. In the said case, the Honble Supreme Court has also relied on the case of Employees State Insurance Corporation vs. Apex Engineering Pvt. Ltd., (1998) 1 SCC 86 wherein the judgment of the Bombay High Court holding that the Managing Director of thewas not an employee within the meaning of Section 2(9) of the Act was reversed. The directions given in the case of ESIC vs. Apex Engineering Pvt. Ltd. were reproduced by the Honble Supreme Court in the case of M.M. Suri. Considering those directions, what is important is that the persons should be employed on wages on any work connected with the work of the factory or establishment. In the case of M.M. Suri (supra), the Honble Supreme also specifically reproduced the finding given by the Honble Supreme Court in the case of Regional Director, Employees State Insurance Corporation, Trichur vs. Ramanuja Match Industries (supra) wherein it is observed thus:We do not doubt that beneficial legislations should have liberal construction with a view to implementing the legislative intent but where such beneficial legislation has a scheme of its own there is no warrant for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered by the scheme.This proposition of law cannot be disputed, as it is a settled principal of law.19. In the said case, there were 5 officers and the number of workers were admittedly less than 20, therefore, the Supreme Court in the last paragraph of the said judgment has observed that In the present case, there is no dispute that as per the notification in question, establishment of respondent is a shop and number of employees falling within the definition of Section 2 (9) of the Act are less than 20, We, therefore, uphold the impugned judgment of the High Court that since in the establishment of the respondent, the employees number less than 20 the notification dated September 30, 1988 extending the Act to the establishment of the respondent is not applicable.20. In the judgment of M.M. Suri (supra), the Honble Supreme Court has referred and relied on the judmgent of Regional Director, Employees State Insurance Corporation, Trichur vs. Ramanuja Match Industries (supra) and ESIC vs. Apex Engineering Pvt. Ltd. (supra). As mentioned earlier, the issue was whether the partner can be covered under the definition of employee and so also whether the Managing Director can be considered as an employee. In the case of Employees State Insurance Corporation, Trichur vs. Ramanuja Match Industries (supra), he, being the partner though drawing the wages lesser than the ceiling, the partners were not the employees and rather they were the proprietors of the firm and if the number of the partners is deducted, then the total number of employees would be less than twenty. However, in the case ESIC vs. Apex Engineering Pvt. Ltd. (supra), the Supreme Court allowed the Appeal of ESIC and held that as the Managing Director remained within the permissible limits of wages as per Section 2(9) of the Act and hence it reaches the figure of twenty. Thus all the requisite conditions for applicability of the term employee as defined by the Act stood satisfied in the case."21. In the case of M.M. Suri (supra), the Honble Supreme Court also relied on the judgment of Division Bench of the Andhra Pradesh High Court in Andhra Pradesh State Electricity Board, Nellore v. Employees State Insurance Corporation, Hyderabad, (1997) Lab.I.C. 1107. In the said judgment, the Division Bench has expressed that wider meaning is to be given to definition of wages while considering Section 2(9) of the Act and it also referred Section 2(12), i.e., of the factory and Division Bench held that in the said defining clause, stress was given on the word persons and thus for the applicability of the Act, only criteria is to see if the establishment has 20 or more persons in its employment. The Supreme Court in M.M. Suris case further observed that the definition of factory has changed by Amendment Act 44 of 1966 and it was further substituted by the words "the persons employed for wages" and the word wages is specifically introduced in the Section and defined under Section 2(22) of the Act. The Honble Supreme Court in M.M. Suri has concluded that In our view, therefore, the Act would apply to an establishment only when number of employees is 20 or more and all those employees answer the description of employee contained in Section 2(9) of the Act., though the learned counsel for the appellant has argued that as per the definition under section 1(3) of the Act, it is made applicable to the establishment wherein 20 employees are employed on wages, irrespective of their wages either below or above ceiling and hence the definition of Factory or Establishment is fulfilled, cannot be accepted.These submissions are though found very impressive and compelling, in view of the judgment and ratio laid down in the case of M.M. Suri, no another view can be taken and the submissions of learned counsel cannot be accepted on this point.23. However, in the present case, the Act is applicable in view of different set of facts which I address hereafter. In the present case, the factory inspector has visited on 8th January, 1981 and he prepared his report on the same day in which he has incorporated the number of employees as per wage register from January 1978 to December 1980 and muster roll from January 1978 to January 1981.The counsel for the respondent tried to explain these figures that these figures are given at the instance and insistence of the factory inspector. He submitted that the respondent company is working as Commission agent at Mumbai having various branches at Jamshedpur, Delhi, Kolkatta and has got independent factory at Bangalore. He submitted that the number of employees who are working at the office at Mumbai, Delhi, Kolkata and Jamshedpur are mentioned and therefore, the number of these employees cannot be taken into account.25. My attention is drawn by the learned counsel for the appellant to Form No.which is Employers Registration Form RegulationThis form was filled in by the Accountant of the respondent and where the same figures of the attendance of the employees and wage roll of the employees is shown in the year 1980. Thus, the figures mentioned in the report of the factory inspector cannot be disputed. So far as counting the number of employees in the branches is concerned, Section 2(9) is very clear.26. Thus, as per the Act, the employees from all the branches are also to be taken into account for the purpose of definition of the employees. Moreover, in the evidence of Shekhar Hovaya Shetty, the witness for the applicant, who is the Chartered Accountant of the respondent, has given evidence and he has specifically mentioned that the companys independent factory situates at Bangalore in which the company manufactures pressed sheet metal components and celing jobs. Bangalore factory started in the yearand the employees of the Bangalore office are not mentioned in the submission to the factory inspector. Thus, as per his evidence, there may be less employees working at Mumbai office alone which is a HUB but the employees working in the branches, excluding Bangalore, if taken into account, the figure goes above 20 and therefore, ESI Act is applicable to this respondent.27. The appellant has taken defence that some workers in the factory are drawing wages above ceiling, i.e., then ceiling was Rs.The trial Court has committed error in putting burden to prove this fact on the respondent/Corporation. The learned Judge of Employees Insurance Court has stated that the Corporation has failed to discharge the burden on the point that 20 workers in the establishment were drawing salary below the ceiling. The burden in fact lies not on the Corporation but on theitself. The persons are in employment of the appellant and hence the fact that how much wages are paid to each of them is within the knowledge of the appellant. The Corporation when alleges that the number is 20 and they are in employment of the appellant and therefore, demands contribution, then the onus lies on the appellant to come forward and adduce evidence and show that some of the workers are paid wages above the ceiling and hence E.S.I. Act is not applicable to the appellant. The burden should be put on the person who asserts and the fact is within whose knowledge. A person may claim certain things on the basis of certain physical facts. The burden is on the Corporation to show that 20 persons were employed in the premises when it was inspected by their officer. When it is shown that the persons are 20 and it is claimed that they are drawing the wages below the ceiling, it is not possible for the Corporation to prove this fact that they are below the ceiling, as the Corporation is not the employer of these persons. About the wages and payment, the knowledge is not with the corporation but being the employer, with the appellant. Therefore, onus shifts on the appellant to prove that some of these 20 employees were drawing wages below Rs.The documentary proof of the payments and receipts of the same is with the appellant and, therefore, those things should have been produced before the learned Judge at the time of evidence by the appellant. Thus finding given by the learned Judge of Employees Insurance Court is wrong and deserves to be set aside.28. So far as coverage is concerned, the applicant admittedly is not involved in the manufacturing activities in Mumbai or other branches except Bangalore. It is considered as a shop, hence, covered under the Act. The shop is not included in the Act but by Government Notification No,dated 18th September, 1978, the Government of Maharashtra has enhanced the coverage of the ESI Act to the establishment wherein hotels, restaurants, shops, cinemas, newspaper establishments are also included. Clause No. 3 of the Schedule of the said Notification is very relevant for the purpose of of application and coverage of the Act.29. In the case of Bangalore Turf Club Limited (supra), the issue before the Court was whether Race Club is an establishment for the purposes of E.S.I. Act and whether the Turf Clubs fall within the scope of the definition of word shop as categorized in the notifications. In the said judgment, the Honble Supreme Court while considering the object of E.S.I. Act has held that E.S.I. Act should receive a liberal and beneficial construction so as to achieve legislative purpose without doing violence to the language of the enactment and the Act was enacted to provide certain benefits to employees in case of sickness, maternity in case of female employees, employment injury and to make provision in certain other matters in relation thereto. It is further held as under:The test of finding out whether professional activity falls within the meaning of the expression establishment is whether the activity is systematically and habitually undertaken for production or distribution of the goods or services to the community with the help of employees in the manner of a trade or business in such an undertaking. If a systematic economic or commercial activity is carried on in the premises, it would follow that the establishment at which such an activity is carried on is a shop. | 1 | 5,355 | 2,847 | ### 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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number of employees as :JanFebMarchAprilMayJuneJulyAug.Sep.Oct.Nov.Dec.1980WR262626262727272626262727MR222223232424242423222222 24. The counsel for the respondent tried to explain these figures that these figures are given at the instance and insistence of the factory inspector. He submitted that the respondent company is working as Commission agent at Mumbai having various branches at Jamshedpur, Delhi, Kolkatta and has got independent factory at Bangalore. He submitted that the number of employees who are working at the office at Mumbai, Delhi, Kolkata and Jamshedpur are mentioned and therefore, the number of these employees cannot be taken into account.25. My attention is drawn by the learned counsel for the appellant to Form No. O-1 which is Employers Registration Form Regulation 10-B. This form was filled in by the Accountant of the respondent and where the same figures of the attendance of the employees and wage roll of the employees is shown in the year 1980. Thus, the figures mentioned in the report of the factory inspector cannot be disputed. So far as counting the number of employees in the branches is concerned, Section 2(9) is very clear.26. Thus, as per the Act, the employees from all the branches are also to be taken into account for the purpose of definition of the employees. Moreover, in the evidence of Shekhar Hovaya Shetty, the witness for the applicant, who is the Chartered Accountant of the respondent, has given evidence and he has specifically mentioned that the companys independent factory situates at Bangalore in which the company manufactures pressed sheet metal components and celing jobs. Bangalore factory started in the year 1971-72 and the employees of the Bangalore office are not mentioned in the submission to the factory inspector. Thus, as per his evidence, there may be less employees working at Mumbai office alone which is a HUB but the employees working in the branches, excluding Bangalore, if taken into account, the figure goes above 20 and therefore, ESI Act is applicable to this respondent.27. The appellant has taken defence that some workers in the factory are drawing wages above ceiling, i.e., then ceiling was Rs.1,000/-. The trial Court has committed error in putting burden to prove this fact on the respondent/Corporation. The learned Judge of Employees Insurance Court has stated that the Corporation has failed to discharge the burden on the point that 20 workers in the establishment were drawing salary below the ceiling. The burden in fact lies not on the Corporation but on the appellant-company itself. The persons are in employment of the appellant and hence the fact that how much wages are paid to each of them is within the knowledge of the appellant. The Corporation when alleges that the number is 20 and they are in employment of the appellant and therefore, demands contribution, then the onus lies on the appellant to come forward and adduce evidence and show that some of the workers are paid wages above the ceiling and hence E.S.I. Act is not applicable to the appellant. The burden should be put on the person who asserts and the fact is within whose knowledge. A person may claim certain things on the basis of certain physical facts. The burden is on the Corporation to show that 20 persons were employed in the premises when it was inspected by their officer. When it is shown that the persons are 20 and it is claimed that they are drawing the wages below the ceiling, it is not possible for the Corporation to prove this fact that they are below the ceiling, as the Corporation is not the employer of these persons. About the wages and payment, the knowledge is not with the corporation but being the employer, with the appellant. Therefore, onus shifts on the appellant to prove that some of these 20 employees were drawing wages below Rs.1000/-. The documentary proof of the payments and receipts of the same is with the appellant and, therefore, those things should have been produced before the learned Judge at the time of evidence by the appellant. Thus finding given by the learned Judge of Employees Insurance Court is wrong and deserves to be set aside.28. So far as coverage is concerned, the applicant admittedly is not involved in the manufacturing activities in Mumbai or other branches except Bangalore. It is considered as a shop, hence, covered under the Act. The shop is not included in the Act but by Government Notification No, ESI/1677/3910/P.11-15 dated 18th September, 1978, the Government of Maharashtra has enhanced the coverage of the ESI Act to the establishment wherein hotels, restaurants, shops, cinemas, newspaper establishments are also included. Clause No. 3 of the Schedule of the said Notification is very relevant for the purpose of of application and coverage of the Act.29. In the case of Bangalore Turf Club Limited (supra), the issue before the Court was whether Race Club is an establishment for the purposes of E.S.I. Act and whether the Turf Clubs fall within the scope of the definition of word shop as categorized in the notifications. In the said judgment, the Honble Supreme Court while considering the object of E.S.I. Act has held that E.S.I. Act should receive a liberal and beneficial construction so as to achieve legislative purpose without doing violence to the language of the enactment and the Act was enacted to provide certain benefits to employees in case of sickness, maternity in case of female employees, employment injury and to make provision in certain other matters in relation thereto. It is further held as under:The test of finding out whether professional activity falls within the meaning of the expression establishment is whether the activity is systematically and habitually undertaken for production or distribution of the goods or services to the community with the help of employees in the manner of a trade or business in such an undertaking. If a systematic economic or commercial activity is carried on in the premises, it would follow that the establishment at which such an activity is carried on is a shop.
### Response:
1
### Explanation:
as per wage register from January 1978 to December 1980 and muster roll from January 1978 to January 1981.The counsel for the respondent tried to explain these figures that these figures are given at the instance and insistence of the factory inspector. He submitted that the respondent company is working as Commission agent at Mumbai having various branches at Jamshedpur, Delhi, Kolkatta and has got independent factory at Bangalore. He submitted that the number of employees who are working at the office at Mumbai, Delhi, Kolkata and Jamshedpur are mentioned and therefore, the number of these employees cannot be taken into account.25. My attention is drawn by the learned counsel for the appellant to Form No.which is Employers Registration Form RegulationThis form was filled in by the Accountant of the respondent and where the same figures of the attendance of the employees and wage roll of the employees is shown in the year 1980. Thus, the figures mentioned in the report of the factory inspector cannot be disputed. So far as counting the number of employees in the branches is concerned, Section 2(9) is very clear.26. Thus, as per the Act, the employees from all the branches are also to be taken into account for the purpose of definition of the employees. Moreover, in the evidence of Shekhar Hovaya Shetty, the witness for the applicant, who is the Chartered Accountant of the respondent, has given evidence and he has specifically mentioned that the companys independent factory situates at Bangalore in which the company manufactures pressed sheet metal components and celing jobs. Bangalore factory started in the yearand the employees of the Bangalore office are not mentioned in the submission to the factory inspector. Thus, as per his evidence, there may be less employees working at Mumbai office alone which is a HUB but the employees working in the branches, excluding Bangalore, if taken into account, the figure goes above 20 and therefore, ESI Act is applicable to this respondent.27. The appellant has taken defence that some workers in the factory are drawing wages above ceiling, i.e., then ceiling was Rs.The trial Court has committed error in putting burden to prove this fact on the respondent/Corporation. The learned Judge of Employees Insurance Court has stated that the Corporation has failed to discharge the burden on the point that 20 workers in the establishment were drawing salary below the ceiling. The burden in fact lies not on the Corporation but on theitself. The persons are in employment of the appellant and hence the fact that how much wages are paid to each of them is within the knowledge of the appellant. The Corporation when alleges that the number is 20 and they are in employment of the appellant and therefore, demands contribution, then the onus lies on the appellant to come forward and adduce evidence and show that some of the workers are paid wages above the ceiling and hence E.S.I. Act is not applicable to the appellant. The burden should be put on the person who asserts and the fact is within whose knowledge. A person may claim certain things on the basis of certain physical facts. The burden is on the Corporation to show that 20 persons were employed in the premises when it was inspected by their officer. When it is shown that the persons are 20 and it is claimed that they are drawing the wages below the ceiling, it is not possible for the Corporation to prove this fact that they are below the ceiling, as the Corporation is not the employer of these persons. About the wages and payment, the knowledge is not with the corporation but being the employer, with the appellant. Therefore, onus shifts on the appellant to prove that some of these 20 employees were drawing wages below Rs.The documentary proof of the payments and receipts of the same is with the appellant and, therefore, those things should have been produced before the learned Judge at the time of evidence by the appellant. Thus finding given by the learned Judge of Employees Insurance Court is wrong and deserves to be set aside.28. So far as coverage is concerned, the applicant admittedly is not involved in the manufacturing activities in Mumbai or other branches except Bangalore. It is considered as a shop, hence, covered under the Act. The shop is not included in the Act but by Government Notification No,dated 18th September, 1978, the Government of Maharashtra has enhanced the coverage of the ESI Act to the establishment wherein hotels, restaurants, shops, cinemas, newspaper establishments are also included. Clause No. 3 of the Schedule of the said Notification is very relevant for the purpose of of application and coverage of the Act.29. In the case of Bangalore Turf Club Limited (supra), the issue before the Court was whether Race Club is an establishment for the purposes of E.S.I. Act and whether the Turf Clubs fall within the scope of the definition of word shop as categorized in the notifications. In the said judgment, the Honble Supreme Court while considering the object of E.S.I. Act has held that E.S.I. Act should receive a liberal and beneficial construction so as to achieve legislative purpose without doing violence to the language of the enactment and the Act was enacted to provide certain benefits to employees in case of sickness, maternity in case of female employees, employment injury and to make provision in certain other matters in relation thereto. It is further held as under:The test of finding out whether professional activity falls within the meaning of the expression establishment is whether the activity is systematically and habitually undertaken for production or distribution of the goods or services to the community with the help of employees in the manner of a trade or business in such an undertaking. If a systematic economic or commercial activity is carried on in the premises, it would follow that the establishment at which such an activity is carried on is a shop.
|
Modipon Fibre Company, Modinagar, U.P Vs. Commissioner of Central Excise, Meerut | under the Act and, therefore, effective duty of excise is the duty calculated on the basis of the prescribed rate as reduced by the exemption notification. This alone is excluded from the normal price under section 4(4)(d)(ii). 12. It is true that the Explanation to section 4(4)(d)(ii) only refers to the amount of duty of excise payable on excisable goods, however, as held by the Bombay High Court in the case of B.K. Paper Mills (supra), the Explanation expressly sets out what is implicit in section 4(4)(d)(ii) which states that "value" in relation to excisable goods does not include the amount of duty of excise, sales tax and other taxes if payable on such goods. Therefore, the test to be applied is that of the "actual value of the duty payable" and, therefore, there is no merit in the argument advanced on behalf of the assessee that the Explanation is restricted to the duty of excise. This principle can therefore apply also to actual value of any other tax including TOT payable. Even without the Explanation, the scheme of section 4(4)(d)(ii) shows that in computing the assessable value, one has to go by the actual value of the duty payable and, therefore, only the reduced duty was deductible from the value of the goods. 13. To the same effect is the judgment of the Division Bench of the Bombay High Court in the case of Central India Spinning, Weaving and Manufacturing Co. Ltd. and ors. v. Union of India and ors. reported in 1987 (30) ELT 217 (Bom.). We quote herein below para 7 of the said judgment, which reads as follows: "It is true that according to Section 4(4)(d)(ii) of the Central Excises Act, the value does not include the amount of duty of excise, if any payable on such goods, but in view of Explanation to Section 4(4)(d)(ii), the duty of excise means the duty payable in terms of the Central Excise Tariff read with Exemption Notification issued under Rule 8 of the Central Excise Rules. In this view of the matter, the only deduction that is permissible is of the actual duty paid or payable while fixing the assessable value. Thus where the company/ manufacturer whose goods were liable to excise duty at a reduced rate in consequence of an exemption notification, while paying duty at reduced rate collected duty at a higher rate i.e. tariff rate from its customers the authorities were justified in holding that what was being collected by the company as excise duty was not excise duty but the value in substance of the goods and therefore, the excess value collected by the petitioner from the customers was recoverable under Section 11A of the Central Excises and Salt Act, 1944." 14. Applying the above tests to the facts of the present case, it is clear that on the date when the assessee filed its price declaration under Rule 173-C the assessee was aware that there was an exemption Notification dated 19.10.1993 in the State of Gujarat; that there were depot sales in Surat; that there were two types of sales, namely, backward area sales and normal area sales and that the rate of TOT in respect of backward area sales was 0.5% whereas the rate of TOT for normal area sales was at 2% and yet the assessee after suppressing the aforestated data claimed the TOT deductions at the rate of 2% across the board for all clearances and, therefore, the Department was justified in calling upon the assessee to pay differential excise duty. We accordingly confirm the demand. 15. Before concluding, we may add that every efficient manufacturer has to plan his operations sufficiently carefully to know what raw materials he will use and in what proportion he will use the raw materials in the manufacture of his final product. Generally, such manufacturers maintain what is called as Order Book. A manufacturer who is prudent would ordinarily worked out on estimation, the extent of exemption which he is likely to get, in which event, the uncertainty to which the learned counsel has made reference would in fact hardly arise. In the present case, we are concerned with the amount of deduction. That deduction has been claimed by the assessee-manufacturer (appellant). The burden is on such manufacturer to maintain proper records, as the burden is on it to file a proper price declaration under Rule 173-C. The burden to claim deduction is on the manufacturer. In the present case, the assessee has filed a declaration under the said Rule 173-C without disclosing to the Department any of the aforestated details. We are, therefore, of the view that the Department was right not only in raising the demand for differential duty but also for invoking the extended period of limitation. 16. For the aforestated reasons, we find no merit in these civil appeals and the same are accordingly dismissed with no order as to costs. Civil Appeal Nos.2008-2010 of 2002 17. This batch of civil appeals have been filed by the Department against order dated 3.7.2001 passed by the CEGAT ("the Tribunal") which order stands confirmed by our above judgment in civil appeal Nos. 8529-8531 of 2001 in favour of the Department. 18. By the impugned order, the Tribunal has confirmed the demand made on the assessee vide show cause notice dated 19.3.1999 for the period March, 1994 to March, 1997. However, the Tribunal found that the demand made by the Department was beyond limitation after the assessee had categorically informed the Department vide letter dated 14.1.1997 that there were two types of sales, namely, backward area sales and normal area sales. According to the Tribunal, therefore, there was no suppression after the Department had acquired the knowledge for the first time vide the assessees letter dated 14.1.1997 and, therefore, it was not open to the Department to claim suppression after 14.1.1997. 19. We see no reason to interfere with the findings recorded by the Tribunal on the question of suppression. 20. Accordingly, civil | 0[ds]In our view, the above two judgments of the Bombay High Court lay down the correct principle underlying the Explanation to section 4(4)(d)(ii). As held in TOMCOs case (supra), the exemption was not by way of a windfall for the manufacturer-assessee but on account of cotton seed oil used by TOMCO in the manufacture of Pakav. Similarly, in the case of B. K. Paper Mills (supra), the Bombay High Court has correctly analysed section 4(4)(d)(ii) with the Explanation to say that only the reduced rate of duty can be excluded from the value of the goods and that Explanation explains what was implicit in that Section. That, the said section 4(4)(d)(ii) did not refer to duty leviable under the relevant tariff entry without reference to exemption Notification that may be in existence at the time of clearance/removal. That, section 47 of the Finance Act, 1982 which inserted the Explanation expressly sets out what is meant by the expression "the amount of duty of excise payable on any excisable goods." By the amount of duty of excise what is meant is the effective duty of excise payable on such goods under the Act and, therefore, effective duty of excise is the duty calculated on the basis of the prescribed rate as reduced by the exemption notification. This alone is excluded from the normal price under section 4(4)(d)(ii). | 0 | 5,525 | 288 | ### 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:
under the Act and, therefore, effective duty of excise is the duty calculated on the basis of the prescribed rate as reduced by the exemption notification. This alone is excluded from the normal price under section 4(4)(d)(ii). 12. It is true that the Explanation to section 4(4)(d)(ii) only refers to the amount of duty of excise payable on excisable goods, however, as held by the Bombay High Court in the case of B.K. Paper Mills (supra), the Explanation expressly sets out what is implicit in section 4(4)(d)(ii) which states that "value" in relation to excisable goods does not include the amount of duty of excise, sales tax and other taxes if payable on such goods. Therefore, the test to be applied is that of the "actual value of the duty payable" and, therefore, there is no merit in the argument advanced on behalf of the assessee that the Explanation is restricted to the duty of excise. This principle can therefore apply also to actual value of any other tax including TOT payable. Even without the Explanation, the scheme of section 4(4)(d)(ii) shows that in computing the assessable value, one has to go by the actual value of the duty payable and, therefore, only the reduced duty was deductible from the value of the goods. 13. To the same effect is the judgment of the Division Bench of the Bombay High Court in the case of Central India Spinning, Weaving and Manufacturing Co. Ltd. and ors. v. Union of India and ors. reported in 1987 (30) ELT 217 (Bom.). We quote herein below para 7 of the said judgment, which reads as follows: "It is true that according to Section 4(4)(d)(ii) of the Central Excises Act, the value does not include the amount of duty of excise, if any payable on such goods, but in view of Explanation to Section 4(4)(d)(ii), the duty of excise means the duty payable in terms of the Central Excise Tariff read with Exemption Notification issued under Rule 8 of the Central Excise Rules. In this view of the matter, the only deduction that is permissible is of the actual duty paid or payable while fixing the assessable value. Thus where the company/ manufacturer whose goods were liable to excise duty at a reduced rate in consequence of an exemption notification, while paying duty at reduced rate collected duty at a higher rate i.e. tariff rate from its customers the authorities were justified in holding that what was being collected by the company as excise duty was not excise duty but the value in substance of the goods and therefore, the excess value collected by the petitioner from the customers was recoverable under Section 11A of the Central Excises and Salt Act, 1944." 14. Applying the above tests to the facts of the present case, it is clear that on the date when the assessee filed its price declaration under Rule 173-C the assessee was aware that there was an exemption Notification dated 19.10.1993 in the State of Gujarat; that there were depot sales in Surat; that there were two types of sales, namely, backward area sales and normal area sales and that the rate of TOT in respect of backward area sales was 0.5% whereas the rate of TOT for normal area sales was at 2% and yet the assessee after suppressing the aforestated data claimed the TOT deductions at the rate of 2% across the board for all clearances and, therefore, the Department was justified in calling upon the assessee to pay differential excise duty. We accordingly confirm the demand. 15. Before concluding, we may add that every efficient manufacturer has to plan his operations sufficiently carefully to know what raw materials he will use and in what proportion he will use the raw materials in the manufacture of his final product. Generally, such manufacturers maintain what is called as Order Book. A manufacturer who is prudent would ordinarily worked out on estimation, the extent of exemption which he is likely to get, in which event, the uncertainty to which the learned counsel has made reference would in fact hardly arise. In the present case, we are concerned with the amount of deduction. That deduction has been claimed by the assessee-manufacturer (appellant). The burden is on such manufacturer to maintain proper records, as the burden is on it to file a proper price declaration under Rule 173-C. The burden to claim deduction is on the manufacturer. In the present case, the assessee has filed a declaration under the said Rule 173-C without disclosing to the Department any of the aforestated details. We are, therefore, of the view that the Department was right not only in raising the demand for differential duty but also for invoking the extended period of limitation. 16. For the aforestated reasons, we find no merit in these civil appeals and the same are accordingly dismissed with no order as to costs. Civil Appeal Nos.2008-2010 of 2002 17. This batch of civil appeals have been filed by the Department against order dated 3.7.2001 passed by the CEGAT ("the Tribunal") which order stands confirmed by our above judgment in civil appeal Nos. 8529-8531 of 2001 in favour of the Department. 18. By the impugned order, the Tribunal has confirmed the demand made on the assessee vide show cause notice dated 19.3.1999 for the period March, 1994 to March, 1997. However, the Tribunal found that the demand made by the Department was beyond limitation after the assessee had categorically informed the Department vide letter dated 14.1.1997 that there were two types of sales, namely, backward area sales and normal area sales. According to the Tribunal, therefore, there was no suppression after the Department had acquired the knowledge for the first time vide the assessees letter dated 14.1.1997 and, therefore, it was not open to the Department to claim suppression after 14.1.1997. 19. We see no reason to interfere with the findings recorded by the Tribunal on the question of suppression. 20. Accordingly, civil
### Response:
0
### Explanation:
In our view, the above two judgments of the Bombay High Court lay down the correct principle underlying the Explanation to section 4(4)(d)(ii). As held in TOMCOs case (supra), the exemption was not by way of a windfall for the manufacturer-assessee but on account of cotton seed oil used by TOMCO in the manufacture of Pakav. Similarly, in the case of B. K. Paper Mills (supra), the Bombay High Court has correctly analysed section 4(4)(d)(ii) with the Explanation to say that only the reduced rate of duty can be excluded from the value of the goods and that Explanation explains what was implicit in that Section. That, the said section 4(4)(d)(ii) did not refer to duty leviable under the relevant tariff entry without reference to exemption Notification that may be in existence at the time of clearance/removal. That, section 47 of the Finance Act, 1982 which inserted the Explanation expressly sets out what is meant by the expression "the amount of duty of excise payable on any excisable goods." By the amount of duty of excise what is meant is the effective duty of excise payable on such goods under the Act and, therefore, effective duty of excise is the duty calculated on the basis of the prescribed rate as reduced by the exemption notification. This alone is excluded from the normal price under section 4(4)(d)(ii).
|
Meharbansingh And Others Vs. Nareshsingh And Others | proprietor shall continue to remain in Possession of his khud-kasht land, so recorded in the annual village papers before the date of vesting.(3) Nothing contained in sub-section (1) shall operate as bar to the recovery by the outgoing proprietor of any sum which becomes due to him before the date of vesting in virtue of his proprietary rights”8. A plain reading of these sections would show that all rights, title and interest of the proprietors in the area notified were to cease and were instead to vest in the State free from all encumbrances with effect from the date of notification and after such vesting in the State every mortgage with possession existing on the property so vested or part thereof on the date immediately preceding the date of vesting, to the extent of the amount secured on such property or part there-of, is to be deemed, without prejudice to the right of the State under Section 3 to have been substituted by a simple mortgage. The proprietor, however, notwithstanding other consequences of the vesting in a State, is entitled to continue to remain in possession of his khud-kasht land which is so recorded in the annual village papers before the date of vesting. Now it was clearly open to the plaintiffs to show that the land in question was khud-kasht and, therefore, in accordance with Section 4 they were entitled to remain in Possession there of.9. On behalf of the appellants also our attention was invited to the decision of this Court in the case of Haji S. K. Subhan, (l962) Supp 1 SCR 123 = (AIR 1962 SC 1230 ) (supra) and specific reliance was placed on observations at p. 139 (of SCR) = (at p. 1237 of AIR) of the report which suggests that a person continuing in possession on the basis of entries in the village papers, which had to be presumed to be correct, was not affected by the Act Reference was also made to the observation at page 142 (of SCR) = (at page 1238 of AIR) of the report where right to possess was upheld in favour of the party who had obtained a declaration of being an owner in possession10. On behalf of the respondents reliance was placed on Rana Sheo Ambar Singh v. Allahabad Bank Ltd. Allahabad 1962-2 SCR 441 = (AIR 1961 SC 1790 ) but that decision does not deal with the Madhya Bharat Act which concerns us. That decision is concerned with the U. P. Zamindari Abolition and Land Reforms Act I of 1951, the scheme of which is not shown to be similar to that of the Madhya Bharat Act so far as it concerns us in the present case. That decision is therefore, of little assistance in construing the Madhya Bharat Act Another decision on which the respondents learned Advocate has placed reliance is Sailendra Narayan Bhai Deo v Jagat Kishore Prasad Narayan Singh, 1962 Supp (2) SCR 119 = (AIR 1962 SC 914 ) which again deals with the Bihar Lands Reforms Act and not with the Madhya Bharat Act. The scheme of the Bihar Act being also dissimilar from that of the Madhya Bharat Act, this decision too cannot be of much help.11. The last decision relied on by Shri Mishra is Suraj Ahir v. Prithinath Singh, AIR 1963 SC 454 which is concerned with the Bihar Lands Reforms Act XXX of 1950 as amended by Act XVI of 1959. This decision is equally unhelpful12. In our opinion the High Court was in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority of this Courts decision in the case of Haji S. K. Subhan (1962) Supp 1 SCR 123 - (AIR 1962 SC 1230 ) (supra).In the reported case the word "document" as occurring in Section 4 (1) of the M. P. Abolition of Proprietary Rights Act (M. P. Act 1 of 1951) was construed to include a decree of the Court and it was held that the principle that the executing Court cannot question the decree and has to execute it, had no operation on the facts of that case, because the objection was not based on the invalidity of the decree but on the effect of the aforesaid Act on the rights of the decree holder proprietor to retain possession. The facts of that case were, therefore, different and so was the problem requiring solution. The precise question requiring decision by the Court in the present case was lost sight of and not properly adverted to. We are required in the present case to consider the effect of Section 4 (I) (f) of the M. B. Act XIII of 1951 on the rights of the plaintiff-appellants to redeem the mortgage and secure possession of the mortgaged land.13. It may be pointed out that both the contesting parties - the appellants and the respondents - before us claim for themselves actual possession of the land in dispute as khud-kasht and also assert that the relevant entries in the annual village papers before the date of vesting showed them in such Possession. On this basis they both claim right to retain possession even against the State. These rival controversial claims pressed by both the parties was the central question involving proper appraisal of material on the record and this basic dispute had to be first adverted to and judicially determined and thereafter the Court had to consider the applicability of the relevant provisions of the M. B. Act XIII of 1951 to the facts found. As the question of vesting of title in the State was also of vital importance it was, in our opinion, fit and proper for the Courts below to have issued notice to the State as well, thereby enabling it to be impleaded as a party if it so desired. The approach of the High Court is erroneous and its decision highly unsatisfactory. The controlling question seems to have been missed | 1[ds]The submission is not wholly correct. There was in fact an amendment of the plaint pursuant to the enactment of the Madhya Bharat Abolition of Zamindari Act (sic) and additional issues were framed on the amended pleadings. The parties and the Courts were thus not ignorant of the existence of the said Act on the statute book.A plain reading of these sections would show that all rights, title and interest of the proprietors in the area notified were to cease and were instead to vest in the State free from all encumbrances with effect from the date of notification and after such vesting in the State every mortgage with possession existing on the property so vested or part thereof on the date immediately preceding the date of vesting, to the extent of the amount secured on such property or part there-of, is to be deemed, without prejudice to the right of the State under Section 3 to have been substituted by a simple mortgage. The proprietor, however, notwithstanding other consequences of the vesting in a State, is entitled to continue to remain in possession of his khud-kasht land which is so recorded in the annual village papers before the date of vesting. Now it was clearly open to the plaintiffs to show that the land in question was khud-kasht and, therefore, in accordance with Section 4 they were entitled to remain in Possession thereIn our opinion the High Court was in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority of this Courts decision in the case of Haji S. K. Subhan (1962) Supp 1 SCR 123 - (AIR 1962 SC 1230 )the reported case the word "document" as occurring in Section 4 (1) of the M. P. Abolition of Proprietary Rights Act (M. P. Act 1 of 1951) was construed to include a decree of the Court and it was held that the principle that the executing Court cannot question the decree and has to execute it, had no operation on the facts of that case, because the objection was not based on the invalidity of the decree but on the effect of the aforesaid Act on the rights of the decree holder proprietor to retain possession. The facts of that case were, therefore, different and so was the problem requiring solution. The precise question requiring decision by the Court in the present case was lost sight of and not properly adverted to. We are required in the present case to consider the effect of Section 4 (I) (f) of the M. B. Act XIII of 1951 on the rights of the plaintiff-appellants to redeem the mortgage and secure possession of the mortgaged land.13. It may be pointed out that both the contesting parties - the appellants and the respondents - before us claim for themselves actual possession of the land in dispute as khud-kasht and also assert that the relevant entries in the annual village papers before the date of vesting showed them in such Possession. On this basis they both claim right to retain possession even against the State. These rival controversial claims pressed by both the parties was the central question involving proper appraisal of material on the record and this basic dispute had to be first adverted to and judicially determined and thereafter the Court had to consider the applicability of the relevant provisions of the M. B. Act XIII of 1951 to the facts found. As the question of vesting of title in the State was also of vital importance it was, in our opinion, fit and proper for the Courts below to have issued notice to the State as well, thereby enabling it to be impleaded as a party if it so desired. The approach of the High Court is erroneous and its decision highly unsatisfactory. The controlling question seems to have been misse | 1 | 3,296 | 702 | ### 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:
proprietor shall continue to remain in Possession of his khud-kasht land, so recorded in the annual village papers before the date of vesting.(3) Nothing contained in sub-section (1) shall operate as bar to the recovery by the outgoing proprietor of any sum which becomes due to him before the date of vesting in virtue of his proprietary rights”8. A plain reading of these sections would show that all rights, title and interest of the proprietors in the area notified were to cease and were instead to vest in the State free from all encumbrances with effect from the date of notification and after such vesting in the State every mortgage with possession existing on the property so vested or part thereof on the date immediately preceding the date of vesting, to the extent of the amount secured on such property or part there-of, is to be deemed, without prejudice to the right of the State under Section 3 to have been substituted by a simple mortgage. The proprietor, however, notwithstanding other consequences of the vesting in a State, is entitled to continue to remain in possession of his khud-kasht land which is so recorded in the annual village papers before the date of vesting. Now it was clearly open to the plaintiffs to show that the land in question was khud-kasht and, therefore, in accordance with Section 4 they were entitled to remain in Possession there of.9. On behalf of the appellants also our attention was invited to the decision of this Court in the case of Haji S. K. Subhan, (l962) Supp 1 SCR 123 = (AIR 1962 SC 1230 ) (supra) and specific reliance was placed on observations at p. 139 (of SCR) = (at p. 1237 of AIR) of the report which suggests that a person continuing in possession on the basis of entries in the village papers, which had to be presumed to be correct, was not affected by the Act Reference was also made to the observation at page 142 (of SCR) = (at page 1238 of AIR) of the report where right to possess was upheld in favour of the party who had obtained a declaration of being an owner in possession10. On behalf of the respondents reliance was placed on Rana Sheo Ambar Singh v. Allahabad Bank Ltd. Allahabad 1962-2 SCR 441 = (AIR 1961 SC 1790 ) but that decision does not deal with the Madhya Bharat Act which concerns us. That decision is concerned with the U. P. Zamindari Abolition and Land Reforms Act I of 1951, the scheme of which is not shown to be similar to that of the Madhya Bharat Act so far as it concerns us in the present case. That decision is therefore, of little assistance in construing the Madhya Bharat Act Another decision on which the respondents learned Advocate has placed reliance is Sailendra Narayan Bhai Deo v Jagat Kishore Prasad Narayan Singh, 1962 Supp (2) SCR 119 = (AIR 1962 SC 914 ) which again deals with the Bihar Lands Reforms Act and not with the Madhya Bharat Act. The scheme of the Bihar Act being also dissimilar from that of the Madhya Bharat Act, this decision too cannot be of much help.11. The last decision relied on by Shri Mishra is Suraj Ahir v. Prithinath Singh, AIR 1963 SC 454 which is concerned with the Bihar Lands Reforms Act XXX of 1950 as amended by Act XVI of 1959. This decision is equally unhelpful12. In our opinion the High Court was in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority of this Courts decision in the case of Haji S. K. Subhan (1962) Supp 1 SCR 123 - (AIR 1962 SC 1230 ) (supra).In the reported case the word "document" as occurring in Section 4 (1) of the M. P. Abolition of Proprietary Rights Act (M. P. Act 1 of 1951) was construed to include a decree of the Court and it was held that the principle that the executing Court cannot question the decree and has to execute it, had no operation on the facts of that case, because the objection was not based on the invalidity of the decree but on the effect of the aforesaid Act on the rights of the decree holder proprietor to retain possession. The facts of that case were, therefore, different and so was the problem requiring solution. The precise question requiring decision by the Court in the present case was lost sight of and not properly adverted to. We are required in the present case to consider the effect of Section 4 (I) (f) of the M. B. Act XIII of 1951 on the rights of the plaintiff-appellants to redeem the mortgage and secure possession of the mortgaged land.13. It may be pointed out that both the contesting parties - the appellants and the respondents - before us claim for themselves actual possession of the land in dispute as khud-kasht and also assert that the relevant entries in the annual village papers before the date of vesting showed them in such Possession. On this basis they both claim right to retain possession even against the State. These rival controversial claims pressed by both the parties was the central question involving proper appraisal of material on the record and this basic dispute had to be first adverted to and judicially determined and thereafter the Court had to consider the applicability of the relevant provisions of the M. B. Act XIII of 1951 to the facts found. As the question of vesting of title in the State was also of vital importance it was, in our opinion, fit and proper for the Courts below to have issued notice to the State as well, thereby enabling it to be impleaded as a party if it so desired. The approach of the High Court is erroneous and its decision highly unsatisfactory. The controlling question seems to have been missed
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The submission is not wholly correct. There was in fact an amendment of the plaint pursuant to the enactment of the Madhya Bharat Abolition of Zamindari Act (sic) and additional issues were framed on the amended pleadings. The parties and the Courts were thus not ignorant of the existence of the said Act on the statute book.A plain reading of these sections would show that all rights, title and interest of the proprietors in the area notified were to cease and were instead to vest in the State free from all encumbrances with effect from the date of notification and after such vesting in the State every mortgage with possession existing on the property so vested or part thereof on the date immediately preceding the date of vesting, to the extent of the amount secured on such property or part there-of, is to be deemed, without prejudice to the right of the State under Section 3 to have been substituted by a simple mortgage. The proprietor, however, notwithstanding other consequences of the vesting in a State, is entitled to continue to remain in possession of his khud-kasht land which is so recorded in the annual village papers before the date of vesting. Now it was clearly open to the plaintiffs to show that the land in question was khud-kasht and, therefore, in accordance with Section 4 they were entitled to remain in Possession thereIn our opinion the High Court was in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority of this Courts decision in the case of Haji S. K. Subhan (1962) Supp 1 SCR 123 - (AIR 1962 SC 1230 )the reported case the word "document" as occurring in Section 4 (1) of the M. P. Abolition of Proprietary Rights Act (M. P. Act 1 of 1951) was construed to include a decree of the Court and it was held that the principle that the executing Court cannot question the decree and has to execute it, had no operation on the facts of that case, because the objection was not based on the invalidity of the decree but on the effect of the aforesaid Act on the rights of the decree holder proprietor to retain possession. The facts of that case were, therefore, different and so was the problem requiring solution. The precise question requiring decision by the Court in the present case was lost sight of and not properly adverted to. We are required in the present case to consider the effect of Section 4 (I) (f) of the M. B. Act XIII of 1951 on the rights of the plaintiff-appellants to redeem the mortgage and secure possession of the mortgaged land.13. It may be pointed out that both the contesting parties - the appellants and the respondents - before us claim for themselves actual possession of the land in dispute as khud-kasht and also assert that the relevant entries in the annual village papers before the date of vesting showed them in such Possession. On this basis they both claim right to retain possession even against the State. These rival controversial claims pressed by both the parties was the central question involving proper appraisal of material on the record and this basic dispute had to be first adverted to and judicially determined and thereafter the Court had to consider the applicability of the relevant provisions of the M. B. Act XIII of 1951 to the facts found. As the question of vesting of title in the State was also of vital importance it was, in our opinion, fit and proper for the Courts below to have issued notice to the State as well, thereby enabling it to be impleaded as a party if it so desired. The approach of the High Court is erroneous and its decision highly unsatisfactory. The controlling question seems to have been misse
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NARENDRA KUMAR MITTAL & ORS Vs. M/S NUPUR HOUSING DEVELOPMENT PVT. LTD. AND ANR | must either be explicitly expressed or clearly implied. The provisions of a law which seek to oust the jurisdiction of civil court need to be strictly construed. Section 331 of the Act has been the subject of series of pronouncements of the High Court as to the circumstances and the nature of the suits in which its exclusionary effect operates. Distinction was sought to be drawn between the class of cases where the binding effect of a deed had had to be got rid of by an appropriate adjudication on the one hand and the class of cases in which a transaction could be said to be void in law where what the law holds to be void, there is nothing to cancel or set aside on the other. In the former case, it was held, a suit was cognisable by the civil court while in the latter, it was not, it being open to the statutory authority to take note of the legal incidents of what was non est." 7. In the instant case, the plaintiff has pleaded that it had purchased the disputed property under five sale deeds all dated 17.10.1998 from the first defendant. The suit was filed for cancellation of the sale deed dated 15.06.2006 on the ground of fraud and misrepresentation. The plaintiff had not sought any relief with respect to its own right and title as a tenure holder or declaration of its title or status. As stated above, the only relief sought in the suit filed was for cancellation of the alleged sale deed dated 15.06.2006. We are of the view that Section 331 of the Act does not deprive a party of his right to approach competent court of law for getting a document cancelled, especially when, prima facie, the title of the recorded tenure holder is not under cloud. Revenue Court does not have jurisdiction of granting relief of cancellation of a deed on the ground of fraud and misrepresentation. 8. A similar question in relation to the maintainability of the suit was considered by the Full Bench of the Allahabad High Court in Ram Padarath & Ors. v. Second ADDL D.J., Sultanpur & Ors.,(1989) RD 21 (All)(FB) and it was held thus:¬ "We are of the view that the case of Indra Dev v. Smt. Ram Piari, (1982) 8 ALR 517 has been correctly decided and the said decision requires no consideration, while the Division Bench case, Ayodhya Prasad (Dr) v. Gangotri Prasad 1981 AWC 469 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure-holder is necessarily needed in which event relief for cancellation will be surplusage and redundant. A recorded tenure¬holder having prima facie title in his favour can hardly be directed to approach the revenue court in respect of seeking relief for cancellation of a void document which made him to approach the court of law and in such case he can also claim ancillary relief even though the same can be granted by the revenue court." 9. This Court in Shri Ram & Anr. v. Ist Addl. Distt. Judge & Ors., (2001) 3 SCC 24 considered the question relating to maintainability of a suit by a recorded tenure holder in possession for cancellation of the sale deed in favour of the respondents executed by some imposters. After noticing the aforesaid judgment of the Full Bench of Allahabad High Court, this Court held that where recorded tenure holder, having a prima facie title and in possession files suit in the Civil Court for cancellation of sale deed having been obtained on the ground of fraud or impersonation, it cannot be directed to file a suit for declaration in the Revenue Court, reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. However, if the plaintiff is required to seek a declaration of title, he has to approach the Revenue Court. 10. In the instant case, since the plaintiff claims title under sale deeds of 1998 executed by the first defendant, it need not be forced to seek a declaration of its title. Therefore, the plaintiff had filed a suit for cancellation of the subsequent sale deed executed by the first defendant in favour of the second defendant. Hence, there is no bar under Section 331 of the Act for the plaintiff to approach the civil court and the suit filed by it was maintainable. 11. In Kamla Prasad & Ors. v. Kishna Kant Pathak & Ors. (2007) 4 SCC 213 , relied on by the learned counsel for the appellant¬second defendant, the plaintiff was the co-owner and not a recorded tenure holder. In the plaint, the plaintiff himself had stated that he was not the sole owner of the property and defendants 10 to 12 who were proforma defendants had also right, title and interest therein. He had also stated that though his name had appeared in the revenue record, defendants 10 to 12 also had a right in the property. In this factual background, this Court held that such a question can be decided by the Revenue Court in a suit instituted under Section 229-B of the Act. It was also held that the legality or otherwise of the insertion of names of purchasers in records of rights and deletion of the name of the plaintiff from such record can only be tested by Revenue Court, since names of the purchasers had already been entered into the record. This judgment has no application to the facts of the present case. | 0[ds]7. In the instant case, the plaintiff has pleaded that it had purchased the disputed property under five sale deeds all dated 17.10.1998 from the first defendant. The suit was filed for cancellation of the sale deed dated 15.06.2006 on the ground of fraud and misrepresentation. The plaintiff had not sought any relief with respect to its own right and title as a tenure holder or declaration of its title or status. As stated above, the only relief sought in the suit filed was for cancellation of the alleged sale deed dated 15.06.2006. We are of the view that Section 331 of the Act does not deprive a party of his right to approach competent court of law for getting a document cancelled, especially when, prima facie, the title of the recorded tenure holder is not under cloud. Revenue Court does not have jurisdiction of granting relief of cancellation of a deed on the ground of fraud and misrepresentation.In the instant case, since the plaintiff claims title under sale deeds of 1998 executed by the first defendant, it need not be forced to seek a declaration of its title. Therefore, the plaintiff had filed a suit for cancellation of the subsequent sale deed executed by the first defendant in favour of the second defendant. Hence, there is no bar under Section 331 of the Act for the plaintiff to approach the civil court and the suit filed by it was maintainable.In Kamla Prasad & Ors. v. Kishna Kant Pathak & Ors. (2007) 4 SCC 213 , relied on by the learned counsel for the appellant¬second defendant, the plaintiff was the co-owner and not a recorded tenure holder. In the plaint, the plaintiff himself had stated that he was not the sole owner of the property and defendants 10 to 12 who were proforma defendants had also right, title and interest therein. He had also stated that though his name had appeared in the revenue record, defendants 10 to 12 also had a right in the property. In this factual background, this Court held that such a question can be decided by the Revenue Court in a suit instituted under Section 229-B of the Act. It was also held that the legality or otherwise of the insertion of names of purchasers in records of rights and deletion of the name of the plaintiff from such record can only be tested by Revenue Court, since names of the purchasers had already been entered into the record. This judgment has no application to the facts of the present case. | 0 | 1,636 | 463 | ### 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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must either be explicitly expressed or clearly implied. The provisions of a law which seek to oust the jurisdiction of civil court need to be strictly construed. Section 331 of the Act has been the subject of series of pronouncements of the High Court as to the circumstances and the nature of the suits in which its exclusionary effect operates. Distinction was sought to be drawn between the class of cases where the binding effect of a deed had had to be got rid of by an appropriate adjudication on the one hand and the class of cases in which a transaction could be said to be void in law where what the law holds to be void, there is nothing to cancel or set aside on the other. In the former case, it was held, a suit was cognisable by the civil court while in the latter, it was not, it being open to the statutory authority to take note of the legal incidents of what was non est." 7. In the instant case, the plaintiff has pleaded that it had purchased the disputed property under five sale deeds all dated 17.10.1998 from the first defendant. The suit was filed for cancellation of the sale deed dated 15.06.2006 on the ground of fraud and misrepresentation. The plaintiff had not sought any relief with respect to its own right and title as a tenure holder or declaration of its title or status. As stated above, the only relief sought in the suit filed was for cancellation of the alleged sale deed dated 15.06.2006. We are of the view that Section 331 of the Act does not deprive a party of his right to approach competent court of law for getting a document cancelled, especially when, prima facie, the title of the recorded tenure holder is not under cloud. Revenue Court does not have jurisdiction of granting relief of cancellation of a deed on the ground of fraud and misrepresentation. 8. A similar question in relation to the maintainability of the suit was considered by the Full Bench of the Allahabad High Court in Ram Padarath & Ors. v. Second ADDL D.J., Sultanpur & Ors.,(1989) RD 21 (All)(FB) and it was held thus:¬ "We are of the view that the case of Indra Dev v. Smt. Ram Piari, (1982) 8 ALR 517 has been correctly decided and the said decision requires no consideration, while the Division Bench case, Ayodhya Prasad (Dr) v. Gangotri Prasad 1981 AWC 469 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure-holder is necessarily needed in which event relief for cancellation will be surplusage and redundant. A recorded tenure¬holder having prima facie title in his favour can hardly be directed to approach the revenue court in respect of seeking relief for cancellation of a void document which made him to approach the court of law and in such case he can also claim ancillary relief even though the same can be granted by the revenue court." 9. This Court in Shri Ram & Anr. v. Ist Addl. Distt. Judge & Ors., (2001) 3 SCC 24 considered the question relating to maintainability of a suit by a recorded tenure holder in possession for cancellation of the sale deed in favour of the respondents executed by some imposters. After noticing the aforesaid judgment of the Full Bench of Allahabad High Court, this Court held that where recorded tenure holder, having a prima facie title and in possession files suit in the Civil Court for cancellation of sale deed having been obtained on the ground of fraud or impersonation, it cannot be directed to file a suit for declaration in the Revenue Court, reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. However, if the plaintiff is required to seek a declaration of title, he has to approach the Revenue Court. 10. In the instant case, since the plaintiff claims title under sale deeds of 1998 executed by the first defendant, it need not be forced to seek a declaration of its title. Therefore, the plaintiff had filed a suit for cancellation of the subsequent sale deed executed by the first defendant in favour of the second defendant. Hence, there is no bar under Section 331 of the Act for the plaintiff to approach the civil court and the suit filed by it was maintainable. 11. In Kamla Prasad & Ors. v. Kishna Kant Pathak & Ors. (2007) 4 SCC 213 , relied on by the learned counsel for the appellant¬second defendant, the plaintiff was the co-owner and not a recorded tenure holder. In the plaint, the plaintiff himself had stated that he was not the sole owner of the property and defendants 10 to 12 who were proforma defendants had also right, title and interest therein. He had also stated that though his name had appeared in the revenue record, defendants 10 to 12 also had a right in the property. In this factual background, this Court held that such a question can be decided by the Revenue Court in a suit instituted under Section 229-B of the Act. It was also held that the legality or otherwise of the insertion of names of purchasers in records of rights and deletion of the name of the plaintiff from such record can only be tested by Revenue Court, since names of the purchasers had already been entered into the record. This judgment has no application to the facts of the present case.
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### Explanation:
7. In the instant case, the plaintiff has pleaded that it had purchased the disputed property under five sale deeds all dated 17.10.1998 from the first defendant. The suit was filed for cancellation of the sale deed dated 15.06.2006 on the ground of fraud and misrepresentation. The plaintiff had not sought any relief with respect to its own right and title as a tenure holder or declaration of its title or status. As stated above, the only relief sought in the suit filed was for cancellation of the alleged sale deed dated 15.06.2006. We are of the view that Section 331 of the Act does not deprive a party of his right to approach competent court of law for getting a document cancelled, especially when, prima facie, the title of the recorded tenure holder is not under cloud. Revenue Court does not have jurisdiction of granting relief of cancellation of a deed on the ground of fraud and misrepresentation.In the instant case, since the plaintiff claims title under sale deeds of 1998 executed by the first defendant, it need not be forced to seek a declaration of its title. Therefore, the plaintiff had filed a suit for cancellation of the subsequent sale deed executed by the first defendant in favour of the second defendant. Hence, there is no bar under Section 331 of the Act for the plaintiff to approach the civil court and the suit filed by it was maintainable.In Kamla Prasad & Ors. v. Kishna Kant Pathak & Ors. (2007) 4 SCC 213 , relied on by the learned counsel for the appellant¬second defendant, the plaintiff was the co-owner and not a recorded tenure holder. In the plaint, the plaintiff himself had stated that he was not the sole owner of the property and defendants 10 to 12 who were proforma defendants had also right, title and interest therein. He had also stated that though his name had appeared in the revenue record, defendants 10 to 12 also had a right in the property. In this factual background, this Court held that such a question can be decided by the Revenue Court in a suit instituted under Section 229-B of the Act. It was also held that the legality or otherwise of the insertion of names of purchasers in records of rights and deletion of the name of the plaintiff from such record can only be tested by Revenue Court, since names of the purchasers had already been entered into the record. This judgment has no application to the facts of the present case.
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RAHUL Vs. THE STATE OF HARYANA | with the documentary evidence, we are of the considered view that there is a complete chain of evidence which would lead to irresistible conclusion that the appellant-accused has committed the offence and none else. Even the recoveries are sufficiently proved with the cogent evidence. In the disclosure statement the appellant-accused has stated that he has kept the weapon with his Bua at House No.160, Old Housing Board Colony, Bhiwani. Though she was examined on behalf of the accused to disprove the recovery, at the same time, she has admitted in the cross-examination that police have visited her place a year and a half earlier to her statement. If this part of evidence is examined, coupled with the other documentary evidence on seizure, there is no reason to disbelieve the recovery of weapon, from the residence of appellants Bua, i.e., House No.160, Old Housing Board Colony, Bhiwani. All the recoveries have been proved by examining witnesses for such recoveries. Only in view of the disclosure statement Ex.PX recoveries of pistol .315 bore and cartridges were made from the house of his Bua at Bhiwani vide recovery memo Ex.PY on 24.08.2010. Further, as per the FSL report Ex.PXX, the country made pistol .315 bore used by the accused- appellant for committing the murder of the deceased was found in working order and both the fired cartridges recovered from the spot and fired bullet taken out from the body of the deceased, are found fired from the country made pistol recovered at the instance of accused (Rahul). Further, the injuries on the person of deceased have been proved by doctor who was examined as PW-5. The material evidence on record produced by the prosecution has been further corroborated by call details of mobile phones of Ramesh, Ashok Kumar and Jitender and such call details have been proved by the statement of PW-14. Further, it is also well settled that if other evidence on record clearly establishes that the deceased was murdered by the appellant by using fire-arm, the factum of motive loses its importance, more so, in this case the motive has been established by leading cogent evidence to show that only because the deceased had developed relationship with appellants wife Priyanka, has decided to eliminate the deceased. 20. From the evidence on record, we are of the considered view that prosecution has proved the guilt of the accused beyond reasonable doubt by leading cogent evidence. Further, the motive is also proved by the prosecution. 21. In the case of Sanjay Thakran (2007) 3 SCC 755 relied on by the learned counsel for the appellant, this Court has held that certain tests are to be fulfilled by the prosecution by leading cogent evidence, when the case rests upon circumstantial evidence. Further, in the case of Wakkar (2011) 3 SCC 306 this Court has held that mere recovery itself cannot be the basis for conviction and recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances. However, having regard to evidence on record in this case on hand, we are clearly of the view that the prosecution has satisfied all the tests mentioned in the case of Sanjay Thakran (2007) 3 SCC 755 to bring home the guilt of the accused, by resting upon the circumstantial evidence. If the factum of recoveries is considered along with other evidence in entirety, it gives an irresistible conclusion that the appellant alone has committed offence by using the weapon, which is recovered from the house of DW-1 who is the Bua of the appellant. Further, it is also to be noted that whether the guilt of the accused is proved or not based on the circumstantial evidence, each case has to be judged on the overall assessment of the evidence on record, as such we are of the view that the case law which is referred above, relied on by the learned counsel for the appellant, would not render any assistance to accept his plea that the appellant was falsely implicated. 22. The High Court, in the appeal filed by the appellant herein and another accused Ramesh, reappreciated the evidence on record and confirmed the conviction and sentence, so far as the appellant is concerned and acquitted the other appellant, i.e., Ramesh. Though it is contended by learned counsel appearing for the appellant, on same set of evidence while acquitting the other accused Ramesh there is no reason to confirm the conviction and sentence so far as the appellant herein is concerned. In the impugned judgment, the High Court has recorded reasons for acquittal of the other appellant, i.e., Ramesh. PW-3 Anil, in his deposition has clearly stated that when he along with his mother and deceased Jittu, went to Badhra, after some time Jittu was separated from them, and came back along with Rahul (appellant) and Ashok (proclaimed offender) in a Maruti car. It is stated by PW-3, at that time Jitender @ Jittu stated that he was going to Haridwar and would come back in 3-4 days. Thereafter, Jitender @ Jittu went along with Rahul and Ashok. To the same effect is the statement of PW-12 (Kasturi), mother of the deceased. From the said evidence on record, it stands established that the deceased Jitender @ Jittu was last seen in the company of Rahul (appellant) and Ashok (proclaimed offender) only. There was no mention that Ramesh (appellant before the High Court) also accompanied Jitender @ Jittu for going to Haridwar. In the absence of any evidence on record to show that deceased was also seen with Ramesh lastly by PW-3 and PW-12, the High Court has come to the conclusion, that prosecution has not proved its case beyond reasonable doubt so far as the other appellant Ramesh is concerned. In view of such reasoning recorded by the High Court and evidence on record there are justifiable reasons for acquitting the other appellant, namely, Ramesh, while confirming the conviction so far as the appellant herein is concerned. | 0[ds]13. Though the appellant (Rahul) and another accused, namely, Ramesh were tried together and were convicted by the trial court but on appeal the High Court has allowed the appeal qua Ramesh and acquitted him of the charges by recording a finding that prosecution has failed to prove the guilt of the accused Ramesh beyond reasonable doubt. At the same time, the High Court has confirmed the conviction recorded and sentence imposed, by the trial court, on the appellant.14. It is the case of the prosecution that appellant Rahul has married Priyanka, who is the daughter of Ramesh and sister of Ashok. It is the case of the prosecution that because of the relationship of the deceased Jitender @ Jittu with Priyanka who is the wife of the appellant, the appellant and other accused have decided to eliminate the deceased. It is true that the entire case rests upon the circumstantial evidence. In ocular evidence there is a deposition of PW-3 and PW-12 who are brother and mother respectively of the deceased. Merely because two of the witnesses are related to the deceased, that by itself, is no ground to discard their testimony. If their testimony is corroborated by other evidence on record, same can be relied on to establish the guilt of the accused.15. In this case PWs-1 and 2 were declared hostile and PW-3 also, at some stage, was declared hostile. He was cross-examined by the counsel for the prosecution. In his chief examination, PW-3 (Anil), brother of the deceased (Jittu) has deposed that, Jitender alias Jittu was his younger brother. On 06.08.2010, Ramesh from village Chandwas had come to his house and he told Jittu in his presence at about 02:00 or 02:30 p.m. that appellant (Rahul) would come in the evening and he had a programme of going to Haridwar in order to bring kawar. Thereafter in the evening at about 05:00 p.m., he, his mother and brother Jittu went to Badhra in a bus. They purchased some articles and after some time Jittu separated from them and after two hours, Rahul (appellant), Jittu and Ashok came in a Maruti car 800 CC No.DL-9CJ-5165 and told them that they were going to Haridwar and would come back in 3-4 days. Jittu had gone with Rahul and Ashok. After 3-4 days he tried to contact his brother on his mobile, but both the mobiles were switched off. Further, he has deposed that on 14.08.2010 his sister had read the newspaper and told him the description of cloths and slippers which were mentioned in the newspaper. Thereafter, he also read the newspaper, as such they went to Police Station and saw the cloths of Jittu and the photographs of dead body of Jittu. They identified the cloths and photographs of Jittu. At that time he did not have any suspicion on anyone. After he has deposed to some extent by way of chief examination, he was declared hostile at the request of the Public Prosecutor and he was further cross-examined by the Public Prosecutor. In the cross-examination, he has admitted that he stated to police that his brother had made a telephone call to Priyanka - sister of Ashok Kumar and on that, Ashok and Ramesh came to their house and protested, and that might be the reason for murdering his brother Jittu. Senior Scientific Officer – Ravinder Pal Singh was examined as PW-4 and in his deposition, he stated that he along with his assistant inspected the spot and prepared his report under Ex.PE and he also prepared the rough sketch Ex.PF.The doctor (PW-5) has deposed that the cause of death was because of fire-arm injuries and they were ante mortem in nature. Probable time that elapsed between injuries and death was immediate and that of between death and post mortem examination was 1-3 days. Further, through him, it is proved that the fired bullet Ex.P1 was the same which was taken out from the body of the deceased. The complainant (Jaswant Singh) who has informed to the police at first instance, was examined as PW-6. He has deposed, reiterating the information which he has given to police. The draftsman who prepared the scaled site plan Ex.PT was examined as PW-7 and to prove the photographs Ex.PW8/1 to Ex.PW8/8, PW-8 Inderjit was examined. PW-10 Head Constable Arvind Kumar, who was on patrolling duty along with other police officials, has inspected the car of the appellant on 21.08.2010 and he was interrogated by the investigating officer to whom disclosure statement was made under Ex.PV. Further, PW-10 has also pointed out that the appellant has disowned the earlier statement and stated that he concealed the pistol and cartridges in House No.160, Housing Board, Bhiwani in the house of his Bua. That disclosure statement was recorded as Ex.PX. The mother of the deceased PW-12 (Kasturi) in her deposition while stating that Jittu was taken by the appellant (Rahul) and Ashok from the bus stop stating that they were going to Haridwar to bring kawar. She has further stated that few days prior to occurrence, a panchayat was convened by Ramesh and Ashok on the point that her son Jittu was making telephone calls to daughter of Ramesh and only due to this the accused have killed her son. PW-16 – Investigating Officer (Sarif Singh) in his deposition has clearly stated that he lifted two empties from the spot and they were taken into possession and sealed vide memo Ex.PL. He also stated that he lifted blood-stained earth from the spot which was sealed in parcel vide memo Ex.PK. Further, PW- 17 – ASI Amir Singh in his deposition has stated that on 25.08.2010 he was posted as I.O. at Police Station Charkhi Dadri and after arresting Rahul he has interrogated him and he made his disclosure statement Ex.PLL. Vijender Singh, Dy. Superintendent of Police/SHO, P.S. Sadar, Dadri was examined as PW-20 on 31.08.2010.17. Though it is mainly contended by the learned counsel for the appellant that the motive attributed is an improved version in the statements made by PW-3 and PW-12, but in a case of this nature it is to be noticed that deceased was known to the appellant (Rahul) and Ramesh. Merely because PW-3 has deposed at first instance that there was no suspicion or any animosity between the deceased and the appellant but at the same time he has clearly stated that on 06.08.2010, Ramesh, the other accused had come to village Chandwas and in his presence Ramesh told to Jittu at about 2:00 or 2:30 p.m. that Rahul would come in the evening and they have planned to go to Haridwar in order to bring kawar. Further, it is also clearly deposed that the same day evening PW-3 – Anil went along with his brother Jittu and his mother Kasturi – PW-12 to Badhra in a bus and they purchased some articles, thereafter Jittu was separated and after two hours Rahul, Jittu and Ashok came in a Maruti car and stated that they were going to Haridwar and would come back. Initially no suspicion was indicated but at the same time when PW-3 was declared hostile and in cross-examination by the Public Prosecutor he has admitted that he stated to police, his brother Jittu had made a telephone call to Priyanka, sister of Ashok Kumar and on that Ashok who is the brother of Priyanka and Ramesh, father of Priyanka, came to their house and protested. He also indicated, that might be the reason for murdering his brother Jittu by the appellant and other accused. PW-12 who is the mother of the deceased has, in clear terms, stated that few days prior to the occurrence, a panchayat was convened by Ramesh and Ashok on the point that her son Jittu was making telephone calls to daughter of Ramesh and due to this they killed her son. Although it is the contention of the counsel for the appellant that as PW-3 and PW-12 are family members/close relations of the deceased, as such, their testimony is to be discarded, but the same cannot be accepted. Merely because PW-3 and PW-12 are related, by itself is no ground, to reject their testimony. Further, a close relative who is a natural witness cannot be regarded as an interested witness. It is fairly well settled proposition that even the evidence of interested person can also be considered provided such evidence is corroborated by other evidence on record. At this stage, it is apposite to refer to a judgment of this Court in the case of Kanhaiya Lal & Ors. etc. v. State of Rajasthan (2013) 5 SCC 655. Paragraphs 24 and 25 of the said judgment read as under :24. In Hari Obula Reddy v. State of A.P. (1981) 3 SCC 675 a three-Judge Bench has opined that it cannot be laid down asan invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. (SCC pp.683-84, para 13)25. In Kartik Malhar v. State of Bihar (1996) 1 SCC 614 this Court has stated (SCC p.621, para 15) that a close relative who is a natural witness cannot be regarded as an interested witness, for the term interested postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.While rejecting the plea that the witnesses were in close relation to the deceased, in the case of Ram Chander & Ors. v. State of Haryana(2017) 2 SCC 321 this Court has held as under :33. The submission of the learned counsel for the appellants that since Guddi (PW 9) was in close relation with the deceased persons, she should not be believed for want of evidence of any independent witness, deserves to be rejected in the light of the law laid down by this Court in Dalbir Kaur v. State of Punjab (1976) 4 SCC 158 and Harbans Kaur v. State of Haryana (2005) 9 SCC 195 , which lays down the following proposition (Harbans Kaur case, SCC p.198, para 7)7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused..18. It is clear from the deposition of PW-5 (doctor) and the post mortem report that, injuries were caused over the body of the deceased with a fire-arm and the bullet was found embedded in the body. It is also clearly stated that death was due to fire-arm injuries and was ante mortem in nature. He has clearly stated that the fired bullet which was marked as Ex.P1 was the same which was taken out from the body of the deceased.19. If we closely scrutinize the oral evidence on record coupled with the documentary evidence, we are of the considered view that there is a complete chain of evidence which would lead to irresistible conclusion that the appellant-accused has committed the offence and none else. Even the recoveries are sufficiently proved with the cogent evidence. In the disclosure statement the appellant-accused has stated that he has kept the weapon with his Bua at House No.160, Old Housing Board Colony, Bhiwani. Though she was examined on behalf of the accused to disprove the recovery, at the same time, she has admitted in the cross-examination that police have visited her place a year and a half earlier to her statement. If this part of evidence is examined, coupled with the other documentary evidence on seizure, there is no reason to disbelieve the recovery of weapon, from the residence of appellants Bua, i.e., House No.160, Old Housing Board Colony, Bhiwani. All the recoveries have been proved by examining witnesses for such recoveries. Only in view of the disclosure statement Ex.PX recoveries of pistol .315 bore and cartridges were made from the house of his Bua at Bhiwani vide recovery memo Ex.PY on 24.08.2010. Further, as per the FSL report Ex.PXX, the country made pistol .315 bore used by the accused- appellant for committing the murder of the deceased was found in working order and both the fired cartridges recovered from the spot and fired bullet taken out from the body of the deceased, are found fired from the country made pistol recovered at the instance of accused (Rahul). Further, the injuries on the person of deceased have been proved by doctor who was examined as PW-5. The material evidence on record produced by the prosecution has been further corroborated by call details of mobile phones of Ramesh, Ashok Kumar and Jitender and such call details have been proved by the statement of PW-14. Further, it is also well settled that if other evidence on record clearly establishes that the deceased was murdered by the appellant by using fire-arm, the factum of motive loses its importance, more so, in this case the motive has been established by leading cogent evidence to show that only because the deceased had developed relationship with appellants wife Priyanka, has decided to eliminate the deceased.20. From the evidence on record, we are of the considered view that prosecution has proved the guilt of the accused beyond reasonable doubt by leading cogent evidence. Further, the motive is also proved by the prosecution.21. In the case of Sanjay Thakran (2007) 3 SCC 755 relied on by the learned counsel for the appellant, this Court has held that certain tests are to be fulfilled by the prosecution by leading cogent evidence, when the case rests upon circumstantial evidence. Further, in the case of Wakkar (2011) 3 SCC 306 this Court has held that mere recovery itself cannot be the basis for conviction and recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances. However, having regard to evidence on record in this case on hand, we are clearly of the view that the prosecution has satisfied all the tests mentioned in the case of Sanjay Thakran (2007) 3 SCC 755 to bring home the guilt of the accused, by resting upon the circumstantial evidence. If the factum of recoveries is considered along with other evidence in entirety, it gives an irresistible conclusion that the appellant alone has committed offence by using the weapon, which is recovered from the house of DW-1 who is the Bua of the appellant. Further, it is also to be noted that whether the guilt of the accused is proved or not based on the circumstantial evidence, each case has to be judged on the overall assessment of the evidence on record, as such we are of the view that the case law which is referred above, relied on by the learned counsel for the appellant, would not render any assistance to accept his plea that the appellant was falsely implicated.22. The High Court, in the appeal filed by the appellant herein and another accused Ramesh, reappreciated the evidence on record and confirmed the conviction and sentence, so far as the appellant is concerned and acquitted the other appellant, i.e., Ramesh. Though it is contended by learned counsel appearing for the appellant, on same set of evidence while acquitting the other accused Ramesh there is no reason to confirm the conviction and sentence so far as the appellant herein is concerned. In the impugned judgment, the High Court has recorded reasons for acquittal of the other appellant, i.e., Ramesh. PW-3 Anil, in his deposition has clearly stated that when he along with his mother and deceased Jittu, went to Badhra, after some time Jittu was separated from them, and came back along with Rahul (appellant) and Ashok (proclaimed offender) in a Maruti car. It is stated by PW-3, at that time Jitender @ Jittu stated that he was going to Haridwar and would come back in 3-4 days. Thereafter, Jitender @ Jittu went along with Rahul and Ashok. To the same effect is the statement of PW-12 (Kasturi), mother of the deceased. From the said evidence on record, it stands established that the deceased Jitender @ Jittu was last seen in the company of Rahul (appellant) and Ashok (proclaimed offender) only. There was no mention that Ramesh (appellant before the High Court) also accompanied Jitender @ Jittu for going to Haridwar. In the absence of any evidence on record to show that deceased was also seen with Ramesh lastly by PW-3 and PW-12, the High Court has come to the conclusion, that prosecution has not proved its case beyond reasonable doubt so far as the other appellant Ramesh is concerned. In view of such reasoning recorded by the High Court and evidence on record there are justifiable reasons for acquitting the other appellant, namely, Ramesh, while confirming the conviction so far as the appellant herein is concerned. | 0 | 6,817 | 3,193 | ### Instruction:
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with the documentary evidence, we are of the considered view that there is a complete chain of evidence which would lead to irresistible conclusion that the appellant-accused has committed the offence and none else. Even the recoveries are sufficiently proved with the cogent evidence. In the disclosure statement the appellant-accused has stated that he has kept the weapon with his Bua at House No.160, Old Housing Board Colony, Bhiwani. Though she was examined on behalf of the accused to disprove the recovery, at the same time, she has admitted in the cross-examination that police have visited her place a year and a half earlier to her statement. If this part of evidence is examined, coupled with the other documentary evidence on seizure, there is no reason to disbelieve the recovery of weapon, from the residence of appellants Bua, i.e., House No.160, Old Housing Board Colony, Bhiwani. All the recoveries have been proved by examining witnesses for such recoveries. Only in view of the disclosure statement Ex.PX recoveries of pistol .315 bore and cartridges were made from the house of his Bua at Bhiwani vide recovery memo Ex.PY on 24.08.2010. Further, as per the FSL report Ex.PXX, the country made pistol .315 bore used by the accused- appellant for committing the murder of the deceased was found in working order and both the fired cartridges recovered from the spot and fired bullet taken out from the body of the deceased, are found fired from the country made pistol recovered at the instance of accused (Rahul). Further, the injuries on the person of deceased have been proved by doctor who was examined as PW-5. The material evidence on record produced by the prosecution has been further corroborated by call details of mobile phones of Ramesh, Ashok Kumar and Jitender and such call details have been proved by the statement of PW-14. Further, it is also well settled that if other evidence on record clearly establishes that the deceased was murdered by the appellant by using fire-arm, the factum of motive loses its importance, more so, in this case the motive has been established by leading cogent evidence to show that only because the deceased had developed relationship with appellants wife Priyanka, has decided to eliminate the deceased. 20. From the evidence on record, we are of the considered view that prosecution has proved the guilt of the accused beyond reasonable doubt by leading cogent evidence. Further, the motive is also proved by the prosecution. 21. In the case of Sanjay Thakran (2007) 3 SCC 755 relied on by the learned counsel for the appellant, this Court has held that certain tests are to be fulfilled by the prosecution by leading cogent evidence, when the case rests upon circumstantial evidence. Further, in the case of Wakkar (2011) 3 SCC 306 this Court has held that mere recovery itself cannot be the basis for conviction and recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances. However, having regard to evidence on record in this case on hand, we are clearly of the view that the prosecution has satisfied all the tests mentioned in the case of Sanjay Thakran (2007) 3 SCC 755 to bring home the guilt of the accused, by resting upon the circumstantial evidence. If the factum of recoveries is considered along with other evidence in entirety, it gives an irresistible conclusion that the appellant alone has committed offence by using the weapon, which is recovered from the house of DW-1 who is the Bua of the appellant. Further, it is also to be noted that whether the guilt of the accused is proved or not based on the circumstantial evidence, each case has to be judged on the overall assessment of the evidence on record, as such we are of the view that the case law which is referred above, relied on by the learned counsel for the appellant, would not render any assistance to accept his plea that the appellant was falsely implicated. 22. The High Court, in the appeal filed by the appellant herein and another accused Ramesh, reappreciated the evidence on record and confirmed the conviction and sentence, so far as the appellant is concerned and acquitted the other appellant, i.e., Ramesh. Though it is contended by learned counsel appearing for the appellant, on same set of evidence while acquitting the other accused Ramesh there is no reason to confirm the conviction and sentence so far as the appellant herein is concerned. In the impugned judgment, the High Court has recorded reasons for acquittal of the other appellant, i.e., Ramesh. PW-3 Anil, in his deposition has clearly stated that when he along with his mother and deceased Jittu, went to Badhra, after some time Jittu was separated from them, and came back along with Rahul (appellant) and Ashok (proclaimed offender) in a Maruti car. It is stated by PW-3, at that time Jitender @ Jittu stated that he was going to Haridwar and would come back in 3-4 days. Thereafter, Jitender @ Jittu went along with Rahul and Ashok. To the same effect is the statement of PW-12 (Kasturi), mother of the deceased. From the said evidence on record, it stands established that the deceased Jitender @ Jittu was last seen in the company of Rahul (appellant) and Ashok (proclaimed offender) only. There was no mention that Ramesh (appellant before the High Court) also accompanied Jitender @ Jittu for going to Haridwar. In the absence of any evidence on record to show that deceased was also seen with Ramesh lastly by PW-3 and PW-12, the High Court has come to the conclusion, that prosecution has not proved its case beyond reasonable doubt so far as the other appellant Ramesh is concerned. In view of such reasoning recorded by the High Court and evidence on record there are justifiable reasons for acquitting the other appellant, namely, Ramesh, while confirming the conviction so far as the appellant herein is concerned.
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coupled with the documentary evidence, we are of the considered view that there is a complete chain of evidence which would lead to irresistible conclusion that the appellant-accused has committed the offence and none else. Even the recoveries are sufficiently proved with the cogent evidence. In the disclosure statement the appellant-accused has stated that he has kept the weapon with his Bua at House No.160, Old Housing Board Colony, Bhiwani. Though she was examined on behalf of the accused to disprove the recovery, at the same time, she has admitted in the cross-examination that police have visited her place a year and a half earlier to her statement. If this part of evidence is examined, coupled with the other documentary evidence on seizure, there is no reason to disbelieve the recovery of weapon, from the residence of appellants Bua, i.e., House No.160, Old Housing Board Colony, Bhiwani. All the recoveries have been proved by examining witnesses for such recoveries. Only in view of the disclosure statement Ex.PX recoveries of pistol .315 bore and cartridges were made from the house of his Bua at Bhiwani vide recovery memo Ex.PY on 24.08.2010. Further, as per the FSL report Ex.PXX, the country made pistol .315 bore used by the accused- appellant for committing the murder of the deceased was found in working order and both the fired cartridges recovered from the spot and fired bullet taken out from the body of the deceased, are found fired from the country made pistol recovered at the instance of accused (Rahul). Further, the injuries on the person of deceased have been proved by doctor who was examined as PW-5. The material evidence on record produced by the prosecution has been further corroborated by call details of mobile phones of Ramesh, Ashok Kumar and Jitender and such call details have been proved by the statement of PW-14. Further, it is also well settled that if other evidence on record clearly establishes that the deceased was murdered by the appellant by using fire-arm, the factum of motive loses its importance, more so, in this case the motive has been established by leading cogent evidence to show that only because the deceased had developed relationship with appellants wife Priyanka, has decided to eliminate the deceased.20. From the evidence on record, we are of the considered view that prosecution has proved the guilt of the accused beyond reasonable doubt by leading cogent evidence. Further, the motive is also proved by the prosecution.21. In the case of Sanjay Thakran (2007) 3 SCC 755 relied on by the learned counsel for the appellant, this Court has held that certain tests are to be fulfilled by the prosecution by leading cogent evidence, when the case rests upon circumstantial evidence. Further, in the case of Wakkar (2011) 3 SCC 306 this Court has held that mere recovery itself cannot be the basis for conviction and recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances. However, having regard to evidence on record in this case on hand, we are clearly of the view that the prosecution has satisfied all the tests mentioned in the case of Sanjay Thakran (2007) 3 SCC 755 to bring home the guilt of the accused, by resting upon the circumstantial evidence. If the factum of recoveries is considered along with other evidence in entirety, it gives an irresistible conclusion that the appellant alone has committed offence by using the weapon, which is recovered from the house of DW-1 who is the Bua of the appellant. Further, it is also to be noted that whether the guilt of the accused is proved or not based on the circumstantial evidence, each case has to be judged on the overall assessment of the evidence on record, as such we are of the view that the case law which is referred above, relied on by the learned counsel for the appellant, would not render any assistance to accept his plea that the appellant was falsely implicated.22. The High Court, in the appeal filed by the appellant herein and another accused Ramesh, reappreciated the evidence on record and confirmed the conviction and sentence, so far as the appellant is concerned and acquitted the other appellant, i.e., Ramesh. Though it is contended by learned counsel appearing for the appellant, on same set of evidence while acquitting the other accused Ramesh there is no reason to confirm the conviction and sentence so far as the appellant herein is concerned. In the impugned judgment, the High Court has recorded reasons for acquittal of the other appellant, i.e., Ramesh. PW-3 Anil, in his deposition has clearly stated that when he along with his mother and deceased Jittu, went to Badhra, after some time Jittu was separated from them, and came back along with Rahul (appellant) and Ashok (proclaimed offender) in a Maruti car. It is stated by PW-3, at that time Jitender @ Jittu stated that he was going to Haridwar and would come back in 3-4 days. Thereafter, Jitender @ Jittu went along with Rahul and Ashok. To the same effect is the statement of PW-12 (Kasturi), mother of the deceased. From the said evidence on record, it stands established that the deceased Jitender @ Jittu was last seen in the company of Rahul (appellant) and Ashok (proclaimed offender) only. There was no mention that Ramesh (appellant before the High Court) also accompanied Jitender @ Jittu for going to Haridwar. In the absence of any evidence on record to show that deceased was also seen with Ramesh lastly by PW-3 and PW-12, the High Court has come to the conclusion, that prosecution has not proved its case beyond reasonable doubt so far as the other appellant Ramesh is concerned. In view of such reasoning recorded by the High Court and evidence on record there are justifiable reasons for acquitting the other appellant, namely, Ramesh, while confirming the conviction so far as the appellant herein is concerned.
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Calcutta Port Sharmik Union Vs. Calcutta River Transport Association & Ors | in the light of the said principles. It took into consideration the financial capacity of the various managements who were involved in the case, the prevailing conditions of service in Calcutta and other questions governing the determination of the fair wages. It also took into consideration the observations made by the Wage Board which for purposes of fixing wage rates had taken into consideration the relevant matters while making its recommendations with regard to certain categories of workmen working in the Calcutta Port. It found that almost all the managements who had given evidence before it were capable of bearing the financial burden which would have to be borne by them on account of the payment of fair wages to be fixed by it. It found that having regard to all the circumstances of the case the fair wages and allowances payable to the bargemen with effect from January 1, 1976 should be the same as the fair wages payable pursuant to the recommendations made by the Wage Board. 19. After giving our anxious consideration to the entire award and to the judgments of the learned Single Judge and the Division Bench of the Calcutta High Court we feel that both the learned Single Judge and the Division Bench of the High Court erred on the facts and in the circumstances of the case in setting aside the award passed by the National Tribunal. As observed by the learned Single Judge himself the first question, namely, whether the recommendations of the Central Wage Board for the port and dock workers as accepted by the Central Government were applicable to the bargemen in the matter of wages and allowances was referred to the National Tribunal by the Central Government as there were doubts regarding the question whether the bargemen came within the meaning of the definition of dock worker in the Act or not. Naturally in order to decide the said question the National Tribunal had to examine incidentally the correctness of the decision of the Wage Board on the question whether the bargemen were dock workers or not and after taking into consideration all the material before it the National Tribunal had come to the conclusion that the bargemen were also dock workers and there was no justification for denying them the benefit of the recommendations of the Wage Board. This part of the award cannot, therefore, be considered to be outside the scope of the references made to the National Tribunal. The learned Single Judge and the Division Bench of the High Court were therefore in error in finding that the National Tribunal had exceeded its jurisdiction while recording its findings on the above question. The finding on the said question recorded by the National Tribunal may be right or wrong but it cannot be considered as one recorded without jurisdiction. We are of the view that the said question clearly fell within the first part of the reference made to the National Tribunal. Having held that the finding that the bargemen were also dock workers had been recorded by the National Tribunal without jurisdiction the learned Single Judge proceeded to quash the finding recorded by the National Tribunal on the second question also by which the National Tribunal had held that even independently of the recommendations of the Wage Board, the bargemen were entitled to the same wages and allowances which had been recommended by the Wage Board having regard to the financial capacity of the managements and all other relevant factors governing the question of wages payable to them. The Division Bench also erred in observing that the National Tribunal had not applied the relevant principles governing the determination of fair wages. It erred in observing that the National Tribunal had taken into consideration the financial capacity of the port authorities to pay wages and allowances and not of the private employers like those who had challenged the award in the High Court. The Division Bench, however, has observed in the course of its order that no doubt in the award some reference was made to the financial capacity of some of the employers but that had been done only to support the conclusion that the minimum wage as fixed by the Wage Board should be admissible to these workmen and that it would not be beyond the capacity of the employers to pay the same. On going through the award we feel that the above criticism of the award made by the National Tribunal is wholly unjustified. It has dealt with the second part of the reference in paragraphs 37 to 44 of the award which are found in pages 146 to 157 of the paper book placed before us. The National Tribunal has given reasons as to why it has adopted, while answering the second part of the reference referred to it, the recommendations of the Wage Board. 20. The learned Single Judge and the Division Bench of the High Court should have seen that the National Tribunal was of the opinion that the bargemen were entitled to be paid wages and allowances at the rates of wages recommended by the Wage Board on the ground that the bargemen came within the meaning of definition dock workers under the Act and thus the recommendations of the Wage Board were applicable to them and alternatively on the ground that they were entitled to the same rates of wages and allowances even independently of the recommendations of the Wage Board as according to the National Tribunal they were entitled to be paid at those rates having regard to the financial capacity of the managements and all other relevant considerations governing the determination of the wages. In these circumstances we feel that the reasons given by the learned Single Judge and by the Division Bench of the High Court to set aside the award passed by the National Tribunal are wholly unsustainable. The wages and allowances fixed by the National Tribunal were just and not at all excessive. | 1[ds]19. After giving our anxious consideration to the entire award and to the judgments of the learned Single Judge and the Division Bench of the Calcutta High Court we feel that both the learned Single Judge and the Division Bench of the High Court erred on the facts and in the circumstances of the case in setting aside the award passed by the National Tribunal. As observed by the learned Single Judge himself the first question, namely, whether the recommendations of the Central Wage Board for the port and dock workers as accepted by the Central Government were applicable to the bargemen in the matter of wages and allowances was referred to the National Tribunal by the Central Government as there were doubts regarding the question whether the bargemen came within the meaning of the definition of dock worker in the Act or not. Naturally in order to decide the said question the National Tribunal had to examine incidentally the correctness of the decision of the Wage Board on the question whether the bargemen were dock workers or not and after taking into consideration all the material before it the National Tribunal had come to the conclusion that the bargemen were also dock workers and there was no justification for denying them the benefit of the recommendations of the Wage Board. This part of the award cannot, therefore, be considered to be outside the scope of the references made to the National Tribunal. The learned Single Judge and the Division Bench of the High Court were therefore in error in finding that the National Tribunal had exceeded its jurisdiction while recording its findings on the above question. The finding on the said question recorded by the National Tribunal may be right or wrong but it cannot be considered as one recorded without jurisdiction. We are of the view that the said question clearly fell within the first part of the reference made to the National Tribunal. Having held that the finding that the bargemen were also dock workers had been recorded by the National Tribunal without jurisdiction the learned Single Judge proceeded to quash the finding recorded by the National Tribunal on the second question also by which the National Tribunal had held that even independently of the recommendations of the Wage Board, the bargemen were entitled to the same wages and allowances which had been recommended by the Wage Board having regard to the financial capacity of the managements and all other relevant factors governing the question of wages payable to them. The Division Bench also erred in observing that the National Tribunal had not applied the relevant principles governing the determination of fair wages. It erred in observing that the National Tribunal had taken into consideration the financial capacity of the port authorities to pay wages and allowances and not of the private employers like those who had challenged the award in the High Court. The Division Bench, however, has observed in the course of its order that no doubt in the award some reference was made to the financial capacity of some of the employers but that had been done only to support the conclusion that the minimum wage as fixed by the Wage Board should be admissible to these workmen and that it would not be beyond the capacity of the employers to pay the same. On going through the award we feel that the above criticism of the award made by the National Tribunal is wholly unjustified. It has dealt with the second part of the reference in paragraphs 37 to 44 of the award which are found in pages 146 to 157 of the paper book placed before us. The National Tribunal has given reasons as to why it has adopted, while answering the second part of the reference referred to it, the recommendations of the Wage Board20. The learned Single Judge and the Division Bench of the High Court should have seen that the National Tribunal was of the opinion that the bargemen were entitled to be paid wages and allowances at the rates of wages recommended by the Wage Board on the ground that the bargemen came within the meaning of definition dock workers under the Act and thus the recommendations of the Wage Board were applicable to them and alternatively on the ground that they were entitled to the same rates of wages and allowances even independently of the recommendations of the Wage Board as according to the National Tribunal they were entitled to be paid at those rates having regard to the financial capacity of the managements and all other relevant considerations governing the determination of the wages. In these circumstances we feel that the reasons given by the learned Single Judge and by the Division Bench of the High Court to set aside the award passed by the National Tribunal are wholly unsustainable. The wages and allowances fixed by the National Tribunal were just and not at all excessive. | 1 | 5,966 | 863 | ### Instruction:
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in the light of the said principles. It took into consideration the financial capacity of the various managements who were involved in the case, the prevailing conditions of service in Calcutta and other questions governing the determination of the fair wages. It also took into consideration the observations made by the Wage Board which for purposes of fixing wage rates had taken into consideration the relevant matters while making its recommendations with regard to certain categories of workmen working in the Calcutta Port. It found that almost all the managements who had given evidence before it were capable of bearing the financial burden which would have to be borne by them on account of the payment of fair wages to be fixed by it. It found that having regard to all the circumstances of the case the fair wages and allowances payable to the bargemen with effect from January 1, 1976 should be the same as the fair wages payable pursuant to the recommendations made by the Wage Board. 19. After giving our anxious consideration to the entire award and to the judgments of the learned Single Judge and the Division Bench of the Calcutta High Court we feel that both the learned Single Judge and the Division Bench of the High Court erred on the facts and in the circumstances of the case in setting aside the award passed by the National Tribunal. As observed by the learned Single Judge himself the first question, namely, whether the recommendations of the Central Wage Board for the port and dock workers as accepted by the Central Government were applicable to the bargemen in the matter of wages and allowances was referred to the National Tribunal by the Central Government as there were doubts regarding the question whether the bargemen came within the meaning of the definition of dock worker in the Act or not. Naturally in order to decide the said question the National Tribunal had to examine incidentally the correctness of the decision of the Wage Board on the question whether the bargemen were dock workers or not and after taking into consideration all the material before it the National Tribunal had come to the conclusion that the bargemen were also dock workers and there was no justification for denying them the benefit of the recommendations of the Wage Board. This part of the award cannot, therefore, be considered to be outside the scope of the references made to the National Tribunal. The learned Single Judge and the Division Bench of the High Court were therefore in error in finding that the National Tribunal had exceeded its jurisdiction while recording its findings on the above question. The finding on the said question recorded by the National Tribunal may be right or wrong but it cannot be considered as one recorded without jurisdiction. We are of the view that the said question clearly fell within the first part of the reference made to the National Tribunal. Having held that the finding that the bargemen were also dock workers had been recorded by the National Tribunal without jurisdiction the learned Single Judge proceeded to quash the finding recorded by the National Tribunal on the second question also by which the National Tribunal had held that even independently of the recommendations of the Wage Board, the bargemen were entitled to the same wages and allowances which had been recommended by the Wage Board having regard to the financial capacity of the managements and all other relevant factors governing the question of wages payable to them. The Division Bench also erred in observing that the National Tribunal had not applied the relevant principles governing the determination of fair wages. It erred in observing that the National Tribunal had taken into consideration the financial capacity of the port authorities to pay wages and allowances and not of the private employers like those who had challenged the award in the High Court. The Division Bench, however, has observed in the course of its order that no doubt in the award some reference was made to the financial capacity of some of the employers but that had been done only to support the conclusion that the minimum wage as fixed by the Wage Board should be admissible to these workmen and that it would not be beyond the capacity of the employers to pay the same. On going through the award we feel that the above criticism of the award made by the National Tribunal is wholly unjustified. It has dealt with the second part of the reference in paragraphs 37 to 44 of the award which are found in pages 146 to 157 of the paper book placed before us. The National Tribunal has given reasons as to why it has adopted, while answering the second part of the reference referred to it, the recommendations of the Wage Board. 20. The learned Single Judge and the Division Bench of the High Court should have seen that the National Tribunal was of the opinion that the bargemen were entitled to be paid wages and allowances at the rates of wages recommended by the Wage Board on the ground that the bargemen came within the meaning of definition dock workers under the Act and thus the recommendations of the Wage Board were applicable to them and alternatively on the ground that they were entitled to the same rates of wages and allowances even independently of the recommendations of the Wage Board as according to the National Tribunal they were entitled to be paid at those rates having regard to the financial capacity of the managements and all other relevant considerations governing the determination of the wages. In these circumstances we feel that the reasons given by the learned Single Judge and by the Division Bench of the High Court to set aside the award passed by the National Tribunal are wholly unsustainable. The wages and allowances fixed by the National Tribunal were just and not at all excessive.
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19. After giving our anxious consideration to the entire award and to the judgments of the learned Single Judge and the Division Bench of the Calcutta High Court we feel that both the learned Single Judge and the Division Bench of the High Court erred on the facts and in the circumstances of the case in setting aside the award passed by the National Tribunal. As observed by the learned Single Judge himself the first question, namely, whether the recommendations of the Central Wage Board for the port and dock workers as accepted by the Central Government were applicable to the bargemen in the matter of wages and allowances was referred to the National Tribunal by the Central Government as there were doubts regarding the question whether the bargemen came within the meaning of the definition of dock worker in the Act or not. Naturally in order to decide the said question the National Tribunal had to examine incidentally the correctness of the decision of the Wage Board on the question whether the bargemen were dock workers or not and after taking into consideration all the material before it the National Tribunal had come to the conclusion that the bargemen were also dock workers and there was no justification for denying them the benefit of the recommendations of the Wage Board. This part of the award cannot, therefore, be considered to be outside the scope of the references made to the National Tribunal. The learned Single Judge and the Division Bench of the High Court were therefore in error in finding that the National Tribunal had exceeded its jurisdiction while recording its findings on the above question. The finding on the said question recorded by the National Tribunal may be right or wrong but it cannot be considered as one recorded without jurisdiction. We are of the view that the said question clearly fell within the first part of the reference made to the National Tribunal. Having held that the finding that the bargemen were also dock workers had been recorded by the National Tribunal without jurisdiction the learned Single Judge proceeded to quash the finding recorded by the National Tribunal on the second question also by which the National Tribunal had held that even independently of the recommendations of the Wage Board, the bargemen were entitled to the same wages and allowances which had been recommended by the Wage Board having regard to the financial capacity of the managements and all other relevant factors governing the question of wages payable to them. The Division Bench also erred in observing that the National Tribunal had not applied the relevant principles governing the determination of fair wages. It erred in observing that the National Tribunal had taken into consideration the financial capacity of the port authorities to pay wages and allowances and not of the private employers like those who had challenged the award in the High Court. The Division Bench, however, has observed in the course of its order that no doubt in the award some reference was made to the financial capacity of some of the employers but that had been done only to support the conclusion that the minimum wage as fixed by the Wage Board should be admissible to these workmen and that it would not be beyond the capacity of the employers to pay the same. On going through the award we feel that the above criticism of the award made by the National Tribunal is wholly unjustified. It has dealt with the second part of the reference in paragraphs 37 to 44 of the award which are found in pages 146 to 157 of the paper book placed before us. The National Tribunal has given reasons as to why it has adopted, while answering the second part of the reference referred to it, the recommendations of the Wage Board20. The learned Single Judge and the Division Bench of the High Court should have seen that the National Tribunal was of the opinion that the bargemen were entitled to be paid wages and allowances at the rates of wages recommended by the Wage Board on the ground that the bargemen came within the meaning of definition dock workers under the Act and thus the recommendations of the Wage Board were applicable to them and alternatively on the ground that they were entitled to the same rates of wages and allowances even independently of the recommendations of the Wage Board as according to the National Tribunal they were entitled to be paid at those rates having regard to the financial capacity of the managements and all other relevant considerations governing the determination of the wages. In these circumstances we feel that the reasons given by the learned Single Judge and by the Division Bench of the High Court to set aside the award passed by the National Tribunal are wholly unsustainable. The wages and allowances fixed by the National Tribunal were just and not at all excessive.
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Lalappa Lingappa & Ors Vs. Laxmi Vishnu Textile Mills Ltd., Sholapur | for the legislature and not for the courts to consider. The argument of inconvenience and hardship is a dangerous one and i s only admissible in construction where the meaning of the statute is obscure and there are two methods of construction. In their anxiety to advance beneficient purpose of legislation, the courts must not yield to the temptation of seeking ambiguity wh en there is none. 13. In dealing with interpretation of sub-s. (1) of s.4, we must keep in view the scheme of the Act. Sub-s. (1) of s.4 of the Act incorporates the concept of gratuity being a reward for long, continuous and meritorious service. The emphasis therein is not on continuity of employment, but on rendering of continuous service. The legislature inserted the two Explanations in the definition to extend the benefit to employees who are not in uninterrupted service for one year subject to the fulfillment of the conditions laid down therein. By the use of a legal fiction in these Explanations, an employee is deemed to be in continuous service for purposes of sub-sec. (1) of s.4 of the Act. The legislature never intended that the expression actually employed in Explanation I and the expression actually worked in Explanation II should have two different meanings because it wanted to extend the benefit to an employee who works f or a particular number of days in a year in either case. In a case falling under Explanation I, an employee is deemed to be in continuous service if he has been actually employed for not less than 190 days if employed below the ground in a mine, or 240 days in any other case, except when he is employed in a seasonal establishment. In a case falling under Explanation II, an employee of a seasonal establishment, is deemed to be in continuous service if he has actually worked for no t less than 75 per cent of the number of days on which the establishment was in operation during the year. 14. In our judgment, the High Court rightly observed:"It is important to bear in mind that in Explanation I the legislature has used the words actually employed. If it was contemplated by Explanation I that it was sufficient that there should be a subsisting contract of employment, then it was not necessary for the legislature to use the words actually employed." It is not permissible to attribute redundancy to the legislature to defeat the purpose of enacting the Explanation. The expression actually employed in Explanation I to s.2 (c) of the Act must, in the context in which it appear s, mean actually worked. It must accordingly be held that the High Court was right in holding that the permanent employees were not entitled to payment of gratuity under sub-s. (1) of s.4 of the Act for the years in which they remained absent without leave and had actually worked for less than 240 days in a year. 15. As regards badli employees, there can be no doubt that they are not in uninterrupted service and, therefore, they do not fall within the substantive part of the definition continuous service in s.2(c), but are covered by Explanation I. In Delhi Cloth and General Mills Co. v. Its Workmen(1) the Court, while dealing with a gratuity scheme, repelled the contention urged on behalf of the badli employees that since they had to register themselves with the management of the textile mills and were required every day to attend the mills for ascertaining whether work would be provided to them or not, the condition requiring that they should have worked f or not less than 240 days in a year to qualify for gratuity was unjust and observed:If gratuity is to be paid for service rendered, it is difficult to appreciate the grounds on which it can be said that because for maintaining his name on the record of the badli workmen, a workman is required to attend the mills he may be deemed to have rendered service and would on that account be entitled also to claim gratuity. Standing Order No. 3 as settled by the Industrial Court under s.36(3) of the Bombay Industrial Relations Act, 1946 for Operatives in Cotton Textile Mills, in so far as material, provides.(3) Operatives shall be classed as (1) Permanent; (2) Probationer; (3) Badli s; (4) Temporary Operatives; and (5) Apprentices. xx xx A "badli" is one who is employed on the post of a permanent operative or probationer who is temporarily absent. xx xx 16. It is not denied that the Management has got a separate register for the badli employees and that those who need work and when they call at the gate of the mills for work, such number of them are employed by the mills to fill up the vacancies of permanent operatives or probationers who are absent on a particular day either on account of illness or for any other cause. 17. The Report of the Badli Labour Enquiry Committee, Cotton Textile Industry, 1967, no doubt shows that the badli employees are an integral part of the textile industry and that they enjoy most of the benefits of the permanent employees; but there may not be any continuity of service as observed by this Court in the Delhi Cloth Mills case (supra). The badli employees are nothing but substitutes. They are like spare men who are not employed while waiting for a job: Conlon v. Glasgow. Vallabhdas Kanji (P) Ltd. v. Esmail Koya &Ors. taking the view to the contrary, does not appear to lay down a good law. Accordingly, we uphold the view that the badli employees are not covered by the substantive part of the definition of continuous service in s.2(c), but came within Explanation I and, therefore, are not entitled to payment of gratuity for the badli period, i.e. in respect of the years in which there was no work allotted to them due to their failure to report to duty. | 0[ds]We are afraid, this line of reasoning cannot be accepted being against the scheme of theo questions arise in these appealsThese questions relate to the years in which these employees w ere not actually employed for 240 days in a year, due to their absence without leave6. The two Explanations have been inserted by the legislature to define the words one completed year of service to benefit a class of employees who are not in uninterrupted service for one year. These Explanations employ a fiction which converts service of (a) 190 days, if employed below the ground in a mine, (b) 240 days, in any other case except when employed in a seasonal establishment, in a period of 12 calendar months, or (c) 75 per cent of the number of days which the seasonal establishment was in operation, to be one complete ye main point in controversy in these appeals is as to whether the expression actually employed in Explanation I to s. 2(c) must, in the context in which it appears, mean actually worked. The legislature has, no doubt, used two different expressions, namely, actually employed, in Explanation I and actually worked in Explanation II. But, they are, in our view, having regard to the context and purpose with which they have been enacted, synonymous. Explanation I deal s with the case of an employee who is not in uninterrupted service for one year. Such an employee shall be deemed to be in continuous service even though he falls outside the substantive part of the definition in s. 2(c) provided he has been actually employed for 240 days in a year. The expression actually employed in Explanation I must, therefore, mean actually worked. There is a reason why a different expression is used in Explanation II. In the case of a seasonal establishment it is difficult to predicate the number of days on which the establishment would be in operation in the year and an employee of such a seasonal establishment shall, therefore, be deemed to be in continuous service if he has actually worked for not less than 75% of the number of days on which the establishment was in operation9. TheThe Committee also feel that an Explanation may be added to the definition of continuous service to the effect that an employee who works(a) in a mine below the ground for 190 days, or(b) in any other case, for 240 days. in a year, should be deemed to be in continuous service10. TheCommittee also feel that in the case of persons employed in seasonal establishments, such persons, would be deemed to be in continuous service if they had been employed for 75 per cent of the days during which the establishment had been in operation during the season. that was the intention with which the two Explanations were added to the definition of continuous service in s. 2(c) of thee expression continuous service in the context of a gratuity scheme was interpreted by this Court in M/s Jeewanlal (1929) Ltd., Calcutta v. Its Workmen(1) as follows:"Continuous service" in the context of the scheme of gratuity framed by the tribunal in the earlier reference postulates the continuance of the relationship of master and servant between the employer and his employees. If the servant resigns his employment service automatically comes to an end. If the employer terminates the service of his employee that again brings the continuity of service to an end. If the service of an employee is brought to an end by the operation of any law that again is another instance where the continuance is disrupted; but it is difficult to hold that merely because an employee is absent without obtaining leave that itself would bring to an end the continuity of his service. Similarly, participation in an illegal strike which may incur the punishment of dismissal may not by itself bring to an end the relationship of master and servant. It may be a good cause for the termination of service provided of course the relevant provisions in the standing orders in that behalf are complied with; but mere participation in an illegal strike cannot be said to cause breach in continuity for the purposes of gratuity. (emphasis added)The legislature has departed from the meaning given by this Court in the above case to the expression continuous service by incorporating the words not due to any fault on the part of the employee concerned, to give to that expression a restricted legal connotation12. In construing a social welfare legislation, the court should adopt a beneficient rule of construction; if a Section is capable of two constructions, that construction should be preferred which fu lfils the policy of the Act, and is more beneficial to the persons in whose interest the Act has been passed. When, however, the language is plain and unambiguous, as here, we must give effect to it whatever may be the consequences, for, in that cas e, the words of the statute speak the intention of the legislature. When the language is explicit, its consequences are for the legislature and not for the courts to consider. The argument of inconvenience and hardship is a dangerous one and i s only admissible in construction where the meaning of the statute is obscure and there are two methods of construction. In their anxiety to advance beneficient purpose of legislation, the courts must not yield to the temptation of seeking ambiguity wh en there isn dealing with interpretation of. (1) of s.4, we must keep in view the scheme of the Act.. (1) of s.4 of the Act incorporates the concept of gratuity being a reward for long, continuous and meritorious service. The emphasis therein is not on continuity of employment, but on rendering of continuous service. The legislature inserted the two Explanations in the definition to extend the benefit to employees who are not in uninterrupted service for one year subject to the fulfillment of the conditions laid down therein. By the use of a legal fiction in these Explanations, an employee is deemed to be in continuous service for purposes of. (1) of s.4 of the Act. The legislature never intended that the expression actually employed in Explanation I and the expression actually worked in Explanation II should have two different meanings because it wanted to extend the benefit to an employee who works f or a particular number of days in a year in either case. In a case falling under Explanation I, an employee is deemed to be in continuous service if he has been actually employed for not less than 190 days if employed below the ground in a mine, or 240 days in any other case, except when he is employed in a seasonal establishment. In a case falling under Explanation II, an employee of a seasonal establishment, is deemed to be in continuous service if he has actually worked for no t less than 75 per cent of the number of days on which the establishment was in operation during the yearIn our judgment, the High Court rightly observed:"It is important to bear in mind that in Explanation I the legislature has used the words actually employed. If it was contemplated by Explanation I that it was sufficient that there should be a subsisting contract of employment, then it was not necessary for the legislature to use the words actually employed."It is not permissible to attribute redundancy to the legislature to defeat the purpose of enacting the Explanation. The expression actually employed in Explanation I to s.2 (c) of the Act must, in the context in which it appear s, mean actually worked. It must accordingly be held that the High Court was right in holding that the permanent employees were not entitled to payment of gratuity under. (1) of s.4 of the Act for the years in which they remained absent without leave and had actually worked for less than 240 days in as regards badli employees, there can be no doubt that they are not in uninterrupted service and, therefore, they do not fall within the substantive part of the definition continuous service in s.2(c), but are covered by Explanation I. In Delhi Cloth and General Mills Co. v. Its Workmen(1) the Court, while dealing with a gratuity scheme, repelled the contention urged on behalf of the badli employees that since they had to register themselves with the management of the textile mills and were required every day to attend the mills for ascertaining whether work would be provided to them or not, the condition requiring that they should have worked f or not less than 240 days in a year to qualify for gratuity was unjust and observed:If gratuity is to be paid for service rendered, it is difficult to appreciate the grounds on which it can be said that because for maintaining his name on the record of the badli workmen, a workman is required to attend the mills he may be deemed to have rendered service and would on that account be entitled also to claim gratuityIt is not denied that the Management has got a separate register for the badli employees and that those who need work and when they call at the gate of the mills for work, such number of them are employed by the mills to fill up the vacancies of permanent operatives or probationers who are absent on a particular day either on account of illness or for any othere Report of the Badli Labour Enquiry Committee, Cotton Textile Industry, 1967, no doubt shows that the badli employees are an integral part of the textile industry and that they enjoy most of the benefits of the permanent employees; but there may not be any continuity of service as observed by this Court in the Delhi Cloth Mills case (supra). The badli employees are nothing but substitutes. They are like spare men who are not employed while waiting for a job: Conlon v. Glasgow. Vallabhdas Kanji (P) Ltd. v. Esmail Koya &Ors. taking the view to the contrary, does not appear to lay down a good law. Accordingly, we uphold the view that the badli employees are not covered by the substantive part of the definition of continuous service in s.2(c), but came within Explanation I and, therefore, are not entitled to payment of gratuity for the badli period, i.e. in respect of the years in which there was no work allotted to them due to their failure to report to duty. | 0 | 4,203 | 1,950 | ### 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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for the legislature and not for the courts to consider. The argument of inconvenience and hardship is a dangerous one and i s only admissible in construction where the meaning of the statute is obscure and there are two methods of construction. In their anxiety to advance beneficient purpose of legislation, the courts must not yield to the temptation of seeking ambiguity wh en there is none. 13. In dealing with interpretation of sub-s. (1) of s.4, we must keep in view the scheme of the Act. Sub-s. (1) of s.4 of the Act incorporates the concept of gratuity being a reward for long, continuous and meritorious service. The emphasis therein is not on continuity of employment, but on rendering of continuous service. The legislature inserted the two Explanations in the definition to extend the benefit to employees who are not in uninterrupted service for one year subject to the fulfillment of the conditions laid down therein. By the use of a legal fiction in these Explanations, an employee is deemed to be in continuous service for purposes of sub-sec. (1) of s.4 of the Act. The legislature never intended that the expression actually employed in Explanation I and the expression actually worked in Explanation II should have two different meanings because it wanted to extend the benefit to an employee who works f or a particular number of days in a year in either case. In a case falling under Explanation I, an employee is deemed to be in continuous service if he has been actually employed for not less than 190 days if employed below the ground in a mine, or 240 days in any other case, except when he is employed in a seasonal establishment. In a case falling under Explanation II, an employee of a seasonal establishment, is deemed to be in continuous service if he has actually worked for no t less than 75 per cent of the number of days on which the establishment was in operation during the year. 14. In our judgment, the High Court rightly observed:"It is important to bear in mind that in Explanation I the legislature has used the words actually employed. If it was contemplated by Explanation I that it was sufficient that there should be a subsisting contract of employment, then it was not necessary for the legislature to use the words actually employed." It is not permissible to attribute redundancy to the legislature to defeat the purpose of enacting the Explanation. The expression actually employed in Explanation I to s.2 (c) of the Act must, in the context in which it appear s, mean actually worked. It must accordingly be held that the High Court was right in holding that the permanent employees were not entitled to payment of gratuity under sub-s. (1) of s.4 of the Act for the years in which they remained absent without leave and had actually worked for less than 240 days in a year. 15. As regards badli employees, there can be no doubt that they are not in uninterrupted service and, therefore, they do not fall within the substantive part of the definition continuous service in s.2(c), but are covered by Explanation I. In Delhi Cloth and General Mills Co. v. Its Workmen(1) the Court, while dealing with a gratuity scheme, repelled the contention urged on behalf of the badli employees that since they had to register themselves with the management of the textile mills and were required every day to attend the mills for ascertaining whether work would be provided to them or not, the condition requiring that they should have worked f or not less than 240 days in a year to qualify for gratuity was unjust and observed:If gratuity is to be paid for service rendered, it is difficult to appreciate the grounds on which it can be said that because for maintaining his name on the record of the badli workmen, a workman is required to attend the mills he may be deemed to have rendered service and would on that account be entitled also to claim gratuity. Standing Order No. 3 as settled by the Industrial Court under s.36(3) of the Bombay Industrial Relations Act, 1946 for Operatives in Cotton Textile Mills, in so far as material, provides.(3) Operatives shall be classed as (1) Permanent; (2) Probationer; (3) Badli s; (4) Temporary Operatives; and (5) Apprentices. xx xx A "badli" is one who is employed on the post of a permanent operative or probationer who is temporarily absent. xx xx 16. It is not denied that the Management has got a separate register for the badli employees and that those who need work and when they call at the gate of the mills for work, such number of them are employed by the mills to fill up the vacancies of permanent operatives or probationers who are absent on a particular day either on account of illness or for any other cause. 17. The Report of the Badli Labour Enquiry Committee, Cotton Textile Industry, 1967, no doubt shows that the badli employees are an integral part of the textile industry and that they enjoy most of the benefits of the permanent employees; but there may not be any continuity of service as observed by this Court in the Delhi Cloth Mills case (supra). The badli employees are nothing but substitutes. They are like spare men who are not employed while waiting for a job: Conlon v. Glasgow. Vallabhdas Kanji (P) Ltd. v. Esmail Koya &Ors. taking the view to the contrary, does not appear to lay down a good law. Accordingly, we uphold the view that the badli employees are not covered by the substantive part of the definition of continuous service in s.2(c), but came within Explanation I and, therefore, are not entitled to payment of gratuity for the badli period, i.e. in respect of the years in which there was no work allotted to them due to their failure to report to duty.
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### Explanation:
the court should adopt a beneficient rule of construction; if a Section is capable of two constructions, that construction should be preferred which fu lfils the policy of the Act, and is more beneficial to the persons in whose interest the Act has been passed. When, however, the language is plain and unambiguous, as here, we must give effect to it whatever may be the consequences, for, in that cas e, the words of the statute speak the intention of the legislature. When the language is explicit, its consequences are for the legislature and not for the courts to consider. The argument of inconvenience and hardship is a dangerous one and i s only admissible in construction where the meaning of the statute is obscure and there are two methods of construction. In their anxiety to advance beneficient purpose of legislation, the courts must not yield to the temptation of seeking ambiguity wh en there isn dealing with interpretation of. (1) of s.4, we must keep in view the scheme of the Act.. (1) of s.4 of the Act incorporates the concept of gratuity being a reward for long, continuous and meritorious service. The emphasis therein is not on continuity of employment, but on rendering of continuous service. The legislature inserted the two Explanations in the definition to extend the benefit to employees who are not in uninterrupted service for one year subject to the fulfillment of the conditions laid down therein. By the use of a legal fiction in these Explanations, an employee is deemed to be in continuous service for purposes of. (1) of s.4 of the Act. The legislature never intended that the expression actually employed in Explanation I and the expression actually worked in Explanation II should have two different meanings because it wanted to extend the benefit to an employee who works f or a particular number of days in a year in either case. In a case falling under Explanation I, an employee is deemed to be in continuous service if he has been actually employed for not less than 190 days if employed below the ground in a mine, or 240 days in any other case, except when he is employed in a seasonal establishment. In a case falling under Explanation II, an employee of a seasonal establishment, is deemed to be in continuous service if he has actually worked for no t less than 75 per cent of the number of days on which the establishment was in operation during the yearIn our judgment, the High Court rightly observed:"It is important to bear in mind that in Explanation I the legislature has used the words actually employed. If it was contemplated by Explanation I that it was sufficient that there should be a subsisting contract of employment, then it was not necessary for the legislature to use the words actually employed."It is not permissible to attribute redundancy to the legislature to defeat the purpose of enacting the Explanation. The expression actually employed in Explanation I to s.2 (c) of the Act must, in the context in which it appear s, mean actually worked. It must accordingly be held that the High Court was right in holding that the permanent employees were not entitled to payment of gratuity under. (1) of s.4 of the Act for the years in which they remained absent without leave and had actually worked for less than 240 days in as regards badli employees, there can be no doubt that they are not in uninterrupted service and, therefore, they do not fall within the substantive part of the definition continuous service in s.2(c), but are covered by Explanation I. In Delhi Cloth and General Mills Co. v. Its Workmen(1) the Court, while dealing with a gratuity scheme, repelled the contention urged on behalf of the badli employees that since they had to register themselves with the management of the textile mills and were required every day to attend the mills for ascertaining whether work would be provided to them or not, the condition requiring that they should have worked f or not less than 240 days in a year to qualify for gratuity was unjust and observed:If gratuity is to be paid for service rendered, it is difficult to appreciate the grounds on which it can be said that because for maintaining his name on the record of the badli workmen, a workman is required to attend the mills he may be deemed to have rendered service and would on that account be entitled also to claim gratuityIt is not denied that the Management has got a separate register for the badli employees and that those who need work and when they call at the gate of the mills for work, such number of them are employed by the mills to fill up the vacancies of permanent operatives or probationers who are absent on a particular day either on account of illness or for any othere Report of the Badli Labour Enquiry Committee, Cotton Textile Industry, 1967, no doubt shows that the badli employees are an integral part of the textile industry and that they enjoy most of the benefits of the permanent employees; but there may not be any continuity of service as observed by this Court in the Delhi Cloth Mills case (supra). The badli employees are nothing but substitutes. They are like spare men who are not employed while waiting for a job: Conlon v. Glasgow. Vallabhdas Kanji (P) Ltd. v. Esmail Koya &Ors. taking the view to the contrary, does not appear to lay down a good law. Accordingly, we uphold the view that the badli employees are not covered by the substantive part of the definition of continuous service in s.2(c), but came within Explanation I and, therefore, are not entitled to payment of gratuity for the badli period, i.e. in respect of the years in which there was no work allotted to them due to their failure to report to duty.
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Muddada Chayana Vs. Karnam Narayana And Anr. Etc | provides for an appeal to the Tribunal from the decision of the Settlement Officer and it declares that the decision of the Tribunal shall be final and not liabl e to be questioned in any Court of law. Section 16 imposes on every person, whether a land-holder or a ryot who becomes entitled to a ryotwari patta under the Act in respect of any land, the liability to pay to the Government the assessment t hat may be lawfully imposed on the land. Section 21 to 23 provide for the survey of estates, the manner of affecting ryotwari settlement and the determination of the land-revenue. Sections 55 to 68 occur under the heading "Miscellaneous". Section 55 provides for the collection of rent which had accrued before the notified date. Section 56 provides for the decision of certain disputes arising after an estate is notified. It provides for the decision of a dispute as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is. The dispute is required to be decided by the Settlement Officer. Against the decision of the Settlement Officer, an appeal is provided to the Tribunal and the decision of the Tribunal is declared final and not liable to be questioned in any Court of law.Now the Act broadly confers on every tenant in an estate the right to obtain a ryotwari patta in respect of ryoti lands which were included or ought to have been included in his holding before the notified date and on the land-holder the right to obtain a ryotwari patta in respect of lands which belonged to him before the notified date as his private lands. The Act makes express provision for the determination of claims by landholders for the grant of ryotwari patta in respect of the alleged private lands. If there is provision for the determination of the claims of a landholder for the grant of ryotwari patta in respect of his alleged private lands, surely, in an Act aimed at the abolition of intermediaries and the introduction of ryotwari settlement, there must be a provision for the determination of the claims of ryots for the grant of ryotwari patta. Section 56(1) is clearly such a provision. But in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors (supra) it was held that an enquiry as to who was the lawful ryot was permissible under Section 56(1) (c) for the limited purpose of fastening the liability to pay arrear of rent which had accrued before a notified date and for no other purpose. The conclusion of the Full Bench was based entirely on the supposed context in which the provision occurs. The learned Judges held that Section 56(1) (c) occurred so closely on the heels of Section 55 and Section 56(1)(a) and (b), that the applicability of Section 56(1)(c) must be held to be "intimately and integrally connected" with those provisions. We think that the approach of the Full Bench was wrong. Apart from the fact that Section 55 and 56(1)(a), (b) and (c) occur under the heading "Miscellaneous", and, therefore, a contextual interpretation may not be quite appropriate, the Full Bench over looked the serious anomaly created by its conclusion. The anomaly is that while express provision is found in Section 15 of the Act for the adjudication of claims by land-holders for the grant of ryotwari pattas., there is, if the Full Bench is correct, no provision for the adjudication of claims by ryots for the grant of ryotwari pattas. It would indeed be anomalous and ludicrous and reduce the Act to an oddity, if the Act avowedly aimed at reform by the conferment of ryotwari pattas on ryots and the abolition of intermediaries, is to be held not to contain any provision for the determination of the vital question as to who was the lawful ryot of a holding. The object of the Act is to protect ryots and not to leave them in the wilderness. When the Act provides a machinery in Section 56(1) (c) to discover who the lawful ryot of a holding has, it is not for the Court to denude the Act of all meaning by confining the provision to the bounds of Section 55 and 56(1) (a) and (b) on the ground of "contextual interpretation". Interpretation of a statute, contextural or otherwise must further and not frustrate the object of the statute. We are, therefore, of the view that Cherukuru Muthuyya v. Gadde Gopalakrishnayya &ors. (supra) was wrongly decided in so far as it held that ambit of Section 56(1)(c) was controlled by Section 55 and Section 56(1) (a) and (b). We do not think it necessary to consider the matter in further detail in view of the elaborate consideration which has been given to the case by the later Full Bench of five Judges of the High Court of Andhra Pradesh in T. Muniswami Naidu (died) &Ors v. R. Venkata Reddi &Ors. (supra) except to add that to adopt the reasoning of the Full Bench of three Judges in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors. would lead to conflict of jurisdiction and the implementation of the Act would be thrown into disarray.In this connection we may quote the observations of Subba Rao, Chief Justice, who said as follows in Appanna v. Sriramamurty:"Where a special tribunal, out of the ordinary course is appointed by an Act to determine question s as to rights which are the creation of that Act, then except so far as is otherwise expressly provided or necessarily implied, that tribunals jurisdiction to determine those questions is exclusive. Under the Act old rights were abolished and new rights were created. A lawful ryot is entitled to a patta, when a question arises whether a person is a lawful ryot or not, that question falls to be decided by the special Tribunal created by the Act". 3. | 0[ds]We are, however, unable to see any justification for restricting the scope of Section 56(1)(c) in the manner suggested by Shri Sarathi. We will briefly indicate our reasons for holding that the scope of Section 56(1) (c) is not to be restricted as was done by the Full Bench of Andhra Pradesh High Court in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors. (supra). We are fortunately relieved of the necessity of considering the matter more elaborately in view of the fact that the decision in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors. on this part of the case has since been over-ruled by a Full Bench of five Judges of the High Court of Andhra Pradesh in I. Munuswami Naidu (died) &Ors. v. R. Venkata Reddy &Ors. after a thorough and exhaustive consi deration of the question. We may also add here that until the decision in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors., for several years it was understood that Section 56(1) (c) conferred complete and exclusive jurisdiction on the Set tlement Officer to decide rival claims of ryots for the grant of ryotwari patta and Section 55 or 56(1)(a) and (b) were never understood as controlling Section 56(1)(c).A brief resume of the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act relevant for our present purpose is permissible here. As stated in the preamble the Act was enacted to provide for the repeal of the Permanent Settlement, the acquisition of the Rights of land-holders in permanently settled and certain other estates and the introduction of the ryotwari settlement in such estates. Section 1(4) provides for the notification of estates and Section 3 enumerates the consequences of notifying an estate under Section 1(4) of the ActBut in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors (supra) it was held that an enquiry as to who was the lawful ryot was permissible under Section 56(1) (c) for the limited purpose of fastening the liability to pay arrear of rent which had accrued before a notified date and for no other purpose. The conclusion of the Full Bench was based entirely on the supposed context in which the provision occurs. The learned Judges held that Section 56(1) (c) occurred so closely on the heels of Section 55 and Section 56(1)(a) and (b), that the applicability of Section 56(1)(c) must be held to be "intimately and integrally connected" with those provisions. We think that the approach of the Full Bench was wrong. Apart from the fact that Section 55 and 56(1)(a), (b) and (c) occur under the heading "Miscellaneous", and, therefore, a contextual interpretation may not be quite appropriate, the Full Bench over looked the serious anomaly created by its conclusion. The anomaly is that while express provision is found in Section 15 of the Act for the adjudication of claims by land-holders for the grant of ryotwari pattas., there is, if the Full Bench is correct, no provision for the adjudication of claims by ryots for the grant of ryotwari pattas. It would indeed be anomalous and ludicrous and reduce the Act to an oddity, if the Act avowedly aimed at reform by the conferment of ryotwari pattas on ryots and the abolition of intermediaries, is to be held not to contain any provision for the determination of the vital question as to who was the lawful ryot of a holding. The object of the Act is to protect ryots and not to leave them in the wilderness. When the Act provides a machinery in Section 56(1) (c) to discover who the lawful ryot of a holding has, it is not for the Court to denude the Act of all meaning by confining the provision to the bounds of Section 55 and 56(1) (a) and (b) on the ground of "contextual interpretation". Interpretation of a statute, contextural or otherwise must further and not frustrate the object of the statute. We are, therefore, of the view that Cherukuru Muthuyya v. Gadde Gopalakrishnayya &ors. (supra) was wrongly decided in so far as it held that ambit of Section 56(1)(c) was controlled by Section 55 and Section 56(1) (a) and (b). We do not think it necessary to consider the matter in further detail in view of the elaborate consideration which has been given to the case by the later Full Bench of five Judges of the High Court of Andhra Pradesh in T. Muniswami Naidu (died) &Ors v. R. Venkata Reddi &Ors. (supra) except to add that to adopt the reasoning of the Full Bench of three Judges in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors. would lead to conflict of jurisdiction and the implementation of the Act would be thrown into disarray.In this connection we may quote the observations of Subba Rao, Chief Justice, who said as follows in Appanna v. | 0 | 2,867 | 975 | ### 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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provides for an appeal to the Tribunal from the decision of the Settlement Officer and it declares that the decision of the Tribunal shall be final and not liabl e to be questioned in any Court of law. Section 16 imposes on every person, whether a land-holder or a ryot who becomes entitled to a ryotwari patta under the Act in respect of any land, the liability to pay to the Government the assessment t hat may be lawfully imposed on the land. Section 21 to 23 provide for the survey of estates, the manner of affecting ryotwari settlement and the determination of the land-revenue. Sections 55 to 68 occur under the heading "Miscellaneous". Section 55 provides for the collection of rent which had accrued before the notified date. Section 56 provides for the decision of certain disputes arising after an estate is notified. It provides for the decision of a dispute as to (a) whether any rent due from a ryot for any fasli year is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is. The dispute is required to be decided by the Settlement Officer. Against the decision of the Settlement Officer, an appeal is provided to the Tribunal and the decision of the Tribunal is declared final and not liable to be questioned in any Court of law.Now the Act broadly confers on every tenant in an estate the right to obtain a ryotwari patta in respect of ryoti lands which were included or ought to have been included in his holding before the notified date and on the land-holder the right to obtain a ryotwari patta in respect of lands which belonged to him before the notified date as his private lands. The Act makes express provision for the determination of claims by landholders for the grant of ryotwari patta in respect of the alleged private lands. If there is provision for the determination of the claims of a landholder for the grant of ryotwari patta in respect of his alleged private lands, surely, in an Act aimed at the abolition of intermediaries and the introduction of ryotwari settlement, there must be a provision for the determination of the claims of ryots for the grant of ryotwari patta. Section 56(1) is clearly such a provision. But in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors (supra) it was held that an enquiry as to who was the lawful ryot was permissible under Section 56(1) (c) for the limited purpose of fastening the liability to pay arrear of rent which had accrued before a notified date and for no other purpose. The conclusion of the Full Bench was based entirely on the supposed context in which the provision occurs. The learned Judges held that Section 56(1) (c) occurred so closely on the heels of Section 55 and Section 56(1)(a) and (b), that the applicability of Section 56(1)(c) must be held to be "intimately and integrally connected" with those provisions. We think that the approach of the Full Bench was wrong. Apart from the fact that Section 55 and 56(1)(a), (b) and (c) occur under the heading "Miscellaneous", and, therefore, a contextual interpretation may not be quite appropriate, the Full Bench over looked the serious anomaly created by its conclusion. The anomaly is that while express provision is found in Section 15 of the Act for the adjudication of claims by land-holders for the grant of ryotwari pattas., there is, if the Full Bench is correct, no provision for the adjudication of claims by ryots for the grant of ryotwari pattas. It would indeed be anomalous and ludicrous and reduce the Act to an oddity, if the Act avowedly aimed at reform by the conferment of ryotwari pattas on ryots and the abolition of intermediaries, is to be held not to contain any provision for the determination of the vital question as to who was the lawful ryot of a holding. The object of the Act is to protect ryots and not to leave them in the wilderness. When the Act provides a machinery in Section 56(1) (c) to discover who the lawful ryot of a holding has, it is not for the Court to denude the Act of all meaning by confining the provision to the bounds of Section 55 and 56(1) (a) and (b) on the ground of "contextual interpretation". Interpretation of a statute, contextural or otherwise must further and not frustrate the object of the statute. We are, therefore, of the view that Cherukuru Muthuyya v. Gadde Gopalakrishnayya &ors. (supra) was wrongly decided in so far as it held that ambit of Section 56(1)(c) was controlled by Section 55 and Section 56(1) (a) and (b). We do not think it necessary to consider the matter in further detail in view of the elaborate consideration which has been given to the case by the later Full Bench of five Judges of the High Court of Andhra Pradesh in T. Muniswami Naidu (died) &Ors v. R. Venkata Reddi &Ors. (supra) except to add that to adopt the reasoning of the Full Bench of three Judges in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors. would lead to conflict of jurisdiction and the implementation of the Act would be thrown into disarray.In this connection we may quote the observations of Subba Rao, Chief Justice, who said as follows in Appanna v. Sriramamurty:"Where a special tribunal, out of the ordinary course is appointed by an Act to determine question s as to rights which are the creation of that Act, then except so far as is otherwise expressly provided or necessarily implied, that tribunals jurisdiction to determine those questions is exclusive. Under the Act old rights were abolished and new rights were created. A lawful ryot is entitled to a patta, when a question arises whether a person is a lawful ryot or not, that question falls to be decided by the special Tribunal created by the Act". 3.
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We are, however, unable to see any justification for restricting the scope of Section 56(1)(c) in the manner suggested by Shri Sarathi. We will briefly indicate our reasons for holding that the scope of Section 56(1) (c) is not to be restricted as was done by the Full Bench of Andhra Pradesh High Court in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors. (supra). We are fortunately relieved of the necessity of considering the matter more elaborately in view of the fact that the decision in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors. on this part of the case has since been over-ruled by a Full Bench of five Judges of the High Court of Andhra Pradesh in I. Munuswami Naidu (died) &Ors. v. R. Venkata Reddy &Ors. after a thorough and exhaustive consi deration of the question. We may also add here that until the decision in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors., for several years it was understood that Section 56(1) (c) conferred complete and exclusive jurisdiction on the Set tlement Officer to decide rival claims of ryots for the grant of ryotwari patta and Section 55 or 56(1)(a) and (b) were never understood as controlling Section 56(1)(c).A brief resume of the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act relevant for our present purpose is permissible here. As stated in the preamble the Act was enacted to provide for the repeal of the Permanent Settlement, the acquisition of the Rights of land-holders in permanently settled and certain other estates and the introduction of the ryotwari settlement in such estates. Section 1(4) provides for the notification of estates and Section 3 enumerates the consequences of notifying an estate under Section 1(4) of the ActBut in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors (supra) it was held that an enquiry as to who was the lawful ryot was permissible under Section 56(1) (c) for the limited purpose of fastening the liability to pay arrear of rent which had accrued before a notified date and for no other purpose. The conclusion of the Full Bench was based entirely on the supposed context in which the provision occurs. The learned Judges held that Section 56(1) (c) occurred so closely on the heels of Section 55 and Section 56(1)(a) and (b), that the applicability of Section 56(1)(c) must be held to be "intimately and integrally connected" with those provisions. We think that the approach of the Full Bench was wrong. Apart from the fact that Section 55 and 56(1)(a), (b) and (c) occur under the heading "Miscellaneous", and, therefore, a contextual interpretation may not be quite appropriate, the Full Bench over looked the serious anomaly created by its conclusion. The anomaly is that while express provision is found in Section 15 of the Act for the adjudication of claims by land-holders for the grant of ryotwari pattas., there is, if the Full Bench is correct, no provision for the adjudication of claims by ryots for the grant of ryotwari pattas. It would indeed be anomalous and ludicrous and reduce the Act to an oddity, if the Act avowedly aimed at reform by the conferment of ryotwari pattas on ryots and the abolition of intermediaries, is to be held not to contain any provision for the determination of the vital question as to who was the lawful ryot of a holding. The object of the Act is to protect ryots and not to leave them in the wilderness. When the Act provides a machinery in Section 56(1) (c) to discover who the lawful ryot of a holding has, it is not for the Court to denude the Act of all meaning by confining the provision to the bounds of Section 55 and 56(1) (a) and (b) on the ground of "contextual interpretation". Interpretation of a statute, contextural or otherwise must further and not frustrate the object of the statute. We are, therefore, of the view that Cherukuru Muthuyya v. Gadde Gopalakrishnayya &ors. (supra) was wrongly decided in so far as it held that ambit of Section 56(1)(c) was controlled by Section 55 and Section 56(1) (a) and (b). We do not think it necessary to consider the matter in further detail in view of the elaborate consideration which has been given to the case by the later Full Bench of five Judges of the High Court of Andhra Pradesh in T. Muniswami Naidu (died) &Ors v. R. Venkata Reddi &Ors. (supra) except to add that to adopt the reasoning of the Full Bench of three Judges in Cherukuru Muthayya v. Gadde Gopalakrishnayya &Ors. would lead to conflict of jurisdiction and the implementation of the Act would be thrown into disarray.In this connection we may quote the observations of Subba Rao, Chief Justice, who said as follows in Appanna v.
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Bata India Ltd Vs. Commissioner of Central Excise, New Delhi | marketability. On the question of marketability of the articles this Court held as follows :- ".....Marketability of goods has certain attributes. The essence of marketability is neither in the form nor in the shape or condition in which the manufactured articles are to be found, it is the commercial identity of the articles known to the market for being got and sold. The fact that product in question is generally not been got and sold or has no demand in the market would be irrelevant. The plastic body of EMR does not satisfy the aforementioned criteria. There are some competing manufacturers of EMR. Each is having a different plastic body to suit its design and requirement. If one goes to the market to purchase plastic body of EMR of the respondents either for replacement or otherwise one cannot get it in the market because at present it is not a commercially known product. For these reasons, the plastic body, which is a part of the EMR of the respondents, is not `goods so as to be liable to duty as parts of EMR under para 5(d) of the said exemption notification." 16. In Gujarat Narmada Valley Fertilisers Corporation (supra), this Court was dealing with the question whether the intermediate chemicals which are formed in the process of manufacture Butachlor are liable to tax under the Salt Act and held that the test report produced by the Revenue will not establish the marketability of the product. It further held that unless the product is capable of being marketed and is known to those who are in the market as having an identity as distinctly identifiable that the article is subject to excise duty, the product cannot be treated as a product that is marketable. Marketability cannot be established by mere stability of the product. Something more would have to be shown to establish that the products are known in the market as commercial product. 17. In Cipla Limited (supra) this Court was examining the question whether Benzyl Methyl Salycylate (BMS) is marketable and therefore liable to excise duty. After referring to various earlier decisions of this Court , it was held that marketability is an essential ingredient to hold that an article is dutiable or excisable to duty and it is well established principle of law that the burden is on the Revenue to prove that the goods are marketable or excisable and held that the product in question was neither marketed nor marketable and was only an intermediate product. It is useful to refer to the law laid down by this Court which reads as follows:- " Since marketability is an essential ingredient to hold that a product is dutiable or exigible, it was for the Revenue to prove that the product was marketable or was capable of being marketed. Manufacturing activity, by itself, does not prove the marketability. The product produced must be a distinct commodity known in the common parlance to the commercial community for the purpose of buying and selling. Since there is no evidence of either buying or selling in the present case, it cannot be held that the product in question was marketable or was capable of being marketed. Mere transfer of BMS by the appellant from its factory at Bangalore to its own unit at Patalganga for manufacture of final product was either marketed or was marketable." 18. Revenue in this case has not succeeded in establishing that the product in question was either marketed or was capable of being marketed. The test of marketability is that the product which is made liable to duty must be marketable in the condition in which it emerges. No evidence has been produced by the Revenue to show the product unvulcanised sandwiched fabric as such is capable of being marketed, without further processing. The question is not whether there is an hypothetical possibility of a purchase and sale of the commodity but whether there is sufficient proof that the product is commercially known. The mere fact that the product in question was entrusted outside for some job work such as stitching is not an indication to show that the product is commercially distinct or marketable product. Without proof of marketability the intermediate product would not be goods much less excisable goods. Such a product is excisable only if it is a complete product having commercial identity capable of being sold to a consumer which has to be established by the Revenue.19. The test report dated 25.10.1994 of the Chemical Examiner, SPB hand book of rubber products and the statement of the Superintendent (Supply and Transportation) of the assessees company do not show that the product in question is capable of being marketed. The mere theoretical possibility of the product being sold is not sufficient but there should be commercial capability of being sold. Theory and practice will not go together when we examine the marketability of a product. On the other hand materials produced by the assessee i.e. affidavit of Mr. Shomnath Chokravarty, Consultant - Rubber and Plastic Technology, affidavit of the Production Manager of the assessee Company, certificate of Prof. C.K.Das, IIT, Kharagpur, affidavit of Ms. Parvati Pada Mukherjee, certificate from Footwear Design and Development Institute, Ministry of Commerce, Government of India and The Vanderbilt Rubber Handbook, would show that the product in question is only an intermediary product generally used for captive consumption which has no commercial identity as such.20. We are also of the view that no reliance can be placed on the Division Bench Judgment of the Calcutta High Court reported in Union of India (UOI) vs. Bata India Ltd. 1993 (68) ELT,756 (Cal) since this Court while dismissing SLP(C)No.6146 of 1993 filed by the assessee against the above judgment clearly opined that the merits of the case was not being looked into since the operative portion of the judgment was in favour of the assessee herein and hence the question as to whether the product was excisable or not was not decided. | 1[ds]12. We have heard counsel on either side at length and have also gone through the show cause notices issued by the Collector, objections filed by the assessee and the order passed by the Commissioner, views expressed by both the members and the order passed by the Tribunal on the question of exigibility of the product. The process undertaken by the assessee has been elaborately dealt with in the above mentioned orders and it is unnecessary to reiterate the same. Suffice it to say that the product in question is used as an intermediate product, goes to make the component for the final product. The burden to show that the product in question is marketed or capable of being bought or sold in the market so as to attract duty is entirely on the Revenue.Revenue in this case has not succeeded in establishing that the product in question was either marketed or was capable of being marketed. The test of marketability is that the product which is made liable to duty must be marketable in the condition in which it emerges. No evidence has been produced by the Revenue to show the product unvulcanised sandwiched fabric as such is capable of being marketed, without further processing. The question is not whether there is an hypothetical possibility of a purchase and sale of the commodity but whether there is sufficient proof that the product is commercially known. The mere fact that the product in question was entrusted outside for some job work such as stitching is not an indication to show that the product is commercially distinct or marketable product. Without proof of marketability the intermediate product would not be goods much less excisable goods. Such a product is excisable only if it is a complete product having commercial identity capable of being sold to a consumer which has to be established by the Revenue.19. The test report dated 25.10.1994 of the Chemical Examiner, SPB hand book of rubber products and the statement of the Superintendent (Supply and Transportation) of the assessees company do not show that the product in question is capable of being marketed. The mere theoretical possibility of the product being sold is not sufficient but there should be commercial capability of being sold. Theory and practice will not go together when we examine the marketability of a product. On the other hand materials produced by the assessee i.e. affidavit of Mr. Shomnath Chokravarty, Consultant - Rubber and Plastic Technology, affidavit of the Production Manager of the assessee Company, certificate of Prof. C.K.Das, IIT, Kharagpur, affidavit of Ms. Parvati Pada Mukherjee, certificate from Footwear Design and Development Institute, Ministry of Commerce, Government of India and The Vanderbilt Rubber Handbook, would show that the product in question is only an intermediary product generally used for captive consumption which has no commercial identity as such.20. We are also of the view that no reliance can be placed on the Division Bench Judgment of the Calcutta High Court reported in Union of India (UOI) vs. Bata India Ltd. 1993 (68) ELT,756 (Cal) since this Court while dismissing SLP(C)No.6146 of 1993 filed by the assessee against the above judgment clearly opined that the merits of the case was not being looked into since the operative portion of the judgment was in favour of the assessee herein and hence the question as to whether the product was excisable or not was not decided. | 1 | 3,440 | 618 | ### 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:
marketability. On the question of marketability of the articles this Court held as follows :- ".....Marketability of goods has certain attributes. The essence of marketability is neither in the form nor in the shape or condition in which the manufactured articles are to be found, it is the commercial identity of the articles known to the market for being got and sold. The fact that product in question is generally not been got and sold or has no demand in the market would be irrelevant. The plastic body of EMR does not satisfy the aforementioned criteria. There are some competing manufacturers of EMR. Each is having a different plastic body to suit its design and requirement. If one goes to the market to purchase plastic body of EMR of the respondents either for replacement or otherwise one cannot get it in the market because at present it is not a commercially known product. For these reasons, the plastic body, which is a part of the EMR of the respondents, is not `goods so as to be liable to duty as parts of EMR under para 5(d) of the said exemption notification." 16. In Gujarat Narmada Valley Fertilisers Corporation (supra), this Court was dealing with the question whether the intermediate chemicals which are formed in the process of manufacture Butachlor are liable to tax under the Salt Act and held that the test report produced by the Revenue will not establish the marketability of the product. It further held that unless the product is capable of being marketed and is known to those who are in the market as having an identity as distinctly identifiable that the article is subject to excise duty, the product cannot be treated as a product that is marketable. Marketability cannot be established by mere stability of the product. Something more would have to be shown to establish that the products are known in the market as commercial product. 17. In Cipla Limited (supra) this Court was examining the question whether Benzyl Methyl Salycylate (BMS) is marketable and therefore liable to excise duty. After referring to various earlier decisions of this Court , it was held that marketability is an essential ingredient to hold that an article is dutiable or excisable to duty and it is well established principle of law that the burden is on the Revenue to prove that the goods are marketable or excisable and held that the product in question was neither marketed nor marketable and was only an intermediate product. It is useful to refer to the law laid down by this Court which reads as follows:- " Since marketability is an essential ingredient to hold that a product is dutiable or exigible, it was for the Revenue to prove that the product was marketable or was capable of being marketed. Manufacturing activity, by itself, does not prove the marketability. The product produced must be a distinct commodity known in the common parlance to the commercial community for the purpose of buying and selling. Since there is no evidence of either buying or selling in the present case, it cannot be held that the product in question was marketable or was capable of being marketed. Mere transfer of BMS by the appellant from its factory at Bangalore to its own unit at Patalganga for manufacture of final product was either marketed or was marketable." 18. Revenue in this case has not succeeded in establishing that the product in question was either marketed or was capable of being marketed. The test of marketability is that the product which is made liable to duty must be marketable in the condition in which it emerges. No evidence has been produced by the Revenue to show the product unvulcanised sandwiched fabric as such is capable of being marketed, without further processing. The question is not whether there is an hypothetical possibility of a purchase and sale of the commodity but whether there is sufficient proof that the product is commercially known. The mere fact that the product in question was entrusted outside for some job work such as stitching is not an indication to show that the product is commercially distinct or marketable product. Without proof of marketability the intermediate product would not be goods much less excisable goods. Such a product is excisable only if it is a complete product having commercial identity capable of being sold to a consumer which has to be established by the Revenue.19. The test report dated 25.10.1994 of the Chemical Examiner, SPB hand book of rubber products and the statement of the Superintendent (Supply and Transportation) of the assessees company do not show that the product in question is capable of being marketed. The mere theoretical possibility of the product being sold is not sufficient but there should be commercial capability of being sold. Theory and practice will not go together when we examine the marketability of a product. On the other hand materials produced by the assessee i.e. affidavit of Mr. Shomnath Chokravarty, Consultant - Rubber and Plastic Technology, affidavit of the Production Manager of the assessee Company, certificate of Prof. C.K.Das, IIT, Kharagpur, affidavit of Ms. Parvati Pada Mukherjee, certificate from Footwear Design and Development Institute, Ministry of Commerce, Government of India and The Vanderbilt Rubber Handbook, would show that the product in question is only an intermediary product generally used for captive consumption which has no commercial identity as such.20. We are also of the view that no reliance can be placed on the Division Bench Judgment of the Calcutta High Court reported in Union of India (UOI) vs. Bata India Ltd. 1993 (68) ELT,756 (Cal) since this Court while dismissing SLP(C)No.6146 of 1993 filed by the assessee against the above judgment clearly opined that the merits of the case was not being looked into since the operative portion of the judgment was in favour of the assessee herein and hence the question as to whether the product was excisable or not was not decided.
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12. We have heard counsel on either side at length and have also gone through the show cause notices issued by the Collector, objections filed by the assessee and the order passed by the Commissioner, views expressed by both the members and the order passed by the Tribunal on the question of exigibility of the product. The process undertaken by the assessee has been elaborately dealt with in the above mentioned orders and it is unnecessary to reiterate the same. Suffice it to say that the product in question is used as an intermediate product, goes to make the component for the final product. The burden to show that the product in question is marketed or capable of being bought or sold in the market so as to attract duty is entirely on the Revenue.Revenue in this case has not succeeded in establishing that the product in question was either marketed or was capable of being marketed. The test of marketability is that the product which is made liable to duty must be marketable in the condition in which it emerges. No evidence has been produced by the Revenue to show the product unvulcanised sandwiched fabric as such is capable of being marketed, without further processing. The question is not whether there is an hypothetical possibility of a purchase and sale of the commodity but whether there is sufficient proof that the product is commercially known. The mere fact that the product in question was entrusted outside for some job work such as stitching is not an indication to show that the product is commercially distinct or marketable product. Without proof of marketability the intermediate product would not be goods much less excisable goods. Such a product is excisable only if it is a complete product having commercial identity capable of being sold to a consumer which has to be established by the Revenue.19. The test report dated 25.10.1994 of the Chemical Examiner, SPB hand book of rubber products and the statement of the Superintendent (Supply and Transportation) of the assessees company do not show that the product in question is capable of being marketed. The mere theoretical possibility of the product being sold is not sufficient but there should be commercial capability of being sold. Theory and practice will not go together when we examine the marketability of a product. On the other hand materials produced by the assessee i.e. affidavit of Mr. Shomnath Chokravarty, Consultant - Rubber and Plastic Technology, affidavit of the Production Manager of the assessee Company, certificate of Prof. C.K.Das, IIT, Kharagpur, affidavit of Ms. Parvati Pada Mukherjee, certificate from Footwear Design and Development Institute, Ministry of Commerce, Government of India and The Vanderbilt Rubber Handbook, would show that the product in question is only an intermediary product generally used for captive consumption which has no commercial identity as such.20. We are also of the view that no reliance can be placed on the Division Bench Judgment of the Calcutta High Court reported in Union of India (UOI) vs. Bata India Ltd. 1993 (68) ELT,756 (Cal) since this Court while dismissing SLP(C)No.6146 of 1993 filed by the assessee against the above judgment clearly opined that the merits of the case was not being looked into since the operative portion of the judgment was in favour of the assessee herein and hence the question as to whether the product was excisable or not was not decided.
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Rajesh Pravinchandra Rajyaguru and Ors Vs. Gujarat Water Supply & Sewerage Board and Ors | meet out the expenses of the State. It is always a conscious decision of the Government as to how much taxes have to be levied so as to not cause excessive burden on the citizens. But the Boards and Corporations have to depend on either their own resources or seek grant from the Central/ State Government, as the case may be, for their expenditures. Therefore, the grant of benefits of higher pay scale to the Central/State Government employees stand on different footing than grant of pay scale by an instrumentality of the State. Therefore, the daily rated employees of the Board cannot as a matter of right claim the parity of pay scales with the Government employees. 13.7 In the present case a conscious decision has been taken by the Board not to adopt the Government Resolutions dated 01.05.1991 and 15.02.1992. Even the State Government has refused to extend the benefits under the Government Resolutions of 1991 and 1992. The Board has taken a conscious decision considering the additional financial burden on the Board if the benefits under the Government Resolutions of 1991 and 1992 are allowed. 14. At the cost of repetition, it is observed that unless and until the Board has specifically adopted the Government Resolutions of 1991 and 1992 like adopting the parent Resolution dated 17.10.1988, the daily rated employees/employees of the Respondent – Board shall not be entitled to any benefit flowing from the Resolutions of 1991 and 1992. Therefore, the learned Single Judge erred in directing the Board to grant the benefits flowing from the Government Resolutions dated 01.05.1991 and 15.02.1992 which is rightly set aside by the Division Bench of the High Court. 15. So far as the submission on behalf of the original writ petitioners which was accepted by the learned Single Judge that as number of other daily rated employees of the Board were granted the benefits flowing from the Resolutions of 1991 and 1992, not paying similar benefits to the remaining daily rated employees would be discriminatory and violative of Article 14 of the Constitution of India is concerned, it is required to be noted that as such right from the very beginning it was the case on behalf of the Respondent – Board that the benefits under the Resolutions of 1991 and 1992 were inadvertently and mistakenly given by some of the zonal offices, which subsequently came to be withdrawn and even the recovery is also sought. As observed and held hereinabove the original writ petitioners – daily rated employees of the Board are not entitled to the benefits flowing from the Government Resolutions of 1991 and 1992. Therefore, they cannot invoke Article 14 of the Constitution to claim benefit on the ground of parity if they otherwise are not entitled to such benefit. As per the settled proposition of law Article 14 of the Constitution embodies concept of positive equality alone and not negative equality. It cannot be relied upon to perpetuate illegality and irregularity. 15.1 As held by this Court in the case of Rajkumar Sharma (Supra) in a case of appointments or pay-scales, Article 14 of the Constitution does not envisage negative equality and if State has committed the mistake, it cannot be forced to perpetuate the same mistake. 15.2 In the case of Debasish Mukherjee (Supra) while dealing with the concept of equality it is observed in paragraph 26 as under: 26. It is now well settled that guarantee of equality before law is a positive concept and cannot be enforced in a negative manner. If an illegality or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of Courts and Tribunals to require the state to commit the same irregularity or illegality in their favour on the reasoning that they have been denied the benefits which have been illegally or arbitrarily extended to others. [See : Gursharan Singh vs. New Delhi Municipal Administration - 1996 (2) SCC 459, Union of India vs. Kirloskar Pneumatics Ltd. - 1996 (4) SCC 433, Union of India vs. International Trading Co. - 2003 (5) SCC 437, and State of Bihar vs. Kameshwar Prasad Singh - 2000 (9) SCC 94 .] 16. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove the daily rated employees of the Board cannot claim as a matter of right the benefits flowing from the Government Resolutions dated 01.05.1991 and 15.02.1992 and as such they are not entitled to the benefits flowing from the said Resolutions of 1991 and 1992 automatically and considering the fact that even subsequently the mistake committed by other zonal offices have been corrected and the benefits mistakenly and/or inadvertently have been withdrawn and even the recovery sought, the learned Single Judge committed grave error in holding that the action of the Respondent – Board in not granting benefit flowing from the Government Resolution of 1991 and 1992 is discriminately and violative of Article 14 of the Constitution of India. The same is rightly corrected by the Division Bench of the High Court and the Division Bench of the High Court has rightly set aside the order passed by the Single judge. 17. Now so far as the reliance placed upon by learned counsel appearing on behalf of the original writ petitioners in the decision of this Court in PWD Employees Union (Supra) is concerned, the same shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the daily rated employees of the Respondent – Board. In the case before this Court the dispute was with respect to two different departments of the State Government. As observed hereinabove, the employees of the Government departments and the employees of the Board as such stand on different footings. As observed hereinabove the employees of the Board cannot claim the parity with that of the Government employees. | 0[ds]13. Having heard the learned counsel for the respective parties and considering the list of dates and events reproduced hereinabove it can be seen that the writ petitioners are working as daily rated employees with the Respondent – Board. The State of Gujarat passed a resolution dated 17.10.1988 wherein the Government decided to grant certain benefits to skilled daily wager workmen. The Respondent – Board which is an autonomous body constituted under the Act adopted the Resolution dated 17.10.1988 and granted the benefits flowing from the GR dated 17.10.1988 which is the parent Resolution. It is not in dispute that the respective original writ petitioners – daily rated employees are granted the benefits flowing from the parent Resolution dated 17.10.1988.13.2 However, it is required to be noted that as such the Board never adopted the subsequent Resolutions dated 01.05.1991 and 15.02.1992. It is required to be noted that the parent Resolution dated 17.10.1988 was specifically approved by the Board vide communication dated 08.06.1989. On the contrary the administrative instructions vide communication dated 29.08.1991 were issued to all the Chief Engineers of zonal offices that benefits pursuant to Government Resolution of 1991 are not to be granted to the daily rated employees of the Board. It is to be noted that right from adopting the parent Resolution dated 17.10.1988, the Respondent - Board granted benefits under the parent Resolution to all the original writ petitioners – daily rated employees upon their completion of 5 years and of 10 years. Therefore, as such the Board which is an autonomous and statutory body created under the Act never adopted the Government Resolutions dated 01.05.1991 and 15.02.1992 and unless the said Resolutions are adopted by the Respondent – Board, the daily rated employees working with the Respondent – Board shall not be entitled to the benefits flowing from the subsequent resolutions. There shall not be automatic adoption and/or applicability of the subsequent resolutions. Under the circumstances as rightly held by the Division Bench, the daily rated employees of the Respondent – Board cannot claim the benefits from the Resolutions of 1991 and 1992 as a matter of right. As rightly observed and held they do no have any right to get the benefits flowing from the aforesaid Resolutions of 01.05.1991 and 15.02.1992 till specifically adopted by the Respondent – Board like adoption of the parent Resolution dated 17.10.1988.13.3 Even being the daily rated employees working with the Respondent – Board they cannot claim the parity with the employees of the State Government. The Respondent – Board is an autonomous and statutory body created under the Act. It is ultimately for the Respondent – Board to take a conscious decision which can be termed as a policy decision on the pay scales to be adopted and/or certain benefits which would have financial implications. Everything depends upon its economic viability or the financial capacity. As per the settled proposition of law the economic viability or the financial capacity of the employer is an important factor while fixing the wage structure, otherwise the unit itself may not be able to function and may have to close down inevitably and have disastrous consequences for the employees themselves. As per the settled proposition of law the employees cannot legitimately claim that their pay-scales should necessarily be revised and/or they must be granted certain additional benefits/benefits.13.4 As per the settled proposition of law equation of posts and salary is a complex matter which should be left to the expert body and undertakings and the court cannot interfere lightly. Granting of pay parity by the court may result in a cascading effect having adverse consequences. There are limitations or qualifications to the applicability of the doctrine of equal pay for equal work.13.5 Being daily rated employees of the Respondent – Board, they cannot claim as of right similar treatment as Government employees. The Respondent – Board is an independent entity and it might have its own financial capacity and therefore its employees cannot claim parity with the employees of the State Government.13.6 The State Government and the autonomous Board/bodies cannot be put at par. The Board has to depend upon their own financial resources. In the recent decision in the case of Punjab State Cooperative Milk Producers Federation Limited and Another (Supra) it is observed in paragraph 32 as under:32. The Central or State Government is empowered to levy taxes to meet out the expenses of the State. It is always a conscious decision of the Government as to how much taxes have to be levied so as to not cause excessive burden on the citizens. But the Boards and Corporations have to depend on either their own resources or seek grant from the Central/ State Government, as the case may be, for their expenditures. Therefore, the grant of benefits of higher pay scale to the Central/State Government employees stand on different footing than grant of pay scale by an instrumentality of the State.Therefore, the daily rated employees of the Board cannot as a matter of right claim the parity of pay scales with the Government employees.13.7 In the present case a conscious decision has been taken by the Board not to adopt the Government Resolutions dated 01.05.1991 and 15.02.1992. Even the State Government has refused to extend the benefits under the Government Resolutions of 1991 and 1992. The Board has taken a conscious decision considering the additional financial burden on the Board if the benefits under the Government Resolutions of 1991 and 1992 are allowed.14. At the cost of repetition, it is observed that unless and until the Board has specifically adopted the Government Resolutions of 1991 and 1992 like adopting the parent Resolution dated 17.10.1988, the daily rated employees/employees of the Respondent – Board shall not be entitled to any benefit flowing from the Resolutions of 1991 and 1992. Therefore, the learned Single Judge erred in directing the Board to grant the benefits flowing from the Government Resolutions dated 01.05.1991 and 15.02.1992 which is rightly set aside by the Division Bench of the High Court.15. So far as the submission on behalf of the original writ petitioners which was accepted by the learned Single Judge that as number of other daily rated employees of the Board were granted the benefits flowing from the Resolutions of 1991 and 1992, not paying similar benefits to the remaining daily rated employees would be discriminatory and violative of Article 14 of the Constitution of India is concerned, it is required to be noted that as such right from the very beginning it was the case on behalf of the Respondent – Board that the benefits under the Resolutions of 1991 and 1992 were inadvertently and mistakenly given by some of the zonal offices, which subsequently came to be withdrawn and even the recovery is also sought. As observed and held hereinabove the original writ petitioners – daily rated employees of the Board are not entitled to the benefits flowing from the Government Resolutions of 1991 and 1992. Therefore, they cannot invoke Article 14 of the Constitution to claim benefit on the ground of parity if they otherwise are not entitled to such benefit. As per the settled proposition of law Article 14 of the Constitution embodies concept of positive equality alone and not negative equality. It cannot be relied upon to perpetuate illegality and irregularity.15.2 In the case of Debasish Mukherjee (Supra) while dealing with the concept of equality it is observed in paragraph 26 as under:26. It is now well settled that guarantee of equality before law is a positive concept and cannot be enforced in a negative manner. If an illegality or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of Courts and Tribunals to require the state to commit the same irregularity or illegality in their favour on the reasoning that they have been denied the benefits which have been illegally or arbitrarily extended to others. [See : Gursharan Singh vs. New Delhi Municipal Administration - 1996 (2) SCC 459, Union of India vs. Kirloskar Pneumatics Ltd. - 1996 (4) SCC 433, Union of India vs. International Trading Co. - 2003 (5) SCC 437, and State of Bihar vs. Kameshwar Prasad Singh - 2000 (9) SCC 94 .]16. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove the daily rated employees of the Board cannot claim as a matter of right the benefits flowing from the Government Resolutions dated 01.05.1991 and 15.02.1992 and as such they are not entitled to the benefits flowing from the said Resolutions of 1991 and 1992 automatically and considering the fact that even subsequently the mistake committed by other zonal offices have been corrected and the benefits mistakenly and/or inadvertently have been withdrawn and even the recovery sought, the learned Single Judge committed grave error in holding that the action of the Respondent – Board in not granting benefit flowing from the Government Resolution of 1991 and 1992 is discriminately and violative of Article 14 of the Constitution of India. The same is rightly corrected by the Division Bench of the High Court and the Division Bench of the High Court has rightly set aside the order passed by the Single judge.17. Now so far as the reliance placed upon by learned counsel appearing on behalf of the original writ petitioners in the decision of this Court in PWD Employees Union (Supra) is concerned, the same shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the daily rated employees of the Respondent – Board. In the case before this Court the dispute was with respect to two different departments of the State Government.As observed hereinabove, the employees of the Government departments and the employees of the Board as such stand on different footings. As observed hereinabove the employees of the Board cannot claim the parity with that of the Government employees. | 0 | 6,486 | 1,778 | ### 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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meet out the expenses of the State. It is always a conscious decision of the Government as to how much taxes have to be levied so as to not cause excessive burden on the citizens. But the Boards and Corporations have to depend on either their own resources or seek grant from the Central/ State Government, as the case may be, for their expenditures. Therefore, the grant of benefits of higher pay scale to the Central/State Government employees stand on different footing than grant of pay scale by an instrumentality of the State. Therefore, the daily rated employees of the Board cannot as a matter of right claim the parity of pay scales with the Government employees. 13.7 In the present case a conscious decision has been taken by the Board not to adopt the Government Resolutions dated 01.05.1991 and 15.02.1992. Even the State Government has refused to extend the benefits under the Government Resolutions of 1991 and 1992. The Board has taken a conscious decision considering the additional financial burden on the Board if the benefits under the Government Resolutions of 1991 and 1992 are allowed. 14. At the cost of repetition, it is observed that unless and until the Board has specifically adopted the Government Resolutions of 1991 and 1992 like adopting the parent Resolution dated 17.10.1988, the daily rated employees/employees of the Respondent – Board shall not be entitled to any benefit flowing from the Resolutions of 1991 and 1992. Therefore, the learned Single Judge erred in directing the Board to grant the benefits flowing from the Government Resolutions dated 01.05.1991 and 15.02.1992 which is rightly set aside by the Division Bench of the High Court. 15. So far as the submission on behalf of the original writ petitioners which was accepted by the learned Single Judge that as number of other daily rated employees of the Board were granted the benefits flowing from the Resolutions of 1991 and 1992, not paying similar benefits to the remaining daily rated employees would be discriminatory and violative of Article 14 of the Constitution of India is concerned, it is required to be noted that as such right from the very beginning it was the case on behalf of the Respondent – Board that the benefits under the Resolutions of 1991 and 1992 were inadvertently and mistakenly given by some of the zonal offices, which subsequently came to be withdrawn and even the recovery is also sought. As observed and held hereinabove the original writ petitioners – daily rated employees of the Board are not entitled to the benefits flowing from the Government Resolutions of 1991 and 1992. Therefore, they cannot invoke Article 14 of the Constitution to claim benefit on the ground of parity if they otherwise are not entitled to such benefit. As per the settled proposition of law Article 14 of the Constitution embodies concept of positive equality alone and not negative equality. It cannot be relied upon to perpetuate illegality and irregularity. 15.1 As held by this Court in the case of Rajkumar Sharma (Supra) in a case of appointments or pay-scales, Article 14 of the Constitution does not envisage negative equality and if State has committed the mistake, it cannot be forced to perpetuate the same mistake. 15.2 In the case of Debasish Mukherjee (Supra) while dealing with the concept of equality it is observed in paragraph 26 as under: 26. It is now well settled that guarantee of equality before law is a positive concept and cannot be enforced in a negative manner. If an illegality or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of Courts and Tribunals to require the state to commit the same irregularity or illegality in their favour on the reasoning that they have been denied the benefits which have been illegally or arbitrarily extended to others. [See : Gursharan Singh vs. New Delhi Municipal Administration - 1996 (2) SCC 459, Union of India vs. Kirloskar Pneumatics Ltd. - 1996 (4) SCC 433, Union of India vs. International Trading Co. - 2003 (5) SCC 437, and State of Bihar vs. Kameshwar Prasad Singh - 2000 (9) SCC 94 .] 16. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove the daily rated employees of the Board cannot claim as a matter of right the benefits flowing from the Government Resolutions dated 01.05.1991 and 15.02.1992 and as such they are not entitled to the benefits flowing from the said Resolutions of 1991 and 1992 automatically and considering the fact that even subsequently the mistake committed by other zonal offices have been corrected and the benefits mistakenly and/or inadvertently have been withdrawn and even the recovery sought, the learned Single Judge committed grave error in holding that the action of the Respondent – Board in not granting benefit flowing from the Government Resolution of 1991 and 1992 is discriminately and violative of Article 14 of the Constitution of India. The same is rightly corrected by the Division Bench of the High Court and the Division Bench of the High Court has rightly set aside the order passed by the Single judge. 17. Now so far as the reliance placed upon by learned counsel appearing on behalf of the original writ petitioners in the decision of this Court in PWD Employees Union (Supra) is concerned, the same shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the daily rated employees of the Respondent – Board. In the case before this Court the dispute was with respect to two different departments of the State Government. As observed hereinabove, the employees of the Government departments and the employees of the Board as such stand on different footings. As observed hereinabove the employees of the Board cannot claim the parity with that of the Government employees.
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cannot be put at par. The Board has to depend upon their own financial resources. In the recent decision in the case of Punjab State Cooperative Milk Producers Federation Limited and Another (Supra) it is observed in paragraph 32 as under:32. The Central or State Government is empowered to levy taxes to meet out the expenses of the State. It is always a conscious decision of the Government as to how much taxes have to be levied so as to not cause excessive burden on the citizens. But the Boards and Corporations have to depend on either their own resources or seek grant from the Central/ State Government, as the case may be, for their expenditures. Therefore, the grant of benefits of higher pay scale to the Central/State Government employees stand on different footing than grant of pay scale by an instrumentality of the State.Therefore, the daily rated employees of the Board cannot as a matter of right claim the parity of pay scales with the Government employees.13.7 In the present case a conscious decision has been taken by the Board not to adopt the Government Resolutions dated 01.05.1991 and 15.02.1992. Even the State Government has refused to extend the benefits under the Government Resolutions of 1991 and 1992. The Board has taken a conscious decision considering the additional financial burden on the Board if the benefits under the Government Resolutions of 1991 and 1992 are allowed.14. At the cost of repetition, it is observed that unless and until the Board has specifically adopted the Government Resolutions of 1991 and 1992 like adopting the parent Resolution dated 17.10.1988, the daily rated employees/employees of the Respondent – Board shall not be entitled to any benefit flowing from the Resolutions of 1991 and 1992. Therefore, the learned Single Judge erred in directing the Board to grant the benefits flowing from the Government Resolutions dated 01.05.1991 and 15.02.1992 which is rightly set aside by the Division Bench of the High Court.15. So far as the submission on behalf of the original writ petitioners which was accepted by the learned Single Judge that as number of other daily rated employees of the Board were granted the benefits flowing from the Resolutions of 1991 and 1992, not paying similar benefits to the remaining daily rated employees would be discriminatory and violative of Article 14 of the Constitution of India is concerned, it is required to be noted that as such right from the very beginning it was the case on behalf of the Respondent – Board that the benefits under the Resolutions of 1991 and 1992 were inadvertently and mistakenly given by some of the zonal offices, which subsequently came to be withdrawn and even the recovery is also sought. As observed and held hereinabove the original writ petitioners – daily rated employees of the Board are not entitled to the benefits flowing from the Government Resolutions of 1991 and 1992. Therefore, they cannot invoke Article 14 of the Constitution to claim benefit on the ground of parity if they otherwise are not entitled to such benefit. As per the settled proposition of law Article 14 of the Constitution embodies concept of positive equality alone and not negative equality. It cannot be relied upon to perpetuate illegality and irregularity.15.2 In the case of Debasish Mukherjee (Supra) while dealing with the concept of equality it is observed in paragraph 26 as under:26. It is now well settled that guarantee of equality before law is a positive concept and cannot be enforced in a negative manner. If an illegality or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of Courts and Tribunals to require the state to commit the same irregularity or illegality in their favour on the reasoning that they have been denied the benefits which have been illegally or arbitrarily extended to others. [See : Gursharan Singh vs. New Delhi Municipal Administration - 1996 (2) SCC 459, Union of India vs. Kirloskar Pneumatics Ltd. - 1996 (4) SCC 433, Union of India vs. International Trading Co. - 2003 (5) SCC 437, and State of Bihar vs. Kameshwar Prasad Singh - 2000 (9) SCC 94 .]16. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove the daily rated employees of the Board cannot claim as a matter of right the benefits flowing from the Government Resolutions dated 01.05.1991 and 15.02.1992 and as such they are not entitled to the benefits flowing from the said Resolutions of 1991 and 1992 automatically and considering the fact that even subsequently the mistake committed by other zonal offices have been corrected and the benefits mistakenly and/or inadvertently have been withdrawn and even the recovery sought, the learned Single Judge committed grave error in holding that the action of the Respondent – Board in not granting benefit flowing from the Government Resolution of 1991 and 1992 is discriminately and violative of Article 14 of the Constitution of India. The same is rightly corrected by the Division Bench of the High Court and the Division Bench of the High Court has rightly set aside the order passed by the Single judge.17. Now so far as the reliance placed upon by learned counsel appearing on behalf of the original writ petitioners in the decision of this Court in PWD Employees Union (Supra) is concerned, the same shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the daily rated employees of the Respondent – Board. In the case before this Court the dispute was with respect to two different departments of the State Government.As observed hereinabove, the employees of the Government departments and the employees of the Board as such stand on different footings. As observed hereinabove the employees of the Board cannot claim the parity with that of the Government employees.
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M/S. CHITRALEKHA BUILDERS & ANR. THROUGH ANIL G. SHAH POWER OF ATTORNEY & HUSBAND OF THE PARTNER Vs. G.I.C. EMPLOYEES SONAL VIHAR CO-OP. HOUSING SOCIETY LTD. & ANR | M/s. Chitralekha Builders was impleaded as Defendant No.1, Kusum Gorule was impleaded as Defendant No.2, and M/s. Oswal Enterprises was impleaded as Defendant No.3. It was prayed that : (a) this Honble Court be pleased to declare that the partnership firm M/s Chitralekha Builders stands dissolved on 15.07.2004 or from such other date as this Honble Court may deem fit and proper; (b) this Honble Court be pleased to order for dissolution and winding up of affairs of the partnership firm M/s Chitralekha Builders under the order and directions of this Honble Court. (c) this Honble Court be pleased to order for taking accounts of the partnership firm M/s Chitralekha Builders from the date of dissolution or from such other date as this Honble Court may deem fit and proper and the shares of the plaintiff and the defendant no. 2 be ascertained and ordered to be paid over. (d) for the purposes aforesaid, necessary directions be given and orders be passed; (e) this Honble Court be pleased to declare that consent decree dated 16.02.2005 passed in suit No. 1335 of 1998 is bad in law, illegal and void and not binding upon the suit property; (f) this Honble Court be pleased to further declare that the consent decree dated 03.10.2005 passed in suit no. 1335 of 1998 is bad in law, illegal and void and not binding upon the suit property; (g) this Honble Court be pleased to declare that the purported conveyance dated 25.07.2005 executed in favour of the defendant no. 3 of the suit property is bad in law, void, inoperative and not enforceable against the suit property. (h) this Honble Court be pleased to pass the decree revoking and cancelling the purported conveyance dated 26.07.2005 executed in favour of the defendant no. 3 in respect of the suit property. (i) Pending the hearing and final disposal of the suit court receiver, High Court, Bombay or any other any fit and proper person be appointed as the receiver in respect of the suit property more particularly described in Schedule annexed to the plaint and marked Exhibit-B with all powers under Order 40 of the Code of Civil Procedure, 1908; (j) pending the hearing and final disposable of the suit the defendants no. 2 and 3, their agents, servants and/or any person acting or claiming through them be restrained by an interim order and injunction of this Honble Court from dealing with, disposing of or creating any third party interest or carrying out development works of any nature whatsoever in the suit property more particularly described in the Scheduled annexed to the plaint and marked Exhibit-B. (k) ad-interim reliefs in terms of prayers (i) and (j) above be granted; (l) Cost of the suit be awarded to the plaintiff; (m) Such other and further reliefs as the nature and circumstances of the case may require be granted. During the course of hearing, we were informed that the Suit No.3162 / 2005 is pending at the stage of recording of evidence. 5. Arbitration proceedings 5.1. The inter se disputes between Appellant No.2-Nina Anil Shah and Respondent No.2-Kusum Gorule led to the invocation of arbitration proceedings. The Bombay Court by Order dated 22.07.2005 appointed Justice A.C. Agarwal, retired Chief Justice of the Madras High Court as the sole arbitrator. 5.2. The sole arbitrator passed an Award on 01.08.2006 holding that the partnership firm-Chitralekha Builders was dissolved on 15.07.2004. The suit property was not an asset of the partnership firm. The Appellant No. 2 was directed to pay Rs.62,18,324 i.e. 50% of the expenses of the partnership firm with interest @ 12 % p.a. 5.3. The appellants filed Objections to set aside the award u/S. 34, which were dismissed by Order dated 03.10.2006. The appellants filed Appeal No. 813 / 2006 u/S. 37 of the 1996 Act, wherein by Order dated 21.07.2014, the division bench of the High Court remanded the application u/S. 34 for fresh consideration. 5.4. A single judge of the High Court by Order dated 05.06.2017 partly allowed the application u/S. 34, and set aside the claim for expenses of the partnership firm. 5.5. The appellant No. 2 filed Appeal No. 266-268 / 2017 under Section 37 of the 1996 Act before the High Court, which is currently pending consideration before the division bench. 6. Proceedings before the Supreme Court The challenge in the present Civil Appeal is limited to the Order dated 22.07.2014 passed by a division bench of the High Court dismissing the appeal being Appeal No. 558 / 2017 filed by the appellants to challenge the 1st Consent Decree dated 16.02.2005. 6.1. This Court by Order dated 19.11.2014 issued Notice only for exploring the possibility of a settlement between the appellants and Respondent No.2-Kusum Gorule (originally Respondent No.55). 6.2. The appellants filed I.A. No. 9 / 2016 to delete the original Respondent Nos. 2 to 54 (members of the Vaity family) from the array of parties. Mr.Anil G.Shah-the husband and Power of Attorney holder of Appellant No.2-Nina Anil Shah appeared before the Chamber Judge of this Court, when I.A. No. 9 / 2016 filed by the said Appellant was allowed vide Order dated 28.11.2016 at the risk of the Appellants. 6.3. On 27.03.2018, the appellants filed I.A. No. 48308 / 2018 to implead Oswal Enterprises as a party to the present proceedings. 6.4. This Court by Order dated 12.12.2019 appointed Mr. Nikhil Nayyar, learned Senior Counsel as Amicus Curiae to assist the Court on behalf of the Appellant. 6.5. On 17.03.2020, the appellants filed I.A. No. 73241 / 2020 to reimplead Respondent Nos. 2 to 54 i.e. members of the Vaity family [who had been deleted vide Order dated 28.11.2016] as parties to the present Civil Appeal. 7. We have heard the learned Amicus Curiae, Mr. Nikhil Nayyar, Senior Advocate, Mr. Jay Savla, Senior Advocate on behalf of the Respondents, and Mr. Anil G. Shah in-person, as the Power of Attorney holder of Appellant No.2. 8. We will first deal with the 2 pending I.As. | 0[ds]9. Mr. Nikhil Nayyar, learned senior counsel appearing as Amicus Curiae, Mr. Anil G. Shah in-person, as the Power of Attorney Holder of appellant no. 2, and also learned counsel for the respondents have extensively made their submissions on merits. What transpires from the record is that both the consent decrees dated 16.02.2005 and 03.10.2005 have been challenged at the behest of the appellants in the substantive Suit No. 3162 / 2005 filed at their instance, which is pending adjudication before the Bombay High Court.15. The substantive Suit No.1335 / 1988 was originally filed at the instance of Kusum Gorule (i.e. Geetanjali G. Sohani) [original plaintiff no. 2 in Suit No. 1335 / 1988] and the Vaity family and the decree on the consent terms was passed vide Order dated 16.02.2005, and the subsequent consent order dated 03.10.2005, came to be passed between the parties, viz. GIC Employees Sonal Vihar Co-operative Housing Society (original plaintiff no. 1 in Suit No. 1355/1988) and Oswal Enterprises (Defendant No. 57 in Suit No. 1355 / 1988). Undisputedly, Suit No. 1335/1988 had not been examined by the Court on merits, since the parties to the proceedings entered into a compromise, and a consent order came to be passed by the Court vide Order dated 16.02.2005 followed with Order dated 03.10.2005. Consequently, the suit was disposed of on the consent terms arrived between the parties.16. The present appellants were not a party to the proceedings at the stage when the consent order came to be passed on 16.02.2005, or the subsequent order dated 03.10.2005 in Suit No. 1335 / 1988. Both the consent orders dated 16.02.2005 and 03.10.2005 would consequently not have a binding effect on the present Appellants. The consent orders dated 16.02.2005 and 03.10.2005 challenged in the substantive Suit No. 3162 / 2005 would require to be examined by the Court independently on its own merits in accordance with law, without being influenced by the observations made in the impugned judgment dated 22.07.2014.17. The Division Bench of the High Court in the impugned judgment, after taking note of the submissions made, has recorded a finding that since the Appellants were not a party to the proceedings, and the Order dated 16.02.2005 has been passed on the terms agreeable to the parties to the proceedings, it shall not be binding upon the Appellants, and their rights could be examined independently in the substantive suit filed at their instance.18. We are also of the considered view that since the Appellants were not a party to the Consent Terms as is evident from the record, when the Orders came to be passed on 16.02.2005 followed with 03.10.2005, it may not bind the Appellants. Its legal effect is open to be examined in the substantive suit filed at their instance independently on its own merits in accordance with law. We do not find any error having been committed by the High Court, which may call for our interference.The submission is of no substance since in the first instance, Suit No. 1335/1988 was disposed of by the Court on the consent terms arrived between the parties to the proceedings vide Order dated 16.02.2005 followed by Order dated 03.10.2005. In the given circumstances, even though the Appellants who were later impleaded, have a right of appeal under Section 96 of the CPC. However, since the Appellants were not a party to the Consent Orders, it was not open for the Court to examine the legal effect of the Consent Orders dated 16.02.2005 and 03.10.2005 to which the Appellants were not a party. Once the substantive suit has been filed at their instance questioning the Consent Orders dated 16.02.2005 followed by 03.10.2005, the same is indeed open to be examined independently on its own merits in the pending proceedings initiated at their instance.20. So far as the rights of the Appellants are concerned, the same have been duly protected by the High Court in the impugned judgment dated 22.07.2014. | 0 | 2,400 | 731 | ### Instruction:
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M/s. Chitralekha Builders was impleaded as Defendant No.1, Kusum Gorule was impleaded as Defendant No.2, and M/s. Oswal Enterprises was impleaded as Defendant No.3. It was prayed that : (a) this Honble Court be pleased to declare that the partnership firm M/s Chitralekha Builders stands dissolved on 15.07.2004 or from such other date as this Honble Court may deem fit and proper; (b) this Honble Court be pleased to order for dissolution and winding up of affairs of the partnership firm M/s Chitralekha Builders under the order and directions of this Honble Court. (c) this Honble Court be pleased to order for taking accounts of the partnership firm M/s Chitralekha Builders from the date of dissolution or from such other date as this Honble Court may deem fit and proper and the shares of the plaintiff and the defendant no. 2 be ascertained and ordered to be paid over. (d) for the purposes aforesaid, necessary directions be given and orders be passed; (e) this Honble Court be pleased to declare that consent decree dated 16.02.2005 passed in suit No. 1335 of 1998 is bad in law, illegal and void and not binding upon the suit property; (f) this Honble Court be pleased to further declare that the consent decree dated 03.10.2005 passed in suit no. 1335 of 1998 is bad in law, illegal and void and not binding upon the suit property; (g) this Honble Court be pleased to declare that the purported conveyance dated 25.07.2005 executed in favour of the defendant no. 3 of the suit property is bad in law, void, inoperative and not enforceable against the suit property. (h) this Honble Court be pleased to pass the decree revoking and cancelling the purported conveyance dated 26.07.2005 executed in favour of the defendant no. 3 in respect of the suit property. (i) Pending the hearing and final disposal of the suit court receiver, High Court, Bombay or any other any fit and proper person be appointed as the receiver in respect of the suit property more particularly described in Schedule annexed to the plaint and marked Exhibit-B with all powers under Order 40 of the Code of Civil Procedure, 1908; (j) pending the hearing and final disposable of the suit the defendants no. 2 and 3, their agents, servants and/or any person acting or claiming through them be restrained by an interim order and injunction of this Honble Court from dealing with, disposing of or creating any third party interest or carrying out development works of any nature whatsoever in the suit property more particularly described in the Scheduled annexed to the plaint and marked Exhibit-B. (k) ad-interim reliefs in terms of prayers (i) and (j) above be granted; (l) Cost of the suit be awarded to the plaintiff; (m) Such other and further reliefs as the nature and circumstances of the case may require be granted. During the course of hearing, we were informed that the Suit No.3162 / 2005 is pending at the stage of recording of evidence. 5. Arbitration proceedings 5.1. The inter se disputes between Appellant No.2-Nina Anil Shah and Respondent No.2-Kusum Gorule led to the invocation of arbitration proceedings. The Bombay Court by Order dated 22.07.2005 appointed Justice A.C. Agarwal, retired Chief Justice of the Madras High Court as the sole arbitrator. 5.2. The sole arbitrator passed an Award on 01.08.2006 holding that the partnership firm-Chitralekha Builders was dissolved on 15.07.2004. The suit property was not an asset of the partnership firm. The Appellant No. 2 was directed to pay Rs.62,18,324 i.e. 50% of the expenses of the partnership firm with interest @ 12 % p.a. 5.3. The appellants filed Objections to set aside the award u/S. 34, which were dismissed by Order dated 03.10.2006. The appellants filed Appeal No. 813 / 2006 u/S. 37 of the 1996 Act, wherein by Order dated 21.07.2014, the division bench of the High Court remanded the application u/S. 34 for fresh consideration. 5.4. A single judge of the High Court by Order dated 05.06.2017 partly allowed the application u/S. 34, and set aside the claim for expenses of the partnership firm. 5.5. The appellant No. 2 filed Appeal No. 266-268 / 2017 under Section 37 of the 1996 Act before the High Court, which is currently pending consideration before the division bench. 6. Proceedings before the Supreme Court The challenge in the present Civil Appeal is limited to the Order dated 22.07.2014 passed by a division bench of the High Court dismissing the appeal being Appeal No. 558 / 2017 filed by the appellants to challenge the 1st Consent Decree dated 16.02.2005. 6.1. This Court by Order dated 19.11.2014 issued Notice only for exploring the possibility of a settlement between the appellants and Respondent No.2-Kusum Gorule (originally Respondent No.55). 6.2. The appellants filed I.A. No. 9 / 2016 to delete the original Respondent Nos. 2 to 54 (members of the Vaity family) from the array of parties. Mr.Anil G.Shah-the husband and Power of Attorney holder of Appellant No.2-Nina Anil Shah appeared before the Chamber Judge of this Court, when I.A. No. 9 / 2016 filed by the said Appellant was allowed vide Order dated 28.11.2016 at the risk of the Appellants. 6.3. On 27.03.2018, the appellants filed I.A. No. 48308 / 2018 to implead Oswal Enterprises as a party to the present proceedings. 6.4. This Court by Order dated 12.12.2019 appointed Mr. Nikhil Nayyar, learned Senior Counsel as Amicus Curiae to assist the Court on behalf of the Appellant. 6.5. On 17.03.2020, the appellants filed I.A. No. 73241 / 2020 to reimplead Respondent Nos. 2 to 54 i.e. members of the Vaity family [who had been deleted vide Order dated 28.11.2016] as parties to the present Civil Appeal. 7. We have heard the learned Amicus Curiae, Mr. Nikhil Nayyar, Senior Advocate, Mr. Jay Savla, Senior Advocate on behalf of the Respondents, and Mr. Anil G. Shah in-person, as the Power of Attorney holder of Appellant No.2. 8. We will first deal with the 2 pending I.As.
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9. Mr. Nikhil Nayyar, learned senior counsel appearing as Amicus Curiae, Mr. Anil G. Shah in-person, as the Power of Attorney Holder of appellant no. 2, and also learned counsel for the respondents have extensively made their submissions on merits. What transpires from the record is that both the consent decrees dated 16.02.2005 and 03.10.2005 have been challenged at the behest of the appellants in the substantive Suit No. 3162 / 2005 filed at their instance, which is pending adjudication before the Bombay High Court.15. The substantive Suit No.1335 / 1988 was originally filed at the instance of Kusum Gorule (i.e. Geetanjali G. Sohani) [original plaintiff no. 2 in Suit No. 1335 / 1988] and the Vaity family and the decree on the consent terms was passed vide Order dated 16.02.2005, and the subsequent consent order dated 03.10.2005, came to be passed between the parties, viz. GIC Employees Sonal Vihar Co-operative Housing Society (original plaintiff no. 1 in Suit No. 1355/1988) and Oswal Enterprises (Defendant No. 57 in Suit No. 1355 / 1988). Undisputedly, Suit No. 1335/1988 had not been examined by the Court on merits, since the parties to the proceedings entered into a compromise, and a consent order came to be passed by the Court vide Order dated 16.02.2005 followed with Order dated 03.10.2005. Consequently, the suit was disposed of on the consent terms arrived between the parties.16. The present appellants were not a party to the proceedings at the stage when the consent order came to be passed on 16.02.2005, or the subsequent order dated 03.10.2005 in Suit No. 1335 / 1988. Both the consent orders dated 16.02.2005 and 03.10.2005 would consequently not have a binding effect on the present Appellants. The consent orders dated 16.02.2005 and 03.10.2005 challenged in the substantive Suit No. 3162 / 2005 would require to be examined by the Court independently on its own merits in accordance with law, without being influenced by the observations made in the impugned judgment dated 22.07.2014.17. The Division Bench of the High Court in the impugned judgment, after taking note of the submissions made, has recorded a finding that since the Appellants were not a party to the proceedings, and the Order dated 16.02.2005 has been passed on the terms agreeable to the parties to the proceedings, it shall not be binding upon the Appellants, and their rights could be examined independently in the substantive suit filed at their instance.18. We are also of the considered view that since the Appellants were not a party to the Consent Terms as is evident from the record, when the Orders came to be passed on 16.02.2005 followed with 03.10.2005, it may not bind the Appellants. Its legal effect is open to be examined in the substantive suit filed at their instance independently on its own merits in accordance with law. We do not find any error having been committed by the High Court, which may call for our interference.The submission is of no substance since in the first instance, Suit No. 1335/1988 was disposed of by the Court on the consent terms arrived between the parties to the proceedings vide Order dated 16.02.2005 followed by Order dated 03.10.2005. In the given circumstances, even though the Appellants who were later impleaded, have a right of appeal under Section 96 of the CPC. However, since the Appellants were not a party to the Consent Orders, it was not open for the Court to examine the legal effect of the Consent Orders dated 16.02.2005 and 03.10.2005 to which the Appellants were not a party. Once the substantive suit has been filed at their instance questioning the Consent Orders dated 16.02.2005 followed by 03.10.2005, the same is indeed open to be examined independently on its own merits in the pending proceedings initiated at their instance.20. So far as the rights of the Appellants are concerned, the same have been duly protected by the High Court in the impugned judgment dated 22.07.2014.
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Shubham Knit Wear Private Limited, Mumbai Vs. The Regional Provident Fund Commissioner, Mumbai & Others | admittedly covered by the Act as it was an old establishment since 1921. The Supreme Court noted that the effect of Section 2A is that where an establishment is found to consist of different departments or branches, even if those departments and branches are situated at different places they would be a part and parcel of the parent establishment. However, in that case the only connecting link was 21998(3) LLN 932 that both the factories were owned by the Appellant. The Supreme Court held that there was no evidence to indicate any interconnection between the two factories in the matter of supervisory, financial or managerial control. The mere fact that both the factories belonged to a common owner was held not to be sufficient to attract the provisions of Section 2A: 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. 17. A Division Bench of this Court had occasion to consider the impact of the provisions of Section 2A in Kadamba Suburban Transport Corporation Ltd. vs. Assistant Provident Fund Commissioner. In that case, the Government of Goa had initially incorporated a company for operating buses on long routes. Consequently the Government took a policy decision to set up another Company for City and suburban routes and the Petitioner came to be incorporated. Some of the buses of the erstwhile 31999 II CLR 1264 Company were purchased by the new Company, part of the consideration being treated as the share capital of the erstwhile Company in the petitioner. However, the Boards of Directors of both the Companies were different, the shareholders were different and their spheres of operation were different. Employees of both sets of Companies were maintained independently. On these facts, the Division Bench held that though both the Companies were owned by the Government that would not be sufficient to attract the provisions of Section 2A. 18. The facts of the present case would have to be assessed on the basis of the plain intendment and language of Section 2A bearing in mind the interpretation that has been placed in the judgments to which a reference has already been made. The material that has been placed on record would show that both the Appellant and the Second Respondent are independent bodies each with its distinct corporate personality. There is absolutely no material to establish that there was a unity of management, supervision, control or employment. The workforce of the Appellant was not the same as that of the Second Respondent. Each of the two Companies had its own workforce and an employee of one Company was not transferable to the other. There was no financial inter-connection. The only basis on which the First Respondent came to hold that the Appellant is a part of the establishment of the Second Respondent was the agreement dated 1 May 1984 that was entered into between the parties. By the agreement, the Second Respondent permitted the Appellant to use the registered Trade Mark Victor on a non-exclusive basis in the territories of the States of Maharashtra and Madhya Pradesh in relation to four designs of mens undergarments against the payment of royalty. The agreement between the parties undoubtedly does contemplate that the Second Respondent as a registered holder of the Trade Mark would be entitled to ensure that the products manufactured by the Appellant met the standard of quality that was associated with the mark of the Second Respondent. The conditions that have been imposed in the agreement in that regard are only intended to subserve the object of ensuring that the distinctiveness of the Trade Mark of the Second Respondent is not diluted. A Trade Mark has associated with it the goodwill generated by the business of the owner. A proprietor of a mark who permits the use of the mark by another, is entitled to impose conditions that ensure that the goodwill associated with the mark is not diluted and that the distinctiveness of the mark is not obliterated. The conditions of such an agreement, in this case, however, do not efface the position that both the Appellant and the Second Respondent were independent entities which had entered into an arms length transaction for a limited purpose. The Appellant produced material to indicate that it was engaged in the manufacture of several products besides those for which it was licensed by the Second Respondent. The balance- sheet of the Appellant for the year ending 31 March 1985 showed total sale of Rs. 53.58 lakhs against which royalty payable to the Second Respondent was only Rs.2,39,999/-. The royalty, therefore, constituted 0.55% of the total income from sales. Similarly, the material produced by the Appellant showed that gents undergarments manufactured under licence for that year constituted approximately 2227 dozen valued at Rs. 1.5 lakhs while similar products of the Appellant which were not under licence were to the extent of 4438 dozen valued at Rs. 5.18 lakhs. Apart from this, there is absolutely no evidence of functional integrality. The closure of the unit of the Appellant would not result in the closure of the unit of the Second Respondent or vice versa. There is no commonality of ownership, management or of the workforce. 19. In these circumstances, the finding of the Learned Single Judge in affirming the order passed by the First Respondent is clearly in error. The decision of the First Respondent was clearly contrary to the law as interpreted in the judgment of the Supreme Court in Dharamsi Morarji (supra) and the judgments of this Court to which a reference has been made earlier. | 1[ds]Similarly, the material produced by the Appellant showed that gents undergarments manufactured under licence for that year constituted approximately 2227 dozen valued at Rs. 1.5 lakhs while similar products of the Appellant which were not under licence were to the extent of 4438 dozen valued at Rs. 5.18 lakhs. Apart from this, there is absolutely no evidence of functional integrality. The closure of the unit of the Appellant would not result in the closure of the unit of the Second Respondent or vice versa. There is no commonality of ownership, management or of the workforce19. In these circumstances, the finding of the Learned Single Judge in affirming the order passed by the First Respondent is clearly in error. The decision of the First Respondent was clearly contrary to the law as interpreted in the judgment of the Supreme Court in Dharamsi Morarji (supra) and the judgments of this Court to which a reference has been made earlierSimilarly, the material produced by the Appellant showed that gents undergarments manufactured under licence for that year constituted approximately 2227 dozen valued at Rs. 1.5 lakhs while similar products of the Appellant which were not under licence were to the extent of 4438 dozen valued at Rs. 5.18 lakhs. Apart from this, there is absolutely no evidence of functional integrality. The closure of the unit of the Appellant would not result in the closure of the unit of the Second Respondent or vice versa. There is no commonality of ownership, management or of the workforce19. In these circumstances, the finding of the Learned Single Judge in affirming the order passed by the First Respondent is clearly in error. The decision of the First Respondent was clearly contrary to the law as interpreted in the judgment of the Supreme Court in Dharamsi Morarji (supra) and the judgments of this Court to which a reference has been made | 1 | 4,822 | 342 | ### Instruction:
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admittedly covered by the Act as it was an old establishment since 1921. The Supreme Court noted that the effect of Section 2A is that where an establishment is found to consist of different departments or branches, even if those departments and branches are situated at different places they would be a part and parcel of the parent establishment. However, in that case the only connecting link was 21998(3) LLN 932 that both the factories were owned by the Appellant. The Supreme Court held that there was no evidence to indicate any interconnection between the two factories in the matter of supervisory, financial or managerial control. The mere fact that both the factories belonged to a common owner was held not to be sufficient to attract the provisions of Section 2A: 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. 17. A Division Bench of this Court had occasion to consider the impact of the provisions of Section 2A in Kadamba Suburban Transport Corporation Ltd. vs. Assistant Provident Fund Commissioner. In that case, the Government of Goa had initially incorporated a company for operating buses on long routes. Consequently the Government took a policy decision to set up another Company for City and suburban routes and the Petitioner came to be incorporated. Some of the buses of the erstwhile 31999 II CLR 1264 Company were purchased by the new Company, part of the consideration being treated as the share capital of the erstwhile Company in the petitioner. However, the Boards of Directors of both the Companies were different, the shareholders were different and their spheres of operation were different. Employees of both sets of Companies were maintained independently. On these facts, the Division Bench held that though both the Companies were owned by the Government that would not be sufficient to attract the provisions of Section 2A. 18. The facts of the present case would have to be assessed on the basis of the plain intendment and language of Section 2A bearing in mind the interpretation that has been placed in the judgments to which a reference has already been made. The material that has been placed on record would show that both the Appellant and the Second Respondent are independent bodies each with its distinct corporate personality. There is absolutely no material to establish that there was a unity of management, supervision, control or employment. The workforce of the Appellant was not the same as that of the Second Respondent. Each of the two Companies had its own workforce and an employee of one Company was not transferable to the other. There was no financial inter-connection. The only basis on which the First Respondent came to hold that the Appellant is a part of the establishment of the Second Respondent was the agreement dated 1 May 1984 that was entered into between the parties. By the agreement, the Second Respondent permitted the Appellant to use the registered Trade Mark Victor on a non-exclusive basis in the territories of the States of Maharashtra and Madhya Pradesh in relation to four designs of mens undergarments against the payment of royalty. The agreement between the parties undoubtedly does contemplate that the Second Respondent as a registered holder of the Trade Mark would be entitled to ensure that the products manufactured by the Appellant met the standard of quality that was associated with the mark of the Second Respondent. The conditions that have been imposed in the agreement in that regard are only intended to subserve the object of ensuring that the distinctiveness of the Trade Mark of the Second Respondent is not diluted. A Trade Mark has associated with it the goodwill generated by the business of the owner. A proprietor of a mark who permits the use of the mark by another, is entitled to impose conditions that ensure that the goodwill associated with the mark is not diluted and that the distinctiveness of the mark is not obliterated. The conditions of such an agreement, in this case, however, do not efface the position that both the Appellant and the Second Respondent were independent entities which had entered into an arms length transaction for a limited purpose. The Appellant produced material to indicate that it was engaged in the manufacture of several products besides those for which it was licensed by the Second Respondent. The balance- sheet of the Appellant for the year ending 31 March 1985 showed total sale of Rs. 53.58 lakhs against which royalty payable to the Second Respondent was only Rs.2,39,999/-. The royalty, therefore, constituted 0.55% of the total income from sales. Similarly, the material produced by the Appellant showed that gents undergarments manufactured under licence for that year constituted approximately 2227 dozen valued at Rs. 1.5 lakhs while similar products of the Appellant which were not under licence were to the extent of 4438 dozen valued at Rs. 5.18 lakhs. Apart from this, there is absolutely no evidence of functional integrality. The closure of the unit of the Appellant would not result in the closure of the unit of the Second Respondent or vice versa. There is no commonality of ownership, management or of the workforce. 19. In these circumstances, the finding of the Learned Single Judge in affirming the order passed by the First Respondent is clearly in error. The decision of the First Respondent was clearly contrary to the law as interpreted in the judgment of the Supreme Court in Dharamsi Morarji (supra) and the judgments of this Court to which a reference has been made earlier.
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Similarly, the material produced by the Appellant showed that gents undergarments manufactured under licence for that year constituted approximately 2227 dozen valued at Rs. 1.5 lakhs while similar products of the Appellant which were not under licence were to the extent of 4438 dozen valued at Rs. 5.18 lakhs. Apart from this, there is absolutely no evidence of functional integrality. The closure of the unit of the Appellant would not result in the closure of the unit of the Second Respondent or vice versa. There is no commonality of ownership, management or of the workforce19. In these circumstances, the finding of the Learned Single Judge in affirming the order passed by the First Respondent is clearly in error. The decision of the First Respondent was clearly contrary to the law as interpreted in the judgment of the Supreme Court in Dharamsi Morarji (supra) and the judgments of this Court to which a reference has been made earlierSimilarly, the material produced by the Appellant showed that gents undergarments manufactured under licence for that year constituted approximately 2227 dozen valued at Rs. 1.5 lakhs while similar products of the Appellant which were not under licence were to the extent of 4438 dozen valued at Rs. 5.18 lakhs. Apart from this, there is absolutely no evidence of functional integrality. The closure of the unit of the Appellant would not result in the closure of the unit of the Second Respondent or vice versa. There is no commonality of ownership, management or of the workforce19. In these circumstances, the finding of the Learned Single Judge in affirming the order passed by the First Respondent is clearly in error. The decision of the First Respondent was clearly contrary to the law as interpreted in the judgment of the Supreme Court in Dharamsi Morarji (supra) and the judgments of this Court to which a reference has been made
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AGRA DIOCESAN TRUST ASSOCIATION Vs. ANIL DAVID AND ORS | then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P . Amendment Act, it is clear that Section 7(iv-A) of the U.P . Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value. 14. The Court observed that the suit was filed after the death of the testator, and that the suit property covered by the will had to be valued. The court felt that since Section 7(iv-A) of the U.P. Amendment Act specifically provided that payment of court fees in cases where the suit is for, or involving cancellation or adjudging/declaring null and void a decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act was inapplicable. The U.P. Amendment Act, therefore, was applicable despite the fact that no consequential relief had been claimed. Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act, court fees were to be computed according to the value of the subject-matter. The trial court and the High Court correctly held it to be so. The court distinguished Suhrid Singhs case (supra) stating that: 10. We are of the view that the decision of this Court in Suhrid Singh (supra) is not applicable to the facts of the present case. First of all, this Court had no occasion to examine the scope of the U.P . Amendment Act. That was a case in which this Court was dealing with Sections 7(iv)(c), (v) and Schedule II Article 17(iii), as amended in the State of Punjab. The position that we get in the State of Punjab is entirely different from the State of U.P . and the effect of the U.P . Amendment Act was not an issue which arose for consideration in that case. Consequently, in our view, the said judgment would not apply to the present case. 11. The Plaintiff, in the instant case, valued the suit at Rs. 30 lakhs for the purpose of pecuniary jurisdiction. However, for the purpose of court fee, the Plaintiff paid a fixed court fee of Rs. 200 Under Article 17(iii) of Schedule II of the Court Fees Act. The Plaintiff had not noticed the fact that the above mentioned Article stood amended by the State, by adding the words not otherwise provided for by this Act. Since Section 7(iv-A) of the U.P . Amended Act specifically provides for payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring void or voidable an instrument securing property having money value, Article 17(iii) of Schedule II of the Court Fees Act shall not be applicable. 15. It is evident from the above discussion that it is undisputed that the point in issue was with respect to valuation for purposes of court fee; equally, it is not in issue that since the plaintiff (i.e. petitioner herein) sought, in addition to a declaration, in both the suits, decrees of cancellation, the crucial point was what the correct value for purposes of court fee was. Now, market value has been specifically defined, in the context of a litigation like the present one. According to Section 7 (iv-A), in case the plaintiff (or his predecessor-in-title) was not a party to the decree or instrument, the value was to be according to one-fifth of the value of the subject matter, and such value shall be deemed to be under Section 7 (iv-A), if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree is passed or the instrument executed . Importantly, the explanation to Section 7 (iv-A) created a deeming fiction as to what constitutes the value of the property by saying that in the case of immovable property shall be deemed to be the value as computed in accordance with the sub-section (v), (v-A) or (v-B) as the case may be. 16. The plaintiff/petitioners contention was and continues to be that the value determinable is in terms of clause (v) of Section 7, by reason of Section 7 (iv-A). Section 7 (v) (i) contains two clauses- (a) and (b): both are in respect of revenue paying lands. The petitioner valued its suits on the basis of revenue which according to it, was payable. While so stating, the value (for purposes of court fee) was determined to be 3000/- in each of the suits. 17. A plain reading of the impugned judgment reveals that what weighed heavily with the High Court was the fact that the plaintiff valued the suits differently for the purposes of court fees and jurisdiction, and secondly that: no other market value has been proved by the petitioners/plaintiff that the settled revenue of the land is Rs. 3,000/- and in the absence of any evidence in this regard, the trial court has rightly considered the market value of the property in dispute in accordance with the market value fixed by the Collector in order to charge the stamp duty, which is the correct market value. In the opinion of this court, there was no compulsion for the plaintiff to, at the stage of filing the suit, prove or establish the claim that the suit lands were revenue paying and the details of such revenue paid. Once it is conceded that the value of the land [per explanation to Section 7 (iv-A)] is to be determined according to either sub clauses (v), (va) or (vb) of the Act, this meant that the concept of market value – a wider concept in other contexts, was deemed to be referrable to one or other modes of determining the value under sub clauses (v), (va) or (vb) of Section 7 (iv-A). This aspect was lost sight of by the High Court, in the facts of this case. The reasoning and conclusions of the High Court, are therefore, not sustainable. | 1[ds]15. It is evident from the above discussion that it is undisputed that the point in issue was with respect to valuation for purposes of court fee; equally, it is not in issue that since the plaintiff (i.e. petitioner herein) sought, in addition to a declaration, in both the suits, decrees of cancellation, the crucial point was what the correct value for purposes of court fee was. Now, market value has been specifically defined, in the context of a litigation like the present one. According to Section 7 (iv-A), in case the plaintiff (or his predecessor-in-title) was not a party to the decree or instrument, the value was to be according to one-fifth of the value of the subject matter, and such value shall be deemed to be under Section 7 (iv-A), if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree is passed or the instrument executed . Importantly, the explanation to Section 7 (iv-A) created a deeming fiction as to what constitutes the value of the property by saying that in the case of immovable property shall be deemed to be the value as computed in accordance with the sub-section (v), (v-A) or (v-B) as the case may be17. A plain reading of the impugned judgment reveals that what weighed heavily with the High Court was the fact that the plaintiff valued the suits differently for the purposes of court fees and jurisdiction, and secondly that:no other market value has been proved by the petitioners/plaintiff that the settled revenue of the land is Rs. 3,000/- and in the absence of any evidence in this regard, the trial court has rightly considered the market value of the property in dispute in accordance with the market value fixed by the Collector in order to charge the stamp duty, which is the correct market valueIn the opinion of this court, there was no compulsion for the plaintiff to, at the stage of filing the suit, prove or establish the claim that the suit lands were revenue paying and the details of such revenue paid. Once it is conceded that the value of the land [per explanation to Section 7 (iv-A)] is to be determined according to either sub clauses (v), (va) or (vb) of the Act, this meant that the concept of market value – a wider concept in other contexts, was deemed to be referrable to one or other modes of determining the value under sub clauses (v), (va) or (vb) of Section 7 (iv-A). This aspect was lost sight of by the High Court, in the facts of this case. The reasoning and conclusions of the High Court, are therefore, not sustainable. | 1 | 6,426 | 537 | ### 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:
then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P . Amendment Act, it is clear that Section 7(iv-A) of the U.P . Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value. 14. The Court observed that the suit was filed after the death of the testator, and that the suit property covered by the will had to be valued. The court felt that since Section 7(iv-A) of the U.P. Amendment Act specifically provided that payment of court fees in cases where the suit is for, or involving cancellation or adjudging/declaring null and void a decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act was inapplicable. The U.P. Amendment Act, therefore, was applicable despite the fact that no consequential relief had been claimed. Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act, court fees were to be computed according to the value of the subject-matter. The trial court and the High Court correctly held it to be so. The court distinguished Suhrid Singhs case (supra) stating that: 10. We are of the view that the decision of this Court in Suhrid Singh (supra) is not applicable to the facts of the present case. First of all, this Court had no occasion to examine the scope of the U.P . Amendment Act. That was a case in which this Court was dealing with Sections 7(iv)(c), (v) and Schedule II Article 17(iii), as amended in the State of Punjab. The position that we get in the State of Punjab is entirely different from the State of U.P . and the effect of the U.P . Amendment Act was not an issue which arose for consideration in that case. Consequently, in our view, the said judgment would not apply to the present case. 11. The Plaintiff, in the instant case, valued the suit at Rs. 30 lakhs for the purpose of pecuniary jurisdiction. However, for the purpose of court fee, the Plaintiff paid a fixed court fee of Rs. 200 Under Article 17(iii) of Schedule II of the Court Fees Act. The Plaintiff had not noticed the fact that the above mentioned Article stood amended by the State, by adding the words not otherwise provided for by this Act. Since Section 7(iv-A) of the U.P . Amended Act specifically provides for payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring void or voidable an instrument securing property having money value, Article 17(iii) of Schedule II of the Court Fees Act shall not be applicable. 15. It is evident from the above discussion that it is undisputed that the point in issue was with respect to valuation for purposes of court fee; equally, it is not in issue that since the plaintiff (i.e. petitioner herein) sought, in addition to a declaration, in both the suits, decrees of cancellation, the crucial point was what the correct value for purposes of court fee was. Now, market value has been specifically defined, in the context of a litigation like the present one. According to Section 7 (iv-A), in case the plaintiff (or his predecessor-in-title) was not a party to the decree or instrument, the value was to be according to one-fifth of the value of the subject matter, and such value shall be deemed to be under Section 7 (iv-A), if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree is passed or the instrument executed . Importantly, the explanation to Section 7 (iv-A) created a deeming fiction as to what constitutes the value of the property by saying that in the case of immovable property shall be deemed to be the value as computed in accordance with the sub-section (v), (v-A) or (v-B) as the case may be. 16. The plaintiff/petitioners contention was and continues to be that the value determinable is in terms of clause (v) of Section 7, by reason of Section 7 (iv-A). Section 7 (v) (i) contains two clauses- (a) and (b): both are in respect of revenue paying lands. The petitioner valued its suits on the basis of revenue which according to it, was payable. While so stating, the value (for purposes of court fee) was determined to be 3000/- in each of the suits. 17. A plain reading of the impugned judgment reveals that what weighed heavily with the High Court was the fact that the plaintiff valued the suits differently for the purposes of court fees and jurisdiction, and secondly that: no other market value has been proved by the petitioners/plaintiff that the settled revenue of the land is Rs. 3,000/- and in the absence of any evidence in this regard, the trial court has rightly considered the market value of the property in dispute in accordance with the market value fixed by the Collector in order to charge the stamp duty, which is the correct market value. In the opinion of this court, there was no compulsion for the plaintiff to, at the stage of filing the suit, prove or establish the claim that the suit lands were revenue paying and the details of such revenue paid. Once it is conceded that the value of the land [per explanation to Section 7 (iv-A)] is to be determined according to either sub clauses (v), (va) or (vb) of the Act, this meant that the concept of market value – a wider concept in other contexts, was deemed to be referrable to one or other modes of determining the value under sub clauses (v), (va) or (vb) of Section 7 (iv-A). This aspect was lost sight of by the High Court, in the facts of this case. The reasoning and conclusions of the High Court, are therefore, not sustainable.
### Response:
1
### Explanation:
15. It is evident from the above discussion that it is undisputed that the point in issue was with respect to valuation for purposes of court fee; equally, it is not in issue that since the plaintiff (i.e. petitioner herein) sought, in addition to a declaration, in both the suits, decrees of cancellation, the crucial point was what the correct value for purposes of court fee was. Now, market value has been specifically defined, in the context of a litigation like the present one. According to Section 7 (iv-A), in case the plaintiff (or his predecessor-in-title) was not a party to the decree or instrument, the value was to be according to one-fifth of the value of the subject matter, and such value shall be deemed to be under Section 7 (iv-A), if the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree is passed or the instrument executed . Importantly, the explanation to Section 7 (iv-A) created a deeming fiction as to what constitutes the value of the property by saying that in the case of immovable property shall be deemed to be the value as computed in accordance with the sub-section (v), (v-A) or (v-B) as the case may be17. A plain reading of the impugned judgment reveals that what weighed heavily with the High Court was the fact that the plaintiff valued the suits differently for the purposes of court fees and jurisdiction, and secondly that:no other market value has been proved by the petitioners/plaintiff that the settled revenue of the land is Rs. 3,000/- and in the absence of any evidence in this regard, the trial court has rightly considered the market value of the property in dispute in accordance with the market value fixed by the Collector in order to charge the stamp duty, which is the correct market valueIn the opinion of this court, there was no compulsion for the plaintiff to, at the stage of filing the suit, prove or establish the claim that the suit lands were revenue paying and the details of such revenue paid. Once it is conceded that the value of the land [per explanation to Section 7 (iv-A)] is to be determined according to either sub clauses (v), (va) or (vb) of the Act, this meant that the concept of market value – a wider concept in other contexts, was deemed to be referrable to one or other modes of determining the value under sub clauses (v), (va) or (vb) of Section 7 (iv-A). This aspect was lost sight of by the High Court, in the facts of this case. The reasoning and conclusions of the High Court, are therefore, not sustainable.
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jodhia Prasad Vs. Sangam Lal and Others | Prasad, appellant in this appeal from the office of Sarvarakar and the managership of the trust described in the plaint and from order removing defendants Nos. 2, 3 and 4 from the "office of trusteeship", for appointment of new trustees, Sarvarakar and Manager and for and order against the appellant directing him to render an account of the income and expenses of the trust property during his period of office and for framing a scheme for the management of the trust. The Trial Court by order, dated September 12, 1955, passed the following order :".... I decree the suit declaring the property in suit to be trust property for public purposes of charitable and religious nature and order the "removal of all the defendants from the office of Sarvarakar and the trustees and direct the appointment of Board of new trustees as detailed in the following scheme for management. The defendant No. 1 is directed to render accounts of the income and expenditure of the trust property of the last six years to the new Board of trustees in whom the entire trust property shall vest."The Court then proceeded to set out the clauses of the scheme of administration of the trust. Thereafter, by order, dated October 14, 1955, the Court passed a supplementary order, part of which was by consent and the remaining being an adjudication of the Court. The Court ordered by consent that :"...... the following trustees are hereby appointed to look after the management of the trust property : 1. Sri Sri Narain, Advocate, 2. Sri Ajodhia Prasad, 3. Sri Durga Prasad, 4. Sri Puran Chand and 5. Sri Hari Har Gaur, Vakil. In accordance with the consent of parties, Sri Sri Narain, Advocate, is hereby appointed as the President of the board of Trustees", and then proceeded to order :"As there is a dispute between the parties regarding the posts of Manager and Secretary, the Court, therefore, having taken into regard the benefit of the trust, appoints Ajodhia Prasad as the Manger and Durga Prasad as the Secretary of the Board of Trustees. Should Ajodhia fail to perform his duty honestly, the Board shall have the power to frame bye-laws to curtail his powers."A decree was drawn up by the District Court containing the directions pursuant to the judgments, dated September 12, 1955 and October 14, 1955.2. Against the order by the District Court, an appeal was preferred to the High Court of Allahabad. The High Court in appeal set aside the order appointing the appellant as manager of the trust and further directed that an account be taken from the appellant for the period of his entire management. The Court set aside the order of the District Court, dated October 14, 1955, appointing the appellant as the Manager of the trust and directed the District Court to take steps to appoint another Manger, out of the remaining trustees. For giving effect to the last direction, the High Court ordered that the case of Durga Prasad may also be considered and his appointment as Secretary be set aside. Against the order passed by the High Court, with certificate granted under Article 133(1)(a) of the Constitution this appeal has been preferred.3. It is contended in the first instance that the high Court had no jurisdiction to set aside order of the District Court passed by the consent appointing the appellant as the Manager. We are unable to hold that the order appointing the appellant the Manger was an order made by consent. The order, dated October 14, 1955, consisted of two parts, the first part relating to the appointment of trustees was an order by consent, and the second part was the adjudication of the Court. That second part order was open to examination by the Court for its propriety.4. It was then contended that no ground was made out for removing the appellant from his office as Manager. But the findings recorded by the learned Trial Judge on issue No. 4 clearly show that no accounts of the income and expenditure of the trust were maintained by the appellant that he had asserted his title against the trust, that the members of his family forcibly realised the rent of the trust property, that some of the houses belonging to the trust had been let out at nominal rent, and that the house in the occupation of the appellant could fetch a rent of Rs. 150/- per month, but no rent was realised for the benefit of the trust. After referring to these circumstances, the Trial Court observed :"..... I can readily believe the plaintiffs witnesses that rag, bhog, utsavas and festivals are not properly performed and the income of the trust property is misappropriated. Accordingly I hold that the defendants are guilty of breaches of trust and they are liable to be removed."No appeal was preferred against the order passed by the Trial Court removing the first defendant from the office of Manager.5. It was then urged that the High Court was not justified in directing the appellant to give accounts of his management during the entire period during which he remained in management. But the appellant was in management of the trust property and he was bound to account for the entire period during which he remained in management. The Trial Court was, in our judgment, wrong in restricting his accountability to six years only. The order passed by the High Court requiring the appellant to account for the entire period of his management is correct.6. Finally, it was urged that the High Court erred in directing that Durga Prasad may be considered for appointment as Manager out of the remaining trustees. The High Court has only directed that the District Judge will take steps to appoint another Manager out of the remaining trustees, and has left it to the District Court to consider amongst others the claim of Durga Prasad to be appointed a Manager. There is no ground for upsetting that order. | 0[ds]We are unable to hold that the order appointing the appellant the Manger was an order made by consent. The order, dated October 14, 1955, consisted of two parts, the first part relating to the appointment of trustees was an order by consent, and the second part was the adjudication of the Court. That second part order was open to examination by the Court for itsthe findings recorded by the learned Trial Judge on issue No. 4 clearly show that no accounts of the income and expenditure of the trust were maintained by the appellant that he had asserted his title against the trust, that the members of his family forcibly realised the rent of the trust property, that some of the houses belonging to the trust had been let out at nominal rent, and that the house in the occupation of the appellant could fetch a rent of Rs. 150/per month, but no rent was realised for the benefit of the trust.It was then urged that the High Court was not justified in directing the appellant to give accounts of his management during the entire period during which he remained in management. But the appellant was in management of the trust property and he was bound to account for the entire period during which he remained in management. The Trial Court was, in our judgment, wrong in restricting his accountability to six years only. The order passed by the High Court requiring the appellant to account for the entire period of his management is correct.6. Finally, it was urged that the High Court erred in directing that Durga Prasad may be considered for appointment as Manager out of the remaining trustees. The High Court has only directed that the District Judge will take steps to appoint another Manager out of the remaining trustees, and has left it to the District Court to consider amongst others the claim of Durga Prasad to be appointed a Manager. There is no ground for upsetting that order. | 0 | 1,144 | 362 | ### 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:
Prasad, appellant in this appeal from the office of Sarvarakar and the managership of the trust described in the plaint and from order removing defendants Nos. 2, 3 and 4 from the "office of trusteeship", for appointment of new trustees, Sarvarakar and Manager and for and order against the appellant directing him to render an account of the income and expenses of the trust property during his period of office and for framing a scheme for the management of the trust. The Trial Court by order, dated September 12, 1955, passed the following order :".... I decree the suit declaring the property in suit to be trust property for public purposes of charitable and religious nature and order the "removal of all the defendants from the office of Sarvarakar and the trustees and direct the appointment of Board of new trustees as detailed in the following scheme for management. The defendant No. 1 is directed to render accounts of the income and expenditure of the trust property of the last six years to the new Board of trustees in whom the entire trust property shall vest."The Court then proceeded to set out the clauses of the scheme of administration of the trust. Thereafter, by order, dated October 14, 1955, the Court passed a supplementary order, part of which was by consent and the remaining being an adjudication of the Court. The Court ordered by consent that :"...... the following trustees are hereby appointed to look after the management of the trust property : 1. Sri Sri Narain, Advocate, 2. Sri Ajodhia Prasad, 3. Sri Durga Prasad, 4. Sri Puran Chand and 5. Sri Hari Har Gaur, Vakil. In accordance with the consent of parties, Sri Sri Narain, Advocate, is hereby appointed as the President of the board of Trustees", and then proceeded to order :"As there is a dispute between the parties regarding the posts of Manager and Secretary, the Court, therefore, having taken into regard the benefit of the trust, appoints Ajodhia Prasad as the Manger and Durga Prasad as the Secretary of the Board of Trustees. Should Ajodhia fail to perform his duty honestly, the Board shall have the power to frame bye-laws to curtail his powers."A decree was drawn up by the District Court containing the directions pursuant to the judgments, dated September 12, 1955 and October 14, 1955.2. Against the order by the District Court, an appeal was preferred to the High Court of Allahabad. The High Court in appeal set aside the order appointing the appellant as manager of the trust and further directed that an account be taken from the appellant for the period of his entire management. The Court set aside the order of the District Court, dated October 14, 1955, appointing the appellant as the Manager of the trust and directed the District Court to take steps to appoint another Manger, out of the remaining trustees. For giving effect to the last direction, the High Court ordered that the case of Durga Prasad may also be considered and his appointment as Secretary be set aside. Against the order passed by the High Court, with certificate granted under Article 133(1)(a) of the Constitution this appeal has been preferred.3. It is contended in the first instance that the high Court had no jurisdiction to set aside order of the District Court passed by the consent appointing the appellant as the Manager. We are unable to hold that the order appointing the appellant the Manger was an order made by consent. The order, dated October 14, 1955, consisted of two parts, the first part relating to the appointment of trustees was an order by consent, and the second part was the adjudication of the Court. That second part order was open to examination by the Court for its propriety.4. It was then contended that no ground was made out for removing the appellant from his office as Manager. But the findings recorded by the learned Trial Judge on issue No. 4 clearly show that no accounts of the income and expenditure of the trust were maintained by the appellant that he had asserted his title against the trust, that the members of his family forcibly realised the rent of the trust property, that some of the houses belonging to the trust had been let out at nominal rent, and that the house in the occupation of the appellant could fetch a rent of Rs. 150/- per month, but no rent was realised for the benefit of the trust. After referring to these circumstances, the Trial Court observed :"..... I can readily believe the plaintiffs witnesses that rag, bhog, utsavas and festivals are not properly performed and the income of the trust property is misappropriated. Accordingly I hold that the defendants are guilty of breaches of trust and they are liable to be removed."No appeal was preferred against the order passed by the Trial Court removing the first defendant from the office of Manager.5. It was then urged that the High Court was not justified in directing the appellant to give accounts of his management during the entire period during which he remained in management. But the appellant was in management of the trust property and he was bound to account for the entire period during which he remained in management. The Trial Court was, in our judgment, wrong in restricting his accountability to six years only. The order passed by the High Court requiring the appellant to account for the entire period of his management is correct.6. Finally, it was urged that the High Court erred in directing that Durga Prasad may be considered for appointment as Manager out of the remaining trustees. The High Court has only directed that the District Judge will take steps to appoint another Manager out of the remaining trustees, and has left it to the District Court to consider amongst others the claim of Durga Prasad to be appointed a Manager. There is no ground for upsetting that order.
### Response:
0
### Explanation:
We are unable to hold that the order appointing the appellant the Manger was an order made by consent. The order, dated October 14, 1955, consisted of two parts, the first part relating to the appointment of trustees was an order by consent, and the second part was the adjudication of the Court. That second part order was open to examination by the Court for itsthe findings recorded by the learned Trial Judge on issue No. 4 clearly show that no accounts of the income and expenditure of the trust were maintained by the appellant that he had asserted his title against the trust, that the members of his family forcibly realised the rent of the trust property, that some of the houses belonging to the trust had been let out at nominal rent, and that the house in the occupation of the appellant could fetch a rent of Rs. 150/per month, but no rent was realised for the benefit of the trust.It was then urged that the High Court was not justified in directing the appellant to give accounts of his management during the entire period during which he remained in management. But the appellant was in management of the trust property and he was bound to account for the entire period during which he remained in management. The Trial Court was, in our judgment, wrong in restricting his accountability to six years only. The order passed by the High Court requiring the appellant to account for the entire period of his management is correct.6. Finally, it was urged that the High Court erred in directing that Durga Prasad may be considered for appointment as Manager out of the remaining trustees. The High Court has only directed that the District Judge will take steps to appoint another Manager out of the remaining trustees, and has left it to the District Court to consider amongst others the claim of Durga Prasad to be appointed a Manager. There is no ground for upsetting that order.
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M/s. Inox Wind Ltd Vs. M/s. Thermocables Ltd | a ?stricter rule? is applied in charterparty/bills of lading cases. The reason given is that the other party may have no knowledge nor ready means of knowledge of the relevant terms. Further, as the authorities illustrate, the terms of an arbitration clause may require adjustment if they are to be made to apply to the parties to a different contract.?The Court therefore reinforced the distinction between incorporation by reference of standard form terms and of the terms of a different contract, and concluded that in a single contract case general words of incorporation are sufficient, whereas by its nature a two contract case may require specific reference to the other contract, unless the secondary document is stated to be based on standard form terms containing an arbitration agreement. In that case, presumably specific reference to the arbitration clause would not be needed. As discussed below, this approach has been endorsed in subsequent cases, albeit drawing a slightly different but ?material? distinction between incorporation of the terms of a separate contract – standard or otherwise – made between the same parties which are treated as ?single contract? cases, even where there is in fact more than one contract; and those where the terms to be incorporated are contained in a contract between one or more different parties which are treated as the ?two contract? cases. (Para 2-049)Extension of the single contract cases.Recently, the courts appear to have extended the ?single contract? principle applicable to standard form contracts, where general words of incorporation will suffice, to other types of contract where the same rationale can be said to apply. Thus, if the document sought to be incorporated is a bespoke contract between the same parties, the courts have accepted this as a ?single contract? case where general words of incorporation will suffice, even though the other contract is not on standard terms and constitutes an entirely separate agreement. The rationale for this approach is that the parties have already contracted on the terms said to be incorporated and are therefore even more likely to be familiar with the term relied on than a party resisting incorporation of a standard term. Put another way, if general words of incorporation are sufficient for the latter, they should be even more so for the former. The courts also appear to have accepted as a ?single contract? case a situation where the contract referred to is between one of the parties to the original contract and a third party, where the contracts as a whole ?were entered into in the context of a single commercial relationship?.(Para 2-050) [Emphasis Supplied] 18. This Court in M.R. Engineers? case, which is discussed in detail supra, held the rule to be that an arbitration clause in an earlier contract cannot be incorporated by a general reference. The exception to the rule is a reference to a standard form of contract by a trade association or a professional institution in which case a general reference would be sufficient for incorporation of an arbitration clause. Reliance was placed by this Court on Russell on Arbitration 23 rd Edition (2007) . The development of law regarding incorporation after the judgment in M.R. Engineers requires careful consideration. It has been held in Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v Sometal SAL [2010] EWHC 29 (Comm) that a standard form of one party is also recognized as a ‘single contract? case. In the said case, it was also held that in single contract cases general reference is enough for incorporation of an arbitration clause from a standard form of contract. There is no distinction that is drawn between standard forms by recognized trade associations or professional institutions on one hand and standard terms of one party on the other. Russell on Arbitration 24 th Edition (2015) also takes note of the Habas?s case.19. We are of the opinion that though general reference to an earlier contract is not sufficient for incorporation of an arbitration clause in the later contract, a general reference to a standard form would be enough for incorporation of the arbitration clause. In M.R. Engineers this Court restricted the exceptions to standard form of contract of trade associations and professional institutions. In view of the development of law after the judgment in M.R. Engineers? case, we are of the opinion that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form of contract of one party will be enough for incorporation of arbitration clause. A perusal of the passage from Russell on Arbitration 24 th Edition (2015) would demonstrate the change in position of law pertaining to incorporation when read in conjunction with the earlier edition relied upon by this Court in M.R. Engineers? case. We are in agreement with the judgment in M.R. Engineer?s case with a modification that a general reference to a standard form of contract of one party along with those of trade associations and professional bodies will be sufficient to incorporate the arbitration clause.20. In the present case, the purchase order was issued by the Appellant in which it was categorically mentioned that the supply would be as per the terms mentioned therein and in the attached standard terms and conditions. The Respondent by his letter dated 15.12.2012 confirmed its acceptance of the terms and conditions mentioned in the purchase order except delivery period. The dispute arose after the delivery of the goods. No doubt, there is nothing forthcoming from the pleadings or the submissions made by the parties that the standard form attached to the purchase order is of a trade association or a professional body. However, the Respondent was aware of the standard terms and conditions which were attached to the purchase order. The purchase order is a single contract and general reference to the standard form even if it is not by a trade association or a professional body is sufficient for incorporation of the arbitration clause. | 1[ds]19. We are of the opinion that though general reference to an earlier contract is not sufficient for incorporation of an arbitration clause in the later contract, a general reference to a standard form would be enough for incorporation of the arbitration clause. In M.R. Engineers this Court restricted the exceptions to standard form of contract of trade associations and professional institutions. In view of the development of law after the judgment in M.R. Engineers? case, we are of the opinion that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form of contract of one party will be enough for incorporation of arbitration clause. A perusal of the passage from Russell on Arbitration 24 th Edition (2015) would demonstrate the change in position of law pertaining to incorporation when read in conjunction with the earlier edition relied upon by this Court in M.R. Engineers? case. We are in agreement with the judgment in M.R. Engineer?s case with a modification that a general reference to a standard form of contract of one party along with those of trade associations and professional bodies will be sufficient to incorporate the arbitration clause.20. In the present case, the purchase order was issued by the Appellant in which it was categorically mentioned that the supply would be as per the terms mentioned therein and in the attached standard terms and conditions. The Respondent by his letter dated 15.12.2012 confirmed its acceptance of the terms and conditions mentioned in the purchase order except delivery period. The dispute arose after the delivery of the goods. No doubt, there is nothing forthcoming from the pleadings or the submissions made by the parties that the standard form attached to the purchase order is of a trade association or a professional body. However, the Respondent was aware of the standard terms and conditions which were attached to the purchase order. The purchase order is a single contract and general reference to the standard form even if it is not by a trade association or a professional body is sufficient for incorporation of the arbitration clause. | 1 | 5,502 | 394 | ### Instruction:
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a ?stricter rule? is applied in charterparty/bills of lading cases. The reason given is that the other party may have no knowledge nor ready means of knowledge of the relevant terms. Further, as the authorities illustrate, the terms of an arbitration clause may require adjustment if they are to be made to apply to the parties to a different contract.?The Court therefore reinforced the distinction between incorporation by reference of standard form terms and of the terms of a different contract, and concluded that in a single contract case general words of incorporation are sufficient, whereas by its nature a two contract case may require specific reference to the other contract, unless the secondary document is stated to be based on standard form terms containing an arbitration agreement. In that case, presumably specific reference to the arbitration clause would not be needed. As discussed below, this approach has been endorsed in subsequent cases, albeit drawing a slightly different but ?material? distinction between incorporation of the terms of a separate contract – standard or otherwise – made between the same parties which are treated as ?single contract? cases, even where there is in fact more than one contract; and those where the terms to be incorporated are contained in a contract between one or more different parties which are treated as the ?two contract? cases. (Para 2-049)Extension of the single contract cases.Recently, the courts appear to have extended the ?single contract? principle applicable to standard form contracts, where general words of incorporation will suffice, to other types of contract where the same rationale can be said to apply. Thus, if the document sought to be incorporated is a bespoke contract between the same parties, the courts have accepted this as a ?single contract? case where general words of incorporation will suffice, even though the other contract is not on standard terms and constitutes an entirely separate agreement. The rationale for this approach is that the parties have already contracted on the terms said to be incorporated and are therefore even more likely to be familiar with the term relied on than a party resisting incorporation of a standard term. Put another way, if general words of incorporation are sufficient for the latter, they should be even more so for the former. The courts also appear to have accepted as a ?single contract? case a situation where the contract referred to is between one of the parties to the original contract and a third party, where the contracts as a whole ?were entered into in the context of a single commercial relationship?.(Para 2-050) [Emphasis Supplied] 18. This Court in M.R. Engineers? case, which is discussed in detail supra, held the rule to be that an arbitration clause in an earlier contract cannot be incorporated by a general reference. The exception to the rule is a reference to a standard form of contract by a trade association or a professional institution in which case a general reference would be sufficient for incorporation of an arbitration clause. Reliance was placed by this Court on Russell on Arbitration 23 rd Edition (2007) . The development of law regarding incorporation after the judgment in M.R. Engineers requires careful consideration. It has been held in Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v Sometal SAL [2010] EWHC 29 (Comm) that a standard form of one party is also recognized as a ‘single contract? case. In the said case, it was also held that in single contract cases general reference is enough for incorporation of an arbitration clause from a standard form of contract. There is no distinction that is drawn between standard forms by recognized trade associations or professional institutions on one hand and standard terms of one party on the other. Russell on Arbitration 24 th Edition (2015) also takes note of the Habas?s case.19. We are of the opinion that though general reference to an earlier contract is not sufficient for incorporation of an arbitration clause in the later contract, a general reference to a standard form would be enough for incorporation of the arbitration clause. In M.R. Engineers this Court restricted the exceptions to standard form of contract of trade associations and professional institutions. In view of the development of law after the judgment in M.R. Engineers? case, we are of the opinion that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form of contract of one party will be enough for incorporation of arbitration clause. A perusal of the passage from Russell on Arbitration 24 th Edition (2015) would demonstrate the change in position of law pertaining to incorporation when read in conjunction with the earlier edition relied upon by this Court in M.R. Engineers? case. We are in agreement with the judgment in M.R. Engineer?s case with a modification that a general reference to a standard form of contract of one party along with those of trade associations and professional bodies will be sufficient to incorporate the arbitration clause.20. In the present case, the purchase order was issued by the Appellant in which it was categorically mentioned that the supply would be as per the terms mentioned therein and in the attached standard terms and conditions. The Respondent by his letter dated 15.12.2012 confirmed its acceptance of the terms and conditions mentioned in the purchase order except delivery period. The dispute arose after the delivery of the goods. No doubt, there is nothing forthcoming from the pleadings or the submissions made by the parties that the standard form attached to the purchase order is of a trade association or a professional body. However, the Respondent was aware of the standard terms and conditions which were attached to the purchase order. The purchase order is a single contract and general reference to the standard form even if it is not by a trade association or a professional body is sufficient for incorporation of the arbitration clause.
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19. We are of the opinion that though general reference to an earlier contract is not sufficient for incorporation of an arbitration clause in the later contract, a general reference to a standard form would be enough for incorporation of the arbitration clause. In M.R. Engineers this Court restricted the exceptions to standard form of contract of trade associations and professional institutions. In view of the development of law after the judgment in M.R. Engineers? case, we are of the opinion that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form of contract of one party will be enough for incorporation of arbitration clause. A perusal of the passage from Russell on Arbitration 24 th Edition (2015) would demonstrate the change in position of law pertaining to incorporation when read in conjunction with the earlier edition relied upon by this Court in M.R. Engineers? case. We are in agreement with the judgment in M.R. Engineer?s case with a modification that a general reference to a standard form of contract of one party along with those of trade associations and professional bodies will be sufficient to incorporate the arbitration clause.20. In the present case, the purchase order was issued by the Appellant in which it was categorically mentioned that the supply would be as per the terms mentioned therein and in the attached standard terms and conditions. The Respondent by his letter dated 15.12.2012 confirmed its acceptance of the terms and conditions mentioned in the purchase order except delivery period. The dispute arose after the delivery of the goods. No doubt, there is nothing forthcoming from the pleadings or the submissions made by the parties that the standard form attached to the purchase order is of a trade association or a professional body. However, the Respondent was aware of the standard terms and conditions which were attached to the purchase order. The purchase order is a single contract and general reference to the standard form even if it is not by a trade association or a professional body is sufficient for incorporation of the arbitration clause.
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Thakur Narain Singh Vs. State of Rajasthan | be said that the settlement made in 1953 still stood for the purpose of determining the compensation for the jagir in question.Shri Badri Das Sharma appearing for the State on the other hand has contended that it is true that the determination of rent rates in 1953 had been quashed, but the High Court had directed re-determination of the rent rates in accordance with the provisions of section 82 and, therefore, the direction of the High Court was for rectifying the mistake that had cropped in the determination of the rent rates of 1953 and if this be so, the rent rates determined in 1953 were still there and the compensation could be determined on that basis.9. Having given our anxious consideration to the contentions raised on behalf of the parties we are of the positive view that after the quashing of the settlement made in 1953 it cannot be said that the settlement of the jagir still existed. It is to be noted at this stage that the settlement of 1953 was qu ashed by the High Court on the ground that the procedure laid down in the statute had not been followed. The quashing of such an order only means tabula rasa (clean slate) as if there was no determination of rent rates in 1953. In this view of the matter the jagir would be taken to be an unsettled village on the date of resumption.10. Shri Badri Das Sharma, however, contended that pursuant to the direction of the High Court in Writ No. 308 of 1953 fresh rent rates were assessed in 19 55 which were made applicable with retrospective effect from 1st of July, 1953 and that, therefore, the rent rates assessed in 1955 will be taken to be the rent rates prevalent on the date of resumption and as such the Board of Revenue as we ll as the High Court were fully justified in taking the view that compensation was to be determined on the basis of the rent rates assessed in 1955. In support of his contention Shri Sharma referred to the definition of the settled village in section 2 (n), which reads:"(n) Settled when used with reference to a village or any other area, means the village or other area to which the rent rates determined during settlement operations have been mad e applicable whether prospectively or retrospectively, and the whole of such village or other area shall be deemed, for the purposes of this Act and the rules and orders made thereunder, to be so settled if such rates have been made so applicable to not less than three fourths of such village or other area."11. On the strength of this definition it is sought to be contended that the jagir in question would be deemed to be a settled village as it is open to the authorities to apply the settlement either prospectively or retrospectively, and it was made applicable by the Settlement Officer retrospectively. We are afraid, the argument cannot be accepted. The criterion to determine whether a particular jagir is a settled one or not is to see whether the rent rates determined in settlement operations have been made applicable. It is only from the date of effectuation of a valid settlement of rent rates in respect of a particula r jagir which makes the jagir a settled one.12. Reliance was also placed on section 86 of the Jaipur State Grants Land Tenures Act, 1947, which runs thus:"86. Any rent fixed by order of the Settlement Officer under this Act shall be payable from the first day of July next following the date of such order, unless the Settlement Officer thinks fit, for any reason to direct that it shall be payable from some earlier date."13. A plain reading of this s ection indicates that the rent fixed by the Settlement Officer shall normally be payable from 1st of July next following the date of such order. The section, however, further authorises the Settlement Officer to direct that the same shall be paya ble from some earlier date. The realisation of rent from a retrospective date will not make the jagir in question a settled one as from that date. The settlement of rent rates is one thing and the realisation of rent on the basis of the settlement is quite another. In case of a settled village the compensation would be determined on the basis of the rent rates settled during a settlement operation recorded in the revenue papers on the date of resumption. Thus, it is the applicability of the re nt rates determined during a settlement made prior to the date of resumption which would make the village a settled village as on that date.There is yet another aspect from which the matter can be looked into. The jagirdar became entitled t o compensation on the date of resumption and, therefore, we have to examine the position as it stood on the date of resumption. If the village was an unsettled village on the date of resumption he would be entitled to compensation on the basis of t he village being unsettled. The right of compensation vested in the jagirdar on the date of resumption and he could not be deprived of his right by a subsequent amendment unless the amendment in law specifically or by necessary implication provided or depriving the jagirdar of his vested right. We do not find anything in the definition of the term settled under section 2 (n) of the Act or in section 86 of the Jaipur State Grants Land Tenures Act to indicate that the legislature intended to affect the vested right.14. In this view of the legal position, the jagir Commissioner was not justified in assessing the compensation on the basis of the assessment of rent rates in 1955. The only correct basis will be to treat the jagir in question as an unsettled one and determine the compensation in accordance with section 7 of the Act.15. | 1[ds]Having given our anxious consideration to the contentions raised on behalf of the parties we are of the positive view that after the quashing of the settlement made in 1953 it cannot be said that the settlement of the jagir still existed. It is to be noted at this stage that the settlement of 1953 was qu ashed by the High Court on the ground that the procedure laid down in the statute had not been followed. The quashing of such an order only means tabula rasa (clean slate) as if there was no determination of rent rates in 1953. In this view of the matter the jagir would be taken to be an unsettled village on the date ofthe strength of this definition it is sought to be contended that the jagir in question would be deemed to be a settled village as it is open to the authorities to apply the settlement either prospectively or retrospectively, and it was made applicable by the Settlement Officer retrospectively. We are afraid, the argument cannot be accepted. The criterion to determine whether a particular jagir is a settled one or not is to see whether the rent rates determined in settlement operations have been made applicable. It is only from the date of effectuation of a valid settlement of rent rates in respect of a particula r jagir which makes the jagir a settledplain reading of this s ection indicates that the rent fixed by the Settlement Officer shall normally be payable from 1st of July next following the date of such order. The section, however, further authorises the Settlement Officer to direct that the same shall be paya ble from some earlier date. The realisation of rent from a retrospective date will not make the jagir in question a settled one as from that date. The settlement of rent rates is one thing and the realisation of rent on the basis of the settlement is quite another. In case of a settled village the compensation would be determined on the basis of the rent rates settled during a settlement operation recorded in the revenue papers on the date of resumption. Thus, it is the applicability of the re nt rates determined during a settlement made prior to the date of resumption which would make the village a settled village as on that date.There is yet another aspect from which the matter can be looked into. The jagirdar became entitled t o compensation on the date of resumption and, therefore, we have to examine the position as it stood on the date of resumption. If the village was an unsettled village on the date of resumption he would be entitled to compensation on the basis of t he village being unsettled. The right of compensation vested in the jagirdar on the date of resumption and he could not be deprived of his right by a subsequent amendment unless the amendment in law specifically or by necessary implication provided or depriving the jagirdar of his vested right. We do not find anything in the definition of the term settled under section 2 (n) of the Act or in section 86 of the Jaipur State Grants Land Tenures Act to indicate that the legislature intended to affect the vestedthis view of the legal position, the jagir Commissioner was not justified in assessing the compensation on the basis of the assessment of rent rates in 1955. The only correct basis will be to treat the jagir in question as an unsettled one and determine the compensation in accordance with section 7 of the Act. | 1 | 2,432 | 635 | ### Instruction:
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be said that the settlement made in 1953 still stood for the purpose of determining the compensation for the jagir in question.Shri Badri Das Sharma appearing for the State on the other hand has contended that it is true that the determination of rent rates in 1953 had been quashed, but the High Court had directed re-determination of the rent rates in accordance with the provisions of section 82 and, therefore, the direction of the High Court was for rectifying the mistake that had cropped in the determination of the rent rates of 1953 and if this be so, the rent rates determined in 1953 were still there and the compensation could be determined on that basis.9. Having given our anxious consideration to the contentions raised on behalf of the parties we are of the positive view that after the quashing of the settlement made in 1953 it cannot be said that the settlement of the jagir still existed. It is to be noted at this stage that the settlement of 1953 was qu ashed by the High Court on the ground that the procedure laid down in the statute had not been followed. The quashing of such an order only means tabula rasa (clean slate) as if there was no determination of rent rates in 1953. In this view of the matter the jagir would be taken to be an unsettled village on the date of resumption.10. Shri Badri Das Sharma, however, contended that pursuant to the direction of the High Court in Writ No. 308 of 1953 fresh rent rates were assessed in 19 55 which were made applicable with retrospective effect from 1st of July, 1953 and that, therefore, the rent rates assessed in 1955 will be taken to be the rent rates prevalent on the date of resumption and as such the Board of Revenue as we ll as the High Court were fully justified in taking the view that compensation was to be determined on the basis of the rent rates assessed in 1955. In support of his contention Shri Sharma referred to the definition of the settled village in section 2 (n), which reads:"(n) Settled when used with reference to a village or any other area, means the village or other area to which the rent rates determined during settlement operations have been mad e applicable whether prospectively or retrospectively, and the whole of such village or other area shall be deemed, for the purposes of this Act and the rules and orders made thereunder, to be so settled if such rates have been made so applicable to not less than three fourths of such village or other area."11. On the strength of this definition it is sought to be contended that the jagir in question would be deemed to be a settled village as it is open to the authorities to apply the settlement either prospectively or retrospectively, and it was made applicable by the Settlement Officer retrospectively. We are afraid, the argument cannot be accepted. The criterion to determine whether a particular jagir is a settled one or not is to see whether the rent rates determined in settlement operations have been made applicable. It is only from the date of effectuation of a valid settlement of rent rates in respect of a particula r jagir which makes the jagir a settled one.12. Reliance was also placed on section 86 of the Jaipur State Grants Land Tenures Act, 1947, which runs thus:"86. Any rent fixed by order of the Settlement Officer under this Act shall be payable from the first day of July next following the date of such order, unless the Settlement Officer thinks fit, for any reason to direct that it shall be payable from some earlier date."13. A plain reading of this s ection indicates that the rent fixed by the Settlement Officer shall normally be payable from 1st of July next following the date of such order. The section, however, further authorises the Settlement Officer to direct that the same shall be paya ble from some earlier date. The realisation of rent from a retrospective date will not make the jagir in question a settled one as from that date. The settlement of rent rates is one thing and the realisation of rent on the basis of the settlement is quite another. In case of a settled village the compensation would be determined on the basis of the rent rates settled during a settlement operation recorded in the revenue papers on the date of resumption. Thus, it is the applicability of the re nt rates determined during a settlement made prior to the date of resumption which would make the village a settled village as on that date.There is yet another aspect from which the matter can be looked into. The jagirdar became entitled t o compensation on the date of resumption and, therefore, we have to examine the position as it stood on the date of resumption. If the village was an unsettled village on the date of resumption he would be entitled to compensation on the basis of t he village being unsettled. The right of compensation vested in the jagirdar on the date of resumption and he could not be deprived of his right by a subsequent amendment unless the amendment in law specifically or by necessary implication provided or depriving the jagirdar of his vested right. We do not find anything in the definition of the term settled under section 2 (n) of the Act or in section 86 of the Jaipur State Grants Land Tenures Act to indicate that the legislature intended to affect the vested right.14. In this view of the legal position, the jagir Commissioner was not justified in assessing the compensation on the basis of the assessment of rent rates in 1955. The only correct basis will be to treat the jagir in question as an unsettled one and determine the compensation in accordance with section 7 of the Act.15.
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Having given our anxious consideration to the contentions raised on behalf of the parties we are of the positive view that after the quashing of the settlement made in 1953 it cannot be said that the settlement of the jagir still existed. It is to be noted at this stage that the settlement of 1953 was qu ashed by the High Court on the ground that the procedure laid down in the statute had not been followed. The quashing of such an order only means tabula rasa (clean slate) as if there was no determination of rent rates in 1953. In this view of the matter the jagir would be taken to be an unsettled village on the date ofthe strength of this definition it is sought to be contended that the jagir in question would be deemed to be a settled village as it is open to the authorities to apply the settlement either prospectively or retrospectively, and it was made applicable by the Settlement Officer retrospectively. We are afraid, the argument cannot be accepted. The criterion to determine whether a particular jagir is a settled one or not is to see whether the rent rates determined in settlement operations have been made applicable. It is only from the date of effectuation of a valid settlement of rent rates in respect of a particula r jagir which makes the jagir a settledplain reading of this s ection indicates that the rent fixed by the Settlement Officer shall normally be payable from 1st of July next following the date of such order. The section, however, further authorises the Settlement Officer to direct that the same shall be paya ble from some earlier date. The realisation of rent from a retrospective date will not make the jagir in question a settled one as from that date. The settlement of rent rates is one thing and the realisation of rent on the basis of the settlement is quite another. In case of a settled village the compensation would be determined on the basis of the rent rates settled during a settlement operation recorded in the revenue papers on the date of resumption. Thus, it is the applicability of the re nt rates determined during a settlement made prior to the date of resumption which would make the village a settled village as on that date.There is yet another aspect from which the matter can be looked into. The jagirdar became entitled t o compensation on the date of resumption and, therefore, we have to examine the position as it stood on the date of resumption. If the village was an unsettled village on the date of resumption he would be entitled to compensation on the basis of t he village being unsettled. The right of compensation vested in the jagirdar on the date of resumption and he could not be deprived of his right by a subsequent amendment unless the amendment in law specifically or by necessary implication provided or depriving the jagirdar of his vested right. We do not find anything in the definition of the term settled under section 2 (n) of the Act or in section 86 of the Jaipur State Grants Land Tenures Act to indicate that the legislature intended to affect the vestedthis view of the legal position, the jagir Commissioner was not justified in assessing the compensation on the basis of the assessment of rent rates in 1955. The only correct basis will be to treat the jagir in question as an unsettled one and determine the compensation in accordance with section 7 of the Act.
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Pandit Kishan Lal Vs. Ganpat Ram Khosla And Another | could not be validly determined, and that the company will be held responsible till such delivery for liability to pay rent and that in the event of possession being transferred to any other person, legal action will be taken against the company. But the company delivered possession of the shop to Khosla and allowed him to occupy the shop in his personal capacity from September 1, 1954. Thereafter, on October 31, 1954, the appellant applied under S. 13 of the Act to the Controller for an order against Khsola and the company on three grounds, (1) that the company did not require the premises any longer while the appellant required the same for his own use, (2) that the company had neglected to pay rent since September 1, 1954, and (3) that the company had assigned or sub-let the shop to Khosla without the written consent of the appellant. Khosla and the company resisted the application contending the Khosla was the tenant of the appellant and that in any event, on August 28, 1954, the company through its local Supervisor had delivered possession of the shop to the appellant and that the latter agreed to treat Khosla as his tenant with effect from September 1, 1954. The Controller rejected the pleas raised by Khosla and the company and ordered that possession be delivered by the company to the appellant. In appeal to the District Court at Rohtak, the order passed by the Controller was confirmed. In a petition under Art. 227 of the Constitution filed by Khosla in the High Court of Judicature for Punjab at Chandigarh, the order passed by the District Court was quashed. The High Court was of the view that after August 31, 1954, the company had no interest left in the tenancy and the tenancy being from month to month terminable at the will of the appellant, such tenancy could not be the subject-matter of transfer or of sub-letting. The High Court, therefore, held that the order passed was without jurisdiction. In the course of the judgment, the High Court observed that full rent had been paid even after September 1, 1954, and therefore the ground of non-payment of rent "was not open to" the appellant. It is accepted at the bar that in making this observation, the High Court was under a misapprehension. The rent accruing due was not paid to the appellant, but was deposited in court. Against the order passed by the High Court, this appeal is preferred with special leave.5. The Controller and the District Court found that the tenant of the shop in dispute was not Khosla but the company. These two tribunals also found that possession of the shop was handed over by the company to Khosla without the consent of the appellant. These findings were binding upon the High Court.6. The only question which fell to be determined by the High Court was whether by unilateral action on its part, the company could require the appellant to treat Khosla as his tenant. In our view, the High Court misconceived the nature of the tenancy. A tenancy except where it is at will, may be terminated only on the expiry of the period of notice of a specified duration under the contract, custom or statute governing the premises in question. A tenant does not absolve himself from the obligations of his tenancy by intimating that as from a particular date he will cease to be in occupation under the landlord and that someone else whom the landlord is not willing to accept will be the tenant. It is one of the obligations of a contract of tenancy that the tenant will, on determination of the tenancy, put the landlord in possession of the property demised (see S. 108(q) of the Transfer of Property Act). Unless possession is delivered to the landlord before the expiry of the period of the requisite notice, the tenant continues to hold the premises during the period as tenant. Therefore, by merely assigning the rights, the tenancy of the company did not come to an end.It was observed by this court in W. H. King v. Republic of India, 1952 SCR 418 : (AIR 1952 SC 156 ):"There is a clear distinction between an assignment of a tenancy on the one hand and a relinquishment or surrender on the other. In the case of an assignment, the assignor continues to be liable to the landlord for the performance of his obligations under the tenancy and this liability is contractual, while the assignee becomes liable by reason of privity of estate. The consent of the landlord to an assignment is not necessary, in the absence of a contract or local usage to the contrary. But in the case of relinquishment it cannot be a unilateral transaction; it can only be in favour of the lessor by mutual agreement between them. Relinquishment of possession must be to the lessor or one who holds his interest: and surrender or relinquishment terminates the lessees rights and lets in the lessor."7. In the present case, the company did not surrender its rights to the appellant; it sought to transfer its rights to Khosla. The company admittedly did not serve the notice as required by law, nor did the appellant agree to accept the unilateral determination of the tenancy by the company. The true position was therefore that the company did not immediately on the service of the notice cease to be a tenant; and Khosla, because he was let into possession became an assignee of the rights of the company as a tenant and he could not be regarded as a trespasser. The High Court was therefore in our view in error in holding that the proceedings were not maintainable in the court of the Controller for possession. Khosla being an assignee of the tenancy rights of the company was as much liable to be sued in the court of the Controller as the company for an order in ejectment. | 1[ds]In our view, the High Court misconceived the nature of the tenancy. A tenancy except where it is at will, may be terminated only on the expiry of the period of notice of a specified duration under the contract, custom or statute governing the premises in question. A tenant does not absolve himself from the obligations of his tenancy by intimating that as from a particular date he will cease to be in occupation under the landlord and that someone else whom the landlord is not willing to accept will be the tenant. It is one of the obligations of a contract of tenancy that the tenant will, on determination of the tenancy, put the landlord in possession of the property demised (see S. 108(q) of the Transfer of Property Act). Unless possession is delivered to the landlord before the expiry of the period of the requisite notice, the tenant continues to hold the premises during the period as tenant. Therefore, by merely assigning the rights, the tenancy of the company did not come to anIn the present case, the company did not surrender its rights to the appellant; it sought to transfer its rights to Khosla. The company admittedly did not serve the notice as required by law, nor did the appellant agree to accept the unilateral determination of the tenancy by the company. The true position was therefore that the company did not immediately on the service of the notice cease to be a tenant; and Khosla, because he was let into possession became an assignee of the rights of the company as a tenant and he could not be regarded as a trespasser. The High Court was therefore in our view in error in holding that the proceedings were not maintainable in the court of the Controller for possession. Khosla being an assignee of the tenancy rights of the company was as much liable to be sued in the court of the Controller as the company for an order in ejectment. | 1 | 1,501 | 366 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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could not be validly determined, and that the company will be held responsible till such delivery for liability to pay rent and that in the event of possession being transferred to any other person, legal action will be taken against the company. But the company delivered possession of the shop to Khosla and allowed him to occupy the shop in his personal capacity from September 1, 1954. Thereafter, on October 31, 1954, the appellant applied under S. 13 of the Act to the Controller for an order against Khsola and the company on three grounds, (1) that the company did not require the premises any longer while the appellant required the same for his own use, (2) that the company had neglected to pay rent since September 1, 1954, and (3) that the company had assigned or sub-let the shop to Khosla without the written consent of the appellant. Khosla and the company resisted the application contending the Khosla was the tenant of the appellant and that in any event, on August 28, 1954, the company through its local Supervisor had delivered possession of the shop to the appellant and that the latter agreed to treat Khosla as his tenant with effect from September 1, 1954. The Controller rejected the pleas raised by Khosla and the company and ordered that possession be delivered by the company to the appellant. In appeal to the District Court at Rohtak, the order passed by the Controller was confirmed. In a petition under Art. 227 of the Constitution filed by Khosla in the High Court of Judicature for Punjab at Chandigarh, the order passed by the District Court was quashed. The High Court was of the view that after August 31, 1954, the company had no interest left in the tenancy and the tenancy being from month to month terminable at the will of the appellant, such tenancy could not be the subject-matter of transfer or of sub-letting. The High Court, therefore, held that the order passed was without jurisdiction. In the course of the judgment, the High Court observed that full rent had been paid even after September 1, 1954, and therefore the ground of non-payment of rent "was not open to" the appellant. It is accepted at the bar that in making this observation, the High Court was under a misapprehension. The rent accruing due was not paid to the appellant, but was deposited in court. Against the order passed by the High Court, this appeal is preferred with special leave.5. The Controller and the District Court found that the tenant of the shop in dispute was not Khosla but the company. These two tribunals also found that possession of the shop was handed over by the company to Khosla without the consent of the appellant. These findings were binding upon the High Court.6. The only question which fell to be determined by the High Court was whether by unilateral action on its part, the company could require the appellant to treat Khosla as his tenant. In our view, the High Court misconceived the nature of the tenancy. A tenancy except where it is at will, may be terminated only on the expiry of the period of notice of a specified duration under the contract, custom or statute governing the premises in question. A tenant does not absolve himself from the obligations of his tenancy by intimating that as from a particular date he will cease to be in occupation under the landlord and that someone else whom the landlord is not willing to accept will be the tenant. It is one of the obligations of a contract of tenancy that the tenant will, on determination of the tenancy, put the landlord in possession of the property demised (see S. 108(q) of the Transfer of Property Act). Unless possession is delivered to the landlord before the expiry of the period of the requisite notice, the tenant continues to hold the premises during the period as tenant. Therefore, by merely assigning the rights, the tenancy of the company did not come to an end.It was observed by this court in W. H. King v. Republic of India, 1952 SCR 418 : (AIR 1952 SC 156 ):"There is a clear distinction between an assignment of a tenancy on the one hand and a relinquishment or surrender on the other. In the case of an assignment, the assignor continues to be liable to the landlord for the performance of his obligations under the tenancy and this liability is contractual, while the assignee becomes liable by reason of privity of estate. The consent of the landlord to an assignment is not necessary, in the absence of a contract or local usage to the contrary. But in the case of relinquishment it cannot be a unilateral transaction; it can only be in favour of the lessor by mutual agreement between them. Relinquishment of possession must be to the lessor or one who holds his interest: and surrender or relinquishment terminates the lessees rights and lets in the lessor."7. In the present case, the company did not surrender its rights to the appellant; it sought to transfer its rights to Khosla. The company admittedly did not serve the notice as required by law, nor did the appellant agree to accept the unilateral determination of the tenancy by the company. The true position was therefore that the company did not immediately on the service of the notice cease to be a tenant; and Khosla, because he was let into possession became an assignee of the rights of the company as a tenant and he could not be regarded as a trespasser. The High Court was therefore in our view in error in holding that the proceedings were not maintainable in the court of the Controller for possession. Khosla being an assignee of the tenancy rights of the company was as much liable to be sued in the court of the Controller as the company for an order in ejectment.
### Response:
1
### Explanation:
In our view, the High Court misconceived the nature of the tenancy. A tenancy except where it is at will, may be terminated only on the expiry of the period of notice of a specified duration under the contract, custom or statute governing the premises in question. A tenant does not absolve himself from the obligations of his tenancy by intimating that as from a particular date he will cease to be in occupation under the landlord and that someone else whom the landlord is not willing to accept will be the tenant. It is one of the obligations of a contract of tenancy that the tenant will, on determination of the tenancy, put the landlord in possession of the property demised (see S. 108(q) of the Transfer of Property Act). Unless possession is delivered to the landlord before the expiry of the period of the requisite notice, the tenant continues to hold the premises during the period as tenant. Therefore, by merely assigning the rights, the tenancy of the company did not come to anIn the present case, the company did not surrender its rights to the appellant; it sought to transfer its rights to Khosla. The company admittedly did not serve the notice as required by law, nor did the appellant agree to accept the unilateral determination of the tenancy by the company. The true position was therefore that the company did not immediately on the service of the notice cease to be a tenant; and Khosla, because he was let into possession became an assignee of the rights of the company as a tenant and he could not be regarded as a trespasser. The High Court was therefore in our view in error in holding that the proceedings were not maintainable in the court of the Controller for possession. Khosla being an assignee of the tenancy rights of the company was as much liable to be sued in the court of the Controller as the company for an order in ejectment.
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Workmen Of M/S Bata Shoe Co., (P) Ltd Vs. M/S Bata Shoe Co. (P) Ltd | which wanted the fixed percentage basis to be continued. That is the union was not prepared to receive bonus on the basis of profits, but wanted to continue the existing arrangement of payment at a fixed percentage as an incentive to efficiency in production. That is, the union wanted the character of the payment as production bonus being continued. Therefore, these circumstances clearly lead to the conclusion that the payment that was being made and continued in the agreement Ext. A-5 was payment of bonus linked with production or productivity. It is also clear that the said payment was made in lieu of bonus based on profits because the union itself did not agree to the suggestion of the chairman as contained in Ext. D-2 to alter the character of payment to one of profit sharing bonus. Therefore, this also shows that the payment under Ext. A-5 was in lieu of bonus based on profits. The expressions used in S. 32(vii)(a) are "linked with production or productivity" and that test is satisfied in respect of the payment made under Ext. A-5. It is not the case of the union that the character of payment which was designated as an incentive to greater efficiency in productions even as early as 1951 (vide Ext. D) has been altered either in the subsequent agreements or in the agreement Ext. A-5. If so, it follows that the payment of general bonus in Ext. A-5 retains the same character as a payment by way of an incentive to greater efficiency in production. 33. As the minutes of the discussion that took place between the parties have been recorded then and there, they are items of evidence which are more valuable and useful than the oral evidence adduced by the parties. For instance, P.W. 1, secretary of the union, had deposed that the payment in Ext. A-5 is not linked with production. On the other hand, the Labour Officer of the company as P.W. 1 has stated that the said payment is linked with production. This type of evidence does not lead us anywhere. That is why we have placed more emphasis and reliance on the documentary evidence adduced by the parties, more especially when there is no controversy that the record of the meetings do not represent the actual facts. 34. Then the question is whether the bonus paid is an annual bonus, which is another requirement of S. 32(vii)(a) of the Act. That bonus has been paid at the end of every quarter, at any rate from 1948, is clear from the various settlements and agreements referred to earlier. That the union itself required that bonus should be continued to be paid quarterly, is clear from the letters written by the union, particularly Ext. D-5 dated December 24, 1957. We have already referred to the various agreements which no doubt prescribe the normal duration of the period of the agreement, which extends to over a year. There is also a further provision to the effect that even after the date of expiry mentioned therein, the agreement will continue to be in force till a notice is given in the manner provided for in the agreement. Therefore, it will be seen that it is not as if that bonus is paid for one quarter and does not ensure for a succeeding quarter. On the other hand, the amounts payable are not restricted to one particular quarter and the intention is made clear in the agreement that it has to operate throughout the year and also continue from year to year. It is not possible to accept the contention of Mr. Mookerjee that it is only when a payment is made at the end of the year, it can be considered to be an annual bonus. The essential test to be satisfied is that the payment should enure throughout the year and it should also be continued from year to year. As observed by Lord Maugham in Moss Empires Ltd. v. Inland Revenue Commissioners, (1937) 3 All E.R. 381, the expression "annual" must be taken to have the quality of being recurrent or being capable of recurrence. Adopting this test, the payments in the case before us were to continue the whole of the year and also were to be paid from year to year not only during the period of agreement but also for the succeeding year till the required notice was given under the agreement. Even then there is a provision in the agreement to the effect that the agreement will continue to have force notwithstanding the notice till a fresh agreement or settlement is entered into. Therefore, it is clear that the payment of general bonus is "annual bonus" as contemplated by S. 32(vii)(a) of the Act. The Court of Appeal in Smith v. Smith (1923) P.D. 191 had to consider whether a payment to be made weekly during the lifetime of a person was an "annual payment". It was held as follows :"It is no doubt payable weekly, but that fact does not prevent it from being an annual payment if the weekly payments may extend beyond a year." 35. The position, as pointed out by us earlier, in the case before us, is also the same. 36. It follows from the discussion above that the general bonus paid under Article VI of the agreement, dated August 30, 1962, Ext. A-5, is a payment of annual bonus linked with production or productivity in lieu of bonus based on profits. It further follows that as the agreement has been entered into before May 29, 1965, the employees cannot claim any additional bonus under the Act for the period for which the agreement is in operation. It is the case of all parties that the agreement Ext. A-5 at the relevant time was in operation. If so, it follows that the view of the Tribunal that S. 32(vii)(a) of the Act is a bar to claim any additional bonus under the Act is correct. | 0[ds]In the case before us, from the award it is seen that the union conceded that the amount paid as general bonus under the agreement was neither customary, nor profit bonus, nor bonus as an implied term of contract. In the nature of things the union has not raised the plea that amount paid under the agreement is a profit bonus. Equally, the company could not also take up such a plea as their attempt was to show that it is a payment as production bonus or incentive wages16. A mere reading of Art. VI relating to general bonus will not by itself throw much light on the character of such payment. But, it is clear that the payment is to be made at the end of each quarter at the percentage mentioned therein of the total salary or wages which does not include dearness allowance. The said Article also provides for the period of service necessary for qualifying to get the higher or lower percentage of bonus as the case may be. The emphasis is also laid on the workmen giving regular and approved service during the quarter to which the payment of bonus is available17. Normally, it is the agreement Ext.5 which has to be looked into for the purpose of ascertaining the rights and liabilities of the employer and employees. That is, the agreement will have to be looked into for the purpose of ascertaining the nature and character of the general bonus payable under Art. VI, provided that clause gives a full and clear indication regarding the character of such payment. But, a mere reading of Art. VI does not give any indication regarding the character of such payment. The other clauses in the agreement also do not throw much light on this aspect. But it is not as if that agreement Ext.5 has been entered into between the parties for the first time. The expression "General Bonus" occurs, as we will show presently, in certain previous agreements. Under those circumstances, in our opinion, in order to properly appreciate the character and nature of the payment that was being made originally and that was continued under Art. VI of the agreement of 1962, it is not only relevant but also necessary to consider the various settlements and agreements that took place between the parties on prior occasions18. We are not inclined to agree with the contention of Mr. Mookerjee that the Tribunal has committed a very serious error in law when it tried to interpret the nature of the payment under Ext.5 by reference to the previous settlements and discussions that took place between the parties. The Tribunal was perfectly justified in considering those agreements as they, in our opinion, give a complete and clear picture of the nature of the claims made by the union, the stand taken by the company and the nature of the agreement ultimately arrived at between the parties regarding the payment of the amount in question32. We have very exhaustively dealt with the various demands made by the workmen, the minutes recording the discussion that took place between the parties regarding the demands, the conclusions arrived at therein as well as the final agreements entered into on different dates between the parties, as they furnish the background, so to say, for the agreement under consideration Ext.. It will be seen that originally in 1946 the payment was made as production or special bonus. Specific demand was made by the union on March 6, 1947 to increase "production bonus". The company did not agree to this request. On the other hand, Ext. C, the agreement clearly shows that there would be no increase in production bonus. But an additional amount was given as attendance bonus. In 1948 what was originally characterised as production bonus was termed "ex gratia" payment of bonus. The union specifically desired in 1951 to substitute "ex gratia bonus" by "general bonus" and to abolish attendance bonus. The demand also was for general bonus to be paid at a flat rate every quarter. For the first time the expression "general bonus" occurs in the demand made by the union on May 15, 1951, and in the agreed minutes of October 3, 1951. The same was incorporated in the final agreement of November 22, 1951. The union made a demand on March 11, 1954, for increase in the rate of general bonus so as to provide an incentive to the employees. This was accepted and embodied finally in the agreement dated February 18, 1955. In Ext., the union made a specific demand for further increase of the rate of general bonus and wanted half the amount to be paid quarterly as at present and the balance at the time of pooja. Though, the minutes of the discussion in respect of this demands shows, that the chairman of the company wanted to alter what was given as incentive to greater efficiency in production to one on profit basis, the union preferred the payment to be continued as was being done on a fixed percentage basis. The pattern of bonus paid sometimes called production bonus, later on called ex gratia payment, but from 1951 called as general bonus, was being paid quarterly at a particular percentage based on the salary excluding dearness allowance. Having this background in mind, it is clear that what was being paid under Art. VI of Ext.5 was a payment linked with production or productivity. The principal emphasis is that the amount is being paid as an incentive to production and, therefore, it is paid as production bonus or as a wage incentive. That it is an incentive payment in order to secure greater efficiency in production is clear from Exts. D,, and. We have already referred to the contents of these exhibits in great detail. Even the workmen in Ext.3 required the rate of general bonus to be increased in view of the necessity of giving incentive to the employees. But a more important point emerges from the minutes of discussion recorded on October 6, 1958 in Ext.. The chairman of the company emphasised that what was being paid as general bonus was as an incentive to greater efficiency in production. The chairman specifically wanted this method of payment to be changed and suggested that the bonus payment be linked with the generally accepted formula, namely, of profit bonus and that the payment on a fixed percentage be abolished. But this suggestion to alter the nature of the payment from a fixed percentage as a production bonus for providing an incentive to greater efficiency in production was not accepted by the union, which wanted the fixed percentage basis to be continued. That is the union was not prepared to receive bonus on the basis of profits, but wanted to continue the existing arrangement of payment at a fixed percentage as an incentive to efficiency in production. That is, the union wanted the character of the payment as production bonus being continued. Therefore, these circumstances clearly lead to the conclusion that the payment that was being made and continued in the agreement Ext.5 was payment of bonus linked with production or productivity. It is also clear that the said payment was made in lieu of bonus based on profits because the union itself did not agree to the suggestion of the chairman as contained in Ext.2 to alter the character of payment to one of profit sharing bonus. Therefore, this also shows that the payment under Ext.5 was in lieu of bonus based on profits. The expressions used in S. 32(vii)(a) are "linked with production or productivity" and that test is satisfied in respect of the payment made under Ext.. It is not the case of the union that the character of payment which was designated as an incentive to greater efficiency in productions even as early as 1951 (vide Ext. D) has been altered either in the subsequent agreements or in the agreement Ext.. If so, it follows that the payment of general bonus in Ext.5 retains the same character as a payment by way of an incentive to greater efficiency in production33. As the minutes of the discussion that took place between the parties have been recorded then and there, they are items of evidence which are more valuable and useful than the oral evidence adduced by the parties. For instance, P.W. 1, secretary of the union, had deposed that the payment in Ext.5 is not linked with production. On the other hand, the Labour Officer of the company as P.W. 1 has stated that the said payment is linked with production. This type of evidence does not lead us anywhere. That is why we have placed more emphasis and reliance on the documentary evidence adduced by the parties, more especially when there is no controversy that the record of the meetings do not represent the actual facts34. Then the question is whether the bonus paid is an annual bonus, which is another requirement of S. 32(vii)(a) of the Act.That bonus has been paid at the end of every quarter, at any rate from 1948, is clear from the various settlements and agreements referred to earlier. That the union itself required that bonus should be continued to be paid quarterly, is clear from the letters written by the union, particularly Ext.5 dated December 24, 1957. We have already referred to the various agreements which no doubt prescribe the normal duration of the period of the agreement, which extends to over a year. There is also a further provision to the effect that even after the date of expiry mentioned therein, the agreement will continue to be in force till a notice is given in the manner provided for in the agreement. Therefore, it will be seen that it is not as if that bonus is paid for one quarter and does not ensure for a succeeding quarter. On the other hand, the amounts payable are not restricted to one particular quarter and the intention is made clear in the agreement that it has to operate throughout the year and also continue from year to year. It is not possible to accept the contention of Mr. Mookerjee that it is only when a payment is made at the end of the year, it can be considered to be an annual bonus. The essential test to be satisfied is that the payment should enure throughout the year and it should also be continued from year to year. As observed by Lord Maugham in Moss Empires Ltd. v. Inland Revenue Commissioners, (1937) 3 All E.R. 381, the expression "annual" must be taken to have the quality of being recurrent or being capable of recurrence. Adopting this test, the payments in the case before us were to continue the whole of the year and also were to be paid from year to year not only during the period of agreement but also for the succeeding year till the required notice was given under the agreement. Even then there is a provision in the agreement to the effect that the agreement will continue to have force notwithstanding the notice till a fresh agreement or settlement is entered into. Therefore, it is clear that the payment of general bonus is "annual bonus" as contemplated by S. 32(vii)(a) of the Act. The Court of Appeal in Smith v. Smith (1923) P.D. 191 had to consider whether a payment to be made weekly during the lifetime of a person was an "annual payment". It was held as follows :"It is no doubt payable weekly, but that fact does not prevent it from being an annual payment if the weekly payments may extend beyond a year."35. The position, as pointed out by us earlier, in the case before us, is also the same36. It follows from the discussion above that the general bonus paid under Article VI of theagreement, datedAugust 30, 1962, Ext., is a payment of annual bonus linked with production or productivity in lieu of bonus based on profits. It further follows that as the agreement has been entered into before May 29, 1965, the employees cannot claim any additional bonus under the Act for the period for which the agreement is in operation. It is the case of all parties that the agreement Ext.5 at the relevant time was in operation. If so, it follows that the view of the Tribunal that S. 32(vii)(a) of the Act is a bar to claim any additional bonus under the Act is correct. | 0 | 8,030 | 2,318 | ### 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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which wanted the fixed percentage basis to be continued. That is the union was not prepared to receive bonus on the basis of profits, but wanted to continue the existing arrangement of payment at a fixed percentage as an incentive to efficiency in production. That is, the union wanted the character of the payment as production bonus being continued. Therefore, these circumstances clearly lead to the conclusion that the payment that was being made and continued in the agreement Ext. A-5 was payment of bonus linked with production or productivity. It is also clear that the said payment was made in lieu of bonus based on profits because the union itself did not agree to the suggestion of the chairman as contained in Ext. D-2 to alter the character of payment to one of profit sharing bonus. Therefore, this also shows that the payment under Ext. A-5 was in lieu of bonus based on profits. The expressions used in S. 32(vii)(a) are "linked with production or productivity" and that test is satisfied in respect of the payment made under Ext. A-5. It is not the case of the union that the character of payment which was designated as an incentive to greater efficiency in productions even as early as 1951 (vide Ext. D) has been altered either in the subsequent agreements or in the agreement Ext. A-5. If so, it follows that the payment of general bonus in Ext. A-5 retains the same character as a payment by way of an incentive to greater efficiency in production. 33. As the minutes of the discussion that took place between the parties have been recorded then and there, they are items of evidence which are more valuable and useful than the oral evidence adduced by the parties. For instance, P.W. 1, secretary of the union, had deposed that the payment in Ext. A-5 is not linked with production. On the other hand, the Labour Officer of the company as P.W. 1 has stated that the said payment is linked with production. This type of evidence does not lead us anywhere. That is why we have placed more emphasis and reliance on the documentary evidence adduced by the parties, more especially when there is no controversy that the record of the meetings do not represent the actual facts. 34. Then the question is whether the bonus paid is an annual bonus, which is another requirement of S. 32(vii)(a) of the Act. That bonus has been paid at the end of every quarter, at any rate from 1948, is clear from the various settlements and agreements referred to earlier. That the union itself required that bonus should be continued to be paid quarterly, is clear from the letters written by the union, particularly Ext. D-5 dated December 24, 1957. We have already referred to the various agreements which no doubt prescribe the normal duration of the period of the agreement, which extends to over a year. There is also a further provision to the effect that even after the date of expiry mentioned therein, the agreement will continue to be in force till a notice is given in the manner provided for in the agreement. Therefore, it will be seen that it is not as if that bonus is paid for one quarter and does not ensure for a succeeding quarter. On the other hand, the amounts payable are not restricted to one particular quarter and the intention is made clear in the agreement that it has to operate throughout the year and also continue from year to year. It is not possible to accept the contention of Mr. Mookerjee that it is only when a payment is made at the end of the year, it can be considered to be an annual bonus. The essential test to be satisfied is that the payment should enure throughout the year and it should also be continued from year to year. As observed by Lord Maugham in Moss Empires Ltd. v. Inland Revenue Commissioners, (1937) 3 All E.R. 381, the expression "annual" must be taken to have the quality of being recurrent or being capable of recurrence. Adopting this test, the payments in the case before us were to continue the whole of the year and also were to be paid from year to year not only during the period of agreement but also for the succeeding year till the required notice was given under the agreement. Even then there is a provision in the agreement to the effect that the agreement will continue to have force notwithstanding the notice till a fresh agreement or settlement is entered into. Therefore, it is clear that the payment of general bonus is "annual bonus" as contemplated by S. 32(vii)(a) of the Act. The Court of Appeal in Smith v. Smith (1923) P.D. 191 had to consider whether a payment to be made weekly during the lifetime of a person was an "annual payment". It was held as follows :"It is no doubt payable weekly, but that fact does not prevent it from being an annual payment if the weekly payments may extend beyond a year." 35. The position, as pointed out by us earlier, in the case before us, is also the same. 36. It follows from the discussion above that the general bonus paid under Article VI of the agreement, dated August 30, 1962, Ext. A-5, is a payment of annual bonus linked with production or productivity in lieu of bonus based on profits. It further follows that as the agreement has been entered into before May 29, 1965, the employees cannot claim any additional bonus under the Act for the period for which the agreement is in operation. It is the case of all parties that the agreement Ext. A-5 at the relevant time was in operation. If so, it follows that the view of the Tribunal that S. 32(vii)(a) of the Act is a bar to claim any additional bonus under the Act is correct.
### Response:
0
### Explanation:
production bonus for providing an incentive to greater efficiency in production was not accepted by the union, which wanted the fixed percentage basis to be continued. That is the union was not prepared to receive bonus on the basis of profits, but wanted to continue the existing arrangement of payment at a fixed percentage as an incentive to efficiency in production. That is, the union wanted the character of the payment as production bonus being continued. Therefore, these circumstances clearly lead to the conclusion that the payment that was being made and continued in the agreement Ext.5 was payment of bonus linked with production or productivity. It is also clear that the said payment was made in lieu of bonus based on profits because the union itself did not agree to the suggestion of the chairman as contained in Ext.2 to alter the character of payment to one of profit sharing bonus. Therefore, this also shows that the payment under Ext.5 was in lieu of bonus based on profits. The expressions used in S. 32(vii)(a) are "linked with production or productivity" and that test is satisfied in respect of the payment made under Ext.. It is not the case of the union that the character of payment which was designated as an incentive to greater efficiency in productions even as early as 1951 (vide Ext. D) has been altered either in the subsequent agreements or in the agreement Ext.. If so, it follows that the payment of general bonus in Ext.5 retains the same character as a payment by way of an incentive to greater efficiency in production33. As the minutes of the discussion that took place between the parties have been recorded then and there, they are items of evidence which are more valuable and useful than the oral evidence adduced by the parties. For instance, P.W. 1, secretary of the union, had deposed that the payment in Ext.5 is not linked with production. On the other hand, the Labour Officer of the company as P.W. 1 has stated that the said payment is linked with production. This type of evidence does not lead us anywhere. That is why we have placed more emphasis and reliance on the documentary evidence adduced by the parties, more especially when there is no controversy that the record of the meetings do not represent the actual facts34. Then the question is whether the bonus paid is an annual bonus, which is another requirement of S. 32(vii)(a) of the Act.That bonus has been paid at the end of every quarter, at any rate from 1948, is clear from the various settlements and agreements referred to earlier. That the union itself required that bonus should be continued to be paid quarterly, is clear from the letters written by the union, particularly Ext.5 dated December 24, 1957. We have already referred to the various agreements which no doubt prescribe the normal duration of the period of the agreement, which extends to over a year. There is also a further provision to the effect that even after the date of expiry mentioned therein, the agreement will continue to be in force till a notice is given in the manner provided for in the agreement. Therefore, it will be seen that it is not as if that bonus is paid for one quarter and does not ensure for a succeeding quarter. On the other hand, the amounts payable are not restricted to one particular quarter and the intention is made clear in the agreement that it has to operate throughout the year and also continue from year to year. It is not possible to accept the contention of Mr. Mookerjee that it is only when a payment is made at the end of the year, it can be considered to be an annual bonus. The essential test to be satisfied is that the payment should enure throughout the year and it should also be continued from year to year. As observed by Lord Maugham in Moss Empires Ltd. v. Inland Revenue Commissioners, (1937) 3 All E.R. 381, the expression "annual" must be taken to have the quality of being recurrent or being capable of recurrence. Adopting this test, the payments in the case before us were to continue the whole of the year and also were to be paid from year to year not only during the period of agreement but also for the succeeding year till the required notice was given under the agreement. Even then there is a provision in the agreement to the effect that the agreement will continue to have force notwithstanding the notice till a fresh agreement or settlement is entered into. Therefore, it is clear that the payment of general bonus is "annual bonus" as contemplated by S. 32(vii)(a) of the Act. The Court of Appeal in Smith v. Smith (1923) P.D. 191 had to consider whether a payment to be made weekly during the lifetime of a person was an "annual payment". It was held as follows :"It is no doubt payable weekly, but that fact does not prevent it from being an annual payment if the weekly payments may extend beyond a year."35. The position, as pointed out by us earlier, in the case before us, is also the same36. It follows from the discussion above that the general bonus paid under Article VI of theagreement, datedAugust 30, 1962, Ext., is a payment of annual bonus linked with production or productivity in lieu of bonus based on profits. It further follows that as the agreement has been entered into before May 29, 1965, the employees cannot claim any additional bonus under the Act for the period for which the agreement is in operation. It is the case of all parties that the agreement Ext.5 at the relevant time was in operation. If so, it follows that the view of the Tribunal that S. 32(vii)(a) of the Act is a bar to claim any additional bonus under the Act is correct.
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Rajes Kanta Roy Vs. Shanti Debi | is whether in view of the terms to be noticed, his interest in No. 44/2, Lansdowne Road against which execution is sought is in any way different. The scope for any possible difference arises in view of the fact that the devolution of lots I to IV on Rajes or his heirs (then living) is specifically expressed to be "subject to the provisions contained in clause (c) hereof regarding premises No. 44/2, Lansdowne Road". The relevant provisions relating to this property are as follows. Clause 10 provides that the settlor as well as Rajes and Ramendra with their respective families should be entitled to reside in the premises during the settlors life time and so long as settlors debts are not fully paid off. Clause 12(c) provides that after the death of the settlor and after all debts have been fully paid off and on the said Rajes or his legal heirs purchasing in the town of Calcutta or its suburbs a suitable house at a value not less than Rs. 40,000 and making over the same to Ramendra absolutely, Rajes or his legal heirs shall be the absolute owner of the premises No. 44/2, Lansdowne Road but that so long as such house be not purchased and made over to Ramendra. Rajes and Ramendra should both be entitled to reside in the said premises with their respective families. It is urged that, since it is thus specifically provided that until the discharge, by Rajes or his heirs, of the obligation to purchase another suitable house and to make over the same to Ramendra or his heirs, Rajes is not to be the absolute owner, this is a factor which imports a further element of contingency, in the interest given to Rajes under this deed of trust in so far as it relates to premises No. 44/2, Lansdowne Road. It is contended that in order to emphasise the additional contingency as regards this item, subjection to cl. (c) as regards these. premises, has been specifically incorporated in cl. 12(a). Now, it is to be noticed that the preliminary portion of cl. 12 shows that on the liquidation of the debts and after the death of the settlor, the trust shall come to an end and the properties in Lots I to IV are to devolve on Rajes. Clause 12 (c), therefore, would prima facie show that the contingency, if any, which arises by virtue of the obligation to provide alternative accommodation to Ramendra. or his heirs is to arise only after the death of the settlor and the discharge of the debts, which taken together means the termination of the trust. So understood and assuming for, the sake of argument that the obligation to provide alternative accommodation is by itself a contingency, this would bring about a contingent interest in premises No. 44/2, Lansdowne Road, in favour of Rajes, after the termination of the trust. It follows that this item of property would not be owned by anybody until that contingency disappears. This would result in this item of property remaining without any legal ownership for the intervening period which is opposed to law. Learned Solicitor-General, presumably recognising this difficulty, was obliged to urge that the contingency arising from the provision imposing obligation on Rajes and his heirs to provide alternative accommodation to Ramendra should be read into the preliminary portion of cl. 12 in so far as premises No. 44/2, Lansdowne Road, is concerned. This is to say, according to him, the trust is to be construed as not coming to an end as regard this item of property alone until the obligation to provide alternative accommodation is discharged. This construction would be doing great violence to the language of cl. 12 which specifically shows in peremptory terms that the trust "shall come to an end on the liquidation of all the debts of the settlor and after his death". The construction contended for is not justified by the phrase "subject to the provisions contained in cl. (c) hereof regarding premises No. 44/2, Lansdowne Road" which occurs in cl. (a) thereof. The limitation by way of subjection has reference only to "devolution" of the properties in Lots I to IV "absolutely". Neither the use of the word "devolution" nor of the word "absolutely" in cls. 12(a) and (c) can be understood, in the context, as having any bearing on the vesting of the interest as opposed to the interest being contingent, but only as indicating a full and unrestricted devolution of the property subject to no limitations as regards the enjoyment thereof, as opposed to a vesting and devolution subject to restricted enjoyment.16. It appears to us reasonably clear that the intention of the settlor, taking cls. 12 (a) and (c) together, is that as regards Lots I to IV, the beneficial interest of Rajes as regards all the properties comprised therein, including premises No. 44/2, Lansdowne Road, is vested in title but restricted in enjoyment so long as, the settlor is alive and the debts are not discharged, and that as regards premises No. 44/2, Lansdowne Road, his enjoyment is further restricted inasmuch as it is subject to the right of residence of Ramendra and his heirs in the said premises until the obligation to provide alternative accommodation is discharged by Rajes or his heirs.17. We are clearly of the opinion that the objection raised to the execution (1) on the ground that the properties charged are to be proceeded against, in the first instance, and (2) on the ground that the interest which Rajes gets under the trust deed either as regards the general properties covered by the deed or as regards premises No. 44/2, Lansdowne Read, is contingent, are untenable. If, as a fact, either the debts remain undischarged or the alternative accommodation has not so far been provided, how the rights of persons affected thereby are to be safeguarded is not a matter that arises for consideration before us and we express no opinion thereupon. | 0[ds]It is true that a formal direction in terms of the various clauses of the compromise petition directing the plaintiffs to pay the monthly allowance of Rs. 475 to the first defendant has not, in terms, been drawn up. But there can be no doubt that this was what was meant to be conveyed by the above mentioned formal order in so far as it is relevant for the present purposes. We understand that the actual decree in this case merely showing that "the solenama do form part of the decree" is according to the usual practice of Courts in Bengal in all such cases and that it is generally understood to amount to such a direction though it is not so expressly set out. We do not consider it necessary to express opinion as to whether that is a correct practice. But we do not think that in this case the execution is to be defeated on this ground. There is no indication in the judgment either of the Subordinate Judge or of the High Court that any such point has been raised before them. We accordingly overrule this objection.6. As regards the first of the main points raised with reference to the terms of the compromise decree, it is not disputed that cl. (c) does impose a personal obligation on the plaintiffs therein to pay to the first defendant therein a monthly allowance of Rs. 475 and that, therefore, the decree-holder is entitled to a personalthe present case we do not consider it necessary to deal with these Bombay decisions cited before us or with the above contention based thereon.For, it is not disputed that where a compromise decree provides both for a personal remedy and a charge, the whole question depends on the intention to be gathered from the various terms in the compromise decree.In our opinion, the construction of the two relevant clauses and the intention to be gathered therefrom in this case are quite clear. It is true that in one sense, cls. (c), (d) and (e) of the compromise indicate certain specified properties as being available to the decree-holder for realisation of any dues either by pursuing the charge or by getting a Receiver appointed in respect of the charged properties. But the wording of the three clauses shows clearly that she is not obliged to resort to these two remedies in the first instance.Clause (c) says that "the defendant No. 1 will be entitled to realise the amount in default by means of execution of decree". Clause (d) says that "the defendant No. 1 will be at liberty to realise the amount in default against the properties charged". Clause (e) says that the defendant no. 1 will at her option, be further entitled to realise the amount in default by appointment of Receiver for execution of this decree over the charged properties."It is quite clear that cl. (c) gives her an unqualified right to obtain payment of the monthly allowance from the plaintiffs. Clauses (d) and (e) give her a liberty or option to pursue the remedies specified therein. There is nothing in these two clauses to limit, in any way, the unqualified right that she was given under cl. (c). Our attention is drawn to the statement in cl. (j) which says that "each of the terms stated is a consideration for the other terms". What exactly is meant thereby is somewhat obscure. But we are unable, to see how that clause affects the intention which, in our view, has to be gathered by reading cls. (c), (d) and (e) together. We are, therefore, of the opinion that the contention raised to the effect that the personal remedy is not available in this case before exhausting the charged properties, is notobjection in this form is obviously untenable and has not been urged in any of the Courts below.Indeed, if under the trust, deed the judgment-debtor has a beneficial interest, it is not disputed that such beneficial interest would be attachable provided it is a vested interest and not a contingent interest.The judgment of the executing court, however, shows that what was dealt with there is the contention that the interest under the trust deed was a mere expectancy as opposed to a vested interest. The Court held that the interest which the judgment-debtors had in the property by virtue of the deed of trust was not a mere expectancy. On appeal to the High Court, none of the grounds set out in the appeal memorandum thereto relate to this question.The High Court, however, dealt with the matter on the footing that the question is whether the interest of the judgment-debtor, under the deed of trust is a vested as opposed to a contingent interest.It does not appear to us that that question in this form should have been allowed to be raised. Its determination may well depend upon the question whether as a fact the contigency suggested has disappeared by virtue of subsequent events. However, since the point has been allowed to be raised and the decision of the High Court is given on the footing of the matter being solely one of construction of the document, we proceed to considerclearly, therefore, during the subsistence of the trust both the sons get only a portion of the income as specified above and do not get for themselves the full benefit out of the properties respectively allotted to them until the debts are completely discharged. There is no doubt that these terms show that the settlor attached great importance to the discharge of the debts becoming an accomplished fact before the two sons take the full benefit by way of devolution of the property and that in order to facilitate the same, he restricted his own enjoyment and that of his two sons to an aggregate limited sum of Rs. 1,500 per month out of the income (apart from a few other minor monthly payments). But can it be said that their interest in the property was made to depend on the event of the total discharge of the debts and that the discharge of the debts was contemplated as an uncertainis, therefore, necessary to consider the entire scheme of the deed of trust in the present case, having regard to the terms therein, and to gather the intentioncan be no reasonable doubt that the settlor did contemplate that, on a proper management of the property and with a scheme for the discharge of debts, there would emerge surplus income by the date of termination of trust. This appears from cl. 12(a) of the trust deed which specifically provides for the disposal of the surplus income of each lot which might accumulate during the continuance of the trust. It is, permissible, therefore to think that the surplus contemplated would not be unsubstantial. Under cl. 14 of the trust deed the settlor provides for the devolution of the trusteeship in case his sons, Rajes, died before the liquidation of the debts and says that on the death of Rajes, Rajess wife and Ramendra are to become joint trustees and that on the death of either of them the surviving trustee shall be the sole trustee. There is no provision for any further devolution of trusteeship in the contingency of such sole trustee also dying before the liquidation of the debts. The absence of any such provision may well be taken to indicate that, in the contemplation of the settlor, the debts would be discharged and the trust would come to an end, in any case, before the expiry of the three lives mentioned therein, i.e., Rajes, his wife and Ramendra. While, therefore, the settlor does appear to have attached considerable importance to the liquidation of debts, there is nothing to show that he was apprehensive that the debts would remain undischarged out of his properties and its income and that he contemplated the ultimate discharge of his debts to be such and uncertain event as to drive him to make the accrual of the interest to his sons under the deed to depend upon the event of the actual discharge of his debts. In this context there are also other provisions in the trust deed which are of great significance.Now, there can be no doubt about the rule that where the enjoyment of the property is postponed but the present income thereof is to be applied for the benefit of the donee the gift is vested and notarrangements taken together clearly indicate that what is postponed is not the very vesting of the property in the lots themselves but that the enjoyment of the income thereof is burdened with certain monthly payments and with the obligation to discharge debts therefrom notionally pro rata, all of which taken together constitute application of the income for hiseven so, this would make no practical difference. It is to be remembered that in this case the parties belong to the Dayabhaga school of Hindu Law- and this is admitted before us. It is also to be remembered that. up to the third degree in the male line the principle of representation under the Hindu Law operates. The net result of the provision, therefore, is that whenever the alleged contingency of discharge of debts may disappear the person on whom the interest would devolve would, in the normal course, be the very heir (lineal descendant then surviving or the widow) of Rajes. The actual devolution of the interest, therefore, would not be affected by the alleged contingency. This being so it is more reasonable to hold that the interest of Rajes under the deed is vested and not contingent.13. This view is confirmed by the fact that under the compromise decree which is now sought to be executed both the judgment-debtors, Rajes and Ramendra, created a charge for the monthly payment to Santi Debi and agreed to such charge being presently executable. This shows clearly that they themselves understood the interest available to them under the trust as a vested interest.14. In the course of the discussions before us a number of other possibilities which may arise with reference to the actual terms of the deed were closely examined with a view to test how far they fit in with one view or the other of the nature of interest in question. But even such an elaborate consideration of the possibilities did not throw any further light on the question at issue. We are therefore, of the opinion that in so far as the interest of Rajes is concerned in lots I to IV under the trust deed, it is vested and not contingent.It appears to us reasonably clear that the intention of the settlor, taking cls. 12 (a) and (c) together, is that as regards Lots I to IV, the beneficial interest of Rajes as regards all the properties comprised therein, including premises No. 44/2, Lansdowne Road, is vested in title but restricted in enjoyment so long as, the settlor is alive and the debts are not discharged, and that as regards premises No. 44/2, Lansdowne Road, his enjoyment is further restricted inasmuch as it is subject to the right of residence of Ramendra and his heirs in the said premises until the obligation to provide alternative accommodation is discharged by Rajes or his heirs.17. We are clearly of the opinion that the objection raised to the execution (1) on the ground that the properties charged are to be proceeded against, in the first instance, and (2) on the ground that the interest which Rajes gets under the trust deed either as regards the general properties covered by the deed or as regards premises No. 44/2, Lansdowne Read, is contingent, are untenable. If, as a fact, either the debts remain undischarged or the alternative accommodation has not so far been provided, how the rights of persons affected thereby are to be safeguarded is not a matter that arises for consideration before us and we express no opinion thereupon. | 0 | 8,032 | 2,208 | ### Instruction:
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is whether in view of the terms to be noticed, his interest in No. 44/2, Lansdowne Road against which execution is sought is in any way different. The scope for any possible difference arises in view of the fact that the devolution of lots I to IV on Rajes or his heirs (then living) is specifically expressed to be "subject to the provisions contained in clause (c) hereof regarding premises No. 44/2, Lansdowne Road". The relevant provisions relating to this property are as follows. Clause 10 provides that the settlor as well as Rajes and Ramendra with their respective families should be entitled to reside in the premises during the settlors life time and so long as settlors debts are not fully paid off. Clause 12(c) provides that after the death of the settlor and after all debts have been fully paid off and on the said Rajes or his legal heirs purchasing in the town of Calcutta or its suburbs a suitable house at a value not less than Rs. 40,000 and making over the same to Ramendra absolutely, Rajes or his legal heirs shall be the absolute owner of the premises No. 44/2, Lansdowne Road but that so long as such house be not purchased and made over to Ramendra. Rajes and Ramendra should both be entitled to reside in the said premises with their respective families. It is urged that, since it is thus specifically provided that until the discharge, by Rajes or his heirs, of the obligation to purchase another suitable house and to make over the same to Ramendra or his heirs, Rajes is not to be the absolute owner, this is a factor which imports a further element of contingency, in the interest given to Rajes under this deed of trust in so far as it relates to premises No. 44/2, Lansdowne Road. It is contended that in order to emphasise the additional contingency as regards this item, subjection to cl. (c) as regards these. premises, has been specifically incorporated in cl. 12(a). Now, it is to be noticed that the preliminary portion of cl. 12 shows that on the liquidation of the debts and after the death of the settlor, the trust shall come to an end and the properties in Lots I to IV are to devolve on Rajes. Clause 12 (c), therefore, would prima facie show that the contingency, if any, which arises by virtue of the obligation to provide alternative accommodation to Ramendra. or his heirs is to arise only after the death of the settlor and the discharge of the debts, which taken together means the termination of the trust. So understood and assuming for, the sake of argument that the obligation to provide alternative accommodation is by itself a contingency, this would bring about a contingent interest in premises No. 44/2, Lansdowne Road, in favour of Rajes, after the termination of the trust. It follows that this item of property would not be owned by anybody until that contingency disappears. This would result in this item of property remaining without any legal ownership for the intervening period which is opposed to law. Learned Solicitor-General, presumably recognising this difficulty, was obliged to urge that the contingency arising from the provision imposing obligation on Rajes and his heirs to provide alternative accommodation to Ramendra should be read into the preliminary portion of cl. 12 in so far as premises No. 44/2, Lansdowne Road, is concerned. This is to say, according to him, the trust is to be construed as not coming to an end as regard this item of property alone until the obligation to provide alternative accommodation is discharged. This construction would be doing great violence to the language of cl. 12 which specifically shows in peremptory terms that the trust "shall come to an end on the liquidation of all the debts of the settlor and after his death". The construction contended for is not justified by the phrase "subject to the provisions contained in cl. (c) hereof regarding premises No. 44/2, Lansdowne Road" which occurs in cl. (a) thereof. The limitation by way of subjection has reference only to "devolution" of the properties in Lots I to IV "absolutely". Neither the use of the word "devolution" nor of the word "absolutely" in cls. 12(a) and (c) can be understood, in the context, as having any bearing on the vesting of the interest as opposed to the interest being contingent, but only as indicating a full and unrestricted devolution of the property subject to no limitations as regards the enjoyment thereof, as opposed to a vesting and devolution subject to restricted enjoyment.16. It appears to us reasonably clear that the intention of the settlor, taking cls. 12 (a) and (c) together, is that as regards Lots I to IV, the beneficial interest of Rajes as regards all the properties comprised therein, including premises No. 44/2, Lansdowne Road, is vested in title but restricted in enjoyment so long as, the settlor is alive and the debts are not discharged, and that as regards premises No. 44/2, Lansdowne Road, his enjoyment is further restricted inasmuch as it is subject to the right of residence of Ramendra and his heirs in the said premises until the obligation to provide alternative accommodation is discharged by Rajes or his heirs.17. We are clearly of the opinion that the objection raised to the execution (1) on the ground that the properties charged are to be proceeded against, in the first instance, and (2) on the ground that the interest which Rajes gets under the trust deed either as regards the general properties covered by the deed or as regards premises No. 44/2, Lansdowne Read, is contingent, are untenable. If, as a fact, either the debts remain undischarged or the alternative accommodation has not so far been provided, how the rights of persons affected thereby are to be safeguarded is not a matter that arises for consideration before us and we express no opinion thereupon.
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in the property was made to depend on the event of the total discharge of the debts and that the discharge of the debts was contemplated as an uncertainis, therefore, necessary to consider the entire scheme of the deed of trust in the present case, having regard to the terms therein, and to gather the intentioncan be no reasonable doubt that the settlor did contemplate that, on a proper management of the property and with a scheme for the discharge of debts, there would emerge surplus income by the date of termination of trust. This appears from cl. 12(a) of the trust deed which specifically provides for the disposal of the surplus income of each lot which might accumulate during the continuance of the trust. It is, permissible, therefore to think that the surplus contemplated would not be unsubstantial. Under cl. 14 of the trust deed the settlor provides for the devolution of the trusteeship in case his sons, Rajes, died before the liquidation of the debts and says that on the death of Rajes, Rajess wife and Ramendra are to become joint trustees and that on the death of either of them the surviving trustee shall be the sole trustee. There is no provision for any further devolution of trusteeship in the contingency of such sole trustee also dying before the liquidation of the debts. The absence of any such provision may well be taken to indicate that, in the contemplation of the settlor, the debts would be discharged and the trust would come to an end, in any case, before the expiry of the three lives mentioned therein, i.e., Rajes, his wife and Ramendra. While, therefore, the settlor does appear to have attached considerable importance to the liquidation of debts, there is nothing to show that he was apprehensive that the debts would remain undischarged out of his properties and its income and that he contemplated the ultimate discharge of his debts to be such and uncertain event as to drive him to make the accrual of the interest to his sons under the deed to depend upon the event of the actual discharge of his debts. In this context there are also other provisions in the trust deed which are of great significance.Now, there can be no doubt about the rule that where the enjoyment of the property is postponed but the present income thereof is to be applied for the benefit of the donee the gift is vested and notarrangements taken together clearly indicate that what is postponed is not the very vesting of the property in the lots themselves but that the enjoyment of the income thereof is burdened with certain monthly payments and with the obligation to discharge debts therefrom notionally pro rata, all of which taken together constitute application of the income for hiseven so, this would make no practical difference. It is to be remembered that in this case the parties belong to the Dayabhaga school of Hindu Law- and this is admitted before us. It is also to be remembered that. up to the third degree in the male line the principle of representation under the Hindu Law operates. The net result of the provision, therefore, is that whenever the alleged contingency of discharge of debts may disappear the person on whom the interest would devolve would, in the normal course, be the very heir (lineal descendant then surviving or the widow) of Rajes. The actual devolution of the interest, therefore, would not be affected by the alleged contingency. This being so it is more reasonable to hold that the interest of Rajes under the deed is vested and not contingent.13. This view is confirmed by the fact that under the compromise decree which is now sought to be executed both the judgment-debtors, Rajes and Ramendra, created a charge for the monthly payment to Santi Debi and agreed to such charge being presently executable. This shows clearly that they themselves understood the interest available to them under the trust as a vested interest.14. In the course of the discussions before us a number of other possibilities which may arise with reference to the actual terms of the deed were closely examined with a view to test how far they fit in with one view or the other of the nature of interest in question. But even such an elaborate consideration of the possibilities did not throw any further light on the question at issue. We are therefore, of the opinion that in so far as the interest of Rajes is concerned in lots I to IV under the trust deed, it is vested and not contingent.It appears to us reasonably clear that the intention of the settlor, taking cls. 12 (a) and (c) together, is that as regards Lots I to IV, the beneficial interest of Rajes as regards all the properties comprised therein, including premises No. 44/2, Lansdowne Road, is vested in title but restricted in enjoyment so long as, the settlor is alive and the debts are not discharged, and that as regards premises No. 44/2, Lansdowne Road, his enjoyment is further restricted inasmuch as it is subject to the right of residence of Ramendra and his heirs in the said premises until the obligation to provide alternative accommodation is discharged by Rajes or his heirs.17. We are clearly of the opinion that the objection raised to the execution (1) on the ground that the properties charged are to be proceeded against, in the first instance, and (2) on the ground that the interest which Rajes gets under the trust deed either as regards the general properties covered by the deed or as regards premises No. 44/2, Lansdowne Read, is contingent, are untenable. If, as a fact, either the debts remain undischarged or the alternative accommodation has not so far been provided, how the rights of persons affected thereby are to be safeguarded is not a matter that arises for consideration before us and we express no opinion thereupon.
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Lilaben Udesing Gohel Vs. The Oriental Insurance Company Ltd | become liable to pay the amount of compensation is required to retain the amount with it. It is obliged to pay the same to the claimants periodically with interest at the rate of 15%. This is not the case in the guidelines laid down by the Honble Supreme Court. The guidelines laid down by the Honble Supreme Court requires that the amount of compensation should be deposited in the Tribunal. Thereafter, it is for the Tribunal to regulate disbursement and investment of the amount. Moreover, the guidelines laid down by the Honble Supreme Court take care of all types of cases, wherein even the insurance company may not have been held liable to make payment of the compensation; while, in the case of the guidelines laid down by Full Bench of this Court, the guidelines are silent in cases where the Insurance Company is not made liable to make payment of the amount of compensation and only the owner of the vehicle or the driver is made liable to pay the compensation.22. The guidelines issued by the Honble Supreme Court take care of the provisions of Section 168 (3) of the Motor Vehicles Act, 1988, while, as indicated hereinabove, attention of the Full Bench has not been drawn to the provisions of Section 168 (3) of the Act, which requires a person liable to make payment of the amount of compensation to deposit the amount of compensation with the Tribunal within thirty days from the date of announcement of the award.23. In the guidelines laid down by the Honble Supreme Court emphasis is to protect the interests of minor claimants and the interest of illiterate and semi-literate, as well as poor claimants. The guidelines laid down by the Honble Supreme Court also apply to literate and other claimants. But in such cases discretion is left with the Tribunal, indicating the circumstances and the manner in which the discretion may be exercised. While in the guidelines laid down by the Full Bench, it is difficult to read that any such discretion is left with the Tribunal. For the aforesaid reasons there is conflict between the guidelines laid down by the Honble Supreme Court in the case of Union Carbide Corporation (supra) and again in the case of General Manager, Kerala State Road transport Corporation (supra). Moreover, this conflict is irreconcilable inasmuch as it would be impossible to implement both the guidelines simultaneously." (See Jayantilal Ambalal Parma v. Gujarat State Road Transport Corporation and another, 1994 35(2) Gujarat Law Reporter 1308). 15. The five-Judge Bench concluded saying that the guidelines laid down by the Supreme Court as indicated above have to be followed by all the Motor Accident Claims Tribunals. Thus, the position in law as it stood before the decision rendered by the three-Judge Bench of the High Court stands restored.16. It may also be mentioned that before us both the General Insurance Corporation and the Life Insurance Corporation expressed their inability to work out and operate the annuity scheme proposed by the three-Judge Bench of the High Court and further expressed their inability to grant the proposed interest rate as it may conflict with Reserve Bank of India directives that may ensue from time to time. They too, therefore, expressed their inability to operate the scheme. Counsel for the Life Insurance Corporation clarified that when its counsel gave the consent before the three-Judge Bench, it did not visualise the various operational difficulties likely to arise in the implementation of the scheme proposed by the three-Judge Bench of the High Court. Thus, both the General Insurance Corporation and the Life Insurance Corporation feel that the said scheme is unworkable and fraught with several insurmountable difficulties. We too are of the view that the scheme may throw up many operational difficulties. However, now that the larger bench of the High Court has restored the original position, nothing more is required to be done. If any loopholes appear in the implementation of the guidelines laid down in Muljibhais case (1982 (23) 1 Guj LR 756), they can always be plugged consistently with the guidelines.17. Before we pare we must observe that even though the guidelines laid down in Muljibhais case (1982 (23) 1 Guj LR 756) have been approved and applied by this Court in the aforementioned two cases, many Motor Accidents Claims tribunals and even some of the High Courts in other parts of the country do not follow them. We are also told that in claims that are settled in or outside the Court or Tribunal, including Lok-Adalats or Lok Nyayalayas, these guidelines are overlooked. We would like to make it absolutely clear that in all cases in which compensation is awarded for injury caused in a motor accident, whether by way of adjudication or agreement between the parties, the Court/Tribunal must apply these guidelines. We must add one further guideline to the effect that when the amount is invested in a fixed deposit, the bank should invariably be directed to affix a note on the Fixed Deposit Receipt that no loan or advance should be granted on the strength of the said FDR without the express permission of the Court/Tribunal which ordered the deposit. This will eliminate the practise of taking loans which may be upto 80% of the amount invested and thereby defeating the very purpose of the order. We do hope that the Courts/Tribunals in the country will not succumb to the temptation of permitting huge withdrawals in the hope of disposing of the claims. We are sure that the Courts/Tribunals will realise their duty towards the victims of the accident so that a large part of the compensation amount is not lost to them. The very purpose of laying down the guidelines was to ensure the safety of the amount so that the claimants do not become victims of unscrupulous persons and unethical agreements or arrangements. We do hope our anxiety to protect the claimants from exploitation by such elements will be equally shared by the Courts/Tribunals. | 1[ds]9. One can easily notice the major shift in ideas in the impugned judgment. The thrust in the impugned judgment is on the concept of annuity so as to ensure periodic payment of a fixed amount and to prevent the awarded sum in lump sum falling into the hands of the claimant as long as possible. In order to ensure the periodic payment, which according to the judgment should be quarterly interest calculated at the rate of 15% on the total compensation amount, the insurance company itself has been made liable to make the necessary investment either in its own business or in the business of the General Insurance Corporation or that of the Life Insurance Corporation. The impugned judgment has shown further caution for minors who should wait till they are at least 21 and in any case for 10 years from the date of the award. It can be seen that the periodic payment is insisted upon for all claimants irrespective of their capacity to take care of large sums of money. Further, the arrangement described above was insisted upon also for payment of the small amount that is generally available on no-fault liability primarily to meet the immediate needs of the victims/heirs.10. The minimum waiting period for 10 years before the claimant could be entitled to receive the compensation money awarded has been challenged as having the effect of depriving the claimant of his right to compensation. Such a procedure is said to be arbitrary and unreasonable and hence violative of fundamental rights under Article 14 and right to property under Article 300 A of the Constitution. Entrusting the capital amount to the insurance company had also been opposed. In the first place insurance companies having already contested the claim petition tooth and nail are likely to have lost the confidence of the claimants. In the second place, the nationalised status of the insurance company may or may not continue in future when it may become difficult to assume that the corpus can be safely left with them. The inflexibility of the rule, it is said, is likely to cause hardships in individual cases particularly when the claimant would be needing the amount for reimbursement of the medical expenses as well as other expenses incidental thereto. It is further said that those who are literate and wise should be given the charge of the compensation amount at the very outset because they may invest the amount in a more profitable way than what is suggested by the Court. The payment of lump sum is also favoured by the appellants as the amount may help the victim/injured or the heir of the deceased in making arrangement for a self-employing establishment which may be a better arrangement than receiving a fixed annuity periodically. So far as the minors are concerned detaining the payment till the claimant reaches the age of 21 years or at least for a minimum period of 10 years would amount, in particular cases, to detain the money till the claimant reaches the age of nearly 30 years. This again is challenged as unreasonable. Further they say that compensation amount is calculated on the basis of the multiplier method in which one-third of the expected loss of estate is deducted and therefore unless the compensation so awarded is paid in lump sum the interest alone will be illusory. Further according to them the amount of time lost in litigation will never be compensated if the victims are to receive only the interest amount.The five-Judge Bench concluded saying that the guidelines laid down by the Supreme Court as indicated above have to be followed by all the Motor Accident Claims Tribunals. Thus, the position in law as it stood before the decision rendered by the three-Judge Bench of the High Court stands restored.16. It may also be mentioned that before us both the General Insurance Corporation and the Life Insurance Corporation expressed their inability to work out and operate the annuity scheme proposed by the three-Judge Bench of the High Court and further expressed their inability to grant the proposed interest rate as it may conflict with Reserve Bank of India directives that may ensue from time to time. They too, therefore, expressed their inability to operate the scheme. Counsel for the Life Insurance Corporation clarified that when its counsel gave the consent before the three-Judge Bench, it did not visualise the various operational difficulties likely to arise in the implementation of the scheme proposed by the three-Judge Bench of the High Court. Thus, both the General Insurance Corporation and the Life Insurance Corporation feel that the said scheme is unworkable and fraught with several insurmountable difficulties. We too are of the view that the scheme may throw up many operational difficulties. However, now that the larger bench of the High Court has restored the original position, nothing more is required to be done. If any loopholes appear in the implementation of the guidelines laid down in Muljibhais case (1982 (23) 1 Guj LR 756), they can always be plugged consistently with the guidelines.17. Before we pare we must observe that even though the guidelines laid down in Muljibhais case (1982 (23) 1 Guj LR 756) have been approved and applied by this Court in the aforementioned two cases, many Motor Accidents Claims tribunals and even some of the High Courts in other parts of the country do not follow them. We are also told that in claims that are settled in or outside the Court or Tribunal, including Lok-Adalats or Lok Nyayalayas, these guidelines are overlooked. We would like to make it absolutely clear that in all cases in which compensation is awarded for injury caused in a motor accident, whether by way of adjudication or agreement between the parties, the Court/Tribunal must apply these guidelines. We must add one further guideline to the effect that when the amount is invested in a fixed deposit, the bank should invariably be directed to affix a note on the Fixed Deposit Receipt that no loan or advance should be granted on the strength of the said FDR without the express permission of the Court/Tribunal which ordered the deposit. This will eliminate the practise of taking loans which may be upto 80% of the amount invested and thereby defeating the very purpose of the order. We do hope that the Courts/Tribunals in the country will not succumb to the temptation of permitting huge withdrawals in the hope of disposing of the claims. We are sure that the Courts/Tribunals will realise their duty towards the victims of the accident so that a large part of the compensation amount is not lost to them. The very purpose of laying down the guidelines was to ensure the safety of the amount so that the claimants do not become victims of unscrupulous persons and unethical agreements or arrangements. We do hope our anxiety to protect the claimants from exploitation by such elements will be equally shared by the Courts/Tribunals. | 1 | 5,010 | 1,238 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
become liable to pay the amount of compensation is required to retain the amount with it. It is obliged to pay the same to the claimants periodically with interest at the rate of 15%. This is not the case in the guidelines laid down by the Honble Supreme Court. The guidelines laid down by the Honble Supreme Court requires that the amount of compensation should be deposited in the Tribunal. Thereafter, it is for the Tribunal to regulate disbursement and investment of the amount. Moreover, the guidelines laid down by the Honble Supreme Court take care of all types of cases, wherein even the insurance company may not have been held liable to make payment of the compensation; while, in the case of the guidelines laid down by Full Bench of this Court, the guidelines are silent in cases where the Insurance Company is not made liable to make payment of the amount of compensation and only the owner of the vehicle or the driver is made liable to pay the compensation.22. The guidelines issued by the Honble Supreme Court take care of the provisions of Section 168 (3) of the Motor Vehicles Act, 1988, while, as indicated hereinabove, attention of the Full Bench has not been drawn to the provisions of Section 168 (3) of the Act, which requires a person liable to make payment of the amount of compensation to deposit the amount of compensation with the Tribunal within thirty days from the date of announcement of the award.23. In the guidelines laid down by the Honble Supreme Court emphasis is to protect the interests of minor claimants and the interest of illiterate and semi-literate, as well as poor claimants. The guidelines laid down by the Honble Supreme Court also apply to literate and other claimants. But in such cases discretion is left with the Tribunal, indicating the circumstances and the manner in which the discretion may be exercised. While in the guidelines laid down by the Full Bench, it is difficult to read that any such discretion is left with the Tribunal. For the aforesaid reasons there is conflict between the guidelines laid down by the Honble Supreme Court in the case of Union Carbide Corporation (supra) and again in the case of General Manager, Kerala State Road transport Corporation (supra). Moreover, this conflict is irreconcilable inasmuch as it would be impossible to implement both the guidelines simultaneously." (See Jayantilal Ambalal Parma v. Gujarat State Road Transport Corporation and another, 1994 35(2) Gujarat Law Reporter 1308). 15. The five-Judge Bench concluded saying that the guidelines laid down by the Supreme Court as indicated above have to be followed by all the Motor Accident Claims Tribunals. Thus, the position in law as it stood before the decision rendered by the three-Judge Bench of the High Court stands restored.16. It may also be mentioned that before us both the General Insurance Corporation and the Life Insurance Corporation expressed their inability to work out and operate the annuity scheme proposed by the three-Judge Bench of the High Court and further expressed their inability to grant the proposed interest rate as it may conflict with Reserve Bank of India directives that may ensue from time to time. They too, therefore, expressed their inability to operate the scheme. Counsel for the Life Insurance Corporation clarified that when its counsel gave the consent before the three-Judge Bench, it did not visualise the various operational difficulties likely to arise in the implementation of the scheme proposed by the three-Judge Bench of the High Court. Thus, both the General Insurance Corporation and the Life Insurance Corporation feel that the said scheme is unworkable and fraught with several insurmountable difficulties. We too are of the view that the scheme may throw up many operational difficulties. However, now that the larger bench of the High Court has restored the original position, nothing more is required to be done. If any loopholes appear in the implementation of the guidelines laid down in Muljibhais case (1982 (23) 1 Guj LR 756), they can always be plugged consistently with the guidelines.17. Before we pare we must observe that even though the guidelines laid down in Muljibhais case (1982 (23) 1 Guj LR 756) have been approved and applied by this Court in the aforementioned two cases, many Motor Accidents Claims tribunals and even some of the High Courts in other parts of the country do not follow them. We are also told that in claims that are settled in or outside the Court or Tribunal, including Lok-Adalats or Lok Nyayalayas, these guidelines are overlooked. We would like to make it absolutely clear that in all cases in which compensation is awarded for injury caused in a motor accident, whether by way of adjudication or agreement between the parties, the Court/Tribunal must apply these guidelines. We must add one further guideline to the effect that when the amount is invested in a fixed deposit, the bank should invariably be directed to affix a note on the Fixed Deposit Receipt that no loan or advance should be granted on the strength of the said FDR without the express permission of the Court/Tribunal which ordered the deposit. This will eliminate the practise of taking loans which may be upto 80% of the amount invested and thereby defeating the very purpose of the order. We do hope that the Courts/Tribunals in the country will not succumb to the temptation of permitting huge withdrawals in the hope of disposing of the claims. We are sure that the Courts/Tribunals will realise their duty towards the victims of the accident so that a large part of the compensation amount is not lost to them. The very purpose of laying down the guidelines was to ensure the safety of the amount so that the claimants do not become victims of unscrupulous persons and unethical agreements or arrangements. We do hope our anxiety to protect the claimants from exploitation by such elements will be equally shared by the Courts/Tribunals.
### Response:
1
### Explanation:
to take care of large sums of money. Further, the arrangement described above was insisted upon also for payment of the small amount that is generally available on no-fault liability primarily to meet the immediate needs of the victims/heirs.10. The minimum waiting period for 10 years before the claimant could be entitled to receive the compensation money awarded has been challenged as having the effect of depriving the claimant of his right to compensation. Such a procedure is said to be arbitrary and unreasonable and hence violative of fundamental rights under Article 14 and right to property under Article 300 A of the Constitution. Entrusting the capital amount to the insurance company had also been opposed. In the first place insurance companies having already contested the claim petition tooth and nail are likely to have lost the confidence of the claimants. In the second place, the nationalised status of the insurance company may or may not continue in future when it may become difficult to assume that the corpus can be safely left with them. The inflexibility of the rule, it is said, is likely to cause hardships in individual cases particularly when the claimant would be needing the amount for reimbursement of the medical expenses as well as other expenses incidental thereto. It is further said that those who are literate and wise should be given the charge of the compensation amount at the very outset because they may invest the amount in a more profitable way than what is suggested by the Court. The payment of lump sum is also favoured by the appellants as the amount may help the victim/injured or the heir of the deceased in making arrangement for a self-employing establishment which may be a better arrangement than receiving a fixed annuity periodically. So far as the minors are concerned detaining the payment till the claimant reaches the age of 21 years or at least for a minimum period of 10 years would amount, in particular cases, to detain the money till the claimant reaches the age of nearly 30 years. This again is challenged as unreasonable. Further they say that compensation amount is calculated on the basis of the multiplier method in which one-third of the expected loss of estate is deducted and therefore unless the compensation so awarded is paid in lump sum the interest alone will be illusory. Further according to them the amount of time lost in litigation will never be compensated if the victims are to receive only the interest amount.The five-Judge Bench concluded saying that the guidelines laid down by the Supreme Court as indicated above have to be followed by all the Motor Accident Claims Tribunals. Thus, the position in law as it stood before the decision rendered by the three-Judge Bench of the High Court stands restored.16. It may also be mentioned that before us both the General Insurance Corporation and the Life Insurance Corporation expressed their inability to work out and operate the annuity scheme proposed by the three-Judge Bench of the High Court and further expressed their inability to grant the proposed interest rate as it may conflict with Reserve Bank of India directives that may ensue from time to time. They too, therefore, expressed their inability to operate the scheme. Counsel for the Life Insurance Corporation clarified that when its counsel gave the consent before the three-Judge Bench, it did not visualise the various operational difficulties likely to arise in the implementation of the scheme proposed by the three-Judge Bench of the High Court. Thus, both the General Insurance Corporation and the Life Insurance Corporation feel that the said scheme is unworkable and fraught with several insurmountable difficulties. We too are of the view that the scheme may throw up many operational difficulties. However, now that the larger bench of the High Court has restored the original position, nothing more is required to be done. If any loopholes appear in the implementation of the guidelines laid down in Muljibhais case (1982 (23) 1 Guj LR 756), they can always be plugged consistently with the guidelines.17. Before we pare we must observe that even though the guidelines laid down in Muljibhais case (1982 (23) 1 Guj LR 756) have been approved and applied by this Court in the aforementioned two cases, many Motor Accidents Claims tribunals and even some of the High Courts in other parts of the country do not follow them. We are also told that in claims that are settled in or outside the Court or Tribunal, including Lok-Adalats or Lok Nyayalayas, these guidelines are overlooked. We would like to make it absolutely clear that in all cases in which compensation is awarded for injury caused in a motor accident, whether by way of adjudication or agreement between the parties, the Court/Tribunal must apply these guidelines. We must add one further guideline to the effect that when the amount is invested in a fixed deposit, the bank should invariably be directed to affix a note on the Fixed Deposit Receipt that no loan or advance should be granted on the strength of the said FDR without the express permission of the Court/Tribunal which ordered the deposit. This will eliminate the practise of taking loans which may be upto 80% of the amount invested and thereby defeating the very purpose of the order. We do hope that the Courts/Tribunals in the country will not succumb to the temptation of permitting huge withdrawals in the hope of disposing of the claims. We are sure that the Courts/Tribunals will realise their duty towards the victims of the accident so that a large part of the compensation amount is not lost to them. The very purpose of laying down the guidelines was to ensure the safety of the amount so that the claimants do not become victims of unscrupulous persons and unethical agreements or arrangements. We do hope our anxiety to protect the claimants from exploitation by such elements will be equally shared by the Courts/Tribunals.
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Prithi Nath Singh And Others Vs. Suraj Ahir And Others | mortgagee, at the date of decree for principal and interest on the mortgage and other matters. Rule 9 provides that if on such accounting, any sum be found due to mortgagor, the decree would direct the mortgagee to pay such amount to the mortgagor. If the mortgage money due has been already paid by the mortgagor and has been accepted by the mortgagee in full discharge of the mortgage deed, no occasion for such accounting arises and therefore any suit to enforce the return of the mortgage deed and to get back the possession of the mortgaged property cannot be a suit for redemption.9. What Subba Raos case, 1949 FCR 484: (AIR 1950 FC 1) referred to by learned counsel for the respondents, lays down is simply this that right of redemption continues so long as the mortgage is alive. The case does not deal with the circumstances in which the mortgage ceases to exist. The following observations at p. 498 (of FCR): (at p. 7 of AIR) support, by implication, the view taken by us:"The document passed in favour of the wife of the mortgagor can be described as a reward promised to her for bringing about the willingness of her husband to agree to convey the mortgaged lands to the mortgagees. That can in no event be considered as extinguishing the equity of redemption. The mortgagor was not even a party to that document. The second document executed by the mortgagor is an agreement to convey the lands after three months. There is however no document or evidence to show that the mortgagees agreed to accept these lands in full satisfaction of their claims or promised to pay the sum of Rs. 100 mentioned therein. This was only an agreement to convey the lands after three months, and if at all the question of extinction of the equity of redemption could arise on the conveyance being executed but not before."10. There are other cases also which throw a light on this question and go against the contention of the respondents.11. In Samar Ali v. Karim-ul-lah, ILR 8 All 402 at p. 405 it was said:"Now, as I have said, the contract of mortgage in the present case being subject to the provisions of the Regulation, the charge would have been redeemed as soon as the principal mortgage money with twelve per cent interest had been realised by the mortgagee from the profits of the property".12. In Muhammad Mahmud Ali v. Kalyan Das, ILR 18 All 189 at p. 192 it was said:"It cannot be disputed that the right of redemption presupposes the existence of a mortgage on certain property which at the time of redemption is security for the money due to the mortgagee. It therefore follows that the only property which a second or other subsequent mortgagee may redeem is the property on which the first mortgagee is entitled to enforce his security. From the very necessity of things the right of redemption can be exercised in respect of such property only as is subject to a mortgage capable of enforcement."There can be nothing for enforcing a mortgage when the money has been paid up and therefore the right to redeem ceases on payment of the mortgage money.13. In Balkrishna v. Rangnath, ILR (1950) Nag 613 at p. 621: (AIR 1951 Nag 171 at p. 173) it was said:"Now the right to redeem can only be extinguished by act of parties or by a decree of a Court. (See the proviso to S. 60 of the Transfer of Property Act.) But when it is by act of parties the act must take the shape and observe the formalities which the law prescribes. One method is by payment in cash. In that event nothing is necessary beyond the payment."14. In Ramprasad v. Bishambhar Singh AIR 1946 All 400 the question formulated for determination was whether the suit being a suit to recover possession of the mortgaged property after the mortgage money had been paid off was a suit against the mortgagee to redeem or to recover possession of immovable property mortgaged. Braund 1., said, at p. 402:"Now, it is quite obvious that section (S. 60 of the Transfer of Property Act) can only refer to a case in which a mortgagor under a subsisting mortgage approaches the Court to establish his right to redeem and to have that redemption carried out by the process of the various declarations and orders of the Court by which it effects redemption. In other words, S. 60 contemplates a case in which the mortgage is still subsisting and the mortgagor goes to the Court to obtain the return of his property on repayment of what is still due. Section 52 on the other hand, is in marked contrast to S. 60. Section 62 says that in the case of a usufructuary mortgage the mortgagor has a right to recover possession of the property when (in a case in which the mortgagee is authorized to pay himself the mortgage money out of the rents and profits of the property) the principal money is paid off. As we see it, that is not a case of redemption at all. At the moment when the rents and profits of the mortgaged property sufficed to discharge the principal secured by the mortgage, the mortgage came to an end and the correlative right arose in the mortgagor to recover possession of the property. The framers of the Transfer of Property Act have clearly recognised the distinction between the procedure which follows a mortgagors desire to redeem a subsisting mortgage and the procedure which follows the arising of a usufructuary mortgagors right to get his property back after the principal has been paid off."15. We therefore hold that the mortgage was not subsisting on the date of vesting, it having come to an end on payment of the mortgage money in 1943, and that the respondents cannot get the advantage of S. 6 (1) (c) of the Act. | 0[ds]When the mortgage money is paid by the mortgagor to the mortgagee, there does not remain any debt due from the mortgagor to the mortgagee, and therefore the mortgage can no longer continue after the mortgage money has been paid. The transfer of interest represented by the mortgage was for a certain purpose, and that was to secure payment of money advanced by way of loan. A security cannot exist after the loan had been paid up. If any interest in the property continues to vest in the mortgagee subsequent to the payment of the mortgage money to him, it would be an interest different from that of a mortgagees interest. The mortgage as a transfer of an interest in immovable property for the purpose of securing payment of money advanced by way of loan must come to an end on the payment of the mortgage money.5. Further, the definition of usufructuary mortgage itself leads to the conclusion that the authority given to the mortgagee to remain in possession of the mortgaged property ceases when the mortgage money has been paid up.The usufructuary mortgage, by the terms of its definition, authorises the mortgagee to retain possession only until payment of the mortgage money, and to appropriate the rents and profits collected by him in lieu of interest or in payment of the mortgage money, or partly in lieu of interest or partly in lieu of payment of the mortgage money. When the mortgage money has been paid up, no question of appropriating the rents and profits accruing from the property towards interest or mortgage money can arise.It is clear therefore that on the payment of the mortgage money by the mortgagor to the mortgagee the mortgage comes to an end and the right of the mortgagee to remain in possession also comes to anright entitles the mortgagor, on his paying or tendering to the mortgagee the mortgage money to ask him (i) to deliver to him the mortgage deed and other documents relating to the mortgaged property; (ii) to deliver possession to the mortgagor if the mortgagee is in possession; and (iii) to retransfer the mortgaged property in accordance with the desire of the mortgagor. If the mortgagee receives the money and does not perform any of the three acts required of him to be done, the question arises whether this non-compliance with the demands will make the mortgage continue. The provisions of the section do not say so and there appears no good reason why the mortgage should continue. If the mortgagee is not to perform these acts the mortgagor is not to pay the amount. If, however the mortgage money has been received by the mortgagee and thereafter he refuses to perform the acts he is bound to do, the mortgagor can enforce his right to get back the mortgage document, the possession of the mortgaged property and the reconveyance of that property through Court. A new right to get his demands enforced through the Court thus arises as a result of the provisions of S. 60 of the Act.8. If the mortgage money has been paid and then the mortgagor goes to Court to enforce his demands, that would not be to enforce his right to redemption which was really his right to make those demands on payment of the mortgage money. The right to demand the mortgagee to do certain things on payment of the mortgage money is different from enforcing the demands subsequent to the payment of the money.This is also clear from the decree for redemption. Order XXXIV, R. 7. C.P.C. provides for the preliminary decree in a redemption suit and the preliminary decree is to order that the account be taken of what was due to the defendant, viz., the mortgagee, at the date of decree for principal and interest on the mortgage and other matters. Rule 9 provides that if on such accounting, any sum be found due to mortgagor, the decree would direct the mortgagee to pay such amount to the mortgagor. If the mortgage money due has been already paid by the mortgagor and has been accepted by the mortgagee in full discharge of the mortgage deed, no occasion for such accounting arises and therefore any suit to enforce the return of the mortgage deed and to get back the possession of the mortgaged property cannot be a suit forWe therefore hold that the mortgage was not subsisting on the date of vesting, it having come to an end on payment of the mortgage money in 1943, and that the respondents cannot get the advantage of S. 6 (1) (c) of the Act. | 0 | 2,668 | 836 | ### 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:
mortgagee, at the date of decree for principal and interest on the mortgage and other matters. Rule 9 provides that if on such accounting, any sum be found due to mortgagor, the decree would direct the mortgagee to pay such amount to the mortgagor. If the mortgage money due has been already paid by the mortgagor and has been accepted by the mortgagee in full discharge of the mortgage deed, no occasion for such accounting arises and therefore any suit to enforce the return of the mortgage deed and to get back the possession of the mortgaged property cannot be a suit for redemption.9. What Subba Raos case, 1949 FCR 484: (AIR 1950 FC 1) referred to by learned counsel for the respondents, lays down is simply this that right of redemption continues so long as the mortgage is alive. The case does not deal with the circumstances in which the mortgage ceases to exist. The following observations at p. 498 (of FCR): (at p. 7 of AIR) support, by implication, the view taken by us:"The document passed in favour of the wife of the mortgagor can be described as a reward promised to her for bringing about the willingness of her husband to agree to convey the mortgaged lands to the mortgagees. That can in no event be considered as extinguishing the equity of redemption. The mortgagor was not even a party to that document. The second document executed by the mortgagor is an agreement to convey the lands after three months. There is however no document or evidence to show that the mortgagees agreed to accept these lands in full satisfaction of their claims or promised to pay the sum of Rs. 100 mentioned therein. This was only an agreement to convey the lands after three months, and if at all the question of extinction of the equity of redemption could arise on the conveyance being executed but not before."10. There are other cases also which throw a light on this question and go against the contention of the respondents.11. In Samar Ali v. Karim-ul-lah, ILR 8 All 402 at p. 405 it was said:"Now, as I have said, the contract of mortgage in the present case being subject to the provisions of the Regulation, the charge would have been redeemed as soon as the principal mortgage money with twelve per cent interest had been realised by the mortgagee from the profits of the property".12. In Muhammad Mahmud Ali v. Kalyan Das, ILR 18 All 189 at p. 192 it was said:"It cannot be disputed that the right of redemption presupposes the existence of a mortgage on certain property which at the time of redemption is security for the money due to the mortgagee. It therefore follows that the only property which a second or other subsequent mortgagee may redeem is the property on which the first mortgagee is entitled to enforce his security. From the very necessity of things the right of redemption can be exercised in respect of such property only as is subject to a mortgage capable of enforcement."There can be nothing for enforcing a mortgage when the money has been paid up and therefore the right to redeem ceases on payment of the mortgage money.13. In Balkrishna v. Rangnath, ILR (1950) Nag 613 at p. 621: (AIR 1951 Nag 171 at p. 173) it was said:"Now the right to redeem can only be extinguished by act of parties or by a decree of a Court. (See the proviso to S. 60 of the Transfer of Property Act.) But when it is by act of parties the act must take the shape and observe the formalities which the law prescribes. One method is by payment in cash. In that event nothing is necessary beyond the payment."14. In Ramprasad v. Bishambhar Singh AIR 1946 All 400 the question formulated for determination was whether the suit being a suit to recover possession of the mortgaged property after the mortgage money had been paid off was a suit against the mortgagee to redeem or to recover possession of immovable property mortgaged. Braund 1., said, at p. 402:"Now, it is quite obvious that section (S. 60 of the Transfer of Property Act) can only refer to a case in which a mortgagor under a subsisting mortgage approaches the Court to establish his right to redeem and to have that redemption carried out by the process of the various declarations and orders of the Court by which it effects redemption. In other words, S. 60 contemplates a case in which the mortgage is still subsisting and the mortgagor goes to the Court to obtain the return of his property on repayment of what is still due. Section 52 on the other hand, is in marked contrast to S. 60. Section 62 says that in the case of a usufructuary mortgage the mortgagor has a right to recover possession of the property when (in a case in which the mortgagee is authorized to pay himself the mortgage money out of the rents and profits of the property) the principal money is paid off. As we see it, that is not a case of redemption at all. At the moment when the rents and profits of the mortgaged property sufficed to discharge the principal secured by the mortgage, the mortgage came to an end and the correlative right arose in the mortgagor to recover possession of the property. The framers of the Transfer of Property Act have clearly recognised the distinction between the procedure which follows a mortgagors desire to redeem a subsisting mortgage and the procedure which follows the arising of a usufructuary mortgagors right to get his property back after the principal has been paid off."15. We therefore hold that the mortgage was not subsisting on the date of vesting, it having come to an end on payment of the mortgage money in 1943, and that the respondents cannot get the advantage of S. 6 (1) (c) of the Act.
### Response:
0
### Explanation:
When the mortgage money is paid by the mortgagor to the mortgagee, there does not remain any debt due from the mortgagor to the mortgagee, and therefore the mortgage can no longer continue after the mortgage money has been paid. The transfer of interest represented by the mortgage was for a certain purpose, and that was to secure payment of money advanced by way of loan. A security cannot exist after the loan had been paid up. If any interest in the property continues to vest in the mortgagee subsequent to the payment of the mortgage money to him, it would be an interest different from that of a mortgagees interest. The mortgage as a transfer of an interest in immovable property for the purpose of securing payment of money advanced by way of loan must come to an end on the payment of the mortgage money.5. Further, the definition of usufructuary mortgage itself leads to the conclusion that the authority given to the mortgagee to remain in possession of the mortgaged property ceases when the mortgage money has been paid up.The usufructuary mortgage, by the terms of its definition, authorises the mortgagee to retain possession only until payment of the mortgage money, and to appropriate the rents and profits collected by him in lieu of interest or in payment of the mortgage money, or partly in lieu of interest or partly in lieu of payment of the mortgage money. When the mortgage money has been paid up, no question of appropriating the rents and profits accruing from the property towards interest or mortgage money can arise.It is clear therefore that on the payment of the mortgage money by the mortgagor to the mortgagee the mortgage comes to an end and the right of the mortgagee to remain in possession also comes to anright entitles the mortgagor, on his paying or tendering to the mortgagee the mortgage money to ask him (i) to deliver to him the mortgage deed and other documents relating to the mortgaged property; (ii) to deliver possession to the mortgagor if the mortgagee is in possession; and (iii) to retransfer the mortgaged property in accordance with the desire of the mortgagor. If the mortgagee receives the money and does not perform any of the three acts required of him to be done, the question arises whether this non-compliance with the demands will make the mortgage continue. The provisions of the section do not say so and there appears no good reason why the mortgage should continue. If the mortgagee is not to perform these acts the mortgagor is not to pay the amount. If, however the mortgage money has been received by the mortgagee and thereafter he refuses to perform the acts he is bound to do, the mortgagor can enforce his right to get back the mortgage document, the possession of the mortgaged property and the reconveyance of that property through Court. A new right to get his demands enforced through the Court thus arises as a result of the provisions of S. 60 of the Act.8. If the mortgage money has been paid and then the mortgagor goes to Court to enforce his demands, that would not be to enforce his right to redemption which was really his right to make those demands on payment of the mortgage money. The right to demand the mortgagee to do certain things on payment of the mortgage money is different from enforcing the demands subsequent to the payment of the money.This is also clear from the decree for redemption. Order XXXIV, R. 7. C.P.C. provides for the preliminary decree in a redemption suit and the preliminary decree is to order that the account be taken of what was due to the defendant, viz., the mortgagee, at the date of decree for principal and interest on the mortgage and other matters. Rule 9 provides that if on such accounting, any sum be found due to mortgagor, the decree would direct the mortgagee to pay such amount to the mortgagor. If the mortgage money due has been already paid by the mortgagor and has been accepted by the mortgagee in full discharge of the mortgage deed, no occasion for such accounting arises and therefore any suit to enforce the return of the mortgage deed and to get back the possession of the mortgaged property cannot be a suit forWe therefore hold that the mortgage was not subsisting on the date of vesting, it having come to an end on payment of the mortgage money in 1943, and that the respondents cannot get the advantage of S. 6 (1) (c) of the Act.
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Registrar General Vs. Jayshree Chamanlal Buddhbhatti | without there being any requisition from the court of the Chief Judicial Magistrate. This Court noted that if such resolutions are passed, it will be difficult for the judicial officers to perform their function in an objective and unbiased manner. This Court was constrained to observe that the High Court had failed to protect the appellant. What had distressed this Court was that the High Court, instead of protecting the appellant had taken into account the unjustified allegation made by the bar, while assessing the work and conduct leading to discontinuation of his probation services. The same appears to be the situation in the present case. 30. Shashikant Patil (supra) was altogether a different case. That was a matter where a full-fledged departmental inquiry was conducted against the respondent. It is true that the inquiry report had exonerated the respondent, and the disciplinary committee had reversed that decision. The High Court on the judicial side had interfered with the decision of the disciplinary committee. It is this decision of the High Court which came to be upturned in this case, and it was in this context that this Court observed: “when such a constitutional function was exercised by the administrative side of the High Court, any judicial review thereon should have been made not only with great care and circumspection, but confining strictly to the parameters set by this Court.” The present case can not be said to be one where the High Court on judicial side has erred as in Shashikant Patil (supra) in exercising its powers as claimed by the appellants. 31. As held by this Court time and again, it is the responsibility of the High Court to protect honest judicial officers. As the facts in this case indicate, apart from the fact that no opportunity was afforded to the respondent, even the material placed on record did not establish any such aspect which would lead to a conclusion of unsuitability. The disposal of the respondent was very good, and the complaints by the subordinate staff were clearly motivated. There was no involvement of the respondent in the suicide by the wife of Shri N.P. Thakker, and all that the High Court administration could lay hand on was the telephonic conversations which the respondent had with Mr. Thakker. The inference of unsuitability drawn by the High Court administration was therefore totally uncalled for. The impugned judgment setting aside the termination order dated 14th December 2007 issued on the ground of unsuitability is, therefore, fully justified. 32. One of the submissions which was advanced on behalf of the appellants was that, in such a situation the High Court, on its judicial side, ought to have given a further opportunity to the High Court administration to conduct a further inquiry against the respondent. In our view, keeping in mind the material on record, such a further exercise was not called for, and in any case certainly no more. The services of the respondent have been terminated way back in 2007. Six long years have gone thereafter, and for no fault of hers, the respondent has suffered. Directing any further inquiry would add salt to the injury. The conclusion arrived at by the High Court administration that the performance of the respondent was not good and satisfactory, and that she was not suitable for the post she was holding was on the face of it for extraneous reasons. Consequently with a view to do complete justice, the Respondent will have to be held as having completed her probation satisfactorily, and that she was entitled to continue in the post that she was holding. 33. We may however, note that in spite of this position, Mr. R.P. Bhatt, learned senior counsel appearing for the respondent has stated that though the decision of the High Court administration has seriously affected her personal life, the respondent is basically interested in vindicating her position. He has, therefore, fairly made a statement, on instructions, that the respondent is confining her prayer for backwages to the period subsequent to her being vindicated by the judgment of the High Court, dated 15.5.2009 pronouncing that the termination of her services was unjustified, and bad in law. 34. Before we conclude, we must once again reflect on the facts that have emerged in the present case. As noted earlier, the respondent was a candidate who had obtained a high rank in the selection for the judicial service, and was given an independent posting in a rural area, where she was living all alone. Her disposal of cases had been very good to say the least. The complaints made by her, regarding the misbehaviour of the staff, and the harassment to her by a section of the bar, were not heeded by the then District Judge, leave aside making an attempt to understand the difficulties faced by her. Instead, certain unjustified adverse remarks were made against her. Subsequently, the then District Judge conducted the preliminary inquiry against her, in his capacity as the vigilance officer, wherein without any justification he tried to connect her with the death of the wife of another judicial officer. It is the duty of the District Judge and also of the High Court to protect the judicial officers against unjustified allegations. However, what we find in the present case is that instead of doing the same, an investigation was conducted against the respondent without affording her any opportunity, though it contained allegations against her character, and the investigation was sought to be justified as determination of her suitability for the post which she was holding. We would like to take this opportunity to emphasise that the High Courts must see to it that the hostile work environment for junior judicial officers, particularly the lady officers, is eliminated. This is necessary to encourage the young officers to put in good judicial work without fear or favour. We are constrained to say that in the present case the High Court administration has clearly failed in this behalf. | 0[ds]we must once again reflect on the facts that have emerged in the present case. As noted earlier, the respondent was a candidate who had obtained a high rank in the selection for the judicial service, and was given an independent posting in a rural area, where she was living all alone. Her disposal of cases had been very good to say the least. The complaints made by her, regarding the misbehaviour of the staff, and the harassment to her by a section of the bar, were not heeded by the then District Judge, leave aside making an attempt to understand the difficulties faced by her. Instead, certain unjustified adverse remarks were made against her. Subsequently, the then District Judge conducted the preliminary inquiry against her, in his capacity as the vigilance officer, wherein without any justification he tried to connect her with the death of the wife of another judicial officer. It is the duty of the District Judge and also of the High Court to protect the judicial officers against unjustified allegations. However, what we find in the present case is that instead of doing the same, an investigation was conducted against the respondent without affording her any opportunity, though it contained allegations against her character, and the investigation was sought to be justified as determination of her suitability for the post which she was holding. We would like to take this opportunity to emphasise that the High Courts must see to it that the hostile work environment for junior judicial officers, particularly the lady officers, is eliminated. This is necessary to encourage the young officers to put in good judicial work without fear or favour. We are constrained to say that in the present case the High Court administration has clearly failed in this behalf. | 0 | 8,594 | 330 | ### 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:
without there being any requisition from the court of the Chief Judicial Magistrate. This Court noted that if such resolutions are passed, it will be difficult for the judicial officers to perform their function in an objective and unbiased manner. This Court was constrained to observe that the High Court had failed to protect the appellant. What had distressed this Court was that the High Court, instead of protecting the appellant had taken into account the unjustified allegation made by the bar, while assessing the work and conduct leading to discontinuation of his probation services. The same appears to be the situation in the present case. 30. Shashikant Patil (supra) was altogether a different case. That was a matter where a full-fledged departmental inquiry was conducted against the respondent. It is true that the inquiry report had exonerated the respondent, and the disciplinary committee had reversed that decision. The High Court on the judicial side had interfered with the decision of the disciplinary committee. It is this decision of the High Court which came to be upturned in this case, and it was in this context that this Court observed: “when such a constitutional function was exercised by the administrative side of the High Court, any judicial review thereon should have been made not only with great care and circumspection, but confining strictly to the parameters set by this Court.” The present case can not be said to be one where the High Court on judicial side has erred as in Shashikant Patil (supra) in exercising its powers as claimed by the appellants. 31. As held by this Court time and again, it is the responsibility of the High Court to protect honest judicial officers. As the facts in this case indicate, apart from the fact that no opportunity was afforded to the respondent, even the material placed on record did not establish any such aspect which would lead to a conclusion of unsuitability. The disposal of the respondent was very good, and the complaints by the subordinate staff were clearly motivated. There was no involvement of the respondent in the suicide by the wife of Shri N.P. Thakker, and all that the High Court administration could lay hand on was the telephonic conversations which the respondent had with Mr. Thakker. The inference of unsuitability drawn by the High Court administration was therefore totally uncalled for. The impugned judgment setting aside the termination order dated 14th December 2007 issued on the ground of unsuitability is, therefore, fully justified. 32. One of the submissions which was advanced on behalf of the appellants was that, in such a situation the High Court, on its judicial side, ought to have given a further opportunity to the High Court administration to conduct a further inquiry against the respondent. In our view, keeping in mind the material on record, such a further exercise was not called for, and in any case certainly no more. The services of the respondent have been terminated way back in 2007. Six long years have gone thereafter, and for no fault of hers, the respondent has suffered. Directing any further inquiry would add salt to the injury. The conclusion arrived at by the High Court administration that the performance of the respondent was not good and satisfactory, and that she was not suitable for the post she was holding was on the face of it for extraneous reasons. Consequently with a view to do complete justice, the Respondent will have to be held as having completed her probation satisfactorily, and that she was entitled to continue in the post that she was holding. 33. We may however, note that in spite of this position, Mr. R.P. Bhatt, learned senior counsel appearing for the respondent has stated that though the decision of the High Court administration has seriously affected her personal life, the respondent is basically interested in vindicating her position. He has, therefore, fairly made a statement, on instructions, that the respondent is confining her prayer for backwages to the period subsequent to her being vindicated by the judgment of the High Court, dated 15.5.2009 pronouncing that the termination of her services was unjustified, and bad in law. 34. Before we conclude, we must once again reflect on the facts that have emerged in the present case. As noted earlier, the respondent was a candidate who had obtained a high rank in the selection for the judicial service, and was given an independent posting in a rural area, where she was living all alone. Her disposal of cases had been very good to say the least. The complaints made by her, regarding the misbehaviour of the staff, and the harassment to her by a section of the bar, were not heeded by the then District Judge, leave aside making an attempt to understand the difficulties faced by her. Instead, certain unjustified adverse remarks were made against her. Subsequently, the then District Judge conducted the preliminary inquiry against her, in his capacity as the vigilance officer, wherein without any justification he tried to connect her with the death of the wife of another judicial officer. It is the duty of the District Judge and also of the High Court to protect the judicial officers against unjustified allegations. However, what we find in the present case is that instead of doing the same, an investigation was conducted against the respondent without affording her any opportunity, though it contained allegations against her character, and the investigation was sought to be justified as determination of her suitability for the post which she was holding. We would like to take this opportunity to emphasise that the High Courts must see to it that the hostile work environment for junior judicial officers, particularly the lady officers, is eliminated. This is necessary to encourage the young officers to put in good judicial work without fear or favour. We are constrained to say that in the present case the High Court administration has clearly failed in this behalf.
### Response:
0
### Explanation:
we must once again reflect on the facts that have emerged in the present case. As noted earlier, the respondent was a candidate who had obtained a high rank in the selection for the judicial service, and was given an independent posting in a rural area, where she was living all alone. Her disposal of cases had been very good to say the least. The complaints made by her, regarding the misbehaviour of the staff, and the harassment to her by a section of the bar, were not heeded by the then District Judge, leave aside making an attempt to understand the difficulties faced by her. Instead, certain unjustified adverse remarks were made against her. Subsequently, the then District Judge conducted the preliminary inquiry against her, in his capacity as the vigilance officer, wherein without any justification he tried to connect her with the death of the wife of another judicial officer. It is the duty of the District Judge and also of the High Court to protect the judicial officers against unjustified allegations. However, what we find in the present case is that instead of doing the same, an investigation was conducted against the respondent without affording her any opportunity, though it contained allegations against her character, and the investigation was sought to be justified as determination of her suitability for the post which she was holding. We would like to take this opportunity to emphasise that the High Courts must see to it that the hostile work environment for junior judicial officers, particularly the lady officers, is eliminated. This is necessary to encourage the young officers to put in good judicial work without fear or favour. We are constrained to say that in the present case the High Court administration has clearly failed in this behalf.
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Deputy Commissioner of Sales Tax (Law) Board of Revenue (Taxes) Ernakulam Vs. Thomas Stephen and Company Limited | the decision of the Tribunal and rejected the Revenue s contention. 7. The construction of Section 5A of the Act came up for consideration before this Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Pio Food Packers [1980, Vol. 46 STC 63 = 1980 E.L.T. 343 (S.C.)]. That was a case dealing with pine apples sliced for being sold in sealed cans. It was held that there was no consumption of the original pine apple fruit for the purpose of manufacture and the case did not fall under Section 5A(1)(a) of the Act. It was further observed that although a degree of processing was involved in preparing pine apple slices from the original fruit, the commodity continued to possess its original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it on adding sugar to preserve it. 8. On the construction of the section, this Court observed that Section 5A(1)(a) of the Act envisaged the consumption of a commodity in the manufacture of another commodity (emphasis supplied). The goods purchased should be consumed, the consumption should be in the process of manufacture, and the result must be manufacture of other goods. Pathak, J. as the learned Chief Justice then was, at page 67 of the report observed as follows : The learned Counsel for the Revenue contends that even if no manufacturing process is involved, the case still falls within Section 5A(1)(a) of the Kerala General Sales Tax Act, because the statutory provision speaks not only of goods consumed in the manufacture of other goods for sale but also goods consumed otherwise. There is a fallacy in the submission. The clause, truly read, speaks of goods consumed in the manufacture of other goods for sale or goods consumed in the manufacture of other goods for purposes other than sale. 9. The cashew shells in the instant case had been used as fuel in the kiln. The cashew shells did not get transformed into the end product. These have not been used as raw materials in the manufacture of the goods. These have been used only as an aid in the manufacture of the goods by the assessee. Consumption must be in the manufacture as raw material or of other components which go into the making of the end product to come within the mischief of the section. Cashew shells do not tend to the making of the end product. Goods used for ancillary purposes like fuel in the process of the manufacture, do not fall within Section 5A(1)(a) of the Act. Cashew shells, therefore, do not attract levy of tax under the said section. The same is the position with regard to the lime shell and consumed stores, which have been used only in the maintenance of the kiln and the factory not used in the manufacture of the end product. The revenue, therefore, was wrong in its contention on this aspect. 10. Support was sought to be obtained from certain observations of this Court in Ganesh Prasad Dixit v. Commissioner of Sales Tax, Madhya Pradesh [1969 3 SCR 490 at page 491] where this Court was dealing with the provisions of Madhya Pradesh General Sales Tax Act, 1959. There the expression used was either consumes such goods in the manufacture of the goods for sale or otherwise . At page 495 of the report Shah, J. speaking for this Court observed as under :- Mr. Chagla for the appellants urged that the expression or otherwise is intended to denote a conjunctive introducing a specific alternative to the words for sale immediately preceding. The clause in which it occurs means, says Mr. Chagla, that by Section 7 the price paid for buying goods consumed in the manufacture of other goods, intended to be sold or otherwise disposed of, alone is taxable. We do not think that that is a reasonable interpretation of the expression either consumes such goods in the manufacture of other goods for sale or otherwise . It is intended by the Legislature that consumption of goods renders the price paid for their purchase taxable, if the goods are used in the manufacture of other goods for sale or if the goods are consumed otherwise. 11. These observations, in our opinion, have no relevance to the present facts of the case. Further this very contention was negatived, though without reference to Ganesh Prasad s case (supra) in the passage set out hereinbefore in Deputy Commissioner of Sales Tax v. Pio Food Products (supra). The expression consumption otherwise must in the context mean consumption of other goods for purposes other than sale. 12. Another contention raised before the High Court was that the goods had been disposed of otherwise than by way of sale within the State and, hence, liable to tax by virtue of Section 5A(1)(b) of the Act. The question, therefore, is whether there is any disposal of these goods in any manner otherwise than by way of sale within the State. Disposal means transfer of title in the goods to any other person. The expression dispose means to transfer or alienate. It was formerly an essential word in any conveyance of land. See Jowitt The Dictionary of English Law and also Webster Comprehensive Dictionary (International Edn.) -Vol. 1, page 368. Clause (b) of the section requires that the goods in question should be transferred to some person otherwise than by way of sale. In this case, there was no evidence of any transfer at all, therefore, there was no disposal of the goods as known to law. The High Court records that admittedly there was no transfer of the cashew shells, the lime shells or the consumed stores in this case. These were used by the assessee himself as fuel in the case of cashew shells for the maintenance of kiln. Sub-clause (b) of Section 5A(1) was, therefore, not applicable. In the background of the facts of this case, the High Court, in our opinion, was right. | 0[ds]We do not think that that is a reasonable interpretation of the expression either consumes such goods in the manufacture of other goods for sale or otherwise . It is intended by the Legislature that consumption of goods renders the price paid for their purchase taxable, if the goods are used in the manufacture of other goods for sale or if the goods are consumed otherwise.11. These observations, in our opinion, have no relevance to the present facts of the case. Further this very contention was negatived, though without reference to Ganesh Prasad s case (supra) in the passage set out hereinbefore in Deputy Commissioner of Sales Tax v. Pio Food Products (supra). The expression consumption otherwise must in the context mean consumption of other goods for purposes other than sale12. Another contention raised before the High Court was that the goods had been disposed of otherwise than by way of sale within the State and, hence, liable to tax by virtue of Section 5A(1)(b) of the Act.The question, therefore, is whether there is any disposal of these goods in any manner otherwise than by way of sale within the. Disposal means transfer of title in the goods to any other person. The expression dispose means to transfer or alienate. It was formerly an essential word in any conveyance of land. See Jowitt The Dictionary of English Law and also Webster Comprehensive Dictionary (International Edn.) -Vol. 1, page 368. Clause (b) of the section requires that the goods in question should be transferred to some person otherwise than by way of sale. In this case, there was no evidence of any transfer at all, therefore, there was no disposal of the goods as known to law. The High Court records that admittedly there was no transfer of the cashew shells, the lime shells or the consumed stores in this case. These were used by the assessee himself as fuel in the case of cashew shells for the maintenance of kiln. Sub-clause (b) of Section 5A(1) was, therefore, not applicable. In the background of the facts of this case, the High Court, in our opinion, was right. | 0 | 1,947 | 414 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the decision of the Tribunal and rejected the Revenue s contention. 7. The construction of Section 5A of the Act came up for consideration before this Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Pio Food Packers [1980, Vol. 46 STC 63 = 1980 E.L.T. 343 (S.C.)]. That was a case dealing with pine apples sliced for being sold in sealed cans. It was held that there was no consumption of the original pine apple fruit for the purpose of manufacture and the case did not fall under Section 5A(1)(a) of the Act. It was further observed that although a degree of processing was involved in preparing pine apple slices from the original fruit, the commodity continued to possess its original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it on adding sugar to preserve it. 8. On the construction of the section, this Court observed that Section 5A(1)(a) of the Act envisaged the consumption of a commodity in the manufacture of another commodity (emphasis supplied). The goods purchased should be consumed, the consumption should be in the process of manufacture, and the result must be manufacture of other goods. Pathak, J. as the learned Chief Justice then was, at page 67 of the report observed as follows : The learned Counsel for the Revenue contends that even if no manufacturing process is involved, the case still falls within Section 5A(1)(a) of the Kerala General Sales Tax Act, because the statutory provision speaks not only of goods consumed in the manufacture of other goods for sale but also goods consumed otherwise. There is a fallacy in the submission. The clause, truly read, speaks of goods consumed in the manufacture of other goods for sale or goods consumed in the manufacture of other goods for purposes other than sale. 9. The cashew shells in the instant case had been used as fuel in the kiln. The cashew shells did not get transformed into the end product. These have not been used as raw materials in the manufacture of the goods. These have been used only as an aid in the manufacture of the goods by the assessee. Consumption must be in the manufacture as raw material or of other components which go into the making of the end product to come within the mischief of the section. Cashew shells do not tend to the making of the end product. Goods used for ancillary purposes like fuel in the process of the manufacture, do not fall within Section 5A(1)(a) of the Act. Cashew shells, therefore, do not attract levy of tax under the said section. The same is the position with regard to the lime shell and consumed stores, which have been used only in the maintenance of the kiln and the factory not used in the manufacture of the end product. The revenue, therefore, was wrong in its contention on this aspect. 10. Support was sought to be obtained from certain observations of this Court in Ganesh Prasad Dixit v. Commissioner of Sales Tax, Madhya Pradesh [1969 3 SCR 490 at page 491] where this Court was dealing with the provisions of Madhya Pradesh General Sales Tax Act, 1959. There the expression used was either consumes such goods in the manufacture of the goods for sale or otherwise . At page 495 of the report Shah, J. speaking for this Court observed as under :- Mr. Chagla for the appellants urged that the expression or otherwise is intended to denote a conjunctive introducing a specific alternative to the words for sale immediately preceding. The clause in which it occurs means, says Mr. Chagla, that by Section 7 the price paid for buying goods consumed in the manufacture of other goods, intended to be sold or otherwise disposed of, alone is taxable. We do not think that that is a reasonable interpretation of the expression either consumes such goods in the manufacture of other goods for sale or otherwise . It is intended by the Legislature that consumption of goods renders the price paid for their purchase taxable, if the goods are used in the manufacture of other goods for sale or if the goods are consumed otherwise. 11. These observations, in our opinion, have no relevance to the present facts of the case. Further this very contention was negatived, though without reference to Ganesh Prasad s case (supra) in the passage set out hereinbefore in Deputy Commissioner of Sales Tax v. Pio Food Products (supra). The expression consumption otherwise must in the context mean consumption of other goods for purposes other than sale. 12. Another contention raised before the High Court was that the goods had been disposed of otherwise than by way of sale within the State and, hence, liable to tax by virtue of Section 5A(1)(b) of the Act. The question, therefore, is whether there is any disposal of these goods in any manner otherwise than by way of sale within the State. Disposal means transfer of title in the goods to any other person. The expression dispose means to transfer or alienate. It was formerly an essential word in any conveyance of land. See Jowitt The Dictionary of English Law and also Webster Comprehensive Dictionary (International Edn.) -Vol. 1, page 368. Clause (b) of the section requires that the goods in question should be transferred to some person otherwise than by way of sale. In this case, there was no evidence of any transfer at all, therefore, there was no disposal of the goods as known to law. The High Court records that admittedly there was no transfer of the cashew shells, the lime shells or the consumed stores in this case. These were used by the assessee himself as fuel in the case of cashew shells for the maintenance of kiln. Sub-clause (b) of Section 5A(1) was, therefore, not applicable. In the background of the facts of this case, the High Court, in our opinion, was right.
### Response:
0
### Explanation:
We do not think that that is a reasonable interpretation of the expression either consumes such goods in the manufacture of other goods for sale or otherwise . It is intended by the Legislature that consumption of goods renders the price paid for their purchase taxable, if the goods are used in the manufacture of other goods for sale or if the goods are consumed otherwise.11. These observations, in our opinion, have no relevance to the present facts of the case. Further this very contention was negatived, though without reference to Ganesh Prasad s case (supra) in the passage set out hereinbefore in Deputy Commissioner of Sales Tax v. Pio Food Products (supra). The expression consumption otherwise must in the context mean consumption of other goods for purposes other than sale12. Another contention raised before the High Court was that the goods had been disposed of otherwise than by way of sale within the State and, hence, liable to tax by virtue of Section 5A(1)(b) of the Act.The question, therefore, is whether there is any disposal of these goods in any manner otherwise than by way of sale within the. Disposal means transfer of title in the goods to any other person. The expression dispose means to transfer or alienate. It was formerly an essential word in any conveyance of land. See Jowitt The Dictionary of English Law and also Webster Comprehensive Dictionary (International Edn.) -Vol. 1, page 368. Clause (b) of the section requires that the goods in question should be transferred to some person otherwise than by way of sale. In this case, there was no evidence of any transfer at all, therefore, there was no disposal of the goods as known to law. The High Court records that admittedly there was no transfer of the cashew shells, the lime shells or the consumed stores in this case. These were used by the assessee himself as fuel in the case of cashew shells for the maintenance of kiln. Sub-clause (b) of Section 5A(1) was, therefore, not applicable. In the background of the facts of this case, the High Court, in our opinion, was right.
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NAND RAM (D) THROUGH LRS. & ORS Vs. JAGDISH PRASAD (D) THROUGH LRS | the doctrine of tenant estoppel, which continues to operate even after the termination of the tenancy, debars a tenant who had been let into possession by a landlord, from disputing the latters title or pleading adverse possession, without first openly and actually surrendering possession of the tenanted premises and restoring them to the landlord. 42. A tenant who upon determination of the tenancy does not deliver up possession to the landlord as required by Section 108(q), cannot be heard to say that he is not a tenant—be he one at sufferance or be he one from month-to-month. Therefore, unless the landlord is actually put into possession, the premises remain under a tenancy, which unless assented to by the landlord, has the character of one at sufferance. 43. Thus, a tenant at sufferance is one who wrongfully continues in possession after the extinction of a lawful title and that a tenancy at sufferance is merely a legal fiction or device to avoid continuance in possession from operating as a trespass. A tenant remaining in possession of the property after determination of the lease does not become a trespasser, but continues as a tenant at sufferance till possession is restored to the landlord. The possession of an erstwhile tenant is juridical and he is a protected from dispossession otherwise than in due course of law. Although, he is a tenant, but being one at sufferance as aforesaid, no rent can be paid since, if rent is accepted by the landlord he will be deemed to have consented and a tenancy from month-to-month will come into existence. Instead of rent, the tenant at sufferance and by his mere continuance in possession is deemed to acknowledge both the landlords title and his (tenants) liability to pay mesne profits for the use and occupation of the property. 44. T o sum up the legal position or status of a lessee whose lease has expired and whose continuance is not assented to by the landlord, is that of a tenant at sufferance. If, however, the holding over has been assented to in any manner, then it becomes that of a tenant from month-to-month. Similar, i.e. from month-to- month, is the status of a lessee who comes into possession tinder a lease for a period exceeding one year but unregistered. He holds it not as a lessee for a fixed term, but as one from month-to-month or year-to-year depending on the purpose of the lease. If upon a tenant from month-to-month (or year-to-year) and in either of the aforesaid two contingencies, a notice to quit is served, then on the expiry of the period, his status becomes of a tenant at sufferance. Waiver of that notice, or assent in any form to continuation restores to him his status as a tenant from month-to-month, but capable, of once again being terminated with the expiry of any ensuing tenancy month. 38. Thus, the suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone. 39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on 13 th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and the same cannot be sustained and are, thus, set aside. 40. Though, Mr. Vishwanathan has argued that the first appeal stood abated as the legal representatives of one of the deceased respondents was not impleaded but we find that it is not necessary to decide such question as on merits, we have found the claim of the plaintiffs to be meritorious. 41. The respondent continued to be in possession of the land leased vide registered lease deed dated 22 nd September, 1954. The respondent has admitted the ownership of the appellants before the Reference Court. Such plea operates as estoppel against the respondent in respect of the title of the appellants. However, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors. Civil Appeal No. 190 of 2020 decided on 15th January, 2020 : 2020 SCC OnLine SC 37. | 1[ds]27. Thus, the finding returned in the award of the Reference Court (Ex. PW1/12) that the lease stood determined on account of non- payment of rent was a finding made by the reference Court for a limited purpose i.e. not to accept the defendants claim for compensation. Such finding cannot be binding on the parties in a suit for possession based on title or as a lessor against a lessee. Section 11 of the Code bars the subsequent Court to try any suit or issue which has been directly and substantially issue in a former suit. The issue before the Reference Court was apportionment of compensation and such issue having been decided against the defendant, the reference to notice for termination of tenancy does not operate as res judicata. Therefore, the finding recorded by the High Court that the order of the Reference Court operates as res judicata was clearly not sustainable. The first substantial question of law has been, thus, wrongly decided28. In respect of second question of law examined by the High Court that the plaintiffs suit was barred by limitation is based upon the notice dated 23 rd September, 1960 produced in proceedings before the Reference Court as Ex.A-3. The reference to such notice was made in an application for amendment of the written statement under Order VI Rule 17 of the Code filed before the First Appellate Court. The First Appellate Court allowed the defendant to raise a plea of limitation without amending the written statement. Thus, the notice (Ex.A-3) in proceedings before the Reference Court was never produced in evidence in the suit for possession and such primary evidence was not before the Court. In terms of Section 62 of the Evidence Act, primary evidence means a document itself produced for inspection by the Court. Section 64 of the Evidence Act stipulates that documents must be proved by primary evidence except in certain cases when secondary evidence can be led. The defendant has not led any evidence, including secondary evidence of the alleged notice said to be served by the plaintiffs. In the absence of primary or secondary evidence available in the suit for possession, the reference to such notice as the starting point of limitation is clearly erroneous and not sustainable29. The defendant was inducted as a lessee for a period of 20 years. The lease period expired on 23 rd September, 1974. Even if the lessee had not paid rent, the status of the lessee would not change during the continuation of the period of lease. The lessor had a right to seek possession in terms of clause 9 of the lease deed. The mere fact that the lessor had not chosen to exercise that right will not foreclose the rights of the lessor as owner of the property leased. After the expiry of lease period, and in the absence of pay- ment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance38. Thus, the suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on 13 th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and the same cannot be sustained and are, thus, set aside40. Though, Mr. Vishwanathan has argued that the first appeal stood abated as the legal representatives of one of the deceased respondents was not impleaded but we find that it is not necessary to decide such question as on merits, we have found the claim of the plaintiffs to be meritorious41. The respondent continued to be in possession of the land leased vide registered lease deed dated 22 nd September, 1954. The respondent has admitted the ownership of the appellants before the Reference Court. Such plea operates as estoppel against the respondent in respect of the title of the appellants. However, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors.Civil Appeal No. 190 of 2020 decided on 15th January, 2020 : 2020 SCC OnLine SC 37. | 1 | 10,442 | 1,174 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the doctrine of tenant estoppel, which continues to operate even after the termination of the tenancy, debars a tenant who had been let into possession by a landlord, from disputing the latters title or pleading adverse possession, without first openly and actually surrendering possession of the tenanted premises and restoring them to the landlord. 42. A tenant who upon determination of the tenancy does not deliver up possession to the landlord as required by Section 108(q), cannot be heard to say that he is not a tenant—be he one at sufferance or be he one from month-to-month. Therefore, unless the landlord is actually put into possession, the premises remain under a tenancy, which unless assented to by the landlord, has the character of one at sufferance. 43. Thus, a tenant at sufferance is one who wrongfully continues in possession after the extinction of a lawful title and that a tenancy at sufferance is merely a legal fiction or device to avoid continuance in possession from operating as a trespass. A tenant remaining in possession of the property after determination of the lease does not become a trespasser, but continues as a tenant at sufferance till possession is restored to the landlord. The possession of an erstwhile tenant is juridical and he is a protected from dispossession otherwise than in due course of law. Although, he is a tenant, but being one at sufferance as aforesaid, no rent can be paid since, if rent is accepted by the landlord he will be deemed to have consented and a tenancy from month-to-month will come into existence. Instead of rent, the tenant at sufferance and by his mere continuance in possession is deemed to acknowledge both the landlords title and his (tenants) liability to pay mesne profits for the use and occupation of the property. 44. T o sum up the legal position or status of a lessee whose lease has expired and whose continuance is not assented to by the landlord, is that of a tenant at sufferance. If, however, the holding over has been assented to in any manner, then it becomes that of a tenant from month-to-month. Similar, i.e. from month-to- month, is the status of a lessee who comes into possession tinder a lease for a period exceeding one year but unregistered. He holds it not as a lessee for a fixed term, but as one from month-to-month or year-to-year depending on the purpose of the lease. If upon a tenant from month-to-month (or year-to-year) and in either of the aforesaid two contingencies, a notice to quit is served, then on the expiry of the period, his status becomes of a tenant at sufferance. Waiver of that notice, or assent in any form to continuation restores to him his status as a tenant from month-to-month, but capable, of once again being terminated with the expiry of any ensuing tenancy month. 38. Thus, the suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone. 39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on 13 th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and the same cannot be sustained and are, thus, set aside. 40. Though, Mr. Vishwanathan has argued that the first appeal stood abated as the legal representatives of one of the deceased respondents was not impleaded but we find that it is not necessary to decide such question as on merits, we have found the claim of the plaintiffs to be meritorious. 41. The respondent continued to be in possession of the land leased vide registered lease deed dated 22 nd September, 1954. The respondent has admitted the ownership of the appellants before the Reference Court. Such plea operates as estoppel against the respondent in respect of the title of the appellants. However, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors. Civil Appeal No. 190 of 2020 decided on 15th January, 2020 : 2020 SCC OnLine SC 37.
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### Explanation:
the subsequent Court to try any suit or issue which has been directly and substantially issue in a former suit. The issue before the Reference Court was apportionment of compensation and such issue having been decided against the defendant, the reference to notice for termination of tenancy does not operate as res judicata. Therefore, the finding recorded by the High Court that the order of the Reference Court operates as res judicata was clearly not sustainable. The first substantial question of law has been, thus, wrongly decided28. In respect of second question of law examined by the High Court that the plaintiffs suit was barred by limitation is based upon the notice dated 23 rd September, 1960 produced in proceedings before the Reference Court as Ex.A-3. The reference to such notice was made in an application for amendment of the written statement under Order VI Rule 17 of the Code filed before the First Appellate Court. The First Appellate Court allowed the defendant to raise a plea of limitation without amending the written statement. Thus, the notice (Ex.A-3) in proceedings before the Reference Court was never produced in evidence in the suit for possession and such primary evidence was not before the Court. In terms of Section 62 of the Evidence Act, primary evidence means a document itself produced for inspection by the Court. Section 64 of the Evidence Act stipulates that documents must be proved by primary evidence except in certain cases when secondary evidence can be led. The defendant has not led any evidence, including secondary evidence of the alleged notice said to be served by the plaintiffs. In the absence of primary or secondary evidence available in the suit for possession, the reference to such notice as the starting point of limitation is clearly erroneous and not sustainable29. The defendant was inducted as a lessee for a period of 20 years. The lease period expired on 23 rd September, 1974. Even if the lessee had not paid rent, the status of the lessee would not change during the continuation of the period of lease. The lessor had a right to seek possession in terms of clause 9 of the lease deed. The mere fact that the lessor had not chosen to exercise that right will not foreclose the rights of the lessor as owner of the property leased. After the expiry of lease period, and in the absence of pay- ment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance38. Thus, the suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on 13 th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and the same cannot be sustained and are, thus, set aside40. Though, Mr. Vishwanathan has argued that the first appeal stood abated as the legal representatives of one of the deceased respondents was not impleaded but we find that it is not necessary to decide such question as on merits, we have found the claim of the plaintiffs to be meritorious41. The respondent continued to be in possession of the land leased vide registered lease deed dated 22 nd September, 1954. The respondent has admitted the ownership of the appellants before the Reference Court. Such plea operates as estoppel against the respondent in respect of the title of the appellants. However, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors.Civil Appeal No. 190 of 2020 decided on 15th January, 2020 : 2020 SCC OnLine SC 37.
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Allahabad Bank Limited Vs. Commissioner of Income Tax, West Bengal | officer if in their opinion the conduct of the recipient or the circumstances of the case should justify them in so doing. The whole scheme of the deed invested the bank or its officers duly authorised in that behalf with the sole discretion of granting or of withdrawing, modifying or determining the pension and it was not at all obligatory on them at any time to grant any pension or to continue the same for any period whatever. The beneficiaries, therefore, could not be said to have been indicated with reasonable certainty. What is more it could also be validly urged that there being no obligation imposed upon the trustees no trust in fact was created, even though the moneys had been transferred to the trustees.8. Shri N. C. Chaterjee however urged that the power conferred upon the bank or its officers duly authorised in that behalf was a power in the nature of a trust, that there was a general intention in favour of a class and a particular intention in favour of individuals of a class to be selected by them and even though the particular intention failed from the selection not being made the Court could carry into effect the general intention in favour of the class and that therefore the trust was valid. He relied in support of this contention on-Brownx. Higgs, (1803) 8 Ves. Jun. 561 (A) and -Burrough v. Philcox, (1840) 5 My. and Cr. 72 (B). The position in law as it emerges from these authorities is thus summarised by Lewin on Trusts, Edn. 15, page 324:"Powers, in the sense in which the term is commonly used, may be distributed into mere powers, and powers in the nature of a trust. The former are powers in the proper sense of the word- that is not imperative, but purely discretionary; powers which the trustee cannot be compelled to execute, and which, on failure of the trustee, cannot be executed vicariously by the Court. The latter, on the other hand, are not discretionary, but imperative, have all the nature and substance of a trust, and ought rather, as Lord Hardwicke observed, to be designated by the name of trusts. "It is perfectly clear said Lord Eldon, "that were there is a mere power, and that power is not executed the Court cannot execute it. It is equally clear, that wherever a trust is created, and the execution of the trust fails by the death of the trustee or by accident, this court will execute the trust. But then are no only a mere trust and a mere power, but there is also known to this Court a power which the party to whom it is given is interested with and required to execute; and with regard to that species of power, the Court considers it as partaking so much of the nature and qualities of a trust, that if the person who has the duty imposed upon him does not discharge it, the Court will, to certain extent, discharge the duty in his room and place".Thus, if there is a power to appoint among certain objects but no gift to those objects and no gift over in default of appointment, the Court implies a trust for or gift to those objects equally if the power be not exercised. But for the principle to operate there must be a clear indication that the settlor intended the power to be regarded in the nature of a trust.This position, however, does not avail the appellant. As already stated there is no clear indication in the deed of trust that the bank intended the power to be regarded in the nature of a trust, inasmuch as them was no obligation imposed on the bank or its officers duly authorised in that behalf to grant any pension to any applicant. There was no duty to grant any pension at all and the pension, if granted, could be withdrawn, modified or determined by the bank or its officers duly authorised in that behalf as therein mentioned. Under the circumstances it could not be said that there was a power in the nature of a trust which could be exercised by the Court if the donee of the power for some reason or the other, did not exercise the same.It will be appropriate at this stage to consider whether any beneficiary claiming to be entitled to a pension under the terms of the deed could approach the Court for the enforcement of any provision purporting to have been made for his benefit. Even though he may be qualified under Cl. 8 to apply for the grant of a pension he could not certainly enforce that provision because there was no obligation imposed at all on the bank or its officers duly authorised in that behalf to grant any pension to him and in the absence of any such obligation imposed upon anybody it would be futile to urge that a valid trust was created in the manner contended on behalf of the appellant.9. In our opinion, therefore, the High Court was right in the conclusion to which it came that there was uncertainty as regards the beneficiaries and there was an absence of any obligation to grant any pension with the result that no legal and effective trust could be said to have been created and further that the provision of Rs. 2,00,000 in the accounting year 1946-47 was not an expenditure or an expenditure for the purposes of the business within the meaning of S. 10(2)(xv), Indian Income-tax Act.10. In view of the above we do not think it necessary to go into the interesting questions which were sought to be noised by the appellant, viz., what was the scope of the reference and by the respondent, viz., whether the expenditure was a capital expenditure or revenue expenditure and if the latter whether the, deduction could still not be allowed in view of the provisions of S. 10(4)(c) of the Act. | 0[ds]7. On a consideration of the provisions of the deed of trust above set out it is clear that the bank or its officers duly authorised in that behalf were constituted the sole authorities to determine what pensions and in what manner the same should be paid out of the income of the fund. The fund was declared to have been established for the benefit of the retiring employees to whom pensions shall have been granted by the bank. Officers of the staff who were qualified under Cl. 8 were declared entitled to apply to the bank for a pension. But there was nothing in the terms of the deed which imposed any obligation on the bank or its officers duly authorised in that behalf to grant any pension to any such applicant. The pension if granted could also be withdrawn, modified or determined under the directions of the bank or any officer of the bank duly authorised in that behalf and such directions were binding on the trustees. The regulations in relation to the fund could also be altered and new regulations could be made to the exclusion of or in addition to all or any of the regulations contained in the deed of trust.It was open under the above provisions for the bank or its officers duly authorised in that behalf to grant no pension at all to any officer of the staff who made an application to them for a pension and also to withdraw, modify or determine any pension payable to such officer if in their opinion the conduct of the recipient or the circumstances of the case should justify them in so doing. The whole scheme of the deed invested the bank or its officers duly authorised in that behalf with the sole discretion of granting or of withdrawing, modifying or determining the pension and it was not at all obligatory on them at any time to grant any pension or to continue the same for any period whatever. The beneficiaries, therefore, could not be said to have been indicated with reasonable certainty. What is more it could also be validly urged that there being no obligation imposed upon the trustees no trust in fact was created, even though the moneys had been transferred to theif there is a power to appoint among certain objects but no gift to those objects and no gift over in default of appointment, the Court implies a trust for or gift to those objects equally if the power be not exercised. But for the principle to operate there must be a clear indication that the settlor intended the power to be regarded in the nature of a trust.This position, however, does not avail the appellant. As already stated there is no clear indication in the deed of trust that the bank intended the power to be regarded in the nature of a trust, inasmuch as them was no obligation imposed on the bank or its officers duly authorised in that behalf to grant any pension to any applicant. There was no duty to grant any pension at all and the pension, if granted, could be withdrawn, modified or determined by the bank or its officers duly authorised in that behalf as therein mentioned. Under the circumstances it could not be said that there was a power in the nature of a trust which could be exercised by the Court if the donee of the power for some reason or the other, did not exercise the same.Even though he may be qualified under Cl. 8 to apply for the grant of a pension he could not certainly enforce that provision because there was no obligation imposed at all on the bank or its officers duly authorised in that behalf to grant any pension to him and in the absence of any such obligation imposed upon anybody it would be futile to urge that a valid trust was created in the manner contended on behalf of the appellant.In our opinion, therefore, the High Court was right in the conclusion to which it came that there was uncertainty as regards the beneficiaries and there was an absence of any obligation to grant any pension with the result that no legal and effective trust could be said to have been created and further that the provision of Rs. 2,00,000 in the accounting year 1946-47 was not an expenditure or an expenditure for the purposes of the business within the meaning of S. 10(2)(xv), Indian Income-tax Act.In view of the above we do not think it necessary to go into the interesting questions which were sought to be noised by the appellant, viz., what was the scope of the reference and by the respondent, viz., whether the expenditure was a capital expenditure or revenue expenditure and if the latter whether the, deduction could still not be allowed in view of the provisions of S. 10(4)(c) of the Act. | 0 | 2,609 | 879 | ### 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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officer if in their opinion the conduct of the recipient or the circumstances of the case should justify them in so doing. The whole scheme of the deed invested the bank or its officers duly authorised in that behalf with the sole discretion of granting or of withdrawing, modifying or determining the pension and it was not at all obligatory on them at any time to grant any pension or to continue the same for any period whatever. The beneficiaries, therefore, could not be said to have been indicated with reasonable certainty. What is more it could also be validly urged that there being no obligation imposed upon the trustees no trust in fact was created, even though the moneys had been transferred to the trustees.8. Shri N. C. Chaterjee however urged that the power conferred upon the bank or its officers duly authorised in that behalf was a power in the nature of a trust, that there was a general intention in favour of a class and a particular intention in favour of individuals of a class to be selected by them and even though the particular intention failed from the selection not being made the Court could carry into effect the general intention in favour of the class and that therefore the trust was valid. He relied in support of this contention on-Brownx. Higgs, (1803) 8 Ves. Jun. 561 (A) and -Burrough v. Philcox, (1840) 5 My. and Cr. 72 (B). The position in law as it emerges from these authorities is thus summarised by Lewin on Trusts, Edn. 15, page 324:"Powers, in the sense in which the term is commonly used, may be distributed into mere powers, and powers in the nature of a trust. The former are powers in the proper sense of the word- that is not imperative, but purely discretionary; powers which the trustee cannot be compelled to execute, and which, on failure of the trustee, cannot be executed vicariously by the Court. The latter, on the other hand, are not discretionary, but imperative, have all the nature and substance of a trust, and ought rather, as Lord Hardwicke observed, to be designated by the name of trusts. "It is perfectly clear said Lord Eldon, "that were there is a mere power, and that power is not executed the Court cannot execute it. It is equally clear, that wherever a trust is created, and the execution of the trust fails by the death of the trustee or by accident, this court will execute the trust. But then are no only a mere trust and a mere power, but there is also known to this Court a power which the party to whom it is given is interested with and required to execute; and with regard to that species of power, the Court considers it as partaking so much of the nature and qualities of a trust, that if the person who has the duty imposed upon him does not discharge it, the Court will, to certain extent, discharge the duty in his room and place".Thus, if there is a power to appoint among certain objects but no gift to those objects and no gift over in default of appointment, the Court implies a trust for or gift to those objects equally if the power be not exercised. But for the principle to operate there must be a clear indication that the settlor intended the power to be regarded in the nature of a trust.This position, however, does not avail the appellant. As already stated there is no clear indication in the deed of trust that the bank intended the power to be regarded in the nature of a trust, inasmuch as them was no obligation imposed on the bank or its officers duly authorised in that behalf to grant any pension to any applicant. There was no duty to grant any pension at all and the pension, if granted, could be withdrawn, modified or determined by the bank or its officers duly authorised in that behalf as therein mentioned. Under the circumstances it could not be said that there was a power in the nature of a trust which could be exercised by the Court if the donee of the power for some reason or the other, did not exercise the same.It will be appropriate at this stage to consider whether any beneficiary claiming to be entitled to a pension under the terms of the deed could approach the Court for the enforcement of any provision purporting to have been made for his benefit. Even though he may be qualified under Cl. 8 to apply for the grant of a pension he could not certainly enforce that provision because there was no obligation imposed at all on the bank or its officers duly authorised in that behalf to grant any pension to him and in the absence of any such obligation imposed upon anybody it would be futile to urge that a valid trust was created in the manner contended on behalf of the appellant.9. In our opinion, therefore, the High Court was right in the conclusion to which it came that there was uncertainty as regards the beneficiaries and there was an absence of any obligation to grant any pension with the result that no legal and effective trust could be said to have been created and further that the provision of Rs. 2,00,000 in the accounting year 1946-47 was not an expenditure or an expenditure for the purposes of the business within the meaning of S. 10(2)(xv), Indian Income-tax Act.10. In view of the above we do not think it necessary to go into the interesting questions which were sought to be noised by the appellant, viz., what was the scope of the reference and by the respondent, viz., whether the expenditure was a capital expenditure or revenue expenditure and if the latter whether the, deduction could still not be allowed in view of the provisions of S. 10(4)(c) of the Act.
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7. On a consideration of the provisions of the deed of trust above set out it is clear that the bank or its officers duly authorised in that behalf were constituted the sole authorities to determine what pensions and in what manner the same should be paid out of the income of the fund. The fund was declared to have been established for the benefit of the retiring employees to whom pensions shall have been granted by the bank. Officers of the staff who were qualified under Cl. 8 were declared entitled to apply to the bank for a pension. But there was nothing in the terms of the deed which imposed any obligation on the bank or its officers duly authorised in that behalf to grant any pension to any such applicant. The pension if granted could also be withdrawn, modified or determined under the directions of the bank or any officer of the bank duly authorised in that behalf and such directions were binding on the trustees. The regulations in relation to the fund could also be altered and new regulations could be made to the exclusion of or in addition to all or any of the regulations contained in the deed of trust.It was open under the above provisions for the bank or its officers duly authorised in that behalf to grant no pension at all to any officer of the staff who made an application to them for a pension and also to withdraw, modify or determine any pension payable to such officer if in their opinion the conduct of the recipient or the circumstances of the case should justify them in so doing. The whole scheme of the deed invested the bank or its officers duly authorised in that behalf with the sole discretion of granting or of withdrawing, modifying or determining the pension and it was not at all obligatory on them at any time to grant any pension or to continue the same for any period whatever. The beneficiaries, therefore, could not be said to have been indicated with reasonable certainty. What is more it could also be validly urged that there being no obligation imposed upon the trustees no trust in fact was created, even though the moneys had been transferred to theif there is a power to appoint among certain objects but no gift to those objects and no gift over in default of appointment, the Court implies a trust for or gift to those objects equally if the power be not exercised. But for the principle to operate there must be a clear indication that the settlor intended the power to be regarded in the nature of a trust.This position, however, does not avail the appellant. As already stated there is no clear indication in the deed of trust that the bank intended the power to be regarded in the nature of a trust, inasmuch as them was no obligation imposed on the bank or its officers duly authorised in that behalf to grant any pension to any applicant. There was no duty to grant any pension at all and the pension, if granted, could be withdrawn, modified or determined by the bank or its officers duly authorised in that behalf as therein mentioned. Under the circumstances it could not be said that there was a power in the nature of a trust which could be exercised by the Court if the donee of the power for some reason or the other, did not exercise the same.Even though he may be qualified under Cl. 8 to apply for the grant of a pension he could not certainly enforce that provision because there was no obligation imposed at all on the bank or its officers duly authorised in that behalf to grant any pension to him and in the absence of any such obligation imposed upon anybody it would be futile to urge that a valid trust was created in the manner contended on behalf of the appellant.In our opinion, therefore, the High Court was right in the conclusion to which it came that there was uncertainty as regards the beneficiaries and there was an absence of any obligation to grant any pension with the result that no legal and effective trust could be said to have been created and further that the provision of Rs. 2,00,000 in the accounting year 1946-47 was not an expenditure or an expenditure for the purposes of the business within the meaning of S. 10(2)(xv), Indian Income-tax Act.In view of the above we do not think it necessary to go into the interesting questions which were sought to be noised by the appellant, viz., what was the scope of the reference and by the respondent, viz., whether the expenditure was a capital expenditure or revenue expenditure and if the latter whether the, deduction could still not be allowed in view of the provisions of S. 10(4)(c) of the Act.
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Punjab University Vs. Subash Chander and Another | to refuse to grant grace-marks or to enhance or reduce the quantum of grace marks. It has not been contended before us that there was any mala fides on the part of the Senate in making this change. It could not be contended that Subash Chander who appeared for the final examination in 1974 did not a have sufficient notice of the change brought about in 1970 in the rule relating to award of grace marks or that he was prejudiced by the change.7. We do not agree with the learned Judges of the Full Bench of the High Court that there is any element of retrospectivity in the change brought about by the addition of the exception to Rule 2.1 of the calender for the year 197(). Retrospective" according to the Shorter Oxford English Dictionary, Third Edition, in relation to Statutes etc. means "operative with regard to past time". The change brought about by the addition of the exception to Rule 2.1 does not say that it shall be operative with effect from any earlier date. It is obviously prospective. It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to Subash Chander, respondent 1, who appeared for the final examination in 1974, after he had joined the course earlier in 1965. No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating there to which were in force at the time of his admission would continue to be applied to him until he finished his whole course. In the Calendar for 1979 we find the following at page 1:"Notwithstanding the integrated nature of a course spread over more than one academic year, the regulations in force at the time a student joins a course shall hold good only for the examinations held during or at the end of the academic year. Nothing in these regulations shall be deemed to debar the University from amending the regulations subsequently and the amended regulations, if any, shall apply to all students whether old or new."8. This is as it should be, though there was no such provision in the Calendar of 1965 when Subash Chander was admitted to the course. It is admitted that it was introduced only in 1971. The absence of such a provision in the Calendar of 1965 is of no consequence. It is necessary to note in this connection what this Court had said in regard to retrospectively in such matters in B.N. Misra v. State. It is this:"The next contention on behalf of the appellant is that the rule is retrospective and that no retrospective rule can be made. As we read the rule we do not find any retrospectively in it. All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would therefore apply from that date to all government servants, even though they may have been recruited before May 25, 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all government servants even though they were recruited before 1957. But it is urged that the proviso shows that the rule was applied retrospectively. We have already referred to the proviso which lays down that government servants who had attained the age of 55 years on or before June 17, 1957 and had not attained the age of 55 years on May 25, 1961 would be deemed to have been retained in service after the date of superannuation, namely 55 years. This proviso in our opinion docs not make the rule retrospective; it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961. Further the second order issued on the same day also clearly shows that there was no retrospective operation of the rule, for in actual effect no government servant was retired before the date of new rule i.e. May 25, 1961 and all of them were continued in service up to December 31, 1961 and were therefore to retire on reaching the age of superannuation according to the old rule. We are, therefore, of opinion that the new rule reducing the age of retirement from 58 years to 55 years cannot be said to be retrospective. The proviso to new rule and the second notification are only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule therefore, cannot be struck down on the ground that it is retrospective in operation."Therefore, we are clearly of the opinion that there is no question of the change in the rule made in the year 1970 having retrospective operation merely because it was applied in 1974 to Subash Chander who had joined the M.B.B.S. course in 1965 when the rule regarding award of grace marks was different. In these circumstances, we affirm the view of D.K. Mahajan and P.C. Jain, JJ. expressed in the Division Bench judgment in Sewa Ram v. Kurukshetra University (Supra) and disapprove the view taken by the learned Judges of the Full Bench in the decision under appeal in this case and ho ld that the University was right in holding that Subash Chander, respondent 1, was not entitled to 16 grace marks under the old rule but was entitled to only 4 grace marks under the new rule and had therefore not passed the examination in Midwifery. | 1[ds]We are of the opinion that this appeal has to succeed. Section 31(1) of the Punjab University Act extracted above enables the Senate of the Punjab University, with the sanctions of the Government, to make from time to time, regulations, consistent within the provisions of that Act to provide for all matters relating to the University. Section 31(2)(n) provides that in particular and without prejudice to the generality of the foregoing power such regulation may provide for the courses of study to be followed and the conditions to be complied with by candidates for any University examination and for degrees, diplomas, licences, titles, marks in honour, scholarships and prizes conferred or granted by the University. Obtaining the requisite percentage of marks in the subject of the examination falls under the clause "conditions to be complied by candidates for any University examination" occurring in sub-clause (n) of s. 31 of the Act. Therefore, the Senate had the power to award some percentage of marks as grace marks to candidates appearing in University examinations in considering whether they are eligible to pass the examination in the subject or subjects in which they had appeared. There is no dispute that the minimum number of marks required for passing the examination in a paper/subject is 50 per cent of marks. When Subash Chander, respondent 1, was admitted to the M.B.B.S. course in 1965, Rule 7.1 as it stood then and extracted above provided that the candidate who fails in one or more papers/subjects or aggregate may be given grace marks upto 1 per cent of the total aggregate marks excluding for practical and internal assessment to his best advantage in order to have him declared to have passed the examination. Subash Chander, respondent 1, who appeared for the final M.B.B.S. examination only nine years latter in 1974 had to pass in four subjects, namely, Medicine, Surgery Eye and ENT and Midwifery for each of which the aggregate was 400 marks. He secured 202, 225 and 204 marks in Medicine, Surgery, and Eye and ENT respectively and was declared to have passed the examination in those subjects. Midwifery consists of two parts, namely, theory and practical for each of which the aggregate was 200 marks. Subash Chander, respondent 1, secured 106 out of 200 in the practical examination and only 95 out of 200 in the theory examination. Since the total aggregate of all the four subjects for which he appeared in 1974 was 1600 marks, under the old Regulation 25 read with Rule 7.1 as it stood at the time of his admission to the course in 1965 he would be entitled to 16 grace marks and would have been declared to have passed the examination as the addition of 16 grace marks to the 95 marks actually secured by him in the practical examination in Midwifery would satisfy the required minimum of 50 per cent. But long before Subash Chander appeared for the final M.B.B.S. examination in 1974 the rule relating to award of grace marks to M.B.B.S. and B.D.S. students was changed by the Senate of the University in 1970 by the addition of an exception to Rule 2.1 as mentioned above. It is not contended that the sanction of the Government had not been obtained for making this change. The exception says that in the case of M.B.B.S. and B.D.S. examinations however the grace marks s hall be given upto 1 per cent of the total marks of each subject and not up to 1 per cent of the aggregate marks of all the subjects; in other words each subject will be, for this purpose, a separate unit and a candidate who fails in a subject by not more than 1 per cent may be given the required number of marks in order to pass in that subject. Under this rule as amended in 1970 Subash Chander, respondent 1, was entitled to only 4 marks as grace marks being 1 per cent of the aggregate of 400 marks for Midwifery alone. As the addition of 4 grace marks to 95 marks actually secured by him in the practical examination in Midwifery for which the aggregate was 200 out of that total aggregate of 400 marks for that subject marks only 99 out of 200 it was less than 50 per cent, and he was declared to have failed in Midwifery and asked to reappear for that subject.The minimum prescribed for passing in each subject is 50 per cent. Under the old rule as it stood prior 1970, Subash Chander could have passed by getting 16 grace marks being 1 per cent of the aggregate of all the four subjects, namely, Medicine, Surgery, Eye and ENT and Midwifery even if he had secured only 84 marks out of 200 in the practical examination in Midwifery which comes to only 42 per cent and he had secured more than 50 per cent in the other subjects/papers. The Senate thought it fit to remedy this glaring defect so far as M.B.B.S. and B.D.S. examinations are concerned by adding the exception to Rule 2.1 in 1970 under which the grace marks would be only 1 per cent of the aggregate marks in the particular subject. We do not think that the Senate did not have the necessary power to effect that change o r had acted unreasonably in making the change. We think that the Senate had the necessary power under s. 31(2)(n) of the Act to fix, from time to time, the percentage of marks required for passing the examination and to grant or to refuse to grant grace-marks or to enhance or reduce the quantum of grace marks. It has not been contended before us that there was any mala fides on the part of the Senate in making this change. It could not be contended that Subash Chander who appeared for the final examination in 1974 did not a have sufficient notice of the change brought about in 1970 in the rule relating to award of grace marks or that he was prejudiced by thedo not agree with the learned Judges of the Full Bench of the High Court that there is any element of retrospectivity in the change brought about by the addition of the exception to Rule 2.1 of the calender for the year 197(). Retrospective" according to the Shorter Oxford English Dictionary, Third Edition, in relation to Statutes etc. means "operative with regard to past time". The change brought about by the addition of the exception to Rule 2.1 does not say that it shall be operative with effect from any earlier date. It is obviously prospective. It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to Subash Chander, respondent 1, who appeared for the final examination in 1974, after he had joined the course earlier in 1965. No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating there to which were in force at the time of his admission would continue to be applied to him until he finished his whole course. In the Calendar for 1979 we find the following at pagethe integrated nature of a course spread over more than one academic year, the regulations in force at the time a student joins a course shall hold good only for the examinations held during or at the end of the academic year. Nothing in these regulations shall be deemed to debar the University from amending the regulations subsequently and the amended regulations, if any, shall apply to all students whether old orwe are clearly of the opinion that there is no question of the change in the rule made in the year 1970 having retrospective operation merely because it was applied in 1974 to Subash Chander who had joined the M.B.B.S. course in 1965 when the rule regarding award of grace marks was different. In these circumstances, we affirm the view of D.K. Mahajan and P.C. Jain, JJ. expressed in the Division Bench judgment in Sewa Ram v. Kurukshetra University (Supra) and disapprove the view taken by the learned Judges of the Full Bench in the decision under appeal in this case and ho ld that the University was right in holding that Subash Chander, respondent 1, was not entitled to 16 grace marks under the old rule but was entitled to only 4 grace marks under the new rule and had therefore not passed the examination in Midwifery. | 1 | 3,612 | 1,586 | ### 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:
to refuse to grant grace-marks or to enhance or reduce the quantum of grace marks. It has not been contended before us that there was any mala fides on the part of the Senate in making this change. It could not be contended that Subash Chander who appeared for the final examination in 1974 did not a have sufficient notice of the change brought about in 1970 in the rule relating to award of grace marks or that he was prejudiced by the change.7. We do not agree with the learned Judges of the Full Bench of the High Court that there is any element of retrospectivity in the change brought about by the addition of the exception to Rule 2.1 of the calender for the year 197(). Retrospective" according to the Shorter Oxford English Dictionary, Third Edition, in relation to Statutes etc. means "operative with regard to past time". The change brought about by the addition of the exception to Rule 2.1 does not say that it shall be operative with effect from any earlier date. It is obviously prospective. It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to Subash Chander, respondent 1, who appeared for the final examination in 1974, after he had joined the course earlier in 1965. No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating there to which were in force at the time of his admission would continue to be applied to him until he finished his whole course. In the Calendar for 1979 we find the following at page 1:"Notwithstanding the integrated nature of a course spread over more than one academic year, the regulations in force at the time a student joins a course shall hold good only for the examinations held during or at the end of the academic year. Nothing in these regulations shall be deemed to debar the University from amending the regulations subsequently and the amended regulations, if any, shall apply to all students whether old or new."8. This is as it should be, though there was no such provision in the Calendar of 1965 when Subash Chander was admitted to the course. It is admitted that it was introduced only in 1971. The absence of such a provision in the Calendar of 1965 is of no consequence. It is necessary to note in this connection what this Court had said in regard to retrospectively in such matters in B.N. Misra v. State. It is this:"The next contention on behalf of the appellant is that the rule is retrospective and that no retrospective rule can be made. As we read the rule we do not find any retrospectively in it. All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would therefore apply from that date to all government servants, even though they may have been recruited before May 25, 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all government servants even though they were recruited before 1957. But it is urged that the proviso shows that the rule was applied retrospectively. We have already referred to the proviso which lays down that government servants who had attained the age of 55 years on or before June 17, 1957 and had not attained the age of 55 years on May 25, 1961 would be deemed to have been retained in service after the date of superannuation, namely 55 years. This proviso in our opinion docs not make the rule retrospective; it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961. Further the second order issued on the same day also clearly shows that there was no retrospective operation of the rule, for in actual effect no government servant was retired before the date of new rule i.e. May 25, 1961 and all of them were continued in service up to December 31, 1961 and were therefore to retire on reaching the age of superannuation according to the old rule. We are, therefore, of opinion that the new rule reducing the age of retirement from 58 years to 55 years cannot be said to be retrospective. The proviso to new rule and the second notification are only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule therefore, cannot be struck down on the ground that it is retrospective in operation."Therefore, we are clearly of the opinion that there is no question of the change in the rule made in the year 1970 having retrospective operation merely because it was applied in 1974 to Subash Chander who had joined the M.B.B.S. course in 1965 when the rule regarding award of grace marks was different. In these circumstances, we affirm the view of D.K. Mahajan and P.C. Jain, JJ. expressed in the Division Bench judgment in Sewa Ram v. Kurukshetra University (Supra) and disapprove the view taken by the learned Judges of the Full Bench in the decision under appeal in this case and ho ld that the University was right in holding that Subash Chander, respondent 1, was not entitled to 16 grace marks under the old rule but was entitled to only 4 grace marks under the new rule and had therefore not passed the examination in Midwifery.
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### Explanation:
the 95 marks actually secured by him in the practical examination in Midwifery would satisfy the required minimum of 50 per cent. But long before Subash Chander appeared for the final M.B.B.S. examination in 1974 the rule relating to award of grace marks to M.B.B.S. and B.D.S. students was changed by the Senate of the University in 1970 by the addition of an exception to Rule 2.1 as mentioned above. It is not contended that the sanction of the Government had not been obtained for making this change. The exception says that in the case of M.B.B.S. and B.D.S. examinations however the grace marks s hall be given upto 1 per cent of the total marks of each subject and not up to 1 per cent of the aggregate marks of all the subjects; in other words each subject will be, for this purpose, a separate unit and a candidate who fails in a subject by not more than 1 per cent may be given the required number of marks in order to pass in that subject. Under this rule as amended in 1970 Subash Chander, respondent 1, was entitled to only 4 marks as grace marks being 1 per cent of the aggregate of 400 marks for Midwifery alone. As the addition of 4 grace marks to 95 marks actually secured by him in the practical examination in Midwifery for which the aggregate was 200 out of that total aggregate of 400 marks for that subject marks only 99 out of 200 it was less than 50 per cent, and he was declared to have failed in Midwifery and asked to reappear for that subject.The minimum prescribed for passing in each subject is 50 per cent. Under the old rule as it stood prior 1970, Subash Chander could have passed by getting 16 grace marks being 1 per cent of the aggregate of all the four subjects, namely, Medicine, Surgery, Eye and ENT and Midwifery even if he had secured only 84 marks out of 200 in the practical examination in Midwifery which comes to only 42 per cent and he had secured more than 50 per cent in the other subjects/papers. The Senate thought it fit to remedy this glaring defect so far as M.B.B.S. and B.D.S. examinations are concerned by adding the exception to Rule 2.1 in 1970 under which the grace marks would be only 1 per cent of the aggregate marks in the particular subject. We do not think that the Senate did not have the necessary power to effect that change o r had acted unreasonably in making the change. We think that the Senate had the necessary power under s. 31(2)(n) of the Act to fix, from time to time, the percentage of marks required for passing the examination and to grant or to refuse to grant grace-marks or to enhance or reduce the quantum of grace marks. It has not been contended before us that there was any mala fides on the part of the Senate in making this change. It could not be contended that Subash Chander who appeared for the final examination in 1974 did not a have sufficient notice of the change brought about in 1970 in the rule relating to award of grace marks or that he was prejudiced by thedo not agree with the learned Judges of the Full Bench of the High Court that there is any element of retrospectivity in the change brought about by the addition of the exception to Rule 2.1 of the calender for the year 197(). Retrospective" according to the Shorter Oxford English Dictionary, Third Edition, in relation to Statutes etc. means "operative with regard to past time". The change brought about by the addition of the exception to Rule 2.1 does not say that it shall be operative with effect from any earlier date. It is obviously prospective. It is not possible to hold that it is retrospective in operation merely because though introduced in 1970 it was applied to Subash Chander, respondent 1, who appeared for the final examination in 1974, after he had joined the course earlier in 1965. No promise was made or could be deemed to have been made to him at the time of his admission in 1965 that there will be no alteration of the rule or regulation in regard to the percentage of marks required for passing any examination or award of grace marks and that the rules relating there to which were in force at the time of his admission would continue to be applied to him until he finished his whole course. In the Calendar for 1979 we find the following at pagethe integrated nature of a course spread over more than one academic year, the regulations in force at the time a student joins a course shall hold good only for the examinations held during or at the end of the academic year. Nothing in these regulations shall be deemed to debar the University from amending the regulations subsequently and the amended regulations, if any, shall apply to all students whether old orwe are clearly of the opinion that there is no question of the change in the rule made in the year 1970 having retrospective operation merely because it was applied in 1974 to Subash Chander who had joined the M.B.B.S. course in 1965 when the rule regarding award of grace marks was different. In these circumstances, we affirm the view of D.K. Mahajan and P.C. Jain, JJ. expressed in the Division Bench judgment in Sewa Ram v. Kurukshetra University (Supra) and disapprove the view taken by the learned Judges of the Full Bench in the decision under appeal in this case and ho ld that the University was right in holding that Subash Chander, respondent 1, was not entitled to 16 grace marks under the old rule but was entitled to only 4 grace marks under the new rule and had therefore not passed the examination in Midwifery.
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Monnet Ispat & Energy Ltd. & Others Vs. Union of India & Others | a variation not exceeding ten percent;" Reading of the aforesaid Rule makes it clear that to be classified as `captive generating plant under Section 9 read with Section 2(8) of the Act of 2003, a power plant has to fulfil certain conditions; firstly, 26% of the ownership of the plant must be held by the captive user(s); and secondly, 51% of the electricity generated in such plant, on annual basis, is to be consumed for captive use. We find that the provision of the rule making power in Section 176 of the Act of 2003, deals with the power of Central Government to make the rules for carrying out the provisions of the Act and, Section 178 of the Act of 2003, deals with the powers of the Commission to make regulations. The Rules of 2005 have been framed by the Central Government under the power conferred upon it under Section 176 of the Act of 2003.11. The vires of Rule 3(1)(a)(ii) have been put into question in the instant cases. The High Court has rightly upheld its validity. We find that the definition of generating plant, as provided under Section 2(8) of the Act of 2003, emphasizes that the generation of electricity should be primarily "for his own use". Similar is the expression used in fourth proviso to Sub-Section 2 of Section 38, and the fourth proviso to Sub-Section (2) of Section 42 of the Act of 2003 contains provision of no surcharge on "his own use" as contemplated therein. Thus, while exercising the power under Section 176 of the Act of 2003, it was open to specify how much minimum use should be made in order to classify a captive power plant, primarily for "his own use". Thus, the Rule cannot be said to be repugnant to, rather it carries the very intendment of, the Act and is quite reasonable.12. The prescription that at least 51% electricity generation should be used for the purpose of "his own use", as has been provided in Rule 3 (1)(a)(ii) of the Rules of 2005, cannot be said to be arbitrary in any manner. In case, for certain months generating plant has to be closed for any reason or for non-compliance of the provisions or for any deficiency, the prescription of consumption of 51% on yearly basis takes care of such closure as well. The calculation is provided to be on an annual basis. Thus, provision is quite reasonable, and it cannot be said to be ultravires to the Act and fulfills purpose of the provisions of the Act, and no reading down of provision is called for as prayed. In case, due to force-measure any generating plant has been closed for a certain period, provision of consumption to be seen in annual perspective takes care of such exigency also. 13. Reliance has been placed on behalf of the appellants on Global Energy Ltd. & Anr. v. Central Electricity Regulatory Commission (2009) 15 SCC 570. Relied upon portions are extracted hereunder : "44. A disqualifying statute, in our opinion, must be definite and not uncertain; it should not be ambiguous or vague. Requisite guidelines in respect thereof should be laid down under the statute itself. It is well settled that essential legislative function cannot be delegated.""57. We may now consider the provisions of Section 178 of the Act. Although various clauses contained therein are merely illustrative in nature and not exhaustive, we will assume that although the matter relating to grant of licence is covered by Sections 12 and 14 of the Act, the regulation-making power may also be available for the said purpose. We have noticed hereinbefore the effect of subsection (1) of Section 178. We may only notice that clauses (a), (b), (c) and (o) which are referable to the provisions of Sections 14 and 15 as such do not provide for any power to deal with disqualification authorizing the respondent to frame regulation." This Court considered vires of Regulation 6- A of the Regulations framed by the CERC in 2006. It was held to be ultra vires of Act and the Constitution of India. Regulation 6-A provided for disqualification. This Court held subordinate legislation should be read in the context of the Act, in terms of requirement of section 52 of the Electricity Act, 2003. This Court observed that when statute is sought to be enforced power of authority to impose restrictions and conditions must be construed having regard to purpose and object it seeks to achieve. The conditions regarding generation of power must be reasonable. There cannot be excessive delegation. The power of Central Electricity Regulatory Commission to impose qualifications/restrictions should be read in line with larger object of the Act. The delegated legislation should promote rational and accountable policy implementation. This Court also observed that for disqualification guidelines should be laid down in the statute itself. Essential legislative functions cannot be delegated. 14. In the light of what has been discussed by this Court in Global Energy Ltd. (supra) when we examine definition of Generating Plant in section 2(8) of the Act it emphasizes setting up primarily for his own use or in case of cooperative society for use by its members. When we consider Rule 3()(a)(ii) of the Rules of 2005, it is clear that it provides not less than 51% of aggregate electricity generated in such plant determined on annual basis is consumed for captive use. The rule conforms to the requirement of section 2(8) that primarily electricity should be generated by captive generating plant for his own use/members as the case may be. The provisions of Rule 3(1)(a)(ii) of the Rules of 2005 cannot be said to be against purposes of the Act. Rather it promotes rationale of the provision and essential qualifications laid down in the Act itself. It cannot be said essential legislative function has been delegated in the case. The prescription in Rule 3(1)(a)(ii) is not thus ultra vires to the Act. It makes intendment of statutory provision clear and explicit. | 1[ds]8. It is apparent from the provisions that generating plants are to be regulated as per the provisions of the Act, Rules andof the aforesaid Rule makes it clear that to be classified as `captive generating plant under Section 9 read with Section 2(8) of the Act of 2003, a power plant has to fulfil certain conditions; firstly, 26% of the ownership of the plant must be held by the captive user(s); and secondly, 51% of the electricity generated in such plant, on annual basis, is to be consumed for captive use. We find that the provision of the rule making power in Section 176 of the Act of 2003, deals with the power of Central Government to make the rules for carrying out the provisions of the Act and, Section 178 of the Act of 2003, deals with the powers of the Commission to make regulations. The Rules of 2005 have been framed by the Central Government under the power conferred upon it under Section 176 of the Act of 2003.11.The vires of Rule 3(1)(a)(ii) have been put into question in the instant cases.The High Court has rightly upheld its validity. We find that the definition of generating plant, as provided under Section 2(8) of the Act of 2003, emphasizes that the generation of electricity should be primarily "for his own use". Similar is the expression used in fourth proviso to2 of Section 38, and the fourth proviso to(2) of Section 42 of the Act of 2003 contains provision of no surcharge on "his own use" as contemplated therein. Thus, while exercising the power under Section 176 of the Act of 2003, it was open to specify how much minimum use should be made in order to classify a captive power plant, primarily for "his own use". Thus, the Rule cannot be said to be repugnant to, rather it carries the very intendment of, the Act and is quite reasonable.12. The prescription that at least 51% electricity generation should be used for the purpose of "his own use", as has been provided in Rule 3 (1)(a)(ii) of the Rules of 2005, cannot be said to be arbitrary in any manner. In case, for certain months generating plant has to be closed for any reason or forof the provisions or for any deficiency, the prescription of consumption of 51% on yearly basis takes care of such closure as well. The calculation is provided to be on an annual basis. Thus, provision is quite reasonable, and it cannot be said to be ultravires to the Act and fulfills purpose of the provisions of the Act, and no reading down of provision is called for as prayed. In case, due toany generating plant has been closed for a certain period, provision of consumption to be seen in annual perspective takes care of such exigency also.In the light of what has been discussed by this Court in Global Energy Ltd. (supra) when we examine definition of Generating Plant in section 2(8) of the Act it emphasizes setting up primarily for his own use or in case of cooperative society for use by its members. When we consider Rule 3()(a)(ii) of the Rules of 2005, it is clear that it provides not less than 51% of aggregate electricity generated in such plant determined on annual basis is consumed for captive use. The rule conforms to the requirement of section 2(8) that primarily electricity should be generated by captive generating plant for his own use/members as the case may be. The provisions of Rule 3(1)(a)(ii) of the Rules of 2005 cannot be said to be against purposes of the Act. Rather it promotes rationale of the provision and essential qualifications laid down in the Act itself. It cannot be said essential legislative function has been delegated in the case. The prescription in Rule 3(1)(a)(ii) is not thus ultra vires to the Act. It makes intendment of statutory provision clear and explicit. | 1 | 3,828 | 792 | ### 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:
a variation not exceeding ten percent;" Reading of the aforesaid Rule makes it clear that to be classified as `captive generating plant under Section 9 read with Section 2(8) of the Act of 2003, a power plant has to fulfil certain conditions; firstly, 26% of the ownership of the plant must be held by the captive user(s); and secondly, 51% of the electricity generated in such plant, on annual basis, is to be consumed for captive use. We find that the provision of the rule making power in Section 176 of the Act of 2003, deals with the power of Central Government to make the rules for carrying out the provisions of the Act and, Section 178 of the Act of 2003, deals with the powers of the Commission to make regulations. The Rules of 2005 have been framed by the Central Government under the power conferred upon it under Section 176 of the Act of 2003.11. The vires of Rule 3(1)(a)(ii) have been put into question in the instant cases. The High Court has rightly upheld its validity. We find that the definition of generating plant, as provided under Section 2(8) of the Act of 2003, emphasizes that the generation of electricity should be primarily "for his own use". Similar is the expression used in fourth proviso to Sub-Section 2 of Section 38, and the fourth proviso to Sub-Section (2) of Section 42 of the Act of 2003 contains provision of no surcharge on "his own use" as contemplated therein. Thus, while exercising the power under Section 176 of the Act of 2003, it was open to specify how much minimum use should be made in order to classify a captive power plant, primarily for "his own use". Thus, the Rule cannot be said to be repugnant to, rather it carries the very intendment of, the Act and is quite reasonable.12. The prescription that at least 51% electricity generation should be used for the purpose of "his own use", as has been provided in Rule 3 (1)(a)(ii) of the Rules of 2005, cannot be said to be arbitrary in any manner. In case, for certain months generating plant has to be closed for any reason or for non-compliance of the provisions or for any deficiency, the prescription of consumption of 51% on yearly basis takes care of such closure as well. The calculation is provided to be on an annual basis. Thus, provision is quite reasonable, and it cannot be said to be ultravires to the Act and fulfills purpose of the provisions of the Act, and no reading down of provision is called for as prayed. In case, due to force-measure any generating plant has been closed for a certain period, provision of consumption to be seen in annual perspective takes care of such exigency also. 13. Reliance has been placed on behalf of the appellants on Global Energy Ltd. & Anr. v. Central Electricity Regulatory Commission (2009) 15 SCC 570. Relied upon portions are extracted hereunder : "44. A disqualifying statute, in our opinion, must be definite and not uncertain; it should not be ambiguous or vague. Requisite guidelines in respect thereof should be laid down under the statute itself. It is well settled that essential legislative function cannot be delegated.""57. We may now consider the provisions of Section 178 of the Act. Although various clauses contained therein are merely illustrative in nature and not exhaustive, we will assume that although the matter relating to grant of licence is covered by Sections 12 and 14 of the Act, the regulation-making power may also be available for the said purpose. We have noticed hereinbefore the effect of subsection (1) of Section 178. We may only notice that clauses (a), (b), (c) and (o) which are referable to the provisions of Sections 14 and 15 as such do not provide for any power to deal with disqualification authorizing the respondent to frame regulation." This Court considered vires of Regulation 6- A of the Regulations framed by the CERC in 2006. It was held to be ultra vires of Act and the Constitution of India. Regulation 6-A provided for disqualification. This Court held subordinate legislation should be read in the context of the Act, in terms of requirement of section 52 of the Electricity Act, 2003. This Court observed that when statute is sought to be enforced power of authority to impose restrictions and conditions must be construed having regard to purpose and object it seeks to achieve. The conditions regarding generation of power must be reasonable. There cannot be excessive delegation. The power of Central Electricity Regulatory Commission to impose qualifications/restrictions should be read in line with larger object of the Act. The delegated legislation should promote rational and accountable policy implementation. This Court also observed that for disqualification guidelines should be laid down in the statute itself. Essential legislative functions cannot be delegated. 14. In the light of what has been discussed by this Court in Global Energy Ltd. (supra) when we examine definition of Generating Plant in section 2(8) of the Act it emphasizes setting up primarily for his own use or in case of cooperative society for use by its members. When we consider Rule 3()(a)(ii) of the Rules of 2005, it is clear that it provides not less than 51% of aggregate electricity generated in such plant determined on annual basis is consumed for captive use. The rule conforms to the requirement of section 2(8) that primarily electricity should be generated by captive generating plant for his own use/members as the case may be. The provisions of Rule 3(1)(a)(ii) of the Rules of 2005 cannot be said to be against purposes of the Act. Rather it promotes rationale of the provision and essential qualifications laid down in the Act itself. It cannot be said essential legislative function has been delegated in the case. The prescription in Rule 3(1)(a)(ii) is not thus ultra vires to the Act. It makes intendment of statutory provision clear and explicit.
### Response:
1
### Explanation:
8. It is apparent from the provisions that generating plants are to be regulated as per the provisions of the Act, Rules andof the aforesaid Rule makes it clear that to be classified as `captive generating plant under Section 9 read with Section 2(8) of the Act of 2003, a power plant has to fulfil certain conditions; firstly, 26% of the ownership of the plant must be held by the captive user(s); and secondly, 51% of the electricity generated in such plant, on annual basis, is to be consumed for captive use. We find that the provision of the rule making power in Section 176 of the Act of 2003, deals with the power of Central Government to make the rules for carrying out the provisions of the Act and, Section 178 of the Act of 2003, deals with the powers of the Commission to make regulations. The Rules of 2005 have been framed by the Central Government under the power conferred upon it under Section 176 of the Act of 2003.11.The vires of Rule 3(1)(a)(ii) have been put into question in the instant cases.The High Court has rightly upheld its validity. We find that the definition of generating plant, as provided under Section 2(8) of the Act of 2003, emphasizes that the generation of electricity should be primarily "for his own use". Similar is the expression used in fourth proviso to2 of Section 38, and the fourth proviso to(2) of Section 42 of the Act of 2003 contains provision of no surcharge on "his own use" as contemplated therein. Thus, while exercising the power under Section 176 of the Act of 2003, it was open to specify how much minimum use should be made in order to classify a captive power plant, primarily for "his own use". Thus, the Rule cannot be said to be repugnant to, rather it carries the very intendment of, the Act and is quite reasonable.12. The prescription that at least 51% electricity generation should be used for the purpose of "his own use", as has been provided in Rule 3 (1)(a)(ii) of the Rules of 2005, cannot be said to be arbitrary in any manner. In case, for certain months generating plant has to be closed for any reason or forof the provisions or for any deficiency, the prescription of consumption of 51% on yearly basis takes care of such closure as well. The calculation is provided to be on an annual basis. Thus, provision is quite reasonable, and it cannot be said to be ultravires to the Act and fulfills purpose of the provisions of the Act, and no reading down of provision is called for as prayed. In case, due toany generating plant has been closed for a certain period, provision of consumption to be seen in annual perspective takes care of such exigency also.In the light of what has been discussed by this Court in Global Energy Ltd. (supra) when we examine definition of Generating Plant in section 2(8) of the Act it emphasizes setting up primarily for his own use or in case of cooperative society for use by its members. When we consider Rule 3()(a)(ii) of the Rules of 2005, it is clear that it provides not less than 51% of aggregate electricity generated in such plant determined on annual basis is consumed for captive use. The rule conforms to the requirement of section 2(8) that primarily electricity should be generated by captive generating plant for his own use/members as the case may be. The provisions of Rule 3(1)(a)(ii) of the Rules of 2005 cannot be said to be against purposes of the Act. Rather it promotes rationale of the provision and essential qualifications laid down in the Act itself. It cannot be said essential legislative function has been delegated in the case. The prescription in Rule 3(1)(a)(ii) is not thus ultra vires to the Act. It makes intendment of statutory provision clear and explicit.
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Lila Kanta Barua and Others Vs. Collector of Customs and Central Excise, Shillong and Others | KRISHNA IYER, J. This is a hard case which cannot persuade us to make bad law; therefore, the petition has to fail. 2. The petitioners are Central Government employees of the Customs Department who complain that they find themselves below Customs Officers employed by the Tripura princely State, who came into the service of the Central Government (Customs Department), on the princely State being integrated with the Union of India. The reason for the former employees of the Tripura State being given seniority over the petitioners is that they have longer confirmed service. The petitioners contention is that continuous officiating service should be the guide-line and not the length of service after confirmation. These are matters of policy which government must have discretion to adopt. Indeed, government did change its policy from time to time after making an assessment of the situation with reference to administrative exigencies and overall justice. Unless something arbitrary, preserve, mala fide or extraneous or like factor, is imported into the policy of the government, the court cannot predicate a breach of Article 16. We are unable to see any such vitiating factor. We may also add that some what challenges were made in Amrit Lal Berry v. Collector of Central Excise, New Delhi ((1975) 4 SCC 714 : 1975 SCC (L&S) 412 : (1975) 2 SCR 960 ), and repelled. We are unable to accede to the contentions of the petitioners and dismiss the writ petition. 3. We feel strongly that petitioners deserve sympathy, for, long years of service without any promotion of prospect of promotion, will frustrate of a public servant and impair his efficiency. There must be a basic sense of justice and some hope of promotion lest the employees should become disenchanted with his work. represents that decades of service without any promotion has been the lot of several of the petitioners. We are sure that, on a proper representation being made to the Government of India, this aspect will be considered and by suitable adjustments a sense of Justice and contentment will be produced in the petitioners and those like them, so that the overall efficiency of the employees of the Customs Department may be maintained or improved. | 0[ds]We are unable to see any such vitiating factor. We may also add that some what challenges were made in Amrit Lal Berry v. Collector of Central Excise, New Delhi ((1975) 4 SCC 714 : 1975 SCC) 412 : (1975) 2 SCR 960 ), and repelled. We are unable to accede to the contentions of the petitioners and dismiss the writ petition3. We feel strongly that petitioners deserve sympathy, for, long years of service without any promotion of prospect of promotion, will frustrate of a public servant and impair his efficiency. There must be a basic sense of justice and some hope of promotion lest the employees should become disenchanted with his work. represents that decades of service without any promotion has been the lot of several of the petitioners. We are sure that, on a proper representation being made to the Government of India, this aspect will be considered and by suitable adjustments a sense of Justice and contentment will be produced in the petitioners and those like them, so that the overall efficiency of the employees of the Customs Department may be maintained or improved. | 0 | 415 | 212 | ### 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:
KRISHNA IYER, J. This is a hard case which cannot persuade us to make bad law; therefore, the petition has to fail. 2. The petitioners are Central Government employees of the Customs Department who complain that they find themselves below Customs Officers employed by the Tripura princely State, who came into the service of the Central Government (Customs Department), on the princely State being integrated with the Union of India. The reason for the former employees of the Tripura State being given seniority over the petitioners is that they have longer confirmed service. The petitioners contention is that continuous officiating service should be the guide-line and not the length of service after confirmation. These are matters of policy which government must have discretion to adopt. Indeed, government did change its policy from time to time after making an assessment of the situation with reference to administrative exigencies and overall justice. Unless something arbitrary, preserve, mala fide or extraneous or like factor, is imported into the policy of the government, the court cannot predicate a breach of Article 16. We are unable to see any such vitiating factor. We may also add that some what challenges were made in Amrit Lal Berry v. Collector of Central Excise, New Delhi ((1975) 4 SCC 714 : 1975 SCC (L&S) 412 : (1975) 2 SCR 960 ), and repelled. We are unable to accede to the contentions of the petitioners and dismiss the writ petition. 3. We feel strongly that petitioners deserve sympathy, for, long years of service without any promotion of prospect of promotion, will frustrate of a public servant and impair his efficiency. There must be a basic sense of justice and some hope of promotion lest the employees should become disenchanted with his work. represents that decades of service without any promotion has been the lot of several of the petitioners. We are sure that, on a proper representation being made to the Government of India, this aspect will be considered and by suitable adjustments a sense of Justice and contentment will be produced in the petitioners and those like them, so that the overall efficiency of the employees of the Customs Department may be maintained or improved.
### Response:
0
### Explanation:
We are unable to see any such vitiating factor. We may also add that some what challenges were made in Amrit Lal Berry v. Collector of Central Excise, New Delhi ((1975) 4 SCC 714 : 1975 SCC) 412 : (1975) 2 SCR 960 ), and repelled. We are unable to accede to the contentions of the petitioners and dismiss the writ petition3. We feel strongly that petitioners deserve sympathy, for, long years of service without any promotion of prospect of promotion, will frustrate of a public servant and impair his efficiency. There must be a basic sense of justice and some hope of promotion lest the employees should become disenchanted with his work. represents that decades of service without any promotion has been the lot of several of the petitioners. We are sure that, on a proper representation being made to the Government of India, this aspect will be considered and by suitable adjustments a sense of Justice and contentment will be produced in the petitioners and those like them, so that the overall efficiency of the employees of the Customs Department may be maintained or improved.
|
Axis Bank Vs. Sbs Organics Pvt. Ltd | also means admit to consideration. It would therefore appear that the direction to the court in the proviso to s. 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai C.J.) holds that the words accompanied by showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making an appeal the equivalent of the memorandum of appeal is not sound. Even under O. 41 of the Code of Civil Procedure, the expression "appeal" and "memorandum of appeal" are used to distinct two distinct things. In Whartons Law Lexicon, the word "appeal" is defined as the judicial examination of the decision by a higher Court of the decision of an inferior court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax.” 21. We are also conscious of the fact that such a precondition is present in several statutes while providing for statutory appeals, like The Income-Tax Act, 1961, The Central Excise Act, 1944, The Consumer Protection Act, 1986, The Motor Vehicles Act, 1988, etc. However, unlike those statutes, the purpose of the SARFAESI Act is different, it is meant only for speedy recovery of the dues, and the scheme under Section 13(4) of the Act, permits the secured creditor to proceed only against the secured assets. Of course, the secured creditor is free to proceed against the guarantors and the pledged assets, notwithstanding the steps under Section 13(4) and without first exhausting the recovery as against secured assets referred to in the notice under Section 13(2). But such guarantor, if aggrieved, is not entitled to approach DRT under Section 17. That right is restricted only to persons aggrieved by steps under Section 13(4) proceeding for recovery against the secured assets.22. The Appeal under Section 18 of the Act is permissible only against the order passed by the DRT under Section 17 of the Act. Under Section 17, the scope of enquiry is limited to the steps taken under Section 13(4) against the secured assets. The partial deposit before the DRAT as a pre-condition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset. It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor. If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the predeposit, the same has to be allowed and the pre-deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of The Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law. 23. We are also unable to agree with the contention that the Bank has a lien on the pre-deposit made under Section 18 of the SARFAESI Act in terms of Section 171 of The Indian Contract Act, 1872. Section 171 of The Indian Contract Act, 1872 on general lien, is in a different context: “171. General lien of bankers, factors, wharfingers, attorneys and policy-brokers.—Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.” 24. Section 171 of The Indian Contract Act, 1872 provides for retention of the goods bailed to the bank by way of security for the general balance of account. The pre-deposit made by a borrower for the purpose of entertaining the appeal under Section 18 of the Act is not with the bank but with the Tribunal. It is not a bailment with the bank as provided under Section 148 of The Indian Contract Act, 1872. Conceptually, it should be an argument available to the depositor, since the goods bailed are to be returned or otherwise disposed of, after the purpose is accomplished as per the directions of the bailor. 25. In the case before us, the first respondent had in fact sought withdrawal of the appeal, since the appellant had already proceeded against the secured assets by the time the appeal came up for consideration on merits. There is neither any order of appropriation during the pendency of the appeal nor any attachment on the pre-deposit. Therefore, the deposit made by the first respondent is liable to be returned to the first respondent.26. Though for different reasons as well, we endorse the view taken by the High Court. Thus, there | 0[ds]19. Any person aggrieved by the order of the DRT under Section 17 of the SARFAESI Act, is entitled to prefer an appeal along with the prescribed fee within the permitted period of 30 days. Foran appeal, a fee is prescribed, whereas for the Tribunal tothe appeal, the aggrieved person has to make a deposit of fifty per cent of the amount of debt due from him as claimed by the secured creditors or determined by the DRT, whichever is less. This amount can, at the discretion of the Tribunal, in appropriate cases, for recorded reasons, be reduced to twenty- five per cent of the debt.We are also conscious of the fact that such a precondition is present in several statutes while providing for statutory appeals, like The Income-Tax Act, 1961, The Central Excise Act, 1944, The Consumer Protection Act, 1986, The Motor Vehicles Act, 1988, etc. However, unlike those statutes, the purpose of the SARFAESI Act is different, it is meant only for speedy recovery of the dues, and the scheme under Section 13(4) of the Act, permits the secured creditor to proceed only against the secured assets. Of course, the secured creditor is free to proceed against the guarantors and the pledged assets, notwithstanding the steps under Section 13(4) and without first exhausting the recovery as against secured assets referred to in the notice under Section 13(2). But such guarantor, if aggrieved, is not entitled to approach DRT under Section 17. That right is restricted only to persons aggrieved by steps under Section 13(4) proceeding for recovery against the secured assets.22. The Appeal under Section 18 of the Act is permissible only against the order passed by the DRT under Section 17 of the Act. Under Section 17, the scope of enquiry is limited to the steps taken under Section 13(4) against the secured assets. The partial deposit before the DRAT as a pre-condition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset. It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor. If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the predeposit, the same has to be allowed and the pre-deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of The Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law.In the case before us, the first respondent had in fact sought withdrawal of the appeal, since the appellant had already proceeded against the secured assets by the time the appeal came up for consideration on merits. There is neither any order of appropriation during the pendency of the appeal nor any attachment on the pre-deposit. Therefore, the deposit made by the first respondent is liable to be returned to the first respondent.26. Though for different reasons as well, we endorse the view taken by the High Court. | 0 | 5,812 | 669 | ### 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:
also means admit to consideration. It would therefore appear that the direction to the court in the proviso to s. 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai C.J.) holds that the words accompanied by showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making an appeal the equivalent of the memorandum of appeal is not sound. Even under O. 41 of the Code of Civil Procedure, the expression "appeal" and "memorandum of appeal" are used to distinct two distinct things. In Whartons Law Lexicon, the word "appeal" is defined as the judicial examination of the decision by a higher Court of the decision of an inferior court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax.” 21. We are also conscious of the fact that such a precondition is present in several statutes while providing for statutory appeals, like The Income-Tax Act, 1961, The Central Excise Act, 1944, The Consumer Protection Act, 1986, The Motor Vehicles Act, 1988, etc. However, unlike those statutes, the purpose of the SARFAESI Act is different, it is meant only for speedy recovery of the dues, and the scheme under Section 13(4) of the Act, permits the secured creditor to proceed only against the secured assets. Of course, the secured creditor is free to proceed against the guarantors and the pledged assets, notwithstanding the steps under Section 13(4) and without first exhausting the recovery as against secured assets referred to in the notice under Section 13(2). But such guarantor, if aggrieved, is not entitled to approach DRT under Section 17. That right is restricted only to persons aggrieved by steps under Section 13(4) proceeding for recovery against the secured assets.22. The Appeal under Section 18 of the Act is permissible only against the order passed by the DRT under Section 17 of the Act. Under Section 17, the scope of enquiry is limited to the steps taken under Section 13(4) against the secured assets. The partial deposit before the DRAT as a pre-condition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset. It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor. If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the predeposit, the same has to be allowed and the pre-deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of The Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law. 23. We are also unable to agree with the contention that the Bank has a lien on the pre-deposit made under Section 18 of the SARFAESI Act in terms of Section 171 of The Indian Contract Act, 1872. Section 171 of The Indian Contract Act, 1872 on general lien, is in a different context: “171. General lien of bankers, factors, wharfingers, attorneys and policy-brokers.—Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.” 24. Section 171 of The Indian Contract Act, 1872 provides for retention of the goods bailed to the bank by way of security for the general balance of account. The pre-deposit made by a borrower for the purpose of entertaining the appeal under Section 18 of the Act is not with the bank but with the Tribunal. It is not a bailment with the bank as provided under Section 148 of The Indian Contract Act, 1872. Conceptually, it should be an argument available to the depositor, since the goods bailed are to be returned or otherwise disposed of, after the purpose is accomplished as per the directions of the bailor. 25. In the case before us, the first respondent had in fact sought withdrawal of the appeal, since the appellant had already proceeded against the secured assets by the time the appeal came up for consideration on merits. There is neither any order of appropriation during the pendency of the appeal nor any attachment on the pre-deposit. Therefore, the deposit made by the first respondent is liable to be returned to the first respondent.26. Though for different reasons as well, we endorse the view taken by the High Court. Thus, there
### Response:
0
### Explanation:
19. Any person aggrieved by the order of the DRT under Section 17 of the SARFAESI Act, is entitled to prefer an appeal along with the prescribed fee within the permitted period of 30 days. Foran appeal, a fee is prescribed, whereas for the Tribunal tothe appeal, the aggrieved person has to make a deposit of fifty per cent of the amount of debt due from him as claimed by the secured creditors or determined by the DRT, whichever is less. This amount can, at the discretion of the Tribunal, in appropriate cases, for recorded reasons, be reduced to twenty- five per cent of the debt.We are also conscious of the fact that such a precondition is present in several statutes while providing for statutory appeals, like The Income-Tax Act, 1961, The Central Excise Act, 1944, The Consumer Protection Act, 1986, The Motor Vehicles Act, 1988, etc. However, unlike those statutes, the purpose of the SARFAESI Act is different, it is meant only for speedy recovery of the dues, and the scheme under Section 13(4) of the Act, permits the secured creditor to proceed only against the secured assets. Of course, the secured creditor is free to proceed against the guarantors and the pledged assets, notwithstanding the steps under Section 13(4) and without first exhausting the recovery as against secured assets referred to in the notice under Section 13(2). But such guarantor, if aggrieved, is not entitled to approach DRT under Section 17. That right is restricted only to persons aggrieved by steps under Section 13(4) proceeding for recovery against the secured assets.22. The Appeal under Section 18 of the Act is permissible only against the order passed by the DRT under Section 17 of the Act. Under Section 17, the scope of enquiry is limited to the steps taken under Section 13(4) against the secured assets. The partial deposit before the DRAT as a pre-condition for considering the appeal on merits in terms of Section 18 of the Act, is not a secured asset. It is not a secured debt either, since the borrower or the aggrieved person has not created any security interest on such pre-deposit in favour of the secured creditor. If that be so, on disposal of the appeal, either on merits or on withdrawal, or on being rendered infructuous, in case, the appellant makes a prayer for refund of the predeposit, the same has to be allowed and the pre-deposit has to be returned to the appellant, unless the Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of The Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law.In the case before us, the first respondent had in fact sought withdrawal of the appeal, since the appellant had already proceeded against the secured assets by the time the appeal came up for consideration on merits. There is neither any order of appropriation during the pendency of the appeal nor any attachment on the pre-deposit. Therefore, the deposit made by the first respondent is liable to be returned to the first respondent.26. Though for different reasons as well, we endorse the view taken by the High Court.
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B. Subbarama Naidu Vs. B. Siddamma Naidu & Others | a dispute to an arbitrator must specify the time within which the award is to be made. What is imperative is the fixation of the time for making the award. But it does not follow that where the Court omits to specify the time in the order of reference but does so elsewhere in the proceedings, the reference is bad. In Raja Har Narain Singh v. Chaudhrain Bhagwant Kaur, 18 Ind App. 55 (PC) which was a case under the Code of Civil Procedure, 1882, the Privy Council had to consider the provisions of S. 508 which correspond to those of S. 23(1) of the Arbitration Act. While pointing out that the provisions of S. 508 are mandatory and imperative they held that though the failure of the Court to specify the time for making the award in the order of reference was not a strict compliance of the terms of the section still the fact that the Court fixed a date for hearing of the case "might be sufficient. There also, as here, subsequent to the making of the reference the Court repeatedly made orders enlarging the time and in those orders fixed the time within which the award was to be made. Thus the emphasis laid by the Privy Council was on the fixation of time in some manner and not on the necessity of expressly specifying the time in the order of reference itself. Here the B Form Diary of the court shows that the dispute was referred to arbitration on January 22, 1948. The entry in the diary of that date reads thus : "Subject matter of suit is referred to Arbitration on joint petition. Call on. . . . . . . . 24-2-1948". The words "call on" must be interpreted to mean that the arbitrator was required to file his award by the date for which the suit stood adjourned, that is, February 24, 1948. In our opinion this entry should be read along with the order of reference. Reading them together it would follow that time was in fact fixed for filing the award by February 24, 1948. The mere omission to mention this date in the order of reference itself did not vitiate the reference.3. As regards the failure of the arbitrator to file the award within the time fixed the argument of learned counsel is that though on March 25, 1948, time was fixed for filing the award by June 23, 1948, the award was not actually filed till July 6, 1948. A reference to the B Form Diary discloses that on February 24, 1948, the case was adjourned to March 25, 1948. The Diary contains the remark "call o" and this remark precedes the mention of the adjourned date.The High Court has interpreted this to mean that the time was extended by the Court on February 24, 1948 to March 25, 1948. The entry dated March 25, 1948, contains the following :"Further time wanted File Award ... 23-6-1948." Three further entries are relevant and they are as follows :"23-6-1948 Call on ... 28-6-194328-6-1948 Call on ... 6-7-19486-7-1948 Award filed. Objections 13-7-1948"It is obvious from these entries that time was extended by the Court to file the award on three occasions. The award was actually ready on June 28, 1948 and was filed in Court on July 6, 1948. Learned counsel for the appellant faintly urged that on July 2, 1948, that is, before the award was actually filed, he had made an application to the Court for superseding the arbitration and that, therefore the award could not be filed thereafter. A mere application of the kind could not affect the reference. Apart from that, the award had actually been made before that date and, therefore, the attempt to seek the supersession of the arbitration was, in any case, belated.4. As regards the last point the High Court has come to the conclusion that though the area of the land allotted to the appellant is less than half the total area of the land in suit there is nothing to indicate that the value of that land is less than half that of the entire land in suit. We agree that upon the material on record it would not be possible to say that the appellant has in fact received less than his due share of property. Apart from that, however, we may point out that under S. 30 of the Act an award can be set aside only on the following three grounds ;(a) that an arbitrator or umpire has mis-conducted himself or the proceedings;(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceeding; have become, invalid under S. 35;(c) that an award has been improperly procured or is otherwise invalid.Plainly this objection would not fall either under cl. (a) or under cl. (b) nor under the first part of cl. (c) The question is whether it could possibly fall within the second part of cl. (c), that is whether the award is "other wise invalid." In order to bring the objection within this clause learned counsel contended that award was bad on its face. It is difficult for us to appreciate how the award could be said to be bad on its face. When a dispute is referred to arbitration, the arbitrator has to decide it to the best of his judgment, of course acting honestly. Here, in his judgment the arbitrator has allotted to the appellant certain lands the total area of which is less than half that of the entire land in suit. The appellants contention is that he is entitled to the entire land. This contention was before the arbitrator. In spite of that he has made the award in the terms in which he has made it. There appears to be no suggestion that the arbitrator acted dishonestly. How can it then be said that this award is on its face bad? | 0[ds]In our opinion there is no substance in any of thesemere application of the kind could not affect the reference. Apart from that, the award had actually been made before that date and, therefore, the attempt to seek the supersession of the arbitration was, in any case,agree that upon the material on record it would not be possible to say that the appellant has in fact received less than his due share ofis difficult for us to appreciate how the award could be said to be bad on its face. When a dispute is referred to arbitration, the arbitrator has to decide it to the best of his judgment, of course acting honestly. Here, in his judgment the arbitrator has allotted to the appellant certain lands the total area of which is less than half that of the entire land in suit. The appellants contention is that he is entitled to the entire land. This contention was before the arbitrator. In spite of that he has made the award in the terms in which he has made it. There appears to be no suggestion that the arbitrator acted dishonestly. | 0 | 1,328 | 210 | ### 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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a dispute to an arbitrator must specify the time within which the award is to be made. What is imperative is the fixation of the time for making the award. But it does not follow that where the Court omits to specify the time in the order of reference but does so elsewhere in the proceedings, the reference is bad. In Raja Har Narain Singh v. Chaudhrain Bhagwant Kaur, 18 Ind App. 55 (PC) which was a case under the Code of Civil Procedure, 1882, the Privy Council had to consider the provisions of S. 508 which correspond to those of S. 23(1) of the Arbitration Act. While pointing out that the provisions of S. 508 are mandatory and imperative they held that though the failure of the Court to specify the time for making the award in the order of reference was not a strict compliance of the terms of the section still the fact that the Court fixed a date for hearing of the case "might be sufficient. There also, as here, subsequent to the making of the reference the Court repeatedly made orders enlarging the time and in those orders fixed the time within which the award was to be made. Thus the emphasis laid by the Privy Council was on the fixation of time in some manner and not on the necessity of expressly specifying the time in the order of reference itself. Here the B Form Diary of the court shows that the dispute was referred to arbitration on January 22, 1948. The entry in the diary of that date reads thus : "Subject matter of suit is referred to Arbitration on joint petition. Call on. . . . . . . . 24-2-1948". The words "call on" must be interpreted to mean that the arbitrator was required to file his award by the date for which the suit stood adjourned, that is, February 24, 1948. In our opinion this entry should be read along with the order of reference. Reading them together it would follow that time was in fact fixed for filing the award by February 24, 1948. The mere omission to mention this date in the order of reference itself did not vitiate the reference.3. As regards the failure of the arbitrator to file the award within the time fixed the argument of learned counsel is that though on March 25, 1948, time was fixed for filing the award by June 23, 1948, the award was not actually filed till July 6, 1948. A reference to the B Form Diary discloses that on February 24, 1948, the case was adjourned to March 25, 1948. The Diary contains the remark "call o" and this remark precedes the mention of the adjourned date.The High Court has interpreted this to mean that the time was extended by the Court on February 24, 1948 to March 25, 1948. The entry dated March 25, 1948, contains the following :"Further time wanted File Award ... 23-6-1948." Three further entries are relevant and they are as follows :"23-6-1948 Call on ... 28-6-194328-6-1948 Call on ... 6-7-19486-7-1948 Award filed. Objections 13-7-1948"It is obvious from these entries that time was extended by the Court to file the award on three occasions. The award was actually ready on June 28, 1948 and was filed in Court on July 6, 1948. Learned counsel for the appellant faintly urged that on July 2, 1948, that is, before the award was actually filed, he had made an application to the Court for superseding the arbitration and that, therefore the award could not be filed thereafter. A mere application of the kind could not affect the reference. Apart from that, the award had actually been made before that date and, therefore, the attempt to seek the supersession of the arbitration was, in any case, belated.4. As regards the last point the High Court has come to the conclusion that though the area of the land allotted to the appellant is less than half the total area of the land in suit there is nothing to indicate that the value of that land is less than half that of the entire land in suit. We agree that upon the material on record it would not be possible to say that the appellant has in fact received less than his due share of property. Apart from that, however, we may point out that under S. 30 of the Act an award can be set aside only on the following three grounds ;(a) that an arbitrator or umpire has mis-conducted himself or the proceedings;(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceeding; have become, invalid under S. 35;(c) that an award has been improperly procured or is otherwise invalid.Plainly this objection would not fall either under cl. (a) or under cl. (b) nor under the first part of cl. (c) The question is whether it could possibly fall within the second part of cl. (c), that is whether the award is "other wise invalid." In order to bring the objection within this clause learned counsel contended that award was bad on its face. It is difficult for us to appreciate how the award could be said to be bad on its face. When a dispute is referred to arbitration, the arbitrator has to decide it to the best of his judgment, of course acting honestly. Here, in his judgment the arbitrator has allotted to the appellant certain lands the total area of which is less than half that of the entire land in suit. The appellants contention is that he is entitled to the entire land. This contention was before the arbitrator. In spite of that he has made the award in the terms in which he has made it. There appears to be no suggestion that the arbitrator acted dishonestly. How can it then be said that this award is on its face bad?
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In our opinion there is no substance in any of thesemere application of the kind could not affect the reference. Apart from that, the award had actually been made before that date and, therefore, the attempt to seek the supersession of the arbitration was, in any case,agree that upon the material on record it would not be possible to say that the appellant has in fact received less than his due share ofis difficult for us to appreciate how the award could be said to be bad on its face. When a dispute is referred to arbitration, the arbitrator has to decide it to the best of his judgment, of course acting honestly. Here, in his judgment the arbitrator has allotted to the appellant certain lands the total area of which is less than half that of the entire land in suit. The appellants contention is that he is entitled to the entire land. This contention was before the arbitrator. In spite of that he has made the award in the terms in which he has made it. There appears to be no suggestion that the arbitrator acted dishonestly.
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NATIONAL HIGHWAYS AUTHORITY OF INDIA Vs. SAYEDABAD TEA COMPANY LTD. AND ORS | of the parties, has to be determined by the Arbitrator to be appointed by the Central Government in terms of sub-section (5) of Section 3G of the Act, 1956. 18. After analysing the scheme, it can be assumed that the legislature intended the Act, 1956 to act as a complete code in itself for the purpose of acquisition until culmination including disbursement and for settlement of disputes and this conclusion is further strengthened in view of Section 3J of the Act which eliminates the application of the Land Acquisition Act, 1894, to an acquisition under the Act, 1956. 19. It is settled principles of law that when the special law sets out a self-contained code, the application of general law would impliedly be excluded. In the instant case, the scheme of Act, 1956 being a special law enacted for the purpose and for appointment of an arbitrator by the Central Government under Section 3G(5) of Act, 1956 and sub-section (6) of Section 3G itself clarifies that subject to the provisions of the Act 1956, the provisions of Act 1996 shall apply to every arbitration obviously to the extent where the Act 1956 is silent, the Arbitrator may take recourse in adjudicating the dispute invoking the provisions of Act, 1996 for the limited purpose. But so far as the appointment of an Arbitrator is concerned, the power being exclusively vested with the Central Government as envisaged under sub-section (5) of Section 3G of Act 1956, Section 11 of the Act 1996 has no application. 20. The plea of the respondents that they have rightly taken recourse in the facts and circumstances of Section 11 of the Act, 1996 cannot be accepted for the reason that Section 3G(6) of the Act, 1956 clearly stipulates that the provisions of the Act, 1996 will apply subject to the provisions of the Act, 1956. The usage of the expression subject to clearly indicates that the legislature intended to give overriding effect to the provisions of the Act, 1956 where it relates to the disputes pertaining to determination of the amount of compensation under the Act. The irresistible conclusion is that the legislature in its wisdom intended to abrogate the power for appointment of an Arbitrator under the provisions of the Act, 1996. 21. In our considered view, the High Court of Calcutta was not holding its competence to appoint an Arbitrator invoking Section 11 of Act, 1996. 22. This very question earlier arose before this Court whether the application under Section 11(6) of the Act 1996 is maintainable in view of statutory provisions of Electricity Act, 2003 adjudicating the dispute between the licencees and the generating companies of the special enactment and Section 86(1) of the Electricity Act, 2003 in particular, this Court in Gujarat Urja Vikash Nigam Ltd. Vs. Essar Power Limited 2008(4) SCC 755 in para 28 observed as under:- 28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation. 23. We are also of the considered opinion that in view of the power being vested exclusively with the Central Government to appoint an Arbitrator under Section 3G(5) of the Act 1956, being a special enactment, the application filed under Section 11(6) of the Act 1996 for appointment of an Arbitrator was not maintainable and provisions of the Act, 1996 could not be invoked for the purpose. 24. The submission of learned counsel for the respondents that as the appellant failed to make an appointment of the Arbitrator pursuant to a letter dated 8 th December, 2006 in terms of Section 3G(5) of the Act, 1956 within a period of 30 days, the High Court of Calcutta alone was holding its competence to appoint an Arbitrator and application was submitted by the respondent- applicant on 7 th March, 2007 the right of appointment of an Arbitrator by the Central Government stands forfeited and has relied on the Judgment of this Court in Deep Trading Company case(supra) is of without substance for the reason that there is no statutory limitation provided under sub-section (5) of Section 3G of Act 1956 for the Central Government to appoint an Arbitrator but that may not give an unguided discretion to the authority and in the absence of any statutory limitation, it must be within the reasonable time and if the Central Government fails in discharge of its statutory duty in appointing an Arbitrator on a request being made by either of the party aggrieved, it will be open to the party to invoke either the writ jurisdiction of the High Court under Article 226 of the Constitution of India or the Civil Court for the purpose. But as long as the power is exclusively vested with the Central Government for appointment of an Arbitrator under Section 3G(5) of the Act 1956, the provision of Section 11 of Act 1996 has no application. The judgment in Deep Trading Company case(supra) on which learned counsel has placed reliance is of no assistance for the reason firstly that controversy there was not in reference to the appointment of an Arbitrator under the special enactment as in the instant case under Act 1956 and secondly, if one party fails to exercise its power of appointment in terms of Clause 29 of the agreement in vogue, the provisions of Act 1996 would apply and the question for consideration was whether the rights of the party stand forfeited to appoint an Arbitrator after the party has invoked Section 11(6) of the Act 1996 which, as already observed by us, is not the question for consideration in the instant case. | 1[ds]15. At the very outset, we may notice that the two Judge Bench of this Court in the recent judgment in General Manager (Project), National Highways and Infrastructure Development Corporation Ltd. case(supra), while dealing with the scope of sub-sections (5) and (6) of Section 3G of the Act 1956 with reference to Section 11 of the Act, 1996 has held that the Act 1956 being a special enactment and Section 3G in particular provides an inbuilt mechanism for appointment of an Arbitrator by the Central Government. Hence Section 11 of the Act, 1996 has no application and the power is exclusively vested with the Central Government under Section 3G(5) of the Act, 1956 for appointment of an Arbitrator and if the Central Government does not appoint an Arbitrator within a reasonable time, it is open for the party to avail the remedy either by filing a writ petition under Article 226 of the Constitution of India or a suit for the purpose but the remedy of Section 11 of Act 1996 is not available for appointment of an Arbitrator16. We are in full agreement with the legal position stated by a two Judge Bench of this Court in General Manager (Project), National Highways and Infrastructure Development Corporation Ltd. case(supra) but like to add further that the Act, 1956 has been enacted under Entry 23 of the Union List of the Seventh Schedule of the Constitution with the exclusive power to legislate with respect to highways, which are declared to be national highways by or under law by the Parliament. It is a comprehensive code and a special enactment which provides an inbuilt mechanism not only in initiating acquisition until culmination of the proceedings in determining the compensation and its adjudication by the Arbitrator to be appointed by the Central Government and if still remain dissatisfied, by the Court of law18. After analysing the scheme, it can be assumed that the legislature intended the Act, 1956 to act as a complete code in itself for the purpose of acquisition until culmination including disbursement and for settlement of disputes and this conclusion is further strengthened in view of Section 3J of the Act which eliminates the application of the Land Acquisition Act, 1894, to an acquisition under the Act, 195619. It is settled principles of law that when the special law sets out a self-contained code, the application of general law would impliedly be excluded. In the instant case, the scheme of Act, 1956 being a special law enacted for the purpose and for appointment of an arbitrator by the Central Government under Section 3G(5) of Act, 1956 and sub-section (6) of Section 3G itself clarifies that subject to the provisions of the Act 1956, the provisions of Act 1996 shall apply to every arbitration obviously to the extent where the Act 1956 is silent, the Arbitrator may take recourse in adjudicating the dispute invoking the provisions of Act, 1996 for the limited purpose. But so far as the appointment of an Arbitrator is concerned, the power being exclusively vested with the Central Government as envisaged under sub-section (5) of Section 3G of Act 1956, Section 11 of the Act 1996 has no application20. The plea of the respondents that they have rightly taken recourse in the facts and circumstances of Section 11 of the Act, 1996 cannot be accepted for the reason that Section 3G(6) of the Act, 1956 clearly stipulates that the provisions of the Act, 1996 will apply subject to the provisions of the Act, 1956. The usage of the expression subject to clearly indicates that the legislature intended to give overriding effect to the provisions of the Act, 1956 where it relates to the disputes pertaining to determination of the amount of compensation under the Act. The irresistible conclusion is that the legislature in its wisdom intended to abrogate the power for appointment of an Arbitrator under the provisions of the Act, 199621. In our considered view, the High Court of Calcutta was not holding its competence to appoint an Arbitrator invoking Section 11 of Act, 199623. We are also of the considered opinion that in view of the power being vested exclusively with the Central Government to appoint an Arbitrator under Section 3G(5) of the Act 1956, being a special enactment, the application filed under Section 11(6) of the Act 1996 for appointment of an Arbitrator was not maintainable and provisions of the Act, 1996 could not be invoked for the purpose24. The submission of learned counsel for the respondents that as the appellant failed to make an appointment of the Arbitrator pursuant to a letter dated 8 th December, 2006 in terms of Section 3G(5) of the Act, 1956 within a period of 30 days, the High Court of Calcutta alone was holding its competence to appoint an Arbitrator and application was submitted by the respondent- applicant on 7 th March, 2007 the right of appointment of an Arbitrator by the Central Government stands forfeited and has relied on the Judgment of this Court in Deep Trading Company case(supra) is of without substance for the reason that there is no statutory limitation provided under sub-section (5) of Section 3G of Act 1956 for the Central Government to appoint an Arbitrator but that may not give an unguided discretion to the authority and in the absence of any statutory limitation, it must be within the reasonable time and if the Central Government fails in discharge of its statutory duty in appointing an Arbitrator on a request being made by either of the party aggrieved, it will be open to the party to invoke either the writ jurisdiction of the High Court under Article 226 of the Constitution of India or the Civil Court for the purpose. But as long as the power is exclusively vested with the Central Government for appointment of an Arbitrator under Section 3G(5) of the Act 1956, the provision of Section 11 of Act 1996 has no application. The judgment in Deep Trading Company case(supra) on which learned counsel has placed reliance is of no assistance for the reason firstly that controversy there was not in reference to the appointment of an Arbitrator under the special enactment as in the instant case under Act 1956 and secondly, if one party fails to exercise its power of appointment in terms of Clause 29 of the agreement in vogue, the provisions of Act 1996 would apply and the question for consideration was whether the rights of the party stand forfeited to appoint an Arbitrator after the party has invoked Section 11(6) of the Act 1996 which, as already observed by us, is not the question for consideration in the instant case. | 1 | 3,673 | 1,235 | ### 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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of the parties, has to be determined by the Arbitrator to be appointed by the Central Government in terms of sub-section (5) of Section 3G of the Act, 1956. 18. After analysing the scheme, it can be assumed that the legislature intended the Act, 1956 to act as a complete code in itself for the purpose of acquisition until culmination including disbursement and for settlement of disputes and this conclusion is further strengthened in view of Section 3J of the Act which eliminates the application of the Land Acquisition Act, 1894, to an acquisition under the Act, 1956. 19. It is settled principles of law that when the special law sets out a self-contained code, the application of general law would impliedly be excluded. In the instant case, the scheme of Act, 1956 being a special law enacted for the purpose and for appointment of an arbitrator by the Central Government under Section 3G(5) of Act, 1956 and sub-section (6) of Section 3G itself clarifies that subject to the provisions of the Act 1956, the provisions of Act 1996 shall apply to every arbitration obviously to the extent where the Act 1956 is silent, the Arbitrator may take recourse in adjudicating the dispute invoking the provisions of Act, 1996 for the limited purpose. But so far as the appointment of an Arbitrator is concerned, the power being exclusively vested with the Central Government as envisaged under sub-section (5) of Section 3G of Act 1956, Section 11 of the Act 1996 has no application. 20. The plea of the respondents that they have rightly taken recourse in the facts and circumstances of Section 11 of the Act, 1996 cannot be accepted for the reason that Section 3G(6) of the Act, 1956 clearly stipulates that the provisions of the Act, 1996 will apply subject to the provisions of the Act, 1956. The usage of the expression subject to clearly indicates that the legislature intended to give overriding effect to the provisions of the Act, 1956 where it relates to the disputes pertaining to determination of the amount of compensation under the Act. The irresistible conclusion is that the legislature in its wisdom intended to abrogate the power for appointment of an Arbitrator under the provisions of the Act, 1996. 21. In our considered view, the High Court of Calcutta was not holding its competence to appoint an Arbitrator invoking Section 11 of Act, 1996. 22. This very question earlier arose before this Court whether the application under Section 11(6) of the Act 1996 is maintainable in view of statutory provisions of Electricity Act, 2003 adjudicating the dispute between the licencees and the generating companies of the special enactment and Section 86(1) of the Electricity Act, 2003 in particular, this Court in Gujarat Urja Vikash Nigam Ltd. Vs. Essar Power Limited 2008(4) SCC 755 in para 28 observed as under:- 28. Section 86(1)(f) is a special provision and hence will override the general provision in Section 11 of the Arbitration and Conciliation Act, 1996 for arbitration of disputes between the licensee and generating companies. It is well settled that the special law overrides the general law. Hence, in our opinion, Section 11 of the Arbitration and Conciliation Act, 1996 has no application to the question who can adjudicate/arbitrate disputes between licensees and generating companies, and only Section 86(1)(f) shall apply in such a situation. 23. We are also of the considered opinion that in view of the power being vested exclusively with the Central Government to appoint an Arbitrator under Section 3G(5) of the Act 1956, being a special enactment, the application filed under Section 11(6) of the Act 1996 for appointment of an Arbitrator was not maintainable and provisions of the Act, 1996 could not be invoked for the purpose. 24. The submission of learned counsel for the respondents that as the appellant failed to make an appointment of the Arbitrator pursuant to a letter dated 8 th December, 2006 in terms of Section 3G(5) of the Act, 1956 within a period of 30 days, the High Court of Calcutta alone was holding its competence to appoint an Arbitrator and application was submitted by the respondent- applicant on 7 th March, 2007 the right of appointment of an Arbitrator by the Central Government stands forfeited and has relied on the Judgment of this Court in Deep Trading Company case(supra) is of without substance for the reason that there is no statutory limitation provided under sub-section (5) of Section 3G of Act 1956 for the Central Government to appoint an Arbitrator but that may not give an unguided discretion to the authority and in the absence of any statutory limitation, it must be within the reasonable time and if the Central Government fails in discharge of its statutory duty in appointing an Arbitrator on a request being made by either of the party aggrieved, it will be open to the party to invoke either the writ jurisdiction of the High Court under Article 226 of the Constitution of India or the Civil Court for the purpose. But as long as the power is exclusively vested with the Central Government for appointment of an Arbitrator under Section 3G(5) of the Act 1956, the provision of Section 11 of Act 1996 has no application. The judgment in Deep Trading Company case(supra) on which learned counsel has placed reliance is of no assistance for the reason firstly that controversy there was not in reference to the appointment of an Arbitrator under the special enactment as in the instant case under Act 1956 and secondly, if one party fails to exercise its power of appointment in terms of Clause 29 of the agreement in vogue, the provisions of Act 1996 would apply and the question for consideration was whether the rights of the party stand forfeited to appoint an Arbitrator after the party has invoked Section 11(6) of the Act 1996 which, as already observed by us, is not the question for consideration in the instant case.
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### Explanation:
an Arbitrator and if the Central Government does not appoint an Arbitrator within a reasonable time, it is open for the party to avail the remedy either by filing a writ petition under Article 226 of the Constitution of India or a suit for the purpose but the remedy of Section 11 of Act 1996 is not available for appointment of an Arbitrator16. We are in full agreement with the legal position stated by a two Judge Bench of this Court in General Manager (Project), National Highways and Infrastructure Development Corporation Ltd. case(supra) but like to add further that the Act, 1956 has been enacted under Entry 23 of the Union List of the Seventh Schedule of the Constitution with the exclusive power to legislate with respect to highways, which are declared to be national highways by or under law by the Parliament. It is a comprehensive code and a special enactment which provides an inbuilt mechanism not only in initiating acquisition until culmination of the proceedings in determining the compensation and its adjudication by the Arbitrator to be appointed by the Central Government and if still remain dissatisfied, by the Court of law18. After analysing the scheme, it can be assumed that the legislature intended the Act, 1956 to act as a complete code in itself for the purpose of acquisition until culmination including disbursement and for settlement of disputes and this conclusion is further strengthened in view of Section 3J of the Act which eliminates the application of the Land Acquisition Act, 1894, to an acquisition under the Act, 195619. It is settled principles of law that when the special law sets out a self-contained code, the application of general law would impliedly be excluded. In the instant case, the scheme of Act, 1956 being a special law enacted for the purpose and for appointment of an arbitrator by the Central Government under Section 3G(5) of Act, 1956 and sub-section (6) of Section 3G itself clarifies that subject to the provisions of the Act 1956, the provisions of Act 1996 shall apply to every arbitration obviously to the extent where the Act 1956 is silent, the Arbitrator may take recourse in adjudicating the dispute invoking the provisions of Act, 1996 for the limited purpose. But so far as the appointment of an Arbitrator is concerned, the power being exclusively vested with the Central Government as envisaged under sub-section (5) of Section 3G of Act 1956, Section 11 of the Act 1996 has no application20. The plea of the respondents that they have rightly taken recourse in the facts and circumstances of Section 11 of the Act, 1996 cannot be accepted for the reason that Section 3G(6) of the Act, 1956 clearly stipulates that the provisions of the Act, 1996 will apply subject to the provisions of the Act, 1956. The usage of the expression subject to clearly indicates that the legislature intended to give overriding effect to the provisions of the Act, 1956 where it relates to the disputes pertaining to determination of the amount of compensation under the Act. The irresistible conclusion is that the legislature in its wisdom intended to abrogate the power for appointment of an Arbitrator under the provisions of the Act, 199621. In our considered view, the High Court of Calcutta was not holding its competence to appoint an Arbitrator invoking Section 11 of Act, 199623. We are also of the considered opinion that in view of the power being vested exclusively with the Central Government to appoint an Arbitrator under Section 3G(5) of the Act 1956, being a special enactment, the application filed under Section 11(6) of the Act 1996 for appointment of an Arbitrator was not maintainable and provisions of the Act, 1996 could not be invoked for the purpose24. The submission of learned counsel for the respondents that as the appellant failed to make an appointment of the Arbitrator pursuant to a letter dated 8 th December, 2006 in terms of Section 3G(5) of the Act, 1956 within a period of 30 days, the High Court of Calcutta alone was holding its competence to appoint an Arbitrator and application was submitted by the respondent- applicant on 7 th March, 2007 the right of appointment of an Arbitrator by the Central Government stands forfeited and has relied on the Judgment of this Court in Deep Trading Company case(supra) is of without substance for the reason that there is no statutory limitation provided under sub-section (5) of Section 3G of Act 1956 for the Central Government to appoint an Arbitrator but that may not give an unguided discretion to the authority and in the absence of any statutory limitation, it must be within the reasonable time and if the Central Government fails in discharge of its statutory duty in appointing an Arbitrator on a request being made by either of the party aggrieved, it will be open to the party to invoke either the writ jurisdiction of the High Court under Article 226 of the Constitution of India or the Civil Court for the purpose. But as long as the power is exclusively vested with the Central Government for appointment of an Arbitrator under Section 3G(5) of the Act 1956, the provision of Section 11 of Act 1996 has no application. The judgment in Deep Trading Company case(supra) on which learned counsel has placed reliance is of no assistance for the reason firstly that controversy there was not in reference to the appointment of an Arbitrator under the special enactment as in the instant case under Act 1956 and secondly, if one party fails to exercise its power of appointment in terms of Clause 29 of the agreement in vogue, the provisions of Act 1996 would apply and the question for consideration was whether the rights of the party stand forfeited to appoint an Arbitrator after the party has invoked Section 11(6) of the Act 1996 which, as already observed by us, is not the question for consideration in the instant case.
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Workmen Of Indian Express (P) Ltd Vs. The Management | in similar or allied trades. But the U. P. Working Journalists Union, Lucknow, with which the third respondent had no concern, took the matter to the Conciliation Board. On a reference being made to the Industrial Tribunal by the Government the legality of that reference was challenged by the appellant company on the ground that the said dispute could not be treated as an industrial dispute under the U. P. Industrial Disputes Act 1947 which defined by Section 2 and industrial dispute as having the same meaning assigned to it in Section 2 (k) of the Central Act. This Court upheld the contention observing that the notification referring the said dispute proceeded on an assumption that a dispute existed between the employer and "his workmen", that Tajammul Hussain, the workman concerned, could not be described as "workmen", nor could the U. P. Working Journalists Union be called "his workmen" nor was there any evidence to show that a dispute had got transformed into an industrial dispute. The question whether the union sponsoring a dispute must be the union of workmen in the establishment in which the workman concerned is employed or not had not so far arisen. It seems such a question arose for the first time in the case of (1962) 3 SCR 893 = (AIR 1963 SC 318 ) (supra). The decision in that case laid down (1) that the Industrial Disputes Act excluded its application to an individual dispute as distinguished from a dispute involving a group of workmen unless such a dispute is made a common cause by a body or a considerable section of workmen and (2) the members of a union who are not workmen of the employer against whom the dispute is sought to be raised cannot by their support convert an individual dispute into an industrial dispute. Persons who seek to support the cause must themselves be directly and substantially interested in the dispute and persons who are not the employees of the same employer cannot be regarded as so interested. The Court held that the dispute there being prima facie an individual dispute it was necessary in order to convert it into an industrial dispute that it should be taken up by a union of the employees or by an appreciable number of employees of Hindu, Bombay. The Bombay Union of Journalists not being a union of the employees of the Hindu, Bombay, but a union of all employees in the industry of journalism in Bombay, its support of the cause of the workman concerned would not convert the individual dispute into an industrial dispute. The members of such a union cannot be said to be persons substantially and directly interested in the dispute between the workman concerned and his employer, the Hindu Bombay. But in Workmen v. M/s. Dharampal Premchand, (1965) 3 SCR 394 = (AIR 1966 SC 182 ) this Court, after reviewing the previous decisions, distinguished the case of Hindu, Bombay and held that notwithstanding the width of the words used in Section 2 (k) of the Act a dispute raised by an individual workman cannot become an industrial dispute unless it is supported either by his union or in the absence of a union by a number of workmen, that a union may validly raise a dispute though it may be a minority union of the workmen employed in an establishment, that if there was no union of workmen in an establishment a group of employees can raise the dispute which becomes an industrial dispute even though it is a dispute relating to an individual workman, and lastly, that where the workmen of an establishment have no union of their own and some or all of them have joined a union of another establishment belonging to the same industry, if such a union takes up the cause of the workman working in an establishment which has no union of its own, the dispute would become an industrial dispute if such a union can claim a representative character in a way that its support would make the dispute an industrial dispute. 8. The evidence of the union secretary was that in 1959-60, 31 working journalists of the respondent company were members of the Delhi Union of Journalists. It was nobodys case that these 31 members did not continue to be the members of that union in 1960-61 also. If the number of working journalists in the respondent company were to be taken as 68, membership of the union by as many as 31 working journalists would certainly confer on the union a representative character. Even if the number of working journalists were to be taken as 131, it would not be unreasonable to say that 31 i.e., about 25 per cent of them would, by becoming the members of the union, give a representative character to the union. It is clear from the evidence that at the material time there was no union of working journalists employed by the respondent company.Therefore, in accordance with the decision in (1965) 3 SCR 394 = (AIR 1966 SC 182 ) (supra), the union can be said to have a representative character qua the working journalists employed in the respondent company.There can be no doubt that the union had taken up the cause of the two workmen by its executive committee passing the said resolution and its office bearers having followed up that resolution by taking the matter before the conciliation officer. Though the grievance of the two workmen arose in July 1959 when the management declined to accept them as proof-readers the union has sponsored their cause before the date of reference as laid down in the case of Hindu, Bombay, (1962) 3 SR 893 = (AIR 1963 SC 318 ). That being the position it cannot be gainsaid that the dispute was transformed into an industrial dispute as it was sponsored by a union which possessed a representative character vis-a-vis the working journalists in the employ of the respondent company. | 1[ds]8. The evidence of the union secretary was that in 1959-60, 31 working journalists of the respondent company were members of the Delhi Union of Journalists. It was nobodys case that these 31 members did not continue to be the members of that union in 1960-61 also. If the number of working journalists in the respondent company were to be taken as 68, membership of the union by as many as 31 working journalists would certainly confer on the union a representative character. Even if the number of working journalists were to be taken as 131, it would not be unreasonable to say that 31 i.e., about 25 per cent of them would, by becoming the members of the union, give a representative character to the union. It is clear from the evidence that at the material time there was no union of working journalists employed by the respondent company.Therefore, in accordance with the decision in (1965) 3 SCR 394 = (AIR 1966 SC 182 ) (supra), the union can be said to have a representative character qua the working journalists employed in the respondent company.There can be no doubt that the union had taken up the cause of the two workmen by its executive committee passing the said resolution and its office bearers having followed up that resolution by taking the matter before the conciliation officer. Though the grievance of the two workmen arose in July 1959 when the management declined to accept them as proof-readers the union has sponsored their cause before the date of reference as laid down in the case of Hindu, Bombay, (1962) 3 SR 893 = (AIR 1963 SC 318 ). That being the position it cannot be gainsaid that the dispute was transformed into an industrial dispute as it was sponsored by a union which possessed a representative character vis-a-vis t | 1 | 2,799 | 338 | ### 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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in similar or allied trades. But the U. P. Working Journalists Union, Lucknow, with which the third respondent had no concern, took the matter to the Conciliation Board. On a reference being made to the Industrial Tribunal by the Government the legality of that reference was challenged by the appellant company on the ground that the said dispute could not be treated as an industrial dispute under the U. P. Industrial Disputes Act 1947 which defined by Section 2 and industrial dispute as having the same meaning assigned to it in Section 2 (k) of the Central Act. This Court upheld the contention observing that the notification referring the said dispute proceeded on an assumption that a dispute existed between the employer and "his workmen", that Tajammul Hussain, the workman concerned, could not be described as "workmen", nor could the U. P. Working Journalists Union be called "his workmen" nor was there any evidence to show that a dispute had got transformed into an industrial dispute. The question whether the union sponsoring a dispute must be the union of workmen in the establishment in which the workman concerned is employed or not had not so far arisen. It seems such a question arose for the first time in the case of (1962) 3 SCR 893 = (AIR 1963 SC 318 ) (supra). The decision in that case laid down (1) that the Industrial Disputes Act excluded its application to an individual dispute as distinguished from a dispute involving a group of workmen unless such a dispute is made a common cause by a body or a considerable section of workmen and (2) the members of a union who are not workmen of the employer against whom the dispute is sought to be raised cannot by their support convert an individual dispute into an industrial dispute. Persons who seek to support the cause must themselves be directly and substantially interested in the dispute and persons who are not the employees of the same employer cannot be regarded as so interested. The Court held that the dispute there being prima facie an individual dispute it was necessary in order to convert it into an industrial dispute that it should be taken up by a union of the employees or by an appreciable number of employees of Hindu, Bombay. The Bombay Union of Journalists not being a union of the employees of the Hindu, Bombay, but a union of all employees in the industry of journalism in Bombay, its support of the cause of the workman concerned would not convert the individual dispute into an industrial dispute. The members of such a union cannot be said to be persons substantially and directly interested in the dispute between the workman concerned and his employer, the Hindu Bombay. But in Workmen v. M/s. Dharampal Premchand, (1965) 3 SCR 394 = (AIR 1966 SC 182 ) this Court, after reviewing the previous decisions, distinguished the case of Hindu, Bombay and held that notwithstanding the width of the words used in Section 2 (k) of the Act a dispute raised by an individual workman cannot become an industrial dispute unless it is supported either by his union or in the absence of a union by a number of workmen, that a union may validly raise a dispute though it may be a minority union of the workmen employed in an establishment, that if there was no union of workmen in an establishment a group of employees can raise the dispute which becomes an industrial dispute even though it is a dispute relating to an individual workman, and lastly, that where the workmen of an establishment have no union of their own and some or all of them have joined a union of another establishment belonging to the same industry, if such a union takes up the cause of the workman working in an establishment which has no union of its own, the dispute would become an industrial dispute if such a union can claim a representative character in a way that its support would make the dispute an industrial dispute. 8. The evidence of the union secretary was that in 1959-60, 31 working journalists of the respondent company were members of the Delhi Union of Journalists. It was nobodys case that these 31 members did not continue to be the members of that union in 1960-61 also. If the number of working journalists in the respondent company were to be taken as 68, membership of the union by as many as 31 working journalists would certainly confer on the union a representative character. Even if the number of working journalists were to be taken as 131, it would not be unreasonable to say that 31 i.e., about 25 per cent of them would, by becoming the members of the union, give a representative character to the union. It is clear from the evidence that at the material time there was no union of working journalists employed by the respondent company.Therefore, in accordance with the decision in (1965) 3 SCR 394 = (AIR 1966 SC 182 ) (supra), the union can be said to have a representative character qua the working journalists employed in the respondent company.There can be no doubt that the union had taken up the cause of the two workmen by its executive committee passing the said resolution and its office bearers having followed up that resolution by taking the matter before the conciliation officer. Though the grievance of the two workmen arose in July 1959 when the management declined to accept them as proof-readers the union has sponsored their cause before the date of reference as laid down in the case of Hindu, Bombay, (1962) 3 SR 893 = (AIR 1963 SC 318 ). That being the position it cannot be gainsaid that the dispute was transformed into an industrial dispute as it was sponsored by a union which possessed a representative character vis-a-vis the working journalists in the employ of the respondent company.
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8. The evidence of the union secretary was that in 1959-60, 31 working journalists of the respondent company were members of the Delhi Union of Journalists. It was nobodys case that these 31 members did not continue to be the members of that union in 1960-61 also. If the number of working journalists in the respondent company were to be taken as 68, membership of the union by as many as 31 working journalists would certainly confer on the union a representative character. Even if the number of working journalists were to be taken as 131, it would not be unreasonable to say that 31 i.e., about 25 per cent of them would, by becoming the members of the union, give a representative character to the union. It is clear from the evidence that at the material time there was no union of working journalists employed by the respondent company.Therefore, in accordance with the decision in (1965) 3 SCR 394 = (AIR 1966 SC 182 ) (supra), the union can be said to have a representative character qua the working journalists employed in the respondent company.There can be no doubt that the union had taken up the cause of the two workmen by its executive committee passing the said resolution and its office bearers having followed up that resolution by taking the matter before the conciliation officer. Though the grievance of the two workmen arose in July 1959 when the management declined to accept them as proof-readers the union has sponsored their cause before the date of reference as laid down in the case of Hindu, Bombay, (1962) 3 SR 893 = (AIR 1963 SC 318 ). That being the position it cannot be gainsaid that the dispute was transformed into an industrial dispute as it was sponsored by a union which possessed a representative character vis-a-vis t
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The State of Punjab Vs. Anshika Goyal and others | her submission, learned senior counsel has heavily relied upon the following decisions of this Court: (i) Gulshan Prakash (Dr.) and others v. State of Haryana and others, reported in (2010) 1 SCC 477 (para 27); (ii) Chairman and Managing Director, Central Bank of India and others v. Central Bank of India SC/ST Employees Welfare Association and others, reported in (2015) 12 SCC 308 (para 26); (iii) Suresh Chand Gautam v. State of Uttar Pradesh and others, reported in (2016) 11 SCC 113 (para 49); and (iv) Mukesh Kumar and another v. State of Uttarakhand and others, reported in (2020) 3 SCC 1 (paras 18 & 19) 3.3 Ms. Meenakshi Arora, learned senior counsel appearing on behalf of the State of Punjab has further submitted that even a writ of mandamus issued by the High Court directing the State to provide 3% reservation/quota for sports persons is also unsustainable. It is submitted that a conscious policy decision was taken by the State Government to provide only 1% reservation/quota for sports persons. It is submitted that it is ultimately for the State Government considering the facts situation in the State to provide the reservation/quota and what percentage of reservation/quota should be there should be left to the concerned State Government. In support of her above submission, she has also relied upon the aforesaid decisions. 4. Shri P.S. Patwalia, learned Senior Advocate appearing on behalf of the original writ petitioners has submitted that the notification under challenge before the High Court was for academic year 2019-20 and pursuant to the interim order passed by this Court, admissions have been given implementing the impugned judgment and order passed by the High Court, except providing reservation to the extent of 3% for sports persons. 4.1 It is further submitted that thereafter a fresh notification has been issued for the academic year 2021-22 in which the State has provided the reservation for sports persons, children/grand children of terrorist affected persons and Sikh riot affected persons to an extent of 1% each with respect to the private institutes also. It is therefore submitted that as such the issue in the present case has become academic. Therefore, it is prayed to dispose of the appeals by keeping the question of law open. 4.2 Now so far as the direction issued by the High Court directing the State to provide 3% reservation/quota for sports persons in Government Medical/Dental Colleges is concerned, Mr. Patwalia, learned Senior Counsel has tried to support the same by submitting that when Sports Policy, 2018 provided for 3% reservation for sports persons in admissions in all government and private higher educational institutions and universities including those of medical and technical education, located in the State of Punjab, there was no reason for the State to deviate from the same and provide for only 1% reservation/quota for sports persons. It is therefore submitted that the High Court has rightly directed to provide 3% reservation /quota for sports persons considering the Sports Policy, 2018. 5. We have heard the learned senior counsel for the respective parties at length. By the impugned judgment and order, the High Court has directed to provide for reservation/quota to sports persons, children/grand children of terrorist affected persons/Sikh riot affected persons for admissions in the private institutes and more particularly the management quota in the private institutes. The High Court has also further directed to provide for 3% reservation/quota for sports persons in all Government Medical/Dental Colleges. 6. Now so far as the directions issued by the High Court directing to provide for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riot affected persons and sports persons in all private unaided non-minority Medical/Dental institutions in the State is concerned, at the outset, it is required to be noted that the said issue has become academic, firstly on the ground that the issue before the High Court and even before this Court was/is for the academic year 2019-20. Pursuant to the interim order passed by this Court, admissions for the academic year 2019-20 are already given as per the judgment of the High Court except providing 3% reservation/quota for sports persons and applying 1% reservation. This Court, vide order dated 27.08.2019, passed the following interim order: Heard Mr. K.K. Venugopal, learned Attorney General appearing on behalf of the petitioners as well as Mr. P.S. Patwalia, learned senior counsel appearing on behalf of respondent No.4. Issue fresh notice to the unrepresented/unserved respondents. After hearing the matters at some length, we deem it appropriate to have final hearing in the matter as main question arises with regard to validity of classification made as to Government seats and institutions seats for the purpose of reservation in question. Fact remains other reservations have been applied to all seats in private institutions. However, after hearing the learned counsel for the parties and considering the decisions in T.M.A.Pai Foundation & Ors. Versus State of Karnataka & Ors., (2002)8 SCC 481 and Gulshan Prakash (DR.) & Ors. Versus State of Haryana & Ors., (2010) 1 SCC 477, without expressing any opinion on merits, we are of the view that there shall not be a blanket stay on the order passed by the High Court. However, the High Court has enhanced the sports quota from 1% to 3%. That cannot be said to be appropriate as the Government has notified only 1% sports quota on horizontal business. The part of the impugned order with respect to enhancing quota from 1% to 3% shall remain stayed till the final decision by this Court. With respect to remaining part there shall be no stay. 3 Counseling to take place by 7th September, 2019. Only 1% reservation be implemented with respect to sports quota. Counseling be held as per order passed by the High Court with other aspects. 6.1 Secondly, the State has now already provided the reservation/quota for sports persons, children/grand children of terrorist affected persons/Sikh riot affected persons even with respect to admissions in the private institutes for the academic year 2021-22. | 1[ds]6. Now so far as the directions issued by the High Court directing to provide for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riot affected persons and sports persons in all private unaided non-minority Medical/Dental institutions in the State is concerned, at the outset, it is required to be noted that the said issue has become academic, firstly on the ground that the issue before the High Court and even before this Court was/is for the academic year 2019-20. Pursuant to the interim order passed by this Court, admissions for the academic year 2019-20 are already given as per the judgment of the High Court except providing 3% reservation/quota for sports persons and applying 1% reservation.6.1 Secondly, the State has now already provided the reservation/quota for sports persons, children/grand children of terrorist affected persons/Sikh riot affected persons even with respect to admissions in the private institutes for the academic year 2021-22.7. Now so far as the directions issued by the High Court directing the State to provide for 3% reservation/quota for sports persons, instead of 1% provided by the State is concerned, it appears from the impugned judgment and order passed by the High Court that it has issued the said direction considering the Sports Policy, 2018. It is true that as per clause 8.11(v), 3% reservation for sports persons has been provided. However, it is to be noted that clause 10 permits/allows any other department to have specific policy providing for reservation for sports persons other than 3%. As observed hereinabove, thereafter the State Government has issued an order dated 25.07.2019 providing for 1% reservation/quota for sports persons. The said order has been issued and 1% reservation/quota for sports persons is provided after taking into consideration the Sports Policy, 2018. Therefore, a conscious policy decision has been taken by the State Government to provide for only 1% reservation/quota for sports persons.8. While answering the aforesaid issue, few decisions of this Court referred to hereinabove are required to be discussed.a) In the case of Gulshan Prakash (supra), it was observed by this Court that there cannot be any mandamus by the Court to provide for a reservation for a particular community. In the case before this Court, the State of Haryana did not provide any reservation for SC/ST/backward community at the postgraduate level. A conscious decision was taken by the State of Haryana not to provide for reservation at the postgraduate level. The same was challenged and to that this Court has observed that there cannot be any mandamus by the Court as claimed. In the aforesaid decision, it was further observed and held that Article 15(4) of the Constitution is an enabling provision and the State Government is the best Judge to grant reservation for SC/ST/backward categories at postgraduate level. Any policy and the decision of the State not to make any provision for reservation at postgraduate level suffers from no infirmity. It was further observed that every State can take its own decision with regard to reservation depending on various factors. At this stage, it is to be noted that it was also submitted before this Court that since the Government has decided to grant reservation for SC/ST/backward class communities in admission at MBBS level, i.e., undergraduate level and therefore the State has to provide for reservation at postgraduate level also. To that, this Court observed that since the Government had decided to grant reservation for SC/ST/backward categories in admission at MBBS level, i.e., undergraduate level, it does not mean that it is bound to grant reservation at the postgraduate level also.b) In the case of Central Bank of India SC/ST Employees Welfare Association and others (supra), while considering the issue of providing reservation in favour of SC/ST category persons in the promotion and when Articles 15 & 16 of the Constitution of India were pressed into service, this Court observed and held that though Articles 15 & 16 empower the State to take an affirmative action in favour of the SC/ST category persons by making reservations for them in the employment of the Union or the State, they are only enabling provisions which permit the State to make provision for reservation of these category of persons. It was further observed that insofar as making of provisions for reservation in matters of promotion to any class/classes of post is concerned, such a provision can be made in favour of SC/ST category employees if in the opinion of the State they are not adequately represented in services under the State. It is observed that therefore power lies with the State to make a provision but, at the same time, Courts cannot issue any mandamus to the State to necessarily make such a provision. In paragraph 26, it was observed and held as under:26. In the first instance, we make it clear that there is no dispute about the constitutional position envisaged in Articles 15 and 16, insofar as these provisions empower the State to take affirmative action in favour of SC/ST category persons by making reservations for them in the employment in the Union or the State (or for that matter, public sector/authorities which are treated as State under Article 12 of the Constitution). The laudable objective underlying these provisions is also to be kept in mind while undertaking any exercise pertaining to the issues touching upon the reservation of such SC/ST employees. Further, such a reservation can not only be made at the entry level but is permissible in the matters of promotions as well. At the same time, it is also to be borne in mind that clauses (4) and (4-A) of Article 16 of the Constitution are only the enabling provisions which permit the State to make provision for reservation of these category of persons. Insofar as making of provisions for reservation in matters of promotion to any class or classes of post is concerned, such a provision can be made in favour of SC/ST category employees if, in the opinion of the State, they are not adequately represented in services under the State. Thus, no doubt, power lies with the State to make a provision, but, at the same time, courts cannot issue any mandamus to the State to necessarily make such a provision. It is for the State to act, in a given situation, and to take such an affirmative action. Of course, whenever there exists such a provision for reservation in the matters of recruitment or the promotion, it would bestow an enforceable right in favour of persons belonging to SC/ST category and on failure on the part of any authority to reserve the posts, while making selections/promotions, the beneficiaries of these provisions can approach the Court to get their rights enforced. What is to be highlighted is that existence of provision for reservation in the matter of selection or promotion, as the case may be, is the sine qua non for seeking mandamus as it is only when such a provision is made by the State, a right shall accrue in favour of SC/ST candidates and not otherwise.d) In the recent decision in the case of Mukesh Kumar and another (supra), again it is reiterated by this Court that no mandamus can be issued by the Court directing the State Government to provide for reservation. It was further observed that even no writ of mandamus can be issued directing the State to collect quantifiable data to justify their action not to provide for reservation. It was observed that even if the under-representation of Scheduled Casts and Scheduled Tribes in public services is brought to the notice of the Court, no mandamus can be issued by the Court to the State Government to provide for reservation. While holding so, in paragraph 18, it was observed and held as under:18. The direction that was issued to the State Government to collect quantifiable data pertaining to the adequacy or inadequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes in government services is the subject-matter of challenge in some appeals before us. In view of the law laid down by this Court, there is no doubt that the State Government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the Court directing the State Government to provide reservations. It is abundantly clear from the judgments of this Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] , Ajit Singh (2) [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239] , M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] that Articles 16(4) and 16(4-A) are enabling provisions and the collection of quantifiable data showing inadequacy of representation of Scheduled Castes and Scheduled Tribes in public service is a sine qua non for providing reservations in promotions. The data to be collected by the State Government is only to justify reservation to be made in the matter of appointment or promotion to public posts, according to Articles 16(4) and 16(4-A) of the Constitution. As such, collection of data regarding the inadequate representation of members of the Scheduled Castes and Scheduled Tribes, as noted above, is a prerequisite for providing reservations, and is not required when the State Government decided not to provide reservations. Not being bound to provide reservations in promotions, the State is not required to justify its decision on the basis of quantifiable data, showing that there is adequate representation of members of the Scheduled Castes and Scheduled Tribes in State services. Even if the under-representation of Scheduled Castes and Scheduled Tribes in public services is brought to the notice of this Court, no mandamus can be issued by this Court to the State Government to provide reservation in light of the law laid down by this Court in C.A. Rajendran [C.A. Rajendran v. Union of India, (1968) 1 SCR 721 : AIR 1968 SC 507 ] and Suresh Chand Gautam [Suresh Chand Gautam v. State of U.P., (2016) 11 SCC 113 : (2016) 2 SCC (L&S) 291] . Therefore, the direction given by the High Court that the State Government should first collect data regarding the adequacy or inadequacy of representation of Scheduled Castes and Scheduled Tribes in government services on the basis of which the State Government should take a decision whether or not to provide reservation in promotion is contrary to the law laid down by this Court and is accordingly set aside. Yet another direction given by the High Court in its judgment dated 15-7-2019 [Vinod Kumar v. State of Uttarakhand, WP (S/B) No. 291 of 2019, decided on 15-7-2019 (Utt)] , directing that all future vacancies that are to be filled up by promotion in the posts of Assistant Engineer, should only be from the members of Scheduled Castes and Scheduled Tribes, is wholly unjustifiable and is hence set aside.9. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has committed a grave error in issuing a writ of mandamus and directing the State Government to provide for 3% reservation/quota for sports persons, instead of 1% as provided by the State Government. A conscious policy decision was taken by the State Government to provide for 1% reservation/quota for sports persons. A specific order dated 25.07.2019 was also issued by the State Government. Therefore, the High Court has exceeded its jurisdiction while issuing a writ of mandamus directing the State to provide a particular percentage of reservation for sports persons, namely, in the present case, 3% reservation instead of 1% provided by the State Government, while exercising powers under Article 226 of the Constitution of India. Therefore, the impugned common judgment and order passed by the High Court insofar as directing the State to provide for 3% reservation for sports persons and/or provide for a sports quota of 3% in the Government Medical/Dental Colleges is unsustainable and the same deserves to be quashed and set aside. | 1 | 2,503 | 2,309 | ### 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:
her submission, learned senior counsel has heavily relied upon the following decisions of this Court: (i) Gulshan Prakash (Dr.) and others v. State of Haryana and others, reported in (2010) 1 SCC 477 (para 27); (ii) Chairman and Managing Director, Central Bank of India and others v. Central Bank of India SC/ST Employees Welfare Association and others, reported in (2015) 12 SCC 308 (para 26); (iii) Suresh Chand Gautam v. State of Uttar Pradesh and others, reported in (2016) 11 SCC 113 (para 49); and (iv) Mukesh Kumar and another v. State of Uttarakhand and others, reported in (2020) 3 SCC 1 (paras 18 & 19) 3.3 Ms. Meenakshi Arora, learned senior counsel appearing on behalf of the State of Punjab has further submitted that even a writ of mandamus issued by the High Court directing the State to provide 3% reservation/quota for sports persons is also unsustainable. It is submitted that a conscious policy decision was taken by the State Government to provide only 1% reservation/quota for sports persons. It is submitted that it is ultimately for the State Government considering the facts situation in the State to provide the reservation/quota and what percentage of reservation/quota should be there should be left to the concerned State Government. In support of her above submission, she has also relied upon the aforesaid decisions. 4. Shri P.S. Patwalia, learned Senior Advocate appearing on behalf of the original writ petitioners has submitted that the notification under challenge before the High Court was for academic year 2019-20 and pursuant to the interim order passed by this Court, admissions have been given implementing the impugned judgment and order passed by the High Court, except providing reservation to the extent of 3% for sports persons. 4.1 It is further submitted that thereafter a fresh notification has been issued for the academic year 2021-22 in which the State has provided the reservation for sports persons, children/grand children of terrorist affected persons and Sikh riot affected persons to an extent of 1% each with respect to the private institutes also. It is therefore submitted that as such the issue in the present case has become academic. Therefore, it is prayed to dispose of the appeals by keeping the question of law open. 4.2 Now so far as the direction issued by the High Court directing the State to provide 3% reservation/quota for sports persons in Government Medical/Dental Colleges is concerned, Mr. Patwalia, learned Senior Counsel has tried to support the same by submitting that when Sports Policy, 2018 provided for 3% reservation for sports persons in admissions in all government and private higher educational institutions and universities including those of medical and technical education, located in the State of Punjab, there was no reason for the State to deviate from the same and provide for only 1% reservation/quota for sports persons. It is therefore submitted that the High Court has rightly directed to provide 3% reservation /quota for sports persons considering the Sports Policy, 2018. 5. We have heard the learned senior counsel for the respective parties at length. By the impugned judgment and order, the High Court has directed to provide for reservation/quota to sports persons, children/grand children of terrorist affected persons/Sikh riot affected persons for admissions in the private institutes and more particularly the management quota in the private institutes. The High Court has also further directed to provide for 3% reservation/quota for sports persons in all Government Medical/Dental Colleges. 6. Now so far as the directions issued by the High Court directing to provide for 1% reservation/quota for children/grand children of terrorist affected persons/Sikh riot affected persons and sports persons in all private unaided non-minority Medical/Dental institutions in the State is concerned, at the outset, it is required to be noted that the said issue has become academic, firstly on the ground that the issue before the High Court and even before this Court was/is for the academic year 2019-20. Pursuant to the interim order passed by this Court, admissions for the academic year 2019-20 are already given as per the judgment of the High Court except providing 3% reservation/quota for sports persons and applying 1% reservation. This Court, vide order dated 27.08.2019, passed the following interim order: Heard Mr. K.K. Venugopal, learned Attorney General appearing on behalf of the petitioners as well as Mr. P.S. Patwalia, learned senior counsel appearing on behalf of respondent No.4. Issue fresh notice to the unrepresented/unserved respondents. After hearing the matters at some length, we deem it appropriate to have final hearing in the matter as main question arises with regard to validity of classification made as to Government seats and institutions seats for the purpose of reservation in question. Fact remains other reservations have been applied to all seats in private institutions. However, after hearing the learned counsel for the parties and considering the decisions in T.M.A.Pai Foundation & Ors. Versus State of Karnataka & Ors., (2002)8 SCC 481 and Gulshan Prakash (DR.) & Ors. Versus State of Haryana & Ors., (2010) 1 SCC 477, without expressing any opinion on merits, we are of the view that there shall not be a blanket stay on the order passed by the High Court. However, the High Court has enhanced the sports quota from 1% to 3%. That cannot be said to be appropriate as the Government has notified only 1% sports quota on horizontal business. The part of the impugned order with respect to enhancing quota from 1% to 3% shall remain stayed till the final decision by this Court. With respect to remaining part there shall be no stay. 3 Counseling to take place by 7th September, 2019. Only 1% reservation be implemented with respect to sports quota. Counseling be held as per order passed by the High Court with other aspects. 6.1 Secondly, the State has now already provided the reservation/quota for sports persons, children/grand children of terrorist affected persons/Sikh riot affected persons even with respect to admissions in the private institutes for the academic year 2021-22.
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course, whenever there exists such a provision for reservation in the matters of recruitment or the promotion, it would bestow an enforceable right in favour of persons belonging to SC/ST category and on failure on the part of any authority to reserve the posts, while making selections/promotions, the beneficiaries of these provisions can approach the Court to get their rights enforced. What is to be highlighted is that existence of provision for reservation in the matter of selection or promotion, as the case may be, is the sine qua non for seeking mandamus as it is only when such a provision is made by the State, a right shall accrue in favour of SC/ST candidates and not otherwise.d) In the recent decision in the case of Mukesh Kumar and another (supra), again it is reiterated by this Court that no mandamus can be issued by the Court directing the State Government to provide for reservation. It was further observed that even no writ of mandamus can be issued directing the State to collect quantifiable data to justify their action not to provide for reservation. It was observed that even if the under-representation of Scheduled Casts and Scheduled Tribes in public services is brought to the notice of the Court, no mandamus can be issued by the Court to the State Government to provide for reservation. While holding so, in paragraph 18, it was observed and held as under:18. The direction that was issued to the State Government to collect quantifiable data pertaining to the adequacy or inadequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes in government services is the subject-matter of challenge in some appeals before us. In view of the law laid down by this Court, there is no doubt that the State Government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the Court directing the State Government to provide reservations. It is abundantly clear from the judgments of this Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] , Ajit Singh (2) [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239] , M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] that Articles 16(4) and 16(4-A) are enabling provisions and the collection of quantifiable data showing inadequacy of representation of Scheduled Castes and Scheduled Tribes in public service is a sine qua non for providing reservations in promotions. The data to be collected by the State Government is only to justify reservation to be made in the matter of appointment or promotion to public posts, according to Articles 16(4) and 16(4-A) of the Constitution. As such, collection of data regarding the inadequate representation of members of the Scheduled Castes and Scheduled Tribes, as noted above, is a prerequisite for providing reservations, and is not required when the State Government decided not to provide reservations. Not being bound to provide reservations in promotions, the State is not required to justify its decision on the basis of quantifiable data, showing that there is adequate representation of members of the Scheduled Castes and Scheduled Tribes in State services. Even if the under-representation of Scheduled Castes and Scheduled Tribes in public services is brought to the notice of this Court, no mandamus can be issued by this Court to the State Government to provide reservation in light of the law laid down by this Court in C.A. Rajendran [C.A. Rajendran v. Union of India, (1968) 1 SCR 721 : AIR 1968 SC 507 ] and Suresh Chand Gautam [Suresh Chand Gautam v. State of U.P., (2016) 11 SCC 113 : (2016) 2 SCC (L&S) 291] . Therefore, the direction given by the High Court that the State Government should first collect data regarding the adequacy or inadequacy of representation of Scheduled Castes and Scheduled Tribes in government services on the basis of which the State Government should take a decision whether or not to provide reservation in promotion is contrary to the law laid down by this Court and is accordingly set aside. Yet another direction given by the High Court in its judgment dated 15-7-2019 [Vinod Kumar v. State of Uttarakhand, WP (S/B) No. 291 of 2019, decided on 15-7-2019 (Utt)] , directing that all future vacancies that are to be filled up by promotion in the posts of Assistant Engineer, should only be from the members of Scheduled Castes and Scheduled Tribes, is wholly unjustifiable and is hence set aside.9. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has committed a grave error in issuing a writ of mandamus and directing the State Government to provide for 3% reservation/quota for sports persons, instead of 1% as provided by the State Government. A conscious policy decision was taken by the State Government to provide for 1% reservation/quota for sports persons. A specific order dated 25.07.2019 was also issued by the State Government. Therefore, the High Court has exceeded its jurisdiction while issuing a writ of mandamus directing the State to provide a particular percentage of reservation for sports persons, namely, in the present case, 3% reservation instead of 1% provided by the State Government, while exercising powers under Article 226 of the Constitution of India. Therefore, the impugned common judgment and order passed by the High Court insofar as directing the State to provide for 3% reservation for sports persons and/or provide for a sports quota of 3% in the Government Medical/Dental Colleges is unsustainable and the same deserves to be quashed and set aside.
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Youssuf Abbas Vs. Union of India and Others | CHINNAPPA REDDY, J.1. Ali Abbas Jafri was arrested on Sent 8, 1981, pursuant to an order of detention made on July 26, 1980 under the COFEPOSA. The grounds of detention along with the documents necessary to enable the detenu to make a representation were served on him on September 16, 1981. The detenu claims to have made a representation against his detention on October 1, 1981. He has made an assertion to this effect in para 11 of the writ petition filed in this Court. While this is not expressly denied in the counter-affidavit filed on behalf of the Government, it is stated therein that an undated representation was received by the Government from the District Magistrate, Unnao on 23rd October 1981. We will come back to this later. The Advisory Board which met on October 23, 1981, gave a personal hearing to the detenu and submitted its report on October 26, 1981. Thereafter the Government rejected the representation of the detenu on October 29, 1981. The representation, we may mention here, was admittedly not forwarded to the Advisory Board on the ground that it was received by the Government subsequent to the hearing by the Board2. The detenu filed a writ petition in the Allahabad High Court questioning the detention. The High Court upheld the detention and rejected the petition for the issue of the Writ of Habeas Corpus. The detenu has filed a petition for Special Leave to Appeal against the judgment of the Allahabad High Court under Art. 136 of the Constitution and has also filed a separate writ petition under Article 32 of the Constitution3. Several grounds including questions relating to the vires of the COFEPOSA were raised in the writ petition as well as in the special leave petition. Most of them were not argued. Some grounds were urged by the learned counsel, but almost all of them were without substance. However, there was one submission of the learned counsel which we found to be of some substance and on which we wanted some explanation from the respondents. As we said earlier, the detenu averred in is petition that he had made a representation to the detaining authority through the Superintendent of the Jail on October 1, 1981. The submission of the learned counsel was that there was undue and unexplained delay in the consideration of the representation. The counter-affidavit filed on behalf of the respondents merely states that the representation of the detenu was received from the District Magistrate on October 23, 1981 and was rejected by the Government on October 29, 1981. No attempt was made to offer any explanation as to why the District Magistrate, Unnao did not forward the representation to the Government till October 23, 1981. A letter addressed by the Superintendent, Central Jail, Varanasi to Youssuf Abbas, brother of the detenu, has been placed before us by the learned counsel for the detenu and it shows that the representation was forwarded by the Superintendent, Central Jail to the District Magistrate, Unnao on October 20, 1981. Why the representation was detained with the Superintendent, Central Jail from October 1, 1981 to October 20, 1981 has not been explained by any one. We wanted a full and detailed explanation from the respondents for the delay in the consideration of the representation by the appropriate authorities, after it was made by the detenu on October 1, 1981. Shri Dalbir Bhandari, learned counsel for the respondents was unable to offer any explanation, but requested us to permit him to produce the relevant records. Arguments were concluded on March 24, 1982 and we reserved judgment. We informed the learned counsel that he would be at liberty to produce the relevant records within a week from that date. Not withstanding the fact that four weeks have elapsed, the record have not been produced before us. When asked about it, the learned counsel told us hat though he had written to the Government of Uttar Pradesh that the records should be produced immediately, he has not received them so far. In the circumstances, we have no option, but to proceed on the basis that the respondents have no explanation to offer for the delay in considering the representation of the detenu. | 1[ds]We informed the learned counsel that he would be at liberty to produce the relevant records within a week from that date. Not withstanding the fact that four weeks have elapsed, the record have not been produced before us. When asked about it, the learned counsel told us hat though he had written to the Government of Uttar Pradesh that the records should be produced immediately, he has not received them so far. In the circumstances, we have no option, but to proceed on the basis that the respondents have no explanation to offer for the delay in considering the representation of the detenu. | 1 | 778 | 117 | ### 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:
CHINNAPPA REDDY, J.1. Ali Abbas Jafri was arrested on Sent 8, 1981, pursuant to an order of detention made on July 26, 1980 under the COFEPOSA. The grounds of detention along with the documents necessary to enable the detenu to make a representation were served on him on September 16, 1981. The detenu claims to have made a representation against his detention on October 1, 1981. He has made an assertion to this effect in para 11 of the writ petition filed in this Court. While this is not expressly denied in the counter-affidavit filed on behalf of the Government, it is stated therein that an undated representation was received by the Government from the District Magistrate, Unnao on 23rd October 1981. We will come back to this later. The Advisory Board which met on October 23, 1981, gave a personal hearing to the detenu and submitted its report on October 26, 1981. Thereafter the Government rejected the representation of the detenu on October 29, 1981. The representation, we may mention here, was admittedly not forwarded to the Advisory Board on the ground that it was received by the Government subsequent to the hearing by the Board2. The detenu filed a writ petition in the Allahabad High Court questioning the detention. The High Court upheld the detention and rejected the petition for the issue of the Writ of Habeas Corpus. The detenu has filed a petition for Special Leave to Appeal against the judgment of the Allahabad High Court under Art. 136 of the Constitution and has also filed a separate writ petition under Article 32 of the Constitution3. Several grounds including questions relating to the vires of the COFEPOSA were raised in the writ petition as well as in the special leave petition. Most of them were not argued. Some grounds were urged by the learned counsel, but almost all of them were without substance. However, there was one submission of the learned counsel which we found to be of some substance and on which we wanted some explanation from the respondents. As we said earlier, the detenu averred in is petition that he had made a representation to the detaining authority through the Superintendent of the Jail on October 1, 1981. The submission of the learned counsel was that there was undue and unexplained delay in the consideration of the representation. The counter-affidavit filed on behalf of the respondents merely states that the representation of the detenu was received from the District Magistrate on October 23, 1981 and was rejected by the Government on October 29, 1981. No attempt was made to offer any explanation as to why the District Magistrate, Unnao did not forward the representation to the Government till October 23, 1981. A letter addressed by the Superintendent, Central Jail, Varanasi to Youssuf Abbas, brother of the detenu, has been placed before us by the learned counsel for the detenu and it shows that the representation was forwarded by the Superintendent, Central Jail to the District Magistrate, Unnao on October 20, 1981. Why the representation was detained with the Superintendent, Central Jail from October 1, 1981 to October 20, 1981 has not been explained by any one. We wanted a full and detailed explanation from the respondents for the delay in the consideration of the representation by the appropriate authorities, after it was made by the detenu on October 1, 1981. Shri Dalbir Bhandari, learned counsel for the respondents was unable to offer any explanation, but requested us to permit him to produce the relevant records. Arguments were concluded on March 24, 1982 and we reserved judgment. We informed the learned counsel that he would be at liberty to produce the relevant records within a week from that date. Not withstanding the fact that four weeks have elapsed, the record have not been produced before us. When asked about it, the learned counsel told us hat though he had written to the Government of Uttar Pradesh that the records should be produced immediately, he has not received them so far. In the circumstances, we have no option, but to proceed on the basis that the respondents have no explanation to offer for the delay in considering the representation of the detenu.
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1
### Explanation:
We informed the learned counsel that he would be at liberty to produce the relevant records within a week from that date. Not withstanding the fact that four weeks have elapsed, the record have not been produced before us. When asked about it, the learned counsel told us hat though he had written to the Government of Uttar Pradesh that the records should be produced immediately, he has not received them so far. In the circumstances, we have no option, but to proceed on the basis that the respondents have no explanation to offer for the delay in considering the representation of the detenu.
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Gautam Kundu Vs. Manoj Kumar Assistant Director, Eastern Region, Directorate Of Enforcement (Prevention Of Money Laun | by a competent court of law, holding that no offence is made out against the appellant under Section 24 of the SEBI Act and it would be noteworthy that a criminal revision praying for quashing the proceedings initiated against the appellant under Section 24 of SEBI Act is still pending for hearing before the High Court. We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the PMLA imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which indicates that the legislature has carved out an exception for grant of bail by a Special Court when any person is under the age of 16 years or is a woman or is a sick or infirm. Therefore, there is no doubt that the conditions laid down under Section 45A of the PMLA, would bind the High Court as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of the PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure. 34. We have further noted the directions given by this Court in Subrata Chattoraj v. Union of India and Ors., (2014) 8 SCC 768 , in particular to paragraph 35.4. 35. We cannot brush aside the fact that the appellant floated as many as 27 companies to allure the investors to invest in their different companies on a promise of high returns and funds were collected from the public at large which were subsequently laundered in associated companies of Rose Valley Group and were used for purchasing moveable and immoveable properties. 36. We do not intend to further state the other facts excepting the fact that admittedly the complaint was filed against the appellant on the allegation of committing offence punishable under Section 4 of the PMLA. The contention made on behalf of the appellant that no offence under Section 24 of the SEBI Act is made out against the appellant, which is a scheduled offence under the PMLA, needs to be considered from the material collected during the investigation and further to be considered by the competent court of law. We do not intend to express ourselves at this stage with regard to the same as it may cause prejudice the case of the parties in other proceedings. We are sure that it is not expected at this stage that the guilt of the accused has to be established beyond reasonable doubt through evidences. We have noted that in Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation, (2013) 7 SCC 439 , this Court has observed that the economic offences having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of country. In Union of India v. Hassan Ali Khan, (2011) 10 SCC 235, this Court has laid down that what will be the burden of proof when attempt is made to project the proceeds of crime as untainted money. It is held in the said paragraph that allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifted on the accused persons under Section 24 of the PML Act, 2002. The same proposition of law is reiterated and followed by the Orissa High Court in the unreported decision of Smt. Janata Jha v. Assistant Director, Directorate of Enforcement (CRLMC No. 114 of 2011 decided on December 16, 2013). Therefore, taking into account all these propositions of law, we feel that the application for bail of the appellant should be seen at this stage while the appellant is involved in the economic offence, in general, and for the offence punishable under Section 4 of the PMLA, in particular. 37. We have further noted that the High Court at the time of refusing the bail application, duly considered this fact and further considered the statement of the Assistant General Manager of RBI, Kolkata, seizure list, statements of directors of Rose Valley, statements of officer bearers of Rose Valley, statements of debenture trustees of Rose Valley, statements of debenture holders of Rose Valley, statements of AGM of Accounts of Rose Valley and statements of Regional Managers of Rose Valley for formation of opinion whether the appellant is involved in the offence of money laundering and on consideration of the said statements and other materials collected during the investigation, the High Court specifically stated as follows: By making a pragmatic approach to the provision of Section 45(1) of the P.M.L. Act and on consideration of the antecedents of the petitioner in collection of money from open market for issuing secured debentures in violation of the guidelines of SEBI and on further consideration of the manner of keeping accounts of Rose Valley, I am unable to hold that the petitioner is not likely to commit any offence while on bail. As a result, I cannot persuade myself to grant bail to the petitioner at this stage. So, prayer for bail is rejected. The application is dismissed. 38. In these circumstances, we do not find that the High Court has exercised its discretion capriciously or arbitrarily in the facts and circumstances of this case. We further note that the High Court has called for all the relevant papers and duly taken note of that and thereafter after satisfying its conscience, refused the bail. Therefore, we do not find that the High Court has committed any wrong in refusing bail in the given circumstances. | 0[ds]There is no doubt that PMLA deals with the offence of money laundering and the Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by the Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict30. The conditions specified under Section 45 of the PMLA are mandatory and needs to be complied with which is further strengthened by the provisions of Section 65 and also Section 71 of the PMLA. Section 65 requires that the provisions of Cr.P.C. shall apply in so far as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of the PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of Cr.P.C. would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 of Cr.P.C. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the Authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant32. We have heard the learned counsel for the parties. At this stage we refrained ourselves from deciding the questions tried to be raised at this stage since it is nothing but a bail application. We cannot forget that this case is relating to Money Laundering which we feel is a serious threat to the national economy and national interest. We cannot brush aside the fact that the schemes have been prepared in a calculative manner with a deliberative design and motive of personal gain, regardless of the consequence to the members of the societyTherefore, there is no doubt that the conditions laid down under Section 45A of the PMLA, would bind the High Court as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of the PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure38. In these circumstances, we do not find that the High Court has exercised its discretion capriciously or arbitrarily in the facts and circumstances of this case. We further note that the High Court has called for all the relevant papers and duly taken note of that and thereafter after satisfying its conscience, refused the bail. Therefore, we do not find that the High Court has committed any wrong in refusing bail in the given circumstances. | 0 | 6,638 | 572 | ### 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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by a competent court of law, holding that no offence is made out against the appellant under Section 24 of the SEBI Act and it would be noteworthy that a criminal revision praying for quashing the proceedings initiated against the appellant under Section 24 of SEBI Act is still pending for hearing before the High Court. We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the PMLA imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which indicates that the legislature has carved out an exception for grant of bail by a Special Court when any person is under the age of 16 years or is a woman or is a sick or infirm. Therefore, there is no doubt that the conditions laid down under Section 45A of the PMLA, would bind the High Court as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of the PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure. 34. We have further noted the directions given by this Court in Subrata Chattoraj v. Union of India and Ors., (2014) 8 SCC 768 , in particular to paragraph 35.4. 35. We cannot brush aside the fact that the appellant floated as many as 27 companies to allure the investors to invest in their different companies on a promise of high returns and funds were collected from the public at large which were subsequently laundered in associated companies of Rose Valley Group and were used for purchasing moveable and immoveable properties. 36. We do not intend to further state the other facts excepting the fact that admittedly the complaint was filed against the appellant on the allegation of committing offence punishable under Section 4 of the PMLA. The contention made on behalf of the appellant that no offence under Section 24 of the SEBI Act is made out against the appellant, which is a scheduled offence under the PMLA, needs to be considered from the material collected during the investigation and further to be considered by the competent court of law. We do not intend to express ourselves at this stage with regard to the same as it may cause prejudice the case of the parties in other proceedings. We are sure that it is not expected at this stage that the guilt of the accused has to be established beyond reasonable doubt through evidences. We have noted that in Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation, (2013) 7 SCC 439 , this Court has observed that the economic offences having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of country. In Union of India v. Hassan Ali Khan, (2011) 10 SCC 235, this Court has laid down that what will be the burden of proof when attempt is made to project the proceeds of crime as untainted money. It is held in the said paragraph that allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifted on the accused persons under Section 24 of the PML Act, 2002. The same proposition of law is reiterated and followed by the Orissa High Court in the unreported decision of Smt. Janata Jha v. Assistant Director, Directorate of Enforcement (CRLMC No. 114 of 2011 decided on December 16, 2013). Therefore, taking into account all these propositions of law, we feel that the application for bail of the appellant should be seen at this stage while the appellant is involved in the economic offence, in general, and for the offence punishable under Section 4 of the PMLA, in particular. 37. We have further noted that the High Court at the time of refusing the bail application, duly considered this fact and further considered the statement of the Assistant General Manager of RBI, Kolkata, seizure list, statements of directors of Rose Valley, statements of officer bearers of Rose Valley, statements of debenture trustees of Rose Valley, statements of debenture holders of Rose Valley, statements of AGM of Accounts of Rose Valley and statements of Regional Managers of Rose Valley for formation of opinion whether the appellant is involved in the offence of money laundering and on consideration of the said statements and other materials collected during the investigation, the High Court specifically stated as follows: By making a pragmatic approach to the provision of Section 45(1) of the P.M.L. Act and on consideration of the antecedents of the petitioner in collection of money from open market for issuing secured debentures in violation of the guidelines of SEBI and on further consideration of the manner of keeping accounts of Rose Valley, I am unable to hold that the petitioner is not likely to commit any offence while on bail. As a result, I cannot persuade myself to grant bail to the petitioner at this stage. So, prayer for bail is rejected. The application is dismissed. 38. In these circumstances, we do not find that the High Court has exercised its discretion capriciously or arbitrarily in the facts and circumstances of this case. We further note that the High Court has called for all the relevant papers and duly taken note of that and thereafter after satisfying its conscience, refused the bail. Therefore, we do not find that the High Court has committed any wrong in refusing bail in the given circumstances.
### Response:
0
### Explanation:
There is no doubt that PMLA deals with the offence of money laundering and the Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by the Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict30. The conditions specified under Section 45 of the PMLA are mandatory and needs to be complied with which is further strengthened by the provisions of Section 65 and also Section 71 of the PMLA. Section 65 requires that the provisions of Cr.P.C. shall apply in so far as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of the PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of Cr.P.C. would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 of Cr.P.C. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the Authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant32. We have heard the learned counsel for the parties. At this stage we refrained ourselves from deciding the questions tried to be raised at this stage since it is nothing but a bail application. We cannot forget that this case is relating to Money Laundering which we feel is a serious threat to the national economy and national interest. We cannot brush aside the fact that the schemes have been prepared in a calculative manner with a deliberative design and motive of personal gain, regardless of the consequence to the members of the societyTherefore, there is no doubt that the conditions laid down under Section 45A of the PMLA, would bind the High Court as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of the PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure38. In these circumstances, we do not find that the High Court has exercised its discretion capriciously or arbitrarily in the facts and circumstances of this case. We further note that the High Court has called for all the relevant papers and duly taken note of that and thereafter after satisfying its conscience, refused the bail. Therefore, we do not find that the High Court has committed any wrong in refusing bail in the given circumstances.
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RADHEY SHYAM PANDEY Vs. KANPUR DEVELOPMENT AUTHORITY | BANUMATHI, J.: (1) The appellant was appointed as IIIrd grade clerk in the year 1963 and he was confirmed as IInd grade clerk vide Order dated 23.10.1969. Thereafter, the appellant was appointed as a stenographer on ad-hoc basis on 12.12.1969. Later, the appellant was reverted as clerk on 05.07.1973 and he continued to work in that post. The appellant also availed leave from 19.09.1973 to 24.08.1974 during which period he was not paid salary. The period during which he worked i.e. between 01.01.1976 and 30.11.1987, according to the appellant he worked as a stenographer; but he was paid salary only as a IInd Grade clerk. When the appellant made the representation to pay his arrears and allowances as the stenographer, the same was not considered. (2) By Order dated 16.12.1988, the Administrator, Nagar Mahapalika, Kanpur, appointed the appellant as the Stenographer with retrospective effect from 01.07.1975. As noted earlier, the appellant prayed for the arrears of salary and other consequential benefits. U.P. Public Service Tribunal No.II, Jawahar Bhawan, Lucknow, vide Order dated 13.11.1991 allowed the application of the appellant and directed the authorities to pay him arrears of salary as payable to stenographer. (3) Being aggrieved, the Kanpur Development Authority preferred writ petition before the High Court. The High Court vide the impugned order pointed out that the services of the stenographers were centralised by adding Section 5-A of the Uttar Pradesh Urban Planning and Development Act, 1973 w.e.f. 22.10.1984. Pursuant to Section 5-A of the 1973 Act, the High Court observed that services of the appellant was centralised one and the State of Uttar Pradesh was the appointing authority. The High Court while pointing out that the State Government being necessary party is not impleaded, set aside the order of the Tribunal and approved the order of the Kanpur Development Authority. Being aggrieved, the appellant is before us. (4) We have heard Mr. Shrish Kr. Misra, learned counsel appearing for the appellant and Ms. Reena Singh, learned counsel appearing for the respondent and also perused the impugned judgment. (5) The High Court vide impugned order set aside the order of the Tribunal mainly on the ground that the services of the appellant as stenographer were centralised one and the State Government being the appointing authority, has not been impleaded as party. (6) Mr. Shrish Kr. Misra, learned counsel appearing for the appellant, has submitted that the through out his service, the appellant was discharging his duties only as a stenographer but he has been paid pay-scale of clerk. | 1[ds](5) The High Court vide impugned order set aside the order of the Tribunal mainly on the ground that the services of the appellant as stenographer were centralised one and the State Government being the appointing authority, has not been impleaded as party. | 1 | 479 | 51 | ### 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:
BANUMATHI, J.: (1) The appellant was appointed as IIIrd grade clerk in the year 1963 and he was confirmed as IInd grade clerk vide Order dated 23.10.1969. Thereafter, the appellant was appointed as a stenographer on ad-hoc basis on 12.12.1969. Later, the appellant was reverted as clerk on 05.07.1973 and he continued to work in that post. The appellant also availed leave from 19.09.1973 to 24.08.1974 during which period he was not paid salary. The period during which he worked i.e. between 01.01.1976 and 30.11.1987, according to the appellant he worked as a stenographer; but he was paid salary only as a IInd Grade clerk. When the appellant made the representation to pay his arrears and allowances as the stenographer, the same was not considered. (2) By Order dated 16.12.1988, the Administrator, Nagar Mahapalika, Kanpur, appointed the appellant as the Stenographer with retrospective effect from 01.07.1975. As noted earlier, the appellant prayed for the arrears of salary and other consequential benefits. U.P. Public Service Tribunal No.II, Jawahar Bhawan, Lucknow, vide Order dated 13.11.1991 allowed the application of the appellant and directed the authorities to pay him arrears of salary as payable to stenographer. (3) Being aggrieved, the Kanpur Development Authority preferred writ petition before the High Court. The High Court vide the impugned order pointed out that the services of the stenographers were centralised by adding Section 5-A of the Uttar Pradesh Urban Planning and Development Act, 1973 w.e.f. 22.10.1984. Pursuant to Section 5-A of the 1973 Act, the High Court observed that services of the appellant was centralised one and the State of Uttar Pradesh was the appointing authority. The High Court while pointing out that the State Government being necessary party is not impleaded, set aside the order of the Tribunal and approved the order of the Kanpur Development Authority. Being aggrieved, the appellant is before us. (4) We have heard Mr. Shrish Kr. Misra, learned counsel appearing for the appellant and Ms. Reena Singh, learned counsel appearing for the respondent and also perused the impugned judgment. (5) The High Court vide impugned order set aside the order of the Tribunal mainly on the ground that the services of the appellant as stenographer were centralised one and the State Government being the appointing authority, has not been impleaded as party. (6) Mr. Shrish Kr. Misra, learned counsel appearing for the appellant, has submitted that the through out his service, the appellant was discharging his duties only as a stenographer but he has been paid pay-scale of clerk.
### Response:
1
### Explanation:
(5) The High Court vide impugned order set aside the order of the Tribunal mainly on the ground that the services of the appellant as stenographer were centralised one and the State Government being the appointing authority, has not been impleaded as party.
|
ATMA RAM Vs. CHARANJIT SINGH | been paid in the first instance. 6. But in this case, the question was not merely one of limitation. As we have stated earlier, the suit agreement of sale was dated 12.10.1994. According to the petitioner, the last date fixed for the performance of the obligations under the contract, was 7.10.1996. A legal notice was issued by the petitioner on 12.11.1996. But the plaint itself was presented only on 13.10.1999, which was beyond three years of the date 7.10.1996, fixed under the agreement of sale for the performance of the contract. (Though the petitioner has claimed before us that the plaint was presented on 3.10.1999, the copy of the judgment as well as the decree of the Trial Court indicate the date of presentation of the plaint as 13.10.1999). The relief sought in the plaint as it was originally presented, was for a mandatory injunction to direct the respondent to receive the balance sale consideration and to get a document of transfer effected in favour of the petitioner. The petitioner/plaintiff was obviously conscious of the nature of the relief prayed for by him. This is why he valued the relief claimed in the suit at Rs.250/- and paid a fixed court fee of Rs.25/-. The respondent took an objection in his written statement, to the maintainability of the suit, in the form in which it was filed. Therefore, the Trial Court also framed an issue as to whether the suit was not maintainable in the present form, as issue No.5. It was only after issues were framed on 12.10.2002 that the Trial Court took up the application filed by the respondent for the dismissal of the suit. It is in that application that the Trial Court passed the order dated 09.08.2003 permitting the petitioner/plaintiff to pay the deficit court fee by treating the prayer made as one for specific performance. Instead of addressing the issue as to whether the petitioner could indirectly seek specific performance of an agreement of sale, by couching the relief as one for mandatory injunction and paying a fixed court fee as payable in a suit for mandatory injunction, the Trial Court, by a convoluted logic, chose to treat the suit as one for specific performance and permitted the petitioner to pay deficit court fee. 7. As a matter of fact, if the suit was actually one for specific performance, the petitioner ought to have at least valued the suit on the basis of the sale consideration mentioned in the agreement. But he did not. If the suit was only for mandatory injunction (which it actually was), the only recourse open to the petitioner was to seek an amendment under Order VI, Rule 17 CPC. If such an application had been filed, it would have either been dismissed on the ground of limitation (K.Raheja Constructions Ltd., vs. Alliance Ministries 1995 Suppl. (3) SCC 17 ) or even if allowed, the prayer for specific performance, inserted by way of amendment, would not have been, as a matter of course, taken as relating back to the date of the plaint (Tarlok Singh vs. Vijay Kumar 1996 (8) SCC 367 , Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit vs. Ramesh Chander 2010 (14) SCC 596 ). Therefore, a short-cut was found by the petitioner/plaintiff to retain the plaint as such, but to seek permission to pay deficit court fee, as though what was filed in the first instance was actually a suit for specific performance. Such a dubious approach should not be allowed especially in a suit for specific performance, as the relief of specific performance is discretionary under Section 20 of the Specific Relief Act, 1963. 8. It may be true that the approach of the High Court in non suiting the petitioner/plaintiff on the ground of limitation, despite the original defect having been cured and the same having attained finality, may be faulty. But we would not allow the petitioner to take advantage of the same by taking shelter under Section 149 CPC, especially when he filed the suit (after more than three years of the date fixed under the agreement of sale) only as one for mandatory injunction, valued the same as such and paid court fee accordingly, but chose to pay proper court fee after being confronted with an application for the dismissal of the suit. Clever ploys cannot always pay dividends. 9. Coming to the second aspect revolving around Section 16(c), a look at the judgment of the Trial Court would show that no issue was framed on the question of readiness and willingness on the part of the petitioner/plaintiff in terms of Section 16(c) of the Specific Relief Act, 1963. The fact that the petitioner chose to issue a legal notice dated 12.11.1996 and the fact that the petitioner created an alibi in the form of an affidavit executed before the Sub-Registrar on 7.10.1996 (marked as Exhibit P-2) to show that he was present before the Sub-Registrar for the purpose of completion of the transaction, within the time stipulated for its performance, was not sufficient to conclude that the petitioner continued to be ready and willing even after three years, on 13.10.1999 when the plaint was presented. No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13.10.1999) after issuing a legal notice on 12.11.1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12.11.1996 claiming readiness and willingness, but who institutes a suit only on 13.10.1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance. 10. Therefore, we are of the considered view that the first Appellate Court rightly reversed the decree of specific performance granted by the Trial Court and the High Court was right in upholding the judgment of the first Appellate Court. | 0[ds]It was only after issues were framed on 12.10.2002 that the Trial Court took up the application filed by the respondent for the dismissal of the suit. It is in that application that the Trial Court passed the order dated 09.08.2003 permitting the petitioner/plaintiff to pay the deficit court fee by treating the prayer made as one for specific performance. Instead of addressing the issue as to whether the petitioner could indirectly seek specific performance of an agreement of sale, by couching the relief as one for mandatory injunction and paying a fixed court fee as payable in a suit for mandatory injunction, the Trial Court, by a convoluted logic, chose to treat the suit as one for specific performance and permitted the petitioner to pay deficit court fee7. As a matter of fact, if the suit was actually one for specific performance, the petitioner ought to have at least valued the suit on the basis of the sale consideration mentioned in the agreement. But he did not. If the suit was only for mandatory injunction (which it actually was), the only recourse open to the petitioner was to seek an amendment under Order VI, Rule 17 CPC. If such an application had been filed, it would have either been dismissed on the ground of limitation (K.Raheja Constructions Ltd., vs. Alliance Ministries 1995 Suppl. (3) SCC 17 ) or even if allowed, the prayer for specific performance, inserted by way of amendment, would not have been, as a matter of course, taken as relating back to the date of the plaint (Tarlok Singh vs. Vijay Kumar 1996 (8) SCC 367 , Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit vs. Ramesh Chander 2010 (14) SCC 596 ). Therefore, a short-cut was found by the petitioner/plaintiff to retain the plaint as such, but to seek permission to pay deficit court fee, as though what was filed in the first instance was actually a suit for specific performance. Such a dubious approach should not be allowed especially in a suit for specific performance, as the relief of specific performance is discretionary under Section 20 of the Specific Relief Act, 19638. It may be true that the approach of the High Court in non suiting the petitioner/plaintiff on the ground of limitation, despite the original defect having been cured and the same having attained finality, may be faulty. But we would not allow the petitioner to take advantage of the same by taking shelter under Section 149 CPC, especially when he filed the suit (after more than three years of the date fixed under the agreement of sale) only as one for mandatory injunction, valued the same as such and paid court fee accordingly, but chose to pay proper court fee after being confronted with an application for the dismissal of the suit. Clever ploys cannot always pay dividends9. Coming to the second aspect revolving around Section 16(c), a look at the judgment of the Trial Court would show that no issue was framed on the question of readiness and willingness on the part of the petitioner/plaintiff in terms of Section 16(c) of the Specific Relief Act, 1963. The fact that the petitioner chose to issue a legal notice dated 12.11.1996 and the fact that the petitioner created an alibi in the form of an affidavit executed before the Sub-Registrar on 7.10.1996 (marked as Exhibit P-2) to show that he was present before the Sub-Registrar for the purpose of completion of the transaction, within the time stipulated for its performance, was not sufficient to conclude that the petitioner continued to be ready and willing even after three years, on 13.10.1999 when the plaint was presented. No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13.10.1999) after issuing a legal notice on 12.11.1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12.11.1996 claiming readiness and willingness, but who institutes a suit only on 13.10.1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance10. Therefore, we are of the considered view that the first Appellate Court rightly reversed the decree of specific performance granted by the Trial Court and the High Court was right in upholding the judgment of the first Appellate CourtIt is true that Section 149 CPC confers a discretion upon the Court to allow a person, at any stage, to pay the whole or part of the court fee actually payable on the document, but which has not been paid. Once the Court exercises such a discretion and payment of court fee is made in accordance with the said decision, the document, under Section 149, shall have the same force and effect as if such fee had been paid in the first instance. | 0 | 2,419 | 916 | ### 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:
been paid in the first instance. 6. But in this case, the question was not merely one of limitation. As we have stated earlier, the suit agreement of sale was dated 12.10.1994. According to the petitioner, the last date fixed for the performance of the obligations under the contract, was 7.10.1996. A legal notice was issued by the petitioner on 12.11.1996. But the plaint itself was presented only on 13.10.1999, which was beyond three years of the date 7.10.1996, fixed under the agreement of sale for the performance of the contract. (Though the petitioner has claimed before us that the plaint was presented on 3.10.1999, the copy of the judgment as well as the decree of the Trial Court indicate the date of presentation of the plaint as 13.10.1999). The relief sought in the plaint as it was originally presented, was for a mandatory injunction to direct the respondent to receive the balance sale consideration and to get a document of transfer effected in favour of the petitioner. The petitioner/plaintiff was obviously conscious of the nature of the relief prayed for by him. This is why he valued the relief claimed in the suit at Rs.250/- and paid a fixed court fee of Rs.25/-. The respondent took an objection in his written statement, to the maintainability of the suit, in the form in which it was filed. Therefore, the Trial Court also framed an issue as to whether the suit was not maintainable in the present form, as issue No.5. It was only after issues were framed on 12.10.2002 that the Trial Court took up the application filed by the respondent for the dismissal of the suit. It is in that application that the Trial Court passed the order dated 09.08.2003 permitting the petitioner/plaintiff to pay the deficit court fee by treating the prayer made as one for specific performance. Instead of addressing the issue as to whether the petitioner could indirectly seek specific performance of an agreement of sale, by couching the relief as one for mandatory injunction and paying a fixed court fee as payable in a suit for mandatory injunction, the Trial Court, by a convoluted logic, chose to treat the suit as one for specific performance and permitted the petitioner to pay deficit court fee. 7. As a matter of fact, if the suit was actually one for specific performance, the petitioner ought to have at least valued the suit on the basis of the sale consideration mentioned in the agreement. But he did not. If the suit was only for mandatory injunction (which it actually was), the only recourse open to the petitioner was to seek an amendment under Order VI, Rule 17 CPC. If such an application had been filed, it would have either been dismissed on the ground of limitation (K.Raheja Constructions Ltd., vs. Alliance Ministries 1995 Suppl. (3) SCC 17 ) or even if allowed, the prayer for specific performance, inserted by way of amendment, would not have been, as a matter of course, taken as relating back to the date of the plaint (Tarlok Singh vs. Vijay Kumar 1996 (8) SCC 367 , Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit vs. Ramesh Chander 2010 (14) SCC 596 ). Therefore, a short-cut was found by the petitioner/plaintiff to retain the plaint as such, but to seek permission to pay deficit court fee, as though what was filed in the first instance was actually a suit for specific performance. Such a dubious approach should not be allowed especially in a suit for specific performance, as the relief of specific performance is discretionary under Section 20 of the Specific Relief Act, 1963. 8. It may be true that the approach of the High Court in non suiting the petitioner/plaintiff on the ground of limitation, despite the original defect having been cured and the same having attained finality, may be faulty. But we would not allow the petitioner to take advantage of the same by taking shelter under Section 149 CPC, especially when he filed the suit (after more than three years of the date fixed under the agreement of sale) only as one for mandatory injunction, valued the same as such and paid court fee accordingly, but chose to pay proper court fee after being confronted with an application for the dismissal of the suit. Clever ploys cannot always pay dividends. 9. Coming to the second aspect revolving around Section 16(c), a look at the judgment of the Trial Court would show that no issue was framed on the question of readiness and willingness on the part of the petitioner/plaintiff in terms of Section 16(c) of the Specific Relief Act, 1963. The fact that the petitioner chose to issue a legal notice dated 12.11.1996 and the fact that the petitioner created an alibi in the form of an affidavit executed before the Sub-Registrar on 7.10.1996 (marked as Exhibit P-2) to show that he was present before the Sub-Registrar for the purpose of completion of the transaction, within the time stipulated for its performance, was not sufficient to conclude that the petitioner continued to be ready and willing even after three years, on 13.10.1999 when the plaint was presented. No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13.10.1999) after issuing a legal notice on 12.11.1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12.11.1996 claiming readiness and willingness, but who institutes a suit only on 13.10.1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance. 10. Therefore, we are of the considered view that the first Appellate Court rightly reversed the decree of specific performance granted by the Trial Court and the High Court was right in upholding the judgment of the first Appellate Court.
### Response:
0
### Explanation:
It was only after issues were framed on 12.10.2002 that the Trial Court took up the application filed by the respondent for the dismissal of the suit. It is in that application that the Trial Court passed the order dated 09.08.2003 permitting the petitioner/plaintiff to pay the deficit court fee by treating the prayer made as one for specific performance. Instead of addressing the issue as to whether the petitioner could indirectly seek specific performance of an agreement of sale, by couching the relief as one for mandatory injunction and paying a fixed court fee as payable in a suit for mandatory injunction, the Trial Court, by a convoluted logic, chose to treat the suit as one for specific performance and permitted the petitioner to pay deficit court fee7. As a matter of fact, if the suit was actually one for specific performance, the petitioner ought to have at least valued the suit on the basis of the sale consideration mentioned in the agreement. But he did not. If the suit was only for mandatory injunction (which it actually was), the only recourse open to the petitioner was to seek an amendment under Order VI, Rule 17 CPC. If such an application had been filed, it would have either been dismissed on the ground of limitation (K.Raheja Constructions Ltd., vs. Alliance Ministries 1995 Suppl. (3) SCC 17 ) or even if allowed, the prayer for specific performance, inserted by way of amendment, would not have been, as a matter of course, taken as relating back to the date of the plaint (Tarlok Singh vs. Vijay Kumar 1996 (8) SCC 367 , Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit vs. Ramesh Chander 2010 (14) SCC 596 ). Therefore, a short-cut was found by the petitioner/plaintiff to retain the plaint as such, but to seek permission to pay deficit court fee, as though what was filed in the first instance was actually a suit for specific performance. Such a dubious approach should not be allowed especially in a suit for specific performance, as the relief of specific performance is discretionary under Section 20 of the Specific Relief Act, 19638. It may be true that the approach of the High Court in non suiting the petitioner/plaintiff on the ground of limitation, despite the original defect having been cured and the same having attained finality, may be faulty. But we would not allow the petitioner to take advantage of the same by taking shelter under Section 149 CPC, especially when he filed the suit (after more than three years of the date fixed under the agreement of sale) only as one for mandatory injunction, valued the same as such and paid court fee accordingly, but chose to pay proper court fee after being confronted with an application for the dismissal of the suit. Clever ploys cannot always pay dividends9. Coming to the second aspect revolving around Section 16(c), a look at the judgment of the Trial Court would show that no issue was framed on the question of readiness and willingness on the part of the petitioner/plaintiff in terms of Section 16(c) of the Specific Relief Act, 1963. The fact that the petitioner chose to issue a legal notice dated 12.11.1996 and the fact that the petitioner created an alibi in the form of an affidavit executed before the Sub-Registrar on 7.10.1996 (marked as Exhibit P-2) to show that he was present before the Sub-Registrar for the purpose of completion of the transaction, within the time stipulated for its performance, was not sufficient to conclude that the petitioner continued to be ready and willing even after three years, on 13.10.1999 when the plaint was presented. No explanation was forthcoming from the petitioner for the long delay of three years, in filing the suit (on 13.10.1999) after issuing a legal notice on 12.11.1996. The conduct of a plaintiff is very crucial in a suit for specific performance. A person who issues a legal notice on 12.11.1996 claiming readiness and willingness, but who institutes a suit only on 13.10.1999 and that too only with a prayer for a mandatory injunction carrying a fixed court fee relatable only to the said relief, will not be entitled to the discretionary relief of specific performance10. Therefore, we are of the considered view that the first Appellate Court rightly reversed the decree of specific performance granted by the Trial Court and the High Court was right in upholding the judgment of the first Appellate CourtIt is true that Section 149 CPC confers a discretion upon the Court to allow a person, at any stage, to pay the whole or part of the court fee actually payable on the document, but which has not been paid. Once the Court exercises such a discretion and payment of court fee is made in accordance with the said decision, the document, under Section 149, shall have the same force and effect as if such fee had been paid in the first instance.
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Express Newspapers (P) Ltd Vs. Michael Mark And Another | could, however, not be taken back even after the strike ended because their vacancies had been filled up.3. One of the workmen filed an application under S. 15 of the Payment of Wages Act, 1936 in which a claim was made for 30 days wages in lieu of notice, 20 days wages in lieu of leave, two months wages as compensation and full pay from March 26, 1957. The claims for the last two items were given up by that worker. On September 12, 1957, the Payment of Wages Authority granted the application in so far as the first and second items were concerned. Against this order a writ petition was filed before the High Court of Bombay which was allowed on November 26, 1957. It may be mentioned that 116 other workmen had also filed application claiming similar relief before the Payment of Wages Authority, including the first respondent in C.A. 294 of 1961 and the first 97 respondents in the other. It would appear that these applications were kept pending till the decision of the High Court in the application earlier mentioned. Following the view taken by the High Court with regard to the claim in that application all the 116 applications were dismissed by the Payment of Wages Authority. Most of the aggrieved parties preferred writ petitions to the High Court of Bombay which were allowed by it. Against the decision of the High Court these two appeals have been preferred before us.4. What is strenuously urged by Mr. Viswanath Sastri on behalf of the appellants is that the respondents by going on an illegal strike had not only deserted from their posts but also abandoned their employment. They had, therefore, ceased to be workmen as from January 14, 1957 and could consequently not claim the reliefs which they had sought before the Payment of Wages Authority. He points out that under Standing Order 25 an employee is entitled to such reliefs if his service is terminated by the employer. But he contends that if, as here, the service is not terminated by the employer but the employment itself is abandoned by the employee he gets no right under the Standing Order.5. It is common ground that the respondents claim is based upon the aforesaid Standing Order. The High Court seems to think that where it is admitted on both the sides that employment of an employee has come to an end, Standing Order 25(1) would apply and the employee would be entitled to compensation thereunder. Prima facie that does not appear to be quite the right way of interpreting the standing order. The Standing Order 25 contemplates separately cases of termination of employment by the employer and by the employee and provides for compensation only where the termination is by the employer. However that may be, we have no doubt that here it was the appellants who had terminated the services of the respondents. The respondents by going on strike clearly indicated that they wanted to continue in their employment but were only demanding better terms. Such an attitude, far from indicating abandonment of employment, emphasises the fact that the employment continued as far as they were concerned. Mr. Sastri, however, contended that where a person deliberately absents himself from work he would not be entitled to his wages and, therefore, it would not be right to regard such a person as being in service where the abstention from work is attributable to an illegal strike. Whether the strike was legal or illegal is not a matter on which we need express any opinion in this case. All that we want to say is that where the employees absent themselves from work because they have gone on strike with the specific object of enforcing the acceptance of their demands they cannot be deemed to have abandoned their employment.6. Mr. Sastri then refers us to the various notices given by the management from time to time indicating that if the workers did not return to work by a certain date they will be deemed to have abandoned their employment. In our opinion the management could not, by imposing a new term of employment, unilaterally convert the absence from duty of striking employees into abandonment of their employment. It may well be that under the standing orders the appellants could, if the strike was in fact illegal, take disciplinary action against the strikers and even dismiss them. If they did that the strikers would not be entitled to any compensation whatsoever under Standing Order 25. But that is not what the appellants purported to do. They did not serve a charge-sheet on any of the respondents but hoped to get the benefit of disciplinary action without holding any inquiry by purporting to treat the strikers absence as abandonment of employment. In their notices and particularly in their notice of January 14, the appellants have said that the names of those who had not returned to duty would be removed from the muster roll as from 2 p.m. on that day, that is, on January 14. Clearly, therefore, according to this notice the strikers continued to be the appellants employees till 2 p.m. on January 14, 1957. It is only thereafter that they ceased to be their workmen. The reason why they ceased to be workmen was the removal of their names from the muster roll. This means nothing else than termination of their employment. The relevant portion of Standing Order 25(1) reads thus:"The employment of a permanent employee employed on monthly rates of pay may be terminated by giving one months notice or on payment of one months wages (including all allowances) in lieu of notice...................................."Under this provision the respondents in question were entitled to the reliefs sought by them before the Payment of Wages Authority inasmuch as the action of the appellants in removing their names from the muster rolls as from 2 p.m. on January 14, 1957 was in fact termination of their services without notice. | 0[ds]5. It is common ground that the respondents claim is based upon the aforesaid Standing Order. The High Court seems to think that where it is admitted on both the sides that employment of an employee has come to an end, Standing Order 25(1) would apply and the employee would be entitled to compensation thereunder. Prima facie that does not appear to be quite the right way of interpreting the standing order. The Standing Order 25 contemplates separately cases of termination of employment by the employer and by the employee and provides for compensation only where the termination is by the employer. However that may be, we have no doubt that here it was the appellants who had terminated the services of the respondents. The respondents by going on strike clearly indicated that they wanted to continue in their employment but were only demanding better terms. Such an attitude, far from indicating abandonment of employment, emphasises the fact that the employment continued as far as they werethe strike was legal or illegal is not a matter on which we need express any opinion in this case. All that we want to say is that where the employees absent themselves from work because they have gone on strike with the specific object of enforcing the acceptance of their demands they cannot be deemed to have abandoned theirour opinion the management could not, by imposing a new term of employment, unilaterally convert the absence from duty of striking employees into abandonment of their employment. It may well be that under the standing orders the appellants could, if the strike was in fact illegal, take disciplinary action against the strikers and even dismiss them. If they did that the strikers would not be entitled to any compensation whatsoever under Standing Order 25. But that is not what the appellants purported to do. They did not serve a charge-sheet on any of the respondents but hoped to get the benefit of disciplinary action without holding any inquiry by purporting to treat the strikers absence as abandonment of employment. In their notices and particularly in their notice of January 14, the appellants have said that the names of those who had not returned to duty would be removed from the muster roll as from 2 p.m. on that day, that is, on January 14. Clearly, therefore, according to this notice the strikers continued to be the appellants employees till 2 p.m. on January 14, 1957. It is only thereafter that they ceased to be their workmen. The reason why they ceased to be workmen was the removal of their names from the muster roll. This means nothing else than termination of theirthis provision the respondents in question were entitled to the reliefs sought by them before the Payment of Wages Authority inasmuch as the action of the appellants in removing their names from the muster rolls as from 2 p.m. on January 14, 1957 was in fact termination of their services without notice. | 0 | 1,746 | 539 | ### 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:
could, however, not be taken back even after the strike ended because their vacancies had been filled up.3. One of the workmen filed an application under S. 15 of the Payment of Wages Act, 1936 in which a claim was made for 30 days wages in lieu of notice, 20 days wages in lieu of leave, two months wages as compensation and full pay from March 26, 1957. The claims for the last two items were given up by that worker. On September 12, 1957, the Payment of Wages Authority granted the application in so far as the first and second items were concerned. Against this order a writ petition was filed before the High Court of Bombay which was allowed on November 26, 1957. It may be mentioned that 116 other workmen had also filed application claiming similar relief before the Payment of Wages Authority, including the first respondent in C.A. 294 of 1961 and the first 97 respondents in the other. It would appear that these applications were kept pending till the decision of the High Court in the application earlier mentioned. Following the view taken by the High Court with regard to the claim in that application all the 116 applications were dismissed by the Payment of Wages Authority. Most of the aggrieved parties preferred writ petitions to the High Court of Bombay which were allowed by it. Against the decision of the High Court these two appeals have been preferred before us.4. What is strenuously urged by Mr. Viswanath Sastri on behalf of the appellants is that the respondents by going on an illegal strike had not only deserted from their posts but also abandoned their employment. They had, therefore, ceased to be workmen as from January 14, 1957 and could consequently not claim the reliefs which they had sought before the Payment of Wages Authority. He points out that under Standing Order 25 an employee is entitled to such reliefs if his service is terminated by the employer. But he contends that if, as here, the service is not terminated by the employer but the employment itself is abandoned by the employee he gets no right under the Standing Order.5. It is common ground that the respondents claim is based upon the aforesaid Standing Order. The High Court seems to think that where it is admitted on both the sides that employment of an employee has come to an end, Standing Order 25(1) would apply and the employee would be entitled to compensation thereunder. Prima facie that does not appear to be quite the right way of interpreting the standing order. The Standing Order 25 contemplates separately cases of termination of employment by the employer and by the employee and provides for compensation only where the termination is by the employer. However that may be, we have no doubt that here it was the appellants who had terminated the services of the respondents. The respondents by going on strike clearly indicated that they wanted to continue in their employment but were only demanding better terms. Such an attitude, far from indicating abandonment of employment, emphasises the fact that the employment continued as far as they were concerned. Mr. Sastri, however, contended that where a person deliberately absents himself from work he would not be entitled to his wages and, therefore, it would not be right to regard such a person as being in service where the abstention from work is attributable to an illegal strike. Whether the strike was legal or illegal is not a matter on which we need express any opinion in this case. All that we want to say is that where the employees absent themselves from work because they have gone on strike with the specific object of enforcing the acceptance of their demands they cannot be deemed to have abandoned their employment.6. Mr. Sastri then refers us to the various notices given by the management from time to time indicating that if the workers did not return to work by a certain date they will be deemed to have abandoned their employment. In our opinion the management could not, by imposing a new term of employment, unilaterally convert the absence from duty of striking employees into abandonment of their employment. It may well be that under the standing orders the appellants could, if the strike was in fact illegal, take disciplinary action against the strikers and even dismiss them. If they did that the strikers would not be entitled to any compensation whatsoever under Standing Order 25. But that is not what the appellants purported to do. They did not serve a charge-sheet on any of the respondents but hoped to get the benefit of disciplinary action without holding any inquiry by purporting to treat the strikers absence as abandonment of employment. In their notices and particularly in their notice of January 14, the appellants have said that the names of those who had not returned to duty would be removed from the muster roll as from 2 p.m. on that day, that is, on January 14. Clearly, therefore, according to this notice the strikers continued to be the appellants employees till 2 p.m. on January 14, 1957. It is only thereafter that they ceased to be their workmen. The reason why they ceased to be workmen was the removal of their names from the muster roll. This means nothing else than termination of their employment. The relevant portion of Standing Order 25(1) reads thus:"The employment of a permanent employee employed on monthly rates of pay may be terminated by giving one months notice or on payment of one months wages (including all allowances) in lieu of notice...................................."Under this provision the respondents in question were entitled to the reliefs sought by them before the Payment of Wages Authority inasmuch as the action of the appellants in removing their names from the muster rolls as from 2 p.m. on January 14, 1957 was in fact termination of their services without notice.
### Response:
0
### Explanation:
5. It is common ground that the respondents claim is based upon the aforesaid Standing Order. The High Court seems to think that where it is admitted on both the sides that employment of an employee has come to an end, Standing Order 25(1) would apply and the employee would be entitled to compensation thereunder. Prima facie that does not appear to be quite the right way of interpreting the standing order. The Standing Order 25 contemplates separately cases of termination of employment by the employer and by the employee and provides for compensation only where the termination is by the employer. However that may be, we have no doubt that here it was the appellants who had terminated the services of the respondents. The respondents by going on strike clearly indicated that they wanted to continue in their employment but were only demanding better terms. Such an attitude, far from indicating abandonment of employment, emphasises the fact that the employment continued as far as they werethe strike was legal or illegal is not a matter on which we need express any opinion in this case. All that we want to say is that where the employees absent themselves from work because they have gone on strike with the specific object of enforcing the acceptance of their demands they cannot be deemed to have abandoned theirour opinion the management could not, by imposing a new term of employment, unilaterally convert the absence from duty of striking employees into abandonment of their employment. It may well be that under the standing orders the appellants could, if the strike was in fact illegal, take disciplinary action against the strikers and even dismiss them. If they did that the strikers would not be entitled to any compensation whatsoever under Standing Order 25. But that is not what the appellants purported to do. They did not serve a charge-sheet on any of the respondents but hoped to get the benefit of disciplinary action without holding any inquiry by purporting to treat the strikers absence as abandonment of employment. In their notices and particularly in their notice of January 14, the appellants have said that the names of those who had not returned to duty would be removed from the muster roll as from 2 p.m. on that day, that is, on January 14. Clearly, therefore, according to this notice the strikers continued to be the appellants employees till 2 p.m. on January 14, 1957. It is only thereafter that they ceased to be their workmen. The reason why they ceased to be workmen was the removal of their names from the muster roll. This means nothing else than termination of theirthis provision the respondents in question were entitled to the reliefs sought by them before the Payment of Wages Authority inasmuch as the action of the appellants in removing their names from the muster rolls as from 2 p.m. on January 14, 1957 was in fact termination of their services without notice.
|
Karnataka Power Trans. Cor. Ltd Vs. M/S Deepak Cables (India) Ltd | presently apposite to refer to clause 48 of the agreement. The said clause reads as follows: - 48.0 Settlement of disputes: 1. Any dispute(s) or difference(s) arising out of or in connection with the Contract shall, to the extent possible, be settled amicable between the parties. 2. If any dispute or difference of any kind whatsoever shall arise between the owner and the Contractor, arising out of the Contract for the Performance of the Works whether during the progress of the Works or after its completion or whether before or after the termination, abandonment or breach of the contract, it shall, in the first place, be referred to and settled by the Engineer, who, within a period of thirty (30) days after being requested by either party to do so, shall give written notice of his decision to the owner and the contractor. 3. Save as hereinafter provided, such decision in respect of every matter so referred shall be final and binding upon the parties until the completion of the works and shall forthwith be given effect to by the contractor who shall proceed with the works with all the due diligence. 4. During settlement of disputes and Court proceedings, both parties shall be obliged to carry out their respective obligations under the contract. 22. On a careful reading of the said clause, it is demonstrable that it provides for the parties to amicably settle any disputes or differences arising in connection with the contract. This is the first part. The second part, as is perceptible, is that when disputes or differences of any kind arise between the parties to the contract relating to the performance of the works during progress of the works or after its completion or before or after the termination, abandonment or breach of the contract, it is to be referred to and settled by the engineer, who, on being requested by either party, shall give notice of his decision within thirty days to the owner and the contractor. There is also a stipulation that his decision in respect of every matter so referred to shall be final and binding upon the parties until the completion of works and is required to be given effect to by the contractor who shall proceed with the works with due diligence. To understand the intention of the parties, this part of the clause is important. On a studied scrutiny of this postulate, it is graphically clear that it does not provide any procedure which would remotely indicate that the concerned engineer is required to act judicially as an adjudicator by following the principles of natural justice or to consider the submissions of both the parties. That apart, the decision of the engineer is only binding until the completion of the works. It only casts a burden on the contractor who is required to proceed with the works with due diligence. Besides the aforesaid, during the settlement of disputes and the court proceedings, both the parties are obliged to carry out the necessary obligation under the contract. The said clause, as we understand, has been engrafted to avoid delay and stoppage of work and for the purpose of smooth carrying on of the works. It is interesting to note that the burden is on the contractor to carry out the works with due diligence after getting the decision from the engineer until the completion of the works. Thus, the emphasis is on the performance of the contract. The language employed in the clause does not spell out the intention of the parties to get the disputes adjudicated through arbitration. It does not really provide for resolution of disputes. 23. Quite apart from the above, clause 4.1 of the agreement is worthy to be noted. It is as follows: - 4.1 It is specifically agreed by and between the parties that all the differences or disputes arising out of the Agreement or touching the subject matter of the Agreement, shall be decided by a competent Court at Bangalore. 24. Mr. Vishwanathan, learned senior counsel for the appellants, laying immense emphasis on the same, has submitted that the said clause not only provides the territorial jurisdiction by stating a competent court at Bangalore but, in essence and in effect, it stipulates that all the differences or disputes arising out of the agreement touching the subject-matter of the agreement shall be decided by a competent court at Bangalore. Mr. Dave, learned senior counsel for the respondents, would submit that it only clothes the competent court at Bangalore the territorial jurisdiction and cannot be interpreted beyond the same. The submission of Mr. Dave, if properly appreciated, would convey that in case an award is passed by the arbitrator, all other proceedings under any of the provisions of the Act has to be instituted at the competent court at Bangalore. This construction, in our opinion, cannot be placed on the said clause. It really means that the disputes and differences are left to be adjudicated by the competent civil court. Thus, clause 48, as we have analysed, read in conjunction with clause 4.1, clearly establishes that there is no arbitration clause in the agreement. The clauses which were interpreted to be arbitration clauses, as has been held in Ram Lal (supra) and Dewan Chand (supra) which have been approved in Tipper Chand (supra), are differently couched. As far as Rukmanibai Gupta (supra) is concerned, as has been opined in Damodar Das (supra) and also in Bhagyadhar Dash (supra), it has to rest on its own facts. Clause in Dina Nath (supra) is differently couched, and clause 48, which we are dealing with, has no similarity with it. In fact, clause 48, even if it is stretched, cannot be regarded as an arbitration clause. The elements and attributes to constitute an arbitration clause, as has been stated in Jagdish Chander (supra), are absent. Therefore, the irresistible conclusion is that the High Court has fallen into grave error by considering the said clause as providing for arbitration. | 1[ds]9. From the aforesaid provision, it is graphically clear that unless an arbitration agreement stipulates that the parties agree to submit all or certain disputes which have arisen or which may arise in respect of defined legal relationship, whether contractual or not, there cannot be a reference to an arbitrator. To elaborate, it conveys that there has to be intention, expressing the consensual acceptance to refer the disputes to an arbitrator. In the absence of an arbitration clause in an agreement, as defined in sub-section (4) of Section 7, the dispute/disputes arising between the parties cannot be referred to the arbitral tribunal for adjudication of the dispute22. On a careful reading of the said clause, it is demonstrable that it provides for the parties to amicably settle any disputes or differences arising in connection with the contract. This is the first part. The second part, as is perceptible, is that when disputes or differences of any kind arise between the parties to the contract relating to the performance of the works during progress of the works or after its completion or before or after the termination, abandonment or breach of the contract, it is to be referred to and settled by the engineer, who, on being requested by either party, shall give notice of his decision within thirty days to the owner and the contractor. There is also a stipulation that his decision in respect of every matter so referred to shall be final and binding upon the parties until the completion of works and is required to be given effect to by the contractor who shall proceed with the works with due diligence. To understand the intention of the parties, this part of the clause is important. On a studied scrutiny of this postulate, it is graphically clear that it does not provide any procedure which would remotely indicate that the concerned engineer is required to act judicially as an adjudicator by following the principles of natural justice or to consider the submissions of both the parties. That apart, the decision of the engineer is only binding until the completion of the works. It only casts a burden on the contractor who is required to proceed with the works with due diligence. Besides the aforesaid, during the settlement of disputes and the court proceedings, both the parties are obliged to carry out the necessary obligation under the contract. The said clause, as we understand, has been engrafted to avoid delay and stoppage of work and for the purpose of smooth carrying on of the works. It is interesting to note that the burden is on the contractor to carry out the works with due diligence after getting the decision from the engineer until the completion of the works. Thus, the emphasis is on the performance of the contract. The language employed in the clause does not spell out the intention of the parties to get the disputes adjudicated through arbitration. It does not really provide for resolution of disputes24. Mr. Vishwanathan, learned senior counsel for the appellants, laying immense emphasis on the same, has submitted that the said clause not only provides the territorial jurisdiction by stating a competent court at Bangalore but, in essence and in effect, it stipulates that all the differences or disputes arising out of the agreement touching the subject-matter of the agreement shall be decided by a competent court at Bangalore. Mr. Dave, learned senior counsel for the respondents, would submit that it only clothes the competent court at Bangalore the territorial jurisdiction and cannot be interpreted beyond the same. The submission of Mr. Dave, if properly appreciated, would convey that in case an award is passed by the arbitrator, all other proceedings under any of the provisions of the Act has to be instituted at the competent court at Bangalore. This construction, in our opinion, cannot be placed on the said clause. It really means that the disputes and differences are left to be adjudicated by the competent civil court. Thus, clause 48, as we have analysed, read in conjunction with clause 4.1, clearly establishes that there is no arbitration clause in the agreement. The clauses which were interpreted to be arbitration clauses, as has been held in Ram Lal (supra) and Dewan Chand (supra) which have been approved in Tipper Chand (supra), are differently couched. As far as Rukmanibai Gupta (supra) is concerned, as has been opined in Damodar Das (supra) and also in Bhagyadhar Dash (supra), it has to rest on its own facts. Clause in Dina Nath (supra) is differently couched, and clause 48, which we are dealing with, has no similarity with it. In fact, clause 48, even if it is stretched, cannot be regarded as an arbitration clause. The elements and attributes to constitute an arbitration clause, as has been stated in Jagdish Chander (supra), are absent. Therefore, the irresistible conclusion is that the High Court has fallen into grave error by considering the said clause as providing for arbitration. | 1 | 5,443 | 941 | ### 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:
presently apposite to refer to clause 48 of the agreement. The said clause reads as follows: - 48.0 Settlement of disputes: 1. Any dispute(s) or difference(s) arising out of or in connection with the Contract shall, to the extent possible, be settled amicable between the parties. 2. If any dispute or difference of any kind whatsoever shall arise between the owner and the Contractor, arising out of the Contract for the Performance of the Works whether during the progress of the Works or after its completion or whether before or after the termination, abandonment or breach of the contract, it shall, in the first place, be referred to and settled by the Engineer, who, within a period of thirty (30) days after being requested by either party to do so, shall give written notice of his decision to the owner and the contractor. 3. Save as hereinafter provided, such decision in respect of every matter so referred shall be final and binding upon the parties until the completion of the works and shall forthwith be given effect to by the contractor who shall proceed with the works with all the due diligence. 4. During settlement of disputes and Court proceedings, both parties shall be obliged to carry out their respective obligations under the contract. 22. On a careful reading of the said clause, it is demonstrable that it provides for the parties to amicably settle any disputes or differences arising in connection with the contract. This is the first part. The second part, as is perceptible, is that when disputes or differences of any kind arise between the parties to the contract relating to the performance of the works during progress of the works or after its completion or before or after the termination, abandonment or breach of the contract, it is to be referred to and settled by the engineer, who, on being requested by either party, shall give notice of his decision within thirty days to the owner and the contractor. There is also a stipulation that his decision in respect of every matter so referred to shall be final and binding upon the parties until the completion of works and is required to be given effect to by the contractor who shall proceed with the works with due diligence. To understand the intention of the parties, this part of the clause is important. On a studied scrutiny of this postulate, it is graphically clear that it does not provide any procedure which would remotely indicate that the concerned engineer is required to act judicially as an adjudicator by following the principles of natural justice or to consider the submissions of both the parties. That apart, the decision of the engineer is only binding until the completion of the works. It only casts a burden on the contractor who is required to proceed with the works with due diligence. Besides the aforesaid, during the settlement of disputes and the court proceedings, both the parties are obliged to carry out the necessary obligation under the contract. The said clause, as we understand, has been engrafted to avoid delay and stoppage of work and for the purpose of smooth carrying on of the works. It is interesting to note that the burden is on the contractor to carry out the works with due diligence after getting the decision from the engineer until the completion of the works. Thus, the emphasis is on the performance of the contract. The language employed in the clause does not spell out the intention of the parties to get the disputes adjudicated through arbitration. It does not really provide for resolution of disputes. 23. Quite apart from the above, clause 4.1 of the agreement is worthy to be noted. It is as follows: - 4.1 It is specifically agreed by and between the parties that all the differences or disputes arising out of the Agreement or touching the subject matter of the Agreement, shall be decided by a competent Court at Bangalore. 24. Mr. Vishwanathan, learned senior counsel for the appellants, laying immense emphasis on the same, has submitted that the said clause not only provides the territorial jurisdiction by stating a competent court at Bangalore but, in essence and in effect, it stipulates that all the differences or disputes arising out of the agreement touching the subject-matter of the agreement shall be decided by a competent court at Bangalore. Mr. Dave, learned senior counsel for the respondents, would submit that it only clothes the competent court at Bangalore the territorial jurisdiction and cannot be interpreted beyond the same. The submission of Mr. Dave, if properly appreciated, would convey that in case an award is passed by the arbitrator, all other proceedings under any of the provisions of the Act has to be instituted at the competent court at Bangalore. This construction, in our opinion, cannot be placed on the said clause. It really means that the disputes and differences are left to be adjudicated by the competent civil court. Thus, clause 48, as we have analysed, read in conjunction with clause 4.1, clearly establishes that there is no arbitration clause in the agreement. The clauses which were interpreted to be arbitration clauses, as has been held in Ram Lal (supra) and Dewan Chand (supra) which have been approved in Tipper Chand (supra), are differently couched. As far as Rukmanibai Gupta (supra) is concerned, as has been opined in Damodar Das (supra) and also in Bhagyadhar Dash (supra), it has to rest on its own facts. Clause in Dina Nath (supra) is differently couched, and clause 48, which we are dealing with, has no similarity with it. In fact, clause 48, even if it is stretched, cannot be regarded as an arbitration clause. The elements and attributes to constitute an arbitration clause, as has been stated in Jagdish Chander (supra), are absent. Therefore, the irresistible conclusion is that the High Court has fallen into grave error by considering the said clause as providing for arbitration.
### Response:
1
### Explanation:
9. From the aforesaid provision, it is graphically clear that unless an arbitration agreement stipulates that the parties agree to submit all or certain disputes which have arisen or which may arise in respect of defined legal relationship, whether contractual or not, there cannot be a reference to an arbitrator. To elaborate, it conveys that there has to be intention, expressing the consensual acceptance to refer the disputes to an arbitrator. In the absence of an arbitration clause in an agreement, as defined in sub-section (4) of Section 7, the dispute/disputes arising between the parties cannot be referred to the arbitral tribunal for adjudication of the dispute22. On a careful reading of the said clause, it is demonstrable that it provides for the parties to amicably settle any disputes or differences arising in connection with the contract. This is the first part. The second part, as is perceptible, is that when disputes or differences of any kind arise between the parties to the contract relating to the performance of the works during progress of the works or after its completion or before or after the termination, abandonment or breach of the contract, it is to be referred to and settled by the engineer, who, on being requested by either party, shall give notice of his decision within thirty days to the owner and the contractor. There is also a stipulation that his decision in respect of every matter so referred to shall be final and binding upon the parties until the completion of works and is required to be given effect to by the contractor who shall proceed with the works with due diligence. To understand the intention of the parties, this part of the clause is important. On a studied scrutiny of this postulate, it is graphically clear that it does not provide any procedure which would remotely indicate that the concerned engineer is required to act judicially as an adjudicator by following the principles of natural justice or to consider the submissions of both the parties. That apart, the decision of the engineer is only binding until the completion of the works. It only casts a burden on the contractor who is required to proceed with the works with due diligence. Besides the aforesaid, during the settlement of disputes and the court proceedings, both the parties are obliged to carry out the necessary obligation under the contract. The said clause, as we understand, has been engrafted to avoid delay and stoppage of work and for the purpose of smooth carrying on of the works. It is interesting to note that the burden is on the contractor to carry out the works with due diligence after getting the decision from the engineer until the completion of the works. Thus, the emphasis is on the performance of the contract. The language employed in the clause does not spell out the intention of the parties to get the disputes adjudicated through arbitration. It does not really provide for resolution of disputes24. Mr. Vishwanathan, learned senior counsel for the appellants, laying immense emphasis on the same, has submitted that the said clause not only provides the territorial jurisdiction by stating a competent court at Bangalore but, in essence and in effect, it stipulates that all the differences or disputes arising out of the agreement touching the subject-matter of the agreement shall be decided by a competent court at Bangalore. Mr. Dave, learned senior counsel for the respondents, would submit that it only clothes the competent court at Bangalore the territorial jurisdiction and cannot be interpreted beyond the same. The submission of Mr. Dave, if properly appreciated, would convey that in case an award is passed by the arbitrator, all other proceedings under any of the provisions of the Act has to be instituted at the competent court at Bangalore. This construction, in our opinion, cannot be placed on the said clause. It really means that the disputes and differences are left to be adjudicated by the competent civil court. Thus, clause 48, as we have analysed, read in conjunction with clause 4.1, clearly establishes that there is no arbitration clause in the agreement. The clauses which were interpreted to be arbitration clauses, as has been held in Ram Lal (supra) and Dewan Chand (supra) which have been approved in Tipper Chand (supra), are differently couched. As far as Rukmanibai Gupta (supra) is concerned, as has been opined in Damodar Das (supra) and also in Bhagyadhar Dash (supra), it has to rest on its own facts. Clause in Dina Nath (supra) is differently couched, and clause 48, which we are dealing with, has no similarity with it. In fact, clause 48, even if it is stretched, cannot be regarded as an arbitration clause. The elements and attributes to constitute an arbitration clause, as has been stated in Jagdish Chander (supra), are absent. Therefore, the irresistible conclusion is that the High Court has fallen into grave error by considering the said clause as providing for arbitration.
|
Timber Kashmir Pvt. Ltd. Etc. Etc Vs. Conservator Of Forests, Jammu & Ors. Etc | power to "sanction or cancel" leases, agreements and other instruments which was delegated to the officers mentioned there with limitation on their powers specified there. But, the Constitutional provision, relied upon on behalf of the appellant, relates to the manner of the execution of the formal document containing the contract after its sanction. It is true that the contract could not be executed without the sanction. Nevertheless, if the sanction could be either expressly or impliedly given by or on behalf of the Government, as we think it could, and, if some acts of the Government could fasten some obligations upon the Government, the lessee could also be estopped from questioning the terms of the grant of the sanction even where there is no written con tract executed to bind the lessee.4. In the case before us, we have agreements from which the appellant company has derived benefits. And, there are contracts validly executed on behalf of the Government of Jammu &Kashmir by the Conservator of Forests. It is true that, if the appellant could take up the legal plea that the contracts were not duly executed, in accordance with section 122(1) of the Constitution of Jammu &Kashmir, it could urge that they did not have any effect at all as contracts whatever other legal consequences its acts or conduct may have had. But, this does not mean that, if a party obtains benefits on the understanding that it would abide by certain conditions, as the appellant company had done, it could not be compelled to observe those conditions, such as the condition to refer disputes to arbitration. However, in the instant case, w e need not go into that question because the plea of a violation of Section 122(1) of the Jammu &Kashmir Constitution is itself not sustainable for the reasons indicated below.As the Division Bench of the High Court had pointed out, there was a Government order and notification of 23rd February, 1957 which reads as follows:5. In exercise of the powers conferred by sub-section (1) of Section 122 of the Constitution, the Sadar-i-Riyasat is pleased to direct that the under-mentioned contracts and assurances of property made in the exercise of the executive powers of the State may be executed on his behalf by various Officers subject to any limit fixed by Government rules and orders as follows:"VI. In the Department of Development:(1) Agreements relating to Forest Leases and appropriation of forest products: By the secretary to Government, Chief Conservator, Conservators of Forests and Divisional Forest Officers".The three leases, containing the arbitration clauses which the appellant wants to avoid, were executed on 27th February, 1963, and 28th February, 1963, and 19th March, 1963, after the notification mentioned above. The leases were duly signed by Conservators of Forests, who were expressly authorised, without any limits imposed on the valuation of the leases, to sign and execute them on behalf of the Government. The delegation of power made prior to the Jammu and Kashmir Constitution related to grants of sanction and their cancellation . It did not expressly refer to powers to execute leases which is a separate matter. The notification of 1957, however, is specifically related to the execution of formal documents including leases. Hence, it will cover the three leases before us even if the former rules relating to the limits of the authority of Forest Officers to give or cancel certain sanctions could be said to be in existence at all after the enactment of the new Constitution of Jammu &Kashmir and the notification of 23rd February, 1957, cited above.We may mention that, as has been indicated in the separate judgment of the learned Chief Justice of the High Court, the Jammu &Kashmir Government had tried to remove the doubts it entertained about the validity of past leases executed by the Conservator of Forests. It, therefore, passed two orders: one of 14th April, 1965, and the other of 29th April, 1971. The order of 14th April, 1965, ran as follows:"In supersession of previous orders regarding signing of lease agreement it is ordered t hat the Conservator of Forests will sign agreements relating to all cases of Forests leases and appropriation of forest products and Chief Conservator of Forests will act as the arbitrator as provided under C1. 44 of the Agreement.By order of the Government of Jammu &Kashmir.Sd/- Bharat Bhushan Secretary to Govt. Forests Department".The order of 29th April, 1971, runs as follows:"Government Order No. FST-31 dated 14-4-65 shall bedeemed to have taken effect from 29-1-63 and all actions taken by the Conservators of Forests in executing the lease agreements by virtue of the said order are hereby regularised.By order of the Government of Jammu &Kashmir. Sd/- R.C. Bhargava, Secretary to Government, Agricultural Department".6. The learned Chief Justice had observed that these orders, purporting to ratify the leases which were valid, did not have any legal effect whatsoever and were unnecessary. If there had been any question to be decided as to whether the Government had sanctioned the leases, its actions, apart from the execution of leases, could be considered. But, once there has been a valid execution of leases by duly authorised officers, the documents would be the best evidence of sanction also. That was one of the objects of. prescribing a formal mode of execution of instruments on behalf of the Government apart from the need to protect its interests against mala-fide and other un authorised acts of its servants or agents as indicated by this Court in Mulam Chand v. State of Madhya Pradesh ([1968] 3S.C.R. 214.) In the cases before us the only question which needed decision was whether formal execution of the leases by duly authorised officers had been proved. We are of opinion that the Conservator of Forests was, for the reasons given by us, duly authorised to execute the leases. Accordingly, we affirm the orders of the Division Bench so that matters in dispute between the parties could be validly referred to Arbitration under the appropriate clauses of the agreements.7. | 0[ds]The learned Chief Justice had observed that these orders, purporting to ratify the leases which were valid, did not have any legal effect whatsoever and were unnecessary. If there had been any question to be decided as to whether the Government had sanctioned the leases, its actions, apart from the execution of leases, could be considered. But, once there has been a valid execution of leases by duly authorised officers, the documents would be the best evidence of sanction also. That was one of the objects of. prescribing a formal mode of execution of instruments on behalf of the Government apart from the need to protect its interests againstand other un authorised acts of its servants or agents as indicated by this Court in Mulam Chand v. State of Madhya Pradesh ([1968] 3S.C.R. 214.) In the cases before us the only question which needed decision was whether formal execution of the leases by duly authorised officers had been proved. We are of opinion that the Conservator of Forests was, for the reasons given by us, duly authorised to execute the leases. Accordingly, we affirm the orders of the Division Bench so that matters in dispute between the parties could be validly referred to Arbitration under the appropriate clauses of the agreements. | 0 | 1,506 | 238 | ### Instruction:
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power to "sanction or cancel" leases, agreements and other instruments which was delegated to the officers mentioned there with limitation on their powers specified there. But, the Constitutional provision, relied upon on behalf of the appellant, relates to the manner of the execution of the formal document containing the contract after its sanction. It is true that the contract could not be executed without the sanction. Nevertheless, if the sanction could be either expressly or impliedly given by or on behalf of the Government, as we think it could, and, if some acts of the Government could fasten some obligations upon the Government, the lessee could also be estopped from questioning the terms of the grant of the sanction even where there is no written con tract executed to bind the lessee.4. In the case before us, we have agreements from which the appellant company has derived benefits. And, there are contracts validly executed on behalf of the Government of Jammu &Kashmir by the Conservator of Forests. It is true that, if the appellant could take up the legal plea that the contracts were not duly executed, in accordance with section 122(1) of the Constitution of Jammu &Kashmir, it could urge that they did not have any effect at all as contracts whatever other legal consequences its acts or conduct may have had. But, this does not mean that, if a party obtains benefits on the understanding that it would abide by certain conditions, as the appellant company had done, it could not be compelled to observe those conditions, such as the condition to refer disputes to arbitration. However, in the instant case, w e need not go into that question because the plea of a violation of Section 122(1) of the Jammu &Kashmir Constitution is itself not sustainable for the reasons indicated below.As the Division Bench of the High Court had pointed out, there was a Government order and notification of 23rd February, 1957 which reads as follows:5. In exercise of the powers conferred by sub-section (1) of Section 122 of the Constitution, the Sadar-i-Riyasat is pleased to direct that the under-mentioned contracts and assurances of property made in the exercise of the executive powers of the State may be executed on his behalf by various Officers subject to any limit fixed by Government rules and orders as follows:"VI. In the Department of Development:(1) Agreements relating to Forest Leases and appropriation of forest products: By the secretary to Government, Chief Conservator, Conservators of Forests and Divisional Forest Officers".The three leases, containing the arbitration clauses which the appellant wants to avoid, were executed on 27th February, 1963, and 28th February, 1963, and 19th March, 1963, after the notification mentioned above. The leases were duly signed by Conservators of Forests, who were expressly authorised, without any limits imposed on the valuation of the leases, to sign and execute them on behalf of the Government. The delegation of power made prior to the Jammu and Kashmir Constitution related to grants of sanction and their cancellation . It did not expressly refer to powers to execute leases which is a separate matter. The notification of 1957, however, is specifically related to the execution of formal documents including leases. Hence, it will cover the three leases before us even if the former rules relating to the limits of the authority of Forest Officers to give or cancel certain sanctions could be said to be in existence at all after the enactment of the new Constitution of Jammu &Kashmir and the notification of 23rd February, 1957, cited above.We may mention that, as has been indicated in the separate judgment of the learned Chief Justice of the High Court, the Jammu &Kashmir Government had tried to remove the doubts it entertained about the validity of past leases executed by the Conservator of Forests. It, therefore, passed two orders: one of 14th April, 1965, and the other of 29th April, 1971. The order of 14th April, 1965, ran as follows:"In supersession of previous orders regarding signing of lease agreement it is ordered t hat the Conservator of Forests will sign agreements relating to all cases of Forests leases and appropriation of forest products and Chief Conservator of Forests will act as the arbitrator as provided under C1. 44 of the Agreement.By order of the Government of Jammu &Kashmir.Sd/- Bharat Bhushan Secretary to Govt. Forests Department".The order of 29th April, 1971, runs as follows:"Government Order No. FST-31 dated 14-4-65 shall bedeemed to have taken effect from 29-1-63 and all actions taken by the Conservators of Forests in executing the lease agreements by virtue of the said order are hereby regularised.By order of the Government of Jammu &Kashmir. Sd/- R.C. Bhargava, Secretary to Government, Agricultural Department".6. The learned Chief Justice had observed that these orders, purporting to ratify the leases which were valid, did not have any legal effect whatsoever and were unnecessary. If there had been any question to be decided as to whether the Government had sanctioned the leases, its actions, apart from the execution of leases, could be considered. But, once there has been a valid execution of leases by duly authorised officers, the documents would be the best evidence of sanction also. That was one of the objects of. prescribing a formal mode of execution of instruments on behalf of the Government apart from the need to protect its interests against mala-fide and other un authorised acts of its servants or agents as indicated by this Court in Mulam Chand v. State of Madhya Pradesh ([1968] 3S.C.R. 214.) In the cases before us the only question which needed decision was whether formal execution of the leases by duly authorised officers had been proved. We are of opinion that the Conservator of Forests was, for the reasons given by us, duly authorised to execute the leases. Accordingly, we affirm the orders of the Division Bench so that matters in dispute between the parties could be validly referred to Arbitration under the appropriate clauses of the agreements.7.
### Response:
0
### Explanation:
The learned Chief Justice had observed that these orders, purporting to ratify the leases which were valid, did not have any legal effect whatsoever and were unnecessary. If there had been any question to be decided as to whether the Government had sanctioned the leases, its actions, apart from the execution of leases, could be considered. But, once there has been a valid execution of leases by duly authorised officers, the documents would be the best evidence of sanction also. That was one of the objects of. prescribing a formal mode of execution of instruments on behalf of the Government apart from the need to protect its interests againstand other un authorised acts of its servants or agents as indicated by this Court in Mulam Chand v. State of Madhya Pradesh ([1968] 3S.C.R. 214.) In the cases before us the only question which needed decision was whether formal execution of the leases by duly authorised officers had been proved. We are of opinion that the Conservator of Forests was, for the reasons given by us, duly authorised to execute the leases. Accordingly, we affirm the orders of the Division Bench so that matters in dispute between the parties could be validly referred to Arbitration under the appropriate clauses of the agreements.
|
Reliance Jute and Industries Ltd Vs. Commissioner of Income Tax, West Bengal | assessment for the assessment year 1959-60, the ITO set-off the unabsorbed business loss of Rs. 1, 58, 845 for 1949-50 and Rs. 5, 70, 952 for 1950-51, against the business income of that year and directed that Rs. 15, 50, 189 representing the loss remaining unabsorbed should be carried forward. In the assessment proceeding for the assessment year 1960-61, with which we are concerned, the assessee claimed that the unabsorbed loss should be carried forward and set-off against the business income of the current year. The ITO rejected the claim on the ground that the unabsorbed loss related to 1950-51 and could not be carried forward for more than eight years. The assessee pressed the claim in appeal before the Appellate Assistant Commissioner but without success. A second appeal was dismissed by the Income-tax Appellate Tribunal. At the instance of the assessee, the Appellate Tribunal referred the following question of law to the High Court at Calcutta." Whether, on the facts and circumstances of the case, the assessee was entitled in law to set-off unabsorbed loss of Rs. 15, 50, 189 of the assessment year 1950-51 against the business income of the assessment year 1960-61 ? " 3. The High Court answered the question in the negative. 4. In this appeal by the assessee it is contended that by virtue of section 24(2)(iii) of the Indian I.T. Act, 1922, as it stood before its amendment with effect from April 1, 1957, the assessee had acquired a vested right to have the unabsorbed loss carried forward from year to year until it was completely set off, and the subsequent amendment limiting the period for carrying forward the loss to eight years could not divest the assessee of the vested right which had thus accrued to him. It is pointed out that the amendment effected in 1957 is not retrospective in operation. In our judgment, there is no substance in the assessees claimSection 24(2) has suffered amendment a number of times. Prior to its amendment by the Finance Act, 1955, it permitted a business loss to be carried forward for not more than six years, except in the case of losses pertaining to certain assessment years ending with the assessment year 1943-44 where the period for carrying forward was shorter. Section 16 of the Finance Act, 1955, amended s. 24(2), and as a result of the amendment s. 24(2)(iii) provided that a business loss which was not wholly set off could be carried forward from year to year. Thereafter, Finance (No. 2) Act of 1957 amended s. 24(2)(iii) with effect from April 1, 1957, and in consequence an unabsorbed loss could not now be carried forward for more than eight years. 5. The assessee claims a vested right under s. 24(2)(iii), as it stood before its amendment in 1957, to have the unabsorbed loss of 1950-51 carried forward from year to year until the loss is completely absorbed. The claim is based on a misconception of the fundamental basis underlying every income-tax assessment. It is a cardinal principle of the tax law that the law to be applied is that in force in the assessment year unless otherwise provided expressly or by necessary implication : CIT v. Isthmian Steamship Lines [1951] 20 ITR 572 (SC) and Karimtharuvi Tea Estate Ltd. v. State of Kerala [1966] 60 ITR 262 (SC). On that principle, it is abundantly clear that when an assessment for the assessment year 1960-61 is to be made and s. 24(2) is invoked, it is s. 24(2) as in force in that assessment year which has to be applied. That is the provision as amended by the Finance (No. 2) Act, 1957. There is no question of the assessee possessing any vested right under the law as it stood before the amendment. The assessment for one assessment year cannot, in the absence of a contrary provision, be affected by the law in force in another assessment year. A right claimed by an assessee under the law in force in a particular assessment year is ordinarily available only in relation to a proceeding pertaining to that year. Therefore, inasmuch as the provisions of s. 24(2), as amended in 1957, govern the assessment for the assessment year 1960-61, the High Court is right in affirming that the unabsorbed loss of Rs. 15, 50, 189 of the assessment year 1950-51 cannot be carried forward for more than eight years, and consequently, cannot be set off against the business income of the assessment year 1960-61It is pointed out that the AAC mentioned in his order for the assessment year 1959-60 that the unabsorbed loss of Rs. 15, 50, 189 should be carried forward. That direction has meaning only if the law in force in the assessment year 1960-61 permits the unabsorbed loss to be carried forward into the assessment of that year. The direction by the AAC assumes that the law permits the unabsorbed loss to be carried forward into future years, but as we have seen that is not the law and, therefore, the assessee can derive no advantage from that direction. 6. The assessee relies on the judgment of this court in CIT v. Helen Rubber Industries Ltd. [1962] 44 ITR 714 (SC). That was a case, however, where paragraph 3 of the Taxation Laws (Removal of Difficulties) Order, 1950, operated to divide the previous years to which the provisions of the Travancore I.T. Act, 1946, applied from those previous years to which the provisions of the Indian I.T. Act, 1922, brought into force in the State of Travancore in 1950, would apply. It was because of the Removal of Difficulties Order that the court held that since under the Travancore law the loss could be carried forward for two years only and those two years ended before the previous years for which the Indian I.T. Act began to apply, the benefit of the period of six years under the Indian I.T. Act would not be available. The case is clearly distinguishable. 7. | 0[ds]In our judgment, there is no substance in the assessees claimSection 24(2) has suffered amendment a number of times. Prior to its amendment by the Finance Act, 1955, it permitted a business loss to be carried forward for not more than six years, except in the case of losses pertaining to certain assessment years ending with the assessment year 1943-44 where the period for carrying forward was shorter. Section 16 of the Finance Act, 1955, amended s. 24(2), and as a result of the amendment s. 24(2)(iii) provided that a business loss which was not wholly set off could be carried forward from year to year. Thereafter, Finance (No. 2) Act of 1957 amended s. 24(2)(iii) with effect from April 1, 1957, and in consequence an unabsorbed loss could not now be carried forward for more than eight yearsOn that principle, it is abundantly clear that when an assessment for the assessment year 1960-61 is to be made and s. 24(2) is invoked, it is s. 24(2) as in force in that assessment year which has to be applied. That is the provision as amended by the Finance (No. 2) Act, 1957. There is no question of the assessee possessing any vested right under the law as it stood before the amendment. The assessment for one assessment year cannot, in the absence of a contrary provision, be affected by the law in force in another assessment year. A right claimed by an assessee under the law in force in a particular assessment year is ordinarily available only in relation to a proceeding pertaining to that year. Therefore, inasmuch as the provisions of s. 24(2), as amended in 1957, govern the assessment for the assessment year 1960-61, the High Court is right in affirming that the unabsorbed loss of Rs. 15, 50, 189 of the assessment year 1950-51 cannot be carried forward for more than eight years, and consequently, cannot be set off against the business income of the assessment year 1960-61It is pointed out that the AAC mentioned in his order for the assessment year 1959-60 that the unabsorbed loss of Rs. 15, 50, 189 should be carried forward. That direction has meaning only if the law in force in the assessment year 1960-61 permits the unabsorbed loss to be carried forward into the assessment of that year. The direction by the AAC assumes that the law permits the unabsorbed loss to be carried forward into future years, but as we have seen that is not the law and, therefore, the assessee can derive no advantage from that directionThe case is clearly distinguishable. | 0 | 1,253 | 514 | ### Instruction:
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assessment for the assessment year 1959-60, the ITO set-off the unabsorbed business loss of Rs. 1, 58, 845 for 1949-50 and Rs. 5, 70, 952 for 1950-51, against the business income of that year and directed that Rs. 15, 50, 189 representing the loss remaining unabsorbed should be carried forward. In the assessment proceeding for the assessment year 1960-61, with which we are concerned, the assessee claimed that the unabsorbed loss should be carried forward and set-off against the business income of the current year. The ITO rejected the claim on the ground that the unabsorbed loss related to 1950-51 and could not be carried forward for more than eight years. The assessee pressed the claim in appeal before the Appellate Assistant Commissioner but without success. A second appeal was dismissed by the Income-tax Appellate Tribunal. At the instance of the assessee, the Appellate Tribunal referred the following question of law to the High Court at Calcutta." Whether, on the facts and circumstances of the case, the assessee was entitled in law to set-off unabsorbed loss of Rs. 15, 50, 189 of the assessment year 1950-51 against the business income of the assessment year 1960-61 ? " 3. The High Court answered the question in the negative. 4. In this appeal by the assessee it is contended that by virtue of section 24(2)(iii) of the Indian I.T. Act, 1922, as it stood before its amendment with effect from April 1, 1957, the assessee had acquired a vested right to have the unabsorbed loss carried forward from year to year until it was completely set off, and the subsequent amendment limiting the period for carrying forward the loss to eight years could not divest the assessee of the vested right which had thus accrued to him. It is pointed out that the amendment effected in 1957 is not retrospective in operation. In our judgment, there is no substance in the assessees claimSection 24(2) has suffered amendment a number of times. Prior to its amendment by the Finance Act, 1955, it permitted a business loss to be carried forward for not more than six years, except in the case of losses pertaining to certain assessment years ending with the assessment year 1943-44 where the period for carrying forward was shorter. Section 16 of the Finance Act, 1955, amended s. 24(2), and as a result of the amendment s. 24(2)(iii) provided that a business loss which was not wholly set off could be carried forward from year to year. Thereafter, Finance (No. 2) Act of 1957 amended s. 24(2)(iii) with effect from April 1, 1957, and in consequence an unabsorbed loss could not now be carried forward for more than eight years. 5. The assessee claims a vested right under s. 24(2)(iii), as it stood before its amendment in 1957, to have the unabsorbed loss of 1950-51 carried forward from year to year until the loss is completely absorbed. The claim is based on a misconception of the fundamental basis underlying every income-tax assessment. It is a cardinal principle of the tax law that the law to be applied is that in force in the assessment year unless otherwise provided expressly or by necessary implication : CIT v. Isthmian Steamship Lines [1951] 20 ITR 572 (SC) and Karimtharuvi Tea Estate Ltd. v. State of Kerala [1966] 60 ITR 262 (SC). On that principle, it is abundantly clear that when an assessment for the assessment year 1960-61 is to be made and s. 24(2) is invoked, it is s. 24(2) as in force in that assessment year which has to be applied. That is the provision as amended by the Finance (No. 2) Act, 1957. There is no question of the assessee possessing any vested right under the law as it stood before the amendment. The assessment for one assessment year cannot, in the absence of a contrary provision, be affected by the law in force in another assessment year. A right claimed by an assessee under the law in force in a particular assessment year is ordinarily available only in relation to a proceeding pertaining to that year. Therefore, inasmuch as the provisions of s. 24(2), as amended in 1957, govern the assessment for the assessment year 1960-61, the High Court is right in affirming that the unabsorbed loss of Rs. 15, 50, 189 of the assessment year 1950-51 cannot be carried forward for more than eight years, and consequently, cannot be set off against the business income of the assessment year 1960-61It is pointed out that the AAC mentioned in his order for the assessment year 1959-60 that the unabsorbed loss of Rs. 15, 50, 189 should be carried forward. That direction has meaning only if the law in force in the assessment year 1960-61 permits the unabsorbed loss to be carried forward into the assessment of that year. The direction by the AAC assumes that the law permits the unabsorbed loss to be carried forward into future years, but as we have seen that is not the law and, therefore, the assessee can derive no advantage from that direction. 6. The assessee relies on the judgment of this court in CIT v. Helen Rubber Industries Ltd. [1962] 44 ITR 714 (SC). That was a case, however, where paragraph 3 of the Taxation Laws (Removal of Difficulties) Order, 1950, operated to divide the previous years to which the provisions of the Travancore I.T. Act, 1946, applied from those previous years to which the provisions of the Indian I.T. Act, 1922, brought into force in the State of Travancore in 1950, would apply. It was because of the Removal of Difficulties Order that the court held that since under the Travancore law the loss could be carried forward for two years only and those two years ended before the previous years for which the Indian I.T. Act began to apply, the benefit of the period of six years under the Indian I.T. Act would not be available. The case is clearly distinguishable. 7.
### Response:
0
### Explanation:
In our judgment, there is no substance in the assessees claimSection 24(2) has suffered amendment a number of times. Prior to its amendment by the Finance Act, 1955, it permitted a business loss to be carried forward for not more than six years, except in the case of losses pertaining to certain assessment years ending with the assessment year 1943-44 where the period for carrying forward was shorter. Section 16 of the Finance Act, 1955, amended s. 24(2), and as a result of the amendment s. 24(2)(iii) provided that a business loss which was not wholly set off could be carried forward from year to year. Thereafter, Finance (No. 2) Act of 1957 amended s. 24(2)(iii) with effect from April 1, 1957, and in consequence an unabsorbed loss could not now be carried forward for more than eight yearsOn that principle, it is abundantly clear that when an assessment for the assessment year 1960-61 is to be made and s. 24(2) is invoked, it is s. 24(2) as in force in that assessment year which has to be applied. That is the provision as amended by the Finance (No. 2) Act, 1957. There is no question of the assessee possessing any vested right under the law as it stood before the amendment. The assessment for one assessment year cannot, in the absence of a contrary provision, be affected by the law in force in another assessment year. A right claimed by an assessee under the law in force in a particular assessment year is ordinarily available only in relation to a proceeding pertaining to that year. Therefore, inasmuch as the provisions of s. 24(2), as amended in 1957, govern the assessment for the assessment year 1960-61, the High Court is right in affirming that the unabsorbed loss of Rs. 15, 50, 189 of the assessment year 1950-51 cannot be carried forward for more than eight years, and consequently, cannot be set off against the business income of the assessment year 1960-61It is pointed out that the AAC mentioned in his order for the assessment year 1959-60 that the unabsorbed loss of Rs. 15, 50, 189 should be carried forward. That direction has meaning only if the law in force in the assessment year 1960-61 permits the unabsorbed loss to be carried forward into the assessment of that year. The direction by the AAC assumes that the law permits the unabsorbed loss to be carried forward into future years, but as we have seen that is not the law and, therefore, the assessee can derive no advantage from that directionThe case is clearly distinguishable.
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Saraswathi Ammal Vs. Jagadambal And Another | governing succession the decision of the case has to rest on the rules of justice, equity and good conscience because admittedly no clear text of Hindu law applies to such a case. The High Court thought that the just rule to apply was one of propinquity to the case, according to which the married and dasi daughters would take the mothers property in equal shares. No exception can be taken to this finding given by the High Court. No other rule was suggested to us leading to a contrary result.6. It was argued that the dasis have a distinct status in Hindu society and that a rule has been evolved by judicial decisions under which the state of degradation by itself furnishes a rule of preference in a competition between dasi daughters and married daughters. The judicial decisions referred to concern the community of prostitutes and the rule evolved concerning them has been abrogated by later decisions. It was contended that though the said rule had been abrogated and was no longer applicable to that community concerning which it was evolved, it should by analogy be applied to cases of succession to dasis. Narasanna v. Gangu [I.L.R. 13 Mad. 133.] was the first case cited. There, an adopted niece of a prostitute dancing girl was preferred to a brother remaining in caste. It was said that the legal relation between a prostitute dancing girl and her undegraded relations remaining in caste becomes severed and they are therefore not entitled to inherit the estate. In Subbaratna Mudali v. Balakrishnaswami Naidub [33 M.L.J. 207.], the next case cited, the facts were that a deceased woman Palani inherited the property in dispute from her mother Nagu, who inherited it from her mother Mottai who again inherited it from her father Arunachalam. Arunachalam had two brothers Ramaswami and Mathurbutham and the question in that case was whether Mathurbuthams daughter Seethai or Ramaswamis daughters son Marudamuthu Mudali was the heir of Palani. The learned judges held that Mathurbuthams daughter was preferential heir to Ramaswamis daughters son. It was pointed out that the rule of preference based on degradation was no longer good law. It was, however, added that in cases of dancing girls the law remained as it was before. Our attention was also drawn to certain observations in Subbaraya Pillai v. Ramaswami Pillai [I.L.R. 23 Mad. 171.] at page 177, and to the decision in Balasundaram v. Kamakshi Ammal [71 M.L.J. 785.]. In the former case the learned Judges rejected the broad proposition that degradation of a woman in consequence of her unchastity entails in the eye of the law cessation of the tie of kindred between her and the members of her natural family and also between her and the members of her husbands family. We think that decision on this point is sound in law. Degradation of a woman does not and cannot sever the ties of blood and succession is more often than not determined by ties of blood than by the moral character of the heir.In Balasundaram v. Kamakshi Ammal [71 M.L.J. 785.] it was held that the property acquired by the mother had been acquired by her as a married woman and notwithstanding her lapse into unchastity, it devolved on her daughters clothed with the ordinary character of property acquired by a Hindu female, that is to say, the daughters took a life estate in it.7. The learned counsel attempted to persuade us to hold the custom pleaded proved by the assistance of decisions given in analogous cases and by applying the principles of the rules said to have been enunciated in some of them. Those cases were decided on their own facts and in some of them a rule was enunciated that degraded people are a class by themselves and their degraded relations are preferential heirs to the undegraded ones. As already said, we cannot subscribe to the view that any such rule can be evolved merely on logical grounds. Its existence can only be justified on the basis of established custom. No trustworthy evidence has been led in this case to establish that the daughters of a dasi by marriage lose their right of inheritance and form a separate community. The correct approach to a case where a party seeks to prove a custom is the one pointed out by their Lordships of the Privy Council in Abdul Hussein Khan v. Soma Dero [I.L.R. 45 Cal 450 (P.C.)]. It was there said that it is incumbent on a party setting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule or decision but only any custom applicable to the parties concerned that can be the rule of decision in a particular case. It is well settled that custom cannot be extended by analogy. It must be established inductively, not deductively and it cannot be established by a priori methods. Theory and custom are antitheses, custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another. A community living in one particular district may have evolved a particular custom but from that it does not follow that the community living in another district is necessarily following the same custom.The last point taken by the learned counsel was that under Hindu law the 1st defendant as a maiden was entitled to preference over her married sisters. Defendant No. 1 was admittedly married to the idol and she has been on her own showing living a life of prostitution. The text of the Mitakshara dealing with the case of a virgin cannot be applied to her case. [Vide Tara v. Krishna [I.L.R. 31 Bom. 495.]]. It is inconceivable that when the sages laid down the principle of preference concerning unmarried daughters they would have intended to include a prostitute within the ambit of that text.8. | 0[ds]After hearing the learned counsel for the appellant, we feel no hesitation in concurring with the decision of the High Court. It was contended that the High Court was in error in holding that the custom set up by the defendant was not proved. To prove the custom that a dasi daughter was a preferential heir and excluded her married sisters reliance was placed on the evidence of some members of the community and reference was also made to certain instances. The same kind of evidence was led by the plaintiff in support of her case. The evidence of both the parties on the issue of custom is of an unsatisfactory and inconclusive character and from it no interference can be drawn of the existence of a uniform, certain and ancient custom prevailing in the community on thiscross-examination she admitted that she was deposing about the caste custom not from any specific instance in which the custom was observed but at the request of the defendant, and that she had heard of this custom from her elders whose names she did not disclose. She further admitted that she had an uncle living but she did not even ask him about the custom. The witness, it appears, knows nothing about the custom and is giving evidence in order to oblige theAmmal, the next witness in the case, is also a dasi. She deposed that her fathers mothers property devolved on her two dasi daughters on her death and that there was no married daughter in existence. This evidence is of a neutral character and is not of much use on the question of custom pleaded in the case. Apart from asserting that in this community dasis property devolves on her death only on the dasi daughters to the exclusion of married daughters, she cited the instance of Chellappa, a dasi of Srirangam. It was elicited in cross examination that Chellappa left a house and landed properties. For explanation is forthcoming why documentary evidence of revenue records about this instance has been withheld. Oral evidences add to instances which can be proved by documentary evidence cannot safely be relied upon to establish custom, when no satisfactory explanation for withholding the best kind of evidence is given. The last witness in the case is Rajamani Ammal, another dasi who does service in Sri Ranganathaswami temple. She also referred to the instance of Chellappa. She said that her jewels which were worth Rs. 1, 000 would pass on her death to her dasilearned counsel attempted to persuade us to hold the custom pleaded proved by the assistance of decisions given in analogous cases and by applying the principles of the rules said to have been enunciated in some of them. Those cases were decided on their own facts and in some of them a rule was enunciated that degraded people are a class by themselves and their degraded relations are preferential heirs to the undegraded ones. As already said, we cannot subscribe to the view that any such rule can be evolved merely on logical grounds. Its existence can only be justified on the basis of established custom. No trustworthy evidence has been led in this case to establish that the daughters of a dasi by marriage lose their right of inheritance and form a separateis well settled that custom cannot be extended by analogy. It must be established inductively, not deductively and it cannot be established by a priori methods. Theory and custom are antitheses, custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another. A community living in one particular district may have evolved a particular custom but from that it does not follow that the community living in another district is necessarily following the same custom.The last point taken by the learned counsel was that under Hindu law the 1st defendant as a maiden was entitled to preference over her married sisters. Defendant No. 1 was admittedly married to the idol and she has been on her own showing living a life of prostitution. The text of the Mitakshara dealing with the case of a virgin cannot be applied to her case. [Vide Tara v. Krishna [I.L.R. 31 Bom. 495.]]. It is inconceivable that when the sages laid down the principle of preference concerning unmarried daughters they would have intended to include a prostitute within the ambit of that text. | 0 | 3,462 | 804 | ### Instruction:
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governing succession the decision of the case has to rest on the rules of justice, equity and good conscience because admittedly no clear text of Hindu law applies to such a case. The High Court thought that the just rule to apply was one of propinquity to the case, according to which the married and dasi daughters would take the mothers property in equal shares. No exception can be taken to this finding given by the High Court. No other rule was suggested to us leading to a contrary result.6. It was argued that the dasis have a distinct status in Hindu society and that a rule has been evolved by judicial decisions under which the state of degradation by itself furnishes a rule of preference in a competition between dasi daughters and married daughters. The judicial decisions referred to concern the community of prostitutes and the rule evolved concerning them has been abrogated by later decisions. It was contended that though the said rule had been abrogated and was no longer applicable to that community concerning which it was evolved, it should by analogy be applied to cases of succession to dasis. Narasanna v. Gangu [I.L.R. 13 Mad. 133.] was the first case cited. There, an adopted niece of a prostitute dancing girl was preferred to a brother remaining in caste. It was said that the legal relation between a prostitute dancing girl and her undegraded relations remaining in caste becomes severed and they are therefore not entitled to inherit the estate. In Subbaratna Mudali v. Balakrishnaswami Naidub [33 M.L.J. 207.], the next case cited, the facts were that a deceased woman Palani inherited the property in dispute from her mother Nagu, who inherited it from her mother Mottai who again inherited it from her father Arunachalam. Arunachalam had two brothers Ramaswami and Mathurbutham and the question in that case was whether Mathurbuthams daughter Seethai or Ramaswamis daughters son Marudamuthu Mudali was the heir of Palani. The learned judges held that Mathurbuthams daughter was preferential heir to Ramaswamis daughters son. It was pointed out that the rule of preference based on degradation was no longer good law. It was, however, added that in cases of dancing girls the law remained as it was before. Our attention was also drawn to certain observations in Subbaraya Pillai v. Ramaswami Pillai [I.L.R. 23 Mad. 171.] at page 177, and to the decision in Balasundaram v. Kamakshi Ammal [71 M.L.J. 785.]. In the former case the learned Judges rejected the broad proposition that degradation of a woman in consequence of her unchastity entails in the eye of the law cessation of the tie of kindred between her and the members of her natural family and also between her and the members of her husbands family. We think that decision on this point is sound in law. Degradation of a woman does not and cannot sever the ties of blood and succession is more often than not determined by ties of blood than by the moral character of the heir.In Balasundaram v. Kamakshi Ammal [71 M.L.J. 785.] it was held that the property acquired by the mother had been acquired by her as a married woman and notwithstanding her lapse into unchastity, it devolved on her daughters clothed with the ordinary character of property acquired by a Hindu female, that is to say, the daughters took a life estate in it.7. The learned counsel attempted to persuade us to hold the custom pleaded proved by the assistance of decisions given in analogous cases and by applying the principles of the rules said to have been enunciated in some of them. Those cases were decided on their own facts and in some of them a rule was enunciated that degraded people are a class by themselves and their degraded relations are preferential heirs to the undegraded ones. As already said, we cannot subscribe to the view that any such rule can be evolved merely on logical grounds. Its existence can only be justified on the basis of established custom. No trustworthy evidence has been led in this case to establish that the daughters of a dasi by marriage lose their right of inheritance and form a separate community. The correct approach to a case where a party seeks to prove a custom is the one pointed out by their Lordships of the Privy Council in Abdul Hussein Khan v. Soma Dero [I.L.R. 45 Cal 450 (P.C.)]. It was there said that it is incumbent on a party setting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule or decision but only any custom applicable to the parties concerned that can be the rule of decision in a particular case. It is well settled that custom cannot be extended by analogy. It must be established inductively, not deductively and it cannot be established by a priori methods. Theory and custom are antitheses, custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another. A community living in one particular district may have evolved a particular custom but from that it does not follow that the community living in another district is necessarily following the same custom.The last point taken by the learned counsel was that under Hindu law the 1st defendant as a maiden was entitled to preference over her married sisters. Defendant No. 1 was admittedly married to the idol and she has been on her own showing living a life of prostitution. The text of the Mitakshara dealing with the case of a virgin cannot be applied to her case. [Vide Tara v. Krishna [I.L.R. 31 Bom. 495.]]. It is inconceivable that when the sages laid down the principle of preference concerning unmarried daughters they would have intended to include a prostitute within the ambit of that text.8.
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After hearing the learned counsel for the appellant, we feel no hesitation in concurring with the decision of the High Court. It was contended that the High Court was in error in holding that the custom set up by the defendant was not proved. To prove the custom that a dasi daughter was a preferential heir and excluded her married sisters reliance was placed on the evidence of some members of the community and reference was also made to certain instances. The same kind of evidence was led by the plaintiff in support of her case. The evidence of both the parties on the issue of custom is of an unsatisfactory and inconclusive character and from it no interference can be drawn of the existence of a uniform, certain and ancient custom prevailing in the community on thiscross-examination she admitted that she was deposing about the caste custom not from any specific instance in which the custom was observed but at the request of the defendant, and that she had heard of this custom from her elders whose names she did not disclose. She further admitted that she had an uncle living but she did not even ask him about the custom. The witness, it appears, knows nothing about the custom and is giving evidence in order to oblige theAmmal, the next witness in the case, is also a dasi. She deposed that her fathers mothers property devolved on her two dasi daughters on her death and that there was no married daughter in existence. This evidence is of a neutral character and is not of much use on the question of custom pleaded in the case. Apart from asserting that in this community dasis property devolves on her death only on the dasi daughters to the exclusion of married daughters, she cited the instance of Chellappa, a dasi of Srirangam. It was elicited in cross examination that Chellappa left a house and landed properties. For explanation is forthcoming why documentary evidence of revenue records about this instance has been withheld. Oral evidences add to instances which can be proved by documentary evidence cannot safely be relied upon to establish custom, when no satisfactory explanation for withholding the best kind of evidence is given. The last witness in the case is Rajamani Ammal, another dasi who does service in Sri Ranganathaswami temple. She also referred to the instance of Chellappa. She said that her jewels which were worth Rs. 1, 000 would pass on her death to her dasilearned counsel attempted to persuade us to hold the custom pleaded proved by the assistance of decisions given in analogous cases and by applying the principles of the rules said to have been enunciated in some of them. Those cases were decided on their own facts and in some of them a rule was enunciated that degraded people are a class by themselves and their degraded relations are preferential heirs to the undegraded ones. As already said, we cannot subscribe to the view that any such rule can be evolved merely on logical grounds. Its existence can only be justified on the basis of established custom. No trustworthy evidence has been led in this case to establish that the daughters of a dasi by marriage lose their right of inheritance and form a separateis well settled that custom cannot be extended by analogy. It must be established inductively, not deductively and it cannot be established by a priori methods. Theory and custom are antitheses, custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another. A community living in one particular district may have evolved a particular custom but from that it does not follow that the community living in another district is necessarily following the same custom.The last point taken by the learned counsel was that under Hindu law the 1st defendant as a maiden was entitled to preference over her married sisters. Defendant No. 1 was admittedly married to the idol and she has been on her own showing living a life of prostitution. The text of the Mitakshara dealing with the case of a virgin cannot be applied to her case. [Vide Tara v. Krishna [I.L.R. 31 Bom. 495.]]. It is inconceivable that when the sages laid down the principle of preference concerning unmarried daughters they would have intended to include a prostitute within the ambit of that text.
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Ramji Das and Ors Vs. Trilok Chand etc | we will therefore dispose it of by this common judgment. 2. The appellant is the owner of a house at Shamali in District Muzaffarnagar in U.P., and the respondent is the tenant of that house. The appellant applied to the Rent Control and Eviction Officer under S. 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, for permission to file a suit for a decree in ejectment against the respondent. By order dated June 4, 1965, that Officer granted the permission holding that the need of the appellant "to occupy the premises was bona fide and genuine". This order was confirmed in a revision application by the Additional Commissioner. The appellant then terminated the tenancy of the respondent in respect of the premises by a notice as required by law and filed two suits in the Court of the Munsif, Kairana, for ejectment and for payment of arrears of rent. The Trial court decreed the suits holding that the permission granted by the Rent Control and Eviction Officer was with "jurisdiction and was not mala fide". The decrees were confirmed in appeal to the District Court at Muzaffarnagar. But second appeals filed by the respondent before the High Court of Allahabad were allowed and the appellants suits were dismissed. The High Court observed that the only question argued before the Court related to the invalidity of the permission granted by the Rent Control and Eviction Officer. The High Court further observed that since a Full Bench judgment of the Court had held in Asa Singh v. B. D. Sanwal, AIR 1969 All 474 (FB), that "while granting permission under S. 3 of the U. P. (Temporary) Control of Rent and Eviction Act the "District Magistrate is bound to consider also the need of the tenant for the accommodation, if such a case is set up by him", and it was incumbent on the Rent Control and Eviction Officer to consider "the needs of the tenant" before making the order sanctioning institution of a suit in ejectment and the Rent Control and Eviction Officer having "refused to consider the needs of the tenant the permission granted by the Rent Control and Eviction Officer cannot be said to be valid permission". Accordingly the High Court allowed the appeals and dismissed the appellants suits. With special leave, these two appeals are preferred. 3. The proceeding before the District Magistrate under S. 3 (2) and before the Commissioner under S. 3 (3) of the U. P. (Temporary) Control of Rent and Eviction Act are quasi-judicial in character. By S. 3 (4) of the Act the decision of the Commissioner under sub-s. (3) of S. 3, subject to any order passed by the State Government under S. 7-F of the Act, is declared final. The respondent did not prefer any petition before the State Government under S. 7-F of the Act and on that account the order passed by the Additional Commissioner, exercising powers of the Commissioner under S. 3 (3), became final. Section 16 of the Act provides that no order made under the Act by the State Government or the District Magistrate shall be called in question in any Court. It is true that the finality of the order declared by S. 3 (4) and S. 16 will not exclude the jurisdiction of the High Court in exercise of the jurisdiction under Art. 226 of the Constitution to issue an appropriate writ quashing the order. But subject to interference by the High Court, the decision must be deemed final and is not liable to be challenged in any collateral proceeding. 4. In our view, the High Court was in error in holding that the decision of the Rent Control and Eviction Officer was, in the suits filed by the appellant, open to the objection that the Officer did not consider the "needs of the tenant". The Rent Control and Eviction Officer had jurisdiction to hear and decide the matter. Even if we assume that he committed an error in the exercise of his jurisdiction, the error could be corrected only in a proceeding under S. 7-F of the Act by approaching the State Government and by way of a writ petition to the High Court, but the order made by the Rent Control and Eviction Officer and confirmed by the Additional Commissioner could not be challenged in the suit. 5. Mr. Goyal appearing on behalf of the respondent contended that the validity of an order which has been made by the Rent Control and Eviction Officer which is contrary to the rules of natural justice, may be challenged in the suit. Reliance in that behalf was placed upon shri Bhagwan v. Ram Chand, (1965) 3 SCR 218 = (AIR 1965 SC 1767 ).But in reaching an erroneous conclusion the Rent Control and Eviction Officer does not act in a manner contrary to the rules of natural justice. The Rent Control and Eviction Officer had jurisdiction to decide the case. Granting that he reached a wrong conclusion, the decision was not without jurisdiction and the only avenue for correction is the one provided by the Act, i.e., by approaching the state Government under S. 7-F. If the State Government was not moved, the order became final and was not liable to be challenged in the suits filed by the appellant. 6. The decision of the Allahabad High Court in Asa singhs case, AIR 1969 All 474 (FB) has no application for it was reached in a case in which a special appeal was filed in a proceeding arising out of a writ petition. It was apparently not a case in which the validity of the permission given by the authority exercising power under S. 3 of the Act was sought to be challenged in a suit instituted by the landlord. We need express no opinion on the question whether the High Court was right in taking the view it has done in Asa Singhs case, AIR 1969 All 474 (FB). | 1[ds]4. In our view, the High Court was in error in holding that the decision of the Rent Control and Eviction Officer was, in the suits filed by the appellant, open to the objection that the Officer did not consider the "needs of the tenant". The Rent Control and Eviction Officer had jurisdiction to hear and decide the matter. Even if we assume that he committed an error in the exercise of his jurisdiction, the error could be corrected only in a proceeding under S. 7-F of the Act by approaching the State Government and by way of a writ petition to the High Court, but the order made by the Rent Control and Eviction Officer and confirmed by the Additional Commissioner could not be challenged in the suit6. The decision of the Allahabad High Court in Asa singhs case, AIR 1969 All 474 (FB) has no application for it was reached in a case in which a special appeal was filed in a proceeding arising out of a writ petition. It was apparently not a case in which the validity of the permission given by the authority exercising power under S. 3 of the Act was sought to be challenged in a suit instituted by the landlord. We need express no opinion on the question whether the High Court was right in taking the view it has done in Asa Singhs case, AIR 1969 All 474 (FB). | 1 | 1,124 | 262 | ### Instruction:
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we will therefore dispose it of by this common judgment. 2. The appellant is the owner of a house at Shamali in District Muzaffarnagar in U.P., and the respondent is the tenant of that house. The appellant applied to the Rent Control and Eviction Officer under S. 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, for permission to file a suit for a decree in ejectment against the respondent. By order dated June 4, 1965, that Officer granted the permission holding that the need of the appellant "to occupy the premises was bona fide and genuine". This order was confirmed in a revision application by the Additional Commissioner. The appellant then terminated the tenancy of the respondent in respect of the premises by a notice as required by law and filed two suits in the Court of the Munsif, Kairana, for ejectment and for payment of arrears of rent. The Trial court decreed the suits holding that the permission granted by the Rent Control and Eviction Officer was with "jurisdiction and was not mala fide". The decrees were confirmed in appeal to the District Court at Muzaffarnagar. But second appeals filed by the respondent before the High Court of Allahabad were allowed and the appellants suits were dismissed. The High Court observed that the only question argued before the Court related to the invalidity of the permission granted by the Rent Control and Eviction Officer. The High Court further observed that since a Full Bench judgment of the Court had held in Asa Singh v. B. D. Sanwal, AIR 1969 All 474 (FB), that "while granting permission under S. 3 of the U. P. (Temporary) Control of Rent and Eviction Act the "District Magistrate is bound to consider also the need of the tenant for the accommodation, if such a case is set up by him", and it was incumbent on the Rent Control and Eviction Officer to consider "the needs of the tenant" before making the order sanctioning institution of a suit in ejectment and the Rent Control and Eviction Officer having "refused to consider the needs of the tenant the permission granted by the Rent Control and Eviction Officer cannot be said to be valid permission". Accordingly the High Court allowed the appeals and dismissed the appellants suits. With special leave, these two appeals are preferred. 3. The proceeding before the District Magistrate under S. 3 (2) and before the Commissioner under S. 3 (3) of the U. P. (Temporary) Control of Rent and Eviction Act are quasi-judicial in character. By S. 3 (4) of the Act the decision of the Commissioner under sub-s. (3) of S. 3, subject to any order passed by the State Government under S. 7-F of the Act, is declared final. The respondent did not prefer any petition before the State Government under S. 7-F of the Act and on that account the order passed by the Additional Commissioner, exercising powers of the Commissioner under S. 3 (3), became final. Section 16 of the Act provides that no order made under the Act by the State Government or the District Magistrate shall be called in question in any Court. It is true that the finality of the order declared by S. 3 (4) and S. 16 will not exclude the jurisdiction of the High Court in exercise of the jurisdiction under Art. 226 of the Constitution to issue an appropriate writ quashing the order. But subject to interference by the High Court, the decision must be deemed final and is not liable to be challenged in any collateral proceeding. 4. In our view, the High Court was in error in holding that the decision of the Rent Control and Eviction Officer was, in the suits filed by the appellant, open to the objection that the Officer did not consider the "needs of the tenant". The Rent Control and Eviction Officer had jurisdiction to hear and decide the matter. Even if we assume that he committed an error in the exercise of his jurisdiction, the error could be corrected only in a proceeding under S. 7-F of the Act by approaching the State Government and by way of a writ petition to the High Court, but the order made by the Rent Control and Eviction Officer and confirmed by the Additional Commissioner could not be challenged in the suit. 5. Mr. Goyal appearing on behalf of the respondent contended that the validity of an order which has been made by the Rent Control and Eviction Officer which is contrary to the rules of natural justice, may be challenged in the suit. Reliance in that behalf was placed upon shri Bhagwan v. Ram Chand, (1965) 3 SCR 218 = (AIR 1965 SC 1767 ).But in reaching an erroneous conclusion the Rent Control and Eviction Officer does not act in a manner contrary to the rules of natural justice. The Rent Control and Eviction Officer had jurisdiction to decide the case. Granting that he reached a wrong conclusion, the decision was not without jurisdiction and the only avenue for correction is the one provided by the Act, i.e., by approaching the state Government under S. 7-F. If the State Government was not moved, the order became final and was not liable to be challenged in the suits filed by the appellant. 6. The decision of the Allahabad High Court in Asa singhs case, AIR 1969 All 474 (FB) has no application for it was reached in a case in which a special appeal was filed in a proceeding arising out of a writ petition. It was apparently not a case in which the validity of the permission given by the authority exercising power under S. 3 of the Act was sought to be challenged in a suit instituted by the landlord. We need express no opinion on the question whether the High Court was right in taking the view it has done in Asa Singhs case, AIR 1969 All 474 (FB).
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4. In our view, the High Court was in error in holding that the decision of the Rent Control and Eviction Officer was, in the suits filed by the appellant, open to the objection that the Officer did not consider the "needs of the tenant". The Rent Control and Eviction Officer had jurisdiction to hear and decide the matter. Even if we assume that he committed an error in the exercise of his jurisdiction, the error could be corrected only in a proceeding under S. 7-F of the Act by approaching the State Government and by way of a writ petition to the High Court, but the order made by the Rent Control and Eviction Officer and confirmed by the Additional Commissioner could not be challenged in the suit6. The decision of the Allahabad High Court in Asa singhs case, AIR 1969 All 474 (FB) has no application for it was reached in a case in which a special appeal was filed in a proceeding arising out of a writ petition. It was apparently not a case in which the validity of the permission given by the authority exercising power under S. 3 of the Act was sought to be challenged in a suit instituted by the landlord. We need express no opinion on the question whether the High Court was right in taking the view it has done in Asa Singhs case, AIR 1969 All 474 (FB).
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SELVI Vs. GOPALAKRISHNAN NAIR (D) THR. LRS | No.123/9) and what was the basis on which the possession of the second defendant was upheld in the proceedings under Section 145 Cr.P.C. and in CRP No.45 of 1992.15. Both the trial court and the First Appellate Court appear to have rejected the objections raised by the second defendant mainly on the following grounds:-i. No appeal was preferred by the second defendant against the preliminary decree and therefore, second defendant cannot challenge the correctness of the preliminary decree in the final decree proceedings;ii. Second defendant has not raised the plea regarding his claim of ownership in Survey No.988; andiii. Application for passing final decree is pending for more than sixteen years16. As per Section 97 CPC, where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Of course, the second defendant has not filed the appeal against the preliminary decree challenging its correctness. But as pointed out by the learned counsel for the second defendant, in the description of the suit properties, Survey No.988 has not been shown. As pointed out by the High Court, in para No. (13) of the written statement, second defendant has clearly averred that he is the owner of the adjoining property in Survey No.988 in which the plaintiffs and the other defendants have no right and that the third defendant is residing in a building belonging to the second defendant in the said Survey No.988 on rental basis. In spite of the objections raised by the second defendant as to the boundaries and description of the suit properties and also claiming right in Survey No.988 stated to be falling within those boundaries, the plaintiffs have not amended the description of the suit properties by bringing in Survey No.988 in the suit property. It is in this context, in their written statement, the defendants have stated that ?the defendants have no objections to surrender the mortgage right in respect of Plaint B Schedule items…..?17. Be it noted that two Commissioners namely Mr. K. Ponniah and Mr. Ambrose earlier appointed have inspected the suit properties and filed their Reports stating that the suit properties are not identifiable. Only when Mr. Raveendran Nair, Advocate-Commissioner inspected the suit property, he has noticed that Survey No.988 is falling within the description of the boundaries stated in the Plaint. Since the description of the suit property did not contain Survey No.988, the fact that the second defendant did not prefer appeal against the preliminary decree, cannot be put against the second defendant. Though the High Court referred to the averments in the written statement as to the claim of second defendant in Survey No.988, the High Court did not go into the question as to the entitlement of second defendant and the confusion regarding the boundaries of the properties.18. In view of the stand taken by the second defendant that he is entitled to the adjoining property in Survey No.988 by virtue of the sale deed of the year 1951 and the consistent objections raised by him to the Commissioner?s Report, in our view, in the final decree proceedings, the trial court ought to have directed the parties to adduce evidence to enable the court to ascertain the truth as to the correct description of the suit property and also the right claimed by the second defendant in Survey No.988. We are conscious that the parties are fighting litigation for more than five decades; but in order to meet the ends of justice, in our view, the impugned judgment of the High Court and the courts below are liable to be set aside and the matter be remitted to the trial court for deciding the matter afresh.19. Before we close the matter, we feel it necessary to set at rest two issues. As pointed out earlier, Kalyani executed an agreement for sale on 27.12.1968 in favour of second plaintiff-Vasudevan Pillai. Second plaintiff assigned the aforesaid agreement on 05.08.1978 in favour of one Rajayyan and the said Rajayyan assigned the agreement in favour of third plaintiff-Selvi on 10.03.1983. As pointed out earlier, all the three plaintiffs filed final decree application in I.A. No.120 of 1985. After the disposal of the matter by the first appellate court and when the second appeal was pending before the High Court, second plaintiff Vasudevan Pillai filed an affidavit on 07.01.2013 before the trial court – District Munsiff Court, Kuzhithurai alleging that a fraud has been played on him and denying the right of third plaintiff-Selvi to pursue the final decree application. The said Vasudevan Pillai alleged that he has never filed final decree application and that his signature was forged and he has not assigned his right either in favour of Rajayyan or in favour of third plaintiff-Selvi. Though the parties have advanced lengthy arguments on the said averments in the affidavit filed by Vasudevan Pillai; it is to be pointed out that the affidavit of Vasudevan Pillai is clearly an afterthought. In the final decree application I.A. No.120 of 1985, all the three plaintiffs have signed. In the final decree stage, the third plaintiff-Selvi got herself impleaded based on the assignment of right in her favour by Rajayyan who in turn got the assignment from the second plaintiff-Vasudevan Pillai. The third plaintiff-Selvi was pursuing the final decree application. Though the final decree application was pending before the trial court for more than sixteen years and thereafter in the First Appellate Court, Vasudevan Pillai has not raised any objection nor made any grievance against the third plaintiff-Selvi. Only when the second appeal was pending before the High Court, the second plaintiff-Vasudevan Pillai has chosen to file an affidavit before the court denying assignment of the right and raising plea of forgery. In our view, the stand of Vasudevan Pillai is clearly an afterthought and no weight could be attached to the averments in the affidavit. | 1[ds]18. In view of the stand taken by the second defendant that he is entitled to the adjoining property in Survey No.988 by virtue of the sale deed of the year 1951 and the consistent objections raised by him to the Commissioner?s Report, in our view, in the final decree proceedings, the trial court ought to have directed the parties to adduce evidence to enable the court to ascertain the truth as to the correct description of the suit property and also the right claimed by the second defendant in Survey No.988. We are conscious that the parties are fighting litigation for more than five decades; but in order to meet the ends of justice, in our view, the impugned judgment of the High Court and the courts below are liable to be set aside and the matter be remitted to the trial court for deciding the matter afresh.19. Before we close the matter, we feel it necessary to set at rest two issues. As pointed out earlier, Kalyani executed an agreement for sale on 27.12.1968 in favour of secondPillai. Second plaintiff assigned the aforesaid agreement on 05.08.1978 in favour of one Rajayyan and the said Rajayyan assigned the agreement in favour of thirdon 10.03.1983. As pointed out earlier, all the three plaintiffs filed final decree application in I.A. No.120 of 1985. After the disposal of the matter by the first appellate court and when the second appeal was pending before the High Court, second plaintiff Vasudevan Pillai filed an affidavit on 07.01.2013 before the trial court – District Munsiff Court, Kuzhithurai alleging that a fraud has been played on him and denying the right of thirdto pursue the final decree application. The said Vasudevan Pillai alleged that he has never filed final decree application and that his signature was forged and he has not assigned his right either in favour of Rajayyan or in favour of thirdThough the parties have advanced lengthy arguments on the said averments in the affidavit filed by Vasudevan Pillai; it is to be pointed out that the affidavit of Vasudevan Pillai is clearly an afterthought. In the final decree application I.A. No.120 of 1985, all the three plaintiffs have signed. In the final decree stage, the thirdgot herself impleaded based on the assignment of right in her favour by Rajayyan who in turn got the assignment from the secondPillai. The thirdwas pursuing the final decree application. Though the final decree application was pending before the trial court for more than sixteen years and thereafter in the First Appellate Court, Vasudevan Pillai has not raised any objection nor made any grievance against the thirdOnly when the second appeal was pending before the High Court, the secondPillai has chosen to file an affidavit before the court denying assignment of the right and raising plea of forgery. In our view, the stand of Vasudevan Pillai is clearly an afterthought and no weight could be attached to the averments in the affidavit. | 1 | 3,285 | 533 | ### 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:
No.123/9) and what was the basis on which the possession of the second defendant was upheld in the proceedings under Section 145 Cr.P.C. and in CRP No.45 of 1992.15. Both the trial court and the First Appellate Court appear to have rejected the objections raised by the second defendant mainly on the following grounds:-i. No appeal was preferred by the second defendant against the preliminary decree and therefore, second defendant cannot challenge the correctness of the preliminary decree in the final decree proceedings;ii. Second defendant has not raised the plea regarding his claim of ownership in Survey No.988; andiii. Application for passing final decree is pending for more than sixteen years16. As per Section 97 CPC, where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Of course, the second defendant has not filed the appeal against the preliminary decree challenging its correctness. But as pointed out by the learned counsel for the second defendant, in the description of the suit properties, Survey No.988 has not been shown. As pointed out by the High Court, in para No. (13) of the written statement, second defendant has clearly averred that he is the owner of the adjoining property in Survey No.988 in which the plaintiffs and the other defendants have no right and that the third defendant is residing in a building belonging to the second defendant in the said Survey No.988 on rental basis. In spite of the objections raised by the second defendant as to the boundaries and description of the suit properties and also claiming right in Survey No.988 stated to be falling within those boundaries, the plaintiffs have not amended the description of the suit properties by bringing in Survey No.988 in the suit property. It is in this context, in their written statement, the defendants have stated that ?the defendants have no objections to surrender the mortgage right in respect of Plaint B Schedule items…..?17. Be it noted that two Commissioners namely Mr. K. Ponniah and Mr. Ambrose earlier appointed have inspected the suit properties and filed their Reports stating that the suit properties are not identifiable. Only when Mr. Raveendran Nair, Advocate-Commissioner inspected the suit property, he has noticed that Survey No.988 is falling within the description of the boundaries stated in the Plaint. Since the description of the suit property did not contain Survey No.988, the fact that the second defendant did not prefer appeal against the preliminary decree, cannot be put against the second defendant. Though the High Court referred to the averments in the written statement as to the claim of second defendant in Survey No.988, the High Court did not go into the question as to the entitlement of second defendant and the confusion regarding the boundaries of the properties.18. In view of the stand taken by the second defendant that he is entitled to the adjoining property in Survey No.988 by virtue of the sale deed of the year 1951 and the consistent objections raised by him to the Commissioner?s Report, in our view, in the final decree proceedings, the trial court ought to have directed the parties to adduce evidence to enable the court to ascertain the truth as to the correct description of the suit property and also the right claimed by the second defendant in Survey No.988. We are conscious that the parties are fighting litigation for more than five decades; but in order to meet the ends of justice, in our view, the impugned judgment of the High Court and the courts below are liable to be set aside and the matter be remitted to the trial court for deciding the matter afresh.19. Before we close the matter, we feel it necessary to set at rest two issues. As pointed out earlier, Kalyani executed an agreement for sale on 27.12.1968 in favour of second plaintiff-Vasudevan Pillai. Second plaintiff assigned the aforesaid agreement on 05.08.1978 in favour of one Rajayyan and the said Rajayyan assigned the agreement in favour of third plaintiff-Selvi on 10.03.1983. As pointed out earlier, all the three plaintiffs filed final decree application in I.A. No.120 of 1985. After the disposal of the matter by the first appellate court and when the second appeal was pending before the High Court, second plaintiff Vasudevan Pillai filed an affidavit on 07.01.2013 before the trial court – District Munsiff Court, Kuzhithurai alleging that a fraud has been played on him and denying the right of third plaintiff-Selvi to pursue the final decree application. The said Vasudevan Pillai alleged that he has never filed final decree application and that his signature was forged and he has not assigned his right either in favour of Rajayyan or in favour of third plaintiff-Selvi. Though the parties have advanced lengthy arguments on the said averments in the affidavit filed by Vasudevan Pillai; it is to be pointed out that the affidavit of Vasudevan Pillai is clearly an afterthought. In the final decree application I.A. No.120 of 1985, all the three plaintiffs have signed. In the final decree stage, the third plaintiff-Selvi got herself impleaded based on the assignment of right in her favour by Rajayyan who in turn got the assignment from the second plaintiff-Vasudevan Pillai. The third plaintiff-Selvi was pursuing the final decree application. Though the final decree application was pending before the trial court for more than sixteen years and thereafter in the First Appellate Court, Vasudevan Pillai has not raised any objection nor made any grievance against the third plaintiff-Selvi. Only when the second appeal was pending before the High Court, the second plaintiff-Vasudevan Pillai has chosen to file an affidavit before the court denying assignment of the right and raising plea of forgery. In our view, the stand of Vasudevan Pillai is clearly an afterthought and no weight could be attached to the averments in the affidavit.
### Response:
1
### Explanation:
18. In view of the stand taken by the second defendant that he is entitled to the adjoining property in Survey No.988 by virtue of the sale deed of the year 1951 and the consistent objections raised by him to the Commissioner?s Report, in our view, in the final decree proceedings, the trial court ought to have directed the parties to adduce evidence to enable the court to ascertain the truth as to the correct description of the suit property and also the right claimed by the second defendant in Survey No.988. We are conscious that the parties are fighting litigation for more than five decades; but in order to meet the ends of justice, in our view, the impugned judgment of the High Court and the courts below are liable to be set aside and the matter be remitted to the trial court for deciding the matter afresh.19. Before we close the matter, we feel it necessary to set at rest two issues. As pointed out earlier, Kalyani executed an agreement for sale on 27.12.1968 in favour of secondPillai. Second plaintiff assigned the aforesaid agreement on 05.08.1978 in favour of one Rajayyan and the said Rajayyan assigned the agreement in favour of thirdon 10.03.1983. As pointed out earlier, all the three plaintiffs filed final decree application in I.A. No.120 of 1985. After the disposal of the matter by the first appellate court and when the second appeal was pending before the High Court, second plaintiff Vasudevan Pillai filed an affidavit on 07.01.2013 before the trial court – District Munsiff Court, Kuzhithurai alleging that a fraud has been played on him and denying the right of thirdto pursue the final decree application. The said Vasudevan Pillai alleged that he has never filed final decree application and that his signature was forged and he has not assigned his right either in favour of Rajayyan or in favour of thirdThough the parties have advanced lengthy arguments on the said averments in the affidavit filed by Vasudevan Pillai; it is to be pointed out that the affidavit of Vasudevan Pillai is clearly an afterthought. In the final decree application I.A. No.120 of 1985, all the three plaintiffs have signed. In the final decree stage, the thirdgot herself impleaded based on the assignment of right in her favour by Rajayyan who in turn got the assignment from the secondPillai. The thirdwas pursuing the final decree application. Though the final decree application was pending before the trial court for more than sixteen years and thereafter in the First Appellate Court, Vasudevan Pillai has not raised any objection nor made any grievance against the thirdOnly when the second appeal was pending before the High Court, the secondPillai has chosen to file an affidavit before the court denying assignment of the right and raising plea of forgery. In our view, the stand of Vasudevan Pillai is clearly an afterthought and no weight could be attached to the averments in the affidavit.
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Satish Chandra Anand Vs. The Union Of India | There is thus a clear indication of the intention of the testator to absolutely dedicate the said premises to the deity and it is impossible to urge that there was a partial dedication of the premises to the deity. The only thing which was urged by Shri. N. C. Chatterjee in support of his contention was that the right to reside in the premises was given to the servants and that according to him detracted from the absolute character of the dedication. This argument however cannot avail the appellants. It was observed by Lord Buckmaster in delivering the judgment of the Privy Council in Gnanendra Nath Das v. Surendra Nath Das ((1920) 24 C.W.N. 1026 at p. 1030.) :"In that case it is provided that the shebait for the time being shall be entitled to reside with his family in the said dwelling-house, but the dwelling-house itself is the place specially set apart for the family idols to which specific reference is made in the will, and in their Lordships opinion the gift is only a perfectly reasonable arrangement to secure that the man in whose hands the supervision of the whole estate is vested should have associated with his duties the right to reside in this named dwelling place."11. The first contention of the appellants therefore fails and we hold that the declaration of the premises No. 41 Grey Street to the idol was an absolute dedication. As regards the second contention, viz., the adverse possession of Nagendra, it is to be noted that under the terms of clause 3 of the will of Dwarka Nath the representatives, successors and heirs of his two sons Rajendra and Jogendra were successively to perform the seva in the manner therein mentioned and Nagendra was one of the heirs and legal representatives of Rajendra. He was no doubt a minor on the 24th November, 1910, when the terms of settlement were arrived at between the parties to the suit No. 969 of 1909. His two elder brothers Jnanendra and Bhupendra were declared to be the then servants, but a right was reserved to Nagendra to join with them as a sevayat on his attaining majority. So far as Nagendra is concerned there is a clear finding of fact recorded by Mr. Justice Bose on a specific issue raised in that behalf, viz., "Did Nagendra act as shebait of the plaintiff deity under the wills of Dwarka Nath Ghosh and Rajendra Nath Ghosh ?" - that he did act as such shebait and that his possession of the premises No. 41-A Grey Street was referable to possession on behalf of the idol. This finding was not challenged in the appeal court and it is too late to challenge the same before us. If Nagendra was thus a sevayat of the idol it could not be urged that his possession could in any manner whatever be adverse to the idol and his dealings with the said premises in the manner the purported to do after the 12th October, 1920, could not be evidence of any adverse possession against the idol. The position of the sevayat and the effect of his dealings with the property dedicated to the idol has been expounded by Rankin C.J. in Surendrakrishna Ray v. Shree Ishwar Bhubaneshwari Thakurani ((1933) 60 Cal. 54 at 77.) :-But, in the present case, we have to see whether the possession of two joint shebaits becomes adverse to the idol when they properly claim to divide the property between them. The fact of their possession is in accordance with the idols title, and the question is whether the change made by them, in the intention with which they hold, evidenced by an application of the rents and profits to their own purposes and other acts, extinguishes the idols right. I am quite unable to hold that it does, because such a change of intention can only be brought home to the idol by means of the shebaits knowledge and the idol can only react to it by the shebait. Adverse possession, in such circumstances, is a notion almost void of content. True, any heir or perhaps any descendant of the founder can bring a suit against the shebaits on the idols behalf and, in the present case, it may be said that the acts of the shebaits must have been notorious in the family. But such persons have no legal duty to protect the endowment and, until the shebait is removed or controlled by the court, he alone can act for the idol."12. We are in perfect accord with the observations made by Rankin C.J. If a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. The shebait for the time being is the only person competent to safeguard the interests of the idol, his possession of the dedicated property is the possession of the idol whose sevait he is and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the property against the idol. No shebait can, so long as he continues to be the sevait, ever claim adverse possession against the idol. Neither Nagendra nor the appellants who derive their title from the auction sale held on the 9th December, 1936, could therefore claim to have perfected their title to the premises No. 41-A Grey Street by adverse possession. The second contention of the appellants also therefore fails.13. The further contention urged on behalf of the appellants in regard to the disallowance of the sum of Rs. 19, 000 by the appeal court could not be and was not seriously pressed before us and does not require any consideration. | 0[ds]The appeal was argued but so far as the petition for special leave to appeal was concerned the parties came to an agreement whereby the idol asked for leave to withdraw the petition on certain terms recorded between the parties. The petition for special leave was therefore allowed to be withdrawn and no objection now survives in regard to the decree passed by the trial court dismissing the idols claim to the premises No. 40/2-A Grey Street. The appeal is concerned only with the premises No. 41-A Grey Street.It was contended on behalf of the appellants that the dedication of the premises No. 41 Grey Street made by Dwarka Nath under the terms of his will was a partial dedication, and that his sons Rajendra and Jogendra and his widow Golap Sundari, who were appointed sevayats of the idol were competent to deal with premises No. 41 Grey Street after making the due provision for the idol as they purported to do by the terms of settlement, dated the 24th November, 1910. It was further contended that Nagendra, by virtue of the award dated the 12th October, 1920, claimed to be absolutely entitled to the premises No. 41-A Grey Street and that his possession of the said premises thereafter became adverse which adverse possession continued for upwards of 12 years extinguished the right of the idol to the said premises. The first contention of the appellants is clearly untenable on the very language of the will of Dwarkafirst contention of the appellants therefore fails and we hold that the declaration of the premises No. 41 Grey Street to the idol was an absolute dedication. As regards the second contention, viz., the adverse possession of Nagendra, it is to be noted that under the terms of clause 3 of the will of Dwarka Nath the representatives, successors and heirs of his two sons Rajendra and Jogendra were successively to perform the seva in the manner therein mentioned and Nagendra was one of the heirs and legal representatives of Rajendra. He was no doubt a minor on the 24th November, 1910, when the terms of settlement were arrived at between the parties to the suit No. 969 of 1909. His two elder brothers Jnanendra and Bhupendra were declared to be the then servants, but a right was reserved to Nagendra to join with them as a sevayat on his attaining majority. So far as Nagendra is concerned there is a clear finding of fact recorded by Mr. Justice Bose on a specific issue raised in that behalf, viz., "Did Nagendra act as shebait of the plaintiff deity under the wills of Dwarka Nath Ghosh and Rajendra Nath Ghosh ?" - that he did act as such shebait and that his possession of the premises No. 41-A Grey Street was referable to possession on behalf of the idol. This finding was not challenged in the appeal court and it is too late to challenge the same before us. If Nagendra was thus a sevayat of the idol it could not be urged that his possession could in any manner whatever be adverse to the idol and his dealings with the said premises in the manner the purported to do after the 12th October, 1920, could not be evidence of any adverse possession against the idol. The position of the sevayat and the effect of his dealings with the property dedicated to the idol has beenam quite unable to hold that it does, because such a change of intention can only be brought home to the idol by means of the shebaits knowledge and the idol can only react to it by the shebait. Adverse possession, in such circumstances, is a notion almost void of content. True, any heir or perhaps any descendant of the founder can bring a suit against the shebaits on the idols behalf and, in the present case, it may be said that the acts of the shebaits must have been notorious in the family. But such persons have no legal duty to protect the endowment and, until the shebait is removed or controlled by the court, he alone can act for theare in perfect accord with the observations made by Rankin C.J. If a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. The shebait for the time being is the only person competent to safeguard the interests of the idol, his possession of the dedicated property is the possession of the idol whose sevait he is and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the property against the idol. No shebait can, so long as he continues to be the sevait, ever claim adverse possession against the idol. Neither Nagendra nor the appellants who derive their title from the auction sale held on the 9th December, 1936, could therefore claim to have perfected their title to the premises No. 41-A Grey Street by adverse possession. The second contention of the appellants also thereforefurther contention urged on behalf of the appellants in regard to the disallowance of the sum of Rs. 19, 000 by the appeal court could not be and was not seriously pressed before us and does not require any consideration. | 0 | 3,921 | 998 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
There is thus a clear indication of the intention of the testator to absolutely dedicate the said premises to the deity and it is impossible to urge that there was a partial dedication of the premises to the deity. The only thing which was urged by Shri. N. C. Chatterjee in support of his contention was that the right to reside in the premises was given to the servants and that according to him detracted from the absolute character of the dedication. This argument however cannot avail the appellants. It was observed by Lord Buckmaster in delivering the judgment of the Privy Council in Gnanendra Nath Das v. Surendra Nath Das ((1920) 24 C.W.N. 1026 at p. 1030.) :"In that case it is provided that the shebait for the time being shall be entitled to reside with his family in the said dwelling-house, but the dwelling-house itself is the place specially set apart for the family idols to which specific reference is made in the will, and in their Lordships opinion the gift is only a perfectly reasonable arrangement to secure that the man in whose hands the supervision of the whole estate is vested should have associated with his duties the right to reside in this named dwelling place."11. The first contention of the appellants therefore fails and we hold that the declaration of the premises No. 41 Grey Street to the idol was an absolute dedication. As regards the second contention, viz., the adverse possession of Nagendra, it is to be noted that under the terms of clause 3 of the will of Dwarka Nath the representatives, successors and heirs of his two sons Rajendra and Jogendra were successively to perform the seva in the manner therein mentioned and Nagendra was one of the heirs and legal representatives of Rajendra. He was no doubt a minor on the 24th November, 1910, when the terms of settlement were arrived at between the parties to the suit No. 969 of 1909. His two elder brothers Jnanendra and Bhupendra were declared to be the then servants, but a right was reserved to Nagendra to join with them as a sevayat on his attaining majority. So far as Nagendra is concerned there is a clear finding of fact recorded by Mr. Justice Bose on a specific issue raised in that behalf, viz., "Did Nagendra act as shebait of the plaintiff deity under the wills of Dwarka Nath Ghosh and Rajendra Nath Ghosh ?" - that he did act as such shebait and that his possession of the premises No. 41-A Grey Street was referable to possession on behalf of the idol. This finding was not challenged in the appeal court and it is too late to challenge the same before us. If Nagendra was thus a sevayat of the idol it could not be urged that his possession could in any manner whatever be adverse to the idol and his dealings with the said premises in the manner the purported to do after the 12th October, 1920, could not be evidence of any adverse possession against the idol. The position of the sevayat and the effect of his dealings with the property dedicated to the idol has been expounded by Rankin C.J. in Surendrakrishna Ray v. Shree Ishwar Bhubaneshwari Thakurani ((1933) 60 Cal. 54 at 77.) :-But, in the present case, we have to see whether the possession of two joint shebaits becomes adverse to the idol when they properly claim to divide the property between them. The fact of their possession is in accordance with the idols title, and the question is whether the change made by them, in the intention with which they hold, evidenced by an application of the rents and profits to their own purposes and other acts, extinguishes the idols right. I am quite unable to hold that it does, because such a change of intention can only be brought home to the idol by means of the shebaits knowledge and the idol can only react to it by the shebait. Adverse possession, in such circumstances, is a notion almost void of content. True, any heir or perhaps any descendant of the founder can bring a suit against the shebaits on the idols behalf and, in the present case, it may be said that the acts of the shebaits must have been notorious in the family. But such persons have no legal duty to protect the endowment and, until the shebait is removed or controlled by the court, he alone can act for the idol."12. We are in perfect accord with the observations made by Rankin C.J. If a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. The shebait for the time being is the only person competent to safeguard the interests of the idol, his possession of the dedicated property is the possession of the idol whose sevait he is and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the property against the idol. No shebait can, so long as he continues to be the sevait, ever claim adverse possession against the idol. Neither Nagendra nor the appellants who derive their title from the auction sale held on the 9th December, 1936, could therefore claim to have perfected their title to the premises No. 41-A Grey Street by adverse possession. The second contention of the appellants also therefore fails.13. The further contention urged on behalf of the appellants in regard to the disallowance of the sum of Rs. 19, 000 by the appeal court could not be and was not seriously pressed before us and does not require any consideration.
### Response:
0
### Explanation:
The appeal was argued but so far as the petition for special leave to appeal was concerned the parties came to an agreement whereby the idol asked for leave to withdraw the petition on certain terms recorded between the parties. The petition for special leave was therefore allowed to be withdrawn and no objection now survives in regard to the decree passed by the trial court dismissing the idols claim to the premises No. 40/2-A Grey Street. The appeal is concerned only with the premises No. 41-A Grey Street.It was contended on behalf of the appellants that the dedication of the premises No. 41 Grey Street made by Dwarka Nath under the terms of his will was a partial dedication, and that his sons Rajendra and Jogendra and his widow Golap Sundari, who were appointed sevayats of the idol were competent to deal with premises No. 41 Grey Street after making the due provision for the idol as they purported to do by the terms of settlement, dated the 24th November, 1910. It was further contended that Nagendra, by virtue of the award dated the 12th October, 1920, claimed to be absolutely entitled to the premises No. 41-A Grey Street and that his possession of the said premises thereafter became adverse which adverse possession continued for upwards of 12 years extinguished the right of the idol to the said premises. The first contention of the appellants is clearly untenable on the very language of the will of Dwarkafirst contention of the appellants therefore fails and we hold that the declaration of the premises No. 41 Grey Street to the idol was an absolute dedication. As regards the second contention, viz., the adverse possession of Nagendra, it is to be noted that under the terms of clause 3 of the will of Dwarka Nath the representatives, successors and heirs of his two sons Rajendra and Jogendra were successively to perform the seva in the manner therein mentioned and Nagendra was one of the heirs and legal representatives of Rajendra. He was no doubt a minor on the 24th November, 1910, when the terms of settlement were arrived at between the parties to the suit No. 969 of 1909. His two elder brothers Jnanendra and Bhupendra were declared to be the then servants, but a right was reserved to Nagendra to join with them as a sevayat on his attaining majority. So far as Nagendra is concerned there is a clear finding of fact recorded by Mr. Justice Bose on a specific issue raised in that behalf, viz., "Did Nagendra act as shebait of the plaintiff deity under the wills of Dwarka Nath Ghosh and Rajendra Nath Ghosh ?" - that he did act as such shebait and that his possession of the premises No. 41-A Grey Street was referable to possession on behalf of the idol. This finding was not challenged in the appeal court and it is too late to challenge the same before us. If Nagendra was thus a sevayat of the idol it could not be urged that his possession could in any manner whatever be adverse to the idol and his dealings with the said premises in the manner the purported to do after the 12th October, 1920, could not be evidence of any adverse possession against the idol. The position of the sevayat and the effect of his dealings with the property dedicated to the idol has beenam quite unable to hold that it does, because such a change of intention can only be brought home to the idol by means of the shebaits knowledge and the idol can only react to it by the shebait. Adverse possession, in such circumstances, is a notion almost void of content. True, any heir or perhaps any descendant of the founder can bring a suit against the shebaits on the idols behalf and, in the present case, it may be said that the acts of the shebaits must have been notorious in the family. But such persons have no legal duty to protect the endowment and, until the shebait is removed or controlled by the court, he alone can act for theare in perfect accord with the observations made by Rankin C.J. If a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. The shebait for the time being is the only person competent to safeguard the interests of the idol, his possession of the dedicated property is the possession of the idol whose sevait he is and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the property against the idol. No shebait can, so long as he continues to be the sevait, ever claim adverse possession against the idol. Neither Nagendra nor the appellants who derive their title from the auction sale held on the 9th December, 1936, could therefore claim to have perfected their title to the premises No. 41-A Grey Street by adverse possession. The second contention of the appellants also thereforefurther contention urged on behalf of the appellants in regard to the disallowance of the sum of Rs. 19, 000 by the appeal court could not be and was not seriously pressed before us and does not require any consideration.
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Lakshman Swarup Om Prakash Vs. Union of India | Section 226(4) of the Act. It was submitted on behalf of the appellant before the High Court that the income tax liabilities of the judgment-debtors were the subject-matter of a number of writ petitions and in those writ petitions by order dated 8-4-1980, the demand giving rise to such liabilities has been quashed. On behalf of Respondent 1 it was pointed out that the demand in respect of which the application under Section 226(4) had been filed consisted of not only the liabilities of income tax but also those under the Excess Profit Tax Act. The High Court did not consider it necessary to deal with the said question and left the appellant to have the controversy determined by the executing court. The High Court has allowed the revision petition and has set aside the order dated 4-3-1974 passed by the executing court and has remanded the matter to the executing court with the direction to dispose of the application filed by the Union of India under Section 226(4) of the Act and the objections filed by the appellant thereto according to the law. Hence this appeal 2. Section 226(4) of the Act provides as under "226. (4) The Assessing Officer or Tax Recovery Officer may apply to the court in whose custody there is money belonging to the assessee for payment to him of the entire amount of such money, or, if it is more than the tax due, an amount sufficient to discharge the tax." * 3. Under Section 226(4) of the Act the Assessing Officer or Tax Recovery Officer can move the court having custody of money belonging to the assessee for payment to him of such money for discharging the tax liability of the assessee. What is necessary is that on the date when the application is made the court should have custody of money belonging to the assessee. The question, therefore, is whether on 31-8-1973 when the application under Section 226(4) was moved by Respondent 1 any money belonging to the judgment-debtors was in custody of the executing court. For that purpose it is necessary to consider Section 73 CPC which provides as under "73. Proceeds of execution sale to be rateably distributed among decree-holders. - (1) Where assets are held by a court and more persons than one have, before the receipt of such assets, made application to the court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons Provided as follows : (omitted)" * 4. Under Section 73 CPC the money lying in the executing court continues to belong to the judgment-debtor till it is disbursed among the decree-holders or other creditors of the judgment-debtor 5. On 31-8-1973 the date on which the application under Section 226(4) of the Act was filed by Respondent 1, cheques sent by the Civil Judge, Agra to the executing court were lying with the executing court. The payment was actually made to the appellant on 23-4-1974, i.e., after the passing of the order dated 4-3-1974, rejecting the application under Section 226(4) filed by Respondent 1. The High Court was, therefore, right in holding that on the date of filing of the application under Section 226(4) of the Act the money had not been distributed to the appellant decree-holders and was lying with the executing court. The executing court was, therefore, in error in rejecting the application filed by the Union of India under Section 226(4) of the Act on the view that the money had ceased to be the property of the judgment-debtors on the date of the filing of the said application. The money could have ceased to be the property of the judgment-debtors only on its being distributed among the decree-holders and till it was so distributed it continued to remain the money of the judgment-debtors in the custody of the court 6. Shri Markandeya has placed reliance on the following observations of this Court in Union of India v. Somasundram Mills (P) Ltd. "... It is a general principle of law that debts due to the State are entitled to priority over all other debts. If a decree-holder brings a judgment-debtors property to sale and the sale proceeds are lying in deposit in court, the State may, even without prior attachment exercise its right to priority by making an application to the executing court for payment out. If, however, the State does not choose to apply to the court for payment of its dues from the amount lying in deposit in the court but allows the amount to be taken away by some other attaching decree-holder, the State cannot thereafter make an application for payment of its dues from the sale proceeds since there is no amount left with the court to be paid to the State." * 7. These observations do not lend support in the case of the appellant because in the present case it cannot be said that the Union of India had allowed the amount to be taken away by the decree-holders. Before the amount could be distributed among the decree-holders the application had been filed by Respondent 1 under Section 226(4) of the Act 8. Shri Markandeya has urged that after the passing of the order dated 4-3-1974 by the executing court the Union of India did not take any steps to obtain stay of the payment of the amount to the appellant and the appellant had obtained the cheque from the executing court and had encashed the same on 23-4-1974 and that the bank guarantee furnished by the appellant has also been discharged on 31-5-1974. That in our opinion has no effect on the maintainability of the application under Section 226(4) which was submitted on 31-8-1973 prior to such payment. The payment of money to the appellant after the filing of the application would not render the said application infructuous. | 0[ds]7. These observations do not lend support in the case of the appellant because in the present case it cannot be said that the Union of India had allowed the amount to be taken away by the. Before the amount could be distributed among thes the application had been filed by Respondent 1 under Section 226(4) of the Act8. Shri Markandeya has urged that after the passing of the order dated4 by the executing court the Union of India did not take any steps to obtain stay of the payment of the amount to the appellant and the appellant had obtained the cheque from the executing court and had encashed the same on4 and that the bank guarantee furnished by the appellant has also been discharged on. That in our opinion has no effect on the maintainability of the application under Section 226(4) which was submitted on3 prior to such payment. The payment of money to the appellant after the filing of the application would not render the said application infructuous. | 0 | 1,556 | 188 | ### Instruction:
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Section 226(4) of the Act. It was submitted on behalf of the appellant before the High Court that the income tax liabilities of the judgment-debtors were the subject-matter of a number of writ petitions and in those writ petitions by order dated 8-4-1980, the demand giving rise to such liabilities has been quashed. On behalf of Respondent 1 it was pointed out that the demand in respect of which the application under Section 226(4) had been filed consisted of not only the liabilities of income tax but also those under the Excess Profit Tax Act. The High Court did not consider it necessary to deal with the said question and left the appellant to have the controversy determined by the executing court. The High Court has allowed the revision petition and has set aside the order dated 4-3-1974 passed by the executing court and has remanded the matter to the executing court with the direction to dispose of the application filed by the Union of India under Section 226(4) of the Act and the objections filed by the appellant thereto according to the law. Hence this appeal 2. Section 226(4) of the Act provides as under "226. (4) The Assessing Officer or Tax Recovery Officer may apply to the court in whose custody there is money belonging to the assessee for payment to him of the entire amount of such money, or, if it is more than the tax due, an amount sufficient to discharge the tax." * 3. Under Section 226(4) of the Act the Assessing Officer or Tax Recovery Officer can move the court having custody of money belonging to the assessee for payment to him of such money for discharging the tax liability of the assessee. What is necessary is that on the date when the application is made the court should have custody of money belonging to the assessee. The question, therefore, is whether on 31-8-1973 when the application under Section 226(4) was moved by Respondent 1 any money belonging to the judgment-debtors was in custody of the executing court. For that purpose it is necessary to consider Section 73 CPC which provides as under "73. Proceeds of execution sale to be rateably distributed among decree-holders. - (1) Where assets are held by a court and more persons than one have, before the receipt of such assets, made application to the court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realisation, shall be rateably distributed among all such persons Provided as follows : (omitted)" * 4. Under Section 73 CPC the money lying in the executing court continues to belong to the judgment-debtor till it is disbursed among the decree-holders or other creditors of the judgment-debtor 5. On 31-8-1973 the date on which the application under Section 226(4) of the Act was filed by Respondent 1, cheques sent by the Civil Judge, Agra to the executing court were lying with the executing court. The payment was actually made to the appellant on 23-4-1974, i.e., after the passing of the order dated 4-3-1974, rejecting the application under Section 226(4) filed by Respondent 1. The High Court was, therefore, right in holding that on the date of filing of the application under Section 226(4) of the Act the money had not been distributed to the appellant decree-holders and was lying with the executing court. The executing court was, therefore, in error in rejecting the application filed by the Union of India under Section 226(4) of the Act on the view that the money had ceased to be the property of the judgment-debtors on the date of the filing of the said application. The money could have ceased to be the property of the judgment-debtors only on its being distributed among the decree-holders and till it was so distributed it continued to remain the money of the judgment-debtors in the custody of the court 6. Shri Markandeya has placed reliance on the following observations of this Court in Union of India v. Somasundram Mills (P) Ltd. "... It is a general principle of law that debts due to the State are entitled to priority over all other debts. If a decree-holder brings a judgment-debtors property to sale and the sale proceeds are lying in deposit in court, the State may, even without prior attachment exercise its right to priority by making an application to the executing court for payment out. If, however, the State does not choose to apply to the court for payment of its dues from the amount lying in deposit in the court but allows the amount to be taken away by some other attaching decree-holder, the State cannot thereafter make an application for payment of its dues from the sale proceeds since there is no amount left with the court to be paid to the State." * 7. These observations do not lend support in the case of the appellant because in the present case it cannot be said that the Union of India had allowed the amount to be taken away by the decree-holders. Before the amount could be distributed among the decree-holders the application had been filed by Respondent 1 under Section 226(4) of the Act 8. Shri Markandeya has urged that after the passing of the order dated 4-3-1974 by the executing court the Union of India did not take any steps to obtain stay of the payment of the amount to the appellant and the appellant had obtained the cheque from the executing court and had encashed the same on 23-4-1974 and that the bank guarantee furnished by the appellant has also been discharged on 31-5-1974. That in our opinion has no effect on the maintainability of the application under Section 226(4) which was submitted on 31-8-1973 prior to such payment. The payment of money to the appellant after the filing of the application would not render the said application infructuous.
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7. These observations do not lend support in the case of the appellant because in the present case it cannot be said that the Union of India had allowed the amount to be taken away by the. Before the amount could be distributed among thes the application had been filed by Respondent 1 under Section 226(4) of the Act8. Shri Markandeya has urged that after the passing of the order dated4 by the executing court the Union of India did not take any steps to obtain stay of the payment of the amount to the appellant and the appellant had obtained the cheque from the executing court and had encashed the same on4 and that the bank guarantee furnished by the appellant has also been discharged on. That in our opinion has no effect on the maintainability of the application under Section 226(4) which was submitted on3 prior to such payment. The payment of money to the appellant after the filing of the application would not render the said application infructuous.
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Jamshed Jahan Begam & Ors Vs. Lakhan Lal & Ors | not necessary that the interest or rights of the debtor should be mentioned in the decree, because the requirement is only regarding the nature and extent of the property and that has been mentioned in the decree granted in favour of the respondents by the Special Judge under Section 14 (7), and it has also been reported to the Collector under Section 19 (2). If so, the requirements of Sections 19 and 24 have been complied with. Hence it follows that this contention of Mr. Goyal cannot be accepted. There is also another reason for rejecting the said contention. Bhumidhari rights have been created in favour of the appellants only on July 1, 1952, the date of vesting, on the issue of a notification under Section 4 of the Abolition Act, whereas the amended decree in favour of the respondents has been passed under Section 14 (7) as early as January 23, 1938. When the Encumbered Estates Act permits the respondents to levy execution against the property of the debtor other than proprietary rights in land and when there is no prohibition in the Abolition Act against execution of decrees obtained under the Encumbered Estates Act against such rights, it follows that the decree holders-respondents are entitled to proceed against the bhumidhari rights and therefore the appellate order of the Additional Commissioner dated March 24, 1965 and the revisional order of the Board of Revenue dated October 15, 1965 upholding the right of the respondents in this regard are correct.22. The further question that arises is whether the respondents are entitled to levy execution against the trees in the possession of the appellants in execution of their decree. No doubt, the general objection that was taken by the appellants before the Assistant Collector was that the grove formed part of the sir property and therefore the question of their being auctioned does not arise and that the groves do not form part of the list mentioned in the decree passed by the Special Judge. On the other hand according to the respondents, the trees never vested in the state under the Abolition Act and as the appellants continued to be the owners of the same, execution can be levied against the trees. The contention of the appellants that the trees have not been mentioned in the list need not detain us because the amended decree passed by the special Judge clearly refers to trees standing on the lands described in the schedules. Then the question is whether the trees belong to the respondents.23. Section 3 (26) of the Abolition Act states that the words and expressions, mentioned therein and which have not been defined in that Act but used in the U.P Tenancy Act, 1939 shall have the meaning assigned to them in the latter Act. Two. among the various expressions referred to in Section 3 (26) are grove and grove-holder. Therefore, we have to look into the U. P. Tenancy Act to find out the meaning of the expression grove. Section 3 (6) of the U. P. Tenancy Act, 1939 (U. P. Act XVII of 1939) defines the expression grove-land as follows:";3 (6). "grove-land" means any specific piece of land in a mahal or mahals having trees planted thereon in such numbers that they preclude or when full grown will preclude the land or any considerable portion thereof from being used primarily for any other purposes and the trees on such land constitute a grove."From the above it will be seen that grove is something different from grove-land because the definition says that the trees on such land, viz, grove-land, constitute a grove. Section 6 of the Abolition Act dealing with the consequences of the vesting of an estate in the State, among other things states in Clause (a):"6 (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 (other than hats, bazars and melas held upon land to which Clauses (a) to (c) of sub-section (1) of Section 18 apply), and(ii) in all sub-soil in such estates 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."Clause (a) referred to above deals with the grove lands and trees separately. The grove-land referred to above, will be the grove-land defined in Section 3(6) of the U.P. Tenancy Act Clause (a) also refers to the right title and interest of intermediaries in trees ceasing and vesting in the State. From among the trees, such of the trees as constitute a grove have been excluded from the operation of Clause (a) of Section 6. Therefore, the excluded category of trees forming the grove cannot be considered to have vested in the State on the abolition of the estates. Section 18, which creates bhumidhari rights deals, among other items with "intermediarys grove." The expression "intermediarys grove," is defined in Section 3 (13) of the Abolition Act as grove-land held or occupied by an intermediary as such. We do not find any material on record to draw an inference that the appellant raised any contention that the trees constituted an intermediarys grove.24. From what is stated above, it will be seen that the trees constituting the grove have not vested in the State and therefore they could not have formed the subject of creation of bhumidhari rights under Section 18. Therefore the trees constituting the grove, being the debtors property, are liable to be proceeded with in execution under Section 24 of the Encumbered Estates Act. Even if it is to be held that the appellants have got bhumidhari rights over the trees constituting the grove, as already held by us these rights can be proceeded with under Section 24 of the Encumbered Estates Act. | 0[ds]8. It will be seen from the rival contentions set out above that the main question that arises for consideration is as to whether the bhumidhari rights of the appellants obtained by them under the Abolition Act can be proceeded with for realisation of the decree obtained by the respondents under the provision of the Encumbered Estates Act.In our opinion, none of the decisions referred to above, assists the appellants. Those decisions were directly concerned with the rights of the mortgagees as such to levy execution either as against the bhumidhari rights or personally against the mortgagor or against his other properties. The right to levy execution was claimed by the decree-holders as mortgagees after the estate mortgaged to them had vested in the State, under the relevant Acts. Under those circumstances, this Court held that the mortgagees remedy was only to proceed against the compensation money as provided under the material provisions of the statute governing the same. None of those decisions had occasion to consider the question that now arises for consideration before us, viz., the rights of a decree-holder under the Encumbered Estatesit is that these rights, as such, have not been mentioned. But a perusal of Section19 (2) (b) clearly shows that it was not necessary that the interest or rights of the debtor should be mentioned in the decree, because the requirement is only regarding the nature and extent of the property and that has been mentioned in the decree granted in favour of the respondents by the Special Judge under Section 14 (7), and it has also been reported to the Collector under Section 19 (2). If so, the requirements of Sections 19 and 24 have been complied with. Hence it follows that this contention of Mr. Goyal cannot be accepted. There is also another reason for rejecting the said contention. Bhumidhari rights have been created in favour of the appellants only on July 1, 1952, the date of vesting, on the issue of a notification under Section 4 of the Abolition Act, whereas the amended decree in favour of the respondents has been passed under Section 14 (7) as early as January 23, 1938. When the Encumbered Estates Act permits the respondents to levy execution against the property of the debtor other than proprietary rights in land and when there is no prohibition in the Abolition Act against execution of decrees obtained under the Encumbered Estates Act against such rights, it follows that the decree holders-respondents are entitled to proceed against the bhumidhari rights and therefore the appellate order of the Additional Commissioner dated March 24, 1965 and the revisional order of the Board of Revenue dated October 15, 1965 upholding the right of the respondents in this regard aredoubt, the general objection that was taken by the appellants before the Assistant Collector was that the grove formed part of the sir property and therefore the question of their being auctioned does not arise and that the groves do not form part of the list mentioned in the decree passed by the Special Judge. On the other hand according to the respondents, the trees never vested in the state under the Abolition Act and as the appellants continued to be the owners of the same, execution can be levied against the trees. The contention of the appellants that the trees have not been mentioned in the list need not detain us because the amended decree passed by the special Judge clearly refers to trees standing on the lands described in the schedules. Then the question is whether the trees belong to the(a) referred to above deals with the grove lands and trees separately. The grove-land referred to above, will be the grove-land defined in Section 3(6) of the U.P. Tenancy Act Clause (a) also refers to the right title and interest of intermediaries in trees ceasing and vesting in the State. From among the trees, such of the trees as constitute a grove have been excluded from the operation of Clause (a) of Section 6. Therefore, the excluded category of trees forming the grove cannot be considered to have vested in the State on the abolition of the estates. Section 18, which creates bhumidhari rights deals, among other items with "intermediarys grove." The expression "intermediarys grove," is defined in Section 3 (13) of the Abolition Act as grove-land held or occupied by an intermediary as such. We do not find any material on record to draw an inference that the appellant raised any contention that the trees constituted an intermediarys grove.24. From what is stated above, it will be seen that the trees constituting the grove have not vested in the State and therefore they could not have formed the subject of creation of bhumidhari rights under Section 18. Therefore the trees constituting the grove, being the debtors property, are liable to be proceeded with in execution under Section 24 of the Encumbered Estates Act. Even if it is to be held that the appellants have got bhumidhari rights over the trees constituting the grove, as already held by us these rights can be proceeded with under Section 24 of the Encumbered Estates, the general objection that was taken by the appellants before the Assistant Collector was that the grove formed part of the sir property and therefore the question of their being auctioned does not arise and that the groves do not form part of the list mentioned in the decree passed by the Special Judge. On the other hand according to the respondents, the trees never vested in the state under the Abolition Act and as the appellants continued to be the owners of the same, execution can be levied against the trees. The contention of the appellants that the trees have not been mentioned in the list need not detain us because the amended decree passed by the special Judge clearly refers to trees standing on the lands described in the schedules. Then the question is whether the trees belong to the1. The question that arises for consideration it in this appeal, by special leave, is as to whether the bhumidhari rights and trees belonging to the appellants can be proceeded against and sold for realisation of the debts due to the respondents under the U. P. Encumbered Estates Act, 1934 (Act XXV of 1934) as amended (hereinafter referred to as the Encumbered EstatesThe contention of the appellants is that they cannot bes according to the respondents, they can be sold.st of the appellants were landlords owning immovable properties, including agricultural land trees, groves and well, situate in the various villages in the District of Saharanpur they were very heavily indebted, the debts being both secured and unsecured payable by them to the creditors. The respondents were among the secured creditors to whom large amounts were due. On or about March 26, 1936 the appellantsfiled an application under S. 4 of the Encumbered Estates Act to the Collector for determination of their debts. As required by S. 6 of the said Act, the Collector forwarded this application to the Special Judge, Saharanpur, appointed under S. 3 of the said Act and the said application was registered as Suit No. 23 of 1936. After complying with the other formalities under the Encumbered Estates Act, the Special Judge, on December 23, 1936 passed a decree under S. 14 (7) of the Encumbered Estates Act. The said decree was amended on January 23, 1938. The Special Judge granted a decree in favour of respondents 1 to 3 for two sums of Rs. 36,000/and Rs, 25,000/on loans secured over properties mentioned in Schedules A, B and C of the decree. hey were also granted a decree for Rs. 9,000/which was the decree debt for the payment of which the mother of the daughters had stood surety. Over and above these amounts, the respondents were given a decree for Rs. 3,500/for an unsecured debt.3. The liquidation proceedings which were started under the Encumbered Estates Act and were pending before the Collector were stayed till 1954 in view of the contemplated legislation for abolition of zamindary the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act 1 of 1951) (hereinafter referred to as the Abolition Act), and the appellants estate vested on July 1, 1952 in the State by virtue of the notification issued under Section 4 (1) of that Act. The liquidation proceedings pending before the Collector under the Encumbered Estates Act were reopened in the year 1955. On May 15, 1959 the respondents made an application to the Assistant Collector of Saharanpur (to whom powers of the Collector, for the purposes of Section 24 of the Encumbered Estates Act had been delegated) to recover the amounts decreed to them by the Special Judge by proceeding against the bhumidhari rights and trees belonging to the appellants and to auction the same under Section 24 of the Encumbered Estates Act. The appellants filed objections, briefly, to the following effect. The decree holder is not entitled to proceed against the bhumidhari rights or the trees in their possession. Thedebts are secured debts and they are entitled only toof the Zamindari Abolition and Rehabilitation Grants and that they are not entitled to get anything more under the decree. The list forwarded by the Special Judge does not refer to any of their rights now sought to be attached and therefore no execution can be levied against such properties. Bhumidhari rights accrued only after the abolition of the zamindari and as such, they cannot be proceeded against for realisation of the decreed amounts. The Assistant Controller, by his order dated February 21, 1961 upheld the objections of the appellants debtors and dismissed the application of therespondents for sale of bhumidhari and other rights in the properties mentioned by them. The basis on which the Assistant Collector declined to allow executing to proceed was that bhumidhari rights represent the proprietary rights which the zamindars, on the abolition of the estate, were allowed to retain, by the Abolition Act. In substance, those rights were the original proprietary rights, though a new name of bhumidhari rights was given to them.4. The respondents challenged this order of the Assistant Collector in appeal, under S. 45 (3) of the Encumbered Estates Act, before the Commissioner, Meerut Division, who, by his order dated March 24, 1965 reversed the order of the Assistant Collector and held that the trees and bhumidhari rights of the appellants could be sold in execution of the decree. The view of the Commissioner is that such rights are rights other than proprietary rights. The prohibition contained in the Encumbered Estates Act is only regarding the sale of proprietary rights and bhumidhari rights not being proprietary rights could be proceeded with in execution.5. The appellants filed a revision under S. 46 (2) of the Encumbered Estates Act, before the Board of Revenue. The two contentions, that were raised by the appellants, before the Board of Revenue were: (i) bhumidhari rights are proprietary rights in land and as such, no execution can levy against such rights; (ii) the bhumidhari rights sought to be proceeded against have not been mentioned in the list of properties sent by the Special Judge to the Collector under S. 19 of the Encumbered Estates Act and therefore they cannot be sold in liquidation proceedings under Chapter V of the Encumbered Estates Act. Both these contentions were rejected by the Board of Revenue who, by their order dated October 15, 1965 confirmed the order of the Commissioner and dismissed the appellants revision petition. The Board of Revenue has held that bhumidhari rights are not proprietary rights and so long as there is no prohibition under the Abolition Act to proceed against them, thewas entitled to attach and sell those rights. The Board further held that the properties have been mentioned in the list sent by the Special Judge and the nature of the rights, viz., bhumidhari rights, could not have been mentioned on the date when the list was sent because such rights were obtained by the appellants long thereafter. It is against this order of the Board that the appellants have come up to this Court in appeal.Mr. Goyal learned counsel for the appellants, urged that the decree obtained by the respondents under the Encumbered Estates Act, as provided under S, 14 (8) thereof, shall not be executable within U. P. except under the provisions of this Act. S, 19 of the Encumbered Estates Act provides for the Special Judge informing the Collector of the nature and extent of the property mentioned in the notice under S. 11, which he has found to be liable for attachment and sale in satisfaction of the debts of the24 provides for the Collector realising the value of such of the debtors property other than the proprietary right in land as shall have been reported by the Special Judge under the provisions of(2) of S. 19 to be liable to attachment or sale. Having due regard to these provisions, the counsel urged that the bhumidhari rights granted to the appellants under the Abolition Act, having not been admittedly reported by the Special Judge, cannot be proceeded against in execution under the Encumbered Estates Act. The counsel further urged that bhumidhari rights are special and new rights given under the Abolition Act to the former proprietors of the estate which vested in the State. Those rights cannot be proceeded against for realisation of the debts due to the respondents. Counsel referred us to the material provisions of the Encumbered Estates Act and the Abolition Act in support of the above contentions. Mr. Goyal also urged that the rights of the respondents, if any, are only to proceed against the compensation awarded under the Abolition Act. In support of his contention that the bhumidhari rights are new and special rights, Mr. Goyal referred us to two decisions of this Court in Rana Sheo Amber Singh v. Allahabad Bank Ltd., Allahabad (1962) 2 SCR 441 = (AIR 1961 SC 1790 ) and Krishna Prasad v. Gauri Kumari Devi, (1962) Supp 3 SCR 564 = (AIR 1962 SC 1464 ).On the other hand, Mr. Gupte, learned counsel for the respondents, urged that the respondents are executing the decree strictly in accordance with the provisions of the Encumbered Estates Act. In this connection, counsel pointed out that whatever rights of the respondents, as mortgagees, originally might have been, the decree passed under the Encumbered Estates Act, under S. 14 (7) (b) (i), in favour of the respondents is only a simple money decree. Therefore the provisions dealing with the rights of a mortgagee in respect of an estate under the Zamindari Abolition Act do not have any material bearing. He also referred to Section 18 of the Encumbered Estates Act to show that the effect of a decree of a Special Judge under Section 14 (7) is to extinguish the previously existing rights of mortgage or security. The properties which are sought to be proceeded against are clearly referred to by the Special Judge in the decree sent to the Collector under Section 19 of the Encumbered Estates Act. Under cl. (b) of Section 19 (2) it was only necessary to state the nature and extent of the property and the Special Judge has informed the Collector of those particulars. Section 24 gives power to the Collector to realise the value of such of the debtors property as has been reported by the Special Judge under(2) of Section 19. It is against such property that the respondents are proceeding against for realisation of their dues. Mr. Gupte further urged that the fact that at the time when execution is levied, the right of the appellants is the bhumidhari rights in those identical properties is not of any consequence. The decisions relied on by Mr. Goyal the counsel points out, had no occasion to deal with the rights of a creditor under the Encumbered Estates Act. He further pointed out that there is no provision in the Abolition Act barring attachment and sale of bhumidhari rights. The counsel finally urged that the main purpose of the Encumbered Estates Act was in help to preserve the proprietary debts ofin U. P. and at the same time to evolve a machinery to liquidate theirld not be the intention of the Legislature on the one hand to preserve property rights in land even though it is encumbered with heavy debts and on the other to provide the creditors no machinery for realisation of their dues.It will be seen from the rival contentions set out above that the main question that arises for consideration is as to whether the bhumidhari rights of the appellants obtained by them under the Abolition Act can be proceeded with for realisation of the decree obtained by the respondents under the provision of the Encumbered Estates Act.This takes us to a consideration of the material provisions of the Encumbered Estates Act and the Abolition Act.9. The object of the Encumbered Estates Act is to provide for relief of encumbered estates in U. P. S. 2 defines among other expression, debt, land and landlord. Section 3 deals with the appointment of a Special Judge. Section 4 provides for the landlord who is subject to or whose immovable property or any part thereof is encumbered with private debts, for making an application within the time mentioned therein to the concerned Collector requesting that the provisions of the Encumbered Estates Act be applied to him. The landlord has to state in the application the amount of private debts as also his public debts, both decreed and undecreed. Section 6 deals with the transmission to the Special Judge of the application received by the Collector under Section 4. The Collector has also to inform the Special Judge of any public debts outstanding against the landlord. Section 7 deals with the consequence of acceptance of an application by the Collector. In brief all pending proceedings excepting proceedings by way of appeal or revision stand stayed and all attachments and other execution processes are declared null and void. No fresh suit or other proceeding excepting an appeal or revision against a decree or order can be instituted in any civil or revenue Court Section 8 deals with the Special Judge who has received an application under Section 6 calling upon theto submit a written statement containing full particulars regarding the public or private debts to which the landlord is subject or his immovable property is encumbered, the nature and extent of the landlords proprietary rights in land, the nature and extent of his property liable to attachment and sale under Section 60, C. P. C., and the names and addresses of his creditors. Under S. 9, the Special Judge has to publish in the Gazette a notice calling upon all persons having claims in respect of private debts, both decreed and undecreed, against the landlord or his property. Section 10 provides that every claim made under S. 9 should contain full particulars of the claim and also to the extent possible the nature and extent of the landlords proprietary rights in land as also the nature and extent of the landlords property other than proprietary rights. Section 11 requires the Special Judge to publish a notice specifying the property mentioned by the landlord under S. 8 and by a claimant under S. 10. It also provides for any person having any claim to the property mentioned in such notice of making an application to the Special Judge specifying his claim and for investigation by the Special Judge whether the property specified in the claim or any part thereof is liable to attachment sale or mortgage in satisfaction of the applicant Section 14 empowers the Special Judge after giving the necessary notices in that behalf, to examine each claim and determine the amount, if any, due from the landlord to the claimant on the date of the application under Section 4. Section 14 (7) (b) provides for the Special Judge, on finding that an amount is due to the claimant, to pass a simple money decree.(8) states that every decree passed under(7) shall be deemed to be a decree of a Court of competent jurisdiction but shall not be executable within U. P. except under the provisions of the Encumbered Estates Act. Section 18, dealing with the effect of the finding of the Special Judge states that the existing relationship between the debt and the property which is charged or mortgaged for that debt are extinguished and the decree that is given by the Special Judge is stated to substitute for the previous rights a right to recover the amount of the decree in the manner and to the extent thereafter provided. It has already been noted that under Sec. 14 it is only a simple money decree that is passed by the Special Judge. Section 19 provides for the transmission of the decrees passed by the Special Judge to the Collector for execution in accordance with the provisions of Chapter V. The Special Judge is also to inform the Collector of the nature and extent of the property mentioned in the notice under S. 11 which be has found to be liable to attachment or sale in execution of the debts of the applicant. In the case before us there is no controversy that the Special Judge has complied with this provision.10. Chapter V deals with execution of decrees and liquidation of debts and S. 24 provides for the Collector to whom the decree has been transmitted by the Special Judge under S. 19 to proceed to realise the value of such of the debtors property other than proprietary rights in land as shall have been reported by the Special Judge under the provisions of S. 19 (2) to be liable to attachment and sale. In this connection it may be stated that the question that will arise for consideration is whether bhumidhari rights are the debtors property other than proprietary rights in land. If they are not proprietary rights in land then under this section they are liable to be sold under auction because the nature and extent of the property has been mentioned by the Special Judge in his report under S. 19 (2) to be liable to attachment and sale.11. From the provisions referred to above, the Scheme of the Encumbered Estates Act appears to be as follows. Any landlord who is encumbered with private debts can make an application to the prescribed authority for applying the provisions of that Act. The Special Judge, after making the necessary publication, calls for claimants against the landlord and also ascertains the property of the debtor. He then examines the claimants and determines the amounts of debt due and passes a decree under S. 7 of the Encumbered Estates Act if amounts are found to be due; but even though the amount may have been charged on the property, the Special Judge passes only a simple money decree. Under S. 14 (8) the decree so passed is deemed to be a decree of a Civil Court of competent jurisdiction and it shall not be executable except under the provisions of the Encumbered Estates Act. Once the matter goes within the jurisdiction of the Special Judge the existing relations between the debt and the property which is charged or mortgaged for that debt are extinguished and the decree is only a simple money decree and not a mortgage decree. The mode of execution is then described in S. 19 under which the Special Judge transmits the decrees for execution to the Collector informing the latter among other matters of the nature and extent of the property which he has found to be liable to attachment or sale in satisfaction of the debts. The Collector, under S. 24, has to realise the value of the debtors property other than proprietary rights in land. In the case before us we have already referred to the various stages leading up to the respondents obtaining a decree and the decree being transmitted for execution, as well as the final order of the Board of Revenue, accepting the right of the respondents to levy execution against the bhumidhari rights in the land.12. Under the Abolition Act, there is no controversy, that the estate of the appellants vested in the State on July 1, 1952 by virtue of the notification issued under S. 4. Section 3 defines the various expressions. Section 4 deals with vesting of estates in the State on the issue of a notification thereunder. Section 6 deals with the various consequences of the vesting of an estate in the State. Clause (h) of Section 6 provides that no claim or liability enforceable or incurred before the date of vesting by or against such intermediary for any money, which is charged on or is secured by a mortgage of such estate or part thereof, shall, except as provided in Section 73 of the Transfer of Property Act 1882, be enforceable against the interests of such third person. Section 18 deals with settlement of certain items with intermediaries or cultivators as bhumidhars. It is the claim of the appellants that under this section they have been given rights of a bhumidhar in respect of the properties which are now sought to be sold by the respondents in execution. Section 199 provides that no bhumidhar shall be liable to ejectment.13. We have not referred very elaborately to the provisions of the Abolition Act or its scheme, because these have been considered in the previous judgment of this Court in Rana Sheo Ambar Singhs case. (1962) 2 SCR 441 = (AIR 1961 SC 1790 ). It is enough to state that no provision in the Abolition Act prohibiting the attachment and sale of the bhumidhari rights have been brought to our notice by Mr. Goyal.14. In Rana Sheo Ambar Singhs case. (1962) 2 SCR 441 = (AIR 1961 SC 1790 ) the facts were briefly as follows. The proprietor of an estate had executed a simple mortgage of his proprietary interest in the estate consisting of 67 villages to the Allahabad Bank Ltd. The Bank obtained a decree and while execution proceedings were pending, the Zamindari Abolition Act was passed by virtue of which the estate vested in the State and, consequently, theBank could no longer sell the rights of the proprietor in the 67 villages, mortgaged to it. The Bank made an application to the executing Court to realise the amounts due to it by proceeding against the rights of theas remained in him after the coming into force of the Abolition Act. One of the rights of thewhich were sought to be proceeded against was the bhumidhari right created under S. 18 of the Abolition Act. The case of the Bank was that the Judgment debtors proprietary rights in grove land and sir and khudkast lands had been continued under S. 18 of the Abolition Act and that, in any event, they constituted substituted security in place of the original proprietary rights mortgaged. The judgment debtor raised objections to execution being taken against his bhumidhari rights. The High Court upheld the view of the executing Court that execution could proceed against the bhumidhari rights. This Court reversed the judgment of the High Court and held that the proprietary rights in sir, khudkast lands and groves vested in the State on the issue of a notification under S. 4. This conclusion was reached after rejecting the contention of thethat the proprietary rights in sir, khudkast and grove lands did not vest in the State and that those rights were continued in the landlord under S. 18. This Court further held that the Legislature was creating a new right under S. 18 and the old proprietary right in sir, khudkast and intermediaries grove land had already vested in the State under S. 6, and further observed, at p. 448 (of SCR) = (at p. 1793 of AIR)are of opinion that the proprietary rights in sir and khudkasht land and in grove land have vested in the State and what is conferred on the intermediary by S. 18 is a new right altogether which he never had and which could not therefore have been mortgaged inthe later part of the judgment it was further held that the bhumidhari rights created under S. 18 are not compensation and that they are special rights conferred on the intermediary by virtue of his cultivatory possession of lands comprised therein and that thecannot enforce his rights under the mortgage by sale of the bhumidhari rights created in favour of the landlord uncler S. 18, so far as sir, grove land and khudkasht lands are concerned and that he can only follow the compensation money under S. 6 (h); the Court finally rejected the contention that bhumidhari rights can be followed as substituted security.15. It will be seen that in the decision cited above this Court was considering the rights of a mortgagee as such to proceed against the bhumidhari rights and it was in that connection, in view of the specific provision under S. 6 (h) of the Act and the nature of the new rights created under S. 18, that this Court held that the mortgagee was not entitled to levy execution against the bhumidhari rights. The said decision also lays down that the bhumidhari rights granted under S. 18 were new rights created by the legislature and the old proprietary right in the land had already vested under Section 6 in the State. It is also clear from the said decision that bhumidhari rights created under S.18 are not compensation and that they are special rights conferred on the intermediary by virtue of his cultivator possession of the lands comprised therein and bhumidhari rights cannot also be considered as substituted security. The point to be noted, and which has been emphasised in that decision, is that all proprietary rights in the land had vested in the State and that no part of the proprietary rights remained in the landlord after the vesting of the estate in the State. It is further to be seen from that decision that the bhumidhari rights are no part of proprietary rights which the landlord had, prior to vesting.16. In Krishna Prasads case, (1962) Supp 3 SCR 564 = (AIR 1962 SC 1464 ) the question that arose for consideration was whether under the Bihar Land Reforms Act, 1950 (hereinafter called the Bihar Act) it was open to aholder of an estate which had vested in the State to levy execution personally against the mortgagor by attachment and sale of other properties of the mortgagor. It was held by this Court, after a review of the provisions of the Bihar Act which were more or less substantially the same as those of the Abolition Act, that the compensation payable on acquisition of a mortgaged estate had been made a kind of substituted security against which the mortgage claim could be enforced under the Bihar Act. It was further held that execution, by way of a personal decree, could only be done eventually if the realisation from the compensation amount was found insufficient to satisfy the decree.17. We may also refer to the decision of this Court in Shivashankar Prasad Sah v. Baikunth Nath Singh, Civil Appeal No. 368 of 1966, D/= (reported in AIR l969 SC 971). That decision had, again, to deal with the rights of a mortgagee decree holder to proceed against the Bakasht lands of the judgment debtors and that right had to be decided under the Bihar Act. Section 6 of this Act, corresponds more or less to Section 18 of the Abolition Act. In dealing with the scheme of the Bihar Act and in particular, the effect of Section 6 this CourtSections 3, 4 and 6 together, it follows that all Estates notified under Section 3 vest in the State free of all encumbrances. The quondam proprietors andof those Estates lose all interests in those Estates. As proprietors they retain no interest in respect of them whatsoever. But in respect of the lands enumerated in Section 6 the State settled on them the lights of raiyats. Though in fact the vesting of the Estates and the deemed settlement of raiyats in respect at certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates m the State absolutely, and free of all encumbrances. Then followed the deemed settlement by the State of raiyats rights on the quondam proprietors. Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within Sectionthis Court held that theholders only remedy was to establish their claim under the Bihar Act and get compensation and that they cannot levy execution against the Bakasht lands.18.In our opinion, none of the decisions referred to above, assists the appellants. Those decisions were directly concerned with the rights of the mortgagees as such to levy execution either as against the bhumidhari rights or personally against the mortgagor or against his other properties. The right to levy execution was claimed by theas mortgagees after the estate mortgaged to them had vested in the State, under the relevant Acts. Under those circumstances,this Court held that themortgagees remedy was only to proceed against the compensation money as provided under the material provisions of the statute governing the same. None of those decisions had occasion to consider the question that now arises for consideration before us, viz., the rights of aunder the Encumbered Estates Act.Act.19. We have already referred to the nature of the decree that has been obtained by the respondents. Though at an earlier stage they were mortgagees, it was only a simple money decree that was granted to them under Section 14 (7) of the Encumbered Estates Act and their rights as against the mortgage securities had been extinguished under S. 18 of the Encumbered Estates Act. In this view, S. 6 (h) of the Abolition Act, relied on by Mr. Goyal, does not assist him. It is no doubt true that the decree obtained by the respondents shall not be executable except under the provisions of the Encumbered Estates Act. The nature and extent of the property liable to attachment and sale in satisfaction of the debts due to the respondent, as required under Section 19 (2) (b) of the Encumbered Estates Act have all been furnished in the decree granted under Section 14 (7) by the Special Judge and transmitted to the Collector under Section 19. Therefore, when the respondents approached the Assistant Collector on May 15, 1959 with an application to recover their debts from the bhumidhari rights of the appellants, they were only in the position of holders of simple money decrees. If so, execution can be levied normally from any property or rights which are liable to be attached or sold unless there is any prohibition imposed by the statue. Section 18, after extinguishing the rights in the property that may have been held under a mortgage or security, specifically provides that where any decree is given by the Special Judge they are in substitution of the original rights of a mortgagee or security holder and thehas got the right to recover the amount of the decree in the manner and to the extent prescribed. Section 24 gives a right to theto recover their dues from the property of a debtor other than proprietary rights in land. Therefore, the question is whether the bhumidhari rights conferred, on the appellants under Section 18 of the Abolition Act are property other than proprietary rights in land. If they are rights other than proprietary rights, they can be proceeded against under Section 24 read with Section 18 of the Encumbered Estates Act.20. The decisions of this Court, referred to above, clearly lay down that the proprietary rights of the landlord in the land vest in the State on the passing of the relevant Abolition Acts. It has also been emphasised in Rana Sheo Ambar Singhs Case, (1962) 2 SCR 441 = (AIR 1961 SC 1790 ) and as is also clear from Section 6 of the Abolition Actthat all rights, title and interest of all the intermediaries in every estate shall cease and be vested in the State, on the issue of a notification under Section 4 of the Abolition Act. If so, it follows that after the estate vested in the State, the appellants had no proprietary rights left in them; and the bhumidhari rights, as held by this Court, being new rights created for the first time in favour of the appellants under Section 18 of the Abolition Act and not proprietary rights, the respondents are entitled to proceed against those rights under Section 24 of the Encumbered Estates Act.21.Mr. Goyal next urged that the bhumidhari rights have not been mentioned in the decree granted under S. 14 (7) nor have they been reported by the Special Judge under Section 19 (2) as being liable to attachment and sale as is necessary under Section 24.it is that these rights, as such, have not been mentioned. But a perusal of Section19 (2) (b) clearly shows that it was not necessary that the interest or rights of the debtor should be mentioned in the decree, because the requirement is only regarding the nature and extent of the property and that has been mentioned in the decree granted in favour of the respondents by the Special Judge under Section 14 (7), and it has also been reported to the Collector under Section 19 (2). If so, the requirements of Sections 19 and 24 have been complied with. Hence it follows that this contention of Mr. Goyal cannot be accepted. There is also another reason for rejecting the said contention. Bhumidhari rights have been created in favour of the appellants only on July 1, 1952, the date of vesting, on the issue of a notification under Section 4 of the Abolition Act, whereas the amended decree in favour of the respondents has been passed under Section 14 (7) as early as January 23, 1938. When the Encumbered Estates Act permits the respondents to levy execution against the property of the debtor other than proprietary rights in land and when there is no prohibition in the Abolition Act against execution of decrees obtained under the Encumbered Estates Act against such rights, it follows that the decreeThe further question that arises is whether the respondents are entitled to levy execution against the trees in the possession of the appellants in execution of their decree.respondents.23. Section 3 (26) of the Abolition Act states that the words and expressions, mentioned therein and which have not been defined in that Act but used in the U.P Tenancy Act, 1939 shall have the meaning assigned to them in the latter Act. Two. among the various expressions referred to in Section 3 (26) are grove andTherefore, we have to look into the U. P. Tenancy Act to find out the meaning of the expression grove. Section 3 (6) of the U. P. Tenancy Act, 1939 (U. P. Act XVII of 1939) defines the expression;3 (6).means any specific piece of land in a mahal or mahals having trees planted thereon in such numbers that they preclude or when full grown will preclude the land or any considerable portion thereof from being used primarily for any other purposes and the trees on such land constitute a grove."From the above it will be seen that grove is something different frombecause the definition says that the trees on such land, viz,constitute a grove. Section 6 of the Abolition Act dealing with the consequences of the vesting of an estate in the State, among other things states in Clause (a):"6 (a) all rights, title and interest of all thein every estate in such area including land (cultivable or barren),forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds,ferries, pathways, abadi, sites hats, bazars and melas (other than hats, bazars and melas held upon land to which Clauses (a) to (c) of(1) of Section 18 apply), and(ii) in allin such estates 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) referred to above deals with the grove lands and trees separately. Thereferred to above, will be thedefined in Section 3(6) of the U.P. Tenancy Act Clause (a) also refers to the right title and interest of intermediaries in trees ceasing and vesting in the State. From among the trees, such of the trees as constitute a grove have been excluded from the operation of Clause (a) of Section 6. Therefore, the excluded category of trees forming the grove cannot be considered to have vested in the State on the abolition of the estates. Section 18, which creates bhumidhari rights deals, among other items with "intermediarys grove." The expression "intermediarys grove," is defined in Section 3 (13) of the Abolition Act asheld or occupied by an intermediary as such. We do not find any material on record to draw an inference that the appellant raised any contention that the trees constituted an intermediarys grove.24. From what is stated above, it will be seen that the trees constituting the grove have not vested in the State and therefore they could not have formed the subject of creation of bhumidhari rights under Section 18. Therefore the trees constituting the grove, being the debtors property, are liable to be proceeded with in execution under Section 24 of the Encumbered Estates Act. Even if it is to be held that the appellants have got bhumidhari rights over the trees constituting the grove, as already held by us these rights can be proceeded with under Section 24 of the Encumbered EstatesAct. Therefore, from either point of view, the trees constituting the grove are liable to be proceeded against for realisation of the decree by the respondents. | 0 | 6,926 | 7,703 | ### Instruction:
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not necessary that the interest or rights of the debtor should be mentioned in the decree, because the requirement is only regarding the nature and extent of the property and that has been mentioned in the decree granted in favour of the respondents by the Special Judge under Section 14 (7), and it has also been reported to the Collector under Section 19 (2). If so, the requirements of Sections 19 and 24 have been complied with. Hence it follows that this contention of Mr. Goyal cannot be accepted. There is also another reason for rejecting the said contention. Bhumidhari rights have been created in favour of the appellants only on July 1, 1952, the date of vesting, on the issue of a notification under Section 4 of the Abolition Act, whereas the amended decree in favour of the respondents has been passed under Section 14 (7) as early as January 23, 1938. When the Encumbered Estates Act permits the respondents to levy execution against the property of the debtor other than proprietary rights in land and when there is no prohibition in the Abolition Act against execution of decrees obtained under the Encumbered Estates Act against such rights, it follows that the decree holders-respondents are entitled to proceed against the bhumidhari rights and therefore the appellate order of the Additional Commissioner dated March 24, 1965 and the revisional order of the Board of Revenue dated October 15, 1965 upholding the right of the respondents in this regard are correct.22. The further question that arises is whether the respondents are entitled to levy execution against the trees in the possession of the appellants in execution of their decree. No doubt, the general objection that was taken by the appellants before the Assistant Collector was that the grove formed part of the sir property and therefore the question of their being auctioned does not arise and that the groves do not form part of the list mentioned in the decree passed by the Special Judge. On the other hand according to the respondents, the trees never vested in the state under the Abolition Act and as the appellants continued to be the owners of the same, execution can be levied against the trees. The contention of the appellants that the trees have not been mentioned in the list need not detain us because the amended decree passed by the special Judge clearly refers to trees standing on the lands described in the schedules. Then the question is whether the trees belong to the respondents.23. Section 3 (26) of the Abolition Act states that the words and expressions, mentioned therein and which have not been defined in that Act but used in the U.P Tenancy Act, 1939 shall have the meaning assigned to them in the latter Act. Two. among the various expressions referred to in Section 3 (26) are grove and grove-holder. Therefore, we have to look into the U. P. Tenancy Act to find out the meaning of the expression grove. Section 3 (6) of the U. P. Tenancy Act, 1939 (U. P. Act XVII of 1939) defines the expression grove-land as follows:";3 (6). "grove-land" means any specific piece of land in a mahal or mahals having trees planted thereon in such numbers that they preclude or when full grown will preclude the land or any considerable portion thereof from being used primarily for any other purposes and the trees on such land constitute a grove."From the above it will be seen that grove is something different from grove-land because the definition says that the trees on such land, viz, grove-land, constitute a grove. Section 6 of the Abolition Act dealing with the consequences of the vesting of an estate in the State, among other things states in Clause (a):"6 (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 (other than hats, bazars and melas held upon land to which Clauses (a) to (c) of sub-section (1) of Section 18 apply), and(ii) in all sub-soil in such estates 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."Clause (a) referred to above deals with the grove lands and trees separately. The grove-land referred to above, will be the grove-land defined in Section 3(6) of the U.P. Tenancy Act Clause (a) also refers to the right title and interest of intermediaries in trees ceasing and vesting in the State. From among the trees, such of the trees as constitute a grove have been excluded from the operation of Clause (a) of Section 6. Therefore, the excluded category of trees forming the grove cannot be considered to have vested in the State on the abolition of the estates. Section 18, which creates bhumidhari rights deals, among other items with "intermediarys grove." The expression "intermediarys grove," is defined in Section 3 (13) of the Abolition Act as grove-land held or occupied by an intermediary as such. We do not find any material on record to draw an inference that the appellant raised any contention that the trees constituted an intermediarys grove.24. From what is stated above, it will be seen that the trees constituting the grove have not vested in the State and therefore they could not have formed the subject of creation of bhumidhari rights under Section 18. Therefore the trees constituting the grove, being the debtors property, are liable to be proceeded with in execution under Section 24 of the Encumbered Estates Act. Even if it is to be held that the appellants have got bhumidhari rights over the trees constituting the grove, as already held by us these rights can be proceeded with under Section 24 of the Encumbered Estates Act.
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Case, (1962) 2 SCR 441 = (AIR 1961 SC 1790 ) and as is also clear from Section 6 of the Abolition Actthat all rights, title and interest of all the intermediaries in every estate shall cease and be vested in the State, on the issue of a notification under Section 4 of the Abolition Act. If so, it follows that after the estate vested in the State, the appellants had no proprietary rights left in them; and the bhumidhari rights, as held by this Court, being new rights created for the first time in favour of the appellants under Section 18 of the Abolition Act and not proprietary rights, the respondents are entitled to proceed against those rights under Section 24 of the Encumbered Estates Act.21.Mr. Goyal next urged that the bhumidhari rights have not been mentioned in the decree granted under S. 14 (7) nor have they been reported by the Special Judge under Section 19 (2) as being liable to attachment and sale as is necessary under Section 24.it is that these rights, as such, have not been mentioned. But a perusal of Section19 (2) (b) clearly shows that it was not necessary that the interest or rights of the debtor should be mentioned in the decree, because the requirement is only regarding the nature and extent of the property and that has been mentioned in the decree granted in favour of the respondents by the Special Judge under Section 14 (7), and it has also been reported to the Collector under Section 19 (2). If so, the requirements of Sections 19 and 24 have been complied with. Hence it follows that this contention of Mr. Goyal cannot be accepted. There is also another reason for rejecting the said contention. Bhumidhari rights have been created in favour of the appellants only on July 1, 1952, the date of vesting, on the issue of a notification under Section 4 of the Abolition Act, whereas the amended decree in favour of the respondents has been passed under Section 14 (7) as early as January 23, 1938. When the Encumbered Estates Act permits the respondents to levy execution against the property of the debtor other than proprietary rights in land and when there is no prohibition in the Abolition Act against execution of decrees obtained under the Encumbered Estates Act against such rights, it follows that the decreeThe further question that arises is whether the respondents are entitled to levy execution against the trees in the possession of the appellants in execution of their decree.respondents.23. Section 3 (26) of the Abolition Act states that the words and expressions, mentioned therein and which have not been defined in that Act but used in the U.P Tenancy Act, 1939 shall have the meaning assigned to them in the latter Act. Two. among the various expressions referred to in Section 3 (26) are grove andTherefore, we have to look into the U. P. Tenancy Act to find out the meaning of the expression grove. Section 3 (6) of the U. P. Tenancy Act, 1939 (U. P. Act XVII of 1939) defines the expression;3 (6).means any specific piece of land in a mahal or mahals having trees planted thereon in such numbers that they preclude or when full grown will preclude the land or any considerable portion thereof from being used primarily for any other purposes and the trees on such land constitute a grove."From the above it will be seen that grove is something different frombecause the definition says that the trees on such land, viz,constitute a grove. Section 6 of the Abolition Act dealing with the consequences of the vesting of an estate in the State, among other things states in Clause (a):"6 (a) all rights, title and interest of all thein every estate in such area including land (cultivable or barren),forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds,ferries, pathways, abadi, sites hats, bazars and melas (other than hats, bazars and melas held upon land to which Clauses (a) to (c) of(1) of Section 18 apply), and(ii) in allin such estates 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) referred to above deals with the grove lands and trees separately. Thereferred to above, will be thedefined in Section 3(6) of the U.P. Tenancy Act Clause (a) also refers to the right title and interest of intermediaries in trees ceasing and vesting in the State. From among the trees, such of the trees as constitute a grove have been excluded from the operation of Clause (a) of Section 6. Therefore, the excluded category of trees forming the grove cannot be considered to have vested in the State on the abolition of the estates. Section 18, which creates bhumidhari rights deals, among other items with "intermediarys grove." The expression "intermediarys grove," is defined in Section 3 (13) of the Abolition Act asheld or occupied by an intermediary as such. We do not find any material on record to draw an inference that the appellant raised any contention that the trees constituted an intermediarys grove.24. From what is stated above, it will be seen that the trees constituting the grove have not vested in the State and therefore they could not have formed the subject of creation of bhumidhari rights under Section 18. Therefore the trees constituting the grove, being the debtors property, are liable to be proceeded with in execution under Section 24 of the Encumbered Estates Act. Even if it is to be held that the appellants have got bhumidhari rights over the trees constituting the grove, as already held by us these rights can be proceeded with under Section 24 of the Encumbered EstatesAct. Therefore, from either point of view, the trees constituting the grove are liable to be proceeded against for realisation of the decree by the respondents.
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AJAY KUMAR RATHEE Vs. SEEMA RATHEE | have to develop some interaction with the appellant-father if she wants him to play a role in her education. At the request of parties the matter was again referred to mediation but the report was one of failure and as per the learned counsel for the appellant, it became acrimonious and unpleasant in terms of the telephonic conversations, as recorded in our order dated 22.2.2022. We, thus, directed the matter to be put on the regular board in the week commencing 08.3.2022. 10. None appeared for the respondent in the pre-lunch session or in the post-lunch session. We have thus heard learned counsel for the appellant and perused the records. On analysis of the impugned judgment what transpires is that the High Court has reversed the findings of the trial Court predicated on a reasoning that the only reliable evidence was of the appellant as PW-1 against that of the respondent. 11. We are faced with the scenario of failed marriage at least since 2004, if not since 2002 i.e., 18 years have passed and thus the chances of any reconciliation are impossible, more so in view of what has recently transpired during the mediation process. 12. Learned counsel for the appellant submits that dehors the divorce on ground of desertion, what he pleads now is that in any case a decree of divorce is liable to be granted on account of irretrievable breakdown of marriage by this Court invoking the jurisdiction under Article 142 of the Constitution of India. 13. Learned counsel has referred to a number of judgments (Sivasankaran V. Santhimeenal, C.A. No.4984-4985) in this behalf to advance the proposition that where the parties have been living apart from a long period of time and all endeavor to save the marriage has failed, the Courts can dissolve a marriage as irretrievably broken down. 14. We have also taken note of Sukhendu Das V. Rita Mukherjee (2017) 9 SCC 632, (2017) 4 SCC (Civ) 714, in which it is concluded that it is not open for the wife to contend that unless both parties consent, the exercise of jurisdiction under Article 142 of the Constitution of India for dissolving a marriage may not be appropriate. 15. In the present case, however, we have noticed the stand of the respondent in earlier proceedings that she was not disagreeable to the grant of a decree of divorce on account of irretrievable breakdown of marriage, without admitting the allegations made by the appellant against her in the divorce petition. This is of course subject to the two caveats referred to aforesaid. 16. The endeavor to settle the matter has not succeeded right from the family Court which took an active approach to endeavor reconciliation, but unsuccessfully. 17. The legal position emanating from various judgments does say that the Supreme Court can in special circumstances pass appropriate orders to do justice to the parties in a given factual scenario by invoking the powers under Article 142 of the Constitution of India and this was to the extent of granting a decree of divorce by mutual consent. 18. We are unequivocally of the view that nothing really subsists in this marriage except mutual accrimony. It is not even possible for the parties to sit across the table or to even talk over telephone to come to a reasonable understanding. There remains no doubt about irretrievable breakdown of marriage in the facts of the present case. Thus, we are inclined to exercise our jurisdiction under Article 142 of the Constitution of India by granting a decree of divorce on the said ground. 19. The only question would be as to what should be the terms and conditions of divorce, looking to the financial status of the parties. 20. We have perused the affidavit of the respondent which states that she has practically no money and means, and lives with her brother who is supporting her and her daughters education. 21. We have also perused the affidavit of the appellant with documents insofar as his financial status is concerned. The appellant is working as a Wireless Operator in the Indian Coast Guard and his monthly income after deduction is Rs.42,492/-. However, amongst the deductions, he has claimed is a voluntary GPF subscription of Rs.35,000/- which cannot be considered for the purposes of determining the amounts in the hands of the appellant. If that amount is added, the total emoluments of the appellant would amount to about Rs.78,000/- per month. 22. The appellant is about 52 years of age and thus would continue for the next few years till the age of 57 years. 23. The appellant has also stated that he has 1/8th share along with his mother, three sisters and four brothers in the joint ancestral agricultural land measuring 3.5 acres approximately in village Rajpura, Tehsil Gannaur, District Sonipat, Haryana, which has not been partitioned. Similarly he has 1/8th share in the joint ancestral house measuring 250 Gaj approximately in the same village. He has also mentioned that he owns a house measuring 107 Gaj in Gannaur, District Sonipat, Haryana wherein his mother is presently residing, and that he owns a plot measuring 100 Gaj in the same district. The appellant has three saving bank accounts which show balances of a little over Rs.9,00,000/-. The interim maintenance is stated to have been paid till September, 2021 as per the aforesaid affidavit. 24. In so far as the daughters expenses for education and marriage are concerned, it appears from her approach that she does not want to maintain any relationship with the appellant and is about 20 years of age. She is entitled to choose her own path but then cannot demand from the appellant the amount towards the education. We, thus, hold that the daughter is not entitled to any amount but while determining the amount to be paid as permanent alimony to the respondent, we are still taking care to see that if the respondent so desires to support the daughter, funds are available. | 1[ds]10. None appeared for the respondent in the pre-lunch session or in the post-lunch session. We have thus heard learned counsel for the appellant and perused the records. On analysis of the impugned judgment what transpires is that the High Court has reversed the findings of the trial Court predicated on a reasoning that the only reliable evidence was of the appellant as PW-1 against that of the respondent.11. We are faced with the scenario of failed marriage at least since 2004, if not since 2002 i.e., 18 years have passed and thus the chances of any reconciliation are impossible, more so in view of what has recently transpired during the mediation process.14. We have also taken note of Sukhendu Das V. Rita Mukherjee (2017) 9 SCC 632, (2017) 4 SCC (Civ) 714, in which it is concluded that it is not open for the wife to contend that unless both parties consent, the exercise of jurisdiction under Article 142 of the Constitution of India for dissolving a marriage may not be appropriate.15. In the present case, however, we have noticed the stand of the respondent in earlier proceedings that she was not disagreeable to the grant of a decree of divorce on account of irretrievable breakdown of marriage, without admitting the allegations made by the appellant against her in the divorce petition. This is of course subject to the two caveats referred to aforesaid.16. The endeavor to settle the matter has not succeeded right from the family Court which took an active approach to endeavor reconciliation, but unsuccessfully.17. The legal position emanating from various judgments does say that the Supreme Court can in special circumstances pass appropriate orders to do justice to the parties in a given factual scenario by invoking the powers under Article 142 of the Constitution of India and this was to the extent of granting a decree of divorce by mutual consent.18. We are unequivocally of the view that nothing really subsists in this marriage except mutual accrimony. It is not even possible for the parties to sit across the table or to even talk over telephone to come to a reasonable understanding. There remains no doubt about irretrievable breakdown of marriage in the facts of the present case. Thus, we are inclined to exercise our jurisdiction under Article 142 of the Constitution of India by granting a decree of divorce on the said ground.20. We have perused the affidavit of the respondent which states that she has practically no money and means, and lives with her brother who is supporting her and her daughters education.21. We have also perused the affidavit of the appellant with documents insofar as his financial status is concerned. The appellant is working as a Wireless Operator in the Indian Coast Guard and his monthly income after deduction is Rs.42,492/-. However, amongst the deductions, he has claimed is a voluntary GPF subscription of Rs.35,000/- which cannot be considered for the purposes of determining the amounts in the hands of the appellant. If that amount is added, the total emoluments of the appellant would amount to about Rs.78,000/- per month.22. The appellant is about 52 years of age and thus would continue for the next few years till the age of 57 years.23. The appellant has also stated that he has 1/8th share along with his mother, three sisters and four brothers in the joint ancestral agricultural land measuring 3.5 acres approximately in village Rajpura, Tehsil Gannaur, District Sonipat, Haryana, which has not been partitioned. Similarly he has 1/8th share in the joint ancestral house measuring 250 Gaj approximately in the same village. He has also mentioned that he owns a house measuring 107 Gaj in Gannaur, District Sonipat, Haryana wherein his mother is presently residing, and that he owns a plot measuring 100 Gaj in the same district. The appellant has three saving bank accounts which show balances of a little over Rs.9,00,000/-. The interim maintenance is stated to have been paid till September, 2021 as per the aforesaid affidavit.24. In so far as the daughters expenses for education and marriage are concerned, it appears from her approach that she does not want to maintain any relationship with the appellant and is about 20 years of age. She is entitled to choose her own path but then cannot demand from the appellant the amount towards the education. We, thus, hold that the daughter is not entitled to any amount but while determining the amount to be paid as permanent alimony to the respondent, we are still taking care to see that if the respondent so desires to support the daughter, funds are available. | 1 | 1,781 | 842 | ### 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:
have to develop some interaction with the appellant-father if she wants him to play a role in her education. At the request of parties the matter was again referred to mediation but the report was one of failure and as per the learned counsel for the appellant, it became acrimonious and unpleasant in terms of the telephonic conversations, as recorded in our order dated 22.2.2022. We, thus, directed the matter to be put on the regular board in the week commencing 08.3.2022. 10. None appeared for the respondent in the pre-lunch session or in the post-lunch session. We have thus heard learned counsel for the appellant and perused the records. On analysis of the impugned judgment what transpires is that the High Court has reversed the findings of the trial Court predicated on a reasoning that the only reliable evidence was of the appellant as PW-1 against that of the respondent. 11. We are faced with the scenario of failed marriage at least since 2004, if not since 2002 i.e., 18 years have passed and thus the chances of any reconciliation are impossible, more so in view of what has recently transpired during the mediation process. 12. Learned counsel for the appellant submits that dehors the divorce on ground of desertion, what he pleads now is that in any case a decree of divorce is liable to be granted on account of irretrievable breakdown of marriage by this Court invoking the jurisdiction under Article 142 of the Constitution of India. 13. Learned counsel has referred to a number of judgments (Sivasankaran V. Santhimeenal, C.A. No.4984-4985) in this behalf to advance the proposition that where the parties have been living apart from a long period of time and all endeavor to save the marriage has failed, the Courts can dissolve a marriage as irretrievably broken down. 14. We have also taken note of Sukhendu Das V. Rita Mukherjee (2017) 9 SCC 632, (2017) 4 SCC (Civ) 714, in which it is concluded that it is not open for the wife to contend that unless both parties consent, the exercise of jurisdiction under Article 142 of the Constitution of India for dissolving a marriage may not be appropriate. 15. In the present case, however, we have noticed the stand of the respondent in earlier proceedings that she was not disagreeable to the grant of a decree of divorce on account of irretrievable breakdown of marriage, without admitting the allegations made by the appellant against her in the divorce petition. This is of course subject to the two caveats referred to aforesaid. 16. The endeavor to settle the matter has not succeeded right from the family Court which took an active approach to endeavor reconciliation, but unsuccessfully. 17. The legal position emanating from various judgments does say that the Supreme Court can in special circumstances pass appropriate orders to do justice to the parties in a given factual scenario by invoking the powers under Article 142 of the Constitution of India and this was to the extent of granting a decree of divorce by mutual consent. 18. We are unequivocally of the view that nothing really subsists in this marriage except mutual accrimony. It is not even possible for the parties to sit across the table or to even talk over telephone to come to a reasonable understanding. There remains no doubt about irretrievable breakdown of marriage in the facts of the present case. Thus, we are inclined to exercise our jurisdiction under Article 142 of the Constitution of India by granting a decree of divorce on the said ground. 19. The only question would be as to what should be the terms and conditions of divorce, looking to the financial status of the parties. 20. We have perused the affidavit of the respondent which states that she has practically no money and means, and lives with her brother who is supporting her and her daughters education. 21. We have also perused the affidavit of the appellant with documents insofar as his financial status is concerned. The appellant is working as a Wireless Operator in the Indian Coast Guard and his monthly income after deduction is Rs.42,492/-. However, amongst the deductions, he has claimed is a voluntary GPF subscription of Rs.35,000/- which cannot be considered for the purposes of determining the amounts in the hands of the appellant. If that amount is added, the total emoluments of the appellant would amount to about Rs.78,000/- per month. 22. The appellant is about 52 years of age and thus would continue for the next few years till the age of 57 years. 23. The appellant has also stated that he has 1/8th share along with his mother, three sisters and four brothers in the joint ancestral agricultural land measuring 3.5 acres approximately in village Rajpura, Tehsil Gannaur, District Sonipat, Haryana, which has not been partitioned. Similarly he has 1/8th share in the joint ancestral house measuring 250 Gaj approximately in the same village. He has also mentioned that he owns a house measuring 107 Gaj in Gannaur, District Sonipat, Haryana wherein his mother is presently residing, and that he owns a plot measuring 100 Gaj in the same district. The appellant has three saving bank accounts which show balances of a little over Rs.9,00,000/-. The interim maintenance is stated to have been paid till September, 2021 as per the aforesaid affidavit. 24. In so far as the daughters expenses for education and marriage are concerned, it appears from her approach that she does not want to maintain any relationship with the appellant and is about 20 years of age. She is entitled to choose her own path but then cannot demand from the appellant the amount towards the education. We, thus, hold that the daughter is not entitled to any amount but while determining the amount to be paid as permanent alimony to the respondent, we are still taking care to see that if the respondent so desires to support the daughter, funds are available.
### Response:
1
### Explanation:
10. None appeared for the respondent in the pre-lunch session or in the post-lunch session. We have thus heard learned counsel for the appellant and perused the records. On analysis of the impugned judgment what transpires is that the High Court has reversed the findings of the trial Court predicated on a reasoning that the only reliable evidence was of the appellant as PW-1 against that of the respondent.11. We are faced with the scenario of failed marriage at least since 2004, if not since 2002 i.e., 18 years have passed and thus the chances of any reconciliation are impossible, more so in view of what has recently transpired during the mediation process.14. We have also taken note of Sukhendu Das V. Rita Mukherjee (2017) 9 SCC 632, (2017) 4 SCC (Civ) 714, in which it is concluded that it is not open for the wife to contend that unless both parties consent, the exercise of jurisdiction under Article 142 of the Constitution of India for dissolving a marriage may not be appropriate.15. In the present case, however, we have noticed the stand of the respondent in earlier proceedings that she was not disagreeable to the grant of a decree of divorce on account of irretrievable breakdown of marriage, without admitting the allegations made by the appellant against her in the divorce petition. This is of course subject to the two caveats referred to aforesaid.16. The endeavor to settle the matter has not succeeded right from the family Court which took an active approach to endeavor reconciliation, but unsuccessfully.17. The legal position emanating from various judgments does say that the Supreme Court can in special circumstances pass appropriate orders to do justice to the parties in a given factual scenario by invoking the powers under Article 142 of the Constitution of India and this was to the extent of granting a decree of divorce by mutual consent.18. We are unequivocally of the view that nothing really subsists in this marriage except mutual accrimony. It is not even possible for the parties to sit across the table or to even talk over telephone to come to a reasonable understanding. There remains no doubt about irretrievable breakdown of marriage in the facts of the present case. Thus, we are inclined to exercise our jurisdiction under Article 142 of the Constitution of India by granting a decree of divorce on the said ground.20. We have perused the affidavit of the respondent which states that she has practically no money and means, and lives with her brother who is supporting her and her daughters education.21. We have also perused the affidavit of the appellant with documents insofar as his financial status is concerned. The appellant is working as a Wireless Operator in the Indian Coast Guard and his monthly income after deduction is Rs.42,492/-. However, amongst the deductions, he has claimed is a voluntary GPF subscription of Rs.35,000/- which cannot be considered for the purposes of determining the amounts in the hands of the appellant. If that amount is added, the total emoluments of the appellant would amount to about Rs.78,000/- per month.22. The appellant is about 52 years of age and thus would continue for the next few years till the age of 57 years.23. The appellant has also stated that he has 1/8th share along with his mother, three sisters and four brothers in the joint ancestral agricultural land measuring 3.5 acres approximately in village Rajpura, Tehsil Gannaur, District Sonipat, Haryana, which has not been partitioned. Similarly he has 1/8th share in the joint ancestral house measuring 250 Gaj approximately in the same village. He has also mentioned that he owns a house measuring 107 Gaj in Gannaur, District Sonipat, Haryana wherein his mother is presently residing, and that he owns a plot measuring 100 Gaj in the same district. The appellant has three saving bank accounts which show balances of a little over Rs.9,00,000/-. The interim maintenance is stated to have been paid till September, 2021 as per the aforesaid affidavit.24. In so far as the daughters expenses for education and marriage are concerned, it appears from her approach that she does not want to maintain any relationship with the appellant and is about 20 years of age. She is entitled to choose her own path but then cannot demand from the appellant the amount towards the education. We, thus, hold that the daughter is not entitled to any amount but while determining the amount to be paid as permanent alimony to the respondent, we are still taking care to see that if the respondent so desires to support the daughter, funds are available.
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Johri Lal (H.U.F.) Vs. Commissioner of Income Tax, Uttar Pradesh | Assistant Commissioner agreeing with Income-tax Officer came to the conclusion that the required notice had been served within time and therefore the proceedings taken under Section 34 (1) (b) were valid proceedings. Against this order of the Appellate Assistant Commissioner the assessee went up in second appeal to the income-tax Appellate Tribunal. The Tribunal not only upheld the order of the Appellate Assistant Commissioner but upheld that order on an alternative ground namely that the impugned proceedings could be justified under Section 34 (1) (a). Thereafter at the instance of the assessee the Tribunal submitted the following questions soliciting the opinion of the High Court.(1) Whether the reopening of the case by the Income-tax Officer by the issue of a notice under Section 34 of the Indian Income-tax Act fell within the ambit of Section 34 (1) (a) of the Act or under Section 34 (1) (b) of the Act?(2) Whether the service of the notice under Section 34 of the Indian Income-tax Act by affixture on the residential house of the assessee was legal and proper?(3) Whether the amount of Rupees 62, 500/- was liable to tax under Section 4 (1) (b) (iii) of the Indian Income-tax Act?3. The High Court answering the first question, came to the conclusion that the notice in question was a valid notice and it was a notice under Section 34 (1) (a). It answered the second question in the negative and in favour of the assessee. It answered the third question in the affirmative and in favour of the Revenue. It came to the conclusion that the proceedings under Section 34 (1) (b) were barred by time but it agreed with the Tribunal that the proceedings were validly initiated under section 34 (1) (a).4. Our answer to the third question depends upon our answer to the first question. If we come to the conclusion that the proceedings were not validly initiated under Section 34 (1) (a) then we will have to answer the third question also in favour of the assessee.5. Before proceedings under Section 34 (1) (a) could be validly initiated the Income-tax Officer must have reasons to believe that by reason of the omission or failure on the part of the assessee to make a return of his income under Section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits and gains chargeable to Income-tax, have escaped assessment for that year, or have been unassessed, or assessed at too low a rate, or have been made a subject matter of the excessive relief under the Act, or excessive loss or depreciation allowance have been computed.The formation of the required opinion by the Income-tax Officer is a condition precedent. Without formation of such an opinion he will not have jurisdiction to initiate proceedings under Section 34 (1) (a). The fulfilment of this condition is not a mere formality but it is mandatory. The failure to fulfil that condition would vitiate the entire proceedings. As held by this court in Sheo Nath Singh v. Appellate Assistant Commissioner of Income-tax, (Central), Calcutta, 82 ITR 147 = (AIR 1971 SC 2451 ), the Income-tax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied, does not exist or is not material or relevant to the belief required by this section. It is true that the courts will not go into the sufficiency of the reasons which persuaded the Income-tax Officer to initiate proceedings under Section 34 (1) (a) of the Act but the courts will examine the relevancy of the reasons which persuaded the Income-tax Officer to take proceedings under Section 34 (1) (a). The formation of the required belief is not the only requirement. The Income-tax Officer is further required by S. 34 to record his reasons for taking action under Section 34 (1) (a) and obtain the sanction of the Central Board of Revenue or the Commissioner, as the case may be.6. In the instant case, as seen earlier, the Income-tax Officer did not choose to proceed under S. 34 (1) (a). Consequently, he may or may not have recorded the reasons as required by this section nor do we know whether those reasons were submitted to the required authority and his sanction obtained on the basis of those reasons. This court also has ruled that the Commissioner or the Board of Revenue, while grantnig sanction will have to examine the reasons given by the Income-tax Officer and come to an independent decision and the authority in question should not act mechanically. From the material on record there is no basis to hold that those requirements had been fulfilled. Possibly they could not have been fulfilled because the Income-tax Officer proceeded only on the basis of S. 34 (1) (b) and not on the basis of section 34 (1) (a). He himself had declined to proceed on the basis of Section 34 (1) (a) for whatever reason it may be. Therefore, it was not open to the Tribunal to justify the proceedings taken by the Income-tax Officer under Section 34 (1) (a). The Tribunal could not have initiated proceedings under Section 34 (1) (a). If the Tribunal converts the proceedings into one under Section 34 (1) (a) then the conditions prescribed in Section 34 (l) (a) cannot be satisfied.7. We are of the opinion that the Tribunal erred in upholding the impugned proceedings under S. 34 (1) (a). The High Court also did not address itself to this question properly.8. For the reasons mentioned above this appeal is allowed. The answers given by the High Court on questions 1 and 3 are discharged and in their place we answer question No. 1, that the proceedings taken were invalid. Consequently, we answer the third question in the negative and in favour of the assessee. The Revenue to pay the costs of the assessee both in this court as well as in the High Court. | 1[ds]4. Our answer to the third question depends upon our answer to the first question. If we come to the conclusion that the proceedings were not validly initiated under Section 34 (1) (a) then we will have to answer the third question also in favour of the assessee.In the instant case, as seen earlier, theOfficer did not choose to proceed under S. 34 (1) (a). Consequently, he may or may not have recorded the reasons as required by this section nor do we know whether those reasons were submitted to the required authority and his sanction obtained on the basis of those reasons. This court also has ruled that the Commissioner or the Board of Revenue, while grantnig sanction will have to examine the reasons given by theOfficer and come to an independent decision and the authority in question should not act mechanically. From the material on record there is no basis to hold that those requirements had been fulfilled. Possibly they could not have been fulfilled because theOfficer proceeded only on the basis of S. 34 (1) (b) and not on the basis of section 34 (1) (a). He himself had declined to proceed on the basis of Section 34 (1) (a) for whatever reason it may be. Therefore, it was not open to the Tribunal to justify the proceedings taken by theOfficer under Section 34 (1) (a). The Tribunal could not have initiated proceedings under Section 34 (1) (a). If the Tribunal converts the proceedings into one under Section 34 (1) (a) then the conditions prescribed in Section 34 (l) (a) cannot be satisfied.7. We are of the opinion that the Tribunal erred in upholding the impugned proceedings under S. 34 (1) (a). The High Court also did not address itself to this question properly.8. For the reasons mentioned above this appeal is allowed. The answers given by the High Court on questions 1 and 3 are discharged and in their place we answer question No. 1, that the proceedings taken were invalid. Consequently, we answer the third question in the negative and in favour of the assessee. The Revenue to pay the costs of the assessee both in this court as well as in the High Court. | 1 | 1,546 | 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:
Assistant Commissioner agreeing with Income-tax Officer came to the conclusion that the required notice had been served within time and therefore the proceedings taken under Section 34 (1) (b) were valid proceedings. Against this order of the Appellate Assistant Commissioner the assessee went up in second appeal to the income-tax Appellate Tribunal. The Tribunal not only upheld the order of the Appellate Assistant Commissioner but upheld that order on an alternative ground namely that the impugned proceedings could be justified under Section 34 (1) (a). Thereafter at the instance of the assessee the Tribunal submitted the following questions soliciting the opinion of the High Court.(1) Whether the reopening of the case by the Income-tax Officer by the issue of a notice under Section 34 of the Indian Income-tax Act fell within the ambit of Section 34 (1) (a) of the Act or under Section 34 (1) (b) of the Act?(2) Whether the service of the notice under Section 34 of the Indian Income-tax Act by affixture on the residential house of the assessee was legal and proper?(3) Whether the amount of Rupees 62, 500/- was liable to tax under Section 4 (1) (b) (iii) of the Indian Income-tax Act?3. The High Court answering the first question, came to the conclusion that the notice in question was a valid notice and it was a notice under Section 34 (1) (a). It answered the second question in the negative and in favour of the assessee. It answered the third question in the affirmative and in favour of the Revenue. It came to the conclusion that the proceedings under Section 34 (1) (b) were barred by time but it agreed with the Tribunal that the proceedings were validly initiated under section 34 (1) (a).4. Our answer to the third question depends upon our answer to the first question. If we come to the conclusion that the proceedings were not validly initiated under Section 34 (1) (a) then we will have to answer the third question also in favour of the assessee.5. Before proceedings under Section 34 (1) (a) could be validly initiated the Income-tax Officer must have reasons to believe that by reason of the omission or failure on the part of the assessee to make a return of his income under Section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits and gains chargeable to Income-tax, have escaped assessment for that year, or have been unassessed, or assessed at too low a rate, or have been made a subject matter of the excessive relief under the Act, or excessive loss or depreciation allowance have been computed.The formation of the required opinion by the Income-tax Officer is a condition precedent. Without formation of such an opinion he will not have jurisdiction to initiate proceedings under Section 34 (1) (a). The fulfilment of this condition is not a mere formality but it is mandatory. The failure to fulfil that condition would vitiate the entire proceedings. As held by this court in Sheo Nath Singh v. Appellate Assistant Commissioner of Income-tax, (Central), Calcutta, 82 ITR 147 = (AIR 1971 SC 2451 ), the Income-tax Officer would be acting without jurisdiction if the reason for his belief that the conditions are satisfied, does not exist or is not material or relevant to the belief required by this section. It is true that the courts will not go into the sufficiency of the reasons which persuaded the Income-tax Officer to initiate proceedings under Section 34 (1) (a) of the Act but the courts will examine the relevancy of the reasons which persuaded the Income-tax Officer to take proceedings under Section 34 (1) (a). The formation of the required belief is not the only requirement. The Income-tax Officer is further required by S. 34 to record his reasons for taking action under Section 34 (1) (a) and obtain the sanction of the Central Board of Revenue or the Commissioner, as the case may be.6. In the instant case, as seen earlier, the Income-tax Officer did not choose to proceed under S. 34 (1) (a). Consequently, he may or may not have recorded the reasons as required by this section nor do we know whether those reasons were submitted to the required authority and his sanction obtained on the basis of those reasons. This court also has ruled that the Commissioner or the Board of Revenue, while grantnig sanction will have to examine the reasons given by the Income-tax Officer and come to an independent decision and the authority in question should not act mechanically. From the material on record there is no basis to hold that those requirements had been fulfilled. Possibly they could not have been fulfilled because the Income-tax Officer proceeded only on the basis of S. 34 (1) (b) and not on the basis of section 34 (1) (a). He himself had declined to proceed on the basis of Section 34 (1) (a) for whatever reason it may be. Therefore, it was not open to the Tribunal to justify the proceedings taken by the Income-tax Officer under Section 34 (1) (a). The Tribunal could not have initiated proceedings under Section 34 (1) (a). If the Tribunal converts the proceedings into one under Section 34 (1) (a) then the conditions prescribed in Section 34 (l) (a) cannot be satisfied.7. We are of the opinion that the Tribunal erred in upholding the impugned proceedings under S. 34 (1) (a). The High Court also did not address itself to this question properly.8. For the reasons mentioned above this appeal is allowed. The answers given by the High Court on questions 1 and 3 are discharged and in their place we answer question No. 1, that the proceedings taken were invalid. Consequently, we answer the third question in the negative and in favour of the assessee. The Revenue to pay the costs of the assessee both in this court as well as in the High Court.
### Response:
1
### Explanation:
4. Our answer to the third question depends upon our answer to the first question. If we come to the conclusion that the proceedings were not validly initiated under Section 34 (1) (a) then we will have to answer the third question also in favour of the assessee.In the instant case, as seen earlier, theOfficer did not choose to proceed under S. 34 (1) (a). Consequently, he may or may not have recorded the reasons as required by this section nor do we know whether those reasons were submitted to the required authority and his sanction obtained on the basis of those reasons. This court also has ruled that the Commissioner or the Board of Revenue, while grantnig sanction will have to examine the reasons given by theOfficer and come to an independent decision and the authority in question should not act mechanically. From the material on record there is no basis to hold that those requirements had been fulfilled. Possibly they could not have been fulfilled because theOfficer proceeded only on the basis of S. 34 (1) (b) and not on the basis of section 34 (1) (a). He himself had declined to proceed on the basis of Section 34 (1) (a) for whatever reason it may be. Therefore, it was not open to the Tribunal to justify the proceedings taken by theOfficer under Section 34 (1) (a). The Tribunal could not have initiated proceedings under Section 34 (1) (a). If the Tribunal converts the proceedings into one under Section 34 (1) (a) then the conditions prescribed in Section 34 (l) (a) cannot be satisfied.7. We are of the opinion that the Tribunal erred in upholding the impugned proceedings under S. 34 (1) (a). The High Court also did not address itself to this question properly.8. For the reasons mentioned above this appeal is allowed. The answers given by the High Court on questions 1 and 3 are discharged and in their place we answer question No. 1, that the proceedings taken were invalid. Consequently, we answer the third question in the negative and in favour of the assessee. The Revenue to pay the costs of the assessee both in this court as well as in the High Court.
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Mansaram Vs. S. P. Pathak And Others | appellant entered the premises in 1954. There have been numerous proceedings between him and the late Basantrai Sharma who let out the premises to the appellant but no one ever raised the question whether the appellant had entered the premises in contravention of clause 22(2). Till Basantrai Sharma died, no one raised the controversy about the entry of the appellant in the premises as being unauthorised or in contravention of clause 22. Basantrai Sharma in his life time tried to obtain possession of the premises from the appellant alleging grounds available to him under the Rent Control Order other than unauthorised entry. This would permit an inference that Basantrai Sharma accepted the appellant as his tenant and his tenancy did not suffer from any infirmity. After Basantrai Sharma died, her successor in interest one Smt. Usha Rani N. Sharma did not raise any controversy about the occupation of the premises by the appellant. One Mr. S.P. Pathak, a total stranger has come forward to complain about the unauthorised entry of the appellant in the premises. The unauthorised entry according to the appellant was in the year 1954. Appellant retired in 1967. Basantrai Sharma was alive in 1967. If appellant came into the premises because he was holding an office of profit, obviously Basantrai Sharma would not miss the opportunity to evict the appellant because he was otherwise also trying to do the same thing. Rent was accepted without question from the appellant by Basantrai Sharma till his death and thereafter. Could he be at this distance of time, thrown out on the ground that his initial entry was unauthorised. To slightly differently formulate the proposition, could the initial unauthorised entry, if there be any, permit a House Allotment Officer, 22 years after the entry, to evict the appellant on the short ground that he entered the premises in contravention of clause 22(2) ? Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions. But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person a who was in possession for 22 years as a tenant. In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which he has done. In such a situation, it would be open to him not to evict the appellant. In this connection, we may refer to Murlidhar Agarwal and Anr. v. State of U.P. &Ors. wherein one Ram Agyan Singh who came into possession of premises without an order of allotment in his favour as required by sec. 7(2) of the U.P. (Temporary ) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this court declined to interfere with that order. No doubt it must be confessed that sec. 7A conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to the section which enabled the District Magistrate not to evict a person found to be in unauthorised occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it is inexpedient to do so. There is no such proviso to clause 28 which confers power on the Collector to take necessary action for the purpose of securing compliance with the Rent Control Order. But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercises of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available in State of Gujarat v. Patel Raghav Natha &Ors. In that case Commissioner exercised suo motu revisional jurisdiction under sec. 211 of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction. The Commissioner exercised revisional jurisdiction one yea r after the Collector made the order which was sought to be revised. The High Court set aside the order of the Commissioner. In the appeal by State of Gujarat, this Court declined to interfere holding inter alia that the revisional power in t he absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held to be too late. This aspect must be present to the mind of House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor in interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the y ear 1954 was in contravention of clause 22(2). Having examined all the aspects of the matter, we are satisfied that the order of the House Allotment Officer suffers from numerous infirmities and is unsustainable and must be quashed and set aside as also the order of the High Court dismissing the Special Civil Application No. 1957 of 1977 preferred by the present appellant. | 1[ds]Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions. But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person a who was in possession for 22 years as a tenant. In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which he has done. In such a situation, it would be open to him not to evict the appellant. In this connection, we may refer to Murlidhar Agarwal and Anr. v. State of U.P. &Ors. wherein one Ram Agyan Singh who came into possession of premises without an order of allotment in his favour as required by sec. 7(2) of the U.P. (Temporary ) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this court declined to interfere with that order. No doubt it must be confessed that sec. 7A conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to the section which enabled the District Magistrate not to evict a person found to be in unauthorised occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it is inexpedient to do so. There is no such proviso to clause 28 which confers power on the Collector to take necessary action for the purpose of securing compliance with the Rent Control Order. But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercises of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available in State of Gujarat v. Patel Raghav Natha &Ors. In that case Commissioner exercised suo motu revisional jurisdiction under sec. 211 of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction. The Commissioner exercised revisional jurisdiction one yea r after the Collector made the order which was sought to be revised. The High Court set aside the order of the Commissioner. In the appeal by State of Gujarat, this Court declined to interfere holding inter alia that the revisional power in t he absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held to be too late. This aspect must be present to the mind of House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor in interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the y ear 1954 was in contravention of clause 22(2). Having examined all the aspects of the matter, we are satisfied that the order of the House Allotment Officer suffers from numerous infirmities and is unsustainable and must be quashed and set aside as also the order of the High Court dismissing the Special Civil Application No. 1957 of 1977 preferred by the present appellant. | 1 | 4,926 | 749 | ### Instruction:
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appellant entered the premises in 1954. There have been numerous proceedings between him and the late Basantrai Sharma who let out the premises to the appellant but no one ever raised the question whether the appellant had entered the premises in contravention of clause 22(2). Till Basantrai Sharma died, no one raised the controversy about the entry of the appellant in the premises as being unauthorised or in contravention of clause 22. Basantrai Sharma in his life time tried to obtain possession of the premises from the appellant alleging grounds available to him under the Rent Control Order other than unauthorised entry. This would permit an inference that Basantrai Sharma accepted the appellant as his tenant and his tenancy did not suffer from any infirmity. After Basantrai Sharma died, her successor in interest one Smt. Usha Rani N. Sharma did not raise any controversy about the occupation of the premises by the appellant. One Mr. S.P. Pathak, a total stranger has come forward to complain about the unauthorised entry of the appellant in the premises. The unauthorised entry according to the appellant was in the year 1954. Appellant retired in 1967. Basantrai Sharma was alive in 1967. If appellant came into the premises because he was holding an office of profit, obviously Basantrai Sharma would not miss the opportunity to evict the appellant because he was otherwise also trying to do the same thing. Rent was accepted without question from the appellant by Basantrai Sharma till his death and thereafter. Could he be at this distance of time, thrown out on the ground that his initial entry was unauthorised. To slightly differently formulate the proposition, could the initial unauthorised entry, if there be any, permit a House Allotment Officer, 22 years after the entry, to evict the appellant on the short ground that he entered the premises in contravention of clause 22(2) ? Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions. But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person a who was in possession for 22 years as a tenant. In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which he has done. In such a situation, it would be open to him not to evict the appellant. In this connection, we may refer to Murlidhar Agarwal and Anr. v. State of U.P. &Ors. wherein one Ram Agyan Singh who came into possession of premises without an order of allotment in his favour as required by sec. 7(2) of the U.P. (Temporary ) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this court declined to interfere with that order. No doubt it must be confessed that sec. 7A conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to the section which enabled the District Magistrate not to evict a person found to be in unauthorised occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it is inexpedient to do so. There is no such proviso to clause 28 which confers power on the Collector to take necessary action for the purpose of securing compliance with the Rent Control Order. But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercises of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available in State of Gujarat v. Patel Raghav Natha &Ors. In that case Commissioner exercised suo motu revisional jurisdiction under sec. 211 of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction. The Commissioner exercised revisional jurisdiction one yea r after the Collector made the order which was sought to be revised. The High Court set aside the order of the Commissioner. In the appeal by State of Gujarat, this Court declined to interfere holding inter alia that the revisional power in t he absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held to be too late. This aspect must be present to the mind of House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor in interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the y ear 1954 was in contravention of clause 22(2). Having examined all the aspects of the matter, we are satisfied that the order of the House Allotment Officer suffers from numerous infirmities and is unsustainable and must be quashed and set aside as also the order of the High Court dismissing the Special Civil Application No. 1957 of 1977 preferred by the present appellant.
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Undoubtedly, power is conferred on the Collector to see that the provisions of the Rent Control Order which disclosed a public policy are effectively implemented and if the Collector therefore, comes across information that there is a contravention, he is clothed with adequate power to set right the contravention by ejecting anyone who comes into the premises in contravention of the provisions. But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person a who was in possession for 22 years as a tenant. In such a situation, even though the House Allotment Officer was to reach an affirmative conclusion that the initial entry 22 years back was an unauthorised entry and that failure to vacate premises till 9 years after retirement was not proper, yet it was not obligatory upon him to pass a peremptory order of eviction in the manner in which he has done. In such a situation, it would be open to him not to evict the appellant. In this connection, we may refer to Murlidhar Agarwal and Anr. v. State of U.P. &Ors. wherein one Ram Agyan Singh who came into possession of premises without an order of allotment in his favour as required by sec. 7(2) of the U.P. (Temporary ) Control of Rent and Eviction Act, 1947, was permitted to retain the premises by treating his occupation lawful and this court declined to interfere with that order. No doubt it must be confessed that sec. 7A conferred power on the District Magistrate to take action against unauthorised occupation in contravention of the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, but there was a proviso to the section which enabled the District Magistrate not to evict a person found to be in unauthorised occupation, if the District Magistrate was satisfied that there has been undue delay or otherwise it is inexpedient to do so. There is no such proviso to clause 28 which confers power on the Collector to take necessary action for the purpose of securing compliance with the Rent Control Order. But as stated earlier, where power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and the reasonable exercises of power inheres its exercise within a reasonable time. This is too well established to need buttressing by a precedent. However, one is readily available in State of Gujarat v. Patel Raghav Natha &Ors. In that case Commissioner exercised suo motu revisional jurisdiction under sec. 211 of the Bombay Land Revenue Code which did not prescribe any period of limitation for exercise of revisional jurisdiction. The Commissioner exercised revisional jurisdiction one yea r after the Collector made the order which was sought to be revised. The High Court set aside the order of the Commissioner. In the appeal by State of Gujarat, this Court declined to interfere holding inter alia that the revisional power in t he absence of prescribed period of limitation must be exercised within a reasonable time and period of one year was held to be too late. This aspect must be present to the mind of House Allotment Officer before just rushing in on an unproved technical contravention brought to his notice contrived by the successor in interest of the deceased landlord, and evicting the appellant 22 years after his entry and 9 years after his retirement on the short ground that his entry in the y ear 1954 was in contravention of clause 22(2). Having examined all the aspects of the matter, we are satisfied that the order of the House Allotment Officer suffers from numerous infirmities and is unsustainable and must be quashed and set aside as also the order of the High Court dismissing the Special Civil Application No. 1957 of 1977 preferred by the present appellant.
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K. Kankarathnamma And Others Vs. State Of Andhra Pradesh And Others | so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence.4. In Alderson v. Palliser, (1901) 2 KD 833 the Court of Appeal held that where the want of jurisdiction appears on the face of the proceedings, it cannot be waived. In Badri Prasad v. Nagarmal, - 1959 SCJ 394: (AIR 1959 SC 559 ) this Court has held that even the bar of illegality of a transaction though not pleaded in the courts below can be allowed to be pleaded in this Court if it appears on the face of the pleading in the case. The High Court has, however, based itself largely upon a decision of the Privy Council in Venkata Krishnayya Garu v. Secy. of State, AIR 1931 PC 39 : 60 Mad LJ 399. In that case there was in fact a reference by the Collector to the court but that reference was made by the Collector not upon the application of the person legally entitled to compensation but by a person whose claim to ownership of property had failed before the civil court but who was still a party to the land acquisition proceedings. In our opinion that decision is distinguishable on the short ground that whereas here there is no reference at all by the Collector or the Land Acquisition Officer, in that case the Collector had made a reference though in making it he had committed an error of law in that he acted upon the application of a person who had been found to have no interest in the land. Disagreeing with the High Court we, therefore, hold that the court had no jurisdiction to determine the amount of compensation and thus go behind the order of the Land Acquisition Officer.5. Upon this short ground the appeal must be dismissed. We have, however, heard Mr. Bhimasankaram on merits and in our opinion there are no substantial grounds which would justify interference with the conclusions arrived by the High Court.6. For determining the amount of compensation seven sale deeds were filed, Exs. A1 to A4, on behalf of the State and B-1 to B-3 on behalf of the appellants. A synopsis of the sale deeds has been made by the High Courts in its judgment and we can do no better than to reproduce it:S1. No. Exhibit Date Extent of land Amount Rate per acre Proximity of the site acquired.Acs.cts Rs. Rs.1. A-1 15-2-46 0.40 1/2 1,750 4,240 Opposite to the suit land and abutting the main road.2. A-2 25-8-46 0.65 1/4 2,500 3,800 Some distance away from the site of the acquired land towards Eluru.3. A-3 9-10-46 1-00 4,500 4,500 Very near the acquired land the same vendee.4. A-4 9-10-46 1-00 4,500 4,500 Part of the same site, and the vendee.5. B-1 14-10-46 0-70 7,000 10,000 5 furlongs away from the suit site and nearer Bezwada.6. B-2 14-2-47 1-09 Just over 12,000 12,000 5 furlongs away towards Bezwada.7. B-3 24-1-46 0-36 1,850 5,000 It is a part and parcel of the same land that is sought to be acquired.Out of these sale deeds Exs. A-1 and A-2 were rejected by the High Court, A-1 on the ground that it is several months earlier than the date of notification under S. 1 of the Act and Ex. A-2 on the ground that the land comprised in it is some distance away from the land under acquisition and is also further away from Vijayawada than this land. The High Court similarly rejected Ex. B-2 on the ground that transaction was entered into four months after the publication of the notification and on the further ground that it is located in the direction of Vijayawada at a distance of five furlongs front the land acquired. It has apparently rejected also Ex. B-3. though the land sold thereunder is a part and parcel of the same land which is sought to be acquired. The ground appears to be that the land sold thereunder is only 36 cents in area. It has accepted Exs. A-3 and A-4 and on that basis awarded compensation at the rate of Rs. 4,500 per acre for all these lands. In so far as Ex. B-1 is concerned the High Court has taken the view that though it bears the date of October 14, 1946, the circumstance that it was actually registered on February 13, 1941 and some of the stamp papers used were in the names of persons unconnected with the transaction shows that it has really been ante-dated so as to make it appear to be earlier in point of time than the notification.7. In our opinion what the High Court has said about these three exhibits, Bl, B2 and B3, seems to have considerable force. At any rate we do not think that there are any substantial grounds upon which we can look at these transactions in a different way. If these documents go away, as also Exs. A-1 and A-2, we are left with only Exs. A-3 and A-4. Some argument was advanced before us to the effect that the lands comprised in the transactions represented by these documents have no direct access to the road and that, therefore, they could not have fetched a good price. Bearing in mind the fact that these are all agricultural lands a rate of Rs. 4,500 per acre at which they were sold cannot prima facie be regarded as inadequate. As regard access, it is sufficient to say that they are parts of the same field which abut on the road though the portions sold do not themselves abut on the road. Since the lands sold under these sale deeds were part and parcel of the same field which abuts on the road those who purchased these lands would naturally obtain a right of way over the land unsold so as to have access to the road. | 0[ds]We say unfortunately because this is not a kind at plea which the state ought at all to have taken. Quite clearly applications objecting to the rates at which compensation was allowed were taken in time by persons interested in the lands which were under acquisition and it was no fault of theirs that a reference was not made by the Land Acquisition Officer. Indeed, whenever applications are made under S. 18 of the Land Acquisition Act, it is the duty of the Land Acquisition Officer to make a reference unless there is a valid ground for rejecting the applications such as for instance that the applications were barred by time. Where an officer of the state is remiss in the performance of his duties in fairness the State ought not to take advantage of this fact. We are further of the opinion that the High Court, after the plea had been raised, would have been well-advised to adjourn the matter for enabling the appellants before us, who were respondents in the High Court, to take appropriate steps for compelling the Land Acquisition Officer to make a reference.3. All the same since the point, was permitted to be urged before it by the High Court and has been raised before us on behalf of the state it is necessary to decide it. On behalf of the appellants it was contended before the High Court that by reason of the failure of the State to raise the plea before the Subordinate Judge as to the absence of a reference the State must be deemed to have waived the point. The High Court accepted this argument upon the view that this was not a case of inherent lack of jurisdiction and that the defect in the procedure was such as could be waived. In our opinion the view of the High Court is not correct. Section 12 (1) of the Land Acquisition Act provides that after an award is filed in the Collectors office it shall, except as provided in the Act, be final and conclusive evidence as between the Collector and the persons interested of the true area and value of the land and the apportionment of the compensation among the persons interested. The only manner in which the finality of the award can be called into question is by resort to the provisions of S. 18 of the Land Acquisition Act,he proviso to sub-s. (2) prescribes the time within which an application under sub-s. (1) is to be made. Section 19 provides for the making of a reference by the Collector and specifies the matters which are to be comprised in that reference. Thus the matter goes to the court only upon a reference made by the Collector. It is only after such a reference is made that the court is empowered to determine the objections made by a claimant to the award. Section 21 restricts the scope of the proceedings before the court to consideration of the contention of the persons affected by the objection. These provisions thus leave no doubt that the jurisdiction of the, court arises solely on the basis of a reference made to it. No doubt, the Land Acquisition Officer has made a reference under S. 30 of the Land Acquisition Act but that reference was only in regard to the apportionment of the compensation amongst the various claimants. Such a reference would certainly not invest the Court with the jurisdiction to consider a matter not directly connected withis really not a mere technicality for as pointed out by the Privy Council in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan wullud Meer Sudroodeen Khan Bahadoor, 6 Moo Ind App 134 at p. 155 (PC) wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. This was, therefore a case of lack of inherent jurisdiction and the failure of the State to object to the proceedings before the court on the ground of an absence of reference in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence.4. In Alderson v. Palliser, (1901) 2 KD 833 the Court of Appeal held that where the want of jurisdiction appears on the face of the proceedings, it cannot be waived. In Badri Prasad v. Nagarmal,1959 SCJ 394: (AIR 1959 SC 559 ) this Court has held that even the bar of illegality of a transaction though not pleaded in the courts below can be allowed to be pleaded in this Court if it appears on the face of the pleading in the case. The High Court has, however, based itself largely upon a decision of the Privy Council in Venkata Krishnayya Garu v. Secy. of State, AIR 1931 PC 39 : 60 Mad LJ 399. In that case there was in fact a reference by the Collector to the court but that reference was made by the Collector not upon the application of the person legally entitled to compensation but by a person whose claim to ownership of property had failed before the civil court but who was still a party to the land acquisition proceedings. In our opinion that decision is distinguishable on the short ground that whereas here there is no reference at all by the Collector or the Land Acquisition Officer, in that case the Collector had made a reference though in making it he had committed an error of law in that he acted upon the application of a person who had been found to have no interest in the land. Disagreeing with the High Court we, therefore, hold that the court had no jurisdiction to determine the amount of compensation and thus go behind the order of the Land Acquisition Officer.5. Upon this short ground the appeal must be dismissed. We have, however, heard Mr. Bhimasankaram on merits and in our opinion there are no substantial grounds which would justify interference with the conclusions arrived by the Highof these sale deeds Exs. A-1 and A-2 were rejected by the High Court, A-1 on the ground that it is several months earlier than the date of notification under S. 1 of the Act and Ex. A-2 on the ground that the land comprised in it is some distance away from the land under acquisition and is also further away from Vijayawada than this land. The High Court similarly rejected Ex. B-2 on the ground that transaction was entered into four months after the publication of the notification and on the further ground that it is located in the direction of Vijayawada at a distance of five furlongs front the land acquired. It has apparently rejected also Ex. B-3. though the land sold thereunder is a part and parcel of the same land which is sought to be acquired. The ground appears to be that the land sold thereunder is only 36 cents in area. It has accepted Exs. A-3 and A-4 and on that basis awarded compensation at the rate of Rs. 4,500 per acre for all these lands. In so far as Ex. B-1 is concerned the High Court has taken the view that though it bears the date of October 14, 1946, the circumstance that it was actually registered on February 13, 1941 and some of the stamp papers used were in the names of persons unconnected with the transaction shows that it has really been ante-dated so as to make it appear to be earlier in point of time than the notification.7. In our opinion what the High Court has said about these three exhibits, Bl, B2 and B3, seems to have considerable force. At any rate we do not think that there are any substantial grounds upon which we can look at these transactions in a different way. If these documents go away, as also Exs. A-1 and A-2, we are left with only Exs. A-3 and A-4. Some argument was advanced before us to the effect that the lands comprised in the transactions represented by these documents have no direct access to the road and that, therefore, they could not have fetched a good price. Bearing in mind the fact that these are all agricultural lands a rate of Rs. 4,500 per acre at which they were sold cannot prima facie be regarded as inadequate. As regard access, it is sufficient to say that they are parts of the same field which abut on the road though the portions sold do not themselves abut on the road. Since the lands sold under these sale deeds were part and parcel of the same field which abuts on the road those who purchased these lands would naturally obtain a right of way over the land unsold so as to have access to the road. | 0 | 2,346 | 1,631 | ### 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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so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence.4. In Alderson v. Palliser, (1901) 2 KD 833 the Court of Appeal held that where the want of jurisdiction appears on the face of the proceedings, it cannot be waived. In Badri Prasad v. Nagarmal, - 1959 SCJ 394: (AIR 1959 SC 559 ) this Court has held that even the bar of illegality of a transaction though not pleaded in the courts below can be allowed to be pleaded in this Court if it appears on the face of the pleading in the case. The High Court has, however, based itself largely upon a decision of the Privy Council in Venkata Krishnayya Garu v. Secy. of State, AIR 1931 PC 39 : 60 Mad LJ 399. In that case there was in fact a reference by the Collector to the court but that reference was made by the Collector not upon the application of the person legally entitled to compensation but by a person whose claim to ownership of property had failed before the civil court but who was still a party to the land acquisition proceedings. In our opinion that decision is distinguishable on the short ground that whereas here there is no reference at all by the Collector or the Land Acquisition Officer, in that case the Collector had made a reference though in making it he had committed an error of law in that he acted upon the application of a person who had been found to have no interest in the land. Disagreeing with the High Court we, therefore, hold that the court had no jurisdiction to determine the amount of compensation and thus go behind the order of the Land Acquisition Officer.5. Upon this short ground the appeal must be dismissed. We have, however, heard Mr. Bhimasankaram on merits and in our opinion there are no substantial grounds which would justify interference with the conclusions arrived by the High Court.6. For determining the amount of compensation seven sale deeds were filed, Exs. A1 to A4, on behalf of the State and B-1 to B-3 on behalf of the appellants. A synopsis of the sale deeds has been made by the High Courts in its judgment and we can do no better than to reproduce it:S1. No. Exhibit Date Extent of land Amount Rate per acre Proximity of the site acquired.Acs.cts Rs. Rs.1. A-1 15-2-46 0.40 1/2 1,750 4,240 Opposite to the suit land and abutting the main road.2. A-2 25-8-46 0.65 1/4 2,500 3,800 Some distance away from the site of the acquired land towards Eluru.3. A-3 9-10-46 1-00 4,500 4,500 Very near the acquired land the same vendee.4. A-4 9-10-46 1-00 4,500 4,500 Part of the same site, and the vendee.5. B-1 14-10-46 0-70 7,000 10,000 5 furlongs away from the suit site and nearer Bezwada.6. B-2 14-2-47 1-09 Just over 12,000 12,000 5 furlongs away towards Bezwada.7. B-3 24-1-46 0-36 1,850 5,000 It is a part and parcel of the same land that is sought to be acquired.Out of these sale deeds Exs. A-1 and A-2 were rejected by the High Court, A-1 on the ground that it is several months earlier than the date of notification under S. 1 of the Act and Ex. A-2 on the ground that the land comprised in it is some distance away from the land under acquisition and is also further away from Vijayawada than this land. The High Court similarly rejected Ex. B-2 on the ground that transaction was entered into four months after the publication of the notification and on the further ground that it is located in the direction of Vijayawada at a distance of five furlongs front the land acquired. It has apparently rejected also Ex. B-3. though the land sold thereunder is a part and parcel of the same land which is sought to be acquired. The ground appears to be that the land sold thereunder is only 36 cents in area. It has accepted Exs. A-3 and A-4 and on that basis awarded compensation at the rate of Rs. 4,500 per acre for all these lands. In so far as Ex. B-1 is concerned the High Court has taken the view that though it bears the date of October 14, 1946, the circumstance that it was actually registered on February 13, 1941 and some of the stamp papers used were in the names of persons unconnected with the transaction shows that it has really been ante-dated so as to make it appear to be earlier in point of time than the notification.7. In our opinion what the High Court has said about these three exhibits, Bl, B2 and B3, seems to have considerable force. At any rate we do not think that there are any substantial grounds upon which we can look at these transactions in a different way. If these documents go away, as also Exs. A-1 and A-2, we are left with only Exs. A-3 and A-4. Some argument was advanced before us to the effect that the lands comprised in the transactions represented by these documents have no direct access to the road and that, therefore, they could not have fetched a good price. Bearing in mind the fact that these are all agricultural lands a rate of Rs. 4,500 per acre at which they were sold cannot prima facie be regarded as inadequate. As regard access, it is sufficient to say that they are parts of the same field which abut on the road though the portions sold do not themselves abut on the road. Since the lands sold under these sale deeds were part and parcel of the same field which abuts on the road those who purchased these lands would naturally obtain a right of way over the land unsold so as to have access to the road.
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on the basis of a reference made to it. No doubt, the Land Acquisition Officer has made a reference under S. 30 of the Land Acquisition Act but that reference was only in regard to the apportionment of the compensation amongst the various claimants. Such a reference would certainly not invest the Court with the jurisdiction to consider a matter not directly connected withis really not a mere technicality for as pointed out by the Privy Council in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan wullud Meer Sudroodeen Khan Bahadoor, 6 Moo Ind App 134 at p. 155 (PC) wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. This was, therefore a case of lack of inherent jurisdiction and the failure of the State to object to the proceedings before the court on the ground of an absence of reference in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence.4. In Alderson v. Palliser, (1901) 2 KD 833 the Court of Appeal held that where the want of jurisdiction appears on the face of the proceedings, it cannot be waived. In Badri Prasad v. Nagarmal,1959 SCJ 394: (AIR 1959 SC 559 ) this Court has held that even the bar of illegality of a transaction though not pleaded in the courts below can be allowed to be pleaded in this Court if it appears on the face of the pleading in the case. The High Court has, however, based itself largely upon a decision of the Privy Council in Venkata Krishnayya Garu v. Secy. of State, AIR 1931 PC 39 : 60 Mad LJ 399. In that case there was in fact a reference by the Collector to the court but that reference was made by the Collector not upon the application of the person legally entitled to compensation but by a person whose claim to ownership of property had failed before the civil court but who was still a party to the land acquisition proceedings. In our opinion that decision is distinguishable on the short ground that whereas here there is no reference at all by the Collector or the Land Acquisition Officer, in that case the Collector had made a reference though in making it he had committed an error of law in that he acted upon the application of a person who had been found to have no interest in the land. Disagreeing with the High Court we, therefore, hold that the court had no jurisdiction to determine the amount of compensation and thus go behind the order of the Land Acquisition Officer.5. Upon this short ground the appeal must be dismissed. We have, however, heard Mr. Bhimasankaram on merits and in our opinion there are no substantial grounds which would justify interference with the conclusions arrived by the Highof these sale deeds Exs. A-1 and A-2 were rejected by the High Court, A-1 on the ground that it is several months earlier than the date of notification under S. 1 of the Act and Ex. A-2 on the ground that the land comprised in it is some distance away from the land under acquisition and is also further away from Vijayawada than this land. The High Court similarly rejected Ex. B-2 on the ground that transaction was entered into four months after the publication of the notification and on the further ground that it is located in the direction of Vijayawada at a distance of five furlongs front the land acquired. It has apparently rejected also Ex. B-3. though the land sold thereunder is a part and parcel of the same land which is sought to be acquired. The ground appears to be that the land sold thereunder is only 36 cents in area. It has accepted Exs. A-3 and A-4 and on that basis awarded compensation at the rate of Rs. 4,500 per acre for all these lands. In so far as Ex. B-1 is concerned the High Court has taken the view that though it bears the date of October 14, 1946, the circumstance that it was actually registered on February 13, 1941 and some of the stamp papers used were in the names of persons unconnected with the transaction shows that it has really been ante-dated so as to make it appear to be earlier in point of time than the notification.7. In our opinion what the High Court has said about these three exhibits, Bl, B2 and B3, seems to have considerable force. At any rate we do not think that there are any substantial grounds upon which we can look at these transactions in a different way. If these documents go away, as also Exs. A-1 and A-2, we are left with only Exs. A-3 and A-4. Some argument was advanced before us to the effect that the lands comprised in the transactions represented by these documents have no direct access to the road and that, therefore, they could not have fetched a good price. Bearing in mind the fact that these are all agricultural lands a rate of Rs. 4,500 per acre at which they were sold cannot prima facie be regarded as inadequate. As regard access, it is sufficient to say that they are parts of the same field which abut on the road though the portions sold do not themselves abut on the road. Since the lands sold under these sale deeds were part and parcel of the same field which abuts on the road those who purchased these lands would naturally obtain a right of way over the land unsold so as to have access to the road.
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Commnr. Of Sales Tax Vs. Industrial Coal Enterprises | not operate. In support of his contention that provision for exemption from payment of tax should by strictly construed, reliance is placed upon the judgment of this court in State Level Committee and another v. Morgardshammar India Ltd., 1996(1) SCC 108. A Bench of two Judges of this Court relied upon an earlier decision of Three Judges Bench in Novopan India Ltd. v. Collector of Central Excise and Customs, 1994 Supp.(3) SCC 606 and held that an exception (sic) an exempting provision in a taxing statute should be construed strictly and it is not open to the Court to ignore the conditions prescribed in Section 4-A of the Act and extend the exemption. Though the decision pertains to exemption under Section 4-A of the Act, the facts of the case are entirely different and the ruling has to be understood in the context thereof. 8. Our attention has also been drawn to another case under Section 4-A which came up before this Court. In Pappu Sweets and Biscuits and another v. Commissioner of Trade Tax, U.P. Lucknow, 1998(7) SCC 228. Far from helping the appellant, the ruling can be used against the appellant as it is held that the object of the relevant Exemption Notification and the intention of the State Government in granting exemption are to be taken into account for interpreting the word "sweetmeat" and the words "conditions of like nature". 9. Learned counsel for the appellant relied upon the decision of this Court in Divisional Level Committee and another v. Sahu Stone Crushing Industries, 1998(8) SCC 435. In that case, it is held that the provision in Section 4-A (%) (C) requiring registration of the unit the Factories Act if the capital investment exceeds Rs. 3 lakhs is mandatory. The Bench reversed the judgment of the High Court reported in M/s Sahu Stone Crushing Industries v. Divisional Level Committee, Jhansi, 1994 UPTC 1 which took the view that the expression "shall" in the Section could be read as "may". The ruling has no relevance in the present case as the industrial unit in that case was established in November, 1986 and the date of first sale was 3.12.1986. The Court had to consider. Section 4-A after it was amended w.e.f. 13.9.1985 under U.P. Act No. 28 of 1991. The said amendment Act inserted sub-s. (5)(c). We are in this case concerned with the Section as it stood on 9.8.1985 before the said amendment. 10. Learned counsel for the appellant argues that the subsequent legislation could be taken for the purpose of guidance for interpreting the provisions in the Act as it stood earlier. We are unable to accept this contention. It is pointed out by the court of Appeal in England in Attorney General v. Clarkson, 1900(1) QB 156 that subsequent Legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. Lindley M.R. said, "Our duty is to interpret the meaning of the Legislature, and if the Legislature in one Act have used language which is admittedly ambiguous, and in a subsequent Act have used language which proceeds upon the hypothesis that a particular interpretation is to be placed upon the earlier Act, I think the judges have no choice but to read the two Acts together, and say that the Legislature have acted as their own interpreters of the earlier Act." There is no such situation here. The subsequent Act relied on by learned counsel is one of amendment and it may be remedial. Moreover, in this case, there is no ambiguity in the provisions of the Act as it stood at the relevant time warranting an interpretation by the Legislature. Hence the subsequent Legislation introduced in 1991 with effect from 13.9.1985 will not help the appellant. 11. In Commissioner of Income-tax, Amritsar v. Straw Board Manufacturing Co. Ltd., 1989 Supp. (2) SCC 523 this Court held that in taxing states, provision for concessional rate of tax should be liberally construed. So as in Bajaj Tempo Ltd. Bombay v. Commissioner of Income-tax, Bombay City-III, Bombay, 1992(3) SCC 78, it was held that provision granting incentive for promoting economic growth and development in taxing statutes should be liberally construed and restriction placed on it by way of exception should be construed in a reasonable and purposive manner so as to advance the objective of the provision. 12. We find that the object of granting exemption from payment of sales tax has always been for encouraging capital investment and establishment of industrial units for the purpose of increasing production of goods and promoting the development of industry in the State. If the test laid down in Bajaj Tempo Ltd. case (supra) is applied, there is no doubt whatever that the exemption granted to the respondent from 9.8.1985 when it fulfilled all the prescribed conditions will not cease to operate just because the capital investment exceeded the limit of Rs. 3 lakhs on account of the respondent becoming the owner of land and building to which the unit was shifted. If the construction sought to be placed by the appellant is accepted, the very purpose and object of the grant of exemption will be defeated. After all, the respondent had only shifted the unit to its own premises which made it much more convenient and casier for the respondent to carry on the production of the goods undisturbed by the vagaries of the lessor and without any necessity to spend a part of its income on rent. It is not the case of the appellant that there was any mala fide on the part of the respondent in obtaining exemption in the first instance as a unit with a capital investment below Rs. 3 lakhs and increasing the capital investment subsequently to an amount exceeding Rs. 3 lakhs with a view to defeat the provisions of any of the relevant statutes. The bona fide of the respondent have never been questioned by the appellant. | 0[ds]We are unable to accept this contention. It is pointed out by the court of Appeal in England in Attorney General v. Clarkson, 1900(1) QB 156 that subsequent Legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. Lindley M.R. said, "Our duty is to interpret the meaning of the Legislature, and if the Legislature in one Act have used language which is admittedly ambiguous, and in a subsequent Act have used language which proceeds upon the hypothesis that a particular interpretation is to be placed upon the earlier Act, I think the judges have no choice but to read the two Acts together, and say that the Legislature have acted as their own interpreters of the earlier Act." There is no such situation here. The subsequent Act relied on by learned counsel is one of amendment and it may be remedial. Moreover, in this case, there is no ambiguity in the provisions of the Act as it stood at the relevant time warranting an interpretation by the Legislature. Hence the subsequent Legislation introduced in 1991 with effect from 13.9.1985 will not help the appellant.We find that the object of granting exemption from payment of sales tax has always been for encouraging capital investment and establishment of industrial units for the purpose of increasing production of goods and promoting the development of industry in the State. If the test laid down in Bajaj Tempo Ltd. case (supra) is applied, there is no doubt whatever that the exemption granted to the respondent from 9.8.1985 when it fulfilled all the prescribed conditions will not cease to operate just because the capital investment exceeded the limit of Rs. 3 lakhs on account of the respondent becoming the owner of land and building to which the unit was shifted. If the construction sought to be placed by the appellant is accepted, the very purpose and object of the grant of exemption will be defeated. After all, the respondent had only shifted the unit to its own premises which made it much more convenient and casier for the respondent to carry on the production of the goods undisturbed by the vagaries of the lessor and without any necessity to spend a part of its income on rent. It is not the case of the appellant that there was any mala fide on the part of the respondent in obtaining exemption in the first instance as a unit with a capital investment below Rs. 3 lakhs and increasing the capital investment subsequently to an amount exceeding Rs. 3 lakhs with a view to defeat the provisions of any of the relevant statutes. The bona fide of the respondent have never been questioned by the appellant. | 0 | 3,928 | 502 | ### 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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not operate. In support of his contention that provision for exemption from payment of tax should by strictly construed, reliance is placed upon the judgment of this court in State Level Committee and another v. Morgardshammar India Ltd., 1996(1) SCC 108. A Bench of two Judges of this Court relied upon an earlier decision of Three Judges Bench in Novopan India Ltd. v. Collector of Central Excise and Customs, 1994 Supp.(3) SCC 606 and held that an exception (sic) an exempting provision in a taxing statute should be construed strictly and it is not open to the Court to ignore the conditions prescribed in Section 4-A of the Act and extend the exemption. Though the decision pertains to exemption under Section 4-A of the Act, the facts of the case are entirely different and the ruling has to be understood in the context thereof. 8. Our attention has also been drawn to another case under Section 4-A which came up before this Court. In Pappu Sweets and Biscuits and another v. Commissioner of Trade Tax, U.P. Lucknow, 1998(7) SCC 228. Far from helping the appellant, the ruling can be used against the appellant as it is held that the object of the relevant Exemption Notification and the intention of the State Government in granting exemption are to be taken into account for interpreting the word "sweetmeat" and the words "conditions of like nature". 9. Learned counsel for the appellant relied upon the decision of this Court in Divisional Level Committee and another v. Sahu Stone Crushing Industries, 1998(8) SCC 435. In that case, it is held that the provision in Section 4-A (%) (C) requiring registration of the unit the Factories Act if the capital investment exceeds Rs. 3 lakhs is mandatory. The Bench reversed the judgment of the High Court reported in M/s Sahu Stone Crushing Industries v. Divisional Level Committee, Jhansi, 1994 UPTC 1 which took the view that the expression "shall" in the Section could be read as "may". The ruling has no relevance in the present case as the industrial unit in that case was established in November, 1986 and the date of first sale was 3.12.1986. The Court had to consider. Section 4-A after it was amended w.e.f. 13.9.1985 under U.P. Act No. 28 of 1991. The said amendment Act inserted sub-s. (5)(c). We are in this case concerned with the Section as it stood on 9.8.1985 before the said amendment. 10. Learned counsel for the appellant argues that the subsequent legislation could be taken for the purpose of guidance for interpreting the provisions in the Act as it stood earlier. We are unable to accept this contention. It is pointed out by the court of Appeal in England in Attorney General v. Clarkson, 1900(1) QB 156 that subsequent Legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. Lindley M.R. said, "Our duty is to interpret the meaning of the Legislature, and if the Legislature in one Act have used language which is admittedly ambiguous, and in a subsequent Act have used language which proceeds upon the hypothesis that a particular interpretation is to be placed upon the earlier Act, I think the judges have no choice but to read the two Acts together, and say that the Legislature have acted as their own interpreters of the earlier Act." There is no such situation here. The subsequent Act relied on by learned counsel is one of amendment and it may be remedial. Moreover, in this case, there is no ambiguity in the provisions of the Act as it stood at the relevant time warranting an interpretation by the Legislature. Hence the subsequent Legislation introduced in 1991 with effect from 13.9.1985 will not help the appellant. 11. In Commissioner of Income-tax, Amritsar v. Straw Board Manufacturing Co. Ltd., 1989 Supp. (2) SCC 523 this Court held that in taxing states, provision for concessional rate of tax should be liberally construed. So as in Bajaj Tempo Ltd. Bombay v. Commissioner of Income-tax, Bombay City-III, Bombay, 1992(3) SCC 78, it was held that provision granting incentive for promoting economic growth and development in taxing statutes should be liberally construed and restriction placed on it by way of exception should be construed in a reasonable and purposive manner so as to advance the objective of the provision. 12. We find that the object of granting exemption from payment of sales tax has always been for encouraging capital investment and establishment of industrial units for the purpose of increasing production of goods and promoting the development of industry in the State. If the test laid down in Bajaj Tempo Ltd. case (supra) is applied, there is no doubt whatever that the exemption granted to the respondent from 9.8.1985 when it fulfilled all the prescribed conditions will not cease to operate just because the capital investment exceeded the limit of Rs. 3 lakhs on account of the respondent becoming the owner of land and building to which the unit was shifted. If the construction sought to be placed by the appellant is accepted, the very purpose and object of the grant of exemption will be defeated. After all, the respondent had only shifted the unit to its own premises which made it much more convenient and casier for the respondent to carry on the production of the goods undisturbed by the vagaries of the lessor and without any necessity to spend a part of its income on rent. It is not the case of the appellant that there was any mala fide on the part of the respondent in obtaining exemption in the first instance as a unit with a capital investment below Rs. 3 lakhs and increasing the capital investment subsequently to an amount exceeding Rs. 3 lakhs with a view to defeat the provisions of any of the relevant statutes. The bona fide of the respondent have never been questioned by the appellant.
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We are unable to accept this contention. It is pointed out by the court of Appeal in England in Attorney General v. Clarkson, 1900(1) QB 156 that subsequent Legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. Lindley M.R. said, "Our duty is to interpret the meaning of the Legislature, and if the Legislature in one Act have used language which is admittedly ambiguous, and in a subsequent Act have used language which proceeds upon the hypothesis that a particular interpretation is to be placed upon the earlier Act, I think the judges have no choice but to read the two Acts together, and say that the Legislature have acted as their own interpreters of the earlier Act." There is no such situation here. The subsequent Act relied on by learned counsel is one of amendment and it may be remedial. Moreover, in this case, there is no ambiguity in the provisions of the Act as it stood at the relevant time warranting an interpretation by the Legislature. Hence the subsequent Legislation introduced in 1991 with effect from 13.9.1985 will not help the appellant.We find that the object of granting exemption from payment of sales tax has always been for encouraging capital investment and establishment of industrial units for the purpose of increasing production of goods and promoting the development of industry in the State. If the test laid down in Bajaj Tempo Ltd. case (supra) is applied, there is no doubt whatever that the exemption granted to the respondent from 9.8.1985 when it fulfilled all the prescribed conditions will not cease to operate just because the capital investment exceeded the limit of Rs. 3 lakhs on account of the respondent becoming the owner of land and building to which the unit was shifted. If the construction sought to be placed by the appellant is accepted, the very purpose and object of the grant of exemption will be defeated. After all, the respondent had only shifted the unit to its own premises which made it much more convenient and casier for the respondent to carry on the production of the goods undisturbed by the vagaries of the lessor and without any necessity to spend a part of its income on rent. It is not the case of the appellant that there was any mala fide on the part of the respondent in obtaining exemption in the first instance as a unit with a capital investment below Rs. 3 lakhs and increasing the capital investment subsequently to an amount exceeding Rs. 3 lakhs with a view to defeat the provisions of any of the relevant statutes. The bona fide of the respondent have never been questioned by the appellant.
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The Management of Pradip Lamp Works, Patna Vs. Workmen of Pradip Lamp Works, Patna, & Another | by an application dated 29 November, 1963 by three other dismissed workmen complaining about their dismissal and requesting the conciliation officer to hold conciliation proceedings. It appears that a large number of workmen were not satisfied with the existing union, namely, the Pradip Lamp Workers Union. They, therefore, formed a new union called the Pradip Lamp Karamchari Sangh. But as the sangh was not yet registered, the workmen held a meeting on 9 December, 1963 and appointed five representatives from amongst them to represent the dismissed workmen.5. The evidence of the conciliation officer before the labour court shows that on receipt of letters from the concerned workmen he called upon the parties to appear before him for conciliation first on 21 December, 1963 and thereafter the on 23 January 1964. Though the workmens said representatives appeared before him, the management declined to do so, both orally and by letters, on the ground that the said dispute was agitated by the sangh which was not the recognized union. The reason for refusal to attend was not that the management was not aware of the actual dispute, but because the dispute was not raised by the union recognized by them. The facts that the workmen were agitating the dispute regarding the dismissal of the said ten workmen before the conciliation officer, that that officer had fixed meeting for conciliation and the managements refusal to attend are clearly borne out by the letter Ex. 1/G-a dated 29 January, 1964. That letter was addressed by the said representatives to the Labour Commissioner with copies thereof sent to the Labour Minister, the management and the conciliation officer. In that letter, the said representatives threatened that if nothing was done in the matter of the said dismissals within a month, the workmen would resort to a strike. The management refused to accept the copy of this letter sent to them presumably on the unregistered sangh. In view of these facts the management could not be heard to say that they had no previous knowledge of the dispute, nor could they take advantage, as the labour court has remarked, of the fact that through inadvertence the copy of the letter sent to them along with the reference was not of the letter of 29 January, 1964 but of another letter dated 25 June, 1964 addressed by the sangh to the management.6. The fact that the conciliation officer had fixed meetings for settling the dispute and the managements non-co operation by refusing to attend them clearly appear in the failure report of that officer (Ex. 3) dated 3 February, 1964. In that report the officer has stated that the complaint of the workmen was that the management favoured the union recognized by them, that they did not like the idea of the workmen starting a rival union though the majority of them had joined the new union and that the dismissals of the said ten workmen were in the nature of reprisals against the workmen having joined the new union. The conciliation officer has further stated that the management having refused to attend the meetings called by him, he was not in a position to give any opinion about their case or to conciliation between the parties, and added that the situation was so rapidly deteriorating that the Government should take a quick decision to avert breach of industrial peace. Obviously, the Government decided upon making the reference in pursuance of this report to have the dispute adjudicated and to avert the strike threatened by the workmen. It cannot be gain said, therefore, that there was an existing dispute, or at any rate an apprehended dispute, which became the basis of the impugned reference. The evidence of the conciliation officer that the management refused to attend the meetings called by him and that therefore he could not explain to them the complaint of the workmen is thus fully borne out by the report Ex. 3. The contention that there were no conciliation proceedings and that the failure report contained a false statement to that effect, and therefore, was not a clearly negatived by the evidence on record. That contention must consequently be rejected.7. The second contention that the dispute regarding the dismissal of the ten workmen was an individual and not an industrial dispute equally has no merit. The dispute, no doubt, was not sponsored by the recognized union but it cannot be said for that reason alone that it was not an industrial dispute. There is clear evidence that a large number of workmen, if not a majority of them, had formed a rival union. Though complaints filed before the conciliation officer at first were by the individual workmen, their cause was subsequently taken up by the new union. This is clear from the meeting held on 9 December, 1963 at which the said five representatives were elected to prosecute the cases of the ten workmen. That course presumably was adopted because the new union was not yet registered as its application for registration had not yet been finally disposed of. The letter of 29 January, 1964 shows that it was in pursuance of the authority given to them at the said meeting that the said five representatives took up these cases and complained that nothing was being done by the conciliation officer against those dismissals, and threatened a strike.8. There is, thus clear evidence of these cases having been espoused by the new union or, being yet unregistered, by a substantial number of workmen. The fact that these cases were not taken up by the recognized union does not mean that they were act industrial disputes. There are decisions of this Court which have laid down that espousal of the dispute before a reference is made even by a minority union, having a membership of substantial number of workmen, is sufficient to make such a dispute an industrial dispute. [See Workmen of Indian Express v. Management (Civil Appeal No. 1733 of 1967, dated 26 November, 1968).] | 0[ds]The facts that the workmen were agitating the dispute regarding the dismissal of the said ten workmen before the conciliation officer, that that officer had fixed meeting for conciliation and the managements refusal to attend are clearly borne out by the letter Ex. 1/G-a dated 29 January, 1964. That letter was addressed by the said representatives to the Labour Commissioner with copies thereof sent to the Labour Minister, the management and the conciliation officer. In that letter, the said representatives threatened that if nothing was done in the matter of the said dismissals within a month, the workmen would resort to a strike. The management refused to accept the copy of this letter sent to them presumably on the unregistered sangh. In view of these facts the management could not be heard to say that they had no previous knowledge of the dispute, nor could they take advantage, as the labour court has remarked, of the fact that through inadvertence the copy of the letter sent to them along with the reference was not of the letter of 29 January, 1964 but of another letter dated 25 June, 1964 addressed by the sangh to thefacts that the workmen were agitating the dispute regarding the dismissal of the said ten workmen before the conciliation officer, that that officer had fixed meeting for conciliation and the managements refusal to attend are clearly borne out by the letter Ex. 1/G-a dated 29 January, 1964. That letter was addressed by the said representatives to the Labour Commissioner with copies thereof sent to the Labour Minister, the management and the conciliation officer. In that letter, the said representatives threatened that if nothing was done in the matter of the said dismissals within a month, the workmen would resort to a strike. The management refused to accept the copy of this letter sent to them presumably on the unregistered sangh. In view of these facts the management could not be heard to say that they had no previous knowledge of the dispute, nor could they take advantage, as the labour court has remarked, of the fact that through inadvertence the copy of the letter sent to them along with the reference was not of the letter of 29 January, 1964 but of another letter dated 25 June, 1964 addressed by the sangh to thedispute, no doubt, was not sponsored by the recognized union but it cannot be said for that reason alone that it was not an industrial dispute. There is clear evidence that a large number of workmen, if not a majority of them, had formed a rival union. Though complaints filed before the conciliation officer at first were by the individual workmen, their cause was subsequently taken up by the new union. This is clear from the meeting held on 9 December, 1963 at which the said five representatives were elected to prosecute the cases of the ten workmen. That course presumably was adopted because the new union was not yet registered as its application for registration had not yet been finally disposed of. The letter of 29 January, 1964 shows that it was in pursuance of the authority given to them at the said meeting that the said five representatives took up these cases and complained that nothing was being done by the conciliation officer against those dismissals, and threatened a strike.8. There is, thus clear evidence of these cases having been espoused by the new union or, being yet unregistered, by a substantial number of workmen. The fact that these cases were not taken up by the recognized union does not mean that they were act industrialare decisions of this Court which have laid down that espousal of the dispute before a reference is made even by a minority union, having a membership of substantial number of workmen, is sufficient to make such a dispute an industrial dispute. | 0 | 1,523 | 702 | ### 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:
by an application dated 29 November, 1963 by three other dismissed workmen complaining about their dismissal and requesting the conciliation officer to hold conciliation proceedings. It appears that a large number of workmen were not satisfied with the existing union, namely, the Pradip Lamp Workers Union. They, therefore, formed a new union called the Pradip Lamp Karamchari Sangh. But as the sangh was not yet registered, the workmen held a meeting on 9 December, 1963 and appointed five representatives from amongst them to represent the dismissed workmen.5. The evidence of the conciliation officer before the labour court shows that on receipt of letters from the concerned workmen he called upon the parties to appear before him for conciliation first on 21 December, 1963 and thereafter the on 23 January 1964. Though the workmens said representatives appeared before him, the management declined to do so, both orally and by letters, on the ground that the said dispute was agitated by the sangh which was not the recognized union. The reason for refusal to attend was not that the management was not aware of the actual dispute, but because the dispute was not raised by the union recognized by them. The facts that the workmen were agitating the dispute regarding the dismissal of the said ten workmen before the conciliation officer, that that officer had fixed meeting for conciliation and the managements refusal to attend are clearly borne out by the letter Ex. 1/G-a dated 29 January, 1964. That letter was addressed by the said representatives to the Labour Commissioner with copies thereof sent to the Labour Minister, the management and the conciliation officer. In that letter, the said representatives threatened that if nothing was done in the matter of the said dismissals within a month, the workmen would resort to a strike. The management refused to accept the copy of this letter sent to them presumably on the unregistered sangh. In view of these facts the management could not be heard to say that they had no previous knowledge of the dispute, nor could they take advantage, as the labour court has remarked, of the fact that through inadvertence the copy of the letter sent to them along with the reference was not of the letter of 29 January, 1964 but of another letter dated 25 June, 1964 addressed by the sangh to the management.6. The fact that the conciliation officer had fixed meetings for settling the dispute and the managements non-co operation by refusing to attend them clearly appear in the failure report of that officer (Ex. 3) dated 3 February, 1964. In that report the officer has stated that the complaint of the workmen was that the management favoured the union recognized by them, that they did not like the idea of the workmen starting a rival union though the majority of them had joined the new union and that the dismissals of the said ten workmen were in the nature of reprisals against the workmen having joined the new union. The conciliation officer has further stated that the management having refused to attend the meetings called by him, he was not in a position to give any opinion about their case or to conciliation between the parties, and added that the situation was so rapidly deteriorating that the Government should take a quick decision to avert breach of industrial peace. Obviously, the Government decided upon making the reference in pursuance of this report to have the dispute adjudicated and to avert the strike threatened by the workmen. It cannot be gain said, therefore, that there was an existing dispute, or at any rate an apprehended dispute, which became the basis of the impugned reference. The evidence of the conciliation officer that the management refused to attend the meetings called by him and that therefore he could not explain to them the complaint of the workmen is thus fully borne out by the report Ex. 3. The contention that there were no conciliation proceedings and that the failure report contained a false statement to that effect, and therefore, was not a clearly negatived by the evidence on record. That contention must consequently be rejected.7. The second contention that the dispute regarding the dismissal of the ten workmen was an individual and not an industrial dispute equally has no merit. The dispute, no doubt, was not sponsored by the recognized union but it cannot be said for that reason alone that it was not an industrial dispute. There is clear evidence that a large number of workmen, if not a majority of them, had formed a rival union. Though complaints filed before the conciliation officer at first were by the individual workmen, their cause was subsequently taken up by the new union. This is clear from the meeting held on 9 December, 1963 at which the said five representatives were elected to prosecute the cases of the ten workmen. That course presumably was adopted because the new union was not yet registered as its application for registration had not yet been finally disposed of. The letter of 29 January, 1964 shows that it was in pursuance of the authority given to them at the said meeting that the said five representatives took up these cases and complained that nothing was being done by the conciliation officer against those dismissals, and threatened a strike.8. There is, thus clear evidence of these cases having been espoused by the new union or, being yet unregistered, by a substantial number of workmen. The fact that these cases were not taken up by the recognized union does not mean that they were act industrial disputes. There are decisions of this Court which have laid down that espousal of the dispute before a reference is made even by a minority union, having a membership of substantial number of workmen, is sufficient to make such a dispute an industrial dispute. [See Workmen of Indian Express v. Management (Civil Appeal No. 1733 of 1967, dated 26 November, 1968).]
### Response:
0
### Explanation:
The facts that the workmen were agitating the dispute regarding the dismissal of the said ten workmen before the conciliation officer, that that officer had fixed meeting for conciliation and the managements refusal to attend are clearly borne out by the letter Ex. 1/G-a dated 29 January, 1964. That letter was addressed by the said representatives to the Labour Commissioner with copies thereof sent to the Labour Minister, the management and the conciliation officer. In that letter, the said representatives threatened that if nothing was done in the matter of the said dismissals within a month, the workmen would resort to a strike. The management refused to accept the copy of this letter sent to them presumably on the unregistered sangh. In view of these facts the management could not be heard to say that they had no previous knowledge of the dispute, nor could they take advantage, as the labour court has remarked, of the fact that through inadvertence the copy of the letter sent to them along with the reference was not of the letter of 29 January, 1964 but of another letter dated 25 June, 1964 addressed by the sangh to thefacts that the workmen were agitating the dispute regarding the dismissal of the said ten workmen before the conciliation officer, that that officer had fixed meeting for conciliation and the managements refusal to attend are clearly borne out by the letter Ex. 1/G-a dated 29 January, 1964. That letter was addressed by the said representatives to the Labour Commissioner with copies thereof sent to the Labour Minister, the management and the conciliation officer. In that letter, the said representatives threatened that if nothing was done in the matter of the said dismissals within a month, the workmen would resort to a strike. The management refused to accept the copy of this letter sent to them presumably on the unregistered sangh. In view of these facts the management could not be heard to say that they had no previous knowledge of the dispute, nor could they take advantage, as the labour court has remarked, of the fact that through inadvertence the copy of the letter sent to them along with the reference was not of the letter of 29 January, 1964 but of another letter dated 25 June, 1964 addressed by the sangh to thedispute, no doubt, was not sponsored by the recognized union but it cannot be said for that reason alone that it was not an industrial dispute. There is clear evidence that a large number of workmen, if not a majority of them, had formed a rival union. Though complaints filed before the conciliation officer at first were by the individual workmen, their cause was subsequently taken up by the new union. This is clear from the meeting held on 9 December, 1963 at which the said five representatives were elected to prosecute the cases of the ten workmen. That course presumably was adopted because the new union was not yet registered as its application for registration had not yet been finally disposed of. The letter of 29 January, 1964 shows that it was in pursuance of the authority given to them at the said meeting that the said five representatives took up these cases and complained that nothing was being done by the conciliation officer against those dismissals, and threatened a strike.8. There is, thus clear evidence of these cases having been espoused by the new union or, being yet unregistered, by a substantial number of workmen. The fact that these cases were not taken up by the recognized union does not mean that they were act industrialare decisions of this Court which have laid down that espousal of the dispute before a reference is made even by a minority union, having a membership of substantial number of workmen, is sufficient to make such a dispute an industrial dispute.
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Sant Lal Mahton Vs. Kamala Prasad | written and engrossed at the plaintiffs house at village Chakla Maulanagur and the date which the document bears is 21st Chaitra 1334 Fasli corresponding to 8th April, 1927. Obviously, it was attesting witnesses whose names appears in the deed, to wit, Sunderlal, Matukdhari Prasad, Dwarka Prasad and Nanak Prasad the last named person being also the scribe of the document -and all of them were residents of Chakla Maulanagur which is the place of residence of the mortgagees. The mortgagors, on the other hand are inhabitants of a different village, namely, Chandpur, Nanak Chand, the scribe, was not alive at the time when the suit came up for hearing and out of the remaining three witnesses two were examined on behalf of the plaintiffs. They are Sunderlal and Matukdhari Prasad. Sunderlal, who is P. W. 1, states when cross-examined on behalf of some of the defendants""I signed the bond at the plaintiffs house, as did the attesting witness."The attestation of the bond was on the same day that it was written."The other attesting witness, Matukdhari Prasad, during cross-examination said as follows :"The bond was written, signed by the executants and attested by the witnesses on the same date."The documents shows that all the three executants put their signatures to it on 12th of April, 1927, and on the same day it was presented for registration before the Registration Officer at Katihar. Katihar is at some distance from the plaintiffs village and a part of the journey has to be covered by train. The evidence of the two attesting witnesses makes it clear that the documents was attested on the same day as it was document was attested on the same day as it was written. As the document was written on the 8th but actually executed on the 12th, the Subordinate Judge was of opinion that the attesting witnesses must have signed the deed before it was executed and this was no attestation in the eye of law. The High court, on the other hand, has held that the vernacular equivalent of the word "written" as used by the attesting witnesses might mean execution as well and the Subordinate Judge, who was not familiar with the language of the witness might have committed the mistake of taking the word "written" in the sense of mere engrossing or scribing of the deed, although the word could be interpreted to mean execution as well. We do not think that this assumption on the part of the learned Judges of the High Court is justified. In the first place, Matukdhari Prasad, the plaintiffs own witness, is quite precise in his statement and makes a distinction between the writing of a document and its signing or execution. According to him, the bond was written, executed and attested on the same day. But what is more important for our purpose is the place of the execution of the document. If it was executed at the plaintiffs house, where it was admittedly written, the date of execution would naturally be the date when the deed was scribed or engrossed. This is exactly the suggestion which the plaintiffs lawyers made to defendant No. 1 Sant Lall when he was being cross- examined. He was asked as to whether the document was executed at the plaintiffs village or at Katihar, where it was taken for registration. The witness persisted in saying that he and the other executants put their signatures not at the place of the plaintiffs but at Katihar where they reached by train between 9 and 10 a.m. in the morning. This story seems to fit in with the circumstances and probabilities of the case. The document was certainly taken to Katihar on the 12th of April, 1927, and the executants were all present there on that day and admitted execution of the document by putting their signatures before the Registering Officer. The signatures by way of execution of the document also bear the same date. From these circumstances it would be natural to presume that the execution took place at Katihar some time before the document was presented for registration. On the other hand, it is nobodys case that any of the attesting witnesses had gone to Katihar; they belong to the plaintiffs village and were present at the time when the document was written. It was quite natural in these circumstances that they would sign the deed at the plaintiffs place and on the date when it was written. It might have been in contemplation of the parties that the executants should also sign the document on the same day but it seems that somehow or other that did not happen. We are not unmindful of the fact that no specific defence was taken by defendants 1 and 3 pleading want of attestation of this document and defendant No. 1 was also did not say anything on the point in his examination in chief. But the point was definitely taken in the written statement not only of the minor defendants but also of defendants 4 and 9, who are the sons of Bharath and defendant No. 2 respectively and they were no less interested in contesting the suit than defendants 1 to3. Moreover, a specific issue on the question of attestation was framed by the learned Subordinate Judge. On the whole, our conclusion is that the view taken on this point by the Subordinate Judge is right and it is difficult to hold on the internal evidence furnished by the contents of the document itself taken along with the statement of witnesses that the bond was attested in due and proper manner. This being our view, the other question as to whether we should pass a mortgage decree in this case in exercise of our powers under Order 41, Rule 33, Civil Procedure Code, in spite of the fact that the plaintiffs did not challenge the decision of the trial court by way of appeal or cross- objection does not require to be considered.10. | 1[ds]It would be clear, we think, from the language of section 20 of the Limitation Act that to attract its operation two conditions are essential : first, the payment must be made within the prescribed period of limitation and secondly, it must be acknowledged by some form of writing either in the handwriting of the prayer himself or signed by him. We agree with the Subordinate Judge that it is the payment which really extends the period of limitation under section 20 of the Limitation Act; but the payment has got to be proved in a particular way and for reason of policy the legislature insists on a written or signed acknowledgment as the only proof of payment and excludes oral testimony. Unless, there fore, there is acknowledgment in the required from, the payment by itself is of no avail. The Subordinate Judge, however, is right in holding that while the section requires that the payment should be made within that period. To interpret the proviso in that way would be to import into it certain works which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take (1).But while it is not necessary that the written acknowledgment should be made prior to the expiry of the period of limitation, it is, in our opinion, essential that such acknowledgment, whether made before or after the period of limitation, must be in existence prior to the institution of the suit. Whether a suit is time-barred or not has got to be determined exclusively with reference to the date on which the plaint is filed and the allegation made therein. The legislature has expressly declared in section 3 of the Limitation Act that whether defence of limitation be pleaded or not, the court is bound to dismiss a suit which is brought after the period provided there fore in the first schedule to the Limitation Act. If the plaintiffs right of action is apparently barred under the statute of limitation, Order 7, Rule 6, of the Civil Procedure Code makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation; and if the plaintiff has got to allege in his plaint the facts which entitle him to exemption, obviously these facts must be in existence at or before the time when the plaint is filed; facts which come into existence after the filing of the plaint cannot be called in aid to revive a right of action which was dead at the date of the suit. To claim exemption under section 20 of the Limitation Act the plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section. The ground of exemption is not complete without this second element, and unless both these elements are proved to exist at the date of the filing of the plaint the suit would be held to be time-barred. In the plaint as it was originally filed in this case, the prayer was only for a mortgage decree in the usual form. After the hearing was closed, the plaintiffs, it seems, were apprehensive that the court might not hold the bond to be properly attested. In these circumstances, they prayed for an amendment of the plaint which was cause of action was stated to arise from the different payments made on different dates as were stated in paragraph 7 of the plaint and at the end of paragraph the following words were addedsuit is saved from limitation so far as the personal remedy is concerned and the payments were made by the defendants on different dates as mentioned Schedule Aamendments must be deemed in the eye of law to be a part of the original plaint, and obviously there is neither any averment nor proof that any of these payments was acknowledgment in writing prior to the institution of the suit. This being the position, the suit treated as one for obtaining a money decree against the defendants must be held to be barred by limitation at the date on which it was instituted and the courts below consequently were not justified in giving the plaintiffs a money decree in thisthese circumstances it would be natural to presume that the execution took place at Katihar some time before the document was presented for registration. On the other hand, it is nobodys case that any of the attesting witnesses had gone to Katihar; they belong to the plaintiffs village and were present at the time when the document was written. It was quite natural in these circumstances that they would sign the deed at the plaintiffs place and on the date when it was written. It might have been in contemplation of the parties that the executants should also sign the document on the same day but it seems that somehow or other that did not happen. We are not unmindful of the fact that no specific defence was taken by defendants 1 and 3 pleading want of attestation of this document and defendant No. 1 was also did not say anything on the point in his examination in chief. But the point was definitely taken in the written statement not only of the minor defendants but also of defendants 4 and 9, who are the sons of Bharath and defendant No. 2 respectively and they were no less interested in contesting the suit than defendants 1Moreover, a specific issue on the question of attestation was framed by the learned Subordinate Judge. On the whole, our conclusion is that the view taken on this point by the Subordinate Judge is right and it is difficult to hold on the internal evidence furnished by the contents of the document itself taken along with the statement of witnesses that the bond was attested in due and proper manner. This being our view, the other question as to whether we should pass a mortgage decree in this case in exercise of our powers under Order 41, Rule 33, Civil Procedure Code, in spite of the fact that the plaintiffs did not challenge the decision of the trial court by way of appeal or cross- objection does not require to be considered. | 1 | 4,145 | 1,160 | ### 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:
written and engrossed at the plaintiffs house at village Chakla Maulanagur and the date which the document bears is 21st Chaitra 1334 Fasli corresponding to 8th April, 1927. Obviously, it was attesting witnesses whose names appears in the deed, to wit, Sunderlal, Matukdhari Prasad, Dwarka Prasad and Nanak Prasad the last named person being also the scribe of the document -and all of them were residents of Chakla Maulanagur which is the place of residence of the mortgagees. The mortgagors, on the other hand are inhabitants of a different village, namely, Chandpur, Nanak Chand, the scribe, was not alive at the time when the suit came up for hearing and out of the remaining three witnesses two were examined on behalf of the plaintiffs. They are Sunderlal and Matukdhari Prasad. Sunderlal, who is P. W. 1, states when cross-examined on behalf of some of the defendants""I signed the bond at the plaintiffs house, as did the attesting witness."The attestation of the bond was on the same day that it was written."The other attesting witness, Matukdhari Prasad, during cross-examination said as follows :"The bond was written, signed by the executants and attested by the witnesses on the same date."The documents shows that all the three executants put their signatures to it on 12th of April, 1927, and on the same day it was presented for registration before the Registration Officer at Katihar. Katihar is at some distance from the plaintiffs village and a part of the journey has to be covered by train. The evidence of the two attesting witnesses makes it clear that the documents was attested on the same day as it was document was attested on the same day as it was written. As the document was written on the 8th but actually executed on the 12th, the Subordinate Judge was of opinion that the attesting witnesses must have signed the deed before it was executed and this was no attestation in the eye of law. The High court, on the other hand, has held that the vernacular equivalent of the word "written" as used by the attesting witnesses might mean execution as well and the Subordinate Judge, who was not familiar with the language of the witness might have committed the mistake of taking the word "written" in the sense of mere engrossing or scribing of the deed, although the word could be interpreted to mean execution as well. We do not think that this assumption on the part of the learned Judges of the High Court is justified. In the first place, Matukdhari Prasad, the plaintiffs own witness, is quite precise in his statement and makes a distinction between the writing of a document and its signing or execution. According to him, the bond was written, executed and attested on the same day. But what is more important for our purpose is the place of the execution of the document. If it was executed at the plaintiffs house, where it was admittedly written, the date of execution would naturally be the date when the deed was scribed or engrossed. This is exactly the suggestion which the plaintiffs lawyers made to defendant No. 1 Sant Lall when he was being cross- examined. He was asked as to whether the document was executed at the plaintiffs village or at Katihar, where it was taken for registration. The witness persisted in saying that he and the other executants put their signatures not at the place of the plaintiffs but at Katihar where they reached by train between 9 and 10 a.m. in the morning. This story seems to fit in with the circumstances and probabilities of the case. The document was certainly taken to Katihar on the 12th of April, 1927, and the executants were all present there on that day and admitted execution of the document by putting their signatures before the Registering Officer. The signatures by way of execution of the document also bear the same date. From these circumstances it would be natural to presume that the execution took place at Katihar some time before the document was presented for registration. On the other hand, it is nobodys case that any of the attesting witnesses had gone to Katihar; they belong to the plaintiffs village and were present at the time when the document was written. It was quite natural in these circumstances that they would sign the deed at the plaintiffs place and on the date when it was written. It might have been in contemplation of the parties that the executants should also sign the document on the same day but it seems that somehow or other that did not happen. We are not unmindful of the fact that no specific defence was taken by defendants 1 and 3 pleading want of attestation of this document and defendant No. 1 was also did not say anything on the point in his examination in chief. But the point was definitely taken in the written statement not only of the minor defendants but also of defendants 4 and 9, who are the sons of Bharath and defendant No. 2 respectively and they were no less interested in contesting the suit than defendants 1 to3. Moreover, a specific issue on the question of attestation was framed by the learned Subordinate Judge. On the whole, our conclusion is that the view taken on this point by the Subordinate Judge is right and it is difficult to hold on the internal evidence furnished by the contents of the document itself taken along with the statement of witnesses that the bond was attested in due and proper manner. This being our view, the other question as to whether we should pass a mortgage decree in this case in exercise of our powers under Order 41, Rule 33, Civil Procedure Code, in spite of the fact that the plaintiffs did not challenge the decision of the trial court by way of appeal or cross- objection does not require to be considered.10.
### Response:
1
### Explanation:
payment has got to be proved in a particular way and for reason of policy the legislature insists on a written or signed acknowledgment as the only proof of payment and excludes oral testimony. Unless, there fore, there is acknowledgment in the required from, the payment by itself is of no avail. The Subordinate Judge, however, is right in holding that while the section requires that the payment should be made within that period. To interpret the proviso in that way would be to import into it certain works which do not occur there. This is the view taken by almost all the High Courts in India and to us it seems to be a proper view to take (1).But while it is not necessary that the written acknowledgment should be made prior to the expiry of the period of limitation, it is, in our opinion, essential that such acknowledgment, whether made before or after the period of limitation, must be in existence prior to the institution of the suit. Whether a suit is time-barred or not has got to be determined exclusively with reference to the date on which the plaint is filed and the allegation made therein. The legislature has expressly declared in section 3 of the Limitation Act that whether defence of limitation be pleaded or not, the court is bound to dismiss a suit which is brought after the period provided there fore in the first schedule to the Limitation Act. If the plaintiffs right of action is apparently barred under the statute of limitation, Order 7, Rule 6, of the Civil Procedure Code makes it his duty to state specifically in the plaint the grounds of exemption allowed by the Limitation Act upon which he relies to exclude its operation; and if the plaintiff has got to allege in his plaint the facts which entitle him to exemption, obviously these facts must be in existence at or before the time when the plaint is filed; facts which come into existence after the filing of the plaint cannot be called in aid to revive a right of action which was dead at the date of the suit. To claim exemption under section 20 of the Limitation Act the plaintiff must be in a position to allege and prove not only that there was payment of interest on a debt or part payment of the principal, but that such payment had been acknowledged in writing in the manner contemplated by that section. The ground of exemption is not complete without this second element, and unless both these elements are proved to exist at the date of the filing of the plaint the suit would be held to be time-barred. In the plaint as it was originally filed in this case, the prayer was only for a mortgage decree in the usual form. After the hearing was closed, the plaintiffs, it seems, were apprehensive that the court might not hold the bond to be properly attested. In these circumstances, they prayed for an amendment of the plaint which was cause of action was stated to arise from the different payments made on different dates as were stated in paragraph 7 of the plaint and at the end of paragraph the following words were addedsuit is saved from limitation so far as the personal remedy is concerned and the payments were made by the defendants on different dates as mentioned Schedule Aamendments must be deemed in the eye of law to be a part of the original plaint, and obviously there is neither any averment nor proof that any of these payments was acknowledgment in writing prior to the institution of the suit. This being the position, the suit treated as one for obtaining a money decree against the defendants must be held to be barred by limitation at the date on which it was instituted and the courts below consequently were not justified in giving the plaintiffs a money decree in thisthese circumstances it would be natural to presume that the execution took place at Katihar some time before the document was presented for registration. On the other hand, it is nobodys case that any of the attesting witnesses had gone to Katihar; they belong to the plaintiffs village and were present at the time when the document was written. It was quite natural in these circumstances that they would sign the deed at the plaintiffs place and on the date when it was written. It might have been in contemplation of the parties that the executants should also sign the document on the same day but it seems that somehow or other that did not happen. We are not unmindful of the fact that no specific defence was taken by defendants 1 and 3 pleading want of attestation of this document and defendant No. 1 was also did not say anything on the point in his examination in chief. But the point was definitely taken in the written statement not only of the minor defendants but also of defendants 4 and 9, who are the sons of Bharath and defendant No. 2 respectively and they were no less interested in contesting the suit than defendants 1Moreover, a specific issue on the question of attestation was framed by the learned Subordinate Judge. On the whole, our conclusion is that the view taken on this point by the Subordinate Judge is right and it is difficult to hold on the internal evidence furnished by the contents of the document itself taken along with the statement of witnesses that the bond was attested in due and proper manner. This being our view, the other question as to whether we should pass a mortgage decree in this case in exercise of our powers under Order 41, Rule 33, Civil Procedure Code, in spite of the fact that the plaintiffs did not challenge the decision of the trial court by way of appeal or cross- objection does not require to be considered.
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ANIL KHADKIWALA Vs. STATE (GOVERNMENT OF NCT OF DELHI) AND ANOTHER | in his earlier application under Section 482, Cr.P.C. that he had resigned from the Company on 20.01.2001 and which had been accepted. From the tenor of the order of the High Court on the earlier occasion it does not appear that Form 32 issued by the Registrar of Companies was brought on record in support of the resignation. The High Court dismissed the quashing application without considering the contention of the appellant that he had resigned from the post of the Director of the Company prior to the issuance of the cheques and the effect thereof in the facts and circumstances of the case. The High Court in the fresh application under Section 482, Cr.P.C. initially was therefore satisfied to issue notice in the matter after noticing the Form 32 certificate. Naturally there was a difference between the earlier application and the subsequent one, inasmuch as the statutory Form 32 did not fall for consideration by the Court earlier. The factum of resignation is not in dispute between the parties. The subsequent application, strictly speaking, therefore cannot be said to a repeat application squarely on the same facts and circumstances. 8. In Mohan Singh (supra), it was held that a successive application under Section 482, Cr.P.C. under changed circumstances was maintainable and the dismissal of the earlier application was no bar to the same, observing: 2. …… Here, the situation is wholly different. The earlier application which was rejected by the High Court was an application under Section 561A of the CrPC to quash the proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one and half years without any progress at all and it was in these circumstances that respondents Nos. 1 and 2 were constrained to make a fresh application to the High Court under Section 561-A to quash the proceeding. It is difficult to see how in these circumstances it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the Order made by it on the earlier application. Section 561-A preserves the inherent power of the High Court to make such Orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents Nos. 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of respondents Nos. 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years………... 9. In Harshendra Kumar D. vs. Rebatilata Koley Etc., 2011 Crl.L.J. 1626, this Court held: 22. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to Appellants resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the Appellant has resigned much before the cheques were issued by the Company. As noticed above, the Appellant resigned from the post of Director on March 2, 2004. The dishonoured cheques were issued by the Company on April 30, 2004, i.e., much after the Appellant had resigned from the post of Director of the Company. The acceptance of Appellants resignation is duly reflected in the resolution dated March 2, 2004. Then in the prescribed form (Form No. 32), the Company informed to the Registrar of Companies on March 4, 2004 about Appellants resignation. It is not even the case of the complainants that the dishonoured cheques were issued by the Appellant. These facts leave no manner of doubt that on the date the offence was committed by the Company, the Appellant was not the Director; he had nothing to do with the affairs of the Company. In this view of the matter, if the criminal complaints are allowed to proceed against the Appellant, it would result in gross injustice to the Appellant and tantamount to an abuse of process of the court. 10. Atul Shukla (supra) is clearly distinguishable on its facts as the relief sought was for review/recall/modify the earlier order of dismissal in the interest of justice. Consequently, the earlier order of dismissal was recalled. It was in that circumstance, it was held that in view of Section 362, Cr.P.C. the earlier order passed dismissing the quashing application could not have been recalled. The case is completely distinguishable on its own facts 11. The Company, of which the appellant was a Director, is a party respondent in the complaint. The interests of the complainant are therefore adequately protected. In the entirety of the facts and circumstances of the case, we are unable to hold that the second application for quashing of the complaint was not maintainable merely because of the dismissal of the earlier application. | 1[ds]6. We have considered the respective submissions on behalf of the parties and are of the opinion that the appeal deserves to be allowed for the reasons enumerated hereinafter28.02.2001. The appellant in his reply dated 31.08.2001, to the statutory notice, had denied answerability in view of his resignation on 20.01.2001. This fact does not find mention in the complaint. There is no allegation in the complaint that the cheques were post-dated. Even otherwise, the appellant had taken a specific objection in his earlier application under Section 482, Cr.P.C. that he had resigned from the Company on 20.01.2001 and which had been accepted. From the tenor of the order of the High Court on the earlier occasion it does not appear that Form 32 issued by the Registrar of Companies was brought on record in support of the resignation. The High Court dismissed the quashing application without considering the contention of the appellant that he had resigned from the post of the Director of the Company prior to the issuance of the cheques and the effect thereof in the facts and circumstances of the case. The High Court in the fresh application under Section 482, Cr.P.C. initially was therefore satisfied to issue notice in the matter after noticing the Form 32 certificate. Naturally there was a difference between the earlier application and the subsequent one, inasmuch as the statutory Form 32 did not fall for consideration by the Court earlier. The factum of resignation is not in dispute between the parties. The subsequent application, strictly speaking, therefore cannot be said to a repeat application squarely on the same facts and circumstances.10. Atul Shukla (supra) is clearly distinguishable on its facts as the relief sought was for review/recall/modify the earlier order of dismissal in the interest of justice. Consequently, the earlier order of dismissal was recalled. It was in that circumstance, it was held that in view of Section 362, Cr.P.C. the earlier order passed dismissing the quashing application could not have been recalled. The case is completely distinguishable on its own facts11. The Company, of which the appellant was a Director, is a party respondent in the complaint. The interests of the complainant are therefore adequately protected. In the entirety of the facts and circumstances of the case, we are unable to hold that the second application for quashing of the complaint was not maintainable merely because of the dismissal of the earlier application. | 1 | 1,588 | 446 | ### Instruction:
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in his earlier application under Section 482, Cr.P.C. that he had resigned from the Company on 20.01.2001 and which had been accepted. From the tenor of the order of the High Court on the earlier occasion it does not appear that Form 32 issued by the Registrar of Companies was brought on record in support of the resignation. The High Court dismissed the quashing application without considering the contention of the appellant that he had resigned from the post of the Director of the Company prior to the issuance of the cheques and the effect thereof in the facts and circumstances of the case. The High Court in the fresh application under Section 482, Cr.P.C. initially was therefore satisfied to issue notice in the matter after noticing the Form 32 certificate. Naturally there was a difference between the earlier application and the subsequent one, inasmuch as the statutory Form 32 did not fall for consideration by the Court earlier. The factum of resignation is not in dispute between the parties. The subsequent application, strictly speaking, therefore cannot be said to a repeat application squarely on the same facts and circumstances. 8. In Mohan Singh (supra), it was held that a successive application under Section 482, Cr.P.C. under changed circumstances was maintainable and the dismissal of the earlier application was no bar to the same, observing: 2. …… Here, the situation is wholly different. The earlier application which was rejected by the High Court was an application under Section 561A of the CrPC to quash the proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one and half years without any progress at all and it was in these circumstances that respondents Nos. 1 and 2 were constrained to make a fresh application to the High Court under Section 561-A to quash the proceeding. It is difficult to see how in these circumstances it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the Order made by it on the earlier application. Section 561-A preserves the inherent power of the High Court to make such Orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents Nos. 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of respondents Nos. 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years………... 9. In Harshendra Kumar D. vs. Rebatilata Koley Etc., 2011 Crl.L.J. 1626, this Court held: 22. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to Appellants resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the Appellant has resigned much before the cheques were issued by the Company. As noticed above, the Appellant resigned from the post of Director on March 2, 2004. The dishonoured cheques were issued by the Company on April 30, 2004, i.e., much after the Appellant had resigned from the post of Director of the Company. The acceptance of Appellants resignation is duly reflected in the resolution dated March 2, 2004. Then in the prescribed form (Form No. 32), the Company informed to the Registrar of Companies on March 4, 2004 about Appellants resignation. It is not even the case of the complainants that the dishonoured cheques were issued by the Appellant. These facts leave no manner of doubt that on the date the offence was committed by the Company, the Appellant was not the Director; he had nothing to do with the affairs of the Company. In this view of the matter, if the criminal complaints are allowed to proceed against the Appellant, it would result in gross injustice to the Appellant and tantamount to an abuse of process of the court. 10. Atul Shukla (supra) is clearly distinguishable on its facts as the relief sought was for review/recall/modify the earlier order of dismissal in the interest of justice. Consequently, the earlier order of dismissal was recalled. It was in that circumstance, it was held that in view of Section 362, Cr.P.C. the earlier order passed dismissing the quashing application could not have been recalled. The case is completely distinguishable on its own facts 11. The Company, of which the appellant was a Director, is a party respondent in the complaint. The interests of the complainant are therefore adequately protected. In the entirety of the facts and circumstances of the case, we are unable to hold that the second application for quashing of the complaint was not maintainable merely because of the dismissal of the earlier application.
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6. We have considered the respective submissions on behalf of the parties and are of the opinion that the appeal deserves to be allowed for the reasons enumerated hereinafter28.02.2001. The appellant in his reply dated 31.08.2001, to the statutory notice, had denied answerability in view of his resignation on 20.01.2001. This fact does not find mention in the complaint. There is no allegation in the complaint that the cheques were post-dated. Even otherwise, the appellant had taken a specific objection in his earlier application under Section 482, Cr.P.C. that he had resigned from the Company on 20.01.2001 and which had been accepted. From the tenor of the order of the High Court on the earlier occasion it does not appear that Form 32 issued by the Registrar of Companies was brought on record in support of the resignation. The High Court dismissed the quashing application without considering the contention of the appellant that he had resigned from the post of the Director of the Company prior to the issuance of the cheques and the effect thereof in the facts and circumstances of the case. The High Court in the fresh application under Section 482, Cr.P.C. initially was therefore satisfied to issue notice in the matter after noticing the Form 32 certificate. Naturally there was a difference between the earlier application and the subsequent one, inasmuch as the statutory Form 32 did not fall for consideration by the Court earlier. The factum of resignation is not in dispute between the parties. The subsequent application, strictly speaking, therefore cannot be said to a repeat application squarely on the same facts and circumstances.10. Atul Shukla (supra) is clearly distinguishable on its facts as the relief sought was for review/recall/modify the earlier order of dismissal in the interest of justice. Consequently, the earlier order of dismissal was recalled. It was in that circumstance, it was held that in view of Section 362, Cr.P.C. the earlier order passed dismissing the quashing application could not have been recalled. The case is completely distinguishable on its own facts11. The Company, of which the appellant was a Director, is a party respondent in the complaint. The interests of the complainant are therefore adequately protected. In the entirety of the facts and circumstances of the case, we are unable to hold that the second application for quashing of the complaint was not maintainable merely because of the dismissal of the earlier application.
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MATADIN SURAJMAL RAJORIA (DECEASED) THROUGH SOLE LEGATEE LALITA SATYANARAYAN KHANDELAWAL Vs. RAMDWAR MAHAVIR PANDE (DEAD) THR. LRS. & ORS | made by the defendants, after carrying out measurement on the basis of sale deeds (Exhibits 47,66), whereafter one Amol Giri was appointed as the Surveyor/Court Commissioner for joint measurement of the suit property. The Court Commissioner visited the site on 28.11.2016 in Survey no. 25/4 in Village Mhasala and prepared the measurement map (Exhibit 131), in presence of the parties. The surveyor was examined before the Court on 5.7.2017 and on his cross-examination, the following was elicited: ….It is correct to say that, according to the map, remaining 38 Are land is in possession of Sudamadevi. 1 Are land means 1076 Sq. Ft. 38 Are agricultural land means 40888 Sq. Ft area. As per sale deed at Exh.66, Sudamadevi Pande is owner of 2000 Sq. FT. The land highlighted with Green colour in the map is in possession of Sudamadevi Pande. The land in pink colour towards northern side of the map adjacent to NMLK letters if measured from green coloured land it comes to 2000 Sq. Ft. Similarly, if the lower side of the said colour if joined to green line towards western side, it will come to 2000 Sq. Ft. It appearsthat, the land in Map at Exh. 31 towards southern side of the land shown in pink colour at the northern side is encroached land. The six persons shown in the Map Exh. 31 were present at the time of measurement. 6. The High Court, on being informed of the conclusion of the survey exercise, on 22.2.2018 ordered the Appellate Court to certify the 7.6.2016 findings on the encroachment recorded by the Trial Court, in terms of Rule 470 of the Civil Manual. Both parties were directed to present themselves before the Appellate Court for the ordered exercise. Following such direction, the first Appellate Court considered the matter and vide its order dated 10.04.2018, reversed the findings of the Trial Court and held that, as per the map prepared by the Court Commissioner, the defendants had committed encroachment to an extent of land measuring 38 R (40888 square feet). In view of such development, on 2.5.2018 the High Court framed the following substantial question of law for the decision in the Second Appeal:- Whether in the face of order dated 10.04.2018 passed by the appellate Court in pursuance of direction of this Court for appointment of Surveyor and carrying out measurement in the present case, the concurrent findings rendered by the two Courts below are sustainable? 7. The plaintiffs second appeal was however dismissed and accordingly the impugned judgment favouring the defendants is challenged in this appeal. 8. The learned Senior Counsel for the appellant Mr. S. Niranjan Reddy submits that the High Court failed to appropriately consider the measurement map (Exhibit 131) and the deposition of the Court appointed Surveyor and thereby rendered an erroneous finding which overlooks the encroachment by the respondentsdefendants. According to the appellant the recital in the plaintiffs sale deed dated 28.12.1995 (Exhibit 47) was misconstrued by the Court. It is also the say of the counsel that the Court should have weighed the fact that the defendants claim on the basis of the respective sale deeds (dated 17.04.1969 and 2.11.1977) mismatch with the land under defendants occupation. The area occupied measure 38R (40,888 sq. ft.) whereas this is not compatible with the extent of land mentioned in the sale deeds relied by the defendants. As such, it is argued that due credence should have been given to the finding of the Courts Surveyor that the defendants are in illegal possession of excess land. 9. On the other hand, Mr. V.K. Shukla, learned Senior Counsel refers to the concurrent findings in favour of the defendants by the Trial Court, the Appellate Court and the High Court and argues that the appeal in the present facts, is not to be entertained by this Court. For the defendants, the counsel refers to the plaintiffs sale deed (Exhibit 47) to point out that the sale deed itself specifically mentioned the area under occupation of the two defendants in the land purchased by the plaintiff. It is therefore argued that the plaintiff on the basis of the sale deed (Exhibit 47) can have no legitimate claim on the areas under occupation of the defendants since before the sale transaction of the plaintiff. 10. The contention advanced by the rival counsel have been considered. While concurrent findings of Courts below are not to be routinely interfered, it is seen that there was a second round in the litigation and another substantial question of law was formulated by the High Court for adjudication of the second appeal. However, no specific finding on such question of law was ever recorded in the impugned judgment. The learned Judge skirted the issue and instead endorsed the findings of the courts below to the effect that the defendants had not made any encroachment, after the plaintiff purchased the land on 28.12.1995 under the Exhibit 47 Sale deed. The conclusion in the second appeal was therefore devoid of any independent finding on the substantial question of law formulated by the Court itself on 2.5.2018. With the required finding on the additional issue, a contrary conclusion favouring the other side, cant entirely be ruled out in the second appeal. This is particularly possible because of the mismatch between the area under occupation of the defendants and the smaller area covered in their two sale deeds. The aspect of defendants occupation of certain lands, being mentioned in the plaintiffs sale deed, must also weigh with the Court, in view of the fresh evidence generated by the court appointed surveyor. 11. The above has persuaded us to hold that the High Court erred in not recording a finding on the question of law formulated later, to account for the Court Surveyors report, vis-à-vis the legal battle over the suit land. Without the decision on the relevant aspect which goes to the root of the dispute, the impugned judgment in our assessment, fails the scrutiny of law. | 1[ds]10. The contention advanced by the rival counsel have been considered. While concurrent findings of Courts below are not to be routinely interfered, it is seen that there was a second round in the litigation and another substantial question of law was formulated by the High Court for adjudication of the second appeal. However, no specific finding on such question of law was ever recorded in the impugned judgment. The learned Judge skirted the issue and instead endorsed the findings of the courts below to the effect that the defendants had not made any encroachment, after the plaintiff purchased the land on 28.12.1995 under the Exhibit 47 Sale deed. The conclusion in the second appeal was therefore devoid of any independent finding on the substantial question of law formulated by the Court itself on 2.5.2018. With the required finding on the additional issue, a contrary conclusion favouring the other side, cant entirely be ruled out in the second appeal. This is particularly possible because of the mismatch between the area under occupation of the defendants and the smaller area covered in their two sale deeds. The aspect of defendants occupation of certain lands, being mentioned in the plaintiffs sale deed, must also weigh with the Court, in view of the fresh evidence generated by the court appointed surveyor.11. The above has persuaded us to hold that the High Court erred in not recording a finding on the question of law formulated later, to account for the Court Surveyors report, vis-à-vis the legal battle over the suit land. Without the decision on the relevant aspect which goes to the root of the dispute, the impugned judgment in our assessment, fails the scrutiny of law. | 1 | 1,714 | 310 | ### Instruction:
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made by the defendants, after carrying out measurement on the basis of sale deeds (Exhibits 47,66), whereafter one Amol Giri was appointed as the Surveyor/Court Commissioner for joint measurement of the suit property. The Court Commissioner visited the site on 28.11.2016 in Survey no. 25/4 in Village Mhasala and prepared the measurement map (Exhibit 131), in presence of the parties. The surveyor was examined before the Court on 5.7.2017 and on his cross-examination, the following was elicited: ….It is correct to say that, according to the map, remaining 38 Are land is in possession of Sudamadevi. 1 Are land means 1076 Sq. Ft. 38 Are agricultural land means 40888 Sq. Ft area. As per sale deed at Exh.66, Sudamadevi Pande is owner of 2000 Sq. FT. The land highlighted with Green colour in the map is in possession of Sudamadevi Pande. The land in pink colour towards northern side of the map adjacent to NMLK letters if measured from green coloured land it comes to 2000 Sq. Ft. Similarly, if the lower side of the said colour if joined to green line towards western side, it will come to 2000 Sq. Ft. It appearsthat, the land in Map at Exh. 31 towards southern side of the land shown in pink colour at the northern side is encroached land. The six persons shown in the Map Exh. 31 were present at the time of measurement. 6. The High Court, on being informed of the conclusion of the survey exercise, on 22.2.2018 ordered the Appellate Court to certify the 7.6.2016 findings on the encroachment recorded by the Trial Court, in terms of Rule 470 of the Civil Manual. Both parties were directed to present themselves before the Appellate Court for the ordered exercise. Following such direction, the first Appellate Court considered the matter and vide its order dated 10.04.2018, reversed the findings of the Trial Court and held that, as per the map prepared by the Court Commissioner, the defendants had committed encroachment to an extent of land measuring 38 R (40888 square feet). In view of such development, on 2.5.2018 the High Court framed the following substantial question of law for the decision in the Second Appeal:- Whether in the face of order dated 10.04.2018 passed by the appellate Court in pursuance of direction of this Court for appointment of Surveyor and carrying out measurement in the present case, the concurrent findings rendered by the two Courts below are sustainable? 7. The plaintiffs second appeal was however dismissed and accordingly the impugned judgment favouring the defendants is challenged in this appeal. 8. The learned Senior Counsel for the appellant Mr. S. Niranjan Reddy submits that the High Court failed to appropriately consider the measurement map (Exhibit 131) and the deposition of the Court appointed Surveyor and thereby rendered an erroneous finding which overlooks the encroachment by the respondentsdefendants. According to the appellant the recital in the plaintiffs sale deed dated 28.12.1995 (Exhibit 47) was misconstrued by the Court. It is also the say of the counsel that the Court should have weighed the fact that the defendants claim on the basis of the respective sale deeds (dated 17.04.1969 and 2.11.1977) mismatch with the land under defendants occupation. The area occupied measure 38R (40,888 sq. ft.) whereas this is not compatible with the extent of land mentioned in the sale deeds relied by the defendants. As such, it is argued that due credence should have been given to the finding of the Courts Surveyor that the defendants are in illegal possession of excess land. 9. On the other hand, Mr. V.K. Shukla, learned Senior Counsel refers to the concurrent findings in favour of the defendants by the Trial Court, the Appellate Court and the High Court and argues that the appeal in the present facts, is not to be entertained by this Court. For the defendants, the counsel refers to the plaintiffs sale deed (Exhibit 47) to point out that the sale deed itself specifically mentioned the area under occupation of the two defendants in the land purchased by the plaintiff. It is therefore argued that the plaintiff on the basis of the sale deed (Exhibit 47) can have no legitimate claim on the areas under occupation of the defendants since before the sale transaction of the plaintiff. 10. The contention advanced by the rival counsel have been considered. While concurrent findings of Courts below are not to be routinely interfered, it is seen that there was a second round in the litigation and another substantial question of law was formulated by the High Court for adjudication of the second appeal. However, no specific finding on such question of law was ever recorded in the impugned judgment. The learned Judge skirted the issue and instead endorsed the findings of the courts below to the effect that the defendants had not made any encroachment, after the plaintiff purchased the land on 28.12.1995 under the Exhibit 47 Sale deed. The conclusion in the second appeal was therefore devoid of any independent finding on the substantial question of law formulated by the Court itself on 2.5.2018. With the required finding on the additional issue, a contrary conclusion favouring the other side, cant entirely be ruled out in the second appeal. This is particularly possible because of the mismatch between the area under occupation of the defendants and the smaller area covered in their two sale deeds. The aspect of defendants occupation of certain lands, being mentioned in the plaintiffs sale deed, must also weigh with the Court, in view of the fresh evidence generated by the court appointed surveyor. 11. The above has persuaded us to hold that the High Court erred in not recording a finding on the question of law formulated later, to account for the Court Surveyors report, vis-à-vis the legal battle over the suit land. Without the decision on the relevant aspect which goes to the root of the dispute, the impugned judgment in our assessment, fails the scrutiny of law.
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10. The contention advanced by the rival counsel have been considered. While concurrent findings of Courts below are not to be routinely interfered, it is seen that there was a second round in the litigation and another substantial question of law was formulated by the High Court for adjudication of the second appeal. However, no specific finding on such question of law was ever recorded in the impugned judgment. The learned Judge skirted the issue and instead endorsed the findings of the courts below to the effect that the defendants had not made any encroachment, after the plaintiff purchased the land on 28.12.1995 under the Exhibit 47 Sale deed. The conclusion in the second appeal was therefore devoid of any independent finding on the substantial question of law formulated by the Court itself on 2.5.2018. With the required finding on the additional issue, a contrary conclusion favouring the other side, cant entirely be ruled out in the second appeal. This is particularly possible because of the mismatch between the area under occupation of the defendants and the smaller area covered in their two sale deeds. The aspect of defendants occupation of certain lands, being mentioned in the plaintiffs sale deed, must also weigh with the Court, in view of the fresh evidence generated by the court appointed surveyor.11. The above has persuaded us to hold that the High Court erred in not recording a finding on the question of law formulated later, to account for the Court Surveyors report, vis-à-vis the legal battle over the suit land. Without the decision on the relevant aspect which goes to the root of the dispute, the impugned judgment in our assessment, fails the scrutiny of law.
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Praga Tools Corporation Vs. Shri C. A. Imanual & Ors | for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings.A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities. [Cf. Halsburys Laws of England (3rd Ed.), Vol. II, p. 52 and onwards].7. The company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company.8. The grievance of the company, however is that though the High Court held rightly that no such petition was maintainable, it nevertheless granted a declaration in favour of three of the said workmen, a declaration which it could not issue once it held that the said writ petition was misconceived. The argument was that such a declaration, if at all, could only issue against public bodies or companies or corporations set up or controlled by statutes in respect of acts done by them contrary to or in breach of the provisions of such statutes. If a public authority purports to dismiss an employee otherwise than in accordance with mandatory procedural requirements or on grounds other than those sanctioned by the statute the courts would have jurisdiction to declare its act a nullity. Thus, where a Hospital Services Board dismissed a clerk for reasons not authorised by the relevant conditions of service a declaration was granted to the applicant by the House of Lords. [Mc Clelland v. Northern Ireland General Health Services Board, 1957-1 WLR 594]. Even where a statutory power of dismissal is not made subject to express procedural requirements or limited to prescribed grounds courts have granted a declaration that it was invalidly exercised if the authority has failed to observe rules of natural justice or has acted capriciously or in bad faith or for impliedly unauthorised purposes. [See Ridge v. Baldwin, 1964 AC 40 and Short v. Poole Corporation, 1926 Ch 66 at pp. 90 and 91.] Declarations of invalidity have often been founded on successful assertions that a public duty has not been complied with. See Attorney General v. St. Ives R. D. C., 1961-1 QB 366. It is, therefore, fairly clear that such a declaration can be issued against a person or an authority or a corporation where the impugned act is in violation of or contrary to a statute under which it is set up or governed or a public duty or responsibility imposed on such person, authority or body by such statute.9. The High Court, however, relied on two decisions of this Court as justifying it to issue the said declaration. The two decisions are Bidi, Bidi leaves and Tobacco Merchants Association v. The State of Bombay, 1962 Supp 1 SCR 381 = (AIR 1962 SC 486 ) and A. B. Abdulkadir v. State of Kerala, 1962 Supp (2) SCR 741 = (AIR 1962 SC 922 ). But neither of these two decisions is a parallel case which could be relied on. In the first case, the declaration was granted not against a company, as in the present case, but against the State Government and the declaration was as regards the invalidity of certain clauses of a notification issued by the Government in pursuance of power under Section 5 of the Minimum Wages Act, 1948 on the ground that the said clauses were beyond the purview of that section. In the second case also, certain rules made under the Cochin Tobacco Act of 1081 (M. E.) and the Travancore Tobacco Regulation of 1087 (M. E.) were declared void ab initio. These cases were therefore not cases where writ petitions were held to be not maintainable as having been filed against a company and despite that fact a declaration of invalidity of an impugned agreement having been granted.In our view once the writ petition was held to be misconceived on the ground that it could not lie against a company which was neither a statutory company nor one having public duties or responsibilities imposed on it by a statute, no relief by way of a declaration as to invalidity of an impugned agreement between it and its employees could be granted. The High Court in these circumstances ought to have left the workmen to resort to the remedy available to them under the Industrial Disputes Act by raising an industrial dispute thereunder. The only course left open to the High Court was therefore to dismiss it. No such declaration against a company registered under the Companies Act and not set up under any statute or having any public duties and responsibilities to perform under such a statute could be issued in writ proceedings in respect of an agreement which was essentially of a private character between it and its workmen. The High Court, therefore, was in error in granting the said declaration. | 1[ds]6. In our view the High Court was correct in holding that the writ petition filed under Art. 226 claiming against the company mandamus or an order in the nature of mandamus was misconceived and not maintainable. The writ obviously was claimed against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act as it was not he but the company who sought to implement the impugned agreement.No doubt, Article 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus, mandamus, etc, or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of restatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute.The company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against thea public authority purports to dismiss an employee otherwise than in accordance with mandatory procedural requirements or on grounds other than those sanctioned by the statute the courts would have jurisdiction to declare its act an where a statutory power of dismissal is not made subject to express procedural requirements or limited to prescribed grounds courts have granted a declaration that it was invalidly exercised if the authority has failed to observe rules of natural justice or has acted capriciously or in bad faith or for impliedly unauthorisedof invalidity have often been founded on successful assertions that a public duty has not been compliedis, therefore, fairly clear that such a declaration can be issued against a person or an authority or a corporation where the impugned act is in violation of or contrary to a statute under which it is set up or governed or a public duty or responsibility imposed on such person, authority or body by such statute.9. The High Court, however, relied on two decisions of this Court as justifying it to issue the said declaration. The two decisions are Bidi, Bidi leaves and Tobacco Merchants Association v. The State of Bombay, 1962 Supp 1 SCR 381 = (AIR 1962 SC 486 ) and A. B. Abdulkadir v. State of Kerala, 1962 Supp (2) SCR 741 = (AIR 1962 SC 922 ). But neither of these two decisions is a parallel case which could be relied on. In the first case, the declaration was granted not against a company, as in the present case, but against the State Government and the declaration was as regards the invalidity of certain clauses of a notification issued by the Government in pursuance of power under Section 5 of the Minimum Wages Act, 1948 on the ground that the said clauses were beyond the purview of that section. In the second case also, certain rules made under the Cochin Tobacco Act of 1081 (M. E.) and the Travancore Tobacco Regulation of 1087 (M. E.) were declared void ab initio. These cases were therefore not cases where writ petitions were held to be not maintainable as having been filed against a company and despite that fact a declaration of invalidity of an impugned agreement having been granted.In our view once the writ petition was held to be misconceived on the ground that it could not lie against a company which was neither a statutory company nor one having public duties or responsibilities imposed on it by a statute, no relief by way of a declaration as to invalidity of an impugned agreement between it and its employees could be granted. The High Court in these circumstances ought to have left the workmen to resort to the remedy available to them under the Industrial Disputes Act by raising an industrial dispute thereunder. The only course left open to the High Court was therefore to dismiss it. No such declaration against a company registered under the Companies Act and not set up under any statute or having any public duties and responsibilities to perform under such a statute could be issued in writ proceedings in respect of an agreement which was essentially of a private character between it and its workmen. The High Court, therefore, was in error in granting the said declaration. | 1 | 3,256 | 906 | ### Instruction:
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for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings.A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities. [Cf. Halsburys Laws of England (3rd Ed.), Vol. II, p. 52 and onwards].7. The company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company.8. The grievance of the company, however is that though the High Court held rightly that no such petition was maintainable, it nevertheless granted a declaration in favour of three of the said workmen, a declaration which it could not issue once it held that the said writ petition was misconceived. The argument was that such a declaration, if at all, could only issue against public bodies or companies or corporations set up or controlled by statutes in respect of acts done by them contrary to or in breach of the provisions of such statutes. If a public authority purports to dismiss an employee otherwise than in accordance with mandatory procedural requirements or on grounds other than those sanctioned by the statute the courts would have jurisdiction to declare its act a nullity. Thus, where a Hospital Services Board dismissed a clerk for reasons not authorised by the relevant conditions of service a declaration was granted to the applicant by the House of Lords. [Mc Clelland v. Northern Ireland General Health Services Board, 1957-1 WLR 594]. Even where a statutory power of dismissal is not made subject to express procedural requirements or limited to prescribed grounds courts have granted a declaration that it was invalidly exercised if the authority has failed to observe rules of natural justice or has acted capriciously or in bad faith or for impliedly unauthorised purposes. [See Ridge v. Baldwin, 1964 AC 40 and Short v. Poole Corporation, 1926 Ch 66 at pp. 90 and 91.] Declarations of invalidity have often been founded on successful assertions that a public duty has not been complied with. See Attorney General v. St. Ives R. D. C., 1961-1 QB 366. It is, therefore, fairly clear that such a declaration can be issued against a person or an authority or a corporation where the impugned act is in violation of or contrary to a statute under which it is set up or governed or a public duty or responsibility imposed on such person, authority or body by such statute.9. The High Court, however, relied on two decisions of this Court as justifying it to issue the said declaration. The two decisions are Bidi, Bidi leaves and Tobacco Merchants Association v. The State of Bombay, 1962 Supp 1 SCR 381 = (AIR 1962 SC 486 ) and A. B. Abdulkadir v. State of Kerala, 1962 Supp (2) SCR 741 = (AIR 1962 SC 922 ). But neither of these two decisions is a parallel case which could be relied on. In the first case, the declaration was granted not against a company, as in the present case, but against the State Government and the declaration was as regards the invalidity of certain clauses of a notification issued by the Government in pursuance of power under Section 5 of the Minimum Wages Act, 1948 on the ground that the said clauses were beyond the purview of that section. In the second case also, certain rules made under the Cochin Tobacco Act of 1081 (M. E.) and the Travancore Tobacco Regulation of 1087 (M. E.) were declared void ab initio. These cases were therefore not cases where writ petitions were held to be not maintainable as having been filed against a company and despite that fact a declaration of invalidity of an impugned agreement having been granted.In our view once the writ petition was held to be misconceived on the ground that it could not lie against a company which was neither a statutory company nor one having public duties or responsibilities imposed on it by a statute, no relief by way of a declaration as to invalidity of an impugned agreement between it and its employees could be granted. The High Court in these circumstances ought to have left the workmen to resort to the remedy available to them under the Industrial Disputes Act by raising an industrial dispute thereunder. The only course left open to the High Court was therefore to dismiss it. No such declaration against a company registered under the Companies Act and not set up under any statute or having any public duties and responsibilities to perform under such a statute could be issued in writ proceedings in respect of an agreement which was essentially of a private character between it and its workmen. The High Court, therefore, was in error in granting the said declaration.
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6. In our view the High Court was correct in holding that the writ petition filed under Art. 226 claiming against the company mandamus or an order in the nature of mandamus was misconceived and not maintainable. The writ obviously was claimed against the company and not against the conciliation officer in respect of any public or statutory duty imposed on him by the Act as it was not he but the company who sought to implement the impugned agreement.No doubt, Article 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus, mandamus, etc, or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of restatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute.The company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against thea public authority purports to dismiss an employee otherwise than in accordance with mandatory procedural requirements or on grounds other than those sanctioned by the statute the courts would have jurisdiction to declare its act an where a statutory power of dismissal is not made subject to express procedural requirements or limited to prescribed grounds courts have granted a declaration that it was invalidly exercised if the authority has failed to observe rules of natural justice or has acted capriciously or in bad faith or for impliedly unauthorisedof invalidity have often been founded on successful assertions that a public duty has not been compliedis, therefore, fairly clear that such a declaration can be issued against a person or an authority or a corporation where the impugned act is in violation of or contrary to a statute under which it is set up or governed or a public duty or responsibility imposed on such person, authority or body by such statute.9. The High Court, however, relied on two decisions of this Court as justifying it to issue the said declaration. The two decisions are Bidi, Bidi leaves and Tobacco Merchants Association v. The State of Bombay, 1962 Supp 1 SCR 381 = (AIR 1962 SC 486 ) and A. B. Abdulkadir v. State of Kerala, 1962 Supp (2) SCR 741 = (AIR 1962 SC 922 ). But neither of these two decisions is a parallel case which could be relied on. In the first case, the declaration was granted not against a company, as in the present case, but against the State Government and the declaration was as regards the invalidity of certain clauses of a notification issued by the Government in pursuance of power under Section 5 of the Minimum Wages Act, 1948 on the ground that the said clauses were beyond the purview of that section. In the second case also, certain rules made under the Cochin Tobacco Act of 1081 (M. E.) and the Travancore Tobacco Regulation of 1087 (M. E.) were declared void ab initio. These cases were therefore not cases where writ petitions were held to be not maintainable as having been filed against a company and despite that fact a declaration of invalidity of an impugned agreement having been granted.In our view once the writ petition was held to be misconceived on the ground that it could not lie against a company which was neither a statutory company nor one having public duties or responsibilities imposed on it by a statute, no relief by way of a declaration as to invalidity of an impugned agreement between it and its employees could be granted. The High Court in these circumstances ought to have left the workmen to resort to the remedy available to them under the Industrial Disputes Act by raising an industrial dispute thereunder. The only course left open to the High Court was therefore to dismiss it. No such declaration against a company registered under the Companies Act and not set up under any statute or having any public duties and responsibilities to perform under such a statute could be issued in writ proceedings in respect of an agreement which was essentially of a private character between it and its workmen. The High Court, therefore, was in error in granting the said declaration.
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Mahesh Stationaries & Anr Vs. Indiabulls Financial Services Ltd | T.S. Thakur, J. 1. In this petition under Section 406 of the Cr.P.C., the petitioners seek transfer of Criminal Complaint No.14089 of 2009 from the Court of Judicial Magistrate, First Class, Gurgaon, Haryana to the Court of competent jurisdiction at Bangalore.2. The petitioner appears to have borrowed a loan of Rs.15,00,000/- (Rupees Fifteen Lakh) for business purposes from the respondent-company. A cheque allegedly issued in partial repayment of the loan amount and drawn on the Syndicate Bank, City Market Branch, Bangalore, when presented for encashment to ING Vysya Bank, Gurgaon appears to have been dishonoured resulting in the issue of statutory notices to the petitioners and eventual filing of a complaint before the Judicial Magistrate, First Class at Gurgaon under Section 138 of The Negotiable Instruments Act, 1881. The Magistrate has taken cognizance and summoned the petitioners for appearance to face the trial. Petitioners have, in that backdrop, filed the present transfer petition seeking transfer of the complaint afore-mentioned from Gurgaon to the competent Court at Bangalore. 3. Petitioners’ case, as is evident from the averments made in the transfer petition, is that the Courts at Gurgaon have no jurisdiction to entertain the complaint specially when the cheque in question was issued and dishonoured at Bangalore and the offence, if any, was committed only at Bangalore. Issue of statutory notices to the petitioners from Gurgaon also does not confer jurisdiction upon the Courts concerned or justify continuance of the proceedings at Gurgaon.4. Having heard learned counsel for the parties, we are inclined to allow this petition. We say so because in para 7 of the complaint filed by the respondent-complainant the reason for filing the complaint at Gurgaon has been set out, thus: “That the cause of action for filing the present complaint arose when the aforesaid cheque was issued to the complainant company when the intimation regarding dishonour of the said cheque was received when the aforesaid legal notice under Section 138 of the N.I. Act was sent to the accused and on the failure of the accused to make payment despite being served with the said notice within the stipulated period of 15 days. The cause of action is still subsisting and continuing. This Hon’ble Court has jurisdiction to take cognizance of the offence as the cause of action arose within the jurisdiction of this Hon’ble Court. The complaint is within the period of limitation as per law.” 5. It is evident from the above that the only reason the complainant claims jurisdiction for the Courts at Gurgaon is the fact that the complainant-respondent had issued the statutory notices relating to the dishonour of the cheque from Gurgaon. We do not think that issue of a statutory notice can by itself confer jurisdiction upon the Court to take cognizance of an offence under Section 138 of The Negotiable Instruments Act. We say so because in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009) 1 SCC 720 this Court examined a similar question and clearly ruled that a unilateral act on the part of the complainant of issuing a notice from any part of the country would not vest the Court from within whose territorial limits the notice has been issued with the power to entertain a complaint. That judgment has been affirmed by a three-judge bench of this Court in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. Criminal Appeal No.2287 of 2009 delivered on 1st August, 2014. This Court has in that case held that presentation of the cheque at a place of the choice of the complainant or issue of a notice from any such place do not constitute ingredients of the offence under Section 138 and cannot, therefore, confer jurisdiction upon the Court from where such acts are performed. Although the complaint does not claim jurisdiction for the Court at Gurgaon on the ground that the cheque was presented for collection there yet in the Counter affidavit, the respondent has tried to justify the filing of the complaint on that ground. Dashrath Rupsingh’s case (supra), however, does not, as mentioned above, accept presentation of a cheque to be a valid presentation for purposes of limitation within the meaning of Section 138 unless the same is to the drawee bank. That is the view taken even in Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609. On either ground, therefore, the Courts in Gurgaon could not assume jurisdiction. Following the decisions in Dashrath Rupsingh’s and Ishar Alloy Steels cases (supra), we have no hesitation in allowing the petition and directing transfer of the complaint to the competent Court to entertain the same. | 1[ds]4. Having heard learned counsel for the parties, we are inclined to allow this petition.5. It is evident from the above that the only reason the complainant claims jurisdiction for the Courts at Gurgaon is the fact that the complainant-respondent had issued the statutory notices relating to the dishonour of the cheque from Gurgaon. We do not think that issue of a statutory notice can by itself confer jurisdiction upon the Court to take cognizance of an offence under Section 138 of The Negotiable Instruments Act. We say so because in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009) 1 SCC 720 this Court examined a similar question and clearly ruled that a unilateral act on the part of the complainant of issuing a notice from any part of the country would not vest the Court from within whose territorial limits the notice has been issued with the power to entertain a complaint. That judgment has been affirmed by a three-judge bench of this Court in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. Criminal Appeal No.2287 of 2009 delivered on 1st August, 2014. This Court has in that case held that presentation of the cheque at a place of the choice of the complainant or issue of a notice from any such place do not constitute ingredients of the offence under Section 138 and cannot, therefore, confer jurisdiction upon the Court from where such acts are performed. Although the complaint does not claim jurisdiction for the Court at Gurgaon on the ground that the cheque was presented for collection there yet in the Counter affidavit, the respondent has tried to justify the filing of the complaint on that ground. Dashrathcase (supra), however, does not, as mentioned above, accept presentation of a cheque to be a valid presentation for purposes of limitation within the meaning of Section 138 unless the same is to the drawee bank. That is the view taken even in Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609. On either ground, therefore, the Courts in Gurgaon could not assume jurisdiction. Following the decisions in Dashrathand Ishar Alloy Steels cases (supra), we have no hesitation in allowing the petition and directing transfer of the complaint to the competent Court to entertain the same. | 1 | 858 | 425 | ### Instruction:
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T.S. Thakur, J. 1. In this petition under Section 406 of the Cr.P.C., the petitioners seek transfer of Criminal Complaint No.14089 of 2009 from the Court of Judicial Magistrate, First Class, Gurgaon, Haryana to the Court of competent jurisdiction at Bangalore.2. The petitioner appears to have borrowed a loan of Rs.15,00,000/- (Rupees Fifteen Lakh) for business purposes from the respondent-company. A cheque allegedly issued in partial repayment of the loan amount and drawn on the Syndicate Bank, City Market Branch, Bangalore, when presented for encashment to ING Vysya Bank, Gurgaon appears to have been dishonoured resulting in the issue of statutory notices to the petitioners and eventual filing of a complaint before the Judicial Magistrate, First Class at Gurgaon under Section 138 of The Negotiable Instruments Act, 1881. The Magistrate has taken cognizance and summoned the petitioners for appearance to face the trial. Petitioners have, in that backdrop, filed the present transfer petition seeking transfer of the complaint afore-mentioned from Gurgaon to the competent Court at Bangalore. 3. Petitioners’ case, as is evident from the averments made in the transfer petition, is that the Courts at Gurgaon have no jurisdiction to entertain the complaint specially when the cheque in question was issued and dishonoured at Bangalore and the offence, if any, was committed only at Bangalore. Issue of statutory notices to the petitioners from Gurgaon also does not confer jurisdiction upon the Courts concerned or justify continuance of the proceedings at Gurgaon.4. Having heard learned counsel for the parties, we are inclined to allow this petition. We say so because in para 7 of the complaint filed by the respondent-complainant the reason for filing the complaint at Gurgaon has been set out, thus: “That the cause of action for filing the present complaint arose when the aforesaid cheque was issued to the complainant company when the intimation regarding dishonour of the said cheque was received when the aforesaid legal notice under Section 138 of the N.I. Act was sent to the accused and on the failure of the accused to make payment despite being served with the said notice within the stipulated period of 15 days. The cause of action is still subsisting and continuing. This Hon’ble Court has jurisdiction to take cognizance of the offence as the cause of action arose within the jurisdiction of this Hon’ble Court. The complaint is within the period of limitation as per law.” 5. It is evident from the above that the only reason the complainant claims jurisdiction for the Courts at Gurgaon is the fact that the complainant-respondent had issued the statutory notices relating to the dishonour of the cheque from Gurgaon. We do not think that issue of a statutory notice can by itself confer jurisdiction upon the Court to take cognizance of an offence under Section 138 of The Negotiable Instruments Act. We say so because in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009) 1 SCC 720 this Court examined a similar question and clearly ruled that a unilateral act on the part of the complainant of issuing a notice from any part of the country would not vest the Court from within whose territorial limits the notice has been issued with the power to entertain a complaint. That judgment has been affirmed by a three-judge bench of this Court in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. Criminal Appeal No.2287 of 2009 delivered on 1st August, 2014. This Court has in that case held that presentation of the cheque at a place of the choice of the complainant or issue of a notice from any such place do not constitute ingredients of the offence under Section 138 and cannot, therefore, confer jurisdiction upon the Court from where such acts are performed. Although the complaint does not claim jurisdiction for the Court at Gurgaon on the ground that the cheque was presented for collection there yet in the Counter affidavit, the respondent has tried to justify the filing of the complaint on that ground. Dashrath Rupsingh’s case (supra), however, does not, as mentioned above, accept presentation of a cheque to be a valid presentation for purposes of limitation within the meaning of Section 138 unless the same is to the drawee bank. That is the view taken even in Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609. On either ground, therefore, the Courts in Gurgaon could not assume jurisdiction. Following the decisions in Dashrath Rupsingh’s and Ishar Alloy Steels cases (supra), we have no hesitation in allowing the petition and directing transfer of the complaint to the competent Court to entertain the same.
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4. Having heard learned counsel for the parties, we are inclined to allow this petition.5. It is evident from the above that the only reason the complainant claims jurisdiction for the Courts at Gurgaon is the fact that the complainant-respondent had issued the statutory notices relating to the dishonour of the cheque from Gurgaon. We do not think that issue of a statutory notice can by itself confer jurisdiction upon the Court to take cognizance of an offence under Section 138 of The Negotiable Instruments Act. We say so because in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd. (2009) 1 SCC 720 this Court examined a similar question and clearly ruled that a unilateral act on the part of the complainant of issuing a notice from any part of the country would not vest the Court from within whose territorial limits the notice has been issued with the power to entertain a complaint. That judgment has been affirmed by a three-judge bench of this Court in Dashrath Rupsingh Rathod v. State of Maharashtra & Anr. Criminal Appeal No.2287 of 2009 delivered on 1st August, 2014. This Court has in that case held that presentation of the cheque at a place of the choice of the complainant or issue of a notice from any such place do not constitute ingredients of the offence under Section 138 and cannot, therefore, confer jurisdiction upon the Court from where such acts are performed. Although the complaint does not claim jurisdiction for the Court at Gurgaon on the ground that the cheque was presented for collection there yet in the Counter affidavit, the respondent has tried to justify the filing of the complaint on that ground. Dashrathcase (supra), however, does not, as mentioned above, accept presentation of a cheque to be a valid presentation for purposes of limitation within the meaning of Section 138 unless the same is to the drawee bank. That is the view taken even in Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609. On either ground, therefore, the Courts in Gurgaon could not assume jurisdiction. Following the decisions in Dashrathand Ishar Alloy Steels cases (supra), we have no hesitation in allowing the petition and directing transfer of the complaint to the competent Court to entertain the same.
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Sardar Inder Singh Vs. State of Rajasthan | of 1949, and provided S.3 is valid, the validity of the notification is coextensive with that of the Ordinance. If the Ordinance did not come to an end by reason of the fact that the authority of the Rajpramukh to legislate came to an end-and that is not and cannot be disputed- neither did the power to issue a notification which is conferred therein. The true position is that it is in his character as the authority on whom power was conferred under S.3 of the Ordinance that the Rajpramukh issued the impugned notification, and not as the legislative authority of the State. This objection should accordingly be overruled. 13. (4) We shall next consider the contention that the provisions of the Ordinance are repugnant to Art. 14 of the Constitution, and that it must therefore be held to have become void. In the argument before us the attack was mainly directed against Ss. 7(1) and 15 of the Ordinance.The contention with reference to S.7(1) is that under that section landlords who had tenants on their lands on 1-4-1948 were subjected to various restrictions in the enjoyment of their rights as owners, while other landlords were free from similar restrictions. There is no substance in this contention. The preamble to the Ordinance recites that there was a growing tendency on the part of the land-holders to eject tenants, and that it was therefore expedient to enact a law for giving them protection, and for granting relief to them, the Legislature had necessarily to decide from what date law should be given operation, and it decided that it should be from 1-4 -1948. That is a matter exclusively for the Legislature to determine, and the propriety of that determination is not open to question in Courts.We should add that the petitioners sought to dispute the correctness of the recitals in the preamble. This they clearly cannot do. Vide the observations of Holmes J. in Block v. Hirsh, (1920) : 65 Law Ed 865 : 256 U 8 135(E). 14. A more substantial contention is the one based on S.15, which authorizes the Government to exempt any person or class of persons from the operation of the Act. It is argued that that section does not lay down the principles on which exemption could be granted, and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government, and is, therefore repugnant to Art. 14.It is true that that section does not itself indicate the grounds on which exemption could be granted, but the preamble to the Ordinance sets out with sufficient clearness the policy of the Legislature, and as that governs S.15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided. Vide Harishanker Bagla v. The State of Madhya Pradesh, (1955)l S C R 380 at p. 386: (A I R 1954 S C 465 at p. 467)(F). But even if S.15 were to be held to be bad, that does not affect the rest of the legislation, as the matter dealt with in that section is clearly severable. In fact, S.15 was not in the Ordinance as it was originally enacted, and was only introduced later by Ordinance No. XII of 1949. We must accordingly, hold that the impugned Ordinance cannot be held to be bad under Art. 14. 15. It is finally contended that the provisions of the Act are repugnant to Art. 19(1)(f) in that they oblige the land-owners to keep tenants on their lands, thereby preventing them from themselves cultivating the same. The object of the Ordinance, as set out in the preamble, is clearly not to put a restriction on the right of an owner to himself cultivate the lands, but to prevent him when he had inducted a tenant on the land from getting rid of him without sufficient cause. A law which requires that an owner who is not himself a tiller of the soil should assure to the actual tiller seine fixity of tenure, cannot on that ground alone he said to be unreasonable.Legislation of this character has been upheld in America as not infringing any Constitutional guarantee. Thus, in (1920)65 Law Ed 80 : 256 U S 135 (E) a statute which gave a right to tenants to continue in possession even after the expiry of the lease, was held to be valid, Holmes J. observing."The main point against the law is that tenants are allowed to remain in possession at the same rent that they have been paying, unless modified by the commission established by the Act, and that thus the use of the land and the right of the owner to do what he will with his own and to make what contracts he pleases are cut down. But if the public interest be established the regulation of rates is one of the first forms in which it is asserted, and the validity of such regulation has been settled since Munn v. People of Illinois, (1877) 24 Law Ed 77 : 94 U S 113 (G)... The preference given to the tenant in possession is an almost necessary ingredient of the policy, and is traditional in English law. If the tenant remained subject to the landlords power to evict, the attempt to limit the landlords demands would fail." It should also be remembered in this connection that the impugned Ordinance is an emergency legislation of a temporary character, and,as observed in Dr. N. B. Khare v. The State of Delhi, 1950 S C R 519 at p. 526 : (A I R 1950 S C 211 at p. 214) (H), that is a factor to be taken into account in judging of its reasonableness. As already stated, the Ordinance has since come to an end, and has been replaced by a comprehensive tenancy law. In the circumstances, we are unable to hold that the impugned Ordinance is void as being in contravention of Art. 19 (1) (f). 16. | 0[ds]It will be noticed that the authority conferred on the Bihar Government by the proviso to S.3 was one not merely to extend the lift of the Act as in the present case, but also to extend it with such modifications as might be specified in the notificationIn our opinion, S.3 of the Ordinance in so far as it authorises the Rajpramukh to extend the life of the Act falls within the category of conditional legislation and is, in consequence intra viresThis is clear authority that a provision in a statute conferring a power on an outside authority to bring it into force at such time as it might in its own discretion, determine, is conditional and not delegated legislation and that it will be valid, unless there is in the constitution Act any limitation on its power to enact such a legislationThe reason for upholding a legislative provision authorising an outside authority to bring an Act into force at such time as it may determine is that it must depend on the facts as they may exist at a given point of time whether the law should then be made to operate, and that the decision of such as issue is best left to an executive authority. Such legislation is termed conditional, because the legislature has itself made the law in all its completeness as regards "place, person, laws, powers," leaving nothing for an outside authority to legislate on, the only function assigned to it being to bring the law into operation at such time as it might decide. And it can make no difference in the character of a legislation as a conditional one that the Legislature, after itself enacting the law and fixing, on a consideration of the facts as they might have then existed, the period of its duration, confers a power on an outside authority to extend its operation for a further period if it is satisfied that the state of facts which called forth the legislation continues to subsistIn the present case, the preamble to the Ordinance clearly recites the state of facts which necessitated the enactment of the law in question, and S.3 fixed the duration of the Act as two years, on an understanding of the situation as it then existed. At the same time, it conferred a power on the Rajpramukh to extend the life of the Ordinance beyond that period, if the state of affairs then should require it. When such extension is decided by the Rajpramukh and notified, the law that will operate is the law which was enacted by the legislative authority in respect of "place, person, laws, powers," and it is clearly conditional and not delegated legislation as laid down in 5 Ind. App 178(B), and must, in consequence, be held to be valid.It follows that we are unable to agree with the statement of the law in 1949 F C R 593: (A I R 1949 F C 175)(A) that a power to extend the lift of an enactment cannot validly be conferred on an outside authorityIt was not an independent piece of legislation such as could be enacted only by the, then competent legislative authority of the State, but merely an exercise of a power conferred by a statute which had been previously enacted by the appropriate legislative authority. The exercise of such a power is referable not to the legislative competence of the Rajpramukh but to Ordinance No. IX of 1949, and provided S.3 is valid, the validity of the notification is coextensive with that of the Ordinance. If the Ordinance did not come to an end by reason of the fact that the authority of the Rajpramukh to legislate came to an end-and that is not and cannot be disputed- neither did the power to issue a notification which is conferred therein. The true position is that it is in his character as the authority on whom power was conferred under S.3 of the Ordinance that the Rajpramukh issued the impugned notification, and not as the legislative authority of the State. This objection should accordingly be overruled.It is true that that section does not itself indicate the grounds on which exemption could be granted, but the preamble to the Ordinance sets out with sufficient clearness the policy of the Legislature, and as that governs S.15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided. Vide Harishanker Bagla v. The State of Madhya Pradesh, (1955)l S C R 380 at p. 386: (A I R 1954 S C 465 at p. 467)(F). But even if S.15 were to be held to be bad, that does not affect the rest of the legislation, as the matter dealt with in that section is clearly severable. In fact, S.15 was not in the Ordinance as it was originally enacted, and was only introduced later by Ordinance No. XII of 1949. We must accordingly, hold that the impugned Ordinance cannot be held to be bad under Art. 14It should also be remembered in this connection that the impugned Ordinance is an emergency legislation of a temporary character, and,as observed in Dr. N. B. Khare v. The State of Delhi, 1950 S C R 519 at p. 526 : (A I R 1950 S C 211 at p. 214) (H), that is a factor to be taken into account in judging of its reasonableness. As already stated, the Ordinance has since come to an end, and has been replaced by a comprehensive tenancy law. In the circumstances, we are unable to hold that the impugned Ordinance is void as being in contravention of Art. 19 (1) (f). | 0 | 6,275 | 1,054 | ### Instruction:
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of 1949, and provided S.3 is valid, the validity of the notification is coextensive with that of the Ordinance. If the Ordinance did not come to an end by reason of the fact that the authority of the Rajpramukh to legislate came to an end-and that is not and cannot be disputed- neither did the power to issue a notification which is conferred therein. The true position is that it is in his character as the authority on whom power was conferred under S.3 of the Ordinance that the Rajpramukh issued the impugned notification, and not as the legislative authority of the State. This objection should accordingly be overruled. 13. (4) We shall next consider the contention that the provisions of the Ordinance are repugnant to Art. 14 of the Constitution, and that it must therefore be held to have become void. In the argument before us the attack was mainly directed against Ss. 7(1) and 15 of the Ordinance.The contention with reference to S.7(1) is that under that section landlords who had tenants on their lands on 1-4-1948 were subjected to various restrictions in the enjoyment of their rights as owners, while other landlords were free from similar restrictions. There is no substance in this contention. The preamble to the Ordinance recites that there was a growing tendency on the part of the land-holders to eject tenants, and that it was therefore expedient to enact a law for giving them protection, and for granting relief to them, the Legislature had necessarily to decide from what date law should be given operation, and it decided that it should be from 1-4 -1948. That is a matter exclusively for the Legislature to determine, and the propriety of that determination is not open to question in Courts.We should add that the petitioners sought to dispute the correctness of the recitals in the preamble. This they clearly cannot do. Vide the observations of Holmes J. in Block v. Hirsh, (1920) : 65 Law Ed 865 : 256 U 8 135(E). 14. A more substantial contention is the one based on S.15, which authorizes the Government to exempt any person or class of persons from the operation of the Act. It is argued that that section does not lay down the principles on which exemption could be granted, and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government, and is, therefore repugnant to Art. 14.It is true that that section does not itself indicate the grounds on which exemption could be granted, but the preamble to the Ordinance sets out with sufficient clearness the policy of the Legislature, and as that governs S.15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided. Vide Harishanker Bagla v. The State of Madhya Pradesh, (1955)l S C R 380 at p. 386: (A I R 1954 S C 465 at p. 467)(F). But even if S.15 were to be held to be bad, that does not affect the rest of the legislation, as the matter dealt with in that section is clearly severable. In fact, S.15 was not in the Ordinance as it was originally enacted, and was only introduced later by Ordinance No. XII of 1949. We must accordingly, hold that the impugned Ordinance cannot be held to be bad under Art. 14. 15. It is finally contended that the provisions of the Act are repugnant to Art. 19(1)(f) in that they oblige the land-owners to keep tenants on their lands, thereby preventing them from themselves cultivating the same. The object of the Ordinance, as set out in the preamble, is clearly not to put a restriction on the right of an owner to himself cultivate the lands, but to prevent him when he had inducted a tenant on the land from getting rid of him without sufficient cause. A law which requires that an owner who is not himself a tiller of the soil should assure to the actual tiller seine fixity of tenure, cannot on that ground alone he said to be unreasonable.Legislation of this character has been upheld in America as not infringing any Constitutional guarantee. Thus, in (1920)65 Law Ed 80 : 256 U S 135 (E) a statute which gave a right to tenants to continue in possession even after the expiry of the lease, was held to be valid, Holmes J. observing."The main point against the law is that tenants are allowed to remain in possession at the same rent that they have been paying, unless modified by the commission established by the Act, and that thus the use of the land and the right of the owner to do what he will with his own and to make what contracts he pleases are cut down. But if the public interest be established the regulation of rates is one of the first forms in which it is asserted, and the validity of such regulation has been settled since Munn v. People of Illinois, (1877) 24 Law Ed 77 : 94 U S 113 (G)... The preference given to the tenant in possession is an almost necessary ingredient of the policy, and is traditional in English law. If the tenant remained subject to the landlords power to evict, the attempt to limit the landlords demands would fail." It should also be remembered in this connection that the impugned Ordinance is an emergency legislation of a temporary character, and,as observed in Dr. N. B. Khare v. The State of Delhi, 1950 S C R 519 at p. 526 : (A I R 1950 S C 211 at p. 214) (H), that is a factor to be taken into account in judging of its reasonableness. As already stated, the Ordinance has since come to an end, and has been replaced by a comprehensive tenancy law. In the circumstances, we are unable to hold that the impugned Ordinance is void as being in contravention of Art. 19 (1) (f). 16.
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It will be noticed that the authority conferred on the Bihar Government by the proviso to S.3 was one not merely to extend the lift of the Act as in the present case, but also to extend it with such modifications as might be specified in the notificationIn our opinion, S.3 of the Ordinance in so far as it authorises the Rajpramukh to extend the life of the Act falls within the category of conditional legislation and is, in consequence intra viresThis is clear authority that a provision in a statute conferring a power on an outside authority to bring it into force at such time as it might in its own discretion, determine, is conditional and not delegated legislation and that it will be valid, unless there is in the constitution Act any limitation on its power to enact such a legislationThe reason for upholding a legislative provision authorising an outside authority to bring an Act into force at such time as it may determine is that it must depend on the facts as they may exist at a given point of time whether the law should then be made to operate, and that the decision of such as issue is best left to an executive authority. Such legislation is termed conditional, because the legislature has itself made the law in all its completeness as regards "place, person, laws, powers," leaving nothing for an outside authority to legislate on, the only function assigned to it being to bring the law into operation at such time as it might decide. And it can make no difference in the character of a legislation as a conditional one that the Legislature, after itself enacting the law and fixing, on a consideration of the facts as they might have then existed, the period of its duration, confers a power on an outside authority to extend its operation for a further period if it is satisfied that the state of facts which called forth the legislation continues to subsistIn the present case, the preamble to the Ordinance clearly recites the state of facts which necessitated the enactment of the law in question, and S.3 fixed the duration of the Act as two years, on an understanding of the situation as it then existed. At the same time, it conferred a power on the Rajpramukh to extend the life of the Ordinance beyond that period, if the state of affairs then should require it. When such extension is decided by the Rajpramukh and notified, the law that will operate is the law which was enacted by the legislative authority in respect of "place, person, laws, powers," and it is clearly conditional and not delegated legislation as laid down in 5 Ind. App 178(B), and must, in consequence, be held to be valid.It follows that we are unable to agree with the statement of the law in 1949 F C R 593: (A I R 1949 F C 175)(A) that a power to extend the lift of an enactment cannot validly be conferred on an outside authorityIt was not an independent piece of legislation such as could be enacted only by the, then competent legislative authority of the State, but merely an exercise of a power conferred by a statute which had been previously enacted by the appropriate legislative authority. The exercise of such a power is referable not to the legislative competence of the Rajpramukh but to Ordinance No. IX of 1949, and provided S.3 is valid, the validity of the notification is coextensive with that of the Ordinance. If the Ordinance did not come to an end by reason of the fact that the authority of the Rajpramukh to legislate came to an end-and that is not and cannot be disputed- neither did the power to issue a notification which is conferred therein. The true position is that it is in his character as the authority on whom power was conferred under S.3 of the Ordinance that the Rajpramukh issued the impugned notification, and not as the legislative authority of the State. This objection should accordingly be overruled.It is true that that section does not itself indicate the grounds on which exemption could be granted, but the preamble to the Ordinance sets out with sufficient clearness the policy of the Legislature, and as that governs S.15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided. Vide Harishanker Bagla v. The State of Madhya Pradesh, (1955)l S C R 380 at p. 386: (A I R 1954 S C 465 at p. 467)(F). But even if S.15 were to be held to be bad, that does not affect the rest of the legislation, as the matter dealt with in that section is clearly severable. In fact, S.15 was not in the Ordinance as it was originally enacted, and was only introduced later by Ordinance No. XII of 1949. We must accordingly, hold that the impugned Ordinance cannot be held to be bad under Art. 14It should also be remembered in this connection that the impugned Ordinance is an emergency legislation of a temporary character, and,as observed in Dr. N. B. Khare v. The State of Delhi, 1950 S C R 519 at p. 526 : (A I R 1950 S C 211 at p. 214) (H), that is a factor to be taken into account in judging of its reasonableness. As already stated, the Ordinance has since come to an end, and has been replaced by a comprehensive tenancy law. In the circumstances, we are unable to hold that the impugned Ordinance is void as being in contravention of Art. 19 (1) (f).
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State Of U.P. Vs. Saraya Industries Ltd | Meakin Breweries Ltd. v. Excise & Taxation Commissioner, Chandigarh 6 the appellant company carried on the business of manufacture, storage and sale of liquors. Between June 1967 and April 1969, it transported various quantities of liquor from its distilleries in U.P. to its bonded warehouse at Chandigarh. On arrival, the consignments were examined by the officer-in-charge of the warehouse, and a shortage was found, exceeding the wastage allowance permissible under Rule 8 of the Punjab Bonded Warehouse Rules, 1957. The Excise and Taxation Commissioner, exercising the powers of the Financial Commissioner, issued a show cause notice and then ordered the appellant to pay duty on the wastage in excess. The show cause notice required the appellant to pay duty on excess wastage in course of import of liquor from U.P. and the rules governing the appellants licence provided for a wastage allowance not exceeding 1 per cent of the actual loss in transit by leakage or breakage of vessels or bottles containing liquor, and if the wastage exceeded the prescribed limit the licensee should be liable to pay duty at the prescribed rate as if the wastage in excess of the prescribed limit had actually been removed from the warehouse, and it was also provided that the Financial Commissioner could in his discretion on good cause being shown remit the whole or a part of the duty leviable on such wastage, and these provisions were challenged. This Court held that the impugned rules did not impose any new duty or create any liability and that they were in essence and substance of a regulatory character meant to guard against perpetration of fraud or deception on the revenue. "They provide for and regulate the storage and subsequently the removal of liquor from the bonded warehouse, on payment or otherwise of the duty which is chargeable under the Fiscal Rules of 1937." We agree with Mr. Agarwal that the instant Rules 636 and 814 are also of regulatory character and they are precautionary against perpetration of fraud on the excise revenue of the exporting State. If out of the quantity of military rum in a consignment, a part or portion is claimed to have been wastage in transit and to that extent did not result in export, the State would, in the absence of reasonable explanation, have reason to presume that the same have been disposed of otherwise than by export and impose on it the differential excise duty. A statute has to be construed in light of the mischief it was designed to remedy. There is no dispute that excise duty is a single point duty and may be levied at one of the points mentioned in Section 28. 37. In Government of Haryana v. Haryana Brewery Ltd. and Another [(2002) 4 SCC 547] , whereupon Mr. Dwivedi relied upon, this Court emphasized the need of a forum where a reasonable explanation for loss of good could be raised. In this case, such a forum was not available. 38. In State of Bihar and Others v. Industrial Corporation (P) Ltd. and Others [(2003) 11 SCC 465] , this Court clearly held: "In the present case, what we find is that before creating a demand of penal duty or penalty, there was no adjudication by any authority as regards the breach committed by the respondents. We also find that no opportunity of any kind was offered to the respondents before the demand as regards the penal duty was pressed against the respondents. The matter was not even examined as to what was the reason for shortfall in the production of rectified spirit. The Molasses Act does not provide for imposition of such penalty in the event of shortfall of spirit. It must, therefore, necessarily be held that the imposition of the impugned penalty being against the principles of natural justice is illegal and void." 39. The statutory authorities must act within the four corners of a statute. They could take recourse to the proceeding for levy of penalty and the recovery thereof from the respondents only in the event there existed any agreement or statutory provision therefor. Such a power did not vest in the Commissioner of Excise or the Superintendents of Excise who had issued the impugned demand notices. 40. It is, therefore, manifest that the duty has to be levied only in terms of the provisions of the statute and not de hors the same.41. It is accepted by Mr. Dwivedi that legislation relating to excise duty is relatable to Entry 51, List II of the Seventh Schedule of the Constitution of India. If that be so, provision for imposition of such duty or evasion thereof must be provided in terms of the law. By reason of an executive order, a presumption cannot be raised. No penalty can be levied. The matter would have been different, if the same was provided for, as has been sought to be done now, by way of terms and conditions of licence or in terms of the rules. By reason of an executive instruction, the provisions of the law cannot be effaced. A legislative policy, furthermore, must be laid down by the State. The matter relating to an excise policy must be framed by the State. It cannot be done by the Excise Commissioner. A distinction must be borne in mind between the concept of excise duty on production and manufacture of liquor and parting with the exclusive privilege of the State. Imposition of a penalty would not come within the purview of either of the two. When a price is fixed by the State for parting with its exclusive privilege, the same must again be provided in terms of the statute and the rules framed there under or by way of terms of licence. 42. Before parting with the case, however, we may observe that we have not gone into the question as regard the applicability of the rules vis-Ã -vis the new conditions imposed in the licence, in the instant case. 43. | 0[ds]Thus, by reason of the circular letter, the concept of payment of damages measured in terms of the excise duty had not been conceptualized.29. The legislative field in regard to levy of excise duty is covered by Entry 51, List II of the Seventh Schedule of the Constitution of India. It may be true that the resort to regulatory measures can be taken by the State, but the same must be done in the manner laid down under the Act. A provision which confers powers upon a statutory authority in terms whereof a penalty is to be imposed, damages are to be paid for non payment of excise duty, in our opinion, must be done through a valid subordinate legislation and not by way of issuance of a circularstatutory authorities must act within the four corners of a statute. They could take recourse to the proceeding for levy of penalty and the recovery thereof from the respondents only in the event there existed any agreement or statutory provision therefor. Such a power did not vest in the Commissioner of Excise or the Superintendents of Excise who had issued the impugned demand notices.It is, therefore, manifest that the duty has to be levied only in terms of the provisions of the statute and not de hors the same.41. It is accepted by Mr. Dwivedi that legislation relating to excise duty is relatable to Entry 51, List II of the Seventh Schedule of the Constitution of India. If that be so, provision for imposition of such duty or evasion thereof must be provided in terms of the law. By reason of an executive order, a presumption cannot be raised. No penalty can be levied. The matter would have been different, if the same was provided for, as has been sought to be done now, by way of terms and conditions of licence or in terms of the rules. By reason of an executive instruction, the provisions of the law cannot be effaced. A legislative policy, furthermore, must be laid down by the State. The matter relating to an excise policy must be framed by the State. It cannot be done by the Excise Commissioner. A distinction must be borne in mind between the concept of excise duty on production and manufacture of liquor and parting with the exclusive privilege of the State. Imposition of a penalty would not come within the purview of either of the two. When a price is fixed by the State for parting with its exclusive privilege, the same must again be provided in terms of the statute and the rules framed there under or by way of terms of | 0 | 5,711 | 485 | ### Instruction:
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Meakin Breweries Ltd. v. Excise & Taxation Commissioner, Chandigarh 6 the appellant company carried on the business of manufacture, storage and sale of liquors. Between June 1967 and April 1969, it transported various quantities of liquor from its distilleries in U.P. to its bonded warehouse at Chandigarh. On arrival, the consignments were examined by the officer-in-charge of the warehouse, and a shortage was found, exceeding the wastage allowance permissible under Rule 8 of the Punjab Bonded Warehouse Rules, 1957. The Excise and Taxation Commissioner, exercising the powers of the Financial Commissioner, issued a show cause notice and then ordered the appellant to pay duty on the wastage in excess. The show cause notice required the appellant to pay duty on excess wastage in course of import of liquor from U.P. and the rules governing the appellants licence provided for a wastage allowance not exceeding 1 per cent of the actual loss in transit by leakage or breakage of vessels or bottles containing liquor, and if the wastage exceeded the prescribed limit the licensee should be liable to pay duty at the prescribed rate as if the wastage in excess of the prescribed limit had actually been removed from the warehouse, and it was also provided that the Financial Commissioner could in his discretion on good cause being shown remit the whole or a part of the duty leviable on such wastage, and these provisions were challenged. This Court held that the impugned rules did not impose any new duty or create any liability and that they were in essence and substance of a regulatory character meant to guard against perpetration of fraud or deception on the revenue. "They provide for and regulate the storage and subsequently the removal of liquor from the bonded warehouse, on payment or otherwise of the duty which is chargeable under the Fiscal Rules of 1937." We agree with Mr. Agarwal that the instant Rules 636 and 814 are also of regulatory character and they are precautionary against perpetration of fraud on the excise revenue of the exporting State. If out of the quantity of military rum in a consignment, a part or portion is claimed to have been wastage in transit and to that extent did not result in export, the State would, in the absence of reasonable explanation, have reason to presume that the same have been disposed of otherwise than by export and impose on it the differential excise duty. A statute has to be construed in light of the mischief it was designed to remedy. There is no dispute that excise duty is a single point duty and may be levied at one of the points mentioned in Section 28. 37. In Government of Haryana v. Haryana Brewery Ltd. and Another [(2002) 4 SCC 547] , whereupon Mr. Dwivedi relied upon, this Court emphasized the need of a forum where a reasonable explanation for loss of good could be raised. In this case, such a forum was not available. 38. In State of Bihar and Others v. Industrial Corporation (P) Ltd. and Others [(2003) 11 SCC 465] , this Court clearly held: "In the present case, what we find is that before creating a demand of penal duty or penalty, there was no adjudication by any authority as regards the breach committed by the respondents. We also find that no opportunity of any kind was offered to the respondents before the demand as regards the penal duty was pressed against the respondents. The matter was not even examined as to what was the reason for shortfall in the production of rectified spirit. The Molasses Act does not provide for imposition of such penalty in the event of shortfall of spirit. It must, therefore, necessarily be held that the imposition of the impugned penalty being against the principles of natural justice is illegal and void." 39. The statutory authorities must act within the four corners of a statute. They could take recourse to the proceeding for levy of penalty and the recovery thereof from the respondents only in the event there existed any agreement or statutory provision therefor. Such a power did not vest in the Commissioner of Excise or the Superintendents of Excise who had issued the impugned demand notices. 40. It is, therefore, manifest that the duty has to be levied only in terms of the provisions of the statute and not de hors the same.41. It is accepted by Mr. Dwivedi that legislation relating to excise duty is relatable to Entry 51, List II of the Seventh Schedule of the Constitution of India. If that be so, provision for imposition of such duty or evasion thereof must be provided in terms of the law. By reason of an executive order, a presumption cannot be raised. No penalty can be levied. The matter would have been different, if the same was provided for, as has been sought to be done now, by way of terms and conditions of licence or in terms of the rules. By reason of an executive instruction, the provisions of the law cannot be effaced. A legislative policy, furthermore, must be laid down by the State. The matter relating to an excise policy must be framed by the State. It cannot be done by the Excise Commissioner. A distinction must be borne in mind between the concept of excise duty on production and manufacture of liquor and parting with the exclusive privilege of the State. Imposition of a penalty would not come within the purview of either of the two. When a price is fixed by the State for parting with its exclusive privilege, the same must again be provided in terms of the statute and the rules framed there under or by way of terms of licence. 42. Before parting with the case, however, we may observe that we have not gone into the question as regard the applicability of the rules vis-Ã -vis the new conditions imposed in the licence, in the instant case. 43.
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Thus, by reason of the circular letter, the concept of payment of damages measured in terms of the excise duty had not been conceptualized.29. The legislative field in regard to levy of excise duty is covered by Entry 51, List II of the Seventh Schedule of the Constitution of India. It may be true that the resort to regulatory measures can be taken by the State, but the same must be done in the manner laid down under the Act. A provision which confers powers upon a statutory authority in terms whereof a penalty is to be imposed, damages are to be paid for non payment of excise duty, in our opinion, must be done through a valid subordinate legislation and not by way of issuance of a circularstatutory authorities must act within the four corners of a statute. They could take recourse to the proceeding for levy of penalty and the recovery thereof from the respondents only in the event there existed any agreement or statutory provision therefor. Such a power did not vest in the Commissioner of Excise or the Superintendents of Excise who had issued the impugned demand notices.It is, therefore, manifest that the duty has to be levied only in terms of the provisions of the statute and not de hors the same.41. It is accepted by Mr. Dwivedi that legislation relating to excise duty is relatable to Entry 51, List II of the Seventh Schedule of the Constitution of India. If that be so, provision for imposition of such duty or evasion thereof must be provided in terms of the law. By reason of an executive order, a presumption cannot be raised. No penalty can be levied. The matter would have been different, if the same was provided for, as has been sought to be done now, by way of terms and conditions of licence or in terms of the rules. By reason of an executive instruction, the provisions of the law cannot be effaced. A legislative policy, furthermore, must be laid down by the State. The matter relating to an excise policy must be framed by the State. It cannot be done by the Excise Commissioner. A distinction must be borne in mind between the concept of excise duty on production and manufacture of liquor and parting with the exclusive privilege of the State. Imposition of a penalty would not come within the purview of either of the two. When a price is fixed by the State for parting with its exclusive privilege, the same must again be provided in terms of the statute and the rules framed there under or by way of terms of
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Haridas Mondal Vs. Anath Nath Mittra | as may be considered appropriate. The court is invested with the power of reopening transactions including taking of accounts between the parties, of releasing the borrower of all liability in excess of the limits specified in cls. (1) and (2) of S. 30 and of setting aside either wholly or in part or of revising or altering any security given or agreement made in respect of any loan. Exercise of these powers is subject to the provisos which are not material for the purposes of this appeal. By sub-sec. (2), the court reopening a decree is prohibited from doing anything which affects the rights acquired bona fide by any persons other than the decree-holder in consequence of the execution of the reopened decree; but is enjoined to order the restoration to the judgment-debtor of such property, if any, of the judgment-debtor acquired by the decree-holder in consequence of the execution of the reopened decree as may be in the possession of the decree-holder on the date on which the decree was reopened and also to order the judgment-debtor to pay to the decree-holder in such number of instalments as it may think fit, the whole amount of the new decree passed under cl. (a). The court is further enjoined to direct that in default of payment of any instalments, the decree-holder shall be put into possession of the property which has been restored to the judgment-debtor and that the amount for which the decree-holder purchased such property in execution of the reopened decree shall be set off against so much of the amount of the new decree as remained unsatisfied. Sub-section (6) provides that notwithstanding anything contained in any law for the time being in force, the court which, in a suit to which the Act applies, passed a decree which was not fully satisfied by the first day of January 1939, may exercise the powers conferred by sub-secs. (1) and (2) in any proceeding in execution of such decree. Section 36, sub-sec. (1). contemplates the institution of a suit by a borrower for relief under that section and the court is thereby invested with the power of reopening decrees already passed.3. Mittra in the year 1941 filed the suit under S. 36 of the Act for reopening the personal decree passed under O. 34, R. 6 of the Civil Procedure Code. In schedule "A" to the plaint, he set out the principal amount due under the mortgage, the interest at the rate of 8 per cent due thereon from the date of the mortgage till the date of the suit, costs of the suit, and after giving credit for the price realised by sale of the properties, he submitted that Mondal was entitled to recover only Rs. 66-13-2 and that Mondal should be declared entitled to that amount in twenty annual instalments. By a suit under S. 36, Mittra undoubtedly was entitled to reopen the preliminary decree, decree absolute for sale and also the personal decree; but in the first suit, he gave up his right to reopen the preliminary decree and the decree absolute for sale, and was content to obtain an order that the personal decree alone be reopened. In the execution under the mortgage decree one parcel of land was purchased by Mittras wife and it is presumably on account of this circumstance that Mittra was unwilling to have the preliminary decree reopened. The District Judge, Midnapore, who heard the appeal against the order passed by the 2nd court of the Subordinate Judge in the first suit under S. 36 of the Act observed:"It is admitted before me by the learned pleader for the appellant that the reopening of the entire transaction will not be to the benefit of the appellant and the latter, therefore, does not want this to be done. The only relief he claims is that the new decree passed by the learned Subordinate Judge for Rs. 1,431-15-0 shall be reduced to Rs. 66-13-2 as mentioned in his application under S. 36 of the Act."4. In the first suit under S. 36 filed by Mittra, the claim to reopen the preliminary decree and the decree absolute was deliberately abandoned and he obtained relief expressly on the footing that he did not desire that those decrees should be reopened. Is it thereafter open to Mittra to file another suit for obtaining relief under S. 36 by reopening the preliminary decree and the decree absolute?In our judgment, S. 36 contemplates filing of one suit and not successive suits for reopening transaction including decrees and obtaining relief under the Act. If in a suit filed for that purpose, a borrower does not obtain relief which he has asked for or abandons his right to relief, in our judgment it will not thereafter be open to him to institute a second suit for relief which could have been but was not claimed in the earlier suit.5. The plea that in the previous suit it was not open to Mittra to make a claim for reopening the preliminary decree and the decree absolute is without substance. By sub-sec. (6) of S. 36, the right to grant relief in proceedings in execution of as decree already passed but which is not satisfied is vested in the court passing the decree and the first suit under S. 36 was filed in the court which had originally passed the mortgagee decree. The claim to reopen the decrees preliminary and final was abandoned not because the court was incompetent to grant relief but because Mittra did not at that stage desire to reopen those decrees.We are unable to agree with the High Court that to a suit under S. 36 of the Act the rule contained in O. 2. R. 2 of the Code of Civil Procedure does not apply. We are also of the view that the right to claim relief which would have been but has not been asked for in the previous suit must be regarded as res judicata.I | 1[ds]In our judgment, S. 36 contemplates filing of one suit and not successive suits for reopening transaction including decrees and obtaining relief under the Act. If in a suit filed for that purpose, a borrower does not obtain relief which he has asked for or abandons his right to relief, in our judgment it will not thereafter be open to him to institute a second suit for relief which could have been but was not claimed in the earlier suit.5. The plea that in the previous suit it was not open to Mittra to make a claim for reopening the preliminary decree and the decree absolute is without substance. By sub-sec. (6) of S. 36, the right to grant relief in proceedings in execution of as decree already passed but which is not satisfied is vested in the court passing the decree and the first suit under S. 36 was filed in the court which had originally passed the mortgagee decree. The claim to reopen the decrees preliminary and final was abandoned not because the court was incompetent to grant relief but because Mittra did not at that stage desire to reopen those decrees.We are unable to agree with the High Court that to a suit under S. 36 of the Act the rule contained in O. 2. R. 2 of theCode of Civil Procedure does not apply. We are also of the view that the right to claim relief which would have been but has not been asked for in the previous suit must be regarded as res judicata. | 1 | 1,829 | 279 | ### 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:
as may be considered appropriate. The court is invested with the power of reopening transactions including taking of accounts between the parties, of releasing the borrower of all liability in excess of the limits specified in cls. (1) and (2) of S. 30 and of setting aside either wholly or in part or of revising or altering any security given or agreement made in respect of any loan. Exercise of these powers is subject to the provisos which are not material for the purposes of this appeal. By sub-sec. (2), the court reopening a decree is prohibited from doing anything which affects the rights acquired bona fide by any persons other than the decree-holder in consequence of the execution of the reopened decree; but is enjoined to order the restoration to the judgment-debtor of such property, if any, of the judgment-debtor acquired by the decree-holder in consequence of the execution of the reopened decree as may be in the possession of the decree-holder on the date on which the decree was reopened and also to order the judgment-debtor to pay to the decree-holder in such number of instalments as it may think fit, the whole amount of the new decree passed under cl. (a). The court is further enjoined to direct that in default of payment of any instalments, the decree-holder shall be put into possession of the property which has been restored to the judgment-debtor and that the amount for which the decree-holder purchased such property in execution of the reopened decree shall be set off against so much of the amount of the new decree as remained unsatisfied. Sub-section (6) provides that notwithstanding anything contained in any law for the time being in force, the court which, in a suit to which the Act applies, passed a decree which was not fully satisfied by the first day of January 1939, may exercise the powers conferred by sub-secs. (1) and (2) in any proceeding in execution of such decree. Section 36, sub-sec. (1). contemplates the institution of a suit by a borrower for relief under that section and the court is thereby invested with the power of reopening decrees already passed.3. Mittra in the year 1941 filed the suit under S. 36 of the Act for reopening the personal decree passed under O. 34, R. 6 of the Civil Procedure Code. In schedule "A" to the plaint, he set out the principal amount due under the mortgage, the interest at the rate of 8 per cent due thereon from the date of the mortgage till the date of the suit, costs of the suit, and after giving credit for the price realised by sale of the properties, he submitted that Mondal was entitled to recover only Rs. 66-13-2 and that Mondal should be declared entitled to that amount in twenty annual instalments. By a suit under S. 36, Mittra undoubtedly was entitled to reopen the preliminary decree, decree absolute for sale and also the personal decree; but in the first suit, he gave up his right to reopen the preliminary decree and the decree absolute for sale, and was content to obtain an order that the personal decree alone be reopened. In the execution under the mortgage decree one parcel of land was purchased by Mittras wife and it is presumably on account of this circumstance that Mittra was unwilling to have the preliminary decree reopened. The District Judge, Midnapore, who heard the appeal against the order passed by the 2nd court of the Subordinate Judge in the first suit under S. 36 of the Act observed:"It is admitted before me by the learned pleader for the appellant that the reopening of the entire transaction will not be to the benefit of the appellant and the latter, therefore, does not want this to be done. The only relief he claims is that the new decree passed by the learned Subordinate Judge for Rs. 1,431-15-0 shall be reduced to Rs. 66-13-2 as mentioned in his application under S. 36 of the Act."4. In the first suit under S. 36 filed by Mittra, the claim to reopen the preliminary decree and the decree absolute was deliberately abandoned and he obtained relief expressly on the footing that he did not desire that those decrees should be reopened. Is it thereafter open to Mittra to file another suit for obtaining relief under S. 36 by reopening the preliminary decree and the decree absolute?In our judgment, S. 36 contemplates filing of one suit and not successive suits for reopening transaction including decrees and obtaining relief under the Act. If in a suit filed for that purpose, a borrower does not obtain relief which he has asked for or abandons his right to relief, in our judgment it will not thereafter be open to him to institute a second suit for relief which could have been but was not claimed in the earlier suit.5. The plea that in the previous suit it was not open to Mittra to make a claim for reopening the preliminary decree and the decree absolute is without substance. By sub-sec. (6) of S. 36, the right to grant relief in proceedings in execution of as decree already passed but which is not satisfied is vested in the court passing the decree and the first suit under S. 36 was filed in the court which had originally passed the mortgagee decree. The claim to reopen the decrees preliminary and final was abandoned not because the court was incompetent to grant relief but because Mittra did not at that stage desire to reopen those decrees.We are unable to agree with the High Court that to a suit under S. 36 of the Act the rule contained in O. 2. R. 2 of the Code of Civil Procedure does not apply. We are also of the view that the right to claim relief which would have been but has not been asked for in the previous suit must be regarded as res judicata.I
### Response:
1
### Explanation:
In our judgment, S. 36 contemplates filing of one suit and not successive suits for reopening transaction including decrees and obtaining relief under the Act. If in a suit filed for that purpose, a borrower does not obtain relief which he has asked for or abandons his right to relief, in our judgment it will not thereafter be open to him to institute a second suit for relief which could have been but was not claimed in the earlier suit.5. The plea that in the previous suit it was not open to Mittra to make a claim for reopening the preliminary decree and the decree absolute is without substance. By sub-sec. (6) of S. 36, the right to grant relief in proceedings in execution of as decree already passed but which is not satisfied is vested in the court passing the decree and the first suit under S. 36 was filed in the court which had originally passed the mortgagee decree. The claim to reopen the decrees preliminary and final was abandoned not because the court was incompetent to grant relief but because Mittra did not at that stage desire to reopen those decrees.We are unable to agree with the High Court that to a suit under S. 36 of the Act the rule contained in O. 2. R. 2 of theCode of Civil Procedure does not apply. We are also of the view that the right to claim relief which would have been but has not been asked for in the previous suit must be regarded as res judicata.
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Narra Seetharamayya Varma & Others Vs. Kosaraju Venka Girayya By L.Rs. & Others | the minor inam subsequent to the grant of the named village. To our mind, there was no. justification for the High Court to interfere in second appeal even if it was inclined to take a different view of the evidence. In fact, we do not consider that a different view than that taken by the Lower Appellate Court was possible. We notice that the High Court completely lost sight of the burden of proof and proceeded as if the burden was on the defendants to establish that Uruturu was an Estate within the meaning of Section 3 (2) (d) of the Estates Land Act and that the grantor had reserved no. interest in the land at the time of the original grant. The burden was wrongly placed upon the defendants by the High Court and even if it was rightly placed on the defendants, we are satisfied that the burden was adequately discharged.4. On the question of burden of proof, it is sufficient if we refer to Aluru Kondayya v. Singaraju Rama Rao (1966) 1 SCR 842 : (AIR 1966 SC 681 ), where this Court approved the view taken by the Andhra Pradesh High Court in Nelluru Sundararama Reddy v. State of Andhra Pradesh, ILR (1959) Andh Pra 337 : (AIR 1959 Andh Pra 21 5), and State of Andhra Pradesh v. Korukonda Bhattam Appalacharyulu, ILR (1 1959) Andh Pra 687 : (AIR 1959 Andh Pra 6 10) (FB) and the Madras High Court in K. Janakiramaraju v. Appalaswami, ILR (1954) Mad 980 : (AIR 1954 Mad 772 ) and Sri Varadarajaswamivari Temple v. Sri Krishnappa Govinda, ILR (1958) Mad 1023 : (AIR 1959 Mad 40 ) (FB). The view taken was that the explanation to Section 3 (2) (d) raised a presumption where a grant was expressed to be of a named village, that the area which formed the subject matter of the grant should be deemed to be an Estate and it was for the party contending that the grant in question fell outside the definition of Section 3 (2) (d) of the Act to prove that case either by showing that the minor inams not comprised in the grants were created contemporaneously with or subsequent to the grant of the village by the original grantor. The Court said .....................the language used by the Legislature in enacting Explanation (1) to Section 3 (2) (d) expressly directs a presumption to be raised. That presumption arises when it is proved that a grant as an inam is expressed to be of a named village, the area which forms the subject-matter of the grant shall be deemed to be an estate. Raising of the presumption is not subject to any other conditions. The Legislature has by the non obstante clause affirmed that such presumption shall be raised even if it appears that in the grant are not included certain lands in the village which have before the grant of the named village been granted on service or other tenure or have been reserved for communal purposes."5. The position was also further clarified by Explanation (1-A) to Section 3 (2) (d) which was introduced by amending Act XXXV of 1956 to the effect : -"An inam village, hamlet or khandriga in an inam village granted in inam, shall be deemed to be an estate, even though it was confirmed or recognised on different dates, or by different title deeds or in favour of different persons".This Explanation makes it clear that if the grant was of a named village, it will be deemed to be an Estate, notwithstanding the existence of minor inams which were confirmed or recognised by different title deeds, even in favour of different persons.6. The High Court has clearly misinterpreted the entries in the Oakes Inam Register of 1797 AD. In the first column, the entry is Uruturu and against the second column (the nature of the inam), the entry is Agraharam. The names of grantor and grantee are mentioned in columns 4 and 5 and in column 10, the extent of land is mentioned as 37.12 Khatties. The High Court wrongly thought that the entry in column 10 was 37.75 acres. Khatties were local measures in popular use in those days and if only the High Court had referred to the earlier judgments of the courts which had been placed before it, it would have discovered that the extent of land was mentioned in Khatties and not Acres. The comment of the High Court that it was difficult to hold that a grant which consisted only 37.75 acres could ever be thought of as grant of a whole village, was therefore misplaced. The entries in the Oakes register clearly show that Uruturu Agraharam which was of the extent of 37-3/4 Khatties and bearing a Kattubadi of 30 Varahas had been granted to Anantacharyulu by Nizam-ul-mulk by a sanad of Fasli 1142. The grant was clearly of a named village and without doubt it was an Estate within the meaning of Section 3 (2) (d) of the Estates Land Act. There is no. evidence as to when the minor inam was granted, whether it was granted before the grant of the village, whether it was granted by the original grantor subsequent to the grant of the village or whether it was carved out of the original grant itself subsequent to the date of the original grant. The burden of establishing that Uruturu inam village was not an Estate within the meaning of Section 3 (2) (d) was on the plaintiffs and the burden has not been discharged. As already mentioned by us, the Madras High Court, on an earlier occasion, had come to the conclusion, with the original grant before it, that Uruturu inam village was an Estate within the meaning of Section 3 (2) (d) of the Estates Land Act. We have also referred to the fact that the village has also been notified as an Estate under the Madras Estates (Abolition and Conversion into Ryotwari) Act. | 1[ds]To our mind, there was no. justification for the High Court to interfere in second appeal even if it was inclined to take a different view of the evidence. In fact, we do not consider that a different view than that taken by the Lower Appellate Court was possible. We notice that the High Court completely lost sight of the burden of proof and proceeded as if the burden was on the defendants to establish that Uruturu was an Estate within the meaning of Section 3 (2) (d) of the Estates Land Act and that the grantor had reserved no. interest in the land at the time of the original grant. The burden was wrongly placed upon the defendants by the High Court and even if it was rightly placed on the defendants, we are satisfied that the burden was adequately discharged.The High Court has clearly misinterpreted the entries in the Oakes Inam Register of 1797 AD. In the first column, the entry is Uruturu and against the second column (the nature of the inam), the entry is Agraharam. The names of grantor and grantee are mentioned in columns 4 and 5 and in column 10, the extent of land is mentioned as 37.12 Khatties. The High Court wrongly thought that the entry in column 10 was 37.75 acres. Khatties were local measures in popular use in those days and if only the High Court had referred to the earlier judgments of the courts which had been placed before it, it would have discovered that the extent of land was mentioned in Khatties and not Acres. The comment of the High Court that it was difficult to hold that a grant which consisted only 37.75 acres could ever be thought of as grant of a whole village, was therefore misplaced. The entries in the Oakes register clearly show that Uruturu Agraharam which was of the extent ofKhatties and bearing a Kattubadi of 30 Varahas had been granted to Anantacharyulu byby a sanad of Fasli 1142. The grant was clearly of a named village and without doubt it was an Estate within the meaning of Section 3 (2) (d) of the Estates Land Act. There is no. evidence as to when the minor inam was granted, whether it was granted before the grant of the village, whether it was granted by the original grantor subsequent to the grant of the village or whether it was carved out of the original grant itself subsequent to the date of the original grant. The burden of establishing that Uruturu inam village was not an Estate within the meaning of Section 3 (2) (d) was on the plaintiffs and the burden has not been discharged. As already mentioned by us, the Madras High Court, on an earlier occasion, had come to the conclusion, with the original grant before it, that Uruturu inam village was an Estate within the meaning of Section 3 (2) (d) of the Estates Land Act. We have also referred to the fact that the village has also been notified as an Estate under the Madras Estates (Abolition and Conversion into Ryotwari) Act. | 1 | 1,654 | 578 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the minor inam subsequent to the grant of the named village. To our mind, there was no. justification for the High Court to interfere in second appeal even if it was inclined to take a different view of the evidence. In fact, we do not consider that a different view than that taken by the Lower Appellate Court was possible. We notice that the High Court completely lost sight of the burden of proof and proceeded as if the burden was on the defendants to establish that Uruturu was an Estate within the meaning of Section 3 (2) (d) of the Estates Land Act and that the grantor had reserved no. interest in the land at the time of the original grant. The burden was wrongly placed upon the defendants by the High Court and even if it was rightly placed on the defendants, we are satisfied that the burden was adequately discharged.4. On the question of burden of proof, it is sufficient if we refer to Aluru Kondayya v. Singaraju Rama Rao (1966) 1 SCR 842 : (AIR 1966 SC 681 ), where this Court approved the view taken by the Andhra Pradesh High Court in Nelluru Sundararama Reddy v. State of Andhra Pradesh, ILR (1959) Andh Pra 337 : (AIR 1959 Andh Pra 21 5), and State of Andhra Pradesh v. Korukonda Bhattam Appalacharyulu, ILR (1 1959) Andh Pra 687 : (AIR 1959 Andh Pra 6 10) (FB) and the Madras High Court in K. Janakiramaraju v. Appalaswami, ILR (1954) Mad 980 : (AIR 1954 Mad 772 ) and Sri Varadarajaswamivari Temple v. Sri Krishnappa Govinda, ILR (1958) Mad 1023 : (AIR 1959 Mad 40 ) (FB). The view taken was that the explanation to Section 3 (2) (d) raised a presumption where a grant was expressed to be of a named village, that the area which formed the subject matter of the grant should be deemed to be an Estate and it was for the party contending that the grant in question fell outside the definition of Section 3 (2) (d) of the Act to prove that case either by showing that the minor inams not comprised in the grants were created contemporaneously with or subsequent to the grant of the village by the original grantor. The Court said .....................the language used by the Legislature in enacting Explanation (1) to Section 3 (2) (d) expressly directs a presumption to be raised. That presumption arises when it is proved that a grant as an inam is expressed to be of a named village, the area which forms the subject-matter of the grant shall be deemed to be an estate. Raising of the presumption is not subject to any other conditions. The Legislature has by the non obstante clause affirmed that such presumption shall be raised even if it appears that in the grant are not included certain lands in the village which have before the grant of the named village been granted on service or other tenure or have been reserved for communal purposes."5. The position was also further clarified by Explanation (1-A) to Section 3 (2) (d) which was introduced by amending Act XXXV of 1956 to the effect : -"An inam village, hamlet or khandriga in an inam village granted in inam, shall be deemed to be an estate, even though it was confirmed or recognised on different dates, or by different title deeds or in favour of different persons".This Explanation makes it clear that if the grant was of a named village, it will be deemed to be an Estate, notwithstanding the existence of minor inams which were confirmed or recognised by different title deeds, even in favour of different persons.6. The High Court has clearly misinterpreted the entries in the Oakes Inam Register of 1797 AD. In the first column, the entry is Uruturu and against the second column (the nature of the inam), the entry is Agraharam. The names of grantor and grantee are mentioned in columns 4 and 5 and in column 10, the extent of land is mentioned as 37.12 Khatties. The High Court wrongly thought that the entry in column 10 was 37.75 acres. Khatties were local measures in popular use in those days and if only the High Court had referred to the earlier judgments of the courts which had been placed before it, it would have discovered that the extent of land was mentioned in Khatties and not Acres. The comment of the High Court that it was difficult to hold that a grant which consisted only 37.75 acres could ever be thought of as grant of a whole village, was therefore misplaced. The entries in the Oakes register clearly show that Uruturu Agraharam which was of the extent of 37-3/4 Khatties and bearing a Kattubadi of 30 Varahas had been granted to Anantacharyulu by Nizam-ul-mulk by a sanad of Fasli 1142. The grant was clearly of a named village and without doubt it was an Estate within the meaning of Section 3 (2) (d) of the Estates Land Act. There is no. evidence as to when the minor inam was granted, whether it was granted before the grant of the village, whether it was granted by the original grantor subsequent to the grant of the village or whether it was carved out of the original grant itself subsequent to the date of the original grant. The burden of establishing that Uruturu inam village was not an Estate within the meaning of Section 3 (2) (d) was on the plaintiffs and the burden has not been discharged. As already mentioned by us, the Madras High Court, on an earlier occasion, had come to the conclusion, with the original grant before it, that Uruturu inam village was an Estate within the meaning of Section 3 (2) (d) of the Estates Land Act. We have also referred to the fact that the village has also been notified as an Estate under the Madras Estates (Abolition and Conversion into Ryotwari) Act.
### Response:
1
### Explanation:
To our mind, there was no. justification for the High Court to interfere in second appeal even if it was inclined to take a different view of the evidence. In fact, we do not consider that a different view than that taken by the Lower Appellate Court was possible. We notice that the High Court completely lost sight of the burden of proof and proceeded as if the burden was on the defendants to establish that Uruturu was an Estate within the meaning of Section 3 (2) (d) of the Estates Land Act and that the grantor had reserved no. interest in the land at the time of the original grant. The burden was wrongly placed upon the defendants by the High Court and even if it was rightly placed on the defendants, we are satisfied that the burden was adequately discharged.The High Court has clearly misinterpreted the entries in the Oakes Inam Register of 1797 AD. In the first column, the entry is Uruturu and against the second column (the nature of the inam), the entry is Agraharam. The names of grantor and grantee are mentioned in columns 4 and 5 and in column 10, the extent of land is mentioned as 37.12 Khatties. The High Court wrongly thought that the entry in column 10 was 37.75 acres. Khatties were local measures in popular use in those days and if only the High Court had referred to the earlier judgments of the courts which had been placed before it, it would have discovered that the extent of land was mentioned in Khatties and not Acres. The comment of the High Court that it was difficult to hold that a grant which consisted only 37.75 acres could ever be thought of as grant of a whole village, was therefore misplaced. The entries in the Oakes register clearly show that Uruturu Agraharam which was of the extent ofKhatties and bearing a Kattubadi of 30 Varahas had been granted to Anantacharyulu byby a sanad of Fasli 1142. The grant was clearly of a named village and without doubt it was an Estate within the meaning of Section 3 (2) (d) of the Estates Land Act. There is no. evidence as to when the minor inam was granted, whether it was granted before the grant of the village, whether it was granted by the original grantor subsequent to the grant of the village or whether it was carved out of the original grant itself subsequent to the date of the original grant. The burden of establishing that Uruturu inam village was not an Estate within the meaning of Section 3 (2) (d) was on the plaintiffs and the burden has not been discharged. As already mentioned by us, the Madras High Court, on an earlier occasion, had come to the conclusion, with the original grant before it, that Uruturu inam village was an Estate within the meaning of Section 3 (2) (d) of the Estates Land Act. We have also referred to the fact that the village has also been notified as an Estate under the Madras Estates (Abolition and Conversion into Ryotwari) Act.
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Sri Samir Sobhan Sanyal Vs. Tracks Trade Pvt. Ltd. | to purchase the property at a consideration price of Rs.40 lakhs". 3. It would thus be seen that in the suit for specific performance, the 6th respondent was put on notice that the appellant was in possession and enjoyment of the demised premises and yet the 6th respondent had entered into the agreement subject to the encumbrances. Subsequently, the suit came to be decreed for khans possession also which decree became final. In spite of the fact that the 6th respondent was aware of the continuance in possession and enjoyment of the demised premises by the appellant, no steps have been taken either to have him impleaded as a party defendant to the suit for specific performance nor a decree personally against him was obtained in any other proceedings as on date.4. The question, therefore, is whether the appellant can be disposed in execution of the decree in Title Suit No. 137 of 1986. When the possession of the appellant was sought to be interdicted, admittedly, he filed a petition under Order 21, Rules 98 and 99, C.P.C. claiming adjudication of his right to remain in possession of the said property. It is his case that his employer had agreed to allow him in possession till alternative accommodation is given to him even after retirement. It is not necessary to narrate the subsequent events in chronology which have cropped up in several of the proceedings. Admittedly on a petition filed by the appellant, the High Court had directed a Court Officer to be in possession of the property. In furtherance thereof, the Court Officer did take possession of the property. Later, attempts have been made by the first respondent who was said to have entered into a lease with the 3rd respondent, to come into possession of the property, but they were rejected by the executing Court as well as by the High Court on appeal. The 6th respondent assigned his rights in the decree to the 3rd respondent Pranav Merchandise Pvt. Ltd. In the application for continuance of the appellants possession the executing Court directed the Court Officer appointed by the High Court to remain in possession of the property till the application filed under 0.21, Rule 98 and 99, C.P.C. was disposed of.5. In the meanwhile, the 1st respondent had taken two other applications before the trial Court at different times seeking for possession of the property. The first application was dismissed. Consequently, he filed a revision in the High Court. The subsequent two applications also came to be dismissed, one day prior to hearing of the revision under appeal and the same became final. The High Court in the impugned order dated July 6, 1995 has directed induction of the 1st respondent into possession of the property. We are informed that even before that order came to be passed, he had already come into possession of the property. When the matter had come up before this Court at the time of admission, the 1st respondent had entered appearance through the counsel and it was brought to our notice that he had already come in possession of the property in execution of the decree. Nonetheless, by order dated July 24, 1995 this Court passed the order as under : "Issue notice.Mr. Goodwill Indeevar and Ms. Mridula Ray Bharadwaj, Advocates take notice for Respondent Nos. 1 and 2 respectively. Four weeks time is granted for filing counter affidavits and two weeks thereafter for rejoinder. Post after six weeks.Though the counsel for the respondents state that the possession was taken on 12th July, 1995, on the facts and circumstances, we think that interim suspension of the High Courts order be made. It is accordingly made". 6. It would thus be clear that without any decree or order of eviction of the appellant from the demised premises, he has been unlawfully dispossessed from the premises without any due process of law. The question, therefore, is whether he should be allowed to remain in possession till his application under Order 21, Rule 98 and 99 is adjudicated upon and an order made. Though the learned counsel for the 1st respondent and also for the 3rd respondent, who is one of the transferees from the 6th respondent, sought to contend that the appellant has no right to remain in possession after the lessee, M/s. India Foils Ltd. had admitted by a resolution that the appellant has no right to remain in possession, we are not impressed with the arguments. At this stage, we are only concerned with his admitted possession of the demised premises. What rights would flow from a contract between him and his employer is a matter to be adjudicated in his application filed under Order 21, Rules 98 and 99, CPC. At this stage, it is premature to go into and record any finding in that behalf. The learned counsel for the 1st respondent also repeatedly sought to bring to our notice that on account of the orders of the Court Officer passed by the High Court the maintenance cost has been mounting up due to the delay in disposal of the proceedings in various Courts. Even with regard to that, we are not impressed with the same. Since the letter of the law should strictly be adhered to, we find that high handed action taken by the respondent Nos. 1, 3 and 6 in having the appellant dispossessed without due process of law, cannot be overlooked nor condoned. The Court cannot blink at their unlawful conduct to dispossess the appellant from demised property and would say that the status quo be maintained. If the Court gives acceptance to such high handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law abiding citizens and rule of law would remain a mortuary. | 1[ds]are not impressed with the arguments. At this stage, we are only concerned with his admitted possession of the demised premises. What rights would flow from a contract between him and his employer is a matter to be adjudicated in his application filed under Order 21, Rules 98 and 99,CPC. At this stage, it is premature to go into and record any finding in that behalf. Thelearned counsel for the 1st respondent also repeatedly sought to bring to our notice that on account of the orders of the Court Officer passed by the High Court the maintenance cost has been mounting up due to the delay in disposal of the proceedings in various Courts.Even with regard to that, we are not impressed with the same. Since the letter of the law should strictly be adhered to, we find that high handed action taken by the respondent Nos. 1, 3 and 6 in having the appellant dispossessed without due process of law, cannot be overlooked nor condoned. The Court cannot blink at their unlawful conduct to dispossess the appellant from demised property and would say that the status quo be maintained. If the Court gives acceptance to such high handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law abiding citizens and rule of law would remain aPetition No. 61 of 1996.9. Notice is issued to the first (1st) respondent to show cause why he should not be convicted for deliberate disobedience of the order dated July 24, 1995, directing that the appellant be put into possession through Court Officer.Counsel for the 1st respondent takes notice for contempt. He seeks for and is granted time for filing counter affidavit. | 1 | 1,348 | 350 | ### 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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to purchase the property at a consideration price of Rs.40 lakhs". 3. It would thus be seen that in the suit for specific performance, the 6th respondent was put on notice that the appellant was in possession and enjoyment of the demised premises and yet the 6th respondent had entered into the agreement subject to the encumbrances. Subsequently, the suit came to be decreed for khans possession also which decree became final. In spite of the fact that the 6th respondent was aware of the continuance in possession and enjoyment of the demised premises by the appellant, no steps have been taken either to have him impleaded as a party defendant to the suit for specific performance nor a decree personally against him was obtained in any other proceedings as on date.4. The question, therefore, is whether the appellant can be disposed in execution of the decree in Title Suit No. 137 of 1986. When the possession of the appellant was sought to be interdicted, admittedly, he filed a petition under Order 21, Rules 98 and 99, C.P.C. claiming adjudication of his right to remain in possession of the said property. It is his case that his employer had agreed to allow him in possession till alternative accommodation is given to him even after retirement. It is not necessary to narrate the subsequent events in chronology which have cropped up in several of the proceedings. Admittedly on a petition filed by the appellant, the High Court had directed a Court Officer to be in possession of the property. In furtherance thereof, the Court Officer did take possession of the property. Later, attempts have been made by the first respondent who was said to have entered into a lease with the 3rd respondent, to come into possession of the property, but they were rejected by the executing Court as well as by the High Court on appeal. The 6th respondent assigned his rights in the decree to the 3rd respondent Pranav Merchandise Pvt. Ltd. In the application for continuance of the appellants possession the executing Court directed the Court Officer appointed by the High Court to remain in possession of the property till the application filed under 0.21, Rule 98 and 99, C.P.C. was disposed of.5. In the meanwhile, the 1st respondent had taken two other applications before the trial Court at different times seeking for possession of the property. The first application was dismissed. Consequently, he filed a revision in the High Court. The subsequent two applications also came to be dismissed, one day prior to hearing of the revision under appeal and the same became final. The High Court in the impugned order dated July 6, 1995 has directed induction of the 1st respondent into possession of the property. We are informed that even before that order came to be passed, he had already come into possession of the property. When the matter had come up before this Court at the time of admission, the 1st respondent had entered appearance through the counsel and it was brought to our notice that he had already come in possession of the property in execution of the decree. Nonetheless, by order dated July 24, 1995 this Court passed the order as under : "Issue notice.Mr. Goodwill Indeevar and Ms. Mridula Ray Bharadwaj, Advocates take notice for Respondent Nos. 1 and 2 respectively. Four weeks time is granted for filing counter affidavits and two weeks thereafter for rejoinder. Post after six weeks.Though the counsel for the respondents state that the possession was taken on 12th July, 1995, on the facts and circumstances, we think that interim suspension of the High Courts order be made. It is accordingly made". 6. It would thus be clear that without any decree or order of eviction of the appellant from the demised premises, he has been unlawfully dispossessed from the premises without any due process of law. The question, therefore, is whether he should be allowed to remain in possession till his application under Order 21, Rule 98 and 99 is adjudicated upon and an order made. Though the learned counsel for the 1st respondent and also for the 3rd respondent, who is one of the transferees from the 6th respondent, sought to contend that the appellant has no right to remain in possession after the lessee, M/s. India Foils Ltd. had admitted by a resolution that the appellant has no right to remain in possession, we are not impressed with the arguments. At this stage, we are only concerned with his admitted possession of the demised premises. What rights would flow from a contract between him and his employer is a matter to be adjudicated in his application filed under Order 21, Rules 98 and 99, CPC. At this stage, it is premature to go into and record any finding in that behalf. The learned counsel for the 1st respondent also repeatedly sought to bring to our notice that on account of the orders of the Court Officer passed by the High Court the maintenance cost has been mounting up due to the delay in disposal of the proceedings in various Courts. Even with regard to that, we are not impressed with the same. Since the letter of the law should strictly be adhered to, we find that high handed action taken by the respondent Nos. 1, 3 and 6 in having the appellant dispossessed without due process of law, cannot be overlooked nor condoned. The Court cannot blink at their unlawful conduct to dispossess the appellant from demised property and would say that the status quo be maintained. If the Court gives acceptance to such high handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law abiding citizens and rule of law would remain a mortuary.
### Response:
1
### Explanation:
are not impressed with the arguments. At this stage, we are only concerned with his admitted possession of the demised premises. What rights would flow from a contract between him and his employer is a matter to be adjudicated in his application filed under Order 21, Rules 98 and 99,CPC. At this stage, it is premature to go into and record any finding in that behalf. Thelearned counsel for the 1st respondent also repeatedly sought to bring to our notice that on account of the orders of the Court Officer passed by the High Court the maintenance cost has been mounting up due to the delay in disposal of the proceedings in various Courts.Even with regard to that, we are not impressed with the same. Since the letter of the law should strictly be adhered to, we find that high handed action taken by the respondent Nos. 1, 3 and 6 in having the appellant dispossessed without due process of law, cannot be overlooked nor condoned. The Court cannot blink at their unlawful conduct to dispossess the appellant from demised property and would say that the status quo be maintained. If the Court gives acceptance to such high handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law would be put to ridicule in the estimate of the law abiding citizens and rule of law would remain aPetition No. 61 of 1996.9. Notice is issued to the first (1st) respondent to show cause why he should not be convicted for deliberate disobedience of the order dated July 24, 1995, directing that the appellant be put into possession through Court Officer.Counsel for the 1st respondent takes notice for contempt. He seeks for and is granted time for filing counter affidavit.
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Ramakrishna Hari Hegde & Anr Vs. Market Committee, Sirsi & Ors | had earlier in Mohammad Hussain Gulam Mohammad v. The State of Bombay (1962) 2 SCR 659 = (AIR 1962 SC 97 ), held Sections 4, 4-A, 5, 5-A and 5-AA to be constitutional and that none of the said provisions imposed unreasonable restrictions on the right to carry on trade in the agricultural produce regulated under the Act as such were not violative of Article 19 (1) (g) of the Constitution.9. It is, however, contended that the impugned Notification is violative of Articles 19 (1) (g), 14 and 31 of the Constitution.10. The Notification as we have already stated was issued on 5-1-1965 under Section 4-A of the Act and is in the following terms :-"In exercise of the powers conferred by sub-section (2) of Section 4-A of the Bombay Agricultural Produce Markets Act. 1939 (Bombay Act 22 of 1939) as in force in the Bombay area, and in supersession of Bombay Government. Notification Development Department No. APM 4554, dated 31-8-1954, the Government of Mysore hereby declares the following locality in the market area of the Agricultural Produce Market Committee, Sirsi of Sirsi Taluka of North Kanara District, to be a Principal market yard for the area with effect from the 15th January, 1965, namely: -Locality:An area measuring about 35 acres and 29 gunthas and 4 acres of Sirsi Totagaras Co-operative Sales Society Ltd., Sirsi in R. S. Nos. 116, 117, 59 and 60 of Sirsi TalukaOn the North by: - Sirsi - Yellapur Main Road and R. S. No. 116.On the South by - R. S. Nos. 55, 57, and portion of R. S. No. 299.On the East by: - Portion of R. S. Nos. 299, 58, 129-A and 118.On the West by: - R. S. Nos. 61, 64 and 68".11. It may be mentioned that the earlier Notification of 31-8-1954 also made in exercise of the powers conferred by sub-section (2) of Section 4-A of the Act had declared as the Principal Market Yard all godowns, storage places and open places lying within the limits of the Sirsi Municipality and approved by the Agricultural Produce Market Committee, Sirsi for storage and for the purpose of sale of commodities under regulation including the area locally known as Channapattan Galli, Basti Galli and Nadger Galli which had earlier been declared by Notification of the Government in the Development Department dated 24- 4-1951 to be a Market Yard. The effect of the supersession of this Notification by the impugned Notification is that as from 15-1-1965 the area of the 3 Gallis ceased to be the Principal Market Yard and as such no business could be transacted therein on and after that date.12. This position could not be seriously controverted by the learned Advocate for the Respondents. In our view the prohibition implicit in the Notification was unreasonable and to that extent violated the fundamental rights of the Appellants and Respondent 3 to carry on their business because it could not have been postulated that they could immediately in 10 days shift their business to the Principal Market Yard declared by the impugned notification. The learned Advocate for the Market Committee however pointed out that it was never their intention to prohibit at once any business being conducted in the Market Yard in the Gallis, but they had in fact in their proposals to the Government suggested the business in the Gallis should be allowed to be continued for a year or two. Whatever their proposals may have been we have no doubt that the effect of the Notification as long as it is in force is to prohibit the Appellants and Respondent 3 from carrying on business in the Market Yard of the Gallis.13. It is submitted by the learned Advocate for the Respondents that the Appellants and Respondent 3 had sufficient time till now to make arrangements to shift their business, as such they are not entitled to complain, but the contention on behalf of the Appellants is that they were entitled to challenge the Notification and as they had invested large amounts in buildings etc., in the 3 Gallis they are justified in asking this Court to direct Respondents to have these areas declared as a sub Market area.While the Government has the power to issue a Notification in public interest and to declare the area specified in the impugned Notification as the Principal Market area, without necessarily declaring other areas simultaneously as sub-Market area, in our view sufficient time should have been given for the Appellants.Respondent 3 and other persons doing business in the area of the 3 Gallis to shift their business. As long as the Notification prohibited them from doing business in those Gallis they had a right to challenge the validity of that Notification. No doubt the Government could have declared the 3 Gallis as sub-Market area but it is not for this Court to arrogate to itself the functions of the Government and direct them to do so merely because that would be one of the ways in which the impugned Notification can be rectified. The learned Advocate for the Market Committee, however, consistent with the stand taken by the Market Committee in its counter before the High Court that it had requested the Government to allow the business in the Gallis to be earned on for one or two years agrees to give one and a half years time for the Appellants and Respondents to enable them to shift during this period, to the Principal Market Yard declared under the impugned Notification and till then permit them to continue their business in the 3 Gallis. The period agreed to in our view is a reasonable period within which the Appellants and Respondent 3 can shift their business to the new Market Area and till then they should not be prohibited from doing business in the Market area of the 3 Gallis as heretofore. In view of this agreement except to give the above direction there is no need to strike down the Notification. | 1[ds]11. It may be mentioned that the earlier Notification of 31-8-1954 also made in exercise of the powers conferred by sub-section (2) of Section 4-A of the Act had declared as the Principal Market Yard all godowns, storage places and open places lying within the limits of the Sirsi Municipality and approved by the Agricultural Produce Market Committee, Sirsi for storage and for the purpose of sale of commodities under regulation including the area locally known as Channapattan Galli, Basti Galli and Nadger Galli which had earlier been declared by Notification of the Government in the Development Department dated 24- 4-1951 to be a Market Yard. The effect of the supersession of this Notification by the impugned Notification is that as from 15-1-1965 the area of the 3 Gallis ceased to be the Principal Market Yard and as such no business could be transacted therein on and after that date.12. This position could not be seriously controverted by the learned Advocate for the Respondents. In our view the prohibition implicit in the Notification was unreasonable and to that extent violated the fundamental rights of the Appellants and Respondent 3 to carry on their business because it could not have been postulated that they could immediately in 10 days shift their business to the Principal Market Yard declared by the impugned notification. The learned Advocate for the Market Committee however pointed out that it was never their intention to prohibit at once any business being conducted in the Market Yard in the Gallis, but they had in fact in their proposals to the Government suggested the business in the Gallis should be allowed to be continued for a year or two. Whatever their proposals may have been we have no doubt that the effect of the Notification as long as it is in force is to prohibit the Appellants and Respondent 3 from carrying on business in the Market Yard of thethe Government has the power to issue a Notification in public interest and to declare the area specified in the impugned Notification as the Principal Market area, without necessarily declaring other areas simultaneously as sub-Market area, in our view sufficient time should have been given for the Appellants.Respondent 3 and other persons doing business in the area of the 3 Gallis to shift their business. As long as the Notification prohibited them from doing business in those Gallis they had a right to challenge the validity of that Notification. No doubt the Government could have declared the 3 Gallis as sub-Market area but it is not for this Court to arrogate to itself the functions of the Government and direct them to do so merely because that would be one of the ways in which the impugned Notification can be rectified. The learned Advocate for the Market Committee, however, consistent with the stand taken by the Market Committee in its counter before the High Court that it had requested the Government to allow the business in the Gallis to be earned on for one or two years agrees to give one and a half years time for the Appellants and Respondents to enable them to shift during this period, to the Principal Market Yard declared under the impugned Notification and till then permit them to continue their business in the 3 Gallis. The period agreed to in our view is a reasonable period within which the Appellants and Respondent 3 can shift their business to the new Market Area and till then they should not be prohibited from doing business in the Market area of the 3 Gallis as heretofore. In view of this agreement except to give the above direction there is no need to strike down the Notification. | 1 | 3,026 | 647 | ### 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:
had earlier in Mohammad Hussain Gulam Mohammad v. The State of Bombay (1962) 2 SCR 659 = (AIR 1962 SC 97 ), held Sections 4, 4-A, 5, 5-A and 5-AA to be constitutional and that none of the said provisions imposed unreasonable restrictions on the right to carry on trade in the agricultural produce regulated under the Act as such were not violative of Article 19 (1) (g) of the Constitution.9. It is, however, contended that the impugned Notification is violative of Articles 19 (1) (g), 14 and 31 of the Constitution.10. The Notification as we have already stated was issued on 5-1-1965 under Section 4-A of the Act and is in the following terms :-"In exercise of the powers conferred by sub-section (2) of Section 4-A of the Bombay Agricultural Produce Markets Act. 1939 (Bombay Act 22 of 1939) as in force in the Bombay area, and in supersession of Bombay Government. Notification Development Department No. APM 4554, dated 31-8-1954, the Government of Mysore hereby declares the following locality in the market area of the Agricultural Produce Market Committee, Sirsi of Sirsi Taluka of North Kanara District, to be a Principal market yard for the area with effect from the 15th January, 1965, namely: -Locality:An area measuring about 35 acres and 29 gunthas and 4 acres of Sirsi Totagaras Co-operative Sales Society Ltd., Sirsi in R. S. Nos. 116, 117, 59 and 60 of Sirsi TalukaOn the North by: - Sirsi - Yellapur Main Road and R. S. No. 116.On the South by - R. S. Nos. 55, 57, and portion of R. S. No. 299.On the East by: - Portion of R. S. Nos. 299, 58, 129-A and 118.On the West by: - R. S. Nos. 61, 64 and 68".11. It may be mentioned that the earlier Notification of 31-8-1954 also made in exercise of the powers conferred by sub-section (2) of Section 4-A of the Act had declared as the Principal Market Yard all godowns, storage places and open places lying within the limits of the Sirsi Municipality and approved by the Agricultural Produce Market Committee, Sirsi for storage and for the purpose of sale of commodities under regulation including the area locally known as Channapattan Galli, Basti Galli and Nadger Galli which had earlier been declared by Notification of the Government in the Development Department dated 24- 4-1951 to be a Market Yard. The effect of the supersession of this Notification by the impugned Notification is that as from 15-1-1965 the area of the 3 Gallis ceased to be the Principal Market Yard and as such no business could be transacted therein on and after that date.12. This position could not be seriously controverted by the learned Advocate for the Respondents. In our view the prohibition implicit in the Notification was unreasonable and to that extent violated the fundamental rights of the Appellants and Respondent 3 to carry on their business because it could not have been postulated that they could immediately in 10 days shift their business to the Principal Market Yard declared by the impugned notification. The learned Advocate for the Market Committee however pointed out that it was never their intention to prohibit at once any business being conducted in the Market Yard in the Gallis, but they had in fact in their proposals to the Government suggested the business in the Gallis should be allowed to be continued for a year or two. Whatever their proposals may have been we have no doubt that the effect of the Notification as long as it is in force is to prohibit the Appellants and Respondent 3 from carrying on business in the Market Yard of the Gallis.13. It is submitted by the learned Advocate for the Respondents that the Appellants and Respondent 3 had sufficient time till now to make arrangements to shift their business, as such they are not entitled to complain, but the contention on behalf of the Appellants is that they were entitled to challenge the Notification and as they had invested large amounts in buildings etc., in the 3 Gallis they are justified in asking this Court to direct Respondents to have these areas declared as a sub Market area.While the Government has the power to issue a Notification in public interest and to declare the area specified in the impugned Notification as the Principal Market area, without necessarily declaring other areas simultaneously as sub-Market area, in our view sufficient time should have been given for the Appellants.Respondent 3 and other persons doing business in the area of the 3 Gallis to shift their business. As long as the Notification prohibited them from doing business in those Gallis they had a right to challenge the validity of that Notification. No doubt the Government could have declared the 3 Gallis as sub-Market area but it is not for this Court to arrogate to itself the functions of the Government and direct them to do so merely because that would be one of the ways in which the impugned Notification can be rectified. The learned Advocate for the Market Committee, however, consistent with the stand taken by the Market Committee in its counter before the High Court that it had requested the Government to allow the business in the Gallis to be earned on for one or two years agrees to give one and a half years time for the Appellants and Respondents to enable them to shift during this period, to the Principal Market Yard declared under the impugned Notification and till then permit them to continue their business in the 3 Gallis. The period agreed to in our view is a reasonable period within which the Appellants and Respondent 3 can shift their business to the new Market Area and till then they should not be prohibited from doing business in the Market area of the 3 Gallis as heretofore. In view of this agreement except to give the above direction there is no need to strike down the Notification.
### Response:
1
### Explanation:
11. It may be mentioned that the earlier Notification of 31-8-1954 also made in exercise of the powers conferred by sub-section (2) of Section 4-A of the Act had declared as the Principal Market Yard all godowns, storage places and open places lying within the limits of the Sirsi Municipality and approved by the Agricultural Produce Market Committee, Sirsi for storage and for the purpose of sale of commodities under regulation including the area locally known as Channapattan Galli, Basti Galli and Nadger Galli which had earlier been declared by Notification of the Government in the Development Department dated 24- 4-1951 to be a Market Yard. The effect of the supersession of this Notification by the impugned Notification is that as from 15-1-1965 the area of the 3 Gallis ceased to be the Principal Market Yard and as such no business could be transacted therein on and after that date.12. This position could not be seriously controverted by the learned Advocate for the Respondents. In our view the prohibition implicit in the Notification was unreasonable and to that extent violated the fundamental rights of the Appellants and Respondent 3 to carry on their business because it could not have been postulated that they could immediately in 10 days shift their business to the Principal Market Yard declared by the impugned notification. The learned Advocate for the Market Committee however pointed out that it was never their intention to prohibit at once any business being conducted in the Market Yard in the Gallis, but they had in fact in their proposals to the Government suggested the business in the Gallis should be allowed to be continued for a year or two. Whatever their proposals may have been we have no doubt that the effect of the Notification as long as it is in force is to prohibit the Appellants and Respondent 3 from carrying on business in the Market Yard of thethe Government has the power to issue a Notification in public interest and to declare the area specified in the impugned Notification as the Principal Market area, without necessarily declaring other areas simultaneously as sub-Market area, in our view sufficient time should have been given for the Appellants.Respondent 3 and other persons doing business in the area of the 3 Gallis to shift their business. As long as the Notification prohibited them from doing business in those Gallis they had a right to challenge the validity of that Notification. No doubt the Government could have declared the 3 Gallis as sub-Market area but it is not for this Court to arrogate to itself the functions of the Government and direct them to do so merely because that would be one of the ways in which the impugned Notification can be rectified. The learned Advocate for the Market Committee, however, consistent with the stand taken by the Market Committee in its counter before the High Court that it had requested the Government to allow the business in the Gallis to be earned on for one or two years agrees to give one and a half years time for the Appellants and Respondents to enable them to shift during this period, to the Principal Market Yard declared under the impugned Notification and till then permit them to continue their business in the 3 Gallis. The period agreed to in our view is a reasonable period within which the Appellants and Respondent 3 can shift their business to the new Market Area and till then they should not be prohibited from doing business in the Market area of the 3 Gallis as heretofore. In view of this agreement except to give the above direction there is no need to strike down the Notification.
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Silversons Vs. Oriental Insurance Company Ltd. & Another | final port would give the cause of action to the Insurance Company. The date of discharge at final port could be relied. The insurance policy provides for that only. We are, therefore, of the view that the bar of limitation cannot survive.Since this does not survive, the Insurance Company cannot resist the claim of the complainant. We therefore, hold that even against the Insurance Company, the claim is maintainable. We therefore accept both complaints and proceed to calculate the compensation that would be payable to the complainant.” Both the insurer and the carrier appealed against the order of the State Commission. The National Commission reversed the finding recorded by the State Commission on the issue of deficiency in service and relieved the insurer of its obligation to compensate the appellant by observing that even though the appellant had been intimated about discharge of the cargo at Colombo Port, it did not promptly inform the Insurance Company as per the requirement of Clause 9 of the Institute Cargo Clauses. 6. We have heard Mr. R. Sundarvardan, learned Senior Counsel appearing for the appellant and Mr. Santosh Paul, learned Counsel for the respondents and carefully scrutinized the records. Clause 9 of the Institute Cargo Clauses, which formed part of the policy obtained by the appellant, reads thus: “9 Termination of Contract of Carriage Clause—If owing to circumstances beyond the control of the Assured either the contract of carriage is terminated at a port or place other than the destination named therein or the transit is otherwise terminated before delivery of the goods as provided for in Clause 8 above, then this insurance shall also terminate unless prompt notice is given to the Underwriters and continuation of cover is requested when the insurance shall remain in force, subject to an additional premium if required by the Underwriters, either 9.1 until the goods are sold and delivered at such port or place, or, unless otherwise specially agreed, until the expiry of 60 days after arrival of the goods hereby insured at such port or place, whichever shall first occur, or9.2 if the goods are forwarded within the said period of 60 days (or any agreed extension thereof) to the destination named herein or to any other destination, until terminated in accordance with the provisions of Clause 8 above.” The National Commission interpreted the above reproduced clause and observed: “The question which arises before us is to determine if this period could be said to mean ‘Prompt’ notice within the terms of the policy. Purpose, undoubtedly of requiring prompt notice is to enable the insured to inspect the goods, satisfy themselves about the case of loss/damage and to ascertain of it falls within the terms of Policy or no? In this case no such follow-up action could be taken by the insurers to safeguard their own interest. Prompt notice in our view will mean immediately informing the insurer which normally we have seen is done within 24 hours. It could be extended to 48 to 72 hours but in no case extended to three months. Non-sending of any ‘prompt notice’ to the insurers is a clear case of violation of terms/clauses of the policy by the insured/complainant, thus depriving them of an opportunity to ascertain the full facts and to safeguard its interest. In our view the State Commission went wrong in this case on two counts one relying upon the date of intimation to the complainant being 17.1.1994 which is contrary to record and secondly misinterpreting Clauses 9 and 9.1 of ICC `A which led them to hold the insurers deficient in rendering service with which we do not agree. In our view the violation/non adherence of the clauses 9 on not sending ‘prompt notice’ is crucial enough to agree with the repudiation of the claim of the complainant against the insurers,i.e. the Insurance Company.” Although, the view taken by the National Commission that for availing benefit of the Policy, the insured should give intimation to the insurer within 24 hours or 48 hours or at best within 72 hours appears to be too narrow and we are inclined to agree with the learned Counsel for the appellant that it would be sufficient if intimation is given to the insurer within a reasonable period, but what should be the reasonable period within which the insured should inform the insurer about the loss of goods would depend upon the facts of each case and no strait-jacket formula can be laid down to determine as to what would constitute prompt notice within the contemplation of Clause 9 of the Institute Cargo Clauses. Insofar as this case is concerned, we are convinced that the long time gap of almost three months between the date when the appellant had been informed about discharge of the cargo by MV “Aken” at Colombo Port and the intimation given by the appellant to the insurer was unreasonable and, by no stretch of imagination, it could be construed as a prompt notice.7. Learned Counsel for the appellant made considerable efforts to convince us that after the cargo had been discharged at Colombo Port, the same was reloaded in the container and this should give rise to a presumption that the container had been reloaded on the ship for final destination, but we have not felt persuaded to agree with him. A reading of the averments contained in the complaint leaves no manner of doubt that the appellant knew that the cargo was lying at Colombo Port and the same had not been shipped for final destination.8. The survey report dated 16.12.1993 does show that the barrels (leaking or non-leaking) were loaded in the container, but the same cannot lead to an inference that the container was reloaded for being shipped to Norfolk (USA). In view of the above, we hold that the conclusion recorded by the National Commission that the insurer was not liable to indemnify the appellant for the alleged loss of cargo does not suffer from any legal error. 9. | 0[ds]Although, the view taken by the National Commission that for availing benefit of the Policy, the insured should give intimation to the insurer within 24 hours or 48 hours or at best within 72 hours appears to be too narrow and we are inclined to agree with the learned Counsel for the appellant that it would be sufficient if intimation is given to the insurer within a reasonable period, but what should be the reasonable period within which the insured should inform the insurer about the loss of goods would depend upon the facts of each case and noformula can be laid down to determine as to what would constitute prompt notice within the contemplation of Clause 9 of the Institute Cargo Clauses. Insofar as this case is concerned, we are convinced that the long time gap of almost three months between the date when the appellant had been informed about discharge of the cargo by MVat Colombo Port and the intimation given by the appellant to the insurer was unreasonable and, by no stretch of imagination, it could be construed as a prompt notice.7. Learned Counsel for the appellant made considerable efforts to convince us that after the cargo had been discharged at Colombo Port, the same was reloaded in the container and this should give rise to a presumption that the container had been reloaded on the ship for final destination, but we have not felt persuaded to agree with him. A reading of the averments contained in the complaint leaves no manner of doubt that the appellant knew that the cargo was lying at Colombo Port and the same had not been shipped for final destination.8. The survey report dated 16.12.1993 does show that the barrels (leaking orwere loaded in the container, but the same cannot lead to an inference that the container was reloaded for being shipped to Norfolk (USA). In view of the above, we hold that the conclusion recorded by the National Commission that the insurer was not liable to indemnify the appellant for the alleged loss of cargo does not suffer from any legal error. | 0 | 2,136 | 376 | ### 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:
final port would give the cause of action to the Insurance Company. The date of discharge at final port could be relied. The insurance policy provides for that only. We are, therefore, of the view that the bar of limitation cannot survive.Since this does not survive, the Insurance Company cannot resist the claim of the complainant. We therefore, hold that even against the Insurance Company, the claim is maintainable. We therefore accept both complaints and proceed to calculate the compensation that would be payable to the complainant.” Both the insurer and the carrier appealed against the order of the State Commission. The National Commission reversed the finding recorded by the State Commission on the issue of deficiency in service and relieved the insurer of its obligation to compensate the appellant by observing that even though the appellant had been intimated about discharge of the cargo at Colombo Port, it did not promptly inform the Insurance Company as per the requirement of Clause 9 of the Institute Cargo Clauses. 6. We have heard Mr. R. Sundarvardan, learned Senior Counsel appearing for the appellant and Mr. Santosh Paul, learned Counsel for the respondents and carefully scrutinized the records. Clause 9 of the Institute Cargo Clauses, which formed part of the policy obtained by the appellant, reads thus: “9 Termination of Contract of Carriage Clause—If owing to circumstances beyond the control of the Assured either the contract of carriage is terminated at a port or place other than the destination named therein or the transit is otherwise terminated before delivery of the goods as provided for in Clause 8 above, then this insurance shall also terminate unless prompt notice is given to the Underwriters and continuation of cover is requested when the insurance shall remain in force, subject to an additional premium if required by the Underwriters, either 9.1 until the goods are sold and delivered at such port or place, or, unless otherwise specially agreed, until the expiry of 60 days after arrival of the goods hereby insured at such port or place, whichever shall first occur, or9.2 if the goods are forwarded within the said period of 60 days (or any agreed extension thereof) to the destination named herein or to any other destination, until terminated in accordance with the provisions of Clause 8 above.” The National Commission interpreted the above reproduced clause and observed: “The question which arises before us is to determine if this period could be said to mean ‘Prompt’ notice within the terms of the policy. Purpose, undoubtedly of requiring prompt notice is to enable the insured to inspect the goods, satisfy themselves about the case of loss/damage and to ascertain of it falls within the terms of Policy or no? In this case no such follow-up action could be taken by the insurers to safeguard their own interest. Prompt notice in our view will mean immediately informing the insurer which normally we have seen is done within 24 hours. It could be extended to 48 to 72 hours but in no case extended to three months. Non-sending of any ‘prompt notice’ to the insurers is a clear case of violation of terms/clauses of the policy by the insured/complainant, thus depriving them of an opportunity to ascertain the full facts and to safeguard its interest. In our view the State Commission went wrong in this case on two counts one relying upon the date of intimation to the complainant being 17.1.1994 which is contrary to record and secondly misinterpreting Clauses 9 and 9.1 of ICC `A which led them to hold the insurers deficient in rendering service with which we do not agree. In our view the violation/non adherence of the clauses 9 on not sending ‘prompt notice’ is crucial enough to agree with the repudiation of the claim of the complainant against the insurers,i.e. the Insurance Company.” Although, the view taken by the National Commission that for availing benefit of the Policy, the insured should give intimation to the insurer within 24 hours or 48 hours or at best within 72 hours appears to be too narrow and we are inclined to agree with the learned Counsel for the appellant that it would be sufficient if intimation is given to the insurer within a reasonable period, but what should be the reasonable period within which the insured should inform the insurer about the loss of goods would depend upon the facts of each case and no strait-jacket formula can be laid down to determine as to what would constitute prompt notice within the contemplation of Clause 9 of the Institute Cargo Clauses. Insofar as this case is concerned, we are convinced that the long time gap of almost three months between the date when the appellant had been informed about discharge of the cargo by MV “Aken” at Colombo Port and the intimation given by the appellant to the insurer was unreasonable and, by no stretch of imagination, it could be construed as a prompt notice.7. Learned Counsel for the appellant made considerable efforts to convince us that after the cargo had been discharged at Colombo Port, the same was reloaded in the container and this should give rise to a presumption that the container had been reloaded on the ship for final destination, but we have not felt persuaded to agree with him. A reading of the averments contained in the complaint leaves no manner of doubt that the appellant knew that the cargo was lying at Colombo Port and the same had not been shipped for final destination.8. The survey report dated 16.12.1993 does show that the barrels (leaking or non-leaking) were loaded in the container, but the same cannot lead to an inference that the container was reloaded for being shipped to Norfolk (USA). In view of the above, we hold that the conclusion recorded by the National Commission that the insurer was not liable to indemnify the appellant for the alleged loss of cargo does not suffer from any legal error. 9.
### Response:
0
### Explanation:
Although, the view taken by the National Commission that for availing benefit of the Policy, the insured should give intimation to the insurer within 24 hours or 48 hours or at best within 72 hours appears to be too narrow and we are inclined to agree with the learned Counsel for the appellant that it would be sufficient if intimation is given to the insurer within a reasonable period, but what should be the reasonable period within which the insured should inform the insurer about the loss of goods would depend upon the facts of each case and noformula can be laid down to determine as to what would constitute prompt notice within the contemplation of Clause 9 of the Institute Cargo Clauses. Insofar as this case is concerned, we are convinced that the long time gap of almost three months between the date when the appellant had been informed about discharge of the cargo by MVat Colombo Port and the intimation given by the appellant to the insurer was unreasonable and, by no stretch of imagination, it could be construed as a prompt notice.7. Learned Counsel for the appellant made considerable efforts to convince us that after the cargo had been discharged at Colombo Port, the same was reloaded in the container and this should give rise to a presumption that the container had been reloaded on the ship for final destination, but we have not felt persuaded to agree with him. A reading of the averments contained in the complaint leaves no manner of doubt that the appellant knew that the cargo was lying at Colombo Port and the same had not been shipped for final destination.8. The survey report dated 16.12.1993 does show that the barrels (leaking orwere loaded in the container, but the same cannot lead to an inference that the container was reloaded for being shipped to Norfolk (USA). In view of the above, we hold that the conclusion recorded by the National Commission that the insurer was not liable to indemnify the appellant for the alleged loss of cargo does not suffer from any legal error.
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Dist. Registrar & Coll.,Hyderabad Vs. Canara Bank Etc | The above safeguards must necessarily be read into the provision relating to search and inspection and seizure so as to save it from any unconstitutionality. 55. Secondly, the impugned provision in sec.73 enabling the Collector to authorize any person whatsoever to inspect, to take notes or extracts from the papers in the public office suffers from the vice of excessive delegation as there are no guidelines in the Act and more importantly, the section allows the facts relating to the customers privacy to reach non-governmental persons and would, on that basis, be an unreasonable encroachment into the customers rights. This part of the Section 73 permitting delegation to any person suffers from the above serious defects and for that reason is, in our view, unenforceable. The State must clearly define the officers by designation or state that the power can be delegated to officers not below a particular rank in the official hierarchy, as may be designated by the State. 56. The A.P. amendment permits inspection being carried out by the Collector by having access to the documents which are in private custody i.e. custody other than that of a public officer. It is clear that this provision empowers invasion of the home of the person in whose possession the documents tending to or leading to the various facts stated in sec. 73 are in existence and sec.73 being one without any safeguards as to probable or reasonable cause or reasonable basis or materials violates the right to privacy both of the house and of the person. We have already referred to R. Rajagopals case wherein the learned judges have held that the right to personal liberty also means the life free from encroachments unsustainable in law and such right flowing from Article 21 of the Constitution. 57. In Smt. Maneka Gandhi vs. Union of India & Anr., (1978) 1 SCC 248 - a 7-Judges Bench decision, P.N. Bhagwati, J. (as His Lordship then was) held that the expression personal liberty in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status distinguishing as fundamental rights and give additional protection under Article 19 (emphasis supplied). Any law interfering with personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21. 58. The constitutional validity of the power conferred by law came to be decided from yet another angle in the case of Air India vs. Nergesh Meerza & ors., (1981) 4 SCC 335 , it was held that a discretionary power may not necessarily be a discriminatory power but where a statute confers a power on an authority to decide matters of moment without laying down any guidelines or principles or norms, the power has to be struck down as being violative of Article 14. 59. An instrument which is not duly stamped cannot be received in evidence by any person who has authority to receive evidence and it cannot be acted upon by that person or by any public officer. This is the penalty which is imposed by law on the person who may seek to claim any benefit under an instrument if it is not duly stamped. Once detected the authority competent to impound the document can recover not only duty but also penalty, which provision, protects the interest of revenue. In the event of there being criminal intention or fraud, the persons responsible may be liable to be prosecuted. The availability of these provisions, in our opinion adequately protects the interest of revenue. Unbridled power available to be exercised by any person whom the Collector may think proper to authorize without laying down any guidelines as to the persons who may be authorized and without recording the availability of grounds which would give rise to the belief, on the existence where of only, the power may be exercised deprives the provision of the quality of reasonableness. Possessing a document not duly stamped is not by itself any offence. Under the garb of the power conferred by Section 73 the person authorized may go on rampage searching house after house i.e. residences of the persons or the places used for the custody of documents. The possibility of any wild exercised of such power may be remote but then on the framing of Section 73, the provision impugned herein, the possibility cannot be ruled out. Any number of documents may be inspected, may be seized and may be removed and at the end the whole exercise may turn out to be an exercise in futility. The exercise may prove to be absolutely disproportionate with the purpose sought to be achieved and, therefore, a reasonable nexus between stringency of the provision and the purpose sought to be achieved ceases to exist.60. The abovesaid deficiency pointed out by the High Court and highlighted by the learned counsel for the respondents in this Court has not been removed even by the rules. The learned counsel for the respondents has pointed out that under the Rules the obligation is cast on the bank or any other person having custody of the documents though it may not be a party to the document, to pay the duty payable on the documents in order to secure release of the documents. 61 | 0[ds]An instrument which is not duly stamped cannot be received in evidence by any person who has authority to receive evidence and it cannot be acted upon by that person or by any public officer. This is the penalty which is imposed by law on the person who may seek to claim any benefit under an instrument if it is not duly stamped. Once detected the authority competent to impound the document can recover not only duty but also penalty, which provision, protects the interest of revenue. In the event of there being criminal intention or fraud, the persons responsible may be liable to be prosecuted. The availability of these provisions, in our opinion adequately protects the interest of revenue. Unbridled power available to be exercised by any person whom the Collector may think proper to authorize without laying down any guidelines as to the persons who may be authorized and without recording the availability of grounds which would give rise to the belief, on the existence where of only, the power may be exercised deprives the provision of the quality of reasonableness. Possessing a document not duly stamped is not by itself any offence. Under the garb of the power conferred by Section 73 the person authorized may go on rampage searching house after house i.e. residences of the persons or the places used for the custody of documents. The possibility of any wild exercised of such power may be remote but then on the framing of Section 73, the provision impugned herein, the possibility cannot be ruled out. Any number of documents may be inspected, may be seized and may be removed and at the end the whole exercise may turn out to be an exercise in futility. The exercise may prove to be absolutely disproportionate with the purpose sought to be achieved and, therefore, a reasonable nexus between stringency of the provision and the purpose sought to be achieved ceases to exist.60. The abovesaid deficiency pointed out by the High Court and highlighted by the learned counsel for the respondents in this Court has not been removed even by the rules. The learned counsel for the respondents has pointed out that under the Rules the obligation is cast on the bank or any other person having custody of the documents though it may not be a party to the document, to pay the duty payable on the documents in order to secure release of the documents. | 0 | 12,837 | 442 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
The above safeguards must necessarily be read into the provision relating to search and inspection and seizure so as to save it from any unconstitutionality. 55. Secondly, the impugned provision in sec.73 enabling the Collector to authorize any person whatsoever to inspect, to take notes or extracts from the papers in the public office suffers from the vice of excessive delegation as there are no guidelines in the Act and more importantly, the section allows the facts relating to the customers privacy to reach non-governmental persons and would, on that basis, be an unreasonable encroachment into the customers rights. This part of the Section 73 permitting delegation to any person suffers from the above serious defects and for that reason is, in our view, unenforceable. The State must clearly define the officers by designation or state that the power can be delegated to officers not below a particular rank in the official hierarchy, as may be designated by the State. 56. The A.P. amendment permits inspection being carried out by the Collector by having access to the documents which are in private custody i.e. custody other than that of a public officer. It is clear that this provision empowers invasion of the home of the person in whose possession the documents tending to or leading to the various facts stated in sec. 73 are in existence and sec.73 being one without any safeguards as to probable or reasonable cause or reasonable basis or materials violates the right to privacy both of the house and of the person. We have already referred to R. Rajagopals case wherein the learned judges have held that the right to personal liberty also means the life free from encroachments unsustainable in law and such right flowing from Article 21 of the Constitution. 57. In Smt. Maneka Gandhi vs. Union of India & Anr., (1978) 1 SCC 248 - a 7-Judges Bench decision, P.N. Bhagwati, J. (as His Lordship then was) held that the expression personal liberty in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status distinguishing as fundamental rights and give additional protection under Article 19 (emphasis supplied). Any law interfering with personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorizing interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21. 58. The constitutional validity of the power conferred by law came to be decided from yet another angle in the case of Air India vs. Nergesh Meerza & ors., (1981) 4 SCC 335 , it was held that a discretionary power may not necessarily be a discriminatory power but where a statute confers a power on an authority to decide matters of moment without laying down any guidelines or principles or norms, the power has to be struck down as being violative of Article 14. 59. An instrument which is not duly stamped cannot be received in evidence by any person who has authority to receive evidence and it cannot be acted upon by that person or by any public officer. This is the penalty which is imposed by law on the person who may seek to claim any benefit under an instrument if it is not duly stamped. Once detected the authority competent to impound the document can recover not only duty but also penalty, which provision, protects the interest of revenue. In the event of there being criminal intention or fraud, the persons responsible may be liable to be prosecuted. The availability of these provisions, in our opinion adequately protects the interest of revenue. Unbridled power available to be exercised by any person whom the Collector may think proper to authorize without laying down any guidelines as to the persons who may be authorized and without recording the availability of grounds which would give rise to the belief, on the existence where of only, the power may be exercised deprives the provision of the quality of reasonableness. Possessing a document not duly stamped is not by itself any offence. Under the garb of the power conferred by Section 73 the person authorized may go on rampage searching house after house i.e. residences of the persons or the places used for the custody of documents. The possibility of any wild exercised of such power may be remote but then on the framing of Section 73, the provision impugned herein, the possibility cannot be ruled out. Any number of documents may be inspected, may be seized and may be removed and at the end the whole exercise may turn out to be an exercise in futility. The exercise may prove to be absolutely disproportionate with the purpose sought to be achieved and, therefore, a reasonable nexus between stringency of the provision and the purpose sought to be achieved ceases to exist.60. The abovesaid deficiency pointed out by the High Court and highlighted by the learned counsel for the respondents in this Court has not been removed even by the rules. The learned counsel for the respondents has pointed out that under the Rules the obligation is cast on the bank or any other person having custody of the documents though it may not be a party to the document, to pay the duty payable on the documents in order to secure release of the documents. 61
### Response:
0
### Explanation:
An instrument which is not duly stamped cannot be received in evidence by any person who has authority to receive evidence and it cannot be acted upon by that person or by any public officer. This is the penalty which is imposed by law on the person who may seek to claim any benefit under an instrument if it is not duly stamped. Once detected the authority competent to impound the document can recover not only duty but also penalty, which provision, protects the interest of revenue. In the event of there being criminal intention or fraud, the persons responsible may be liable to be prosecuted. The availability of these provisions, in our opinion adequately protects the interest of revenue. Unbridled power available to be exercised by any person whom the Collector may think proper to authorize without laying down any guidelines as to the persons who may be authorized and without recording the availability of grounds which would give rise to the belief, on the existence where of only, the power may be exercised deprives the provision of the quality of reasonableness. Possessing a document not duly stamped is not by itself any offence. Under the garb of the power conferred by Section 73 the person authorized may go on rampage searching house after house i.e. residences of the persons or the places used for the custody of documents. The possibility of any wild exercised of such power may be remote but then on the framing of Section 73, the provision impugned herein, the possibility cannot be ruled out. Any number of documents may be inspected, may be seized and may be removed and at the end the whole exercise may turn out to be an exercise in futility. The exercise may prove to be absolutely disproportionate with the purpose sought to be achieved and, therefore, a reasonable nexus between stringency of the provision and the purpose sought to be achieved ceases to exist.60. The abovesaid deficiency pointed out by the High Court and highlighted by the learned counsel for the respondents in this Court has not been removed even by the rules. The learned counsel for the respondents has pointed out that under the Rules the obligation is cast on the bank or any other person having custody of the documents though it may not be a party to the document, to pay the duty payable on the documents in order to secure release of the documents.
|
N.C. SANTHOSH Vs. THE STATE OF KARNATAKA & ORS | threshold as being not in conformity with proviso to Rule 5. The appellants applied for compassionate appointment (after attainment of majority), well beyond the stipulated period of one year from the date of death of the parent, and therefore, those applications should not have been entertained being in contravention of Rules. 12. The provision of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 was considered in Commissioner of Public Instructions and Others vs K.R. Vishwanath (2005) 7 SCC 206 . Speaking for the division bench, Dr. Justice Arijit Pasayat noted that the effect of the amended second proviso is that, unless the application is pending at the time of commencement of the Amendment Rules, the same can have no bearing on the claim for compassionate appointment. Thus, belated application filed by the dependant on attaining majority beyond one year from the date of death of the government employee would not be a valid application, consistent with the provisions of the Rules. 13. Insofar as the appellants claim to legitimacy of appointment on the basis of Rule 9(3) of the Rules, a reading of Rule 9(3) suggests that it is a transitory provision granting extension of time for applying for compassionate appointment. But the transitory provision excludes application filed in contravention of Rule 5, as amended in 1999. In other words, applications filed by minor dependants who had not attained majority within one year from the date of death of the government servants will be in contravention of Rule 5. Therefore, we are of the considered view that the cases of the appellants are not covered by the transitory provision of Rule 9(3) introduced by the notification dated 28.5.2002. 14. It is well settled that for all government vacancies equal opportunity should be provided to all aspirants as is mandated under Articles 14 and 16 of the Constitution. However appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said norms. In Steel Authority of India Limited vs. Madhusudan Das & Ors. (2008) 15 SCC 560 It was remarked accordingly that compassionate appointment is a concession and not a right and the criteria laid down in the Rules must be satisfied by all aspirant. 15. This Court in SBI vs. Raj Kumar (2010) 11 SCC 661 while reiterating that no aspirant has a vested right to claim compassionate appointment, declared that the norms that are in force, when the application is actually considered, will be applicable. The employers right to modify the scheme depending on its policies was recognized in this judgment. Similarly in MCB Gramin Bank vs. Chakrawarti Singh (2014) 13 SCC 583 this Court reiterated that compassionate appointment has to be considered in accordance with the prevalent scheme and no aspirant can claim that his case should be considered as per the scheme existing on the date of death of the Government employee. 16. However in Canara Bank & Anr. vs. M. Mahesh Kumar (2015) 7 SCC 412 in the context of major shift in policy, whereunder, instead of compassionate appointment (envisaged by the scheme dated 8.5.1993), ex gratia payment was proposed (under the circular dated 14.02.2005), the Court adopted a different approach. Noticing the extinguishment of, the right to claim appointment, this Court held the dying in harness scheme which was prevalent on the death of the employee, be the basis for consideration. 17. A two judges bench headed by Justice Uday U. Lalit noticed the Supreme Courts view in SBI vs. Raj Kumar (supra) and MCB Gramin Bank vs. Chakrawarti Singh (supra) on one side and the contrary view in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) and felt the necessity of resolution of the conflicting question on whether the norms applicable on the date of death or on the date of consideration of application should apply. Accordingly, in State Bank of India & Ors. vs. Sheo Shankar Tewari (2019) 5 SCC 600 the Court referred the matter for consideration by a larger Bench so that the conflicting views could be reconciled. 18. The above discussion suggest that the view taken in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) is to be reconciled with the contrary view of the coordinate bench, in the two earlier judgments. Therefore, notwithstanding the strong reliance placed by the appellants counsel on Canara Bank & Anr. vs. M. Mahesh Kumar (supra) as also the opinion of the learned Single Judge of the Karnataka High Court in Uday Krishna Naik vs. State of Karnataka & Ors. (Writ Petition No.37931 of 1998) , it can not be said that the appellants claim should be considered under the unamended provisions of the Rules prevailing on the date of death of the Government employee. 19. In the most recent judgment in State of Himachal Pradesh & Anr. vs. Shashi Kumar (2019) 3 SCC 653 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the States policy. 20. Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee. | 0[ds]8.4 Though, certain additional factual details are seen in the appeal relating to Sayeda Farheen Banao, but core issue is no different from the other casesThe validity of the amended Rules is not challenged in any of the present proceedings. Following the amendment the norms clearly suggest that the earlier provision which enabled a minor dependant to apply on attaining majority (may be years after the death of the government servant), has been done away with. The object of the amended provision is to ensure that no application is filed beyond one year of the death of the government employee. The consequence of prohibiting application by a minor beyond one year from the date of death of the parent can only mean that the appellants were undeserving beneficiaries of compassionate appointment as they attained majority well beyond one year of the death of their respective parents11. In all these cases, when the government employee died, the appellants were minor and they had turned 18, well beyond one year of death of the parent. As can be seen from the details in the chart, the dependants attained majority after a gap of 2-6 years from the respective date of death of their parents and then they applied for appointment. By the time, the dependent children turned 18, the amended provisions became operational w.e.f. 01.04.1999. As such their belated application for compassionate appointment should have been rejected at the threshold as being not in conformity with proviso to Rule 5. The appellants applied for compassionate appointment (after attainment of majority), well beyond the stipulated period of one year from the date of death of the parent, and therefore, those applications should not have been entertained being in contravention of Rules13. Insofar as the appellants claim to legitimacy of appointment on the basis of Rule 9(3) of the Rules, a reading of Rule 9(3) suggests that it is a transitory provision granting extension of time for applying for compassionate appointment. But the transitory provision excludes application filed in contravention of Rule 5, as amended in 1999. In other words, applications filed by minor dependants who had not attained majority within one year from the date of death of the government servants will be in contravention of Rule 5. Therefore, we are of the considered view that the cases of the appellants are not covered by the transitory provision of Rule 9(3) introduced by the notification dated 28.5.200214. It is well settled that for all government vacancies equal opportunity should be provided to all aspirants as is mandated under Articles 14 and 16 of the Constitution. However appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said norms. In Steel Authority of India Limited vs. Madhusudan Das & Ors.(2008) 15 SCC 560 It was remarked accordingly that compassionate appointment is a concession and not a right and the criteria laid down in the Rules must be satisfied by all aspirant.18. The above discussion suggest that the view taken in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) is to be reconciled with the contrary view of the coordinate bench, in the two earlier judgments. Therefore, notwithstanding the strong reliance placed by the appellants counsel on Canara Bank & Anr. vs. M. Mahesh Kumar (supra) as also the opinion of the learned Single Judge of the Karnataka High Court in Uday Krishna Naik vs. State of Karnataka & Ors.(Writ Petition No.37931 of 1998) , it can not be said that the appellants claim should be considered under the unamended provisions of the Rules prevailing on the date of death of the Government employee.19. In the most recent judgment in State of Himachal Pradesh & Anr. vs. Shashi Kumar (2019) 3 SCC 653 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the States policy20. Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee. | 0 | 2,996 | 899 | ### 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:
threshold as being not in conformity with proviso to Rule 5. The appellants applied for compassionate appointment (after attainment of majority), well beyond the stipulated period of one year from the date of death of the parent, and therefore, those applications should not have been entertained being in contravention of Rules. 12. The provision of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 was considered in Commissioner of Public Instructions and Others vs K.R. Vishwanath (2005) 7 SCC 206 . Speaking for the division bench, Dr. Justice Arijit Pasayat noted that the effect of the amended second proviso is that, unless the application is pending at the time of commencement of the Amendment Rules, the same can have no bearing on the claim for compassionate appointment. Thus, belated application filed by the dependant on attaining majority beyond one year from the date of death of the government employee would not be a valid application, consistent with the provisions of the Rules. 13. Insofar as the appellants claim to legitimacy of appointment on the basis of Rule 9(3) of the Rules, a reading of Rule 9(3) suggests that it is a transitory provision granting extension of time for applying for compassionate appointment. But the transitory provision excludes application filed in contravention of Rule 5, as amended in 1999. In other words, applications filed by minor dependants who had not attained majority within one year from the date of death of the government servants will be in contravention of Rule 5. Therefore, we are of the considered view that the cases of the appellants are not covered by the transitory provision of Rule 9(3) introduced by the notification dated 28.5.2002. 14. It is well settled that for all government vacancies equal opportunity should be provided to all aspirants as is mandated under Articles 14 and 16 of the Constitution. However appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said norms. In Steel Authority of India Limited vs. Madhusudan Das & Ors. (2008) 15 SCC 560 It was remarked accordingly that compassionate appointment is a concession and not a right and the criteria laid down in the Rules must be satisfied by all aspirant. 15. This Court in SBI vs. Raj Kumar (2010) 11 SCC 661 while reiterating that no aspirant has a vested right to claim compassionate appointment, declared that the norms that are in force, when the application is actually considered, will be applicable. The employers right to modify the scheme depending on its policies was recognized in this judgment. Similarly in MCB Gramin Bank vs. Chakrawarti Singh (2014) 13 SCC 583 this Court reiterated that compassionate appointment has to be considered in accordance with the prevalent scheme and no aspirant can claim that his case should be considered as per the scheme existing on the date of death of the Government employee. 16. However in Canara Bank & Anr. vs. M. Mahesh Kumar (2015) 7 SCC 412 in the context of major shift in policy, whereunder, instead of compassionate appointment (envisaged by the scheme dated 8.5.1993), ex gratia payment was proposed (under the circular dated 14.02.2005), the Court adopted a different approach. Noticing the extinguishment of, the right to claim appointment, this Court held the dying in harness scheme which was prevalent on the death of the employee, be the basis for consideration. 17. A two judges bench headed by Justice Uday U. Lalit noticed the Supreme Courts view in SBI vs. Raj Kumar (supra) and MCB Gramin Bank vs. Chakrawarti Singh (supra) on one side and the contrary view in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) and felt the necessity of resolution of the conflicting question on whether the norms applicable on the date of death or on the date of consideration of application should apply. Accordingly, in State Bank of India & Ors. vs. Sheo Shankar Tewari (2019) 5 SCC 600 the Court referred the matter for consideration by a larger Bench so that the conflicting views could be reconciled. 18. The above discussion suggest that the view taken in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) is to be reconciled with the contrary view of the coordinate bench, in the two earlier judgments. Therefore, notwithstanding the strong reliance placed by the appellants counsel on Canara Bank & Anr. vs. M. Mahesh Kumar (supra) as also the opinion of the learned Single Judge of the Karnataka High Court in Uday Krishna Naik vs. State of Karnataka & Ors. (Writ Petition No.37931 of 1998) , it can not be said that the appellants claim should be considered under the unamended provisions of the Rules prevailing on the date of death of the Government employee. 19. In the most recent judgment in State of Himachal Pradesh & Anr. vs. Shashi Kumar (2019) 3 SCC 653 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the States policy. 20. Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.
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8.4 Though, certain additional factual details are seen in the appeal relating to Sayeda Farheen Banao, but core issue is no different from the other casesThe validity of the amended Rules is not challenged in any of the present proceedings. Following the amendment the norms clearly suggest that the earlier provision which enabled a minor dependant to apply on attaining majority (may be years after the death of the government servant), has been done away with. The object of the amended provision is to ensure that no application is filed beyond one year of the death of the government employee. The consequence of prohibiting application by a minor beyond one year from the date of death of the parent can only mean that the appellants were undeserving beneficiaries of compassionate appointment as they attained majority well beyond one year of the death of their respective parents11. In all these cases, when the government employee died, the appellants were minor and they had turned 18, well beyond one year of death of the parent. As can be seen from the details in the chart, the dependants attained majority after a gap of 2-6 years from the respective date of death of their parents and then they applied for appointment. By the time, the dependent children turned 18, the amended provisions became operational w.e.f. 01.04.1999. As such their belated application for compassionate appointment should have been rejected at the threshold as being not in conformity with proviso to Rule 5. The appellants applied for compassionate appointment (after attainment of majority), well beyond the stipulated period of one year from the date of death of the parent, and therefore, those applications should not have been entertained being in contravention of Rules13. Insofar as the appellants claim to legitimacy of appointment on the basis of Rule 9(3) of the Rules, a reading of Rule 9(3) suggests that it is a transitory provision granting extension of time for applying for compassionate appointment. But the transitory provision excludes application filed in contravention of Rule 5, as amended in 1999. In other words, applications filed by minor dependants who had not attained majority within one year from the date of death of the government servants will be in contravention of Rule 5. Therefore, we are of the considered view that the cases of the appellants are not covered by the transitory provision of Rule 9(3) introduced by the notification dated 28.5.200214. It is well settled that for all government vacancies equal opportunity should be provided to all aspirants as is mandated under Articles 14 and 16 of the Constitution. However appointment on compassionate ground offered to a dependant of a deceased employee is an exception to the said norms. In Steel Authority of India Limited vs. Madhusudan Das & Ors.(2008) 15 SCC 560 It was remarked accordingly that compassionate appointment is a concession and not a right and the criteria laid down in the Rules must be satisfied by all aspirant.18. The above discussion suggest that the view taken in Canara Bank & Anr. vs. M. Mahesh Kumar (supra) is to be reconciled with the contrary view of the coordinate bench, in the two earlier judgments. Therefore, notwithstanding the strong reliance placed by the appellants counsel on Canara Bank & Anr. vs. M. Mahesh Kumar (supra) as also the opinion of the learned Single Judge of the Karnataka High Court in Uday Krishna Naik vs. State of Karnataka & Ors.(Writ Petition No.37931 of 1998) , it can not be said that the appellants claim should be considered under the unamended provisions of the Rules prevailing on the date of death of the Government employee.19. In the most recent judgment in State of Himachal Pradesh & Anr. vs. Shashi Kumar (2019) 3 SCC 653 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the States policy20. Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.
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State Of M.P Vs. Sheetla Sahai | in the earlier case. The decision in Meads v. King does not carry us any further; it adopts the reasoning in Gills case." The said principle has been reiterated by this Court in B. Saha v. M.S. Kochar [(1979) 4 SCC 177] in the following terms: "17. The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J., in Baijnath v. State of M.P., "it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted".18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him." [See also R. Balakrishna Pillai v. State of Kerala and Another [(1996) 1 SCC 478] In Rakesh Kumar Mishra v. State of Bihar and Others [(2006) 1 SCC 557] , this Court held: "12. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty; that is under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in the discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in the course of service but not in the discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted..." 64. Reliance has been placed by Mr. Tulsi on Parkash Singh Badal v. State of Punjab and Others [(2007) 1 SCC 1] wherein this Court held: "38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage." In that case, the appellant therein was charged for commission of an offence of cheating under Section 420 and Sections 467, 468, 471 and 120B of the Indian Penal Code. In the factual matrix involved therein, it was held: "29. The effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In sub-section (3) the stress is on "failure of justice" and that too "in the opinion of the court". In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction as observed in para 95 of Narasimha Rao case. Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the old Act [Section 19(2) of the Act] question relates to doubt about authority to grant sanction and not whether sanction is necessary." 65. In State of Karantaka v. Ameerjan [(2007) 11 SCC 273] , it was held that an order of sanction is required to be passed on due application of mind. 66. Thus, in this case, sanction for prosecution in terms of Section 197 of the Code of Criminal Procedure was required to be obtained. | 0[ds]47. From the materials available on record, it is crystal clear that the decision taken was a collective one. The decision was required to be taken in the exigency of the situation. It may be an error of judgment but then no material has been brought on record to show that they did so for causing any wrongful gain to themselves or to a third party or for causing wrongful loss to the State.While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantialgist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the f+orming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per seThus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegalfacie, there is no material to show that a conspiracy had been hatched by thehave noticed hereinbefore that the Minister in his note dated 4.11.1991 did not make any recommendation. He merely lamented the manner in which the former Secretary Mr. M.S. Billore acted as prior thereto, the said authority himself for all intent and purport had accepted the recommendations of the authorities incharge of construction of the dam including the Chief Engineer. He constituted a committee. He obtained the opinion of the Financial Adviser. If upon consideration of the entire materials on record, independent opinion had been rendered and recommendations were made, it is difficult to comprehend as to how that by itself would constitute a criminal misconduct or leads to the conclusion of hatching any criminal conspiracy. Recommendations made by the Committee or the opinion rendered by an independent officer like Financial Adviser need not be acted upon. It was for the State to take a decision. Such a decision was required to be taken on the basis of the materials available.In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the chargesheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in favour of the accused. The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, Sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless.The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial.For the purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where a public servant purports to act in their official capacity, the same would attract the provisions of Section 197 of the Code of Criminal Procedure.Thus, in this case, sanction for prosecution in terms of Section 197 of the Code of Criminal Procedure was required to be obtained.From the materials available on record, it is crystal clear that the decision taken was a collective one. The decision was required to be taken in the exigency of the situation. It may be an error of judgment but then no material has been brought on record to show that they did so for causing any wrongful gain to themselves or to a third party or for causing wrongful loss to the State.e saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantialt of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the f+orming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal, there is no material to show that a conspiracy had been hatched by thee noticed hereinbefore that the Minister in his note dated 4.11.1991 did not make any recommendation. He merely lamented the manner in which the former Secretary Mr. M.S. Billore acted as prior thereto, the said authority himself for all intent and purport had accepted the recommendations of the authorities incharge of construction of the dam including the Chief Engineer. He constituted a committee. He obtained the opinion of the Financial Adviser. If upon consideration of the entire materials on record, independent opinion had been rendered and recommendations were made, it is difficult to comprehend as to how that by itself would constitute a criminal misconduct or leads to the conclusion of hatching any criminal conspiracy. Recommendations made by the Committee or the opinion rendered by an independent officer like Financial Adviser need not be acted upon. It was for the State to take a decision. Such a decision was required to be taken on the basis of the materials available.In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the chargesheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in favour of the accused. The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, Sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless.The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial.For the purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where a public servant purports to act in their official capacity, the same would attract the provisions of Section 197 of the Code of Criminal Procedure., in this case, sanction for prosecution in terms of Section 197 of the Code of Criminal Procedure was required to be obtained. | 0 | 12,841 | 1,820 | ### 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:
in the earlier case. The decision in Meads v. King does not carry us any further; it adopts the reasoning in Gills case." The said principle has been reiterated by this Court in B. Saha v. M.S. Kochar [(1979) 4 SCC 177] in the following terms: "17. The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J., in Baijnath v. State of M.P., "it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted".18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him." [See also R. Balakrishna Pillai v. State of Kerala and Another [(1996) 1 SCC 478] In Rakesh Kumar Mishra v. State of Bihar and Others [(2006) 1 SCC 557] , this Court held: "12. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty; that is under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in the discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in the course of service but not in the discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted..." 64. Reliance has been placed by Mr. Tulsi on Parkash Singh Badal v. State of Punjab and Others [(2007) 1 SCC 1] wherein this Court held: "38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage." In that case, the appellant therein was charged for commission of an offence of cheating under Section 420 and Sections 467, 468, 471 and 120B of the Indian Penal Code. In the factual matrix involved therein, it was held: "29. The effect of sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In sub-section (3) the stress is on "failure of justice" and that too "in the opinion of the court". In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction as observed in para 95 of Narasimha Rao case. Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the old Act [Section 19(2) of the Act] question relates to doubt about authority to grant sanction and not whether sanction is necessary." 65. In State of Karantaka v. Ameerjan [(2007) 11 SCC 273] , it was held that an order of sanction is required to be passed on due application of mind. 66. Thus, in this case, sanction for prosecution in terms of Section 197 of the Code of Criminal Procedure was required to be obtained.
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of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial.For the purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where a public servant purports to act in their official capacity, the same would attract the provisions of Section 197 of the Code of Criminal Procedure.Thus, in this case, sanction for prosecution in terms of Section 197 of the Code of Criminal Procedure was required to be obtained.From the materials available on record, it is crystal clear that the decision taken was a collective one. The decision was required to be taken in the exigency of the situation. It may be an error of judgment but then no material has been brought on record to show that they did so for causing any wrongful gain to themselves or to a third party or for causing wrongful loss to the State.e saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantialt of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the f+orming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal, there is no material to show that a conspiracy had been hatched by thee noticed hereinbefore that the Minister in his note dated 4.11.1991 did not make any recommendation. He merely lamented the manner in which the former Secretary Mr. M.S. Billore acted as prior thereto, the said authority himself for all intent and purport had accepted the recommendations of the authorities incharge of construction of the dam including the Chief Engineer. He constituted a committee. He obtained the opinion of the Financial Adviser. If upon consideration of the entire materials on record, independent opinion had been rendered and recommendations were made, it is difficult to comprehend as to how that by itself would constitute a criminal misconduct or leads to the conclusion of hatching any criminal conspiracy. Recommendations made by the Committee or the opinion rendered by an independent officer like Financial Adviser need not be acted upon. It was for the State to take a decision. Such a decision was required to be taken on the basis of the materials available.In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the chargesheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in favour of the accused. The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, Sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless.The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial.For the purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where a public servant purports to act in their official capacity, the same would attract the provisions of Section 197 of the Code of Criminal Procedure., in this case, sanction for prosecution in terms of Section 197 of the Code of Criminal Procedure was required to be obtained.
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Syed Basheer Ahamed & Others Vs. Mohd. Jameel & Another | dependents at the time of his death and the amount, which he was accustomed to spend upon himself. This exercise has to be on the basis of the data, brought on record by the claimant, which again cannot be accurately ascertained and necessarily involves an element of estimate or it may partly be even a conjecture. The figure arrived at by deducting from the net income of the deceased such part of income as he was spending upon himself, provides a datum, to convert it into a lump sum, by capitalising it by an appropriate multiplier (when multiplier method is adopted). An appropriate multiplier is again determined by taking into consideration several imponderable factors. Since in the present case there is no dispute in regard to the multiplier, we deem it unnecessary to dilate on the issue. 14. In the instant case, the main grievance of the appellant is that the High Court erred in reducing the monthly income of the deceased from Rs.7,000/- to Rs.4,000/-. More so, when the claim of the appellants was that the deceased was earning about Rs.20,000/- per month. It needs little emphasis that insofar as the question of earnings of the deceased is concerned, the onus lies on the claimants to prove this fact by leading reliable and cogent evidence before the Tribunal. A bare assertion in the claim petition in that behalf is not sufficient to discharge that onus. In the present case, as noticed earlier, the deceased was carrying on a business. The Return of Income filed by him for the assessment year 1998-1999 (Ex.P-34) was brought on record along with his monthly turnover and tax paid statements submitted to the Commercial Tax Officer (Ex.P-27). Copies of the current account (Ex.P-38) showing the money deposited in the bank maintained by the deceased have also been brought on record. The Return of Income filed on 15th April, 1998 and the accompanying document, namely, trading and profit and loss account for the period ending 31st March, 1998 show a net profit of Rs.42,996/-. Taking into consideration the said documents, the Tribunal took the monthly income of the deceased at Rs.7,000/- per month. However, the High Court felt that in the light of the Income Tax Return, declaring income from the business carried on by the deceased, the yearly income of the deceased was not more than Rs.40,000/- and, therefore, the Tribunal was not justified in adopting the monthly income of the deceased at Rs.7,000/- per month to work out the loss of dependency. According to the High Court, the monthly income of the deceased should have been taken at Rs.4,000/- per month. 15. In our view, though the entries in the current account (Ex.P-38) of the deceased and his transactions with his client, namely, Vasu Agarbathi (Ex.P-23) may not per se be cogent evidence to determine the yearly or monthly income of the deceased from the business(s) he was carrying on, yet we feel that these are some indicators in support of the appellants plea that the business income of the deceased in the succeeding years could be more than what was declared for the year ended 31st March, 1998. But it is again in the realm of speculation, particularly when, unlike income from salaries, earnings in a business may increase with the buoyancy in business and at the same time may diminish with a recession in trade. 16. As regards the future prospects of the deceased, as noted above, except for copies of account of the deceased in the books of account of his client, after the death, no other reliable evidence has been brought on record to show the future plans of the deceased regarding expansion or diversification of his business. In our view, a bare argument by learned counsel for the appellants that the deceased had a potential of expanding his business, cannot be accepted as sufficient material to determine the future prospects of the deceased. The decisions of this Court relied upon by learned counsel for the appellants do not lay down any abstract proposition of law in this regard, which are otherwise distinguishable on facts. 17. In the circumstances, having regard to the material on record, in our opinion, ends of justice would be met if the income of the deceased is taken at Rs.5,500/- per month or Rs.66,000/- per annum. 18. On the question of deduction on account of personal expenses by the deceased, there is no set formula which could be applied in every case to determine as to what should be the deduction on this account. The contention that deduction on that count cannot exceed one-third on the ground that there is some statutory recognition in the Second Schedule to the Act for such deduction, is untenable. The said deduction would depend upon the facts and circumstances of each case. In the present case, no evidence was led on this point as well. In the absence of any evidence to the contrary, the practice is to deduct towards personal and living expenses of the deceased, one-third of the income in case he was married and one-half (50%) if he was a bachelor. Thus, there is no material on record warranting interference with the consistent view of both the courts below on the point. 19. In view of the above discussion, the loss of dependency is determined as Rs.33,000/- per annum and by applying a multiplier of 14, the total loss of dependency is arrived at Rs.4,62,000/-. Adding Rs.20,000/- awarded under other heads, the quantum of compensation is determined at Rs.4,82,000/-. The amount shall also carry an interest at the rate of 6% per annum, as awarded by the Tribunal, from the date of the filing of the claim petition till the date of actual payment. If any amount has already been paid or deposited in terms of order passed by the Tribunal, the same shall be adjusted from the amount now being awarded. The interest element shall also be worked out after the said adjustment. 20. | 1[ds]arriving at just compensation, it is necessaryn the net income of the deceased available for the support of himself and his dependents at the time of his death and the amount, which he was accustomed to spend upon himself. This exercise has to be on the basis of the data, brought on record by the claimant, which again cannot be accurately ascertained and necessarily involves an element of estimate or it may partly be even a conjecture. The figure arrived at by deducting from the net income of the deceased such part of income as he was spending upon himself, provides a datum, to convert itmp sum, by capitalising it by an appropriate multiplier (when multiplier method is adopted). An appropriate multiplier is again determined by taking into consideration several imponderable factors. Since in the present case there is no dispute in regard to the multiplier, we deem it unnecessary to dilate on the issue. | 1 | 3,102 | 175 | ### 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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dependents at the time of his death and the amount, which he was accustomed to spend upon himself. This exercise has to be on the basis of the data, brought on record by the claimant, which again cannot be accurately ascertained and necessarily involves an element of estimate or it may partly be even a conjecture. The figure arrived at by deducting from the net income of the deceased such part of income as he was spending upon himself, provides a datum, to convert it into a lump sum, by capitalising it by an appropriate multiplier (when multiplier method is adopted). An appropriate multiplier is again determined by taking into consideration several imponderable factors. Since in the present case there is no dispute in regard to the multiplier, we deem it unnecessary to dilate on the issue. 14. In the instant case, the main grievance of the appellant is that the High Court erred in reducing the monthly income of the deceased from Rs.7,000/- to Rs.4,000/-. More so, when the claim of the appellants was that the deceased was earning about Rs.20,000/- per month. It needs little emphasis that insofar as the question of earnings of the deceased is concerned, the onus lies on the claimants to prove this fact by leading reliable and cogent evidence before the Tribunal. A bare assertion in the claim petition in that behalf is not sufficient to discharge that onus. In the present case, as noticed earlier, the deceased was carrying on a business. The Return of Income filed by him for the assessment year 1998-1999 (Ex.P-34) was brought on record along with his monthly turnover and tax paid statements submitted to the Commercial Tax Officer (Ex.P-27). Copies of the current account (Ex.P-38) showing the money deposited in the bank maintained by the deceased have also been brought on record. The Return of Income filed on 15th April, 1998 and the accompanying document, namely, trading and profit and loss account for the period ending 31st March, 1998 show a net profit of Rs.42,996/-. Taking into consideration the said documents, the Tribunal took the monthly income of the deceased at Rs.7,000/- per month. However, the High Court felt that in the light of the Income Tax Return, declaring income from the business carried on by the deceased, the yearly income of the deceased was not more than Rs.40,000/- and, therefore, the Tribunal was not justified in adopting the monthly income of the deceased at Rs.7,000/- per month to work out the loss of dependency. According to the High Court, the monthly income of the deceased should have been taken at Rs.4,000/- per month. 15. In our view, though the entries in the current account (Ex.P-38) of the deceased and his transactions with his client, namely, Vasu Agarbathi (Ex.P-23) may not per se be cogent evidence to determine the yearly or monthly income of the deceased from the business(s) he was carrying on, yet we feel that these are some indicators in support of the appellants plea that the business income of the deceased in the succeeding years could be more than what was declared for the year ended 31st March, 1998. But it is again in the realm of speculation, particularly when, unlike income from salaries, earnings in a business may increase with the buoyancy in business and at the same time may diminish with a recession in trade. 16. As regards the future prospects of the deceased, as noted above, except for copies of account of the deceased in the books of account of his client, after the death, no other reliable evidence has been brought on record to show the future plans of the deceased regarding expansion or diversification of his business. In our view, a bare argument by learned counsel for the appellants that the deceased had a potential of expanding his business, cannot be accepted as sufficient material to determine the future prospects of the deceased. The decisions of this Court relied upon by learned counsel for the appellants do not lay down any abstract proposition of law in this regard, which are otherwise distinguishable on facts. 17. In the circumstances, having regard to the material on record, in our opinion, ends of justice would be met if the income of the deceased is taken at Rs.5,500/- per month or Rs.66,000/- per annum. 18. On the question of deduction on account of personal expenses by the deceased, there is no set formula which could be applied in every case to determine as to what should be the deduction on this account. The contention that deduction on that count cannot exceed one-third on the ground that there is some statutory recognition in the Second Schedule to the Act for such deduction, is untenable. The said deduction would depend upon the facts and circumstances of each case. In the present case, no evidence was led on this point as well. In the absence of any evidence to the contrary, the practice is to deduct towards personal and living expenses of the deceased, one-third of the income in case he was married and one-half (50%) if he was a bachelor. Thus, there is no material on record warranting interference with the consistent view of both the courts below on the point. 19. In view of the above discussion, the loss of dependency is determined as Rs.33,000/- per annum and by applying a multiplier of 14, the total loss of dependency is arrived at Rs.4,62,000/-. Adding Rs.20,000/- awarded under other heads, the quantum of compensation is determined at Rs.4,82,000/-. The amount shall also carry an interest at the rate of 6% per annum, as awarded by the Tribunal, from the date of the filing of the claim petition till the date of actual payment. If any amount has already been paid or deposited in terms of order passed by the Tribunal, the same shall be adjusted from the amount now being awarded. The interest element shall also be worked out after the said adjustment. 20.
### Response:
1
### Explanation:
arriving at just compensation, it is necessaryn the net income of the deceased available for the support of himself and his dependents at the time of his death and the amount, which he was accustomed to spend upon himself. This exercise has to be on the basis of the data, brought on record by the claimant, which again cannot be accurately ascertained and necessarily involves an element of estimate or it may partly be even a conjecture. The figure arrived at by deducting from the net income of the deceased such part of income as he was spending upon himself, provides a datum, to convert itmp sum, by capitalising it by an appropriate multiplier (when multiplier method is adopted). An appropriate multiplier is again determined by taking into consideration several imponderable factors. Since in the present case there is no dispute in regard to the multiplier, we deem it unnecessary to dilate on the issue.
|
S. Anbalagan Vs. B. Devarajan & Ors | all practical purposes and when we have to consider the legal and political rights of the old body the views of the new faith hardly matter. The new body is free to ostracise and outcaste the convert from its fold if he does not adhere to its tenets, but it can hardly claim the right to interfere in matters which concern the political rights of the old body when neither the old body nor the convert is seeking either legal or political favours from the new as opposed to purely spiritual advantage. On the other hand, if the convert has shown by his conduct and dealings that his break from the old order is so complete and final that he no longer regards himself as a member of the old body and there is no reconversion and readmittance to the old fold, it would be wrong to hold that he can nevertheless claim temporal privileges and political advantages which are special to the old order.Bose, J. found that whatever the views of the founder of the Mahanubhava sect might have been about caste, it was evident that there had been no rigid adherence to them among his followers in later years. They had either changed their views or they had not been able to keep a tight enough control over converts who choose to retain their old caste customs. On a consideration of the evidence it was found that the convert from the Mahar caste retained his caste even after conversion.13. These precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, no expiatory rites need to performed and, ordinarily, he regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep-rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion. If it disappears, it disappears only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion. In Andhra Pradesh and in Tamil Nadu, there are several thousands of Christian families whose forefathers became Christians and who, though they profess the Christian religion, nonetheless observe the practice of caste. There are Christian Reddies, Christian Kammas, Christian Nadars, Christian Adi Andhras, Christian Adi Dravidas and so on. The practice of their caste is so rigorous that there are intermarriages with Hindus of the same caste but not with Christians of another caste. Now, if such a Christian becomes a Hindu, surely he will revert to his original caste, if he had lost it at all. In fact this process goes on continuously in India and generation by generation lost sheep appear to return to the caste-fold and are once again assimilated in that fold. This appears to be particularly so in the case of members of the Scheduled Castes, who embrace other religions in their quest for liberation, but return to their old religion on finding that their disabilities have clung to them with great tenacity. We do not think that any different principle will apply to the case of conversion to Hinduism of a person whose forefathers had abandoned Hinduism and embraced another religion from the principle applicable to the case of reconversion to Hinduism of a person who himself had abandoned Hinduism and embraced another religion.14. Now, what are the facts of the present case ? The birth extract of the first respondent, Devarajan shows his parents as Hindu Adi Dravidas. Throughout his educational career, he was treated as a Hindu student belonging to the Scheduled Castes and was awarded scholarships on that basis. The school records relating to his children also show them as Hindu Adi Dravidas. On one occasion in the admission register of a school, he was wrongly shown as Adi Dravida Christian, but it was corrected as Adi Dravida as far back as in 1948. He never attended a church. On the other hand, there is acceptable evidence to show that he was offering worship to Hindu deities in Hindu temples and that his marriage was performed according to Hindu customs and rites. Our attention was however, drawn to the finding of the Tribunal that the sisters of the first respondent professed Christianity as revealed by their service registers. Our attention was further invited to certain evidence indicating that the parents of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old. Even assuming that the parents and sisters of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old, we see no difficulty in holding on the evidence in the case, that the first respondent had long since reverted to Hinduism and to the Adi Dravida caste. There is not a scrap of acceptable evidence to show that he ever professed Christianity after he came of age. On the other hand, every bit of evidence in the case shows that from his childhood, he was always practising Hinduism and was treated by everyone concerned as an Adi Dravida. There is then the outstanding circumstance that the voters of the Rasipuram Parliamentary Constituency reserved for the Scheduled Castes accepted his candidature for the reserved seat and elected him to the Lok Sabha twice. We have no doubt whatsoever that at all relevant times, he was a Hindu Adi Dravida and professed no religion other than Hinduism. The case was rightly decided by the Election Tribunal and | 0[ds]14. Now, what are the facts of the present case ? The birth extract of the first respondent, Devarajan shows his parents as Hindu Adi Dravidas. Throughout his educational career, he was treated as a Hindu student belonging to the Scheduled Castes and was awarded scholarships on that basis. The school records relating to his children also show them as Hindu Adi Dravidas. On one occasion in the admission register of a school, he was wrongly shown as Adi Dravida Christian, but it was corrected as Adi Dravida as far back as in 1948. He never attended a church. On the other hand, there is acceptable evidence to show that he was offering worship to Hindu deities in Hindu temples and that his marriage was performed according to Hindu customs and rites. Our attention was however, drawn to the finding of the Tribunal that the sisters of the first respondent professed Christianity as revealed by their service registers. Our attention was further invited to certain evidence indicating that the parents of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old. Even assuming that the parents and sisters of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old, we see no difficulty in holding on the evidence in the case, that the first respondent had long since reverted to Hinduism and to the Adi Dravida caste. There is not a scrap of acceptable evidence to show that he ever professed Christianity after he came of age. On the other hand, every bit of evidence in the case shows that from his childhood, he was always practising Hinduism and was treated by everyone concerned as an Adi Dravida. There is then the outstanding circumstance that the voters of the Rasipuram Parliamentary Constituency reserved for the Scheduled Castes accepted his candidature for the reserved seat and elected him to the Lok Sabha twice. We have no doubt whatsoever that at all relevant times, he was a Hindu Adi Dravida and professed no religion other than Hinduism. The case was rightly decided by the Election Tribunal | 0 | 3,403 | 396 | ### Instruction:
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all practical purposes and when we have to consider the legal and political rights of the old body the views of the new faith hardly matter. The new body is free to ostracise and outcaste the convert from its fold if he does not adhere to its tenets, but it can hardly claim the right to interfere in matters which concern the political rights of the old body when neither the old body nor the convert is seeking either legal or political favours from the new as opposed to purely spiritual advantage. On the other hand, if the convert has shown by his conduct and dealings that his break from the old order is so complete and final that he no longer regards himself as a member of the old body and there is no reconversion and readmittance to the old fold, it would be wrong to hold that he can nevertheless claim temporal privileges and political advantages which are special to the old order.Bose, J. found that whatever the views of the founder of the Mahanubhava sect might have been about caste, it was evident that there had been no rigid adherence to them among his followers in later years. They had either changed their views or they had not been able to keep a tight enough control over converts who choose to retain their old caste customs. On a consideration of the evidence it was found that the convert from the Mahar caste retained his caste even after conversion.13. These precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, no expiatory rites need to performed and, ordinarily, he regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep-rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion. If it disappears, it disappears only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion. In Andhra Pradesh and in Tamil Nadu, there are several thousands of Christian families whose forefathers became Christians and who, though they profess the Christian religion, nonetheless observe the practice of caste. There are Christian Reddies, Christian Kammas, Christian Nadars, Christian Adi Andhras, Christian Adi Dravidas and so on. The practice of their caste is so rigorous that there are intermarriages with Hindus of the same caste but not with Christians of another caste. Now, if such a Christian becomes a Hindu, surely he will revert to his original caste, if he had lost it at all. In fact this process goes on continuously in India and generation by generation lost sheep appear to return to the caste-fold and are once again assimilated in that fold. This appears to be particularly so in the case of members of the Scheduled Castes, who embrace other religions in their quest for liberation, but return to their old religion on finding that their disabilities have clung to them with great tenacity. We do not think that any different principle will apply to the case of conversion to Hinduism of a person whose forefathers had abandoned Hinduism and embraced another religion from the principle applicable to the case of reconversion to Hinduism of a person who himself had abandoned Hinduism and embraced another religion.14. Now, what are the facts of the present case ? The birth extract of the first respondent, Devarajan shows his parents as Hindu Adi Dravidas. Throughout his educational career, he was treated as a Hindu student belonging to the Scheduled Castes and was awarded scholarships on that basis. The school records relating to his children also show them as Hindu Adi Dravidas. On one occasion in the admission register of a school, he was wrongly shown as Adi Dravida Christian, but it was corrected as Adi Dravida as far back as in 1948. He never attended a church. On the other hand, there is acceptable evidence to show that he was offering worship to Hindu deities in Hindu temples and that his marriage was performed according to Hindu customs and rites. Our attention was however, drawn to the finding of the Tribunal that the sisters of the first respondent professed Christianity as revealed by their service registers. Our attention was further invited to certain evidence indicating that the parents of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old. Even assuming that the parents and sisters of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old, we see no difficulty in holding on the evidence in the case, that the first respondent had long since reverted to Hinduism and to the Adi Dravida caste. There is not a scrap of acceptable evidence to show that he ever professed Christianity after he came of age. On the other hand, every bit of evidence in the case shows that from his childhood, he was always practising Hinduism and was treated by everyone concerned as an Adi Dravida. There is then the outstanding circumstance that the voters of the Rasipuram Parliamentary Constituency reserved for the Scheduled Castes accepted his candidature for the reserved seat and elected him to the Lok Sabha twice. We have no doubt whatsoever that at all relevant times, he was a Hindu Adi Dravida and professed no religion other than Hinduism. The case was rightly decided by the Election Tribunal and
### Response:
0
### Explanation:
14. Now, what are the facts of the present case ? The birth extract of the first respondent, Devarajan shows his parents as Hindu Adi Dravidas. Throughout his educational career, he was treated as a Hindu student belonging to the Scheduled Castes and was awarded scholarships on that basis. The school records relating to his children also show them as Hindu Adi Dravidas. On one occasion in the admission register of a school, he was wrongly shown as Adi Dravida Christian, but it was corrected as Adi Dravida as far back as in 1948. He never attended a church. On the other hand, there is acceptable evidence to show that he was offering worship to Hindu deities in Hindu temples and that his marriage was performed according to Hindu customs and rites. Our attention was however, drawn to the finding of the Tribunal that the sisters of the first respondent professed Christianity as revealed by their service registers. Our attention was further invited to certain evidence indicating that the parents of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old. Even assuming that the parents and sisters of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old, we see no difficulty in holding on the evidence in the case, that the first respondent had long since reverted to Hinduism and to the Adi Dravida caste. There is not a scrap of acceptable evidence to show that he ever professed Christianity after he came of age. On the other hand, every bit of evidence in the case shows that from his childhood, he was always practising Hinduism and was treated by everyone concerned as an Adi Dravida. There is then the outstanding circumstance that the voters of the Rasipuram Parliamentary Constituency reserved for the Scheduled Castes accepted his candidature for the reserved seat and elected him to the Lok Sabha twice. We have no doubt whatsoever that at all relevant times, he was a Hindu Adi Dravida and professed no religion other than Hinduism. The case was rightly decided by the Election Tribunal
|
State of Maharashtra Vs. Dinesh | other by the State seeking enhancement of sentence against the accused. By the judgment impugned herein, the High Court while dismissing the appeal of the State, allowed the appeals filed by the Accused and acquitted them of the charges. 4. Dissatisfied with the impugned judgment, three criminal appeals i.e. Criminal Appeal No. 1871 of 2013, against the Respondent herein who is Accused No. 2, Criminal Appeal No. 1872 of 2013 (against Accused No. 1) and Criminal Appeal No. 1873 of 2013 (against Accused No. 1) have been filed before this Court by the State of Maharashtra. In view of failure of the State despite according several opportunities to furnish correct address of Accused No. 1 for effecting service in Criminal Appeal Nos. 1872 and 1873 of 2013, the Judge-in-Chamber of this Court finally passed an order dated 15th December, 2016 in the following terms: Learned Counsel for the Appellant is granted four weeks further time, finally, to furnish the latest and correct address of the unserved common sole Respondent in Criminal Appeal Nos. 1872 and 1873 of 2013, failing which, the Criminal Appeal Nos. 1872 and 1873 of 2013 shall stand dismissed without further reference to the Court. 5. In spite of the aforesaid order, the Appellant State of Maharashtra has not complied with the directions of Judge-in-Chamber. Consequently, Criminal Appeal Nos. 1872 and 1873 of 2013 stood dismissed for non prosecution. Hence, we are now concerned with Criminal Appeal No. 1871 of 2013 only against Respondent herein i.e. Accused No. 2. 6. We have heard learned Counsel for the Appellant-State as well as learned Counsel appearing on behalf of the Respondent-accused, and gone through the material on record. 7. Undoubtedly, out of 23 prosecution witnesses, the evidence of PW7 Pushpabai is crucial in this case as she was presented as the sole eye-witness who had seen the Accused No. 2 along with Accused No. 1, cutting the corpse of the deceased into pieces. Apparently, there was no other witness who had last seen the Accused in the company of deceased prior to the place and time of occurrence. When the entire case hinges on the evidence of a sole witness, a paramount duty is cast on the Court to carefully scrutinize such evidence and find out whether such evidence is worth credence or not. Before assessing the evidence of PW7, we find it appropriate to note some of the views expressed by this Court on this aspect. 8. In Joseph v. State of Kerala, (2003) 1 SCC 465 this Court has observed that where there is a sole witness, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of other material on record. In State of Haryana v. Inder Singh, (2002) 9 SCC 537 this Court has laid down that the testimony of a sole witness must be confidence inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 this Court, after taking note of the aforementioned two judgments, observed that "the principles stated in these judgments are indisputable. None of these judgments say that the testimony of the sole eyewitness cannot be relied upon or conviction of an Accused cannot be based upon the statement of the sole eye-witness to the crime. All that is needed is that the statement of the sole eyewitness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the Accused in committing such a crime".It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement [Seeman @ Veeranam v. State, by Inspector of Police, (2005) 11 SCC 142 ]. 9. In light of the above, the evidence of PW7 Pushpabai in the present case needs to be considered. Admittedly, PW7 had witnessed the crime being committed by the Accused at about 10.30 p.m. in the night and there was no electricity at the alleged scene of offence. According to PW7, her husband also witnessed the crime, but they could not identify whether the Accused were cutting into pieces the body of a dead person or an alive person. Even after watching the brutal crime, neither PW7 nor her husband had raised hue and cry in the vicinity which was stated to be thickly populated, but they went to sleep peacefully and thereafter led normal life. There is also no dispute that PW7 did not identify the Respondent herein accused No. 2 and her statement was recorded after a gap of one and half month from the date of incident. 10. After giving our thoughtful consideration to the evidence of PW7, we have also considered the circumstances of the entire case and also the evidences of other prosecution witnesses. We find from the record that husband of P.W. 7, who was also stated to be an eyewitness to the incident, was neither examined by police at the time of investigation, nor even before the Court and no satisfactory explanation for his non-examination is found on record. Apart from this, even, test identification parade was not conducted and no steps were taken to prove the blood group of the deceased with the blood stains found on the alleged weapon used in the crime. 11. Thus, in the foregoing circumstances, especially taking note of the unnatural manner in which PW7 kept quiet till one and half month after the incident, that too in the midst of thickly populated vicinity, it is not safe to convict an Accused solely relying on her evidence. Thus, we find no firm ground in this appeal or reason to believe the testimony of alleged eyewitness PW7 calling for our interference in the judgment passed by the High Court. | 0[ds]6. We have heard learned Counsel for the Appellant-State as well as learned Counsel appearing on behalf of the Respondent-accused, and gone through the material on record7. Undoubtedly, out of 23 prosecution witnesses, the evidence of PW7 Pushpabai is crucial in this case as she was presented as the sole eye-witness who had seen the Accused No. 2 along with Accused No. 1, cutting the corpse of the deceased into pieces. Apparently, there was no other witness who had last seen the Accused in the company of deceased prior to the place and time of occurrence. When the entire case hinges on the evidence of a sole witness, a paramount duty is cast on the Court to carefully scrutinize such evidence and find out whether such evidence is worth credence or not. Before assessing the evidence of PW7, we find it appropriate to note some of the views expressed by this Court on this aspect9. In light of the above, the evidence of PW7 Pushpabai in the present case needs to be considered. Admittedly, PW7 had witnessed the crime being committed by the Accused at about 10.30 p.m. in the night and there was no electricity at the alleged scene of offence. According to PW7, her husband also witnessed the crime, but they could not identify whether the Accused were cutting into pieces the body of a dead person or an alive person. Even after watching the brutal crime, neither PW7 nor her husband had raised hue and cry in the vicinity which was stated to be thickly populated, but they went to sleep peacefully and thereafter led normal life. There is also no dispute that PW7 did not identify the Respondent herein accused No. 2 and her statement was recorded after a gap of one and half month from the date of incident10. After giving our thoughtful consideration to the evidence of PW7, we have also considered the circumstances of the entire case and also the evidences of other prosecution witnesses. We find from the record that husband of P.W. 7, who was also stated to be an eyewitness to the incident, was neither examined by police at the time of investigation, nor even before the Court and no satisfactory explanation for his non-examination is found on record. Apart from this, even, test identification parade was not conducted and no steps were taken to prove the blood group of the deceased with the blood stains found on the alleged weapon used in the crime11. Thus, in the foregoing circumstances, especially taking note of the unnatural manner in which PW7 kept quiet till one and half month after the incident, that too in the midst of thickly populated vicinity, it is not safe to convict an Accused solely relying on her evidence. Thus, we find no firm ground in this appeal or reason to believe the testimony of alleged eyewitness PW7 calling for our interference in the judgment passed by the High Court. | 0 | 1,356 | 541 | ### 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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other by the State seeking enhancement of sentence against the accused. By the judgment impugned herein, the High Court while dismissing the appeal of the State, allowed the appeals filed by the Accused and acquitted them of the charges. 4. Dissatisfied with the impugned judgment, three criminal appeals i.e. Criminal Appeal No. 1871 of 2013, against the Respondent herein who is Accused No. 2, Criminal Appeal No. 1872 of 2013 (against Accused No. 1) and Criminal Appeal No. 1873 of 2013 (against Accused No. 1) have been filed before this Court by the State of Maharashtra. In view of failure of the State despite according several opportunities to furnish correct address of Accused No. 1 for effecting service in Criminal Appeal Nos. 1872 and 1873 of 2013, the Judge-in-Chamber of this Court finally passed an order dated 15th December, 2016 in the following terms: Learned Counsel for the Appellant is granted four weeks further time, finally, to furnish the latest and correct address of the unserved common sole Respondent in Criminal Appeal Nos. 1872 and 1873 of 2013, failing which, the Criminal Appeal Nos. 1872 and 1873 of 2013 shall stand dismissed without further reference to the Court. 5. In spite of the aforesaid order, the Appellant State of Maharashtra has not complied with the directions of Judge-in-Chamber. Consequently, Criminal Appeal Nos. 1872 and 1873 of 2013 stood dismissed for non prosecution. Hence, we are now concerned with Criminal Appeal No. 1871 of 2013 only against Respondent herein i.e. Accused No. 2. 6. We have heard learned Counsel for the Appellant-State as well as learned Counsel appearing on behalf of the Respondent-accused, and gone through the material on record. 7. Undoubtedly, out of 23 prosecution witnesses, the evidence of PW7 Pushpabai is crucial in this case as she was presented as the sole eye-witness who had seen the Accused No. 2 along with Accused No. 1, cutting the corpse of the deceased into pieces. Apparently, there was no other witness who had last seen the Accused in the company of deceased prior to the place and time of occurrence. When the entire case hinges on the evidence of a sole witness, a paramount duty is cast on the Court to carefully scrutinize such evidence and find out whether such evidence is worth credence or not. Before assessing the evidence of PW7, we find it appropriate to note some of the views expressed by this Court on this aspect. 8. In Joseph v. State of Kerala, (2003) 1 SCC 465 this Court has observed that where there is a sole witness, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of other material on record. In State of Haryana v. Inder Singh, (2002) 9 SCC 537 this Court has laid down that the testimony of a sole witness must be confidence inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 this Court, after taking note of the aforementioned two judgments, observed that "the principles stated in these judgments are indisputable. None of these judgments say that the testimony of the sole eyewitness cannot be relied upon or conviction of an Accused cannot be based upon the statement of the sole eye-witness to the crime. All that is needed is that the statement of the sole eyewitness should be reliable, should not leave any doubt in the mind of the Court and has to be corroborated by other evidence produced by the prosecution in relation to commission of the crime and involvement of the Accused in committing such a crime".It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement [Seeman @ Veeranam v. State, by Inspector of Police, (2005) 11 SCC 142 ]. 9. In light of the above, the evidence of PW7 Pushpabai in the present case needs to be considered. Admittedly, PW7 had witnessed the crime being committed by the Accused at about 10.30 p.m. in the night and there was no electricity at the alleged scene of offence. According to PW7, her husband also witnessed the crime, but they could not identify whether the Accused were cutting into pieces the body of a dead person or an alive person. Even after watching the brutal crime, neither PW7 nor her husband had raised hue and cry in the vicinity which was stated to be thickly populated, but they went to sleep peacefully and thereafter led normal life. There is also no dispute that PW7 did not identify the Respondent herein accused No. 2 and her statement was recorded after a gap of one and half month from the date of incident. 10. After giving our thoughtful consideration to the evidence of PW7, we have also considered the circumstances of the entire case and also the evidences of other prosecution witnesses. We find from the record that husband of P.W. 7, who was also stated to be an eyewitness to the incident, was neither examined by police at the time of investigation, nor even before the Court and no satisfactory explanation for his non-examination is found on record. Apart from this, even, test identification parade was not conducted and no steps were taken to prove the blood group of the deceased with the blood stains found on the alleged weapon used in the crime. 11. Thus, in the foregoing circumstances, especially taking note of the unnatural manner in which PW7 kept quiet till one and half month after the incident, that too in the midst of thickly populated vicinity, it is not safe to convict an Accused solely relying on her evidence. Thus, we find no firm ground in this appeal or reason to believe the testimony of alleged eyewitness PW7 calling for our interference in the judgment passed by the High Court.
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6. We have heard learned Counsel for the Appellant-State as well as learned Counsel appearing on behalf of the Respondent-accused, and gone through the material on record7. Undoubtedly, out of 23 prosecution witnesses, the evidence of PW7 Pushpabai is crucial in this case as she was presented as the sole eye-witness who had seen the Accused No. 2 along with Accused No. 1, cutting the corpse of the deceased into pieces. Apparently, there was no other witness who had last seen the Accused in the company of deceased prior to the place and time of occurrence. When the entire case hinges on the evidence of a sole witness, a paramount duty is cast on the Court to carefully scrutinize such evidence and find out whether such evidence is worth credence or not. Before assessing the evidence of PW7, we find it appropriate to note some of the views expressed by this Court on this aspect9. In light of the above, the evidence of PW7 Pushpabai in the present case needs to be considered. Admittedly, PW7 had witnessed the crime being committed by the Accused at about 10.30 p.m. in the night and there was no electricity at the alleged scene of offence. According to PW7, her husband also witnessed the crime, but they could not identify whether the Accused were cutting into pieces the body of a dead person or an alive person. Even after watching the brutal crime, neither PW7 nor her husband had raised hue and cry in the vicinity which was stated to be thickly populated, but they went to sleep peacefully and thereafter led normal life. There is also no dispute that PW7 did not identify the Respondent herein accused No. 2 and her statement was recorded after a gap of one and half month from the date of incident10. After giving our thoughtful consideration to the evidence of PW7, we have also considered the circumstances of the entire case and also the evidences of other prosecution witnesses. We find from the record that husband of P.W. 7, who was also stated to be an eyewitness to the incident, was neither examined by police at the time of investigation, nor even before the Court and no satisfactory explanation for his non-examination is found on record. Apart from this, even, test identification parade was not conducted and no steps were taken to prove the blood group of the deceased with the blood stains found on the alleged weapon used in the crime11. Thus, in the foregoing circumstances, especially taking note of the unnatural manner in which PW7 kept quiet till one and half month after the incident, that too in the midst of thickly populated vicinity, it is not safe to convict an Accused solely relying on her evidence. Thus, we find no firm ground in this appeal or reason to believe the testimony of alleged eyewitness PW7 calling for our interference in the judgment passed by the High Court.
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PEER GULAM JILANI Vs. PEER GULAM NASEER AND ORS | was the real brother of Khwaja Najmuddin, Maujam Ali PW1 has also confirmed his testimony. In this connection two Sajras Ex.101 and 102 have been placed on record. In this connection Gulam Jilani DW1 has stated that: Ahmad baksh saheb ke pote hone ke nate vadi unke putra najimuddin saheb va unke pote maulana Nasruddin saheb ke bhi pote lagte hai Gulam Jilani DW1 has also stated that the property rights of the descendants from one grandfather are different but the descendants constitute one Khandan. The above admission from the mouth of defendant clearly show that the plaintiff also belongs to the Khandan of Najmuddin Saheb and Maulana Naseeruddin Saheb. 9. We may extract the relevant portion of Rules 1 and 2 of Zabta on which much emphasis was given by the learned counsel for the appellant. Relevant part of Rule 1 is as follows: The Sajjadah Nashin and Mutawalli of this abode (Dargah) of exalted highness ought to be a trained person from the line of this family and formally entered into Baiat(murid) in this very spiritual Sect (silsila) and should be enlightened with the knowledge and sanctity and also well acquainted with and acting upon the mystic path as propagated by the Sulemani Najmi family so that he may accordingly educate to those who are descrous to search the truth and believes himself to be a trustee of the poor and the innocent. In case of any negligence he shall be answerable to God. 10. Relevant portion of Rule 2 on which learned counsel for the appellant has given emphasis is to the following effect: If the Sajjadah Nashin by virtue of revealing his internal spiritual light declares any minor son as his successor, in that case till attaining majority and knowledge, 11. Rule 1 of the Zabta cannot be read in a manner as suggested by the counsel for the appellant. Had the Zabta intended to lay down line of succession through lineal descendants, it would have been clearly provided. The succession to the Sajjadah Nashin and Mutawalli is not hereditary succession but it is selection by Sajjadah Nashin and Mutawalli. Following portion of Rule 1 makes it clear: It shall be obligatory upon the Sajjadah Nashin and Mutawalli to select his successor during his life time keeping in view the conditions prescribed in the aforesaid lines so that no faction or dispute arises thereafter. If the Sahib-e-Sajjadah expires before such a selection, it would then be the duty of the main members of this venerable family and virtuous murids to select such a person who is gifted with the aforesaid high qualities and thereby to entrust him with all the affairs of the Dargah, and the rights of such a Sajjadah Nashin would be the same as those of his predecessor-Sajjadah Nashin and in case there are several such qualified persons the decision will be taken in accordance with the customs and traditions prevailing in this Dargah since the very beginning. 12. The Zabta of Dargah refers to spiritual Sect Silsila and the word family (Khandan)had not been used in the limited sense as sought to be contended by the appellant. 13. Rule 1 of the Zabta cannot be read as laying down any hereditary succession to the office of Sajjadah Nashin and Mutawalli nor Rule 1 can be read to lay down succession to lineal descendants as sought to contend. The respondent who was daughters son of 4th Sajjadah Nashin and Mutawalli and who has also traced his lineage from Shahabuddin real brother of founder of Dargah, cannot be said to be person not belonging to Khandan. All the three Courts below have rightly held him to be fully eligible. Furthermore, Sajjadah Nashin who has been given right to select his successor, his selection and nomination has also to be given weight. There is no dispute between the parties that even a person of minor age can be selected as Sajjadah Nashin and Mutawalli. 14. Coming to the second submission of the learned counsel for the appellant that use of word Sagir Sinn in Rule 2 means minor son. There are two reasons due to which this submission cannot be accepted. Firstly, in the Courts below appellant never raised an issue or contention that word Sagir Sinn used in Rule 2 means minor son. When no such issue or submission was raised, appellant cannot be allowed to raise this submission in this Court for the first time. 15. Secondly, to satisfy ourselves, we have also looked into the Hindi translation, which is actual translation of Urdu words in the Zabta. In the counter-affidavit, the respondent has brought on the record Hindi translation which is in Devnagri translation of actual Urdu words. The word used is Sagir Sinn. The word Sagir Sinn is a combination of two words Sagir Sinn. Word Sinn is a Persian word. In English Persian Dictionary by A.N. Wollaston, word age has been mentioned as Sinn. Following is stated in the Dictionary: image 16. In another Persian-English Dictionary by S. Steingass one of the meanings to the Persian word sinn is year, age, period of life. Various combination of other different words using word sinn has also been defined like sinni balugh, sinni tamiz, sinni shaikhukhiyat to the following effect: ...sinn, A tooth; nib of a pen; an indentation; a horn; year, age, period of life; a wild bull; greedy eating; name of a mountain near Madinah; also of a place sinni balugh(balughat, taklif), Age of puberty, mature age;- sinni tamiz(tamyiz, shuur), The age of discretion;- sinni shabab, Youth;- sinni shaikhukhiyat, Mature age; old age;- sinn u sal, Age, (many) years. 17. The word Sagir Sinn also gives the meaning of minor age. In no manner the word Sagir Sinn can be read as minor son as contended by the appellant. 18. All the three Courts have not committed any error in reading the Zabta and coming to the conclusion that respondent was eligible to be nominated as Sajjadah Nashin and Mutawalli. | 0[ds]11. Rule 1 of the Zabta cannot be read in a manner as suggested by the counsel for the appellant. Had the Zabta intended to lay down line of succession through lineal descendants, it would have been clearly provided. The succession to the Sajjadah Nashin and Mutawalli is not hereditary succession but it is selection by Sajjadah Nashin and Mutawalli. Following portion of Rule 1 makes it clear:It shall be obligatory upon the Sajjadah Nashin and Mutawalli to select his successor during his life time keeping in view the conditions prescribed in the aforesaid lines so that no faction or dispute arises thereafter. If the Sahib-e-Sajjadah expires before such a selection, it would then be the duty of the main members of this venerable family and virtuous murids to select such a person who is gifted with the aforesaid high qualities and thereby to entrust him with all the affairs of the Dargah, and the rights of such a Sajjadah Nashin would be the same as those of his predecessor-Sajjadah Nashin and in case there are several such qualified persons the decision will be taken in accordance with the customs and traditions prevailing in this Dargah since the very beginning12. The Zabta of Dargah refers to spiritual Sect Silsila and the word family (Khandan)had not been used in the limited sense as sought to be contended by the appellant13. Rule 1 of the Zabta cannot be read as laying down any hereditary succession to the office of Sajjadah Nashin and Mutawalli nor Rule 1 can be read to lay down succession to lineal descendants as sought to contend. The respondent who was daughters son of 4th Sajjadah Nashin and Mutawalli and who has also traced his lineage from Shahabuddin real brother of founder of Dargah, cannot be said to be person not belonging to Khandan. All the three Courts below have rightly held him to be fully eligible. Furthermore, Sajjadah Nashin who has been given right to select his successor, his selection and nomination has also to be given weight. There is no dispute between the parties that even a person of minor age can be selected as Sajjadah Nashin and Mutawalli14. Coming to the second submission of the learned counsel for the appellant that use of word Sagir Sinn in Rule 2 means minor son. There are two reasons due to which this submission cannot be accepted. Firstly, in the Courts below appellant never raised an issue or contention that word Sagir Sinn used in Rule 2 means minor son. When no such issue or submission was raised, appellant cannot be allowed to raise this submission in this Court for the first time15. Secondly, to satisfy ourselves, we have also looked into the Hindi translation, which is actual translation of Urdu words in the Zabta. In the counter-affidavit, the respondent has brought on the record Hindi translation which is in Devnagri translation of actual Urdu words. The word used is Sagir Sinn. The word Sagir Sinn is a combination of two words Sagir Sinn. Word Sinn is a Persian word. In English Persian Dictionary by A.N. Wollaston, word age has been mentioned as Sinn16. In another Persian-English Dictionary by S. Steingass one of the meanings to the Persian word sinn is year, age, period of life. Various combination of other different words using word sinn has also been defined like sinni balugh, sinni tamiz, sinni shaikhukhiyat to the following effect:...sinn, A tooth; nib of a pen; an indentation; a horn; year, age, period of life; a wild bull; greedy eating; name of a mountain near Madinah; also of a place sinni balugh(balughat, taklif), Age of puberty, mature age;- sinni tamiz(tamyiz, shuur), The age of discretion;- sinni shabab, Youth;- sinni shaikhukhiyat, Mature age; old age;- sinn u sal, Age, (many) years17. The word Sagir Sinn also gives the meaning of minor age. In no manner the word Sagir Sinn can be read as minor son as contended by the appellant.18. All the three Courts have not committed any error in reading the Zabta and coming to the conclusion that respondent was eligible to be nominated as Sajjadah Nashin and Mutawalli. | 0 | 3,186 | 789 | ### 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 the real brother of Khwaja Najmuddin, Maujam Ali PW1 has also confirmed his testimony. In this connection two Sajras Ex.101 and 102 have been placed on record. In this connection Gulam Jilani DW1 has stated that: Ahmad baksh saheb ke pote hone ke nate vadi unke putra najimuddin saheb va unke pote maulana Nasruddin saheb ke bhi pote lagte hai Gulam Jilani DW1 has also stated that the property rights of the descendants from one grandfather are different but the descendants constitute one Khandan. The above admission from the mouth of defendant clearly show that the plaintiff also belongs to the Khandan of Najmuddin Saheb and Maulana Naseeruddin Saheb. 9. We may extract the relevant portion of Rules 1 and 2 of Zabta on which much emphasis was given by the learned counsel for the appellant. Relevant part of Rule 1 is as follows: The Sajjadah Nashin and Mutawalli of this abode (Dargah) of exalted highness ought to be a trained person from the line of this family and formally entered into Baiat(murid) in this very spiritual Sect (silsila) and should be enlightened with the knowledge and sanctity and also well acquainted with and acting upon the mystic path as propagated by the Sulemani Najmi family so that he may accordingly educate to those who are descrous to search the truth and believes himself to be a trustee of the poor and the innocent. In case of any negligence he shall be answerable to God. 10. Relevant portion of Rule 2 on which learned counsel for the appellant has given emphasis is to the following effect: If the Sajjadah Nashin by virtue of revealing his internal spiritual light declares any minor son as his successor, in that case till attaining majority and knowledge, 11. Rule 1 of the Zabta cannot be read in a manner as suggested by the counsel for the appellant. Had the Zabta intended to lay down line of succession through lineal descendants, it would have been clearly provided. The succession to the Sajjadah Nashin and Mutawalli is not hereditary succession but it is selection by Sajjadah Nashin and Mutawalli. Following portion of Rule 1 makes it clear: It shall be obligatory upon the Sajjadah Nashin and Mutawalli to select his successor during his life time keeping in view the conditions prescribed in the aforesaid lines so that no faction or dispute arises thereafter. If the Sahib-e-Sajjadah expires before such a selection, it would then be the duty of the main members of this venerable family and virtuous murids to select such a person who is gifted with the aforesaid high qualities and thereby to entrust him with all the affairs of the Dargah, and the rights of such a Sajjadah Nashin would be the same as those of his predecessor-Sajjadah Nashin and in case there are several such qualified persons the decision will be taken in accordance with the customs and traditions prevailing in this Dargah since the very beginning. 12. The Zabta of Dargah refers to spiritual Sect Silsila and the word family (Khandan)had not been used in the limited sense as sought to be contended by the appellant. 13. Rule 1 of the Zabta cannot be read as laying down any hereditary succession to the office of Sajjadah Nashin and Mutawalli nor Rule 1 can be read to lay down succession to lineal descendants as sought to contend. The respondent who was daughters son of 4th Sajjadah Nashin and Mutawalli and who has also traced his lineage from Shahabuddin real brother of founder of Dargah, cannot be said to be person not belonging to Khandan. All the three Courts below have rightly held him to be fully eligible. Furthermore, Sajjadah Nashin who has been given right to select his successor, his selection and nomination has also to be given weight. There is no dispute between the parties that even a person of minor age can be selected as Sajjadah Nashin and Mutawalli. 14. Coming to the second submission of the learned counsel for the appellant that use of word Sagir Sinn in Rule 2 means minor son. There are two reasons due to which this submission cannot be accepted. Firstly, in the Courts below appellant never raised an issue or contention that word Sagir Sinn used in Rule 2 means minor son. When no such issue or submission was raised, appellant cannot be allowed to raise this submission in this Court for the first time. 15. Secondly, to satisfy ourselves, we have also looked into the Hindi translation, which is actual translation of Urdu words in the Zabta. In the counter-affidavit, the respondent has brought on the record Hindi translation which is in Devnagri translation of actual Urdu words. The word used is Sagir Sinn. The word Sagir Sinn is a combination of two words Sagir Sinn. Word Sinn is a Persian word. In English Persian Dictionary by A.N. Wollaston, word age has been mentioned as Sinn. Following is stated in the Dictionary: image 16. In another Persian-English Dictionary by S. Steingass one of the meanings to the Persian word sinn is year, age, period of life. Various combination of other different words using word sinn has also been defined like sinni balugh, sinni tamiz, sinni shaikhukhiyat to the following effect: ...sinn, A tooth; nib of a pen; an indentation; a horn; year, age, period of life; a wild bull; greedy eating; name of a mountain near Madinah; also of a place sinni balugh(balughat, taklif), Age of puberty, mature age;- sinni tamiz(tamyiz, shuur), The age of discretion;- sinni shabab, Youth;- sinni shaikhukhiyat, Mature age; old age;- sinn u sal, Age, (many) years. 17. The word Sagir Sinn also gives the meaning of minor age. In no manner the word Sagir Sinn can be read as minor son as contended by the appellant. 18. All the three Courts have not committed any error in reading the Zabta and coming to the conclusion that respondent was eligible to be nominated as Sajjadah Nashin and Mutawalli.
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11. Rule 1 of the Zabta cannot be read in a manner as suggested by the counsel for the appellant. Had the Zabta intended to lay down line of succession through lineal descendants, it would have been clearly provided. The succession to the Sajjadah Nashin and Mutawalli is not hereditary succession but it is selection by Sajjadah Nashin and Mutawalli. Following portion of Rule 1 makes it clear:It shall be obligatory upon the Sajjadah Nashin and Mutawalli to select his successor during his life time keeping in view the conditions prescribed in the aforesaid lines so that no faction or dispute arises thereafter. If the Sahib-e-Sajjadah expires before such a selection, it would then be the duty of the main members of this venerable family and virtuous murids to select such a person who is gifted with the aforesaid high qualities and thereby to entrust him with all the affairs of the Dargah, and the rights of such a Sajjadah Nashin would be the same as those of his predecessor-Sajjadah Nashin and in case there are several such qualified persons the decision will be taken in accordance with the customs and traditions prevailing in this Dargah since the very beginning12. The Zabta of Dargah refers to spiritual Sect Silsila and the word family (Khandan)had not been used in the limited sense as sought to be contended by the appellant13. Rule 1 of the Zabta cannot be read as laying down any hereditary succession to the office of Sajjadah Nashin and Mutawalli nor Rule 1 can be read to lay down succession to lineal descendants as sought to contend. The respondent who was daughters son of 4th Sajjadah Nashin and Mutawalli and who has also traced his lineage from Shahabuddin real brother of founder of Dargah, cannot be said to be person not belonging to Khandan. All the three Courts below have rightly held him to be fully eligible. Furthermore, Sajjadah Nashin who has been given right to select his successor, his selection and nomination has also to be given weight. There is no dispute between the parties that even a person of minor age can be selected as Sajjadah Nashin and Mutawalli14. Coming to the second submission of the learned counsel for the appellant that use of word Sagir Sinn in Rule 2 means minor son. There are two reasons due to which this submission cannot be accepted. Firstly, in the Courts below appellant never raised an issue or contention that word Sagir Sinn used in Rule 2 means minor son. When no such issue or submission was raised, appellant cannot be allowed to raise this submission in this Court for the first time15. Secondly, to satisfy ourselves, we have also looked into the Hindi translation, which is actual translation of Urdu words in the Zabta. In the counter-affidavit, the respondent has brought on the record Hindi translation which is in Devnagri translation of actual Urdu words. The word used is Sagir Sinn. The word Sagir Sinn is a combination of two words Sagir Sinn. Word Sinn is a Persian word. In English Persian Dictionary by A.N. Wollaston, word age has been mentioned as Sinn16. In another Persian-English Dictionary by S. Steingass one of the meanings to the Persian word sinn is year, age, period of life. Various combination of other different words using word sinn has also been defined like sinni balugh, sinni tamiz, sinni shaikhukhiyat to the following effect:...sinn, A tooth; nib of a pen; an indentation; a horn; year, age, period of life; a wild bull; greedy eating; name of a mountain near Madinah; also of a place sinni balugh(balughat, taklif), Age of puberty, mature age;- sinni tamiz(tamyiz, shuur), The age of discretion;- sinni shabab, Youth;- sinni shaikhukhiyat, Mature age; old age;- sinn u sal, Age, (many) years17. The word Sagir Sinn also gives the meaning of minor age. In no manner the word Sagir Sinn can be read as minor son as contended by the appellant.18. All the three Courts have not committed any error in reading the Zabta and coming to the conclusion that respondent was eligible to be nominated as Sajjadah Nashin and Mutawalli.
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Ishwarlal Mohanlal Thakkar Vs. Paschim Gujarat Vij Company Ltd | the functioning of the tribunals and courts subordinate to the High Court.” It was also held that- “High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Art.227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it.” Thus it is clear, that the High Court has to exercise its power under Article 227 of the Constitution judiciously and to further the ends of justice.In the case of Harjinder Singh v. Punjab State Warehousing Corporation [(2010) 3 SCC 192] , this Court held that, “20……In view of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582 by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the Regulation.” 10. The power of judicial review of the High Court has to be alluded to here to decide whether or not the High Court has erred in setting aside the judgment and order of the labour court. In the case of Heinz India Pvt. Ltd. & Anr. v. State of UP & Ors. [(2012) 5 SCC 443] , this Court referred to the position held on the power of judicial review in the case of Reid v. Secretary of State for Scotland [(1999) 1 All ER 481], wherein it is stated that :- “Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of evidence.” Therefore, in view of the above judgments we have to hold that the High Court has committed a grave error by setting aside the findings recorded on the points of dispute in the Award of the labour court. A grave miscarriage of justice has been committed against the appellant as the respondent should have accepted the birth certificate as a conclusive proof of age, the same being an entry in the public record as per Section 35 of the Indian Evidence Act, 1872 and the birth certificate mentioned the appellant’s date of birth as 27.6.1940, which is the documentary evidence. Therefore, there was no reason to deny him the benefit of the same, instead the respondent-board prematurely terminated the services of the appellant by taking his date of birth as 27.6.1937 which is contrary to the facts and evidence on record. This date of birth is highly improbable as well as impossible as the appellant’s elder brother was born on 27.1.1937 as per the School Leaving Certificate, and there cannot be a mere 5 months difference between the birth of his elder brother and himself. Therefore, it is apparent that the School Leaving Certificate cannot be relied upon by the respondent-board and instead, the birth certificate issued by the BMC which is the documentary evidence should have been relied upon by the respondent. Further, the date of birth is mentioned as 27.6.1940 in the LIC insurance policy on the basis of which the premium was paid by the respondent to the Life Insurance Corporation on behalf of the appellant. Therefore, it is only just and proper that the respondent should have relied on the birth certificate issued by the BMC on the face of all these discrepancies as the same was issued on the order of the JMFC. The High Court has wrongly held that the appellant was estopped from raising the issue of his date of birth as he had signed the records in 1978 but he raised this issue only in 1987. The reason for this is clear that the respondent came out with a circular in 1987 that those employees who wished to change their date of birth in the records may do so by furnishing the necessary birth certificate and further, they can do it before they become 50 years of age. The appellant had not attained 50 years of age at the time he raised the contention regarding mistake in his date of birth. The High Court has not applied its mind in setting aside the judgment and award of the labour court in exercise of its power of judicial review and superintendence as it is patently clear that the labour court has not committed any error of jurisdiction or passed a judgment without sufficient evidence. The impugned judgement and order of the High Court deserves to be set aside and the award and judgment of the labour court be restored. | 1[ds]9. We find the judgment and award of the labour court well-reasoned and based on facts and evidence on record. The High Court has erred in its exercise of power under Article 227 of the Constitution of India to annul the findings of the labour court in its Award as it is well settled law that the High Court cannot exercise its power under Article 227 of the Constitution as an appellate court or re-appreciate evidence and record its findings on the contentious points. Only if there is a serious error of law or the findings recorded suffer from error apparent on record, can the High Court quash the order of a lower court. The Labour Court in the present case has satisfactorily exercised its original jurisdiction and properly appreciated the facts and legal evidence on record and given a well reasoned order and answered the points of dispute in favour of the appellant. The High Court had no reason to interfere with the same as the Award of the labour court was based on sound and cogent reasoning, which has served the ends of justice.It is relevant to mention that in the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil [(2010) 8 SCC 329] , with regard to the limitations of the High Court to exercise its jurisdiction under Article 227, it was held in para 49power of interference under Art.227 is to be kept to a minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the Highwas also heldCourts cannot, at the drop of a hat, in exercise of its power of superintendence under Art.227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate toit is clear, that the High Court has to exercise its power under Article 227 of the Constitution judiciously and to further the ends of justice.In the case of Harjinder Singh v. Punjab State Warehousing Corporation [(2010) 3 SCC 192] , this Court heldview of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582 by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the Regulation.The power of judicial review of the High Court has to be alluded to here to decide whether or not the High Court has erred in setting aside the judgment and order of the labour court. In the case of Heinz India Pvt. Ltd. & Anr. v. State of UP & Ors. [(2012) 5 SCC 443] , this Court referred to the position held on the power of judicial review in the case of Reid v. Secretary of State for Scotland [(1999) 1 All ER 481], wherein it is stated thatreview involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view ofin view of the above judgments we have to hold that the High Court has committed a grave error by setting aside the findings recorded on the points of dispute in the Award of the labour court. A grave miscarriage of justice has been committed against the appellant as the respondent should have accepted the birth certificate as a conclusive proof of age, the same being an entry in the public record as per Section 35 of the Indian Evidence Act, 1872 and the birth certificate mentioned thedate of birth as 27.6.1940, which is the documentary evidence. Therefore, there was no reason to deny him the benefit of the same, instead the respondent-board prematurely terminated the services of the appellant by taking his date of birth as 27.6.1937 which is contrary to the facts and evidence on record. This date of birth is highly improbable as well as impossible as theelder brother was born on 27.1.1937 as per the School Leaving Certificate, and there cannot be a mere 5 months difference between the birth of his elder brother and himself. Therefore, it is apparent that the School Leaving Certificate cannot be relied upon by the respondent-board and instead, the birth certificate issued by the BMC which is the documentary evidence should have been relied upon by the respondent. Further, the date of birth is mentioned as 27.6.1940 in the LIC insurance policy on the basis of which the premium was paid by the respondent to the Life Insurance Corporation on behalf of the appellant. Therefore, it is only just and proper that the respondent should have relied on the birth certificate issued by the BMC on the face of all these discrepancies as the same was issued on the order of the JMFC. The High Court has wrongly held that the appellant was estopped from raising the issue of his date of birth as he had signed the records in 1978 but he raised this issue only in 1987. The reason for this is clear that the respondent came out with a circular in 1987 that those employees who wished to change their date of birth in the records may do so by furnishing the necessary birth certificate and further, they can do it before they become 50 years of age. The appellant had not attained 50 years of age at the time he raised the contention regarding mistake in his date of birth. The High Court has not applied its mind in setting aside the judgment and award of the labour court in exercise of its power of judicial review and superintendence as it is patently clear that the labour court has not committed any error of jurisdiction or passed a judgment without sufficient evidence. The impugned judgement and order of the High Court deserves to be set aside and the award and judgment of the labour court be restored. | 1 | 3,420 | 1,332 | ### Instruction:
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the functioning of the tribunals and courts subordinate to the High Court.” It was also held that- “High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Art.227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it.” Thus it is clear, that the High Court has to exercise its power under Article 227 of the Constitution judiciously and to further the ends of justice.In the case of Harjinder Singh v. Punjab State Warehousing Corporation [(2010) 3 SCC 192] , this Court held that, “20……In view of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582 by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the Regulation.” 10. The power of judicial review of the High Court has to be alluded to here to decide whether or not the High Court has erred in setting aside the judgment and order of the labour court. In the case of Heinz India Pvt. Ltd. & Anr. v. State of UP & Ors. [(2012) 5 SCC 443] , this Court referred to the position held on the power of judicial review in the case of Reid v. Secretary of State for Scotland [(1999) 1 All ER 481], wherein it is stated that :- “Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of evidence.” Therefore, in view of the above judgments we have to hold that the High Court has committed a grave error by setting aside the findings recorded on the points of dispute in the Award of the labour court. A grave miscarriage of justice has been committed against the appellant as the respondent should have accepted the birth certificate as a conclusive proof of age, the same being an entry in the public record as per Section 35 of the Indian Evidence Act, 1872 and the birth certificate mentioned the appellant’s date of birth as 27.6.1940, which is the documentary evidence. Therefore, there was no reason to deny him the benefit of the same, instead the respondent-board prematurely terminated the services of the appellant by taking his date of birth as 27.6.1937 which is contrary to the facts and evidence on record. This date of birth is highly improbable as well as impossible as the appellant’s elder brother was born on 27.1.1937 as per the School Leaving Certificate, and there cannot be a mere 5 months difference between the birth of his elder brother and himself. Therefore, it is apparent that the School Leaving Certificate cannot be relied upon by the respondent-board and instead, the birth certificate issued by the BMC which is the documentary evidence should have been relied upon by the respondent. Further, the date of birth is mentioned as 27.6.1940 in the LIC insurance policy on the basis of which the premium was paid by the respondent to the Life Insurance Corporation on behalf of the appellant. Therefore, it is only just and proper that the respondent should have relied on the birth certificate issued by the BMC on the face of all these discrepancies as the same was issued on the order of the JMFC. The High Court has wrongly held that the appellant was estopped from raising the issue of his date of birth as he had signed the records in 1978 but he raised this issue only in 1987. The reason for this is clear that the respondent came out with a circular in 1987 that those employees who wished to change their date of birth in the records may do so by furnishing the necessary birth certificate and further, they can do it before they become 50 years of age. The appellant had not attained 50 years of age at the time he raised the contention regarding mistake in his date of birth. The High Court has not applied its mind in setting aside the judgment and award of the labour court in exercise of its power of judicial review and superintendence as it is patently clear that the labour court has not committed any error of jurisdiction or passed a judgment without sufficient evidence. The impugned judgement and order of the High Court deserves to be set aside and the award and judgment of the labour court be restored.
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of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the Highwas also heldCourts cannot, at the drop of a hat, in exercise of its power of superintendence under Art.227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate toit is clear, that the High Court has to exercise its power under Article 227 of the Constitution judiciously and to further the ends of justice.In the case of Harjinder Singh v. Punjab State Warehousing Corporation [(2010) 3 SCC 192] , this Court heldview of the above discussion, we hold that the learned Single Judge of the High Court committed serious jurisdictional error and unjustifiably interfered with the award of reinstatement passed by the Labour Court with compensation of Rs.87,582 by entertaining a wholly unfounded plea that the appellant was appointed in violation of Articles 14 and 16 of the Constitution and the Regulation.The power of judicial review of the High Court has to be alluded to here to decide whether or not the High Court has erred in setting aside the judgment and order of the labour court. In the case of Heinz India Pvt. Ltd. & Anr. v. State of UP & Ors. [(2012) 5 SCC 443] , this Court referred to the position held on the power of judicial review in the case of Reid v. Secretary of State for Scotland [(1999) 1 All ER 481], wherein it is stated thatreview involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view ofin view of the above judgments we have to hold that the High Court has committed a grave error by setting aside the findings recorded on the points of dispute in the Award of the labour court. A grave miscarriage of justice has been committed against the appellant as the respondent should have accepted the birth certificate as a conclusive proof of age, the same being an entry in the public record as per Section 35 of the Indian Evidence Act, 1872 and the birth certificate mentioned thedate of birth as 27.6.1940, which is the documentary evidence. Therefore, there was no reason to deny him the benefit of the same, instead the respondent-board prematurely terminated the services of the appellant by taking his date of birth as 27.6.1937 which is contrary to the facts and evidence on record. This date of birth is highly improbable as well as impossible as theelder brother was born on 27.1.1937 as per the School Leaving Certificate, and there cannot be a mere 5 months difference between the birth of his elder brother and himself. Therefore, it is apparent that the School Leaving Certificate cannot be relied upon by the respondent-board and instead, the birth certificate issued by the BMC which is the documentary evidence should have been relied upon by the respondent. Further, the date of birth is mentioned as 27.6.1940 in the LIC insurance policy on the basis of which the premium was paid by the respondent to the Life Insurance Corporation on behalf of the appellant. Therefore, it is only just and proper that the respondent should have relied on the birth certificate issued by the BMC on the face of all these discrepancies as the same was issued on the order of the JMFC. The High Court has wrongly held that the appellant was estopped from raising the issue of his date of birth as he had signed the records in 1978 but he raised this issue only in 1987. The reason for this is clear that the respondent came out with a circular in 1987 that those employees who wished to change their date of birth in the records may do so by furnishing the necessary birth certificate and further, they can do it before they become 50 years of age. The appellant had not attained 50 years of age at the time he raised the contention regarding mistake in his date of birth. The High Court has not applied its mind in setting aside the judgment and award of the labour court in exercise of its power of judicial review and superintendence as it is patently clear that the labour court has not committed any error of jurisdiction or passed a judgment without sufficient evidence. The impugned judgement and order of the High Court deserves to be set aside and the award and judgment of the labour court be restored.
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Indian Oil Corp.Ltd Vs. Subrata Borah Chowlek | erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides .can be imputed to the party. (See: Shakuntala Devi Jain Vs. Kuntal Kumari & Ors.(1969) 1 SCR 1006 ; The State of West Bengal Vs. The Administrator, Howrah Municipality & Ors. (1972) 1 SCC 366 ; N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 ; Sital Prasad Saxena Vs. Union of India & Ors. (1985) 1 SCC 163 ). 8. In Ramlal, Motilal & Chhotelal Vs. Rewa Coalfields Ltd. (1962) 2 SCR 762 , this Court held that: ?In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan (1890) ILR 13 Mad 269 ?Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ‘sufficient cause? receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.? 9. Similarly, in Ram Nath Sao Alias Ram Nath Sahu & Ors..Vs. Gobardhan Sao & Ors. (2002) 3 SCC 195 , this Court observed that: ?But one thing is clear that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking, steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, Courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.? 10. In State (NCT of Delhi) Vs. Ahmed Jaan (2008) 14 SCC 582 , while observing that although no special indulgence can be shown to the Government which, in similar circumstances is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels, highlighted the following observations of this Court in State of Nagaland Vs. Lipok Ao & Ors. (2005) 3 SCC 752 : ?It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay-intentional or otherwise-is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression ‘sufficient cause? should, therefore, be considered with pragmatism in a justice oriented approach rather than the technical detection of sufficient cause for explaining every day?s delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process.?? (See also: Special Tehsildar, Land Acquisition, Kerala Vs. KV. Ayisumma (1996) 10 SCC 634 ; State of Haryana Vs. Chandra Mani & Ors. (1996) 3 SCC 132 ) 11. It is manifest that though Section 5 of the Limitation Act, 1963 envisages the explanation of delay to the satisfaction of the Court, and makes no distinction between the State and the citizen, nonetheless adoption of a strict standard of proof in case of the Government, which is dependant on the actions of its officials, who often do not have any personal interest in its transactions, may lead to grave miscarriage of justice and therefore, certain amount of latitude is permissible in such cases.12. Examined on the touch-stone of the afore-noted observations, we are of the view that in the present case, the conduct of the appellants does not indicate inaction, negligence or mala fides. The explanation furnished for the marginal delay of 59 days, in our opinion, constitutes a sufficient cause and therefore, deserves to be accepted. | 1[ds]7. Having heard the learned counsel, we are of the opinion that in the instant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides .can be imputed to the party. (See: Shakuntala Devi Jain Vs. Kuntal Kumari & Ors.(1969) 1 SCR 1006 ; The State of West Bengal Vs. The Administrator, Howrah Municipality & Ors. (1972) 1 SCC 366 ; N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 ; Sital Prasad Saxena Vs. Union of India & Ors. (1985) 1 SCC 163 ).It is manifest that though Section 5 of the Limitation Act, 1963 envisages the explanation of delay to the satisfaction of the Court, and makes no distinction between the State and the citizen, nonetheless adoption of a strict standard of proof in case of the Government, which is dependant on the actions of its officials, who often do not have any personal interest in its transactions, may lead to grave miscarriage of justice and therefore, certain amount of latitude is permissible in such cases.12. Examined on theted observations, we are of the view that in the present case, the conduct of the appellants does not indicate inaction, negligence or mala fides. The explanation furnished for the marginal delay of 59 days, in our opinion, constitutes a sufficient cause and therefore, deserves to be accepted. | 1 | 1,732 | 331 | ### Instruction:
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erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides .can be imputed to the party. (See: Shakuntala Devi Jain Vs. Kuntal Kumari & Ors.(1969) 1 SCR 1006 ; The State of West Bengal Vs. The Administrator, Howrah Municipality & Ors. (1972) 1 SCC 366 ; N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 ; Sital Prasad Saxena Vs. Union of India & Ors. (1985) 1 SCC 163 ). 8. In Ramlal, Motilal & Chhotelal Vs. Rewa Coalfields Ltd. (1962) 2 SCR 762 , this Court held that: ?In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan (1890) ILR 13 Mad 269 ?Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ‘sufficient cause? receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.? 9. Similarly, in Ram Nath Sao Alias Ram Nath Sahu & Ors..Vs. Gobardhan Sao & Ors. (2002) 3 SCC 195 , this Court observed that: ?But one thing is clear that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the Courts should not lose sight of the fact that by not taking, steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, Courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.? 10. In State (NCT of Delhi) Vs. Ahmed Jaan (2008) 14 SCC 582 , while observing that although no special indulgence can be shown to the Government which, in similar circumstances is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels, highlighted the following observations of this Court in State of Nagaland Vs. Lipok Ao & Ors. (2005) 3 SCC 752 : ?It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay-intentional or otherwise-is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression ‘sufficient cause? should, therefore, be considered with pragmatism in a justice oriented approach rather than the technical detection of sufficient cause for explaining every day?s delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process.?? (See also: Special Tehsildar, Land Acquisition, Kerala Vs. KV. Ayisumma (1996) 10 SCC 634 ; State of Haryana Vs. Chandra Mani & Ors. (1996) 3 SCC 132 ) 11. It is manifest that though Section 5 of the Limitation Act, 1963 envisages the explanation of delay to the satisfaction of the Court, and makes no distinction between the State and the citizen, nonetheless adoption of a strict standard of proof in case of the Government, which is dependant on the actions of its officials, who often do not have any personal interest in its transactions, may lead to grave miscarriage of justice and therefore, certain amount of latitude is permissible in such cases.12. Examined on the touch-stone of the afore-noted observations, we are of the view that in the present case, the conduct of the appellants does not indicate inaction, negligence or mala fides. The explanation furnished for the marginal delay of 59 days, in our opinion, constitutes a sufficient cause and therefore, deserves to be accepted.
### Response:
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### Explanation:
7. Having heard the learned counsel, we are of the opinion that in the instant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides .can be imputed to the party. (See: Shakuntala Devi Jain Vs. Kuntal Kumari & Ors.(1969) 1 SCR 1006 ; The State of West Bengal Vs. The Administrator, Howrah Municipality & Ors. (1972) 1 SCC 366 ; N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 ; Sital Prasad Saxena Vs. Union of India & Ors. (1985) 1 SCC 163 ).It is manifest that though Section 5 of the Limitation Act, 1963 envisages the explanation of delay to the satisfaction of the Court, and makes no distinction between the State and the citizen, nonetheless adoption of a strict standard of proof in case of the Government, which is dependant on the actions of its officials, who often do not have any personal interest in its transactions, may lead to grave miscarriage of justice and therefore, certain amount of latitude is permissible in such cases.12. Examined on theted observations, we are of the view that in the present case, the conduct of the appellants does not indicate inaction, negligence or mala fides. The explanation furnished for the marginal delay of 59 days, in our opinion, constitutes a sufficient cause and therefore, deserves to be accepted.
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Harkishan Singh Vs. State Of Punjab & Ors | to the selection grade was said by the appellant to be an infraction of rule 9 (2). The contention of the appellant with regard to rule 5 was that it spoke of appointment to the service either by promotion from Class II or by direct recruitment and therefore there could be direct recruitment only to Class I service and not to the selection grade. It was emphasised that rule 5 did not specifically provide for direct appointment to selection grade.12. Rule 9 (2) does not contain any restrictive word that only members of the service shall be eligible to promotion to a selection grade. The proviso to rule 9 (2) contains a word of limitation and it is that no member of the service shall be entitled as of right to such promotion. To exclude appointment to selection grade would be to rob rule 5 as well as rules 9 (2) and 9 (3) of their content because rule 5 speaks of appointment to the service to be either by promotion or by direct recruitment. Rule 9 (2) speaks of eligibility of members of the service for promotion to the selection grade and rule 9 (3) speaks of the number of appointments in the selection grade not to exceed 25 per cent of appointments in the service. The service as defined in rule 2 (c) means the Punjab Civil Medical Service Class I. Selection grade is the Punjab Civil Medical Service Class I. That is not disputed. Therefore rule 5 which specifically speaks of appointment to the service by direct recruitment embraces Class I and the selection grade which is a part and parcel of Class I. The word appointment in rule 9 (3) in regard to selection grade as not exceeding 25 per cent of the total number of appointments in the service contemplates both promotion and direct appointments in the service to the selection grade. The word "appointment" cannot mean only promotion. It means appointment both by promotion and by direct recruitment. That is why the word appointment is used in that sense once in relation to selection grade and again in relation to the total number of appointments to the service. Direct appointment to selection grade is not only contemplated in the rules particularly rules 5, 9 (2) and 9 (3) but is also the implicit idea in-herent in the words "direct recruitment and direct appointment" in Rule 5 for the purpose of attracting able and meritorious persons to the service including the selection grade. The fallacy in the appellants contention is that though selection grade will be within the definition of the service in rule 2 (c) wherever the word "service "occurs in rules 5 and 9, the construction put upon the word service is members of the service who are in Class I on time scale appointment and who alone can be promoted to the selection grade and that there cannot be any direct appointment to selection grade. 13. There is another reason as to why the rules contemplate direct appointment to selection grade in proper cases. If it appears that there are not suitable persons in Class I time scale who can be promoted to the selection grade persons of ability will have to be brought in to the selection grade from outside. 14. A contention was advanced by counsel for the appellant that rule 3 contemplated appointment by the Government on the advice of the Public Service Commission and that the appointment of Dr. Pritam Singh was not made on such advice. The recruitment of Dr. Pritam Singh to the post of Chief Medical Officer was in consultation with the Punjab Public Service Commission. That appointment was made in the month of May, 1963. Being a direct recruit he was on probation for two years. He was confirmed thereafter. His starting salary was higher and at the time of confirmation he was getting a salary of Rs. 1250/- p.m. in the scale of Rupees 800-50-1500. Dr. Pritam Singh prior to his appointment to the selection grade in the Punjab Civil Medical Service Class I was getting a salary of Rs. 1250/- p.m. which was higher than the limit of time scale pay in Class I service. 15. The other contention on behalf of the appellant was that Dr. Pritam Singh should not have got seniority, over the appellant and the respondent Dr. Sekhon in the selection grade. Prior to the appointment of Dr.Pritam Singh to the selection grade the seniority list of Class I service to which the appellant and the two respondents belonged was not fixed because of representations made by various persons including the appellant and Dr, Sekhon. We are not called upon to go into the seniority list of Class I service because the only controversy now is with regard to the seniority list of the selection grade. 16. The appointment of Dr. Pritam Singh to the selection grade was earlier than that of the appellant and Dr. Sekhon. Therefore, there ,cannot be any cause for complaint on ground of seniority- When Dr. Pritam Singh was appointed to the selection grade his position was last in the list. That was on 20 October, 1966. The appellant and Dr. Sekhon were promoted to the selection grade 10 days thereafter and their position would be in the ordinary course below Dr. Pritam Singh. It would be unjust to hold that the appellant and Dr. Sekhon would be put at a place higher than Dr. Pritam Singh in the selection grade. 17. The High Court correctly expressed the view that there are no specific rules in regard to the fixation of seniority in the selection grade in the case of a direct appointment. If there are no relevant rules with regard to fixation of seniority in the case of a direct appointment to the selection grade, Dr. Pritam Singh having been recruited by direct appointment earlier than the appellant and Dr. Sekhon, Dr. Pritam Singhs seniority cannot be disturbed. That will be unjust. | 0[ds]12. Rule 9 (2) does not contain any restrictive word that only members of the service shall be eligible to promotion to a selection grade. The proviso to rule 9 (2) contains a word of limitation and it is that no member of the service shall be entitled as of right to such promotion. To exclude appointment to selection grade would be to rob rule 5 as well as rules 9 (2) and 9 (3) of their content because rule 5 speaks of appointment to the service to be either by promotion or by direct recruitment. Rule 9 (2) speaks of eligibility of members of the service for promotion to the selection grade and rule 9 (3) speaks of the number of appointments in the selection grade not to exceed 25 per cent of appointments in the service. The service as defined in rule 2 (c) means the Punjab Civil Medical Service Class I. Selection grade is the Punjab Civil Medical Service Class I. That is not disputed. Therefore rule 5 which specifically speaks of appointment to the service by direct recruitment embraces Class I and the selection grade which is a part and parcel of Class I. The word appointment in rule 9 (3) in regard to selection grade as not exceeding 25 per cent of the total number of appointments in the service contemplates both promotion and direct appointments in the service to the selection grade. The word "appointment" cannot mean only promotion. It means appointment both by promotion and by direct recruitment. That is why the word appointment is used in that sense once in relation to selection grade and again in relation to the total number of appointments to the service. Direct appointment to selection grade is not only contemplated in the rules particularly rules 5, 9 (2) and 9 (3) but is also the implicit ideat in the words "direct recruitment and direct appointment" in Rule 5 for the purpose of attracting able and meritorious persons to the service including the selection grade. The fallacy in the appellants contention is that though selection grade will be within the definition of the service in rule 2 (c) wherever the word "service "occurs in rules 5 and 9, the construction put upon the word service is members of the service who are in Class I on time scale appointment and who alone can be promoted to the selection grade and that there cannot be any direct appointment to selection grade13. There is another reason as to why the rules contemplate direct appointment to selection grade in proper cases. If it appears that there are not suitable persons in Class I time scale who can be promoted to the selection grade persons of ability will have to be brought in to the selection grade from outsideWe are not called upon to go into the seniority list of Class I service because the only controversy now is with regard to the seniority list of the selection grade16. The appointment of Dr. Pritam Singh to the selection grade was earlier than that of the appellant and Dr. Sekhon. Therefore, there ,cannot be any cause for complaint on ground of seniorityWhen Dr. Pritam Singh was appointed to the selection grade his position was last in the list. That was on 20 October, 1966. The appellant and Dr. Sekhon were promoted to the selection grade 10 days thereafter and their position would be in the ordinary course below Dr. Pritam Singh. It would be unjust to hold that the appellant and Dr. Sekhon would be put at a place higher than Dr. Pritam Singh in the selection grade17. The High Court correctly expressed the view that there are no specific rules in regard to the fixation of seniority in the selection grade in the case of a direct appointment. If there are no relevant rules with regard to fixation of seniority in the case of a direct appointment to the selection grade, Dr. Pritam Singh having been recruited by direct appointment earlier than the appellant and Dr. Sekhon, Dr. Pritam Singhs seniority cannot be disturbed. That will be unjust. | 0 | 2,612 | 755 | ### 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:
to the selection grade was said by the appellant to be an infraction of rule 9 (2). The contention of the appellant with regard to rule 5 was that it spoke of appointment to the service either by promotion from Class II or by direct recruitment and therefore there could be direct recruitment only to Class I service and not to the selection grade. It was emphasised that rule 5 did not specifically provide for direct appointment to selection grade.12. Rule 9 (2) does not contain any restrictive word that only members of the service shall be eligible to promotion to a selection grade. The proviso to rule 9 (2) contains a word of limitation and it is that no member of the service shall be entitled as of right to such promotion. To exclude appointment to selection grade would be to rob rule 5 as well as rules 9 (2) and 9 (3) of their content because rule 5 speaks of appointment to the service to be either by promotion or by direct recruitment. Rule 9 (2) speaks of eligibility of members of the service for promotion to the selection grade and rule 9 (3) speaks of the number of appointments in the selection grade not to exceed 25 per cent of appointments in the service. The service as defined in rule 2 (c) means the Punjab Civil Medical Service Class I. Selection grade is the Punjab Civil Medical Service Class I. That is not disputed. Therefore rule 5 which specifically speaks of appointment to the service by direct recruitment embraces Class I and the selection grade which is a part and parcel of Class I. The word appointment in rule 9 (3) in regard to selection grade as not exceeding 25 per cent of the total number of appointments in the service contemplates both promotion and direct appointments in the service to the selection grade. The word "appointment" cannot mean only promotion. It means appointment both by promotion and by direct recruitment. That is why the word appointment is used in that sense once in relation to selection grade and again in relation to the total number of appointments to the service. Direct appointment to selection grade is not only contemplated in the rules particularly rules 5, 9 (2) and 9 (3) but is also the implicit idea in-herent in the words "direct recruitment and direct appointment" in Rule 5 for the purpose of attracting able and meritorious persons to the service including the selection grade. The fallacy in the appellants contention is that though selection grade will be within the definition of the service in rule 2 (c) wherever the word "service "occurs in rules 5 and 9, the construction put upon the word service is members of the service who are in Class I on time scale appointment and who alone can be promoted to the selection grade and that there cannot be any direct appointment to selection grade. 13. There is another reason as to why the rules contemplate direct appointment to selection grade in proper cases. If it appears that there are not suitable persons in Class I time scale who can be promoted to the selection grade persons of ability will have to be brought in to the selection grade from outside. 14. A contention was advanced by counsel for the appellant that rule 3 contemplated appointment by the Government on the advice of the Public Service Commission and that the appointment of Dr. Pritam Singh was not made on such advice. The recruitment of Dr. Pritam Singh to the post of Chief Medical Officer was in consultation with the Punjab Public Service Commission. That appointment was made in the month of May, 1963. Being a direct recruit he was on probation for two years. He was confirmed thereafter. His starting salary was higher and at the time of confirmation he was getting a salary of Rs. 1250/- p.m. in the scale of Rupees 800-50-1500. Dr. Pritam Singh prior to his appointment to the selection grade in the Punjab Civil Medical Service Class I was getting a salary of Rs. 1250/- p.m. which was higher than the limit of time scale pay in Class I service. 15. The other contention on behalf of the appellant was that Dr. Pritam Singh should not have got seniority, over the appellant and the respondent Dr. Sekhon in the selection grade. Prior to the appointment of Dr.Pritam Singh to the selection grade the seniority list of Class I service to which the appellant and the two respondents belonged was not fixed because of representations made by various persons including the appellant and Dr, Sekhon. We are not called upon to go into the seniority list of Class I service because the only controversy now is with regard to the seniority list of the selection grade. 16. The appointment of Dr. Pritam Singh to the selection grade was earlier than that of the appellant and Dr. Sekhon. Therefore, there ,cannot be any cause for complaint on ground of seniority- When Dr. Pritam Singh was appointed to the selection grade his position was last in the list. That was on 20 October, 1966. The appellant and Dr. Sekhon were promoted to the selection grade 10 days thereafter and their position would be in the ordinary course below Dr. Pritam Singh. It would be unjust to hold that the appellant and Dr. Sekhon would be put at a place higher than Dr. Pritam Singh in the selection grade. 17. The High Court correctly expressed the view that there are no specific rules in regard to the fixation of seniority in the selection grade in the case of a direct appointment. If there are no relevant rules with regard to fixation of seniority in the case of a direct appointment to the selection grade, Dr. Pritam Singh having been recruited by direct appointment earlier than the appellant and Dr. Sekhon, Dr. Pritam Singhs seniority cannot be disturbed. That will be unjust.
### Response:
0
### Explanation:
12. Rule 9 (2) does not contain any restrictive word that only members of the service shall be eligible to promotion to a selection grade. The proviso to rule 9 (2) contains a word of limitation and it is that no member of the service shall be entitled as of right to such promotion. To exclude appointment to selection grade would be to rob rule 5 as well as rules 9 (2) and 9 (3) of their content because rule 5 speaks of appointment to the service to be either by promotion or by direct recruitment. Rule 9 (2) speaks of eligibility of members of the service for promotion to the selection grade and rule 9 (3) speaks of the number of appointments in the selection grade not to exceed 25 per cent of appointments in the service. The service as defined in rule 2 (c) means the Punjab Civil Medical Service Class I. Selection grade is the Punjab Civil Medical Service Class I. That is not disputed. Therefore rule 5 which specifically speaks of appointment to the service by direct recruitment embraces Class I and the selection grade which is a part and parcel of Class I. The word appointment in rule 9 (3) in regard to selection grade as not exceeding 25 per cent of the total number of appointments in the service contemplates both promotion and direct appointments in the service to the selection grade. The word "appointment" cannot mean only promotion. It means appointment both by promotion and by direct recruitment. That is why the word appointment is used in that sense once in relation to selection grade and again in relation to the total number of appointments to the service. Direct appointment to selection grade is not only contemplated in the rules particularly rules 5, 9 (2) and 9 (3) but is also the implicit ideat in the words "direct recruitment and direct appointment" in Rule 5 for the purpose of attracting able and meritorious persons to the service including the selection grade. The fallacy in the appellants contention is that though selection grade will be within the definition of the service in rule 2 (c) wherever the word "service "occurs in rules 5 and 9, the construction put upon the word service is members of the service who are in Class I on time scale appointment and who alone can be promoted to the selection grade and that there cannot be any direct appointment to selection grade13. There is another reason as to why the rules contemplate direct appointment to selection grade in proper cases. If it appears that there are not suitable persons in Class I time scale who can be promoted to the selection grade persons of ability will have to be brought in to the selection grade from outsideWe are not called upon to go into the seniority list of Class I service because the only controversy now is with regard to the seniority list of the selection grade16. The appointment of Dr. Pritam Singh to the selection grade was earlier than that of the appellant and Dr. Sekhon. Therefore, there ,cannot be any cause for complaint on ground of seniorityWhen Dr. Pritam Singh was appointed to the selection grade his position was last in the list. That was on 20 October, 1966. The appellant and Dr. Sekhon were promoted to the selection grade 10 days thereafter and their position would be in the ordinary course below Dr. Pritam Singh. It would be unjust to hold that the appellant and Dr. Sekhon would be put at a place higher than Dr. Pritam Singh in the selection grade17. The High Court correctly expressed the view that there are no specific rules in regard to the fixation of seniority in the selection grade in the case of a direct appointment. If there are no relevant rules with regard to fixation of seniority in the case of a direct appointment to the selection grade, Dr. Pritam Singh having been recruited by direct appointment earlier than the appellant and Dr. Sekhon, Dr. Pritam Singhs seniority cannot be disturbed. That will be unjust.
|
Chairman cum Managing Director Coal India Limited & Another Vs. Mukul Kumar Choudhuri & Others | of Civil Service Union v. Minister for Civil Service(1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL) Lord Diplock proclaimed: (All ER p. 950h-j)"Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call `illegality, the second `irrationality and the third `procedural impropriety. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality...."(emphasis supplied)23. CCSU has been reiterated by English courts in several subsequent cases. We do not think it necessary to refer to all those cases.24. So far as our legal system is concerned, the doctrine is well settled. Even prior to CCSU, this Court has held that if punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a court to interfere with such penalty in appropriate cases.25. In Hind Construction & Engg. Co. Ltd. v. Workmen (AIR 1965 SC 917 ), some workers remained absent from duty treating a particular day as holiday. They were dismissed from service. The Industrial Tribunal set aside the action. This Court held that the absence could have been treated as leave without pay. The workmen might have been warned and fined. (But)"It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner." (AIR p. 919, para 7)(emphasis supplied)The Court concluded that the punishment imposed on the workmen was "not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed". (AIR pp. 919-20, para 7)(emphasis supplied)26. In Federation of Indian Chambers of Commerce and Industry v. Workmen [(1972) 1 SCC 40] , the allegation against the employee of the Federation was that he issued legal notices to the Federation and to the International Chamber of Commerce which brought discredit to the Federation--the employer. Domestic inquiry was held against the employee and his services were terminated. The punishment was held to be disproportionate to the misconduct alleged and established. This Court observed that: (SCC p. 62, para 34)"[T]he Federation had made a mountain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation."27. In Ranjit Thakur referred to earlier, an army officer did not obey the lawful command of his superior officer by not eating food offered to him. Court-martial proceedings were initiated and a sentence of rigorous imprisonment of one year was imposed. He was also dismissed from service, with added disqualification that he would be unfit for future employment.28. Applying the doctrine of proportionality and following CCSU, Venkatachaliah, J. (as His Lordship then was) observed: (SCC p. 620, para 25)"The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review." (emphasis supplied) 26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Companys Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months. | 1[ds]24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Companys Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not beour view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months.The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Companys Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not ber view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months. | 1 | 5,903 | 1,076 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
of Civil Service Union v. Minister for Civil Service(1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL) Lord Diplock proclaimed: (All ER p. 950h-j)"Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call `illegality, the second `irrationality and the third `procedural impropriety. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality...."(emphasis supplied)23. CCSU has been reiterated by English courts in several subsequent cases. We do not think it necessary to refer to all those cases.24. So far as our legal system is concerned, the doctrine is well settled. Even prior to CCSU, this Court has held that if punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a court to interfere with such penalty in appropriate cases.25. In Hind Construction & Engg. Co. Ltd. v. Workmen (AIR 1965 SC 917 ), some workers remained absent from duty treating a particular day as holiday. They were dismissed from service. The Industrial Tribunal set aside the action. This Court held that the absence could have been treated as leave without pay. The workmen might have been warned and fined. (But)"It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner." (AIR p. 919, para 7)(emphasis supplied)The Court concluded that the punishment imposed on the workmen was "not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed". (AIR pp. 919-20, para 7)(emphasis supplied)26. In Federation of Indian Chambers of Commerce and Industry v. Workmen [(1972) 1 SCC 40] , the allegation against the employee of the Federation was that he issued legal notices to the Federation and to the International Chamber of Commerce which brought discredit to the Federation--the employer. Domestic inquiry was held against the employee and his services were terminated. The punishment was held to be disproportionate to the misconduct alleged and established. This Court observed that: (SCC p. 62, para 34)"[T]he Federation had made a mountain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation."27. In Ranjit Thakur referred to earlier, an army officer did not obey the lawful command of his superior officer by not eating food offered to him. Court-martial proceedings were initiated and a sentence of rigorous imprisonment of one year was imposed. He was also dismissed from service, with added disqualification that he would be unfit for future employment.28. Applying the doctrine of proportionality and following CCSU, Venkatachaliah, J. (as His Lordship then was) observed: (SCC p. 620, para 25)"The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review." (emphasis supplied) 26. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Companys Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months.
### Response:
1
### Explanation:
in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Companys Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not beour view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months.The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Companys Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not ber view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months.
|
The Management of the Cannanore Spinning & Weaving Mills Ltd Vs. Secretary, Cannanore Spinning & Weaving Mills Workers' Union | in the hands of the Management-for the employer as well as for the industry together-a sum of Rs. 49,773 plus Rs. 74,674 as the income-tax rebate available i.e., a total sum of Rs. 1,24,447 as against the amount of Rs. 1,70,684 for the workmen.2. It appears to have been the employers case before the Tribunal that an amount of Rs. 18,060 should have also been deducted as one of the "prior charges" being 4% return on the reserves worked as working capital. In rejecting this claim the Industrial Tribunal pointed out that"before a return could be allowed on reserves employed on working capital, it must be proved that the amount on which return is claimed was actually used in or about the business and also the period for which it was so utilised. Where the Company failed to prove the fact of any reserves being employed as working capital for the year in question, claim for return on such head must be negatived. Here the Company has not adduced any such proof."It was urged on behalf of the appellant that an analysis of the statements in the balance sheet would clearly establish the fact that the amount claimed to have been worked as working capital was in fact so used. It is unnecessary for us to consider in this case whether an analysis of the statements in the balance-sheet would establish this fact, for before such analysis can be usefully undertaken it is necessary for the employer to establish that the statements in the balance sheet are in fact correct. In the absence of any evidence to show that the statements in the balance-sheet are true it is not possible for the Tribunal nor is it possible for us to presume the correctness of such statement. No such evidence has been attempted to be given in this case. The conclusion of the Tribunal that no part of the reserves has been shown to have been actually used as working capital during the relevant period is therefore unassailable.3. It is convenient to mention here that similar failure to adduce proper evidence is also a sufficient basis for the disallowance of the employers claim of a reduction of Rs. 4,81,002/- towards the rehabilitation expenses over and above the statutory depreciation of Rs. 3,16,810/- Learned counsel for the employer has conceded that there is no evidence on the record on the basis of which he could reasonably ask us to hold that any further amount should be deducted on account of rehabilitation in addition to the statutory depreciation of Rs. 3,16,810/-.He drew our attention, however, to an observation made by the Tribunal that the rehabilitation can be allowed only in the case of machinery purchased in pre-war days. We entirely agree with the learned counsel that the Tribunal was clearly wrong in this view. Even post-war machinery will have to be rehabilitated. As in other cases the multiplier and the divisor for ascertaining the rehabilitation costs of such machinery permissible for deduction have to be assessed, on the basis of evidence. The residue of life in case of most of such machinery is likely to be much more than in the case of pre-war machinery so that divisors will be larger. There may also be some cases where the multiplier will not exceed unity because the probable cost at the time when rehabilitation is needed is expected to remain the same. In other cases, however, the evidence may show even for post-war machinery that a multiplier exceeding unity is justified. The divisor in cases of post-war machinery is likely to be large-how large has to be decided on the evidence. But the general observation made by the Tribunal that rehabilitation cannot be allowed in the case of post-war machinery is clearly incorrect.4. As, however, in the present case there is admittedly no evidence to show what amount in addition to Rs. 3,16,810/- is deductible for rehabilitation expenses no further discussion of this question is necessary.5. This brings us to the consideration of the other point that arises in this appeal, viz., an unduly large portion of the available surplus has been made available to workmen. Special stress is laid by Sri. Vishwanatha Sastri on behalf of the appellant on the fact that the employer agreed that the amount of Rs. 3 lakhs actually paid as compensation to the former Managing Agents should be spread over a period of three years. It has been urged that but for this generous gesture on the part of the employer no portion of this three lakhs could have been added back in arriving at the gross profit and that the gross profit would have stood then at Rs. 6,68,728/- and the available surplus would have dwindled to a sum of Rs. Twenty-thousand and odd rupees. While account may no doubt be reasonably taken of such conduct on the part of the employer this is one of the many factors which have to be taken into consideration in deciding how the available surplus should be shared. One of these factors is the extent of the gap between the wages paid and the living wage. It appears that while the working force of the Mills is 850 the monthly wage is Rs. 28,447/-, the average wage per workman thus works out at about Rs. 33/-. While the exact amount of dearness allowance cannot be ascertained on the materials on the record it is reasonable to think that even adding the dearness allowance to the basic wage the actual average wage received per workman will not be more than Rs. 50/- per month. Even the grant of six months basic wages as bonus would raise the average receipts per workman to only abut Rs. 70/- per month. When all these things are taken into account we cannot say that the Tribunal in exercise of its discretion, awarding an additional sum of three months wages in addition to the 3 months basic wages already paid by the employer, has acted unreasonably. | 0[ds]It was urged on behalf of the appellant that an analysis of the statements in the balance sheet would clearly establish the fact that the amount claimed to have been worked as working capital was in fact soused. It is unnecessary for us to consider in this case whether an analysis of the statements in thewould establish this fact, for before such analysis can be usefully undertaken it is necessary for the employer to establish that the statements in the balance sheet are in fact correct. In the absence of any evidence to show that the statements in theare true it is not possible for the Tribunal nor is it possible for us to presume the correctness of such statement. No such evidence has been attempted to be given in this case. The conclusion of the Tribunal that no part of the reserves has been shown to have been actually used as working capital during the relevant period is therefore unassailable.3. It is convenient to mention here that similar failure to adduce proper evidence is also a sufficient basis for the disallowance of the employers claim of a reduction of Rs. 4,81,002/towards the rehabilitation expenses over and above the statutory depreciation of Rs. 3,16,810/l for the employer has conceded that there is no evidence on the record on the basis of which he could reasonably ask us to hold that any further amount should be deducted on account of rehabilitation in addition to the statutory depreciation of Rs.w our attention, however, to an observation made by the Tribunal that the rehabilitation can be allowed only in the case of machinery purchased indays. We entirely agree with the learned counsel that the Tribunal was clearly wrong in this view. Evenmachinery will have to be rehabilitated. As in other cases the multiplier and the divisor for ascertaining the rehabilitation costs of such machinery permissible for deduction have to be assessed, on the basis of evidence. The residue of life in case of most of such machinery is likely to be much more than in the case ofmachinery so that divisors will be larger. There may also be some cases where the multiplier will not exceed unity because the probable cost at the time when rehabilitation is needed is expected to remain the same. In other cases, however, the evidence may show even formachinery that a multiplier exceeding unity is justified. The divisor in cases ofmachinery is likely to belarge has to be decided on the evidence. But the general observation made by the Tribunal that rehabilitation cannot be allowed in the case ofmachinery is clearly incorrect.4. As, however, in the present case there is admittedly no evidence to show what amount in addition to Rs. 3,16,810/is deductible for rehabilitation expenses no further discussion of this question is necessary.5. This brings us to the consideration of the other point that arises in this appeal, viz., an unduly large portion of the available surplus has been made available to workmen.stress is laid by Sri. Vishwanatha Sastri on behalf of the appellant on the fact that the employer agreed that the amount of Rs. 3 lakhs actually paid as compensation to the former Managing Agents should be spread over a period of three years. It has been urged that but for this generous gesture on the part of the employer no portion of this three lakhs could have been added back in arriving at the gross profit and that the gross profit would have stood then at Rs. 6,68,728/and the available surplus would have dwindled to a sum of Rs.d odd rupees.While account may no doubt be reasonably taken of such conduct on the part of the employer this is one of the many factors which have to be taken into consideration in deciding how the available surplus should be shared. One of these factors is the extent of the gap between the wages paid and the living wage. It appears that while the working force of the Mills is 850 the monthly wage is Rs.the average wage per workman thus works out at about Rs.While the exact amount of dearness allowance cannot be ascertained on the materials on the record it is reasonable to think that even adding the dearness allowance to the basic wage the actual average wage received per workman will not be more than Rs. 50/per month. Even the grant of six months basic wages as bonus would raise the average receipts per workman to only abut Rs. 70/per month. When all these things are taken into account we cannot say that the Tribunal in exercise of its discretion, awarding an additional sum of three months wages in addition to the 3 months basic wages already paid by the employer, has acted unreasonably. | 0 | 1,515 | 840 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
in the hands of the Management-for the employer as well as for the industry together-a sum of Rs. 49,773 plus Rs. 74,674 as the income-tax rebate available i.e., a total sum of Rs. 1,24,447 as against the amount of Rs. 1,70,684 for the workmen.2. It appears to have been the employers case before the Tribunal that an amount of Rs. 18,060 should have also been deducted as one of the "prior charges" being 4% return on the reserves worked as working capital. In rejecting this claim the Industrial Tribunal pointed out that"before a return could be allowed on reserves employed on working capital, it must be proved that the amount on which return is claimed was actually used in or about the business and also the period for which it was so utilised. Where the Company failed to prove the fact of any reserves being employed as working capital for the year in question, claim for return on such head must be negatived. Here the Company has not adduced any such proof."It was urged on behalf of the appellant that an analysis of the statements in the balance sheet would clearly establish the fact that the amount claimed to have been worked as working capital was in fact so used. It is unnecessary for us to consider in this case whether an analysis of the statements in the balance-sheet would establish this fact, for before such analysis can be usefully undertaken it is necessary for the employer to establish that the statements in the balance sheet are in fact correct. In the absence of any evidence to show that the statements in the balance-sheet are true it is not possible for the Tribunal nor is it possible for us to presume the correctness of such statement. No such evidence has been attempted to be given in this case. The conclusion of the Tribunal that no part of the reserves has been shown to have been actually used as working capital during the relevant period is therefore unassailable.3. It is convenient to mention here that similar failure to adduce proper evidence is also a sufficient basis for the disallowance of the employers claim of a reduction of Rs. 4,81,002/- towards the rehabilitation expenses over and above the statutory depreciation of Rs. 3,16,810/- Learned counsel for the employer has conceded that there is no evidence on the record on the basis of which he could reasonably ask us to hold that any further amount should be deducted on account of rehabilitation in addition to the statutory depreciation of Rs. 3,16,810/-.He drew our attention, however, to an observation made by the Tribunal that the rehabilitation can be allowed only in the case of machinery purchased in pre-war days. We entirely agree with the learned counsel that the Tribunal was clearly wrong in this view. Even post-war machinery will have to be rehabilitated. As in other cases the multiplier and the divisor for ascertaining the rehabilitation costs of such machinery permissible for deduction have to be assessed, on the basis of evidence. The residue of life in case of most of such machinery is likely to be much more than in the case of pre-war machinery so that divisors will be larger. There may also be some cases where the multiplier will not exceed unity because the probable cost at the time when rehabilitation is needed is expected to remain the same. In other cases, however, the evidence may show even for post-war machinery that a multiplier exceeding unity is justified. The divisor in cases of post-war machinery is likely to be large-how large has to be decided on the evidence. But the general observation made by the Tribunal that rehabilitation cannot be allowed in the case of post-war machinery is clearly incorrect.4. As, however, in the present case there is admittedly no evidence to show what amount in addition to Rs. 3,16,810/- is deductible for rehabilitation expenses no further discussion of this question is necessary.5. This brings us to the consideration of the other point that arises in this appeal, viz., an unduly large portion of the available surplus has been made available to workmen. Special stress is laid by Sri. Vishwanatha Sastri on behalf of the appellant on the fact that the employer agreed that the amount of Rs. 3 lakhs actually paid as compensation to the former Managing Agents should be spread over a period of three years. It has been urged that but for this generous gesture on the part of the employer no portion of this three lakhs could have been added back in arriving at the gross profit and that the gross profit would have stood then at Rs. 6,68,728/- and the available surplus would have dwindled to a sum of Rs. Twenty-thousand and odd rupees. While account may no doubt be reasonably taken of such conduct on the part of the employer this is one of the many factors which have to be taken into consideration in deciding how the available surplus should be shared. One of these factors is the extent of the gap between the wages paid and the living wage. It appears that while the working force of the Mills is 850 the monthly wage is Rs. 28,447/-, the average wage per workman thus works out at about Rs. 33/-. While the exact amount of dearness allowance cannot be ascertained on the materials on the record it is reasonable to think that even adding the dearness allowance to the basic wage the actual average wage received per workman will not be more than Rs. 50/- per month. Even the grant of six months basic wages as bonus would raise the average receipts per workman to only abut Rs. 70/- per month. When all these things are taken into account we cannot say that the Tribunal in exercise of its discretion, awarding an additional sum of three months wages in addition to the 3 months basic wages already paid by the employer, has acted unreasonably.
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It was urged on behalf of the appellant that an analysis of the statements in the balance sheet would clearly establish the fact that the amount claimed to have been worked as working capital was in fact soused. It is unnecessary for us to consider in this case whether an analysis of the statements in thewould establish this fact, for before such analysis can be usefully undertaken it is necessary for the employer to establish that the statements in the balance sheet are in fact correct. In the absence of any evidence to show that the statements in theare true it is not possible for the Tribunal nor is it possible for us to presume the correctness of such statement. No such evidence has been attempted to be given in this case. The conclusion of the Tribunal that no part of the reserves has been shown to have been actually used as working capital during the relevant period is therefore unassailable.3. It is convenient to mention here that similar failure to adduce proper evidence is also a sufficient basis for the disallowance of the employers claim of a reduction of Rs. 4,81,002/towards the rehabilitation expenses over and above the statutory depreciation of Rs. 3,16,810/l for the employer has conceded that there is no evidence on the record on the basis of which he could reasonably ask us to hold that any further amount should be deducted on account of rehabilitation in addition to the statutory depreciation of Rs.w our attention, however, to an observation made by the Tribunal that the rehabilitation can be allowed only in the case of machinery purchased indays. We entirely agree with the learned counsel that the Tribunal was clearly wrong in this view. Evenmachinery will have to be rehabilitated. As in other cases the multiplier and the divisor for ascertaining the rehabilitation costs of such machinery permissible for deduction have to be assessed, on the basis of evidence. The residue of life in case of most of such machinery is likely to be much more than in the case ofmachinery so that divisors will be larger. There may also be some cases where the multiplier will not exceed unity because the probable cost at the time when rehabilitation is needed is expected to remain the same. In other cases, however, the evidence may show even formachinery that a multiplier exceeding unity is justified. The divisor in cases ofmachinery is likely to belarge has to be decided on the evidence. But the general observation made by the Tribunal that rehabilitation cannot be allowed in the case ofmachinery is clearly incorrect.4. As, however, in the present case there is admittedly no evidence to show what amount in addition to Rs. 3,16,810/is deductible for rehabilitation expenses no further discussion of this question is necessary.5. This brings us to the consideration of the other point that arises in this appeal, viz., an unduly large portion of the available surplus has been made available to workmen.stress is laid by Sri. Vishwanatha Sastri on behalf of the appellant on the fact that the employer agreed that the amount of Rs. 3 lakhs actually paid as compensation to the former Managing Agents should be spread over a period of three years. It has been urged that but for this generous gesture on the part of the employer no portion of this three lakhs could have been added back in arriving at the gross profit and that the gross profit would have stood then at Rs. 6,68,728/and the available surplus would have dwindled to a sum of Rs.d odd rupees.While account may no doubt be reasonably taken of such conduct on the part of the employer this is one of the many factors which have to be taken into consideration in deciding how the available surplus should be shared. One of these factors is the extent of the gap between the wages paid and the living wage. It appears that while the working force of the Mills is 850 the monthly wage is Rs.the average wage per workman thus works out at about Rs.While the exact amount of dearness allowance cannot be ascertained on the materials on the record it is reasonable to think that even adding the dearness allowance to the basic wage the actual average wage received per workman will not be more than Rs. 50/per month. Even the grant of six months basic wages as bonus would raise the average receipts per workman to only abut Rs. 70/per month. When all these things are taken into account we cannot say that the Tribunal in exercise of its discretion, awarding an additional sum of three months wages in addition to the 3 months basic wages already paid by the employer, has acted unreasonably.
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Om Prakash Gupta Swadheen Vs. Union of India & Others | the post held by the petitioner, the appointing authority in relation to the petitioner would be the higher of the two authorities, in this case the Director-General, Geological Survey of India.5. The Division Bench of the High Court hearing the appeal from the judgment of the learned Single Judge thought that the definition of appointing authority in Rule 2 (a) of the Central Civil Services (classification, Control and Appeal) Rules, 1965 would not apply because of the opening words of Rule 2 to the effect that the definition would be applicable "unless the context otherwise, requires". According to the Division Bench sub-rule the of Rule 9 of the said Rules provides the contrary indication. Rule 9 (2) of the Central Civil services (Classification, Control and Appeal) Rules, 1965 reads:"All appointments to Central Civil Posts. Class II, Class III and Class IV, included in the General Central Service shall be made, by the authorities specified in that behalf by a general or special order of the President, or, where no such order has been made, by the authorities specified in this behalf in the Schedule." There is no dispute that the respondent held a class III post in the General Central Service. It is also not disputed that there is no general or special order of the President applicable to this case. It appears from the Schedule referred to in this rule that with regard to class III posts in non-Secretariat offices, "head of the office" is the specified authority competent to make appointment to such posts. The term head of the office has been defined in Rule 2 (i) of the Central Civil services (Classification, Control and Appeal) Rules, 1965 as follows :"head of the office, for the purpose of exercising the powers as appointing, disciplinary, appellate or reviewing authority, means the authority declared to be the head of the office under the General Financial Rules;"Annexure A to the counter-affidavit filed in the High Court on behalf of the respondents before us is a communication dated May 21, 1962 addressed by the Director General, Geological survey of India to the following authorities :"1. The Dy. Director of Audit,F.R.S.C.S, and M., G. A. D, Section8/2, Esplanade East,Calcutta.2. -do- E.A.D. Section.3. The Manager,Reserve Bank of India,Currency Deptt,Calcutta.4. The Manager,Reserve Bank of India,Public Accounts Deptt.,Calcutta.5. The Agent, State Bank of IndiaAlipore."In this document the Director General, Geological Survey of India, states inter alia:"In terms of Rule 3 of the G. F. R. Vol. I. I do hereby declare Shri G. K. Moghe, Director of Administration, Geological Survey of India as the Head of Office......,.."From this the Division Bench concluded that Shri G. K. Moghe was the appointing authority in this case and as such was competent to make the order of termination.6. Before us both sides proceeded on the footing, as the trial court did, that the case was governed by the definition of appointing authority in the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Counsel for the appellant contended that the fact that the communication dated May 21, 1962 was addressed only to the authorities in Calcutta indicated that Shri G. K. Moghe was declared Head of the Calcutta office only. It was argued that Shri G. K. Moghe could not therefore be considered as the appointing authority for the northern region where the appellant was posted when his service was terminated. This is a contention which cannot be rejected out of hand, However, this aspect of the matter does not appear to have been investigated in the High Court. But if the parties are agreed on the point, as they seemed to be, that the definition of appointing authority in Rule 2 (a) of the Central Civil Services ( Classification, Control and Appeal) Rules, 1965 would apply to this case, there should be no doubt that Shri G. K. Moghe, assuming he was empowered to appoint the appellant, was not the appointing authority, the Director General, Geological Survey of India, who in fact appointed the appellant being the higher authority. We do not see how the provisions of Rule 9 (2) are repugnant to the definition of appointing authority in Rule 2 (a), as the Division Bench of the High Court appears to have thought. Rule 2 (a) refers to the authorities who have the power to appoint as also the authorities who did appoint a Government servant and provides that whichever authority is the highest authority among them would be the appointing authority in relation to the Government servant concerned. The definition plainly takes note of Rule 9 (2) and no question can therefore arise that Rule 9 (2) is repugnant to the definition of appointing authority in Rule 2 (a).7. This should be enough to dispose of the appeal. However, despite the agreement among the parties on the point, it is possible to entertain some doubt as to whether the definition in Rule 2 (a) would apply to this case. The Central Civil Services (Temporary Service) Rules, 1965 which govern the appellants case also define appointing authority.This definition refers to the definition of appointing authority in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 only for one class of posts called the specified posts. It might be reasonably argued that this indicated that the definition in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 was not available for temporary Government servants not holding specified posts. In the absence of definition of appointing authority in Central Civil Services (Temporary Service) Rules, 1965 in relation to a temporary Government servant not holding a specified post, as the appellant was, we think the term appointing authority must be understood in its plain and real meaning, namely, the authority which appointed him. From this point of view also the impugned notice of termination was given by an authority which was not the appointing authority, and as such did not satisfy the requirement of Rule 5 (1) (a) of the Central Civil Services ( Temporary Service) Rules, 1965. | 1[ds]This is a contention which cannot be rejected out of hand, However, this aspect of the matter does not appear to have been investigated in the High Court. But if the parties are agreed on the point, as they seemed to be, that the definition of appointing authority in Rule 2 (a) of the Central Civil Services ( Classification, Control and Appeal) Rules, 1965 would apply to this case, there should be no doubt that Shri G. K. Moghe, assuming he was empowered to appoint the appellant, was not the appointing authority, the Director General, Geological Survey of India, who in fact appointed the appellant being the higher authority. We do not see how the provisions of Rule 9 (2) are repugnant to the definition of appointing authority in Rule 2 (a), as the Division Bench of the High Court appears to have thought. Rule 2 (a) refers to the authorities who have the power to appoint as also the authorities who did appoint a Government servant and provides that whichever authority is the highest authority among them would be the appointing authority in relation to the Government servant concerned. The definition plainly takes note of Rule 9 (2) and no question can therefore arise that Rule 9 (2) is repugnant to the definition of appointing authority in Rule 2 (a).7. This should be enough to dispose of the appeal. However, despite the agreement among the parties on the point, it is possible to entertain some doubt as to whether the definition in Rule 2 (a) would apply to this case. The Central Civil Services (Temporary Service) Rules, 1965 which govern the appellants case also define appointing authority.This definition refers to the definition of appointing authority in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 only for one class of posts called the specified posts. It might be reasonably argued that this indicated that the definition in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 was not available for temporary Government servants not holding specified posts. In the absence of definition of appointing authority in Central Civil Services (Temporary Service) Rules, 1965 in relation to a temporary Government servant not holding a specified post, as the appellant was, we think the term appointing authority must be understood in its plain and real meaning, namely, the authority which appointed him. From this point of view also the impugned notice of termination was given by an authority which was not the appointing authority, and as such did not satisfy the requirement of Rule 5 (1) (a) of the Central Civil Services ( Temporary Service) Rules, 1965. | 1 | 2,221 | 512 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the post held by the petitioner, the appointing authority in relation to the petitioner would be the higher of the two authorities, in this case the Director-General, Geological Survey of India.5. The Division Bench of the High Court hearing the appeal from the judgment of the learned Single Judge thought that the definition of appointing authority in Rule 2 (a) of the Central Civil Services (classification, Control and Appeal) Rules, 1965 would not apply because of the opening words of Rule 2 to the effect that the definition would be applicable "unless the context otherwise, requires". According to the Division Bench sub-rule the of Rule 9 of the said Rules provides the contrary indication. Rule 9 (2) of the Central Civil services (Classification, Control and Appeal) Rules, 1965 reads:"All appointments to Central Civil Posts. Class II, Class III and Class IV, included in the General Central Service shall be made, by the authorities specified in that behalf by a general or special order of the President, or, where no such order has been made, by the authorities specified in this behalf in the Schedule." There is no dispute that the respondent held a class III post in the General Central Service. It is also not disputed that there is no general or special order of the President applicable to this case. It appears from the Schedule referred to in this rule that with regard to class III posts in non-Secretariat offices, "head of the office" is the specified authority competent to make appointment to such posts. The term head of the office has been defined in Rule 2 (i) of the Central Civil services (Classification, Control and Appeal) Rules, 1965 as follows :"head of the office, for the purpose of exercising the powers as appointing, disciplinary, appellate or reviewing authority, means the authority declared to be the head of the office under the General Financial Rules;"Annexure A to the counter-affidavit filed in the High Court on behalf of the respondents before us is a communication dated May 21, 1962 addressed by the Director General, Geological survey of India to the following authorities :"1. The Dy. Director of Audit,F.R.S.C.S, and M., G. A. D, Section8/2, Esplanade East,Calcutta.2. -do- E.A.D. Section.3. The Manager,Reserve Bank of India,Currency Deptt,Calcutta.4. The Manager,Reserve Bank of India,Public Accounts Deptt.,Calcutta.5. The Agent, State Bank of IndiaAlipore."In this document the Director General, Geological Survey of India, states inter alia:"In terms of Rule 3 of the G. F. R. Vol. I. I do hereby declare Shri G. K. Moghe, Director of Administration, Geological Survey of India as the Head of Office......,.."From this the Division Bench concluded that Shri G. K. Moghe was the appointing authority in this case and as such was competent to make the order of termination.6. Before us both sides proceeded on the footing, as the trial court did, that the case was governed by the definition of appointing authority in the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Counsel for the appellant contended that the fact that the communication dated May 21, 1962 was addressed only to the authorities in Calcutta indicated that Shri G. K. Moghe was declared Head of the Calcutta office only. It was argued that Shri G. K. Moghe could not therefore be considered as the appointing authority for the northern region where the appellant was posted when his service was terminated. This is a contention which cannot be rejected out of hand, However, this aspect of the matter does not appear to have been investigated in the High Court. But if the parties are agreed on the point, as they seemed to be, that the definition of appointing authority in Rule 2 (a) of the Central Civil Services ( Classification, Control and Appeal) Rules, 1965 would apply to this case, there should be no doubt that Shri G. K. Moghe, assuming he was empowered to appoint the appellant, was not the appointing authority, the Director General, Geological Survey of India, who in fact appointed the appellant being the higher authority. We do not see how the provisions of Rule 9 (2) are repugnant to the definition of appointing authority in Rule 2 (a), as the Division Bench of the High Court appears to have thought. Rule 2 (a) refers to the authorities who have the power to appoint as also the authorities who did appoint a Government servant and provides that whichever authority is the highest authority among them would be the appointing authority in relation to the Government servant concerned. The definition plainly takes note of Rule 9 (2) and no question can therefore arise that Rule 9 (2) is repugnant to the definition of appointing authority in Rule 2 (a).7. This should be enough to dispose of the appeal. However, despite the agreement among the parties on the point, it is possible to entertain some doubt as to whether the definition in Rule 2 (a) would apply to this case. The Central Civil Services (Temporary Service) Rules, 1965 which govern the appellants case also define appointing authority.This definition refers to the definition of appointing authority in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 only for one class of posts called the specified posts. It might be reasonably argued that this indicated that the definition in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 was not available for temporary Government servants not holding specified posts. In the absence of definition of appointing authority in Central Civil Services (Temporary Service) Rules, 1965 in relation to a temporary Government servant not holding a specified post, as the appellant was, we think the term appointing authority must be understood in its plain and real meaning, namely, the authority which appointed him. From this point of view also the impugned notice of termination was given by an authority which was not the appointing authority, and as such did not satisfy the requirement of Rule 5 (1) (a) of the Central Civil Services ( Temporary Service) Rules, 1965.
### Response:
1
### Explanation:
This is a contention which cannot be rejected out of hand, However, this aspect of the matter does not appear to have been investigated in the High Court. But if the parties are agreed on the point, as they seemed to be, that the definition of appointing authority in Rule 2 (a) of the Central Civil Services ( Classification, Control and Appeal) Rules, 1965 would apply to this case, there should be no doubt that Shri G. K. Moghe, assuming he was empowered to appoint the appellant, was not the appointing authority, the Director General, Geological Survey of India, who in fact appointed the appellant being the higher authority. We do not see how the provisions of Rule 9 (2) are repugnant to the definition of appointing authority in Rule 2 (a), as the Division Bench of the High Court appears to have thought. Rule 2 (a) refers to the authorities who have the power to appoint as also the authorities who did appoint a Government servant and provides that whichever authority is the highest authority among them would be the appointing authority in relation to the Government servant concerned. The definition plainly takes note of Rule 9 (2) and no question can therefore arise that Rule 9 (2) is repugnant to the definition of appointing authority in Rule 2 (a).7. This should be enough to dispose of the appeal. However, despite the agreement among the parties on the point, it is possible to entertain some doubt as to whether the definition in Rule 2 (a) would apply to this case. The Central Civil Services (Temporary Service) Rules, 1965 which govern the appellants case also define appointing authority.This definition refers to the definition of appointing authority in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 only for one class of posts called the specified posts. It might be reasonably argued that this indicated that the definition in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 was not available for temporary Government servants not holding specified posts. In the absence of definition of appointing authority in Central Civil Services (Temporary Service) Rules, 1965 in relation to a temporary Government servant not holding a specified post, as the appellant was, we think the term appointing authority must be understood in its plain and real meaning, namely, the authority which appointed him. From this point of view also the impugned notice of termination was given by an authority which was not the appointing authority, and as such did not satisfy the requirement of Rule 5 (1) (a) of the Central Civil Services ( Temporary Service) Rules, 1965.
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Svenska Handelsbanken Vs. Messrs Indian Charge Chrome and Others | to the plaintiff; and that if the letter of credit was drawn up or negotiated plaintiff might be forced into bankruptcy. 82. It will again be noticed that in this case the dispute was between the supplier and the purchaser and the decision is based on the facts found by the court for grant of preliminary injunction. 83. Halsbury Fourth Edition Volume 9, para 542 observes as follows :- "542. Conditions and warranties. The predominant modern approach is to consider the nature of the terms of the contract in order to decide whether those terms are conditions or warranties. Prima facie a breach of condition entitles the innocent party to rescind the contract and claim damages for any loss he may have suffered, whereas a breach of warranty only entitles him to damages." * 84. Section 12 of the Sale of Goods Act, 1930 provides the difference between condition and warranty and reads as follows:- "12. Condition and warranty.- (i) A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition ora warranty.(2) A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated.(3) A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated.(4) Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract". 85. Again Section 13 of the Sale of Goods Act provides when condition to be treated as warranty, relevant part of sub-sections (1) & (2) thereof reads as under: "13. When condition to be treated as warranty.- (1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition or elect to treat the breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated.(2) Where a contract of sale is not severable and the buyer has accepted the goods or part thereof, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty and not as a ground for rejecting the goods and treating the contract as repudiated, unless there is a term of the contract, express or implied, to that effect." * 86. It will be noticed that in the present case prima facie the provision for capacity of the power plant being of 108 M. W. was a condition. Therefore, the plaintiff could have repudiated the contract as provided in S. 12(2) of the Sale of Goods Act or treated as a warranty by waiving the condition or elect to treat the breach of the condition as a breach of warranty and not as a ground for treating @page-SC647 the contract as repudiated. 87. In the present case the plaintiff has not repudiated the contract. In fact it is working with the power plant and, therefore, the breach of condition has been treated by the plaintiff as a breach of warranty and in view of S. 12(3) of the Sale of Goods Act, the breach of warranty gives a right to claim for damages but not to a right to reject the goods and treat the contract as repudiated. Even the prayer in the plaint is for diminution of the price of the power plant and the relief is based on S. 59 of the Sale of Goods Act. 88. We have already held that the contracts between the lenders and the borrower are not vitiated by any fraud much less established fraud and there is no question of irretrievable injury. Therefore, there was no reason for the High Court to set aside the order of the trial court. 89. Again there is no case of any irretrievable injury either of the type as held in the case of Itek Corporation (566 Federal Suppl. 1210) (supra) as there is no difficulty in the judgment of this country being executable in the courts in Sweden. 90. The High Court was not right in working on mere suspicion of fraud or merely going by the allegations in the plaint without prima facie case of fraud being spelt out from the material on record. 91. The High Court was also in error in considering the question of balance of convenience. In law relating to bank guarantees, a party seeking injunction from encashing of bank guarantee by the suppliers has to show prima facie case of established fraud and an irretrievable injury. Irretrievable injury is of the nature as noticed in the case of Itek Corporation (566 Federal Supplement 1210) (supra). Here there is no such problem. Once the plaintiff is able to establish fraud against the suppliers or suppliers-cum-lenders and obtains any decree for damages or diminution in price, there is no problem for affecting recoveries in a friendly country where the bankers and the suppliers are located. Nothing has been pointed out to show that the decree passed by the Indian courts could not be executable in Sweden. 92. The High Court totally ignored the irretrievable injury which will be caused to defendant No. 12 in not honouring the bank guarantee in international market which may cause grievous and irretrievable damage to the interest of the country as opposed to the loss of money to the borrower / plaintiff. There was no question of defendant No.4 not making any demand. The instalments for repayment of the loans had already been fixed and liable to be paid without demand by defendant No.4. Defendant No. 12 is under a duty to pay the instalments regularly on a fixed date without any demand to defendant No.4. 93. | 1[ds]It will be noticed that in the present case prima facie the provision for capacity of the power plant being of 108 M. W. was a condition. Therefore, the plaintiff could have repudiated the contract as provided in S. 12(2) of the Sale of Goods Act or treated as a warranty by waiving the condition or elect to treat the breach of the condition as a breach of warranty and not as a ground for treatingthe contract as repudiated.In the present case the plaintiff has not repudiated the contract. In fact it is working with the power plant and, therefore, the breach of condition has been treated by the plaintiff as a breach of warranty and in view of S. 12(3) of the Sale of Goods Act, the breach of warranty gives a right to claim for damages but not to a right to reject the goods and treatthe contract as repudiated.Even the prayer in the plaint is for diminution of the price of the power plant and the relief is based on S. 59 of the Sale of Goods Act.We have already held that the contracts between the lenders and the borrower are not vitiated by any fraud much less established fraud and there is no question of irretrievable injury. Therefore, there was no reason for the High Court to set aside the order of the trial court.Again there is no case of any irretrievable injury either of the type as held in the case of Itek Corporation (566 Federal Suppl. 1210) (supra) as there is no difficulty in the judgment of this country being executable in the courts in Sweden.The High Court was not right in working on mere suspicion of fraud or merely going by the allegations in the plaint without prima facie case of fraud being spelt out from the material on record.The High Court was also in error in considering the question of balance of convenience. In law relating to bank guarantees, a party seeking injunction from encashing of bank guarantee by the suppliers has to show prima facie case of established fraud and an irretrievable injury. Irretrievable injury is of the nature as noticed in the case of Itek Corporation (566 Federal Supplement 1210) (supra). Here there is no such problem. Once the plaintiff is able to establish fraud against the suppliers orand obtains any decree for damages or diminution in price, there is no problem for affecting recoveries in a friendly country where the bankers and the suppliers are located. Nothing has been pointed out to show that the decree passed by the Indian courts could not be executable in Sweden.The High Court totally ignored the irretrievable injury which will be caused to defendant No. 12 in not honouring the bank guarantee in international market which may cause grievous and irretrievable damage to the interest of the country as opposed to the loss of money to the borrower / plaintiff. There was no question of defendant No.4 not making any demand. The instalments for repayment of the loans had already been fixed and liable to be paid without demand by defendant No.4. Defendant No. 12 is under a duty to pay the instalments regularly on a fixed date without any demand to defendant No.4. | 1 | 15,965 | 581 | ### 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:
to the plaintiff; and that if the letter of credit was drawn up or negotiated plaintiff might be forced into bankruptcy. 82. It will again be noticed that in this case the dispute was between the supplier and the purchaser and the decision is based on the facts found by the court for grant of preliminary injunction. 83. Halsbury Fourth Edition Volume 9, para 542 observes as follows :- "542. Conditions and warranties. The predominant modern approach is to consider the nature of the terms of the contract in order to decide whether those terms are conditions or warranties. Prima facie a breach of condition entitles the innocent party to rescind the contract and claim damages for any loss he may have suffered, whereas a breach of warranty only entitles him to damages." * 84. Section 12 of the Sale of Goods Act, 1930 provides the difference between condition and warranty and reads as follows:- "12. Condition and warranty.- (i) A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition ora warranty.(2) A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated.(3) A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated.(4) Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract". 85. Again Section 13 of the Sale of Goods Act provides when condition to be treated as warranty, relevant part of sub-sections (1) & (2) thereof reads as under: "13. When condition to be treated as warranty.- (1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition or elect to treat the breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated.(2) Where a contract of sale is not severable and the buyer has accepted the goods or part thereof, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty and not as a ground for rejecting the goods and treating the contract as repudiated, unless there is a term of the contract, express or implied, to that effect." * 86. It will be noticed that in the present case prima facie the provision for capacity of the power plant being of 108 M. W. was a condition. Therefore, the plaintiff could have repudiated the contract as provided in S. 12(2) of the Sale of Goods Act or treated as a warranty by waiving the condition or elect to treat the breach of the condition as a breach of warranty and not as a ground for treating @page-SC647 the contract as repudiated. 87. In the present case the plaintiff has not repudiated the contract. In fact it is working with the power plant and, therefore, the breach of condition has been treated by the plaintiff as a breach of warranty and in view of S. 12(3) of the Sale of Goods Act, the breach of warranty gives a right to claim for damages but not to a right to reject the goods and treat the contract as repudiated. Even the prayer in the plaint is for diminution of the price of the power plant and the relief is based on S. 59 of the Sale of Goods Act. 88. We have already held that the contracts between the lenders and the borrower are not vitiated by any fraud much less established fraud and there is no question of irretrievable injury. Therefore, there was no reason for the High Court to set aside the order of the trial court. 89. Again there is no case of any irretrievable injury either of the type as held in the case of Itek Corporation (566 Federal Suppl. 1210) (supra) as there is no difficulty in the judgment of this country being executable in the courts in Sweden. 90. The High Court was not right in working on mere suspicion of fraud or merely going by the allegations in the plaint without prima facie case of fraud being spelt out from the material on record. 91. The High Court was also in error in considering the question of balance of convenience. In law relating to bank guarantees, a party seeking injunction from encashing of bank guarantee by the suppliers has to show prima facie case of established fraud and an irretrievable injury. Irretrievable injury is of the nature as noticed in the case of Itek Corporation (566 Federal Supplement 1210) (supra). Here there is no such problem. Once the plaintiff is able to establish fraud against the suppliers or suppliers-cum-lenders and obtains any decree for damages or diminution in price, there is no problem for affecting recoveries in a friendly country where the bankers and the suppliers are located. Nothing has been pointed out to show that the decree passed by the Indian courts could not be executable in Sweden. 92. The High Court totally ignored the irretrievable injury which will be caused to defendant No. 12 in not honouring the bank guarantee in international market which may cause grievous and irretrievable damage to the interest of the country as opposed to the loss of money to the borrower / plaintiff. There was no question of defendant No.4 not making any demand. The instalments for repayment of the loans had already been fixed and liable to be paid without demand by defendant No.4. Defendant No. 12 is under a duty to pay the instalments regularly on a fixed date without any demand to defendant No.4. 93.
### Response:
1
### Explanation:
It will be noticed that in the present case prima facie the provision for capacity of the power plant being of 108 M. W. was a condition. Therefore, the plaintiff could have repudiated the contract as provided in S. 12(2) of the Sale of Goods Act or treated as a warranty by waiving the condition or elect to treat the breach of the condition as a breach of warranty and not as a ground for treatingthe contract as repudiated.In the present case the plaintiff has not repudiated the contract. In fact it is working with the power plant and, therefore, the breach of condition has been treated by the plaintiff as a breach of warranty and in view of S. 12(3) of the Sale of Goods Act, the breach of warranty gives a right to claim for damages but not to a right to reject the goods and treatthe contract as repudiated.Even the prayer in the plaint is for diminution of the price of the power plant and the relief is based on S. 59 of the Sale of Goods Act.We have already held that the contracts between the lenders and the borrower are not vitiated by any fraud much less established fraud and there is no question of irretrievable injury. Therefore, there was no reason for the High Court to set aside the order of the trial court.Again there is no case of any irretrievable injury either of the type as held in the case of Itek Corporation (566 Federal Suppl. 1210) (supra) as there is no difficulty in the judgment of this country being executable in the courts in Sweden.The High Court was not right in working on mere suspicion of fraud or merely going by the allegations in the plaint without prima facie case of fraud being spelt out from the material on record.The High Court was also in error in considering the question of balance of convenience. In law relating to bank guarantees, a party seeking injunction from encashing of bank guarantee by the suppliers has to show prima facie case of established fraud and an irretrievable injury. Irretrievable injury is of the nature as noticed in the case of Itek Corporation (566 Federal Supplement 1210) (supra). Here there is no such problem. Once the plaintiff is able to establish fraud against the suppliers orand obtains any decree for damages or diminution in price, there is no problem for affecting recoveries in a friendly country where the bankers and the suppliers are located. Nothing has been pointed out to show that the decree passed by the Indian courts could not be executable in Sweden.The High Court totally ignored the irretrievable injury which will be caused to defendant No. 12 in not honouring the bank guarantee in international market which may cause grievous and irretrievable damage to the interest of the country as opposed to the loss of money to the borrower / plaintiff. There was no question of defendant No.4 not making any demand. The instalments for repayment of the loans had already been fixed and liable to be paid without demand by defendant No.4. Defendant No. 12 is under a duty to pay the instalments regularly on a fixed date without any demand to defendant No.4.
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RAJENDRA K. BHUTTA Vs. MAHARASHTRA HOUSING AND AREA DEVELOPMENT AUTHORITY AND ANOTHER | for building repairs or for reconstruction of buildings or for housing and rehabilitation of, dishoused occupiers, whether provided by this Act or not, and the Board shall thereupon undertake the framing and execution of such schemes as if it had been provided for by this Act. (2) The Board may, on such terms and conditions as may be agreed upon and with the previous approval of the Authority- (a) hand over the execution under its own supervision of any building repairs scheme, building reconstruction scheme, or dishoused occupiers housing scheme to a Municipal Corporation or to a co-operative society or to any other agency recognized for the purpose by the Board, as it may deem necessary, and (b) transfer by sale, exchange or otherwise in any manner whatsoever any new building constructed on any land acquired under this Chapter to any cooperative society, if it is formed by all the occupiers, or to apartment owners for the purposes of the Maharashtra Apartment Ownership Act, 1970 (the apartment owners being all such occupiers). 16. There is no doubt whatsoever that important functions relating to repairs and re-construction of dilapidated buildings are given to MHADA. Equally, there is no doubt that in a given set of circumstances, the Board may, on such terms and conditions as may be agreed upon, and with the previous approval of the Authority, handover execution of any housing scheme under its own supervision. However, when it comes to any clash between the MHADA Act and the Insolvency Code, on the plain terms of Section 238 of the Insolvency Code, the Code must prevail. This is for the very good reason that when a moratorium is spoken of by Section 14 of the Code, the idea is that, to alleviate corporate sickness, a statutory status quo is pronounced under Section 14 the moment a petition is admitted under Section 7 of the Code, so that the insolvency resolution process may proceed unhindered by any of the obstacles that would otherwise be caused and that are dealt with by Section 14. The statutory freeze that has thus been made is, unlike its predecessor in the SICA, 1985 only a limited one, which is expressly limited by Section 31(3) of the Code, to the date of admission of an insolvency petition up to the date that the Adjudicating Authority either allows a resolution plan to come into effect or states that the corporate debtor must go into the liquidation. For this temporary period, at least, all the things referred to under Section 14 must be strictly observed so that the corporate debtor may finally be put back on its feet albeit with a new management. 17. My learned brother S. Ravindra Bhat, J.s judgment in Municipal Corporation of Greater Mumbai (supra), which has been strongly relied upon by Mr. Dave and Mr. Patil, dealt with an entirely different fact situation, as is clear from paragraphs 32 and 33 of the said judgment, which are set out herein below: 32. A cumulative reading of the stipulations reveals that the contract/agreement contemplates that the lease deed was to be executed after the completion of the project. The contract reveals that (a) the project period was for 60 months starting from the date excluding the monsoon period; (b) by Clauses 5 and 17, SevenHills could mortgage the property for securing advances from financial institutions for the construction of the project and thereafter towards its working. Such mortgage/charge or interest was subject to approval by MCGM. In the event the contract was to be terminated, it was agreed that MCGM would not in any manner be liable towards the mortgaged amount and all its rights and ownership would continue to vest in it free from encumbrances (Clause 17). 33. The show cause notice in this case preceded admission of the insolvency resolution process. In view of the clear conditions stipulated in the contract, MCGM reserved all its rights and its properties could not have therefore, in any manner, been affected by the resolution plan. Equally in the opinion of this Court, the adjudicating authority could not have approved the plan which implicates the assets of MCGM especially when SevenHills had not fulfilled its obligations under the contract. 18. The matter had come to this Court after the Adjudicating Authority had approved of a certain resolution plan, unlike in the facts of the present case, and what was clear, on the facts of that case, was that a show cause notice of the Municipal Corporation, which preceded admission of the insolvency resolution process, made it clear that assets of MCGM could not possibly be subsumed within a resolution plan without its approval/permission. It was in this context that this Court, in para 47 of the said judgment, stated that Section 238 of the Code cannot be read as overriding the MCGMs right - indeed its public duty - to control and regulate how its properties are to be dealt with. Properties was referred to in this judgment as referring to assets of the corporate debtor. We have seen how, in the facts of this case, we are not concerned with the assets of the corporate debtor, least of all the assets of MHADA. The limited question before us is as to whether Section 14(1)(d) of the Code will apply to statutorily freeze occupation that may have been handed over under a Joint Development Agreement. 19. Likewise, the recent judgment Sushil Kumar Agarwal (supra) deals with specific performance and whether a Development Agreement may be specifically performed. The ratio of that judgment appears to be that where Development Agreements create an interest in property, they may be specifically performed, but not otherwise. As we have pointed out herein above, it is clear that Section 14(1)(d) of the Insolvency & Bankruptcy Code, when it speaks about recovery of property occupied, does not refer to rights or interests created in property but only actual physical occupation of the property. For this reason also, this judgment is wholly distinguishable. | 1[ds]The aforesaid provisions of the Joint Development Agreement would show that, at the very least, a license is granted in favour of the developer to enter upon the land to demolish existing structures, construct and erect new structures, and allot to erstwhile tenants, tenements in such constructed structures in three categories – (1) the earlier tenants/licensees of structures that were demolished; (2) tenements to be allotted free of cost to MHADA; and (3) what is referred to as free sale component which the developers then sell and exploit to recover or recoup cost and make profit. It is wholly unnecessary for us to refer to any other clauses of the Joint Development Agreement. It is also not necessary for the purpose of this case to state as to whether an interest in property is or is not created by the said Joint Development Agreement7. A bare reading of Section 14(1)(d) of the Code would make it clear that it does not deal with any of the assets or legal right or beneficial interest in such assets of the corporate debtor. For this reason, any reference to Sections 18 and 36, as was made by the NCLT, becomes wholly unnecessary in deciding the scope of Section 14(1)(d), which stands on a separate footing. Under Section 14(1)(d) what is referred to is the recovery of any property. The property in this case consists of land, ad-measuring 47 acres, together with structures thereon that had to be demolished. Recovery would necessarily go with what was parted by the corporate debtor, and for this one has to go to the next expression contained in the said sub-section11. Regard being had to the aforesaid authorities, it is clear that when recovery of property is to be made by an owner under Section 14(1)(d), such recovery would be of property that is occupied by a corporate debtor15. The conspectus of the aforesaid judgments would show that the expression occupied by would mean or be synonymous with being in actual physical possession of or being actually used by, in contra-distinction to the expression possession, which would connote possession being either constructive or actual and which, in turn, would include legally being in possession, though factually not being in physical possession. Since it is clear that the Joint Development Agreement read with the Deed of Modification has granted a license to the developer (Corporate Debtor) to enter upon the property, with a view to do all the things that are mentioned in it, there can be no gain saying that after such entry, the property would be occupied by the developer. Indeed, this becomes clear from the termination notice dated 12.01.2018, issued by MHADA to the developer, in which it is stated:35. This is therefore to inform you that on the expiry of 30 days from the date of receipt of this notice, the Joint Development Agreement dated 10.04.2008 and Deed of Confirmation and Modification dated 03.11.2011 and Letter dated 18.01.2014 stands terminated and you will not be allowed to enter the property and your authority/license to enter the property or remain thereupon is terminated. MHADA thereupon will not allow you to do anything on or in relation to the property and MHADA shall take possession of all the structures standing at whatever stage they are situated at Goregaon (West) and bearing CTS No …16. There is no doubt whatsoever that important functions relating to repairs and re-construction of dilapidated buildings are given to MHADA. Equally, there is no doubt that in a given set of circumstances, the Board may, on such terms and conditions as may be agreed upon, and with the previous approval of the Authority, handover execution of any housing scheme under its own supervision. However, when it comes to any clash between the MHADA Act and the Insolvency Code, on the plain terms of Section 238 of the Insolvency Code, the Code must prevail. This is for the very good reason that when a moratorium is spoken of by Section 14 of the Code, the idea is that, to alleviate corporate sickness, a statutory status quo is pronounced under Section 14 the moment a petition is admitted under Section 7 of the Code, so that the insolvency resolution process may proceed unhindered by any of the obstacles that would otherwise be caused and that are dealt with by Section 14. The statutory freeze that has thus been made is, unlike its predecessor in the SICA, 1985 only a limited one, which is expressly limited by Section 31(3) of the Code, to the date of admission of an insolvency petition up to the date that the Adjudicating Authority either allows a resolution plan to come into effect or states that the corporate debtor must go into the liquidation. For this temporary period, at least, all the things referred to under Section 14 must be strictly observed so that the corporate debtor may finally be put back on its feet albeit with a new management17. My learned brother S. Ravindra Bhat, J.s judgment in Municipal Corporation of Greater Mumbai (supra), which has been strongly relied upon by Mr. Dave and Mr. Patil, dealt with an entirely different fact situation, as is clear from paragraphs 32 and 33 of the said judgment, which are set out herein below:32. A cumulative reading of the stipulations reveals that the contract/agreement contemplates that the lease deed was to be executed after the completion of the project. The contract reveals that (a) the project period was for 60 months starting from the date excluding the monsoon period; (b) by Clauses 5 and 17, SevenHills could mortgage the property for securing advances from financial institutions for the construction of the project and thereafter towards its working. Such mortgage/charge or interest was subject to approval by MCGM. In the event the contract was to be terminated, it was agreed that MCGM would not in any manner be liable towards the mortgaged amount and all its rights and ownership would continue to vest in it free from encumbrances (Clause 17)33. The show cause notice in this case preceded admission of the insolvency resolution process. In view of the clear conditions stipulated in the contract, MCGM reserved all its rights and its properties could not have therefore, in any manner, been affected by the resolution plan. Equally in the opinion of this Court, the adjudicating authority could not have approved the plan which implicates the assets of MCGM especially when SevenHills had not fulfilled its obligations under the contract18. The matter had come to this Court after the Adjudicating Authority had approved of a certain resolution plan, unlike in the facts of the present case, and what was clear, on the facts of that case, was that a show cause notice of the Municipal Corporation, which preceded admission of the insolvency resolution process, made it clear that assets of MCGM could not possibly be subsumed within a resolution plan without its approval/permission. It was in this context that this Court, in para 47 of the said judgment, stated that Section 238 of the Code cannot be read as overriding the MCGMs right - indeed its public duty - to control and regulate how its properties are to be dealt with. Properties was referred to in this judgment as referring to assets of the corporate debtor. We have seen how, in the facts of this case, we are not concerned with the assets of the corporate debtor, least of all the assets of MHADA. The limited question before us is as to whether Section 14(1)(d) of the Code will apply to statutorily freeze occupation that may have been handed over under a Joint Development Agreement19. Likewise, the recent judgment Sushil Kumar Agarwal (supra) deals with specific performance and whether a Development Agreement may be specifically performed. The ratio of that judgment appears to be that where Development Agreements create an interest in property, they may be specifically performed, but not otherwise. As we have pointed out herein above, it is clear that Section 14(1)(d) of the Insolvency & Bankruptcy Code, when it speaks about recovery of property occupied, does not refer to rights or interests created in property but only actual physical occupation of the property. For this reason also, this judgment is wholly distinguishable | 1 | 10,974 | 1,556 | ### Instruction:
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for building repairs or for reconstruction of buildings or for housing and rehabilitation of, dishoused occupiers, whether provided by this Act or not, and the Board shall thereupon undertake the framing and execution of such schemes as if it had been provided for by this Act. (2) The Board may, on such terms and conditions as may be agreed upon and with the previous approval of the Authority- (a) hand over the execution under its own supervision of any building repairs scheme, building reconstruction scheme, or dishoused occupiers housing scheme to a Municipal Corporation or to a co-operative society or to any other agency recognized for the purpose by the Board, as it may deem necessary, and (b) transfer by sale, exchange or otherwise in any manner whatsoever any new building constructed on any land acquired under this Chapter to any cooperative society, if it is formed by all the occupiers, or to apartment owners for the purposes of the Maharashtra Apartment Ownership Act, 1970 (the apartment owners being all such occupiers). 16. There is no doubt whatsoever that important functions relating to repairs and re-construction of dilapidated buildings are given to MHADA. Equally, there is no doubt that in a given set of circumstances, the Board may, on such terms and conditions as may be agreed upon, and with the previous approval of the Authority, handover execution of any housing scheme under its own supervision. However, when it comes to any clash between the MHADA Act and the Insolvency Code, on the plain terms of Section 238 of the Insolvency Code, the Code must prevail. This is for the very good reason that when a moratorium is spoken of by Section 14 of the Code, the idea is that, to alleviate corporate sickness, a statutory status quo is pronounced under Section 14 the moment a petition is admitted under Section 7 of the Code, so that the insolvency resolution process may proceed unhindered by any of the obstacles that would otherwise be caused and that are dealt with by Section 14. The statutory freeze that has thus been made is, unlike its predecessor in the SICA, 1985 only a limited one, which is expressly limited by Section 31(3) of the Code, to the date of admission of an insolvency petition up to the date that the Adjudicating Authority either allows a resolution plan to come into effect or states that the corporate debtor must go into the liquidation. For this temporary period, at least, all the things referred to under Section 14 must be strictly observed so that the corporate debtor may finally be put back on its feet albeit with a new management. 17. My learned brother S. Ravindra Bhat, J.s judgment in Municipal Corporation of Greater Mumbai (supra), which has been strongly relied upon by Mr. Dave and Mr. Patil, dealt with an entirely different fact situation, as is clear from paragraphs 32 and 33 of the said judgment, which are set out herein below: 32. A cumulative reading of the stipulations reveals that the contract/agreement contemplates that the lease deed was to be executed after the completion of the project. The contract reveals that (a) the project period was for 60 months starting from the date excluding the monsoon period; (b) by Clauses 5 and 17, SevenHills could mortgage the property for securing advances from financial institutions for the construction of the project and thereafter towards its working. Such mortgage/charge or interest was subject to approval by MCGM. In the event the contract was to be terminated, it was agreed that MCGM would not in any manner be liable towards the mortgaged amount and all its rights and ownership would continue to vest in it free from encumbrances (Clause 17). 33. The show cause notice in this case preceded admission of the insolvency resolution process. In view of the clear conditions stipulated in the contract, MCGM reserved all its rights and its properties could not have therefore, in any manner, been affected by the resolution plan. Equally in the opinion of this Court, the adjudicating authority could not have approved the plan which implicates the assets of MCGM especially when SevenHills had not fulfilled its obligations under the contract. 18. The matter had come to this Court after the Adjudicating Authority had approved of a certain resolution plan, unlike in the facts of the present case, and what was clear, on the facts of that case, was that a show cause notice of the Municipal Corporation, which preceded admission of the insolvency resolution process, made it clear that assets of MCGM could not possibly be subsumed within a resolution plan without its approval/permission. It was in this context that this Court, in para 47 of the said judgment, stated that Section 238 of the Code cannot be read as overriding the MCGMs right - indeed its public duty - to control and regulate how its properties are to be dealt with. Properties was referred to in this judgment as referring to assets of the corporate debtor. We have seen how, in the facts of this case, we are not concerned with the assets of the corporate debtor, least of all the assets of MHADA. The limited question before us is as to whether Section 14(1)(d) of the Code will apply to statutorily freeze occupation that may have been handed over under a Joint Development Agreement. 19. Likewise, the recent judgment Sushil Kumar Agarwal (supra) deals with specific performance and whether a Development Agreement may be specifically performed. The ratio of that judgment appears to be that where Development Agreements create an interest in property, they may be specifically performed, but not otherwise. As we have pointed out herein above, it is clear that Section 14(1)(d) of the Insolvency & Bankruptcy Code, when it speaks about recovery of property occupied, does not refer to rights or interests created in property but only actual physical occupation of the property. For this reason also, this judgment is wholly distinguishable.
### Response:
1
### Explanation:
Joint Development Agreement read with the Deed of Modification has granted a license to the developer (Corporate Debtor) to enter upon the property, with a view to do all the things that are mentioned in it, there can be no gain saying that after such entry, the property would be occupied by the developer. Indeed, this becomes clear from the termination notice dated 12.01.2018, issued by MHADA to the developer, in which it is stated:35. This is therefore to inform you that on the expiry of 30 days from the date of receipt of this notice, the Joint Development Agreement dated 10.04.2008 and Deed of Confirmation and Modification dated 03.11.2011 and Letter dated 18.01.2014 stands terminated and you will not be allowed to enter the property and your authority/license to enter the property or remain thereupon is terminated. MHADA thereupon will not allow you to do anything on or in relation to the property and MHADA shall take possession of all the structures standing at whatever stage they are situated at Goregaon (West) and bearing CTS No …16. There is no doubt whatsoever that important functions relating to repairs and re-construction of dilapidated buildings are given to MHADA. Equally, there is no doubt that in a given set of circumstances, the Board may, on such terms and conditions as may be agreed upon, and with the previous approval of the Authority, handover execution of any housing scheme under its own supervision. However, when it comes to any clash between the MHADA Act and the Insolvency Code, on the plain terms of Section 238 of the Insolvency Code, the Code must prevail. This is for the very good reason that when a moratorium is spoken of by Section 14 of the Code, the idea is that, to alleviate corporate sickness, a statutory status quo is pronounced under Section 14 the moment a petition is admitted under Section 7 of the Code, so that the insolvency resolution process may proceed unhindered by any of the obstacles that would otherwise be caused and that are dealt with by Section 14. The statutory freeze that has thus been made is, unlike its predecessor in the SICA, 1985 only a limited one, which is expressly limited by Section 31(3) of the Code, to the date of admission of an insolvency petition up to the date that the Adjudicating Authority either allows a resolution plan to come into effect or states that the corporate debtor must go into the liquidation. For this temporary period, at least, all the things referred to under Section 14 must be strictly observed so that the corporate debtor may finally be put back on its feet albeit with a new management17. My learned brother S. Ravindra Bhat, J.s judgment in Municipal Corporation of Greater Mumbai (supra), which has been strongly relied upon by Mr. Dave and Mr. Patil, dealt with an entirely different fact situation, as is clear from paragraphs 32 and 33 of the said judgment, which are set out herein below:32. A cumulative reading of the stipulations reveals that the contract/agreement contemplates that the lease deed was to be executed after the completion of the project. The contract reveals that (a) the project period was for 60 months starting from the date excluding the monsoon period; (b) by Clauses 5 and 17, SevenHills could mortgage the property for securing advances from financial institutions for the construction of the project and thereafter towards its working. Such mortgage/charge or interest was subject to approval by MCGM. In the event the contract was to be terminated, it was agreed that MCGM would not in any manner be liable towards the mortgaged amount and all its rights and ownership would continue to vest in it free from encumbrances (Clause 17)33. The show cause notice in this case preceded admission of the insolvency resolution process. In view of the clear conditions stipulated in the contract, MCGM reserved all its rights and its properties could not have therefore, in any manner, been affected by the resolution plan. Equally in the opinion of this Court, the adjudicating authority could not have approved the plan which implicates the assets of MCGM especially when SevenHills had not fulfilled its obligations under the contract18. The matter had come to this Court after the Adjudicating Authority had approved of a certain resolution plan, unlike in the facts of the present case, and what was clear, on the facts of that case, was that a show cause notice of the Municipal Corporation, which preceded admission of the insolvency resolution process, made it clear that assets of MCGM could not possibly be subsumed within a resolution plan without its approval/permission. It was in this context that this Court, in para 47 of the said judgment, stated that Section 238 of the Code cannot be read as overriding the MCGMs right - indeed its public duty - to control and regulate how its properties are to be dealt with. Properties was referred to in this judgment as referring to assets of the corporate debtor. We have seen how, in the facts of this case, we are not concerned with the assets of the corporate debtor, least of all the assets of MHADA. The limited question before us is as to whether Section 14(1)(d) of the Code will apply to statutorily freeze occupation that may have been handed over under a Joint Development Agreement19. Likewise, the recent judgment Sushil Kumar Agarwal (supra) deals with specific performance and whether a Development Agreement may be specifically performed. The ratio of that judgment appears to be that where Development Agreements create an interest in property, they may be specifically performed, but not otherwise. As we have pointed out herein above, it is clear that Section 14(1)(d) of the Insolvency & Bankruptcy Code, when it speaks about recovery of property occupied, does not refer to rights or interests created in property but only actual physical occupation of the property. For this reason also, this judgment is wholly distinguishable
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Soni Dineshbhai Manilal Vs. Jagjivan Mulchand Chokshi | on 29th April, 1995. However, an observation was made by the trial court that the ‘averments are fabricated with bad intention by the defendant and that the delay may be caused for recovery of decretal amount’. Another objection filed by the respondent was rejected by a very detailed order dated 31st January, 1996 not only taking into consideration the provisions of law but also the precedents operating in the field. Conduct of the parties had also been taken into consideration therein. The learned Judge also considered the nature of the objections raised, one of which, we may notice, is that the Commissioner was not an expert in accounts. It was pointed that no such objection was raised at the time of the appointment of the Commissioner. 17. Appellants’ principal grievance centers round the non-production of ‘ublak’ books which, as noticed hereinabove, had been dealt with in the earlier orders of the court. It was pointed out that the Commissioner had prepared a balance sheet inter alia on the basis of the purchase bills and the sales bills. 18. A civil revision application, as noticed hereinbefore, was filed against one of the orders, which was later withdrawn. It is accepted at the Bar that the other civil revision application was also withdrawn. 19. The High Court in its impugned judgment had taken the said facts into consideration. Order XXVI Rule 11 of the Code of Civil Procedure provides for appointment of a commissioner to examine or adjust accounts, if necessary. He is competent to decide all questions raised before him, taking into consideration all aspects of the matter. He is to assist the Court. A Commissioner’s report can be set aside only upon assignment of proper and sufficient reasons. In the event any defect in the conduct of enquiry by him is found out, the court may issue any further directions. A further enquiry can also be ordered. A report of the Commissioner is a part of the record. It is to be treated as evidence in the suit. 20. Rule 16 of Order XXVI of the Code of Civil Procedures provides for powers of the Commissioners which is in the following terms :- “16. Powers of Commissioners - Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment, -(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him ;(b) call for and examine documents and other things relevant to the subject of inquiry ;(c) at any reasonable time enter upon or into any land or building mentioned in the order.” 21. Appellants’ father was, therefore, entitled to raise all the contentions in regard to non-production of books of accounts and other maters. It was also permissible for him to examine witnesses in support of his case before the Commissioner. It may be true that any order passed can be questioned in the grounds taken in the appeal against the final orders, but such interlocutory orders are required to be challenged. Nothing has been shown before us that such interlocutory orders and particularly those which are referred to hereinbefore had specifically been challenged in the Memorandum of Appeal but the said interlocutory orders were not subjected to revision. What is essential is that they should not have been appealed against. If a revision has been filed which is a part of the appellate jurisdiction, although stricto sensu, doctrine of merger may not apply but Section 105 of the Code of Civil Procedure also would not apply in such cases. Each of those orders attained finality. It has been held in Shankar Ramchandra Abhyankar vs, Krishnaji Dattatreya Bapat : AIR 1970 SC 1 , that civil revision is a part of appellate jurisdiction. 22. As noticed hereinbefore, before the Court, objections to the report of the Commissioner had been taken. Several orders were passed. There is nothing on record to show that the appellant intended to adduce any evidence in support of his case. In fact he was permitted to do so. 23. It may be true that in view of Rule 1(u) of Order XVIII a second appeal was not maintainable but the scope of an appeal under Section 100 of the Code of Civil Procedure is narrower. If the appeal had been entertained upon hearing both the parties, this Court may not exercise its extra ordinary jurisdiction to set aside that order, as what matters most is to see whether substantial justice has been done to the parties and not the technicalities involved therein. 24. In a given case the appellate court in exercise of its inherent jurisdiction can convert one type of appeal to the other. Forum for preferring a second appeal as also an appeal under Order XVIII Rule 1(u) is the same, namely the High Court. As the scope of an appeal under Order XVIII Rule 1(u) is wider than a second appeal, the appellants on their own showing are not prejudiced in any manner, if the High Court proceeded to consider the question involved in the appeal in its impugned judgment. 25. Even substantial questions of law were framed and the same have been answered. We, however, although agree that technically a second appeal was not maintainable from one part of the judgment, keeping in view of the fact that the matter is pending for more than 40 years and in view of the nature of the dispute as also the quantum of amount involved, we are of the opinion that it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India. It is now well settled that this Court may decline to exercise its jurisdiction, although it would be lawful to do so. [See Management, Pandiyan Roadways Corporation Ltd. vs. N. Balakrishnan : 2007 (7) SCALE 758 ].26. In the above circumstances both | 0[ds]In a given case the appellate court in exercise of its inherent jurisdiction can convert one type of appeal to the other. Forum for preferring a second appeal as also an appeal under Order XVIII Rule 1(u) is the same, namely the High Court. As the scope of an appeal under Order XVIII Rule 1(u) is wider than a second appeal, the appellants on their own showing are not prejudiced in any manner, if the High Court proceeded to consider the question involved in the appeal in its impugnedsubstantial questions of law were framed and the same have been answered. We, however, although agree that technically a second appeal was not maintainable from one part of the judgment, keeping in view of the fact that the matter is pending for more than 40 years and in view of the nature of the dispute as also the quantum of amount involved, we are of the opinion that it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India. It is now well settled that this Court may decline to exercise its jurisdiction, although it would be lawful to do so. [See Management, Pandiyan Roadways Corporation Ltd. vs. N. Balakrishnan : 2007 (7) SCALE 758 ]. | 0 | 2,643 | 242 | ### Instruction:
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on 29th April, 1995. However, an observation was made by the trial court that the ‘averments are fabricated with bad intention by the defendant and that the delay may be caused for recovery of decretal amount’. Another objection filed by the respondent was rejected by a very detailed order dated 31st January, 1996 not only taking into consideration the provisions of law but also the precedents operating in the field. Conduct of the parties had also been taken into consideration therein. The learned Judge also considered the nature of the objections raised, one of which, we may notice, is that the Commissioner was not an expert in accounts. It was pointed that no such objection was raised at the time of the appointment of the Commissioner. 17. Appellants’ principal grievance centers round the non-production of ‘ublak’ books which, as noticed hereinabove, had been dealt with in the earlier orders of the court. It was pointed out that the Commissioner had prepared a balance sheet inter alia on the basis of the purchase bills and the sales bills. 18. A civil revision application, as noticed hereinbefore, was filed against one of the orders, which was later withdrawn. It is accepted at the Bar that the other civil revision application was also withdrawn. 19. The High Court in its impugned judgment had taken the said facts into consideration. Order XXVI Rule 11 of the Code of Civil Procedure provides for appointment of a commissioner to examine or adjust accounts, if necessary. He is competent to decide all questions raised before him, taking into consideration all aspects of the matter. He is to assist the Court. A Commissioner’s report can be set aside only upon assignment of proper and sufficient reasons. In the event any defect in the conduct of enquiry by him is found out, the court may issue any further directions. A further enquiry can also be ordered. A report of the Commissioner is a part of the record. It is to be treated as evidence in the suit. 20. Rule 16 of Order XXVI of the Code of Civil Procedures provides for powers of the Commissioners which is in the following terms :- “16. Powers of Commissioners - Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment, -(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him ;(b) call for and examine documents and other things relevant to the subject of inquiry ;(c) at any reasonable time enter upon or into any land or building mentioned in the order.” 21. Appellants’ father was, therefore, entitled to raise all the contentions in regard to non-production of books of accounts and other maters. It was also permissible for him to examine witnesses in support of his case before the Commissioner. It may be true that any order passed can be questioned in the grounds taken in the appeal against the final orders, but such interlocutory orders are required to be challenged. Nothing has been shown before us that such interlocutory orders and particularly those which are referred to hereinbefore had specifically been challenged in the Memorandum of Appeal but the said interlocutory orders were not subjected to revision. What is essential is that they should not have been appealed against. If a revision has been filed which is a part of the appellate jurisdiction, although stricto sensu, doctrine of merger may not apply but Section 105 of the Code of Civil Procedure also would not apply in such cases. Each of those orders attained finality. It has been held in Shankar Ramchandra Abhyankar vs, Krishnaji Dattatreya Bapat : AIR 1970 SC 1 , that civil revision is a part of appellate jurisdiction. 22. As noticed hereinbefore, before the Court, objections to the report of the Commissioner had been taken. Several orders were passed. There is nothing on record to show that the appellant intended to adduce any evidence in support of his case. In fact he was permitted to do so. 23. It may be true that in view of Rule 1(u) of Order XVIII a second appeal was not maintainable but the scope of an appeal under Section 100 of the Code of Civil Procedure is narrower. If the appeal had been entertained upon hearing both the parties, this Court may not exercise its extra ordinary jurisdiction to set aside that order, as what matters most is to see whether substantial justice has been done to the parties and not the technicalities involved therein. 24. In a given case the appellate court in exercise of its inherent jurisdiction can convert one type of appeal to the other. Forum for preferring a second appeal as also an appeal under Order XVIII Rule 1(u) is the same, namely the High Court. As the scope of an appeal under Order XVIII Rule 1(u) is wider than a second appeal, the appellants on their own showing are not prejudiced in any manner, if the High Court proceeded to consider the question involved in the appeal in its impugned judgment. 25. Even substantial questions of law were framed and the same have been answered. We, however, although agree that technically a second appeal was not maintainable from one part of the judgment, keeping in view of the fact that the matter is pending for more than 40 years and in view of the nature of the dispute as also the quantum of amount involved, we are of the opinion that it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India. It is now well settled that this Court may decline to exercise its jurisdiction, although it would be lawful to do so. [See Management, Pandiyan Roadways Corporation Ltd. vs. N. Balakrishnan : 2007 (7) SCALE 758 ].26. In the above circumstances both
### Response:
0
### Explanation:
In a given case the appellate court in exercise of its inherent jurisdiction can convert one type of appeal to the other. Forum for preferring a second appeal as also an appeal under Order XVIII Rule 1(u) is the same, namely the High Court. As the scope of an appeal under Order XVIII Rule 1(u) is wider than a second appeal, the appellants on their own showing are not prejudiced in any manner, if the High Court proceeded to consider the question involved in the appeal in its impugnedsubstantial questions of law were framed and the same have been answered. We, however, although agree that technically a second appeal was not maintainable from one part of the judgment, keeping in view of the fact that the matter is pending for more than 40 years and in view of the nature of the dispute as also the quantum of amount involved, we are of the opinion that it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India. It is now well settled that this Court may decline to exercise its jurisdiction, although it would be lawful to do so. [See Management, Pandiyan Roadways Corporation Ltd. vs. N. Balakrishnan : 2007 (7) SCALE 758 ].
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CHAIRMAN-CUM-MANAGING DIRECTOR FERTILIZER CORPORATION OF INDIA LTD. AND ANR Vs. RAJESH CHANDRA SHRIVASTAVA AND ORS | the calculation of payment of gratuity and ad hoc payment with interest. Hence, the appellant shall succeed 2 in this appeal. Accordingly, the appeal is allowed. It is needless to mention that the question raised by respondent no. 2 is kept open. 12. The Management filed a petition for review. It was dismissed on 13.08.2015. The curative petition was also dismissed on 03.03.2016. 13. Following the order passed by this Court in C.A.No.4258 of 2015 on 05.05.2015, in the case of Shri Kashi Prasad Tripathi, the High Court of Allahabad dismissed all the writ petitions filed in respect of the other employees. Therefore, challenging such orders in the case of other employees, the Management of the Fertiliser Corporation has come up with a batch of 98 appeals. The Hindustan Fertiliser Corporation has come up with one appeal that arises out of similar judgment of the Calcutta High Court. 14. Therefore, the short question that arises for consideration is as to whether the ad hoc monthly payment made by the Management pursuant to the interim orders passed by this Court on 18.08.2000, is liable to be treated as part of the wages within the sweep of the said expression under Section 2(s) of the Act, especially in the light of the order passed by this Court in the case of Shri Kashi Prasad Tripathi. 15. We have already extracted the order passed by this Court on 05.05.2015 in C.A.No.4258 of 2015 in the case of Shri Kashi Prasad Tripathi. The said order does not deal with this question. The said order has gone on the basis that the computation of the quantum of gratuity is exclusively within the domain of the authorities under the statute and that the High Court is not competent to interfere with the same. Therefore, the order passed in the case of Kashi Prasad Tripathi cannot be taken to have laid down any law to the effect that the ad hoc payment will form part of wages. The respondents, therefore, cannot really take advantage of the order passed in the case of Kashi Prasad Tripathi, merely on the ground that the very same question of law was raised by the Management in the civil appeal and thereafter in the petition for review and curative petition. At times, this Court refuses to go into the questions of law, when a single individual armed with an order in his favour from the High Court is pitted against the State. Whenever the State or instrumentalities of State come up with appeals challenging small benefits granted to individual litigants, this Court applies the test of proportionality to see whether the quantum of benefits granted to the individual concerned, justifies the examination of the question of law, at the cost of that little man from a far off place. The refusal of this Court to go into the question of law in such cases, cannot be treated as tantamounting to answering the question of law in a particular manner. Therefore, dehors order of this Court in Kashi Prasad Tripathi, we are obliged to deal with the question of law that arises in this batch. 16. Section 2(s) of the Act defines wages, as follows:- 2. Definitions.—In this Act, unless the context otherwise requires,— Xxx xxx xxx (s) wages means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employments and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance. 17. The definition of the expression is in 3 parts, the first part indicating the meaning of the expression, the second part indicating what is included therein and the third part indicating what is not included therein. In the first part of the definition, the emphasis is on what is earned by the employee in accordance with the terms and conditions of employment . 18. Irrespective of whether what was earned has been paid or remained payable, the same is included in the definition, provided it is in accordance with the terms and conditions of his employment. 19. Keeping in mind the above definition, if we go back to historical facts, it would be clear that the employees initiated the first round of litigation before various High Courts, for the grant of the benefit of revision of pay scales, way back in the year 1996, on the ground that the employees of other PSUs have been granted revision on par with the Government servants. It will thus be clear that what was claimed in the first round of litigation was not what was payable in accordance with the terms and conditions of employment. Therefore, this Court was clear in its interim order dated 18.08.2000 as to how the ad hoc payment ordered there under should be treated. Even in the final order, this Court made it clear that what was paid was only ad hoc. 20. It is a fundamental principle of law that a party who is in enjoyment of an interim order, is bound to lose the benefit of such interim order when the ultimate outcome of the case goes against him. Merely because of the fortuitous circumstance of the Voluntary Separation Scheme coming into effect before the transferred cases were finally dismissed by this Court by an order dated 25.04.2003, creating an illusion as though the last drawn pay included this ad hoc payment, it is not possible to go against the fundamental rule that the benefits of an interim order would automatically go when the party who secured it, failed in the final stage. 21. In The Straw Board Manufacturing Co. Ltd. vs. Its Workmen (1977) 2 SCC 329 this Court clarified the meaning of the expression wages under Section 2(s) of the very same enactment, as follows: We clarify that wages will mean and included basic wages and Dearness Allowance and nothing else. | 1[ds]15. We have already extracted the order passed by this Court on 05.05.2015 in C.A.No.4258 of 2015 in the case of Shri Kashi Prasad Tripathi. The said order does not deal with this question. The said order has gone on the basis that the computation of the quantum of gratuity is exclusively within the domain of the authorities under the statute and that the High Court is not competent to interfere with the same. Therefore, the order passed in the case of Kashi Prasad Tripathi cannot be taken to have laid down any law to the effect that the ad hoc payment will form part of wages. The respondents, therefore, cannot really take advantage of the order passed in the case of Kashi Prasad Tripathi, merely on the ground that the very same question of law was raised by the Management in the civil appeal and thereafter in the petition for review and curative petition. At times, this Court refuses to go into the questions of law, when a single individual armed with an order in his favour from the High Court is pitted against the State. Whenever the State or instrumentalities of State come up with appeals challenging small benefits granted to individual litigants, this Court applies the test of proportionality to see whether the quantum of benefits granted to the individual concerned, justifies the examination of the question of law, at the cost of that little man from a far off place. The refusal of this Court to go into the question of law in such cases, cannot be treated as tantamounting to answering the question of law in a particular manner. Therefore, dehors order of this Court in Kashi Prasad Tripathi, we are obliged to deal with the question of law that arises in this batch.19. Keeping in mind the above definition, if we go back to historical facts, it would be clear that the employees initiated the first round of litigation before various High Courts, for the grant of the benefit of revision of pay scales, way back in the year 1996, on the ground that the employees of other PSUs have been granted revision on par with the Government servants. It will thus be clear that what was claimed in the first round of litigation was not what was payable in accordance with the terms and conditions of employment. Therefore, this Court was clear in its interim order dated 18.08.2000 as to how the ad hoc payment ordered there under should be treated. Even in the final order, this Court made it clear that what was paid was only ad hoc.20. It is a fundamental principle of law that a party who is in enjoyment of an interim order, is bound to lose the benefit of such interim order when the ultimate outcome of the case goes against him. Merely because of the fortuitous circumstance of the Voluntary Separation Scheme coming into effect before the transferred cases were finally dismissed by this Court by an order dated 25.04.2003, creating an illusion as though the last drawn pay included this ad hoc payment, it is not possible to go against the fundamental rule that the benefits of an interim order would automatically go when the party who secured it, failed in the final stage.21. In The Straw Board Manufacturing Co. Ltd. vs. Its Workmen (1977) 2 SCC 329 this Court clarified the meaning of the expression wages under Section 2(s) of the very same enactment, as follows: We clarify that wages will mean and included basic wages and Dearness Allowance and nothing else. | 1 | 2,587 | 651 | ### Instruction:
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the calculation of payment of gratuity and ad hoc payment with interest. Hence, the appellant shall succeed 2 in this appeal. Accordingly, the appeal is allowed. It is needless to mention that the question raised by respondent no. 2 is kept open. 12. The Management filed a petition for review. It was dismissed on 13.08.2015. The curative petition was also dismissed on 03.03.2016. 13. Following the order passed by this Court in C.A.No.4258 of 2015 on 05.05.2015, in the case of Shri Kashi Prasad Tripathi, the High Court of Allahabad dismissed all the writ petitions filed in respect of the other employees. Therefore, challenging such orders in the case of other employees, the Management of the Fertiliser Corporation has come up with a batch of 98 appeals. The Hindustan Fertiliser Corporation has come up with one appeal that arises out of similar judgment of the Calcutta High Court. 14. Therefore, the short question that arises for consideration is as to whether the ad hoc monthly payment made by the Management pursuant to the interim orders passed by this Court on 18.08.2000, is liable to be treated as part of the wages within the sweep of the said expression under Section 2(s) of the Act, especially in the light of the order passed by this Court in the case of Shri Kashi Prasad Tripathi. 15. We have already extracted the order passed by this Court on 05.05.2015 in C.A.No.4258 of 2015 in the case of Shri Kashi Prasad Tripathi. The said order does not deal with this question. The said order has gone on the basis that the computation of the quantum of gratuity is exclusively within the domain of the authorities under the statute and that the High Court is not competent to interfere with the same. Therefore, the order passed in the case of Kashi Prasad Tripathi cannot be taken to have laid down any law to the effect that the ad hoc payment will form part of wages. The respondents, therefore, cannot really take advantage of the order passed in the case of Kashi Prasad Tripathi, merely on the ground that the very same question of law was raised by the Management in the civil appeal and thereafter in the petition for review and curative petition. At times, this Court refuses to go into the questions of law, when a single individual armed with an order in his favour from the High Court is pitted against the State. Whenever the State or instrumentalities of State come up with appeals challenging small benefits granted to individual litigants, this Court applies the test of proportionality to see whether the quantum of benefits granted to the individual concerned, justifies the examination of the question of law, at the cost of that little man from a far off place. The refusal of this Court to go into the question of law in such cases, cannot be treated as tantamounting to answering the question of law in a particular manner. Therefore, dehors order of this Court in Kashi Prasad Tripathi, we are obliged to deal with the question of law that arises in this batch. 16. Section 2(s) of the Act defines wages, as follows:- 2. Definitions.—In this Act, unless the context otherwise requires,— Xxx xxx xxx (s) wages means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employments and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance. 17. The definition of the expression is in 3 parts, the first part indicating the meaning of the expression, the second part indicating what is included therein and the third part indicating what is not included therein. In the first part of the definition, the emphasis is on what is earned by the employee in accordance with the terms and conditions of employment . 18. Irrespective of whether what was earned has been paid or remained payable, the same is included in the definition, provided it is in accordance with the terms and conditions of his employment. 19. Keeping in mind the above definition, if we go back to historical facts, it would be clear that the employees initiated the first round of litigation before various High Courts, for the grant of the benefit of revision of pay scales, way back in the year 1996, on the ground that the employees of other PSUs have been granted revision on par with the Government servants. It will thus be clear that what was claimed in the first round of litigation was not what was payable in accordance with the terms and conditions of employment. Therefore, this Court was clear in its interim order dated 18.08.2000 as to how the ad hoc payment ordered there under should be treated. Even in the final order, this Court made it clear that what was paid was only ad hoc. 20. It is a fundamental principle of law that a party who is in enjoyment of an interim order, is bound to lose the benefit of such interim order when the ultimate outcome of the case goes against him. Merely because of the fortuitous circumstance of the Voluntary Separation Scheme coming into effect before the transferred cases were finally dismissed by this Court by an order dated 25.04.2003, creating an illusion as though the last drawn pay included this ad hoc payment, it is not possible to go against the fundamental rule that the benefits of an interim order would automatically go when the party who secured it, failed in the final stage. 21. In The Straw Board Manufacturing Co. Ltd. vs. Its Workmen (1977) 2 SCC 329 this Court clarified the meaning of the expression wages under Section 2(s) of the very same enactment, as follows: We clarify that wages will mean and included basic wages and Dearness Allowance and nothing else.
### Response:
1
### Explanation:
15. We have already extracted the order passed by this Court on 05.05.2015 in C.A.No.4258 of 2015 in the case of Shri Kashi Prasad Tripathi. The said order does not deal with this question. The said order has gone on the basis that the computation of the quantum of gratuity is exclusively within the domain of the authorities under the statute and that the High Court is not competent to interfere with the same. Therefore, the order passed in the case of Kashi Prasad Tripathi cannot be taken to have laid down any law to the effect that the ad hoc payment will form part of wages. The respondents, therefore, cannot really take advantage of the order passed in the case of Kashi Prasad Tripathi, merely on the ground that the very same question of law was raised by the Management in the civil appeal and thereafter in the petition for review and curative petition. At times, this Court refuses to go into the questions of law, when a single individual armed with an order in his favour from the High Court is pitted against the State. Whenever the State or instrumentalities of State come up with appeals challenging small benefits granted to individual litigants, this Court applies the test of proportionality to see whether the quantum of benefits granted to the individual concerned, justifies the examination of the question of law, at the cost of that little man from a far off place. The refusal of this Court to go into the question of law in such cases, cannot be treated as tantamounting to answering the question of law in a particular manner. Therefore, dehors order of this Court in Kashi Prasad Tripathi, we are obliged to deal with the question of law that arises in this batch.19. Keeping in mind the above definition, if we go back to historical facts, it would be clear that the employees initiated the first round of litigation before various High Courts, for the grant of the benefit of revision of pay scales, way back in the year 1996, on the ground that the employees of other PSUs have been granted revision on par with the Government servants. It will thus be clear that what was claimed in the first round of litigation was not what was payable in accordance with the terms and conditions of employment. Therefore, this Court was clear in its interim order dated 18.08.2000 as to how the ad hoc payment ordered there under should be treated. Even in the final order, this Court made it clear that what was paid was only ad hoc.20. It is a fundamental principle of law that a party who is in enjoyment of an interim order, is bound to lose the benefit of such interim order when the ultimate outcome of the case goes against him. Merely because of the fortuitous circumstance of the Voluntary Separation Scheme coming into effect before the transferred cases were finally dismissed by this Court by an order dated 25.04.2003, creating an illusion as though the last drawn pay included this ad hoc payment, it is not possible to go against the fundamental rule that the benefits of an interim order would automatically go when the party who secured it, failed in the final stage.21. In The Straw Board Manufacturing Co. Ltd. vs. Its Workmen (1977) 2 SCC 329 this Court clarified the meaning of the expression wages under Section 2(s) of the very same enactment, as follows: We clarify that wages will mean and included basic wages and Dearness Allowance and nothing else.
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State of Gujarat Vs. Gujarat Revenue Tribunal and Others | a piece of such land not in any mans occupation but lying common.3. A devastated region."13. In the sequence in which the expression waste lands appears in the two relevant sections, it cannot but have its ordinary etymological meaning as given in the Shorter oxford Dictionary i.e.. land lying desolate or useless, without trees or grass or vegetation, not capable of any use. In Rajanand Bramha Shah v. State of Uttar Pradesh &Ors this Court, while discerning the meaning of waste and arable land in s. 17(4) Of the Land Acquisition Act, 1894, observed t hat the expression waste land as contrasted to arable land, would mean land which is unfit for cultivation and habitation, desolate and barren land with little or no vegetation thereon. To the same effect is the decision in Ishwarlal Girdharilal Joshi etc. v. State of Gujarat &Anr.:14. It is clear that these grass-lands on hilly tracts were not waste lands. They were productive lands in the sense that grass grew naturally and so they were not desolate, abandoned or barren waste lands with no vegetation. The expression waste lands in the context would be clearly, in the original sense of the term waste as meaning barren or desolate lands which are unfit for any use or which are worthless. That test is not clearly fulfilled.The appellants alternative contention raises, primarily, the question whether upon a proper construction of s. 6 these grass-lands on hilly tracts were uncultivated lands. That depends upon the terms of the section. The expression uncultivated lands in s. 6, must, in the context in which it appears, mean cultivable but not cultivated i.e. fit for cultivation, but allowed to lie fallow. It is uncultivable or unfit for cultivation.15. The Explanation below s. 6 has a two-fold function. The purpose of the Explanation first is to explain the meaning of the expression uncultivated lands in the substantive provision. It then seeks to curtail the effect of the section. It is a key f or ascertaining the meaning of the expression uncultivated lands. Without the Explanation, any land lying uncultivated, on the date of the vesting, even for a year. i.e., allowed to lie fallow according to the normal agricultural practice, would vest in the Government. But then the Explanation steps in and seeks to mitigate the rigour. It says that the land allowed to lie fallow continuously for a period of three years, shall alone be deemed to be uncultivated land, meaning thereby that a piece of land allowed to lie fallow, intermittently, for a period of less than three years will not be deemed uncultivated lands.16. In that view of the matter, the grass-lands on hilly tracts which ere incapable of any cultivation could not, in law, be treated to be uncultivated lands within the meaning of s. 6, read with the Explanation thereto.17. There seems to be no doubt on the facts of the case that there were no such basic operations as tilling of the land, sowing or disseminating of seeds, and planting of grass. The subsequent operations i.e., operations performed after the grass grew on the land, e.g., the act of securing the income of this grass by engaging watchmen etc. to see that unauthorised pasturing by cattle brought on land or trespassing on it did not destroy the growing grass but that it grew to full stature so as to give a fair and full yield, or when operations for cutting off the grass used to commence, the act of tending the stubs so that they were not cut off but were allowed to remain intact so that the next year after the rains, the grass would grow naturally again, by themselves would not be tantamount to cultivation of the land.In our opinion, the High Court as well as the Revenue Tribunal were, therefore, right in holding that the disputed lands did not vest in tile government under s. of the Taluqdari Abolition Act and s. 7 of the Personal Inams Abolition Act.18. In reaching. that conclusion, we cannot but take into consideration the fact that the Acts make no provision whatever for payment of any compensation for the acquisition of the rights of the former taluqdars and inamdars in such lands. They are not entitled to any compensation either under s. 7(1)(b)(i) of the Taluqdari Abolition Act and s. 10.(1) (b) (i) of the Personal Inams Abolition Act. These provisions speak of the extinguishment of any right or interest in land which is waste or uncultivated but is culturable. The lands in question not being fit for cultivation, were not culturable and. therefore, they do not fall within the ambit of these provisions. If the contention of the appellant were to prevail, it would lead to an anomalous position. It would have the effect of taking these lands out of the purview of s. 14 of the Taluqdari Abolition Act and s. 17 of the Personal Inams Abolition Act, though such lands are not governed by s. 7(1)(b)(i) of the former Act and s. 10 (1)(i) of the latter Act. This would result in deprivation of property without payment of compensation.19. Our attention was drawn to the decision in Ambabai Janhavibai v. State of Maharashtra. (1) That judgment proceeds on the footing that there was a conflict between s. S and s. 7 of the Personal Inams Abolition Act. There is no basis for this assumption. Further, the observation that since it is admitted that no agricultural operations were carried out on the lands for the purpose of raising or growing grass on the lands, the contention that the lands on which grass grew naturally could not be said to be uncultivated, cannot be accepted, even though the inamdars were making use of these lands and were realising income by selling the grass which grew thereon, appears to proceed on a wrongful assumption that the sine qua non for the applicability of s. 5 was actual cultivation. This observation, in our view, cannot be supported.20. In | 0[ds]It is therefore, evident that the determination of the question whether a particular category of property belonging to a taluqdar in a taluqdari estate is vested in the Government or not, and the determination of the question whether the rights held by a taluqdar in such property shall be deemed to have been extinguished or not, will depend upon the category of that property. The expression all waste lands has been joined by conjunctive and with the expression all uncultivated lands. They, therefore, indicate two distinct types of lands. If the legislature had intended that the aforesaid expression should indicate one class of lands, the expression rather would have been all waste and uncultivated lands as against the expression all waste lands and all uncultivated lands" were we have, therefore, two distinct categories of properties viz. ( 1 ) waste lands, and (2) uncultivated lands. The contention that the grass-lands on hilly tracts which are incapable of cultivation were waste lands or uncultivated lands within the meaning of s. 6 cannot be accepted.Now, the expression waste lands has a well-defined legal connotation. It means lands which are desolate, abandoned, and not f it ordinarily for use buildinga fair reading of the section, it would be evident that the vesting is in respect of properties which could be put to public use. It leaves the private properties of the taluqdar untouched. The legislative intent is manifested by clear enumeration of certain specific properties not situate within the wantas of a taluqdar. It begins by specifying All public roads, lanes, paths, bridges, etc. and ends up with all village site lands, al l waste lands and all uncultivated lands. and these being public properties situate in a taluqdars estate must necessarily vest in the Government because they are meant for public use. In spite of vesting of such property in the Government, however, the conferral of the rights of an occupant on a taluqdar under s. 5(1)(b) in respect of the lands in his actual possession, isthere, it is fair to observe that the words in parenthesis excluding lands used for building or other non-agricultural purposes, exemplify the intention of the legislature not to deprive a taluqdar of such land, even though such property is uncultivated land, due to its inherent character as well as by reason of theis therefore, evident that the determination of the question whether a particular category of property belonging to a taluqdar in a taluqdari estate is vested in the Government or not, and the determination of the question whether the rights held by a taluqdar in such property shall be deemed to have been extinguished or not, will depend upon the category of that property. The expression all waste lands has been joined by conjunctive and with the expression all uncultivated lands. They, therefore, indicate two distinct types of lands. If the legislature had intended that the aforesaid expression should indicate one class of lands, the expression rather would have been all waste and uncultivated lands as against the expression all waste lands and all uncultivated lands" were we have, therefore, two distinct categories of properties viz. ( 1 ) waste lands, and (2) uncultivated lands. The contention that the grass-lands on hilly tracts which are incapable of cultivation were waste lands or uncultivated lands within the meaning of s. 6 cannot be accepted.Now, the expression waste lands has a well-defined legal connotation. It means lands which are desolate, abandoned, and not f it ordinarily for use buildingis clear that these grass-lands on hilly tracts were not waste lands. They were productive lands in the sense that grass grew naturally and so they were not desolate, abandoned or barren waste lands with no vegetation. The expression waste lands in the context would be clearly, in the original sense of the term waste as meaning barren or desolate lands which are unfit for any use or which are worthless. That test is not clearlyseems to be no doubt on the facts of the case that there were no such basic operations as tilling of the land, sowing or disseminating of seeds, and planting of grass. The subsequent operations i.e., operations performed after the grass grew on the land, e.g., the act of securing the income of this grass by engaging watchmen etc. to see that unauthorised pasturing by cattle brought on land or trespassing on it did not destroy the growing grass but that it grew to full stature so as to give a fair and full yield, or when operations for cutting off the grass used to commence, the act of tending the stubs so that they were not cut off but were allowed to remain intact so that the next year after the rains, the grass would grow naturally again, by themselves would not be tantamount to cultivation of the land.In our opinion, the High Court as well as the Revenue Tribunal were, therefore, right in holding that the disputed lands did not vest in tile government under s. of the Taluqdari Abolition Act and s. 7 of the Personal Inams Abolitionreaching. that conclusion, we cannot but take into consideration the fact that the Acts make no provision whatever for payment of any compensation for the acquisition of the rights of the former taluqdars and inamdars in such lands. They are not entitled to any compensation either under s. 7(1)(b)(i) of the Taluqdari Abolition Act and s. 10.(1) (b) (i) of the Personal Inams Abolition Act. These provisions speak of the extinguishment of any right or interest in land which is waste or uncultivated but is culturable. The lands in question not being fit for cultivation, were not culturable and. therefore, they do not fall within the ambit of these provisions. If the contention of the appellant were to prevail, it would lead to an anomalous position. It would have the effect of taking these lands out of the purview of s. 14 of the Taluqdari Abolition Act and s. 17 of the Personal Inams Abolition Act, though such lands are not governed by s. 7(1)(b)(i) of the former Act and s. 10 (1)(i) of the latter Act. This would result in deprivation of property without payment ofthe observation that since it is admitted that no agricultural operations were carried out on the lands for the purpose of raising or growing grass on the lands, the contention that the lands on which grass grew naturally could not be said to be uncultivated, cannot be accepted, even though the inamdars were making use of these lands and were realising income by selling the grass which grew thereon, appears to proceed on a wrongful assumption that the sine qua non for the applicability of s. 5 was actual cultivation. This observation, in our view, cannot be supported | 0 | 3,582 | 1,277 | ### Instruction:
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a piece of such land not in any mans occupation but lying common.3. A devastated region."13. In the sequence in which the expression waste lands appears in the two relevant sections, it cannot but have its ordinary etymological meaning as given in the Shorter oxford Dictionary i.e.. land lying desolate or useless, without trees or grass or vegetation, not capable of any use. In Rajanand Bramha Shah v. State of Uttar Pradesh &Ors this Court, while discerning the meaning of waste and arable land in s. 17(4) Of the Land Acquisition Act, 1894, observed t hat the expression waste land as contrasted to arable land, would mean land which is unfit for cultivation and habitation, desolate and barren land with little or no vegetation thereon. To the same effect is the decision in Ishwarlal Girdharilal Joshi etc. v. State of Gujarat &Anr.:14. It is clear that these grass-lands on hilly tracts were not waste lands. They were productive lands in the sense that grass grew naturally and so they were not desolate, abandoned or barren waste lands with no vegetation. The expression waste lands in the context would be clearly, in the original sense of the term waste as meaning barren or desolate lands which are unfit for any use or which are worthless. That test is not clearly fulfilled.The appellants alternative contention raises, primarily, the question whether upon a proper construction of s. 6 these grass-lands on hilly tracts were uncultivated lands. That depends upon the terms of the section. The expression uncultivated lands in s. 6, must, in the context in which it appears, mean cultivable but not cultivated i.e. fit for cultivation, but allowed to lie fallow. It is uncultivable or unfit for cultivation.15. The Explanation below s. 6 has a two-fold function. The purpose of the Explanation first is to explain the meaning of the expression uncultivated lands in the substantive provision. It then seeks to curtail the effect of the section. It is a key f or ascertaining the meaning of the expression uncultivated lands. Without the Explanation, any land lying uncultivated, on the date of the vesting, even for a year. i.e., allowed to lie fallow according to the normal agricultural practice, would vest in the Government. But then the Explanation steps in and seeks to mitigate the rigour. It says that the land allowed to lie fallow continuously for a period of three years, shall alone be deemed to be uncultivated land, meaning thereby that a piece of land allowed to lie fallow, intermittently, for a period of less than three years will not be deemed uncultivated lands.16. In that view of the matter, the grass-lands on hilly tracts which ere incapable of any cultivation could not, in law, be treated to be uncultivated lands within the meaning of s. 6, read with the Explanation thereto.17. There seems to be no doubt on the facts of the case that there were no such basic operations as tilling of the land, sowing or disseminating of seeds, and planting of grass. The subsequent operations i.e., operations performed after the grass grew on the land, e.g., the act of securing the income of this grass by engaging watchmen etc. to see that unauthorised pasturing by cattle brought on land or trespassing on it did not destroy the growing grass but that it grew to full stature so as to give a fair and full yield, or when operations for cutting off the grass used to commence, the act of tending the stubs so that they were not cut off but were allowed to remain intact so that the next year after the rains, the grass would grow naturally again, by themselves would not be tantamount to cultivation of the land.In our opinion, the High Court as well as the Revenue Tribunal were, therefore, right in holding that the disputed lands did not vest in tile government under s. of the Taluqdari Abolition Act and s. 7 of the Personal Inams Abolition Act.18. In reaching. that conclusion, we cannot but take into consideration the fact that the Acts make no provision whatever for payment of any compensation for the acquisition of the rights of the former taluqdars and inamdars in such lands. They are not entitled to any compensation either under s. 7(1)(b)(i) of the Taluqdari Abolition Act and s. 10.(1) (b) (i) of the Personal Inams Abolition Act. These provisions speak of the extinguishment of any right or interest in land which is waste or uncultivated but is culturable. The lands in question not being fit for cultivation, were not culturable and. therefore, they do not fall within the ambit of these provisions. If the contention of the appellant were to prevail, it would lead to an anomalous position. It would have the effect of taking these lands out of the purview of s. 14 of the Taluqdari Abolition Act and s. 17 of the Personal Inams Abolition Act, though such lands are not governed by s. 7(1)(b)(i) of the former Act and s. 10 (1)(i) of the latter Act. This would result in deprivation of property without payment of compensation.19. Our attention was drawn to the decision in Ambabai Janhavibai v. State of Maharashtra. (1) That judgment proceeds on the footing that there was a conflict between s. S and s. 7 of the Personal Inams Abolition Act. There is no basis for this assumption. Further, the observation that since it is admitted that no agricultural operations were carried out on the lands for the purpose of raising or growing grass on the lands, the contention that the lands on which grass grew naturally could not be said to be uncultivated, cannot be accepted, even though the inamdars were making use of these lands and were realising income by selling the grass which grew thereon, appears to proceed on a wrongful assumption that the sine qua non for the applicability of s. 5 was actual cultivation. This observation, in our view, cannot be supported.20. In
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0
### Explanation:
two distinct categories of properties viz. ( 1 ) waste lands, and (2) uncultivated lands. The contention that the grass-lands on hilly tracts which are incapable of cultivation were waste lands or uncultivated lands within the meaning of s. 6 cannot be accepted.Now, the expression waste lands has a well-defined legal connotation. It means lands which are desolate, abandoned, and not f it ordinarily for use buildinga fair reading of the section, it would be evident that the vesting is in respect of properties which could be put to public use. It leaves the private properties of the taluqdar untouched. The legislative intent is manifested by clear enumeration of certain specific properties not situate within the wantas of a taluqdar. It begins by specifying All public roads, lanes, paths, bridges, etc. and ends up with all village site lands, al l waste lands and all uncultivated lands. and these being public properties situate in a taluqdars estate must necessarily vest in the Government because they are meant for public use. In spite of vesting of such property in the Government, however, the conferral of the rights of an occupant on a taluqdar under s. 5(1)(b) in respect of the lands in his actual possession, isthere, it is fair to observe that the words in parenthesis excluding lands used for building or other non-agricultural purposes, exemplify the intention of the legislature not to deprive a taluqdar of such land, even though such property is uncultivated land, due to its inherent character as well as by reason of theis therefore, evident that the determination of the question whether a particular category of property belonging to a taluqdar in a taluqdari estate is vested in the Government or not, and the determination of the question whether the rights held by a taluqdar in such property shall be deemed to have been extinguished or not, will depend upon the category of that property. The expression all waste lands has been joined by conjunctive and with the expression all uncultivated lands. They, therefore, indicate two distinct types of lands. If the legislature had intended that the aforesaid expression should indicate one class of lands, the expression rather would have been all waste and uncultivated lands as against the expression all waste lands and all uncultivated lands" were we have, therefore, two distinct categories of properties viz. ( 1 ) waste lands, and (2) uncultivated lands. The contention that the grass-lands on hilly tracts which are incapable of cultivation were waste lands or uncultivated lands within the meaning of s. 6 cannot be accepted.Now, the expression waste lands has a well-defined legal connotation. It means lands which are desolate, abandoned, and not f it ordinarily for use buildingis clear that these grass-lands on hilly tracts were not waste lands. They were productive lands in the sense that grass grew naturally and so they were not desolate, abandoned or barren waste lands with no vegetation. The expression waste lands in the context would be clearly, in the original sense of the term waste as meaning barren or desolate lands which are unfit for any use or which are worthless. That test is not clearlyseems to be no doubt on the facts of the case that there were no such basic operations as tilling of the land, sowing or disseminating of seeds, and planting of grass. The subsequent operations i.e., operations performed after the grass grew on the land, e.g., the act of securing the income of this grass by engaging watchmen etc. to see that unauthorised pasturing by cattle brought on land or trespassing on it did not destroy the growing grass but that it grew to full stature so as to give a fair and full yield, or when operations for cutting off the grass used to commence, the act of tending the stubs so that they were not cut off but were allowed to remain intact so that the next year after the rains, the grass would grow naturally again, by themselves would not be tantamount to cultivation of the land.In our opinion, the High Court as well as the Revenue Tribunal were, therefore, right in holding that the disputed lands did not vest in tile government under s. of the Taluqdari Abolition Act and s. 7 of the Personal Inams Abolitionreaching. that conclusion, we cannot but take into consideration the fact that the Acts make no provision whatever for payment of any compensation for the acquisition of the rights of the former taluqdars and inamdars in such lands. They are not entitled to any compensation either under s. 7(1)(b)(i) of the Taluqdari Abolition Act and s. 10.(1) (b) (i) of the Personal Inams Abolition Act. These provisions speak of the extinguishment of any right or interest in land which is waste or uncultivated but is culturable. The lands in question not being fit for cultivation, were not culturable and. therefore, they do not fall within the ambit of these provisions. If the contention of the appellant were to prevail, it would lead to an anomalous position. It would have the effect of taking these lands out of the purview of s. 14 of the Taluqdari Abolition Act and s. 17 of the Personal Inams Abolition Act, though such lands are not governed by s. 7(1)(b)(i) of the former Act and s. 10 (1)(i) of the latter Act. This would result in deprivation of property without payment ofthe observation that since it is admitted that no agricultural operations were carried out on the lands for the purpose of raising or growing grass on the lands, the contention that the lands on which grass grew naturally could not be said to be uncultivated, cannot be accepted, even though the inamdars were making use of these lands and were realising income by selling the grass which grew thereon, appears to proceed on a wrongful assumption that the sine qua non for the applicability of s. 5 was actual cultivation. This observation, in our view, cannot be supported
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R. L. Narasimham Vs. Union Of India | retired after the enforcement of the 1954 Act but before its amendment in1958. However, for the purpose of pension he had elected to be governed by Part II of the First Schedule to the 1954 Act. He was accordingly paid pension to which he would have been entitled under the ordinary rules of I.C.S., if he had not been appointed a Judge, his servie as a Judge being treated as service therein for the purpose of calculating his pension, Shri Harish Chandra was also stated to be entitled to an additional pension according to the scale prescribed under Part II. It was also added in the counter-affidavit that even as an I.C.S. Officer Shri Harish Chandras pension should have been expressed under the relevant articles of the Civil Service Regulations in rupees as he wanted to draw his pension in India. He had, therefore, been wrongly sanctioned pension under a mistaken belief that he was entitled to his pension in sterling. In fact according to the counter- affidavit the pension cases of all these four Judges were under the consideration of the Government. These instances not being similar do not afford any assistance in the present case. Even the instance of Shri Harish Chandra is distinguishable. There is thus no question of any hostile discrimination and the plea on the basis of violation of Art. 14 of the Constitution being misconceived is unacceptable. Shri Narasimham retired in 1968, when the Parliament had by the 1954 Act already determined his right in respect of pension by converting the pounds sterling into rupees at the prevailing rate. He also elected to receive pension under Part I of the First Schedule of the 1954 Act and not under Part II.The use of the singular in the Proviso in Art. 231 (2) of the Constitution relied upon by Shri Narasimham is, in our opinion, of no particular significance. It does not change the plain meaning of the Proviso which, in our view, does not entitle the present Chief Justices to claim payment of pensions on conversion of the pound into rupees at the current rate of exchange prevailing at the time of payment.35. Shri Narasimham in his second set of written arguments has prayed for a further opportunity of addressing oral arguments. In our opinion, he has already had more than ample opportunity of stating and developing his arguments and there is no cogent ground for allowing him any further opportunity of oral address.36. Shri Desai has in his written arguments, it may incidentally be pointed out, claimed that pension, unlike salary, is earned at once, each instalment being only a part of the whole pension. On this basis he claimed that the 1954 Act gave him unfavourable terms by substituting unstable currency like the rupee for the more stable currency like the pound sterling. According to him the rate prevailing at the time when the pension was converted into rupees by the Parliament is also irrelevant as his pension had not fallen due to him at that time. The argument is without merit. Shri Desai retired in February, 1966 when the Parliament had already validly fixed his pension in rupees: he also elected to receive pension according to Part I of the First Schedule to the 1954 Act. He further got his pension commuted in July, 1966 at the rate determined under the 1954 Act after the devaluation of the rupee. In these circumstances it is difficult to appreciate what right he has now, to ask for pension being paid to him by converting pound sterling into rupees at the current rate of exchange. The bald assertion unsupported by any cogent material, that pound sterling is intrinsically a more stable currency than rupee, apart from being wholly unacceptable, has no relevance, when we find that pension expressed in sterling was validly converted into rupees by the Parliament for payment to the Chief Justice and Judges of the High Courts at a uniform rate.37. After the judgment was ready the office of this Court circulated to us copies of Shri Narasimhams application (C. M. P. No. 4457 of 1972 in his Writ Petition No. 630 of 1970) dated July 12, 1972 praying that in view of the changed circumstances, this Court may permit him to withdraw his writ petition and that the parties be directed to bear their own costs. The change in the circumstances necessitating the withdrawal of the writ petition has not been stated in the application.38. As all the three cases were heard together and on behalf of Shri Desai the arguments addressed in the other two cases were adopted by his counsel all the points of law raised in all the three cases have to be decided by this Court. It is accordingly not necessary to delete any part of the decision from the judgment. All that we need say is that Shri Narasimham is allowed to withdraw his writ petition and that the same is dismissed as withdrawn without any order as to costs.39. There is also another fact which requires notice. Shri B. Malik has after the judgment was ready, sent to us individually by registered post additional written arguments in his case (C.A. No. 2065 of 1970) with a covering letter dated July 7, 1972 stating that he had been informed that this Court had directed his appeal and other connected cases to be listed for further hearing after the re-opening of the Court and that this Court had also directed written arguments to be filed. We do not think that Shri Malik has been correctly informed. Sending arguments to the Judges by post also seems to us to be irregular and contrary to the practice and procedure of this Court. A proper application seeking permission to file additional arguments should have been filed in court in accordance with rules. However, as almost all the points raised in his fresh arguments have already been dealt with in the judgment we need say nothing more in this connection. | 1[ds]8. The principal distinction between C.A. No. 2065 of 1970 (Shri B. Malik v. Union of India and anr.) and the other two cases, as suggested at the bar, is that Shri B. Malik never belonged to the Indian Civil Service whereas Shri Narasimham and Shri Desai originally belonged to the Indian Civil Service and were appointed Judges of their respective High Courts as members of that service. The difference between these two categories of cases lies in the difference in the rules of service with regard to payment of pension governing the judges who came from the Indian Civil Service and those who never belonged to thatis not denied that Shri Malik who is not a member of the Indian Civil Service is to be paid his pension in accordance with the scale and provisions in Part I of the First Schedule as laid down by Section 14 of the 1954 Act. As regards Shri Desai also it is not disputed that he had on his retirement elected under the proviso to Section 15 to receive his pension under Part I of the First Schedule. All that he has pleaded in the rejoinder affidavit is that there was never any question of option between the 1937 Order and the 1954 Act. This plea ignores the fact that had he exercised his option to receive his pension under Part II he would have been entitled to invoke the ordinary rules of the Indian Civil Service applicable to him, had he not been appointed as Judge, and that his election to receive pension under Part I rules out all claim to pension in sterling. So far as these two Chief Justices are concerned it is hardly open to dispute that they have both to receive their pension under Part I. The claim made in the writ petition by Shri Desai that he was entitled to draw his pension at the Treasury in England in sterling is also in view of his election not easy to sustain and indeed no convincing argument was advanced in its support. It is only in the case of Shri Narasimhan that it was suggested that he had exercised his option without prejudice to his right to claim pension in pounds sterling under the 1937 Order to be converted into rupees, if that would be more favourable to him. Under the proviso to Section 15 as is clear he was required to elect to receive his pension either under Part I or under Part II. Part II of the First Schedule applies to a Judge who is a member of the Indian Civil Service and who has not elected to receive the pension payable under Part I. Under paragraph 2 of Part II pension payable to such a Judge is the pension to which he would be entitled under the ordinary rules of the Indian Civil Service if he had not been appointed a Judge, his service as a Judge being treated as service therein for calculating that pension, and to the additional pension, if any, to which he would be entitled under paragraph 3. It may be recalled that the original paragraph 3 as enacted in 1954 provided for a scale of additional pension for Judges completing not less than seven years of service, and that the amount was expressed in sterling. By the amending Act No. 46 of 1958 this scale in paragraph 3 was specified in rupees instead of sterling with retrospective effect. This amendment was effected long before Shri Narasimham retired. The vires of legality or this amendment was not questioned before us.20. It is true that in the absence of election by Shri Narasimham under Section 15 it was apparently not possible to calculate pension payable to him under the 1954 Act. It was, however, open to him, if he so desired, to elect to receive pension under Part II. Instead of so electing, he elected to receive pension under Part I without prejudice to his right to claim at superannuation payment of pension under the 1937 Order by converting sterling into rupees if that were more favourable to him. After the amendment of paragraph 3 of Part II of the First Schedule, even under that Part there is no question of calculating pension payable to retired Judges of the High Court in pounds sterling. Indeed, the 1954 Act, after its amendment marks the final break with the foreign currency in the matter of payment of pensions to the High Court Judges and the beginning of uniform treatment of all High Court Judges in the matter of payment of pension by providing for calculation and payment in Indian currency. The anomaly which was a relic of the British rule originally motivated by an apparent desire to bestow a special privilege and facility, carrying financial benefit, on British Judges serving in India was finally removed by this amendment. It is hardly necessary in this connection to emphasie the desirability of keeping our basic economic structure, so far as practicable, free from the direct effects of unpredictable fluctuations in the value of foreign currency. It was thus apparently with the intention of delinking the fixation of pension to the retired I. C. S. Judges of the High Court from the pound sterling-a foreign currency- that the Parliament in its wisdom decided to effect the necessary amendment in the 1954 Act, which removed the anomaly of paying pensions to a certain category of High Court Judges by first determining the amount of pension in a foreign currency and then converting that amount into Indian rupees for payment to them. It also eliminated the possibility of recurring variations, depending on the uncontrollable fluctuations in the value of pound sterling, in the amount of pensions payable to that category ofseems obvious that in 1948 the Government felt some difficulty in acting on the representation of the I. C. S. Association on such an important point as the removal of the anomaly of fixing in sterling the I. C. S. annuity but in due course after fuller deliberation when India ceased to be a Dominion and became a Sovereign Democratic Republic the suggestion made by the said Association itself was accepted and carried out on a permanent basis by inserting the necessary provision in the Constitution and later by enacting the 1954 Act so far as the High Court Judges are concerned. We need not refer to the changes effected in the relevant Civil Service Regulations. The extract of the letter produce by Shri Narasimham would thus seem to be wholly unhelpful to him27. The vires of Section 18 of the 1954 Act in so far as it empowers the Central Government to specify the rate of exchange for converting sterling into rupees was not questioned before us. There being, therefore, no right created by the 1937 Order or by any other statutory provision brought to our notice vesting in the three Chief Justices a right to get their pension converted from pound sterling into rupees at the prevailing market rate of exchange at the time of their retirement or of actual payment, we do not think they can have any legitimate grievance against the fixation of their pension in rupees on a permanent basis by the Parliament under the 1954 Act as amended, in accordance with the then prevailing rate. The amount of pension fixed by the 1954 Act as amended was indisputably not less favourable to the three Chief Justices and even on their own argument they had no grievance against it at that time. The fact that it was so fixed on a permanent basis by the Parliament does not violate any right vested in the three Chief Justices.This argument in face of the clear provisions of the other relevant sections and of the relevant parts of the First Schedule is, in our opinion, unacceptable for sustaining the claim of the three Chief Justices to get their pensions converted into rupees in accordance with the terms of the 1937 Order for payment to them. Section 18 may well have been retained for the benefit of those I.C.S. Judges whose right to pension was governed by the 1954 Act prior to its amendment by Act 46 of 1953. It is, however, unnecessary to express any considered opinion on thisrelationship of creditor and debtor, assuming it to exist in this case, could only arise after the pension became due and payable. After the enforcement of the 1954 Act as amended he could only become a creditor in terms of rupees and not in terms of pounds. This contention is, therefore, of no assistance to Shri Narasimham.31. This also fully answers the alternative plea that Shri Narsimham has in any event a money claim against the Government. The money claim in respect of pension also materialises only when it becomes due. No provision of statutory law or binding precedent was brought to our notice under which a claim under the 1937 Order could be kept alive so far as the three Chief Justices are concerned after the commencement of the Constitution and enforcement of the 1954 Act beyond the extent to which any such claim was actually preserved thereunder. As observed earlier, the Constitution and the 1954 Act only contemplate calculation and payment of pension inuse of the singular in the Proviso in Art. 231 (2) of the Constitution relied upon by Shri Narasimham is, in our opinion, of no particular significance. It does not change the plain meaning of the Proviso which, in our view, does not entitle the present Chief Justices to claim payment of pensions on conversion of the pound into rupees at the current rate of exchange prevailing at the time of payment.As all the three cases were heard together and on behalf of Shri Desai the arguments addressed in the other two cases were adopted by his counsel all the points of law raised in all the three cases have to be decided by this Court. It is accordingly not necessary to delete any part of the decision from the judgment. All that we need say is that Shri Narasimham is allowed to withdraw his writ petition and that the same is dismissed as withdrawn without any order as to costs.39. There is also another fact which requires notice. Shri B. Malik has after the judgment was ready, sent to us individually by registered post additional written arguments in his case (C.A. No. 2065 of 1970) with a covering letter dated July 7, 1972 stating that he had been informed that this Court had directed his appeal and other connected cases to be listed for further hearing after the re-opening of the Court and that this Court had also directed written arguments to be filed. We do not think that Shri Malik has been correctly informed. Sending arguments to the Judges by post also seems to us to be irregular and contrary to the practice and procedure of this Court. A proper application seeking permission to file additional arguments should have been filed in court in accordance with rules. However, as almost all the points raised in his fresh arguments have already been dealt with in the judgment we need say nothing more in this connection. | 1 | 11,541 | 1,984 | ### Instruction:
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retired after the enforcement of the 1954 Act but before its amendment in1958. However, for the purpose of pension he had elected to be governed by Part II of the First Schedule to the 1954 Act. He was accordingly paid pension to which he would have been entitled under the ordinary rules of I.C.S., if he had not been appointed a Judge, his servie as a Judge being treated as service therein for the purpose of calculating his pension, Shri Harish Chandra was also stated to be entitled to an additional pension according to the scale prescribed under Part II. It was also added in the counter-affidavit that even as an I.C.S. Officer Shri Harish Chandras pension should have been expressed under the relevant articles of the Civil Service Regulations in rupees as he wanted to draw his pension in India. He had, therefore, been wrongly sanctioned pension under a mistaken belief that he was entitled to his pension in sterling. In fact according to the counter- affidavit the pension cases of all these four Judges were under the consideration of the Government. These instances not being similar do not afford any assistance in the present case. Even the instance of Shri Harish Chandra is distinguishable. There is thus no question of any hostile discrimination and the plea on the basis of violation of Art. 14 of the Constitution being misconceived is unacceptable. Shri Narasimham retired in 1968, when the Parliament had by the 1954 Act already determined his right in respect of pension by converting the pounds sterling into rupees at the prevailing rate. He also elected to receive pension under Part I of the First Schedule of the 1954 Act and not under Part II.The use of the singular in the Proviso in Art. 231 (2) of the Constitution relied upon by Shri Narasimham is, in our opinion, of no particular significance. It does not change the plain meaning of the Proviso which, in our view, does not entitle the present Chief Justices to claim payment of pensions on conversion of the pound into rupees at the current rate of exchange prevailing at the time of payment.35. Shri Narasimham in his second set of written arguments has prayed for a further opportunity of addressing oral arguments. In our opinion, he has already had more than ample opportunity of stating and developing his arguments and there is no cogent ground for allowing him any further opportunity of oral address.36. Shri Desai has in his written arguments, it may incidentally be pointed out, claimed that pension, unlike salary, is earned at once, each instalment being only a part of the whole pension. On this basis he claimed that the 1954 Act gave him unfavourable terms by substituting unstable currency like the rupee for the more stable currency like the pound sterling. According to him the rate prevailing at the time when the pension was converted into rupees by the Parliament is also irrelevant as his pension had not fallen due to him at that time. The argument is without merit. Shri Desai retired in February, 1966 when the Parliament had already validly fixed his pension in rupees: he also elected to receive pension according to Part I of the First Schedule to the 1954 Act. He further got his pension commuted in July, 1966 at the rate determined under the 1954 Act after the devaluation of the rupee. In these circumstances it is difficult to appreciate what right he has now, to ask for pension being paid to him by converting pound sterling into rupees at the current rate of exchange. The bald assertion unsupported by any cogent material, that pound sterling is intrinsically a more stable currency than rupee, apart from being wholly unacceptable, has no relevance, when we find that pension expressed in sterling was validly converted into rupees by the Parliament for payment to the Chief Justice and Judges of the High Courts at a uniform rate.37. After the judgment was ready the office of this Court circulated to us copies of Shri Narasimhams application (C. M. P. No. 4457 of 1972 in his Writ Petition No. 630 of 1970) dated July 12, 1972 praying that in view of the changed circumstances, this Court may permit him to withdraw his writ petition and that the parties be directed to bear their own costs. The change in the circumstances necessitating the withdrawal of the writ petition has not been stated in the application.38. As all the three cases were heard together and on behalf of Shri Desai the arguments addressed in the other two cases were adopted by his counsel all the points of law raised in all the three cases have to be decided by this Court. It is accordingly not necessary to delete any part of the decision from the judgment. All that we need say is that Shri Narasimham is allowed to withdraw his writ petition and that the same is dismissed as withdrawn without any order as to costs.39. There is also another fact which requires notice. Shri B. Malik has after the judgment was ready, sent to us individually by registered post additional written arguments in his case (C.A. No. 2065 of 1970) with a covering letter dated July 7, 1972 stating that he had been informed that this Court had directed his appeal and other connected cases to be listed for further hearing after the re-opening of the Court and that this Court had also directed written arguments to be filed. We do not think that Shri Malik has been correctly informed. Sending arguments to the Judges by post also seems to us to be irregular and contrary to the practice and procedure of this Court. A proper application seeking permission to file additional arguments should have been filed in court in accordance with rules. However, as almost all the points raised in his fresh arguments have already been dealt with in the judgment we need say nothing more in this connection.
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Court from the pound sterling-a foreign currency- that the Parliament in its wisdom decided to effect the necessary amendment in the 1954 Act, which removed the anomaly of paying pensions to a certain category of High Court Judges by first determining the amount of pension in a foreign currency and then converting that amount into Indian rupees for payment to them. It also eliminated the possibility of recurring variations, depending on the uncontrollable fluctuations in the value of pound sterling, in the amount of pensions payable to that category ofseems obvious that in 1948 the Government felt some difficulty in acting on the representation of the I. C. S. Association on such an important point as the removal of the anomaly of fixing in sterling the I. C. S. annuity but in due course after fuller deliberation when India ceased to be a Dominion and became a Sovereign Democratic Republic the suggestion made by the said Association itself was accepted and carried out on a permanent basis by inserting the necessary provision in the Constitution and later by enacting the 1954 Act so far as the High Court Judges are concerned. We need not refer to the changes effected in the relevant Civil Service Regulations. The extract of the letter produce by Shri Narasimham would thus seem to be wholly unhelpful to him27. The vires of Section 18 of the 1954 Act in so far as it empowers the Central Government to specify the rate of exchange for converting sterling into rupees was not questioned before us. There being, therefore, no right created by the 1937 Order or by any other statutory provision brought to our notice vesting in the three Chief Justices a right to get their pension converted from pound sterling into rupees at the prevailing market rate of exchange at the time of their retirement or of actual payment, we do not think they can have any legitimate grievance against the fixation of their pension in rupees on a permanent basis by the Parliament under the 1954 Act as amended, in accordance with the then prevailing rate. The amount of pension fixed by the 1954 Act as amended was indisputably not less favourable to the three Chief Justices and even on their own argument they had no grievance against it at that time. The fact that it was so fixed on a permanent basis by the Parliament does not violate any right vested in the three Chief Justices.This argument in face of the clear provisions of the other relevant sections and of the relevant parts of the First Schedule is, in our opinion, unacceptable for sustaining the claim of the three Chief Justices to get their pensions converted into rupees in accordance with the terms of the 1937 Order for payment to them. Section 18 may well have been retained for the benefit of those I.C.S. Judges whose right to pension was governed by the 1954 Act prior to its amendment by Act 46 of 1953. It is, however, unnecessary to express any considered opinion on thisrelationship of creditor and debtor, assuming it to exist in this case, could only arise after the pension became due and payable. After the enforcement of the 1954 Act as amended he could only become a creditor in terms of rupees and not in terms of pounds. This contention is, therefore, of no assistance to Shri Narasimham.31. This also fully answers the alternative plea that Shri Narsimham has in any event a money claim against the Government. The money claim in respect of pension also materialises only when it becomes due. No provision of statutory law or binding precedent was brought to our notice under which a claim under the 1937 Order could be kept alive so far as the three Chief Justices are concerned after the commencement of the Constitution and enforcement of the 1954 Act beyond the extent to which any such claim was actually preserved thereunder. As observed earlier, the Constitution and the 1954 Act only contemplate calculation and payment of pension inuse of the singular in the Proviso in Art. 231 (2) of the Constitution relied upon by Shri Narasimham is, in our opinion, of no particular significance. It does not change the plain meaning of the Proviso which, in our view, does not entitle the present Chief Justices to claim payment of pensions on conversion of the pound into rupees at the current rate of exchange prevailing at the time of payment.As all the three cases were heard together and on behalf of Shri Desai the arguments addressed in the other two cases were adopted by his counsel all the points of law raised in all the three cases have to be decided by this Court. It is accordingly not necessary to delete any part of the decision from the judgment. All that we need say is that Shri Narasimham is allowed to withdraw his writ petition and that the same is dismissed as withdrawn without any order as to costs.39. There is also another fact which requires notice. Shri B. Malik has after the judgment was ready, sent to us individually by registered post additional written arguments in his case (C.A. No. 2065 of 1970) with a covering letter dated July 7, 1972 stating that he had been informed that this Court had directed his appeal and other connected cases to be listed for further hearing after the re-opening of the Court and that this Court had also directed written arguments to be filed. We do not think that Shri Malik has been correctly informed. Sending arguments to the Judges by post also seems to us to be irregular and contrary to the practice and procedure of this Court. A proper application seeking permission to file additional arguments should have been filed in court in accordance with rules. However, as almost all the points raised in his fresh arguments have already been dealt with in the judgment we need say nothing more in this connection.
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Anjani Singh & Others Vs. Salauddin & Others | V. Gopala Gowda, J. 1. This civil appeal is directed against the judgment and award dated 29th November, 2006 passed by the High Court of Punjab and Haryana at Chandigarh in FAO No.236 of 2001, wherein the High Court allowed the said appeal and enhanced the compensation by [pic]1,20,600/- and awarded interest at the rate of 6% per annum. The same is questioned by the appellants-claimants, on the ground that just and reasonable compensation was not awarded keeping in view the future prospects of income and further, correct multiplier method was not applied taking into consideration the age of the deceased at the time of death. Lastly, compensation under the conventional heads towards loss of love and affection towards the widow, children and parents of the deceased was also not awarded. Hence, this appeal was filed by the appellants seeking further enhancement of compensation. 2. The facts in brief are stated hereunder: On 17.09.1997 Sergeant Dalbir Singh, husband of appellant No. 1, father of appellant nos. 2 to 4 and son of appellant no. 5 died in a road accident. The accident took place at 10.15 p.m. on National Highway No. 28 between Air Force Station, Gorakhpur and Nandanagar Police Station, when the deceased was going on his bicycle and was hit by truck No. UP-41A/1901 coming from Gorakhpur side. The said truck was driven by Respondent No.1, owned by Respondent No.2 and insured by Respondent No.3, United India Insurance Company. On 24.11.1997, the appellant/claimants filed the Claim Petition No.217 of 1997 before the Motor Accident Claims Tribunal, Faridabad (in short the Tribunal) and claimed for [pic]15,00,000/- as compensation for loss to estate of the deceased. The Tribunal held that, the deceased Sergeant Dalbir Singh died because of the accident which took place due to rash and negligent driving of respondent No.1 and awarded the appellants [pic]2,49,600/- as compensation. The Tribunal determined the dependency of appellants as [pic]31,000/- per annum and applied the multiplier of 8 since the deceased suffered death at the age of 35 and the age of superannuation in the Air Force is 45-50 years. 3. Aggrieved by the judgment and order passed by the Tribunal, the appellants-claimants filed First Appeal No. 234 of 2011 before the High Court of Punjab and Haryana at Chandigarh on 12.7.2000. The High Court allowed the appeal and held that assessment of monthly income by the Tribunal as [pic] 4030/- is correct based on the examination of the salary certificate. The finding of the Tribunal leading to deduction of 1/3rd amount towards personal expenses was held to be erroneous. Hence, this finding was set aside and only 1/4th of the compensation was deducted towards personal expenses. The total dependency amount came up to [pic]3,62,700/- by applying a multiplier of 10 and [pic]2,500/- was awarded towards funeral expenses and [pic]5,000 towards loss of consortium for the widow of the deceased. In total, a compensation of [pic]3,70,200/- was awarded. Thus, the compensation was enhanced by [pic]1,20,600/-, which carried an interest of 6% per annum from the date of filing of the claim till the date of payment. 4. This Court, vide judgment dated 23rd July, 2009, granted leave, and referred the issue to a larger bench. This was in view of the divergence of opinion across judgments of this Court, and this aspect of the matter having not been considered in the earlier decisions, particularly in the absence of any clarification from Parliament despite recommendations made by this Court in U.P. State Road Transport Corporation & Ors. v. Trilok Chandra & Ors. [(1996) 4 SCC 362] , it was further directed to the Registry to place the matter before the Honble Chief Justice of India for an appropriate order to constitute a larger Bench to answer the points referred to it. Pursuant to the said order, the matter was placed before a larger Bench which answered the points of reference in favour of the appellants, in the decision reported in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65] The points answered read as under: 40. In what we have discussed above, we sum up our conclusions as follows: (i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in Sarla Verma read with para 42 of that judgment. (ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed. (iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act. (iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death. (v) While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the judgment in Sarla Verma. (vi) Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 38 above. (vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration. 5. | 1[ds]Pursuant to the said order, the matter was placed before a larger Bench which answered the points of reference in favour of the appellants, in the decision reported in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65] The points answered read as under:40. In what we have discussed above, we sum up our conclusions as follows:(i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in Sarla Verma read with para 42 of that judgment(ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed(iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act(iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death(v) While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the judgment in Sarla Verma(vi) Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 38 above(vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration. | 1 | 1,112 | 379 | ### 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:
V. Gopala Gowda, J. 1. This civil appeal is directed against the judgment and award dated 29th November, 2006 passed by the High Court of Punjab and Haryana at Chandigarh in FAO No.236 of 2001, wherein the High Court allowed the said appeal and enhanced the compensation by [pic]1,20,600/- and awarded interest at the rate of 6% per annum. The same is questioned by the appellants-claimants, on the ground that just and reasonable compensation was not awarded keeping in view the future prospects of income and further, correct multiplier method was not applied taking into consideration the age of the deceased at the time of death. Lastly, compensation under the conventional heads towards loss of love and affection towards the widow, children and parents of the deceased was also not awarded. Hence, this appeal was filed by the appellants seeking further enhancement of compensation. 2. The facts in brief are stated hereunder: On 17.09.1997 Sergeant Dalbir Singh, husband of appellant No. 1, father of appellant nos. 2 to 4 and son of appellant no. 5 died in a road accident. The accident took place at 10.15 p.m. on National Highway No. 28 between Air Force Station, Gorakhpur and Nandanagar Police Station, when the deceased was going on his bicycle and was hit by truck No. UP-41A/1901 coming from Gorakhpur side. The said truck was driven by Respondent No.1, owned by Respondent No.2 and insured by Respondent No.3, United India Insurance Company. On 24.11.1997, the appellant/claimants filed the Claim Petition No.217 of 1997 before the Motor Accident Claims Tribunal, Faridabad (in short the Tribunal) and claimed for [pic]15,00,000/- as compensation for loss to estate of the deceased. The Tribunal held that, the deceased Sergeant Dalbir Singh died because of the accident which took place due to rash and negligent driving of respondent No.1 and awarded the appellants [pic]2,49,600/- as compensation. The Tribunal determined the dependency of appellants as [pic]31,000/- per annum and applied the multiplier of 8 since the deceased suffered death at the age of 35 and the age of superannuation in the Air Force is 45-50 years. 3. Aggrieved by the judgment and order passed by the Tribunal, the appellants-claimants filed First Appeal No. 234 of 2011 before the High Court of Punjab and Haryana at Chandigarh on 12.7.2000. The High Court allowed the appeal and held that assessment of monthly income by the Tribunal as [pic] 4030/- is correct based on the examination of the salary certificate. The finding of the Tribunal leading to deduction of 1/3rd amount towards personal expenses was held to be erroneous. Hence, this finding was set aside and only 1/4th of the compensation was deducted towards personal expenses. The total dependency amount came up to [pic]3,62,700/- by applying a multiplier of 10 and [pic]2,500/- was awarded towards funeral expenses and [pic]5,000 towards loss of consortium for the widow of the deceased. In total, a compensation of [pic]3,70,200/- was awarded. Thus, the compensation was enhanced by [pic]1,20,600/-, which carried an interest of 6% per annum from the date of filing of the claim till the date of payment. 4. This Court, vide judgment dated 23rd July, 2009, granted leave, and referred the issue to a larger bench. This was in view of the divergence of opinion across judgments of this Court, and this aspect of the matter having not been considered in the earlier decisions, particularly in the absence of any clarification from Parliament despite recommendations made by this Court in U.P. State Road Transport Corporation & Ors. v. Trilok Chandra & Ors. [(1996) 4 SCC 362] , it was further directed to the Registry to place the matter before the Honble Chief Justice of India for an appropriate order to constitute a larger Bench to answer the points referred to it. Pursuant to the said order, the matter was placed before a larger Bench which answered the points of reference in favour of the appellants, in the decision reported in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65] The points answered read as under: 40. In what we have discussed above, we sum up our conclusions as follows: (i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in Sarla Verma read with para 42 of that judgment. (ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed. (iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act. (iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death. (v) While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the judgment in Sarla Verma. (vi) Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 38 above. (vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration. 5.
### Response:
1
### Explanation:
Pursuant to the said order, the matter was placed before a larger Bench which answered the points of reference in favour of the appellants, in the decision reported in Reshma Kumari & Ors. v. Madan Mohan & Anr. [(2013) 9 SCC 65] The points answered read as under:40. In what we have discussed above, we sum up our conclusions as follows:(i) In the applications for compensation made under Section 166 of the 1988 Act in death cases where the age of the deceased is 15 years and above, the Claims Tribunals shall select the multiplier as indicated in Column (4) of the table prepared in Sarla Verma read with para 42 of that judgment(ii) In cases where the age of the deceased is upto 15 years, irrespective of the Section 166 or Section 163A under which the claim for compensation has been made, multiplier of 15 and the assessment as indicated in the Second Schedule subject to correction as pointed out in Column (6) of the table in Sarla Verma should be followed(iii) As a result of the above, while considering the claim applications made under Section 166 in death cases where the age of the deceased is above 15 years, there is no necessity for the Claims Tribunals to seek guidance or for placing reliance on the Second Schedule in the 1988 Act(iv) The Claims Tribunals shall follow the steps and guidelines stated in para 19 of Sarla Verma for determination of compensation in cases of death(v) While making addition to income for future prospects, the Tribunals shall follow paragraph 24 of the judgment in Sarla Verma(vi) Insofar as deduction for personal and living expenses is concerned, it is directed that the Tribunals shall ordinarily follow the standards prescribed in paragraphs 30, 31 and 32 of the judgment in Sarla Verma subject to the observations made by us in para 38 above(vii) The above propositions mutatis mutandis shall apply to all pending matters where above aspects are under consideration.
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Shroff & Co., Etc Vs. Municipal Corporation Of Greater Bombay Andanother, Etc | See in this connection the observations of this Court in R. C. Jall v. Union of India, where at page 451 of the report this Court reiterated that the method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience. 32. In McDowell v. CTO at pages 813-15 (SCC pp. 246-48) the position in relation to excise duty has been clearly stated. In the case of Chatturam Horilram Ltd. v. CIT the concept of imposition of duty has been explained. There are three stages in the imposition of tax. It was observed as follows: "As has been pointed out by the Federal Court in Chatturam v. CIT quoting from the judgment of Lord Dunedin in Whitney v. Commissioners of Inland Revenue "there are three stages in the imposition of a tax. There is the declaration of liability that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment. That, ex hypothesi, has already been fixed. But assessment particularises the exact sum which a person liable has to pay. Lastly, come the methods of recovery if the person taxed does not voluntarily pay." 33. An argument was advanced on the basis of certain observations of this Court in Central India Spinning and Weaving and Manufacturing Company Ltd. v. Municipal Committee, Wardha (at 1114 of the reports) that there is no mixing up of goods which are in bond till these are removed from bond. The observations were made in the context of the facts of that case. There, the facts were that certain cotton bales were being transported in transit through Wardha. The municipality wanted to impose terminal tax. In that context it was observed that there was no mixing up of the goods in the mass of the property in the area. This case was not fully approved in Gramophone Company of India Ltd. v. Birendra Bahadur Pandey where at page 691 this Court observed as follows : (SCC pp. 554-55, para 30) "We are afraid the case (i. e., the Empress Mills case) is really not of any guidance to us since in the context of a terminal tax the words imported and exported could be construed in no other manner than was done by the court. We must however say that the original package doctrine as enunciated by Chief Justice Marshall on which reliance was placed was expressly disapproved first by the Federal Court in the Province of Madras v. Buddu Paidanna and again by the Supreme Court in State of Bombay v. F. N. Balsara. Apparently these decisions were not brought to the notice of the court which decided the case of Central India Spinning and Weaving and Manufacturing Co. Ltd. v. Municipal Committee, Wardha." 34. It is clear from the observation made in Wilson v. Chamber and Company Proprietary Ltd. that these observations were made in the context of goods in transit or goods arriving by way of wrecks. All the judgements in the above cases accept the position that if goods are imported into Australia for the purpose of the goods becoming part of the commerce of the country, these could be said to be imported. This is clear from the observations of Chief Justice Knox at page 136 of the report as well as the argument of Mr. Mitchell, counsel at pages 132 and 133 of the report. Therefore, the purpose of the import is decisive. If these are brought for the purpose of commerce or trade, these are imported. Justice Isaacs at page 139 highlighted the expression "imported goods", in Section 68 as meaning goods which, in fact, are brought from abroad into Australian territory, and in respect of which the carriage is ended or its continuity in some way in fact broken. The observations of Justice Starke set out at page 150 of the report reaffirm this position. 35. Countervailing duty also does form part of the incidental charges. Countervailing duty is clearly contained in Rule 2 (7) (a) of the Octroi Rules. The rule prevalent prior to June 28, 1983 was in the following terms Value of the articles where the octroi is charged ad valorem shall mean the value of the articles made up of the cost price of the articles as ascertained from original invoice plus shipping dues, insurance, customs duties, excise duties, sales tax, vend fees, freight charges, carrier charges and all other incidental charges excepting octroi incurred by the importer, till the articles are removed from the place of import." 36. This rule used the words "excise duties" as also the words "all other incidental charges". Section 105 of the Bombay Prohibition Act 1949 itself talks of excise duties so as to include both excise duty as well as countervailing duty. Therefore, the normal connotation of the words "excise duties" would take in countervailing duty also. Apart from that charges include taxes. In this connection reference may be made to the observations of this Court in D. G. Gouse & Co. v. State of Kerala. It was observed as follows : (SCC p. 420, para 5)The word tax in its widest sense includes all money raised by taxation. It therefore includes taxes levied by the Central and the State legislatures, and also those known as "rates", or other charges, levied by local authorities under statutory powers. 37. The expression "incidental" has also been judicially interpreted. The expression "incidental" means necessary in certain contexts which does not mean a matter of casual nature only. See State of Orissa v. Chakobhai Ghelabhai & Co. 38. In that view of the matter we are of the opinion that countervailing duty was an incident of importation and, as such, it was includible even prior to June 28, 1983 as an octroi. 39. In that view of the matter, in our opinion, the Division Bench was right in the view it took and | 0[ds]36. This rule used the words "excise duties" as also the words "all other incidental charges". Section 105 of the Bombay Prohibition Act 1949 itself talks of excise duties so as to include both excise duty as well as countervailing duty. Therefore, the normal connotation of the words "excise duties" would take in countervailing duty also. Apart from that charges include taxes. In this connection reference may be made to the observations of this Court in D. G. Gouse & Co. v. State of Kerala. It was observed as follows : (SCC p. 420, para 5)The word tax in its widest sense includes all money raised by taxation. It therefore includes taxes levied by the Central and the State legislatures, and also those known as "rates", or other charges, levied by local authorities under statutoryThe expression "incidental" has also been judicially interpreted. The expression "incidental" means necessary in certain contexts which does not mean a matter of casual nature only. See State of Orissa v. Chakobhai Ghelabhai &In that view of the matter we are of the opinion that countervailing duty was an incident of importation and, as such, it was includible even prior to June 28, 1983 as anIn that view of the matter, in our opinion, the Division Bench was right in the view it took | 0 | 9,313 | 257 | ### 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:
See in this connection the observations of this Court in R. C. Jall v. Union of India, where at page 451 of the report this Court reiterated that the method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience. 32. In McDowell v. CTO at pages 813-15 (SCC pp. 246-48) the position in relation to excise duty has been clearly stated. In the case of Chatturam Horilram Ltd. v. CIT the concept of imposition of duty has been explained. There are three stages in the imposition of tax. It was observed as follows: "As has been pointed out by the Federal Court in Chatturam v. CIT quoting from the judgment of Lord Dunedin in Whitney v. Commissioners of Inland Revenue "there are three stages in the imposition of a tax. There is the declaration of liability that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment. That, ex hypothesi, has already been fixed. But assessment particularises the exact sum which a person liable has to pay. Lastly, come the methods of recovery if the person taxed does not voluntarily pay." 33. An argument was advanced on the basis of certain observations of this Court in Central India Spinning and Weaving and Manufacturing Company Ltd. v. Municipal Committee, Wardha (at 1114 of the reports) that there is no mixing up of goods which are in bond till these are removed from bond. The observations were made in the context of the facts of that case. There, the facts were that certain cotton bales were being transported in transit through Wardha. The municipality wanted to impose terminal tax. In that context it was observed that there was no mixing up of the goods in the mass of the property in the area. This case was not fully approved in Gramophone Company of India Ltd. v. Birendra Bahadur Pandey where at page 691 this Court observed as follows : (SCC pp. 554-55, para 30) "We are afraid the case (i. e., the Empress Mills case) is really not of any guidance to us since in the context of a terminal tax the words imported and exported could be construed in no other manner than was done by the court. We must however say that the original package doctrine as enunciated by Chief Justice Marshall on which reliance was placed was expressly disapproved first by the Federal Court in the Province of Madras v. Buddu Paidanna and again by the Supreme Court in State of Bombay v. F. N. Balsara. Apparently these decisions were not brought to the notice of the court which decided the case of Central India Spinning and Weaving and Manufacturing Co. Ltd. v. Municipal Committee, Wardha." 34. It is clear from the observation made in Wilson v. Chamber and Company Proprietary Ltd. that these observations were made in the context of goods in transit or goods arriving by way of wrecks. All the judgements in the above cases accept the position that if goods are imported into Australia for the purpose of the goods becoming part of the commerce of the country, these could be said to be imported. This is clear from the observations of Chief Justice Knox at page 136 of the report as well as the argument of Mr. Mitchell, counsel at pages 132 and 133 of the report. Therefore, the purpose of the import is decisive. If these are brought for the purpose of commerce or trade, these are imported. Justice Isaacs at page 139 highlighted the expression "imported goods", in Section 68 as meaning goods which, in fact, are brought from abroad into Australian territory, and in respect of which the carriage is ended or its continuity in some way in fact broken. The observations of Justice Starke set out at page 150 of the report reaffirm this position. 35. Countervailing duty also does form part of the incidental charges. Countervailing duty is clearly contained in Rule 2 (7) (a) of the Octroi Rules. The rule prevalent prior to June 28, 1983 was in the following terms Value of the articles where the octroi is charged ad valorem shall mean the value of the articles made up of the cost price of the articles as ascertained from original invoice plus shipping dues, insurance, customs duties, excise duties, sales tax, vend fees, freight charges, carrier charges and all other incidental charges excepting octroi incurred by the importer, till the articles are removed from the place of import." 36. This rule used the words "excise duties" as also the words "all other incidental charges". Section 105 of the Bombay Prohibition Act 1949 itself talks of excise duties so as to include both excise duty as well as countervailing duty. Therefore, the normal connotation of the words "excise duties" would take in countervailing duty also. Apart from that charges include taxes. In this connection reference may be made to the observations of this Court in D. G. Gouse & Co. v. State of Kerala. It was observed as follows : (SCC p. 420, para 5)The word tax in its widest sense includes all money raised by taxation. It therefore includes taxes levied by the Central and the State legislatures, and also those known as "rates", or other charges, levied by local authorities under statutory powers. 37. The expression "incidental" has also been judicially interpreted. The expression "incidental" means necessary in certain contexts which does not mean a matter of casual nature only. See State of Orissa v. Chakobhai Ghelabhai & Co. 38. In that view of the matter we are of the opinion that countervailing duty was an incident of importation and, as such, it was includible even prior to June 28, 1983 as an octroi. 39. In that view of the matter, in our opinion, the Division Bench was right in the view it took and
### Response:
0
### Explanation:
36. This rule used the words "excise duties" as also the words "all other incidental charges". Section 105 of the Bombay Prohibition Act 1949 itself talks of excise duties so as to include both excise duty as well as countervailing duty. Therefore, the normal connotation of the words "excise duties" would take in countervailing duty also. Apart from that charges include taxes. In this connection reference may be made to the observations of this Court in D. G. Gouse & Co. v. State of Kerala. It was observed as follows : (SCC p. 420, para 5)The word tax in its widest sense includes all money raised by taxation. It therefore includes taxes levied by the Central and the State legislatures, and also those known as "rates", or other charges, levied by local authorities under statutoryThe expression "incidental" has also been judicially interpreted. The expression "incidental" means necessary in certain contexts which does not mean a matter of casual nature only. See State of Orissa v. Chakobhai Ghelabhai &In that view of the matter we are of the opinion that countervailing duty was an incident of importation and, as such, it was includible even prior to June 28, 1983 as anIn that view of the matter, in our opinion, the Division Bench was right in the view it took
|
Bachan Singh & Ors Vs. Gauri Shankar Agarwal & Ors | Constitution. The matter was, at the first instance heard by a single Judge of that Court. The learned single Judge allowed the writ petition and remanded the case back to the Board of Revenue for fresh disposal. Against that order of the learned single Judge, respondents Nos. 1 and 2 filed an appeal before the Letters Patent Bench. The Letters Patent Bench reversed the decision of the learned single Judge and affirmed that of the Board of Revenue. Thereafter this appeal has been brought after obtaining a certificate under Article 133(1)(a).3. The two questions that have been primarily canvassed before us are : (1) that the lease in favour of the appellants is a valid lease and thereafter the lease in favour of respondents Nos. 1 and 2 is invalid and (2) that the suit was barred by limitation.4. So far as the lease in favour of the appellants is concerned, admittedly that lease had not been granted by Raja Harish Chandra. According to the appellants the properties of the Raja were under the management of Court of Wards in 1946. One Aziz Ullah on behalf of Punjab Farmers entered into an agreement with the Court of Wards for taking on lease the suit properties on a rental of Rs. 1, 550 per annum. But before a lease could be executed by the Court of wards, the properties were released to Raja Harish Chandra. Thereafter in 1947 Kashinath, agent of Raja Harish Chandra executed a registered Patta in favour of the original lessees, Punjab Farmers represented by its Managing Director, Aziz Ullah. The appellants obtained a Patta from Punjab Farmers on September 6, 1950. The appellants pleaded that Raja Harish Chandra had authorised Kashinath in writing to grant the lease in question in favour of the Punjab Farmers but no such writing was produced into Court. It was proved that Mukhtarnama executed in favour of Kashinath specifically provided that he cannot grant any property on lease except with the consent in writing from Raja Harish Chandra or his manager. The Additional Commissioner has come to the conclusion that Raja Harish Chandra had not consented to the lease in favour of Punjab Farmers. Therefore quite clearly the lease in question was invalid one. But it was urged before the learned single Judge that the Board of Revenue failed to take into consideration the plea of the appellants that Raja Harish Chandra had subsequently ratified the lease given in favour of the Punjab Farmers. The learned single Judge was persuaded to accept this plea and he opined that that contention raises a question of law which deserves to be considered by the Board of Revenue. But as pointed out by the Letters Patent Bench, the question of ratification does not appear to have been urged by the appellants before the Board of Revenue. Hence the learned single Judge should not have taken into consideration a contention that had not been taken before the Board of Revenue and therefore the Appellate Bench was right in reversing his decision on that point.5. Now coming to the question of limitation, as seen earlier, the additional commissioner came to the conclusion that the appellants came into possession of the suit properties only in 1950. If that finding is correct then there is no dispute that the suit is within time. The appellants challenged the correctness of that finding before the learned single Judge on the ground that a portion of the evidence relied on by the Additional Commissioner in support of that finding was inadmissible in law. The learned single Judge was inclined to think that that contention raises a question of law and therefore it would be proper for the Board to consider that contention. As pointed out by the Appellate Bench, the contention that additional Commissioner had relied on any inadmissible evidence in support of his conclusion that the appellants took possession of the suit properties only in October 1950 does not appear to have been urged before the Board of Revenue. Therefore the learned single Judge erred in entertaining that plea. If that plea is rejected, as it should be, then there is no dispute that there is ample evidence to support the conclusion of the learned Additional commissioner that the appellants took possession of the suit properties only in 1950. An attempt was made to argue before this Court that the for the appellants had in fact argued before the Board of Revenue that the evidence in support of the finding of the Additional Commissioner as regards possession is inadmissible but the Board had ignored that argument. We are unable to accept this contention. The Counsel who argued the case of the appellants before the Board of Revenue has not filed any affidavit either before the High Court or before this Court stating that the Board had ignored his argument as regards the admissibility of certain evidence.6. The learned single Judge who heard the writ petition did not come to a positive conclusion that the order of the Board of Revenue was vitiated by any error of law apparent on the face of the record. The only conclusion that he arrived at was that on the material on record it was possible to urge certain questions of law and therefore it would be proper for the Board of Revenue to examine those questions. This is an untenable approach. Unless a High Court is of the opinion that the order assailed suffers from errors of law apparent on the face of the record it has no jurisdiction to quash that order by having recourse to its certiorari jurisdiction on the ground of error of law. The mere possibility of raising a question of law in a case is no ground for interfering with an order impugned.7. A few other plausible questions of law which commended themselves to the learned single Judge but found irrelevant by the Appellant Bench were not sought to be canvassed before us evidently in view of their inherent untenability. | 0[ds]4. So far as the lease in favour of the appellants is concerned, admittedly that lease had not been granted by Raja Harish Chandra. According to the appellants the properties of the Raja were under the management of Court of Wards in 1946. One Aziz Ullah on behalf of Punjab Farmers entered into an agreement with the Court of Wards for taking on lease the suit properties on a rental of Rs. 1, 550 per annum. But before a lease could be executed by the Court of wards, the properties were released to Raja Harish Chandra. Thereafter in 1947 Kashinath, agent of Raja Harish Chandra executed a registered Patta in favour of the original lessees, Punjab Farmers represented by its Managing Director, Aziz Ullah. The appellants obtained a Patta from Punjab Farmers on September 6, 1950. The appellants pleaded that Raja Harish Chandra had authorised Kashinath in writing to grant the lease in question in favour of the Punjab Farmers but no such writing was produced into Court. It was proved that Mukhtarnama executed in favour of Kashinath specifically provided that he cannot grant any property on lease except with the consent in writing from Raja Harish Chandra or his manager. The Additional Commissioner has come to the conclusion that Raja Harish Chandra had not consented to the lease in favour of Punjab Farmers. Therefore quite clearly the lease in question was invalid one. But it was urged before the learned single Judge that the Board of Revenue failed to take into consideration the plea of the appellants that Raja Harish Chandra had subsequently ratified the lease given in favour of the Punjab Farmers. The learned single Judge was persuaded to accept this plea and he opined that that contention raises a question of law which deserves to be considered by the Board of Revenue. But as pointed out by the Letters Patent Bench, the question of ratification does not appear to have been urged by the appellants before the Board of Revenue. Hence the learned single Judge should not have taken into consideration a contention that had not been taken before the Board of Revenue and therefore the Appellate Bench was right in reversing his decision on that point.5. Now coming to the question of limitation, as seen earlier, the additional commissioner came to the conclusion that the appellants came into possession of the suit properties only in 1950. If that finding is correct then there is no dispute that the suit is within time. The appellants challenged the correctness of that finding before the learned single Judge on the ground that a portion of the evidence relied on by the Additional Commissioner in support of that finding was inadmissible in law. The learned single Judge was inclined to think that that contention raises a question of law and therefore it would be proper for the Board to consider that contention. As pointed out by the Appellate Bench, the contention that additional Commissioner had relied on any inadmissible evidence in support of his conclusion that the appellants took possession of the suit properties only in October 1950 does not appear to have been urged before the Board of Revenue. Therefore the learned single Judge erred in entertaining that plea. If that plea is rejected, as it should be, then there is no dispute that there is ample evidence to support the conclusion of the learned Additional commissioner that the appellants took possession of the suit properties only in 1950. An attempt was made to argue before this Court that the for the appellants had in fact argued before the Board of Revenue that the evidence in support of the finding of the Additional Commissioner as regards possession is inadmissible but the Board had ignored that argument. We are unable to accept this contention. The Counsel who argued the case of the appellants before the Board of Revenue has not filed any affidavit either before the High Court or before this Court stating that the Board had ignored his argument as regards the admissibility of certain evidence.6. The learned single Judge who heard the writ petition did not come to a positive conclusion that the order of the Board of Revenue was vitiated by any error of law apparent on the face of the record. The only conclusion that he arrived at was that on the material on record it was possible to urge certain questions of law and therefore it would be proper for the Board of Revenue to examine those questions. This is an untenable approach. Unless a High Court is of the opinion that the order assailed suffers from errors of law apparent on the face of the record it has no jurisdiction to quash that order by having recourse to its certiorari jurisdiction on the ground of error of law. The mere possibility of raising a question of law in a case is no ground for interfering with an order impugned.7. A few other plausible questions of law which commended themselves to the learned single Judge but found irrelevant by the Appellant Bench were not sought to be canvassed before us evidently in view of their inherent untenability. | 0 | 1,543 | 912 | ### Instruction:
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### Input:
Constitution. The matter was, at the first instance heard by a single Judge of that Court. The learned single Judge allowed the writ petition and remanded the case back to the Board of Revenue for fresh disposal. Against that order of the learned single Judge, respondents Nos. 1 and 2 filed an appeal before the Letters Patent Bench. The Letters Patent Bench reversed the decision of the learned single Judge and affirmed that of the Board of Revenue. Thereafter this appeal has been brought after obtaining a certificate under Article 133(1)(a).3. The two questions that have been primarily canvassed before us are : (1) that the lease in favour of the appellants is a valid lease and thereafter the lease in favour of respondents Nos. 1 and 2 is invalid and (2) that the suit was barred by limitation.4. So far as the lease in favour of the appellants is concerned, admittedly that lease had not been granted by Raja Harish Chandra. According to the appellants the properties of the Raja were under the management of Court of Wards in 1946. One Aziz Ullah on behalf of Punjab Farmers entered into an agreement with the Court of Wards for taking on lease the suit properties on a rental of Rs. 1, 550 per annum. But before a lease could be executed by the Court of wards, the properties were released to Raja Harish Chandra. Thereafter in 1947 Kashinath, agent of Raja Harish Chandra executed a registered Patta in favour of the original lessees, Punjab Farmers represented by its Managing Director, Aziz Ullah. The appellants obtained a Patta from Punjab Farmers on September 6, 1950. The appellants pleaded that Raja Harish Chandra had authorised Kashinath in writing to grant the lease in question in favour of the Punjab Farmers but no such writing was produced into Court. It was proved that Mukhtarnama executed in favour of Kashinath specifically provided that he cannot grant any property on lease except with the consent in writing from Raja Harish Chandra or his manager. The Additional Commissioner has come to the conclusion that Raja Harish Chandra had not consented to the lease in favour of Punjab Farmers. Therefore quite clearly the lease in question was invalid one. But it was urged before the learned single Judge that the Board of Revenue failed to take into consideration the plea of the appellants that Raja Harish Chandra had subsequently ratified the lease given in favour of the Punjab Farmers. The learned single Judge was persuaded to accept this plea and he opined that that contention raises a question of law which deserves to be considered by the Board of Revenue. But as pointed out by the Letters Patent Bench, the question of ratification does not appear to have been urged by the appellants before the Board of Revenue. Hence the learned single Judge should not have taken into consideration a contention that had not been taken before the Board of Revenue and therefore the Appellate Bench was right in reversing his decision on that point.5. Now coming to the question of limitation, as seen earlier, the additional commissioner came to the conclusion that the appellants came into possession of the suit properties only in 1950. If that finding is correct then there is no dispute that the suit is within time. The appellants challenged the correctness of that finding before the learned single Judge on the ground that a portion of the evidence relied on by the Additional Commissioner in support of that finding was inadmissible in law. The learned single Judge was inclined to think that that contention raises a question of law and therefore it would be proper for the Board to consider that contention. As pointed out by the Appellate Bench, the contention that additional Commissioner had relied on any inadmissible evidence in support of his conclusion that the appellants took possession of the suit properties only in October 1950 does not appear to have been urged before the Board of Revenue. Therefore the learned single Judge erred in entertaining that plea. If that plea is rejected, as it should be, then there is no dispute that there is ample evidence to support the conclusion of the learned Additional commissioner that the appellants took possession of the suit properties only in 1950. An attempt was made to argue before this Court that the for the appellants had in fact argued before the Board of Revenue that the evidence in support of the finding of the Additional Commissioner as regards possession is inadmissible but the Board had ignored that argument. We are unable to accept this contention. The Counsel who argued the case of the appellants before the Board of Revenue has not filed any affidavit either before the High Court or before this Court stating that the Board had ignored his argument as regards the admissibility of certain evidence.6. The learned single Judge who heard the writ petition did not come to a positive conclusion that the order of the Board of Revenue was vitiated by any error of law apparent on the face of the record. The only conclusion that he arrived at was that on the material on record it was possible to urge certain questions of law and therefore it would be proper for the Board of Revenue to examine those questions. This is an untenable approach. Unless a High Court is of the opinion that the order assailed suffers from errors of law apparent on the face of the record it has no jurisdiction to quash that order by having recourse to its certiorari jurisdiction on the ground of error of law. The mere possibility of raising a question of law in a case is no ground for interfering with an order impugned.7. A few other plausible questions of law which commended themselves to the learned single Judge but found irrelevant by the Appellant Bench were not sought to be canvassed before us evidently in view of their inherent untenability.
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4. So far as the lease in favour of the appellants is concerned, admittedly that lease had not been granted by Raja Harish Chandra. According to the appellants the properties of the Raja were under the management of Court of Wards in 1946. One Aziz Ullah on behalf of Punjab Farmers entered into an agreement with the Court of Wards for taking on lease the suit properties on a rental of Rs. 1, 550 per annum. But before a lease could be executed by the Court of wards, the properties were released to Raja Harish Chandra. Thereafter in 1947 Kashinath, agent of Raja Harish Chandra executed a registered Patta in favour of the original lessees, Punjab Farmers represented by its Managing Director, Aziz Ullah. The appellants obtained a Patta from Punjab Farmers on September 6, 1950. The appellants pleaded that Raja Harish Chandra had authorised Kashinath in writing to grant the lease in question in favour of the Punjab Farmers but no such writing was produced into Court. It was proved that Mukhtarnama executed in favour of Kashinath specifically provided that he cannot grant any property on lease except with the consent in writing from Raja Harish Chandra or his manager. The Additional Commissioner has come to the conclusion that Raja Harish Chandra had not consented to the lease in favour of Punjab Farmers. Therefore quite clearly the lease in question was invalid one. But it was urged before the learned single Judge that the Board of Revenue failed to take into consideration the plea of the appellants that Raja Harish Chandra had subsequently ratified the lease given in favour of the Punjab Farmers. The learned single Judge was persuaded to accept this plea and he opined that that contention raises a question of law which deserves to be considered by the Board of Revenue. But as pointed out by the Letters Patent Bench, the question of ratification does not appear to have been urged by the appellants before the Board of Revenue. Hence the learned single Judge should not have taken into consideration a contention that had not been taken before the Board of Revenue and therefore the Appellate Bench was right in reversing his decision on that point.5. Now coming to the question of limitation, as seen earlier, the additional commissioner came to the conclusion that the appellants came into possession of the suit properties only in 1950. If that finding is correct then there is no dispute that the suit is within time. The appellants challenged the correctness of that finding before the learned single Judge on the ground that a portion of the evidence relied on by the Additional Commissioner in support of that finding was inadmissible in law. The learned single Judge was inclined to think that that contention raises a question of law and therefore it would be proper for the Board to consider that contention. As pointed out by the Appellate Bench, the contention that additional Commissioner had relied on any inadmissible evidence in support of his conclusion that the appellants took possession of the suit properties only in October 1950 does not appear to have been urged before the Board of Revenue. Therefore the learned single Judge erred in entertaining that plea. If that plea is rejected, as it should be, then there is no dispute that there is ample evidence to support the conclusion of the learned Additional commissioner that the appellants took possession of the suit properties only in 1950. An attempt was made to argue before this Court that the for the appellants had in fact argued before the Board of Revenue that the evidence in support of the finding of the Additional Commissioner as regards possession is inadmissible but the Board had ignored that argument. We are unable to accept this contention. The Counsel who argued the case of the appellants before the Board of Revenue has not filed any affidavit either before the High Court or before this Court stating that the Board had ignored his argument as regards the admissibility of certain evidence.6. The learned single Judge who heard the writ petition did not come to a positive conclusion that the order of the Board of Revenue was vitiated by any error of law apparent on the face of the record. The only conclusion that he arrived at was that on the material on record it was possible to urge certain questions of law and therefore it would be proper for the Board of Revenue to examine those questions. This is an untenable approach. Unless a High Court is of the opinion that the order assailed suffers from errors of law apparent on the face of the record it has no jurisdiction to quash that order by having recourse to its certiorari jurisdiction on the ground of error of law. The mere possibility of raising a question of law in a case is no ground for interfering with an order impugned.7. A few other plausible questions of law which commended themselves to the learned single Judge but found irrelevant by the Appellant Bench were not sought to be canvassed before us evidently in view of their inherent untenability.
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Sundaram Finance Limited Vs. Abdul Samad & Another | said code in the same manner as if it were a decree. It is, thus, the enforcement mechanism, which is akin to the enforcement of a decree but the award itself is not a decree of the civil court as no decree whatsoever is passed by the civil court. It is the arbitral tribunal, which renders an award and the tribunal does not have the power of execution of a decree. For the purposes of execution of a decree the award is to be enforced in the same manner as if it was a decree under the said Code. 16. Section 2(e) of the said Act defines Court as under: "2. Definitions. .........xxxx xxxx xxxx xxxx xxxx[(e) "Court" means -(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;(ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court;]" 17. The line of reasoning supporting the award to be filed in a so-called court of competent jurisdiction and then to obtain a transfer of the decree is primarily based on the jurisdiction clause found in Section 42, which reads as under: "42. Jurisdiction. - Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court." 18. The aforesaid provision, however, applies with respect to an application being filed in Court under Part I. The jurisdiction is over the arbitral proceedings. The subsequent application arising from that agreement and the arbitral proceedings are to be made in that court alone. However, what has been lost sight of is Section 32 of the said Act, which reads as under: "32. Termination of proceedings.-(1) The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2).(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where-(a) the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute,(b) the parties agree on the termination of the proceedings, or(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.(3) Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings." 19. The aforesaid provision provides for arbitral proceedings to be terminated by the final arbitral award. Thus, when an award is already made, of which execution is sought, the arbitral proceedings already stand terminated on the making of the final award. Thus, it is not appreciated how Section 42 of the said Act, which deals with the jurisdiction issue in respect of arbitral proceedings, would have any relevance. It does appear that the provisions of the said Code and the said Act have been mixed up.20. It is in the aforesaid context that the view adopted by the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. (supra) records that Section 42 of the Act would not apply to an execution application, which is not an arbitral proceeding and that Section 38 of the Code would apply to a decree passed by the Court, while in the case of an award no court has passed the decree.21. The Madras High Court in Kotak Mahindra Bank Ltd. v. Sivakama Sundari & Ors. (supra) referred to Section 46 of the said Code, which spoke of precepts but stopped at that. In the context of the Code, thus, the view adopted is that the decree of a civil court is liable to be executed primarily by the Court, which passes the decree where an execution application has to be filed at the first instance. An award under Section 36 of the said Act, is equated to a decree of the Court for the purposes of execution and only for that purpose. Thus, it was rightly observed that while an award passed by the arbitral tribunal is deemed to be a decree under Section 36 of the said Act, there was no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award was passed should be taken to be the Court, which passed the decree. The said Act actually transcends all territorial barriers.Conclusion:22. We are, thus, unhesitatingly of the view that the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings.23. The effect of the aforesaid is that the view taken by the Madhya Pradesh High Court and the Himachal Pradesh High Court is held to be not good in law while the views of Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court reflect the correct legal position, for the reasons we have recorded aforesaid. | 1[ds]15. The aforesaid provision would show that an award is to be enforced in accordance with the provisions of the said code in the same manner as if it were a decree. It is, thus, the enforcement mechanism, which is akin to the enforcement of a decree but the award itself is not a decree of the civil court as no decree whatsoever is passed by the civil court. It is the arbitral tribunal, which renders an award and the tribunal does not have the power of execution of a decree. For the purposes of execution of a decree the award is to be enforced in the same manner as if it was a decree under the said Code.The aforesaid provision provides for arbitral proceedings to be terminated by the final arbitral award. Thus, when an award is already made, of which execution is sought, the arbitral proceedings already stand terminated on the making of the final award. Thus, it is not appreciated how Section 42 of the said Act, which deals with the jurisdiction issue in respect of arbitral proceedings, would have any relevance. It does appear that the provisions of the said Code and the said Act have been mixed up.20. It is in the aforesaid context that the view adopted by the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. (supra) records that Section 42 of the Act would not apply to an execution application, which is not an arbitral proceeding and that Section 38 of the Code would apply to a decree passed by the Court, while in the case of an award no court has passed the decree.21. The Madras High Court in Kotak Mahindra Bank Ltd. v. Sivakama Sundari & Ors. (supra) referred to Section 46 of the said Code, which spoke of precepts but stopped at that. In the context of the Code, thus, the view adopted is that the decree of a civil court is liable to be executed primarily by the Court, which passes the decree where an execution application has to be filed at the first instance. An award under Section 36 of the said Act, is equated to a decree of the Court for the purposes of execution and only for that purpose. Thus, it was rightly observed that while an award passed by the arbitral tribunal is deemed to be a decree under Section 36 of the said Act, there was no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award was passed should be taken to be the Court, which passed the decree. The said Act actually transcends all territorial barriers.Conclusion:22. We are, thus, unhesitatingly of the view that the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings.23. The effect of the aforesaid is that the view taken by the Madhya Pradesh High Court and the Himachal Pradesh High Court is held to be not good in law while the views of Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court reflect the correct legal position, for the reasons we have recorded aforesaid. | 1 | 4,825 | 619 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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said code in the same manner as if it were a decree. It is, thus, the enforcement mechanism, which is akin to the enforcement of a decree but the award itself is not a decree of the civil court as no decree whatsoever is passed by the civil court. It is the arbitral tribunal, which renders an award and the tribunal does not have the power of execution of a decree. For the purposes of execution of a decree the award is to be enforced in the same manner as if it was a decree under the said Code. 16. Section 2(e) of the said Act defines Court as under: "2. Definitions. .........xxxx xxxx xxxx xxxx xxxx[(e) "Court" means -(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;(ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court;]" 17. The line of reasoning supporting the award to be filed in a so-called court of competent jurisdiction and then to obtain a transfer of the decree is primarily based on the jurisdiction clause found in Section 42, which reads as under: "42. Jurisdiction. - Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court." 18. The aforesaid provision, however, applies with respect to an application being filed in Court under Part I. The jurisdiction is over the arbitral proceedings. The subsequent application arising from that agreement and the arbitral proceedings are to be made in that court alone. However, what has been lost sight of is Section 32 of the said Act, which reads as under: "32. Termination of proceedings.-(1) The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2).(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where-(a) the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute,(b) the parties agree on the termination of the proceedings, or(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.(3) Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings." 19. The aforesaid provision provides for arbitral proceedings to be terminated by the final arbitral award. Thus, when an award is already made, of which execution is sought, the arbitral proceedings already stand terminated on the making of the final award. Thus, it is not appreciated how Section 42 of the said Act, which deals with the jurisdiction issue in respect of arbitral proceedings, would have any relevance. It does appear that the provisions of the said Code and the said Act have been mixed up.20. It is in the aforesaid context that the view adopted by the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. (supra) records that Section 42 of the Act would not apply to an execution application, which is not an arbitral proceeding and that Section 38 of the Code would apply to a decree passed by the Court, while in the case of an award no court has passed the decree.21. The Madras High Court in Kotak Mahindra Bank Ltd. v. Sivakama Sundari & Ors. (supra) referred to Section 46 of the said Code, which spoke of precepts but stopped at that. In the context of the Code, thus, the view adopted is that the decree of a civil court is liable to be executed primarily by the Court, which passes the decree where an execution application has to be filed at the first instance. An award under Section 36 of the said Act, is equated to a decree of the Court for the purposes of execution and only for that purpose. Thus, it was rightly observed that while an award passed by the arbitral tribunal is deemed to be a decree under Section 36 of the said Act, there was no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award was passed should be taken to be the Court, which passed the decree. The said Act actually transcends all territorial barriers.Conclusion:22. We are, thus, unhesitatingly of the view that the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings.23. The effect of the aforesaid is that the view taken by the Madhya Pradesh High Court and the Himachal Pradesh High Court is held to be not good in law while the views of Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court reflect the correct legal position, for the reasons we have recorded aforesaid.
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1
### Explanation:
15. The aforesaid provision would show that an award is to be enforced in accordance with the provisions of the said code in the same manner as if it were a decree. It is, thus, the enforcement mechanism, which is akin to the enforcement of a decree but the award itself is not a decree of the civil court as no decree whatsoever is passed by the civil court. It is the arbitral tribunal, which renders an award and the tribunal does not have the power of execution of a decree. For the purposes of execution of a decree the award is to be enforced in the same manner as if it was a decree under the said Code.The aforesaid provision provides for arbitral proceedings to be terminated by the final arbitral award. Thus, when an award is already made, of which execution is sought, the arbitral proceedings already stand terminated on the making of the final award. Thus, it is not appreciated how Section 42 of the said Act, which deals with the jurisdiction issue in respect of arbitral proceedings, would have any relevance. It does appear that the provisions of the said Code and the said Act have been mixed up.20. It is in the aforesaid context that the view adopted by the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. (supra) records that Section 42 of the Act would not apply to an execution application, which is not an arbitral proceeding and that Section 38 of the Code would apply to a decree passed by the Court, while in the case of an award no court has passed the decree.21. The Madras High Court in Kotak Mahindra Bank Ltd. v. Sivakama Sundari & Ors. (supra) referred to Section 46 of the said Code, which spoke of precepts but stopped at that. In the context of the Code, thus, the view adopted is that the decree of a civil court is liable to be executed primarily by the Court, which passes the decree where an execution application has to be filed at the first instance. An award under Section 36 of the said Act, is equated to a decree of the Court for the purposes of execution and only for that purpose. Thus, it was rightly observed that while an award passed by the arbitral tribunal is deemed to be a decree under Section 36 of the said Act, there was no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award was passed should be taken to be the Court, which passed the decree. The said Act actually transcends all territorial barriers.Conclusion:22. We are, thus, unhesitatingly of the view that the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings.23. The effect of the aforesaid is that the view taken by the Madhya Pradesh High Court and the Himachal Pradesh High Court is held to be not good in law while the views of Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court reflect the correct legal position, for the reasons we have recorded aforesaid.
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Chhedi Ram Vs. Jhilmit Ram and Others | successful candidate, the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved. Under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down an impossible standards of proof and hold a fact as not proved. In the present case, the candidate whose nomination was improperly accepted had obtained 6, 710 votes, that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes. Not merely that. The number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate-it was a little over one-third. Surely, in that situation, the result of the elect ion may safely be said to have been affected.The learned counsel for the respondents invited our attention to the decisions of this court in Vashist Narain Sharma v. Dev Chandra and Others(1), and Samant N. Balakrishna v. George Fernandez and Others, etc.(2) In Vashist Narain case, the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next largest number of votes was very nearly the same as the number of votes secured by the candidate whose nomination was improperly accepted. Unless it was possible to say that all the wasted votes would have gone to the candidate who secured the highest number of votes next to the successful candidate, it was not possible to hold that the result of the election had been materially affected. It was in those circumstances that Ghulam Hasan, J. observed:"But we are not prepared to hold that the mere fact that t he wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candid ate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many of which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand". We do agree with the observations of Ghulam Hasan, J. in the context of the facts of that case. It does not, however, mean that whatever the number of wasted votes and whatever the margin of difference between the number of votes secured by the successful candidate and the number of votes secured by the next highest candidate, the court would invariably hold that the result of the election had not been materially affected. In an appropriate case having regard to the margin of difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and the proporation which such margin bears to the wasted votes, it is permissible for the court to hold that the burden of proving that the result of the election has been materially affected has been discharged. 3. In Samant Balakrishnas case, the court observed:"In our opinion the matter cannot be considered on possibility. Vashist Narains case insists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Hethamalani. But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge. There is no room, therefore, for a reasonable judicial guess. The law requires proof. How far that proof should go or what it should contain is not provided by the Legislature. In Vashists case the provision was held to prescribe an impossible burden. The law has however remained as before. We are bound by the rulings of this Court and must say that the burden has not been successfully discharged". 4. We do not think that this case lays down any different principle than what we have already said. On the other hand, the sentence underlined by us indicates that where the difference between the number of votes secured by the successful candidate and the number of votes secured by the highest candidate is marginal, it may be possible in the circumstances of a case to hold that the burden has been discharged. We have already indicated our view that in this case, the burden has certainly been discharged. An attempt was made by the learned counsel for the respondents to dislodge the finding of the Election Tribunal that Moti Ram was a Kahar and not a Gond. But having gone through the relevant evidence, we affirm the finding of the Election Tribunal and agree with the Election Tribunal that a crude attempt was made to fabricate evidence that Moti Ram was a member of the Scheduled Castes. | 1[ds]We do not think that this case lays down any different principle than what we have already said. On the other hand, the sentence underlined by us indicates that where the difference between the number of votes secured by the successful candidate and the number of votes secured by the highest candidate is marginal, it may be possible in the circumstances of a case to hold that the burden has been discharged. We have already indicated our view that in this case, the burden has certainly been discharged. An attempt was made by the learned counsel for the respondents to dislodge the finding of the Election Tribunal that Moti Ram was a Kahar and not a Gond. But having gone through the relevant evidence, we affirm the finding of the Election Tribunal and agree with the Election Tribunal that a crude attempt was made to fabricate evidence that Moti Ram was a member of the Scheduled Castes2. We are afraid the appeal has to be allowed. Under sec. 100(1)(d) of the Representation of the People A ct, 1951, the election of a returned candidate shall be declared to be void if the High Court is of opinion that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance o f any nominationTrue, the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election. The burden is readily discharged if the nomination which has been improperly accepted was that of the successful candidate himself. On the other hand, the burden is wholly incapable of being discharged if the candidate whose nomination was improperly accepted obtained a less number of votes than the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next highest number of votes. In both these situations, the answers are obvious. | 1 | 1,957 | 371 | ### 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:
successful candidate, the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved. Under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down an impossible standards of proof and hold a fact as not proved. In the present case, the candidate whose nomination was improperly accepted had obtained 6, 710 votes, that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes. Not merely that. The number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate-it was a little over one-third. Surely, in that situation, the result of the elect ion may safely be said to have been affected.The learned counsel for the respondents invited our attention to the decisions of this court in Vashist Narain Sharma v. Dev Chandra and Others(1), and Samant N. Balakrishna v. George Fernandez and Others, etc.(2) In Vashist Narain case, the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next largest number of votes was very nearly the same as the number of votes secured by the candidate whose nomination was improperly accepted. Unless it was possible to say that all the wasted votes would have gone to the candidate who secured the highest number of votes next to the successful candidate, it was not possible to hold that the result of the election had been materially affected. It was in those circumstances that Ghulam Hasan, J. observed:"But we are not prepared to hold that the mere fact that t he wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candid ate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many of which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand". We do agree with the observations of Ghulam Hasan, J. in the context of the facts of that case. It does not, however, mean that whatever the number of wasted votes and whatever the margin of difference between the number of votes secured by the successful candidate and the number of votes secured by the next highest candidate, the court would invariably hold that the result of the election had not been materially affected. In an appropriate case having regard to the margin of difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and the proporation which such margin bears to the wasted votes, it is permissible for the court to hold that the burden of proving that the result of the election has been materially affected has been discharged. 3. In Samant Balakrishnas case, the court observed:"In our opinion the matter cannot be considered on possibility. Vashist Narains case insists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Hethamalani. But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge. There is no room, therefore, for a reasonable judicial guess. The law requires proof. How far that proof should go or what it should contain is not provided by the Legislature. In Vashists case the provision was held to prescribe an impossible burden. The law has however remained as before. We are bound by the rulings of this Court and must say that the burden has not been successfully discharged". 4. We do not think that this case lays down any different principle than what we have already said. On the other hand, the sentence underlined by us indicates that where the difference between the number of votes secured by the successful candidate and the number of votes secured by the highest candidate is marginal, it may be possible in the circumstances of a case to hold that the burden has been discharged. We have already indicated our view that in this case, the burden has certainly been discharged. An attempt was made by the learned counsel for the respondents to dislodge the finding of the Election Tribunal that Moti Ram was a Kahar and not a Gond. But having gone through the relevant evidence, we affirm the finding of the Election Tribunal and agree with the Election Tribunal that a crude attempt was made to fabricate evidence that Moti Ram was a member of the Scheduled Castes.
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We do not think that this case lays down any different principle than what we have already said. On the other hand, the sentence underlined by us indicates that where the difference between the number of votes secured by the successful candidate and the number of votes secured by the highest candidate is marginal, it may be possible in the circumstances of a case to hold that the burden has been discharged. We have already indicated our view that in this case, the burden has certainly been discharged. An attempt was made by the learned counsel for the respondents to dislodge the finding of the Election Tribunal that Moti Ram was a Kahar and not a Gond. But having gone through the relevant evidence, we affirm the finding of the Election Tribunal and agree with the Election Tribunal that a crude attempt was made to fabricate evidence that Moti Ram was a member of the Scheduled Castes2. We are afraid the appeal has to be allowed. Under sec. 100(1)(d) of the Representation of the People A ct, 1951, the election of a returned candidate shall be declared to be void if the High Court is of opinion that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance o f any nominationTrue, the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election. The burden is readily discharged if the nomination which has been improperly accepted was that of the successful candidate himself. On the other hand, the burden is wholly incapable of being discharged if the candidate whose nomination was improperly accepted obtained a less number of votes than the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next highest number of votes. In both these situations, the answers are obvious.
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M. Natarajan Vs. State | 25. In the above case, the question was whether the immunity granted under the KVSS 1998 could also cover proceedings under the Kerala Sales Tax Act in respect of the same assessee. The learned Judges again referred in paragraph 15 to Sushila Ranis case as also to Hiralals case and more particularly to the observations made in paragraphs 18 and 27, which we have already quoted above. The learned Judges then proceeded to hold that Hiralals case was distinguished in Sashi Balasubramanians case (cited supra) and held that the transfer of application of Salex Tax Act would not be covered by the immunity under KVSS, 1998. This Court in paragraph 33 observed as under: "33.....an immunity is granted only in respect of offences purported to have been committed under direct tax enactment or indirect tax enactment, but by no stretch of imagination, the same would be granted in respect of offences under the Prevention of Corruption Act. A person may commit several offences under different Acts; immunity granted in relation to one Act would not mean that immunity granted would automatically extend to others. By way of example, we may notice that a person may be prosecuted for commission of an offence in relation to property under the Penal Code as also under another Act, say for example, the Prevention of Corruption Act. Whereas charges under the Prevention of Corruption Act may fail, no sanction having been accorded therefore, the charges under the Penal Code would not." Thus this Court accepted the principle that the immunity could not cover certain other offences than those covered in direct and indirect tax enactments. The Court also accepted that the immunity could not be granted to any other person automatically merely it was granted to a tax- payer who had made declaration under Section 88 of the Finance Act. 26. One other judgment in Master Cables (P) Ltd. Vs. State of Kerala and Anr. (supra) is to be seen at this stage. The concerned Sections 90(1) & (3), Section 91 and Section 87(h) & (j) fell for consideration in this case also. It was declared in paragraph 10 in unequivocal terms in this judgment as follows: "10. What is conclusive is the order passed under sub-section (1) of Section 90 of the Scheme determining the sum payable under the Scheme. The terms "direct tax enactment" or "indirect tax enactment" or "any other law for the time being in force" refer only to those statutes under which the order had been passed. Immunity, as noticed hereinbefore, is in respect of institution of any proceeding for prosecution of any offence under direct tax enactment or indirect tax enactment or from imposition of penalty under any of such enactments. The terms "direct tax enactment" and "indirect tax enactment" have been defined under Sections 87 (h) and 87 (j) of the Scheme, which read as under:87. (h) "direct tax enactment" means the Wealth Tax Act, 1957 (27 of 1957) or the Gift Tax Act, 1958 (18 of 1958) or the Income Tax Act, 1961 (43 of 1961) or the Interest Tax Act, 1974 (45 of 1974) or the Expenditure Tax Act, 1987 (35 of 1987);* * * * * * * *(j) "indirect tax enactment" means the Customs Act, 1962 (52 of 1962) or the Central Excise Act, 1944 (1 of 1944) or the Customs Tariff Act, 1975 (51 of 1975) or the Central Excise Tariff Act, 1985 (5 of 1986) or the relevant Act and includes the rules or regulations made under such enactment;" In paragraph 11, this Court observed: "11. Admittedly, the case of the appellant does not come within the purview thereof. Amplitude of the provisions of the Scheme having been extended only to the enactments made by Parliament. Having regard to the constitutional scheme contained in Article 246 of the Constitution of India, in our opinion, the same cannot be extended to assessment of sales tax under a State Legislation...................." Once this Court had noticed the observations made in Hiralals case and then narrowed the width of the observations expressed in paragraph 27 thereof, we must proceed in terms of the subsequent judgment where the earlier judgment was taken note of. 27. By way of almost a desperate effort Shri K. Subramaniam, learned Senior Advocate then urged that the only offence which could have been alleged against any of the accused was under Section 132 of the Customs Act, 1962, i.e., of making a false declaration. The argument was that since the offence complained of related to the false declaration and false documents, the appellant could be prosecuted only under Section 132 of the Customs Act and not under the offences covered under the Indian Penal Code. Section 132 of the Customs Act is as under: "132. False declaration, false documents, etc. - Whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to two years or with fine, or with both." The argument is only to be rejected. It is not at this stage that we would consider the nature of offences under Section 132 of the Customs Act and/or those under the Indian Penal Code, under which the appellant is being charged. However, merely because there may be some overlapping in the two offences, it does not mean that the appellant cannot be tried under the offences covered under the Indian Penal Code. The Court would proceed to decide the question on the basis of the evidence led before it. We must hasten to add that merely because the appellant could be tried nder Section 132 of the Customs Act, it does not mean that he could not be tried for the offence committed under the Indian Penal Code. There is no such provision. | 0[ds]The argument is only to be rejected. It is not at this stage that we would consider the nature of offences under Section 132 of the Customs Act and/or those under the Indian Penal Code, under which the appellant is being charged. However, merely because there may be some overlapping in the two offences, it does not mean that the appellant cannot be tried under the offences covered under the Indian Penal Code. The Court would proceed to decide the question on the basis of the evidence led before it. We must hasten to add that merely because the appellant could be tried nder Section 132 of the Customs Act, it does not mean that he could not be tried for the offence committed under the Indian Penal Code. There is no such provision.In Hiralals case heavy reliance seems to have been placed on the judgment of Sushila Rani (Smt.) Vs. Commissioner of Income Tax & Anr. and of Central Bureau of Investigation, SPE, SIU (X), New Delhi Vs. Duncans Agro Industries Ltd., Calcutta. The learned Judges in their separate but concurrent judgments upheld the challenge and had quashed the proceedings relying on the KVSS 1998. The learned Judges noted the various provisions of the Scheme from Sections 86 to 98. It was also noted that FIR in that case was filed on 6.1.1999, while the certificate under KVSS 1998 was issued on 19.7.1999. Honble Lakshmanan, J. in paragraph 23It is thus crystal clear that the Commissioner of Customs (Adjudication) and Designated Authoritygranted immunity from instituting any proceeding for prosecution for any offence under the Customs Act, 1962, or from the imposition of penalty under the said enactment, in respect of matters covered in the aforesaid declaration made by the declarant. After hearing the case of the GCS, as already noticed, the Collector of Customs, Bombay held that the GCS was liable to pay the customs duty but in view of the activities of the Society and the bona fides of the Society, and considering the charitable and philanthropic activities of the Society, no prosecution was recommended. Moreover, only a token redemption fine of Re.1 was imposed." (Emphasis supplied).In paragraph 25, the learned Judge analyzed the judgment in Sushila Ranis case (supra), which was also under the KVSS 1998. Paragraph 6 and 8 of Sushila Ranis case were quoted by the learned Judge which suggested that once a certificate was granted under section 90 (1), it was absolutely conclusive as to the matter stated and no matter covered could be reopened in any other proceeding under any law for the time being in force. It is probably on the basis of observations in paragraph 6 of Sushila Ranis case, that the learned Judge made the observation in paragraph 27 which we have already quoted in para 13 of this judgment. We may at this stage itself point out that the observations in paragraphs 6 and 8 in Sushila Ranis case seem to have been made only in the pursuance of tax laws. The question of prosecution under some other offences (not under the Indirect Tax Act or the Direct Tax Act) was not there.20. A reference must be made, at this stage, to the judgment of this Court reported in Alpesh Navinchandras case (cited supra) which was again decided by the Division Bench consisting of Honble Lakshman and Kabir, JJ., the judgment was, however, authored by Honble Lakshmanan, J. This was the case of immunity granted under Sections 127H of the Customs Act, 1962, however, the appellant and his brother were preventively detained under COFEPOSA. The detention was challenged on the ground that once the immunity under Section 127H of the Customs Act was granted in respect of customs offences, after settling the taxes finally by the Settlement Commissioner, the preventive detention could not have been ordered by the authorities for the same reasons. The case of Hiralal (cited supra) was relied upon, which is clear from a reading of paras 17 and 46. This Court proceeded to hold in paras 46 and 47 of its judgment asAt the time of hearing, learned counsel for the petitioner relied upon Hira Lal Bhagwati Vs. CBI. According to learned counsel for the respondent the said relied upon case was a case of duty evasion and the appellant therein was booked by Customs Authority and therefore, customs duty was paid under KVS Scheme and further in the criminal proceedings under Sections120B and 420 IPCinitiated by CBI was quashed by this Court. Therefore, it is admitted that the above cited case is different from the present case as in the case in hand the detention order was issued under the COFEPOSA Act against the petitioner with objective to prevent the nefarious activities in future. Therefore, the immunity granted by the Settlement Commission from fine, penalty and prosecution under the provisions of the Customs Act and IPC have no bearing on the order of detention passed under the COFEPOSA Act. Therefore, it is contended that the detention order issued by the detaining authority is very much legal and the same needs to be upheld.47. The Settlement Commission was constituted with the aim and objective of settling the tax evasion issues and by virtue of disclosure by tax offender, they gain immunity from fine/penalty which is otherwise mandatory under the provisions of tax laws. But, such opportunity is only extended totax offenders but not available to habitual smugglers. For the persons involved in smuggling activities, other than the provisions made for the prosecution under the Customs Act, 1962, an equal deterrent is emphasized under the provisions of the COFEPOSA Act, 1974 i.e. provisions for preventive detention. Such preventive detention prohibits smugglers from indulging in further smuggling activities. In the present case the investigation reveals the consistent involvement of the petitioner detenu and his brother, Kamlesh Navinchandra Shah in smuggling activities, therefore, the detaining authority on the basis of evidence placed before him felt it necessary to issue the detention orders in respect of both the detenus in order to prevent them from prejudicial activities in future. Accordingly, the impugned order is justifiable in the eye of the law and the present writ petition deserves to beour opinion, the rigour of the observations made in paragraph 27 in Hiralals case is removed by the observations made in paragraphs 46 and 47 in Alpesh Navinchandra Shahs case. It was contended that the legislature had created a Settlement Commission for generating revenue and had also made provisions for release of the goods on payment of duty and had also made provisions for granting immunity from prosecution under the Customs Act, 1962 under the Penal Code and also under the other Central law and, therefore, it was clear that the intention of the legislature was more on revenue aspect rather than prosecution and punishment aspect or in continuing with multiple litigations. And, therefore, it would be unjust, unfair and unreasonable if a person is made to suffer preventive detention mainly after his application for settlement is allowed to be proceeded with, and after realization of the customs duties not only the goods are ordered to be released but on considering the cooperation extended by him in the settlement proceedings, the Settlement Commission had also granted to him immunity from prosecution under the Customs Act, 1962 as well as under IPC. The reliance there, however, was being made not on KVSS 1998, but on the Scheme under section127H of the Customs Act, 1962which provided the immunity not only from the Customs Act offences but also from the Indian Penal Code and other central enactments. We must hasten to point out that at this juncture itself, the immunity under the KVSS 1998 does not refer to the offences under the Penal Code or under any other central law, but restricts itself under Section 90 (1) only to the offences under the direct tax enactment or indirect tax enactment and as such Section 127H of the Customs Act is much broader than Section 90(1) of Finance Act in its operation.21. The Court then in paragraph 46 of the above case held that the immunity granted by the Settlement Commission under the provisions of Customs Act and IPC had no bearing on the order of detention passed under the COFEPOSA Act. Thus inspite of the broader nature of section 127H of the Customs Act as compared with Section 90(1) of the Finance Act, this Court proceeded to hold that the detention under COFEPOSA Act was "outside the immunity". It was, therefore, clear that the rigour of observations made in paragraph 27 of Hiralals Case was taken away in paragraphs 46 of Alpesh Navinchandra Shahs case.22. It may be noted further that in Hiralals case the learned Judge had specifically found that there was no prima facie material as regards the offences under Sections 120B and 420 of the Indian Penal Code and that was also the reason why the prosecution was quashed. Such is not the ase here. It cannot again be forgotten that in Hiralals case the immunity was granted to thewhereas the appellant in the present case was neither an applicant under Section 90(1) nor was any immunity granted to him specifically. This aspect whether the immunity could be granted and could be enjoyed by any other person than the one who had made a declaration under Section 88 and was granted the immunity was considered in the subsequent judgment of this Court.In the above case, the question was whether the immunity granted under the KVSS 1998 could also cover proceedings under the Kerala Sales Tax Act in respect of the same assessee. The learned Judges again referred in paragraph 15 to Sushila Ranis case as also to Hiralals case and more particularly to the observations made in paragraphs 18 and 27, which we have already quoted above. The learned Judges then proceeded to hold that Hiralals case was distinguished in Sashi Balasubramanians case (cited supra) and held that the transfer of application of Salex Tax Act would not be covered by the immunity under KVSS, 1998. This Court in paragraph 33 observed asimmunity is granted only in respect of offences purported to have been committed under direct tax enactment or indirect tax enactment, but by no stretch of imagination, the same would be granted in respect of offences under the Prevention of Corruption Act. A person may commit several offences under different Acts; immunity granted in relation to one Act would not mean that immunity granted would automatically extend to others. By way of example, we may notice that a person may be prosecuted for commission of an offence in relation to property under the Penal Code as also under another Act, say for example, the Prevention of Corruption Act. Whereas charges under the Prevention of Corruption Act may fail, no sanction having been accorded therefore, the charges under the Penal Code wouldthis Court accepted the principle that the immunity could not cover certain other offences than those covered in direct and indirect tax enactments. The Court also accepted that the immunity could not be granted to any other person automatically merely it was granted to a taxpayer who had made declaration under Section 88 of the Finance Act. | 0 | 8,471 | 2,044 | ### 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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25. In the above case, the question was whether the immunity granted under the KVSS 1998 could also cover proceedings under the Kerala Sales Tax Act in respect of the same assessee. The learned Judges again referred in paragraph 15 to Sushila Ranis case as also to Hiralals case and more particularly to the observations made in paragraphs 18 and 27, which we have already quoted above. The learned Judges then proceeded to hold that Hiralals case was distinguished in Sashi Balasubramanians case (cited supra) and held that the transfer of application of Salex Tax Act would not be covered by the immunity under KVSS, 1998. This Court in paragraph 33 observed as under: "33.....an immunity is granted only in respect of offences purported to have been committed under direct tax enactment or indirect tax enactment, but by no stretch of imagination, the same would be granted in respect of offences under the Prevention of Corruption Act. A person may commit several offences under different Acts; immunity granted in relation to one Act would not mean that immunity granted would automatically extend to others. By way of example, we may notice that a person may be prosecuted for commission of an offence in relation to property under the Penal Code as also under another Act, say for example, the Prevention of Corruption Act. Whereas charges under the Prevention of Corruption Act may fail, no sanction having been accorded therefore, the charges under the Penal Code would not." Thus this Court accepted the principle that the immunity could not cover certain other offences than those covered in direct and indirect tax enactments. The Court also accepted that the immunity could not be granted to any other person automatically merely it was granted to a tax- payer who had made declaration under Section 88 of the Finance Act. 26. One other judgment in Master Cables (P) Ltd. Vs. State of Kerala and Anr. (supra) is to be seen at this stage. The concerned Sections 90(1) & (3), Section 91 and Section 87(h) & (j) fell for consideration in this case also. It was declared in paragraph 10 in unequivocal terms in this judgment as follows: "10. What is conclusive is the order passed under sub-section (1) of Section 90 of the Scheme determining the sum payable under the Scheme. The terms "direct tax enactment" or "indirect tax enactment" or "any other law for the time being in force" refer only to those statutes under which the order had been passed. Immunity, as noticed hereinbefore, is in respect of institution of any proceeding for prosecution of any offence under direct tax enactment or indirect tax enactment or from imposition of penalty under any of such enactments. The terms "direct tax enactment" and "indirect tax enactment" have been defined under Sections 87 (h) and 87 (j) of the Scheme, which read as under:87. (h) "direct tax enactment" means the Wealth Tax Act, 1957 (27 of 1957) or the Gift Tax Act, 1958 (18 of 1958) or the Income Tax Act, 1961 (43 of 1961) or the Interest Tax Act, 1974 (45 of 1974) or the Expenditure Tax Act, 1987 (35 of 1987);* * * * * * * *(j) "indirect tax enactment" means the Customs Act, 1962 (52 of 1962) or the Central Excise Act, 1944 (1 of 1944) or the Customs Tariff Act, 1975 (51 of 1975) or the Central Excise Tariff Act, 1985 (5 of 1986) or the relevant Act and includes the rules or regulations made under such enactment;" In paragraph 11, this Court observed: "11. Admittedly, the case of the appellant does not come within the purview thereof. Amplitude of the provisions of the Scheme having been extended only to the enactments made by Parliament. Having regard to the constitutional scheme contained in Article 246 of the Constitution of India, in our opinion, the same cannot be extended to assessment of sales tax under a State Legislation...................." Once this Court had noticed the observations made in Hiralals case and then narrowed the width of the observations expressed in paragraph 27 thereof, we must proceed in terms of the subsequent judgment where the earlier judgment was taken note of. 27. By way of almost a desperate effort Shri K. Subramaniam, learned Senior Advocate then urged that the only offence which could have been alleged against any of the accused was under Section 132 of the Customs Act, 1962, i.e., of making a false declaration. The argument was that since the offence complained of related to the false declaration and false documents, the appellant could be prosecuted only under Section 132 of the Customs Act and not under the offences covered under the Indian Penal Code. Section 132 of the Customs Act is as under: "132. False declaration, false documents, etc. - Whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to two years or with fine, or with both." The argument is only to be rejected. It is not at this stage that we would consider the nature of offences under Section 132 of the Customs Act and/or those under the Indian Penal Code, under which the appellant is being charged. However, merely because there may be some overlapping in the two offences, it does not mean that the appellant cannot be tried under the offences covered under the Indian Penal Code. The Court would proceed to decide the question on the basis of the evidence led before it. We must hasten to add that merely because the appellant could be tried nder Section 132 of the Customs Act, it does not mean that he could not be tried for the offence committed under the Indian Penal Code. There is no such provision.
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of disclosure by tax offender, they gain immunity from fine/penalty which is otherwise mandatory under the provisions of tax laws. But, such opportunity is only extended totax offenders but not available to habitual smugglers. For the persons involved in smuggling activities, other than the provisions made for the prosecution under the Customs Act, 1962, an equal deterrent is emphasized under the provisions of the COFEPOSA Act, 1974 i.e. provisions for preventive detention. Such preventive detention prohibits smugglers from indulging in further smuggling activities. In the present case the investigation reveals the consistent involvement of the petitioner detenu and his brother, Kamlesh Navinchandra Shah in smuggling activities, therefore, the detaining authority on the basis of evidence placed before him felt it necessary to issue the detention orders in respect of both the detenus in order to prevent them from prejudicial activities in future. Accordingly, the impugned order is justifiable in the eye of the law and the present writ petition deserves to beour opinion, the rigour of the observations made in paragraph 27 in Hiralals case is removed by the observations made in paragraphs 46 and 47 in Alpesh Navinchandra Shahs case. It was contended that the legislature had created a Settlement Commission for generating revenue and had also made provisions for release of the goods on payment of duty and had also made provisions for granting immunity from prosecution under the Customs Act, 1962 under the Penal Code and also under the other Central law and, therefore, it was clear that the intention of the legislature was more on revenue aspect rather than prosecution and punishment aspect or in continuing with multiple litigations. And, therefore, it would be unjust, unfair and unreasonable if a person is made to suffer preventive detention mainly after his application for settlement is allowed to be proceeded with, and after realization of the customs duties not only the goods are ordered to be released but on considering the cooperation extended by him in the settlement proceedings, the Settlement Commission had also granted to him immunity from prosecution under the Customs Act, 1962 as well as under IPC. The reliance there, however, was being made not on KVSS 1998, but on the Scheme under section127H of the Customs Act, 1962which provided the immunity not only from the Customs Act offences but also from the Indian Penal Code and other central enactments. We must hasten to point out that at this juncture itself, the immunity under the KVSS 1998 does not refer to the offences under the Penal Code or under any other central law, but restricts itself under Section 90 (1) only to the offences under the direct tax enactment or indirect tax enactment and as such Section 127H of the Customs Act is much broader than Section 90(1) of Finance Act in its operation.21. The Court then in paragraph 46 of the above case held that the immunity granted by the Settlement Commission under the provisions of Customs Act and IPC had no bearing on the order of detention passed under the COFEPOSA Act. Thus inspite of the broader nature of section 127H of the Customs Act as compared with Section 90(1) of the Finance Act, this Court proceeded to hold that the detention under COFEPOSA Act was "outside the immunity". It was, therefore, clear that the rigour of observations made in paragraph 27 of Hiralals Case was taken away in paragraphs 46 of Alpesh Navinchandra Shahs case.22. It may be noted further that in Hiralals case the learned Judge had specifically found that there was no prima facie material as regards the offences under Sections 120B and 420 of the Indian Penal Code and that was also the reason why the prosecution was quashed. Such is not the ase here. It cannot again be forgotten that in Hiralals case the immunity was granted to thewhereas the appellant in the present case was neither an applicant under Section 90(1) nor was any immunity granted to him specifically. This aspect whether the immunity could be granted and could be enjoyed by any other person than the one who had made a declaration under Section 88 and was granted the immunity was considered in the subsequent judgment of this Court.In the above case, the question was whether the immunity granted under the KVSS 1998 could also cover proceedings under the Kerala Sales Tax Act in respect of the same assessee. The learned Judges again referred in paragraph 15 to Sushila Ranis case as also to Hiralals case and more particularly to the observations made in paragraphs 18 and 27, which we have already quoted above. The learned Judges then proceeded to hold that Hiralals case was distinguished in Sashi Balasubramanians case (cited supra) and held that the transfer of application of Salex Tax Act would not be covered by the immunity under KVSS, 1998. This Court in paragraph 33 observed asimmunity is granted only in respect of offences purported to have been committed under direct tax enactment or indirect tax enactment, but by no stretch of imagination, the same would be granted in respect of offences under the Prevention of Corruption Act. A person may commit several offences under different Acts; immunity granted in relation to one Act would not mean that immunity granted would automatically extend to others. By way of example, we may notice that a person may be prosecuted for commission of an offence in relation to property under the Penal Code as also under another Act, say for example, the Prevention of Corruption Act. Whereas charges under the Prevention of Corruption Act may fail, no sanction having been accorded therefore, the charges under the Penal Code wouldthis Court accepted the principle that the immunity could not cover certain other offences than those covered in direct and indirect tax enactments. The Court also accepted that the immunity could not be granted to any other person automatically merely it was granted to a taxpayer who had made declaration under Section 88 of the Finance Act.
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Registrar Karnataka University & Anr Vs. Dr. Prabhugouda & Anr | 14. Clause 13 of the statute deals with the Stages of Promotion under CAS of Incumbent and Newly Appointed Assistant Professors, Associate Professors, Professors. Clauses 13.7 and 13.8 of the statute, read as under: 13.7 Assistant Professors completing three years of teaching in third grade (stage 3) shall be eligible, subject to the qualifying conditions and the API based PBAS requirements prescribed by this Statute, to move to the next higher grade (stage 4) and to be designated as Associate Professor. 13.8 Associate Professor completing three years of service in stage 4 and possessing a Ph.D. Degree in the relevant discipline shall be eligible to be appointed and designated as Professor and be placed in the next higher grade (stage 5), subject to (a) satisfying the required credit points as per API based PBAS methodology provided in Table I-III of Annexure-I stipulated in this Statute, and (b) an assessment by a duly constituted selection committee as suggested for the direct recruitment of Professor. Provided that, no teacher, other than those with a Ph.D., shall be promoted or appointed as Professor. 15. Clause 17 of the statute provides for Counting of Past Service for Direct Recruitment and Promotion Under CAS. A comprehensive reading of the statute makes it very clear that for the purpose of granting CAS promotion, the incumbent teacher must have holding a substantive sanctioned post, as much as CAS promotion being a personal promotion to the incumbent teacher and on superannuation of the individual incumbent, the said post shall revert back to its original cadre. It is also clear that the incumbent teacher must be on the roll and active services of the University or the College, on the date of consideration by the Selection Committee for selection under CAS Promotion. A harmonious reading of Clauses 12.6 and 12.7 of the Statute read with the Preamble thereof, makes it clear that the term College used in the said statute is referable to only Constituent College but not affiliated College. 16. The High Court, by losing sight of a vital aspect namely, that the first respondent was not in actual service of the University or of the constituent College, has ordered to extend the benefit from 01.01.2009, on the ground that he has completed three years of service, by working as Assistant Professor in Mathematics in UGC pay scale with effect from 01.01.2006 to 01.01.2009. There cannot be any promotion in the University for the period where the writ petitioner was not in effective service of the University. The University is not expected to order promotion for the period when he was working in affiliated college. The High Court, by mere mathematical calculation, by basing on the service certificate which is Annexure D before the High Court, has held that as he has completed three years of service as Assistant Professor in UGC scale and therefore the effective date of promotion should be 01.01.2009 and not 28.10.2013, as granted by the University. Further, the High Court has fell in error in interpreting clause/paragraph 12.7 of the Statute, by giving liberal meaning to the word colleges, by extending to affiliated college. Even the Division Bench has also committed the same error by recording a finding that a magnanimous interpretation is to be given for the wordings University/Colleges, as used in the paragraph/clause 12.7 of the Statute. The University has correctly interpreted the various clauses of the Statute and by giving the benefit of past service, has given effect to his promotion from the date of entry into the service of the University. It is also to be noticed that at the time of appointment itself, though the writ petitioner has completed three years of service, fully knowing that he was not eligible for appointment as a Professor, he has not claimed the post of Professor. Even the representations filed by the writ petitioner indicate that he claimed notional service, in spite of the same, the High Court, by misconstruing the statute contrary to its objectives, as mentioned in the preamble liberally construed, going beyond the scope of the statute and granted all consequential benefits, by declaring that the effective date for promotion was to be 01.01.2009 instead of 28.10.2013. 17. We do not find any substance in the argument made by the learned senior counsel appearing for the respondents, that the term principals of Constituent Colleges ought to be read disjunctively as against the other posts mentioned in the provision. If it is to be read in the manner as sought to be argued by learned counsel, same will run contrary to the objectives and preamble of the statute itself. Even the submission of the learned counsel relying on the definition under Section 2(2) of Karnataka State Universities Act, 2000, also does not render any assistance to support his case. Karnataka State Universities Act, 2000, applies to all the colleges, which includes private college. Even private colleges have to seek affiliation from the jurisdictional University, as such the College is widely defined in the Act. Said definition cannot be readily imported, as defined, for the purpose of grant of promotions under CAS. For the purpose of grant of promotions under CAS, the word College is to be interpreted, keeping in mind, the preamble of the statute, governing promotions. 18. In that view of the matter, we are of the clear view that, the incumbent teacher, who is entitled for promotion under the scheme, is to be given benefit only from the entry of service of such incumbent into the University. Though the earlier service is to be counted for the purpose of giving benefit of promotion, but effective date for all purposes is only from the date of entry of first respondent into the University service, i.e, 28.10.2013. The University is not expected to grant promotion, covering the period, anterior to the entry of service of the first respondent into University. As such, we are of the view that the University has rightly given the benefit of promotion from 28.10.2013. | 1[ds]A comprehensive reading of the statute makes it very clear that for the purpose of granting CAS promotion, the incumbent teacher must have holding a substantive sanctioned post, as much as CAS promotion being a personal promotion to the incumbent teacher and on superannuation of the individual incumbent, the said post shall revert back to its original cadre. It is also clear that the incumbent teacher must be on the roll and active services of the University or the College, on the date of consideration by the Selection Committee for selection under CAS Promotion. A harmonious reading of Clauses 12.6 and 12.7 of the Statute read with the Preamble thereof, makes it clear that the term College used in the said statute is referable to only Constituent College but not affiliated College.16. The High Court, by losing sight of a vital aspect namely, that the first respondent was not in actual service of the University or of the constituent College, has ordered to extend the benefit from 01.01.2009, on the ground that he has completed three years of service, by working as Assistant Professor in Mathematics in UGC pay scale with effect from 01.01.2006 to 01.01.2009. There cannot be any promotion in the University for the period where the writ petitioner was not in effective service of the University. The University is not expected to order promotion for the period when he was working in affiliated college. The High Court, by mere mathematical calculation, by basing on the service certificate which is Annexure D before the High Court, has held that as he has completed three years of service as Assistant Professor in UGC scale and therefore the effective date of promotion should be 01.01.2009 and not 28.10.2013, as granted by the University. Further, the High Court has fell in error in interpreting clause/paragraph 12.7 of the Statute, by giving liberal meaning to the word colleges, by extending to affiliated college. Even the Division Bench has also committed the same error by recording a finding that a magnanimous interpretation is to be given for the wordings University/Colleges, as used in the paragraph/clause 12.7 of the Statute. The University has correctly interpreted the various clauses of the Statute and by giving the benefit of past service, has given effect to his promotion from the date of entry into the service of the University. It is also to be noticed that at the time of appointment itself, though the writ petitioner has completed three years of service, fully knowing that he was not eligible for appointment as a Professor, he has not claimed the post of Professor. Even the representations filed by the writ petitioner indicate that he claimed notional service, in spite of the same, the High Court, by misconstruing the statute contrary to its objectives, as mentioned in the preamble liberally construed, going beyond the scope of the statute and granted all consequential benefits, by declaring that the effective date for promotion was to be 01.01.2009 instead of 28.10.2013.17. We do not find any substance in the argument made by the learned senior counsel appearing for the respondents, that the term principals of Constituent Colleges ought to be read disjunctively as against the other posts mentioned in the provision. If it is to be read in the manner as sought to be argued by learned counsel, same will run contrary to the objectives and preamble of the statute itself. Even the submission of the learned counsel relying on the definition under Section 2(2) of Karnataka State Universities Act, 2000, also does not render any assistance to support his case. Karnataka State Universities Act, 2000, applies to all the colleges, which includes private college. Even private colleges have to seek affiliation from the jurisdictional University, as such the College is widely defined in the Act. Said definition cannot be readily imported, as defined, for the purpose of grant of promotions under CAS. For the purpose of grant of promotions under CAS, the word College is to be interpreted, keeping in mind, the preamble of the statute, governing promotions.18. In that view of the matter, we are of the clear view that, the incumbent teacher, who is entitled for promotion under the scheme, is to be given benefit only from the entry of service of such incumbent into the University. Though the earlier service is to be counted for the purpose of giving benefit of promotion, but effective date for all purposes is only from the date of entry of first respondent into the University service, i.e, 28.10.2013. The University is not expected to grant promotion, covering the period, anterior to the entry of service of the first respondent into University. As such, we are of the view that the University has rightly given the benefit of promotion from 28.10.2013. | 1 | 3,009 | 882 | ### 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:
14. Clause 13 of the statute deals with the Stages of Promotion under CAS of Incumbent and Newly Appointed Assistant Professors, Associate Professors, Professors. Clauses 13.7 and 13.8 of the statute, read as under: 13.7 Assistant Professors completing three years of teaching in third grade (stage 3) shall be eligible, subject to the qualifying conditions and the API based PBAS requirements prescribed by this Statute, to move to the next higher grade (stage 4) and to be designated as Associate Professor. 13.8 Associate Professor completing three years of service in stage 4 and possessing a Ph.D. Degree in the relevant discipline shall be eligible to be appointed and designated as Professor and be placed in the next higher grade (stage 5), subject to (a) satisfying the required credit points as per API based PBAS methodology provided in Table I-III of Annexure-I stipulated in this Statute, and (b) an assessment by a duly constituted selection committee as suggested for the direct recruitment of Professor. Provided that, no teacher, other than those with a Ph.D., shall be promoted or appointed as Professor. 15. Clause 17 of the statute provides for Counting of Past Service for Direct Recruitment and Promotion Under CAS. A comprehensive reading of the statute makes it very clear that for the purpose of granting CAS promotion, the incumbent teacher must have holding a substantive sanctioned post, as much as CAS promotion being a personal promotion to the incumbent teacher and on superannuation of the individual incumbent, the said post shall revert back to its original cadre. It is also clear that the incumbent teacher must be on the roll and active services of the University or the College, on the date of consideration by the Selection Committee for selection under CAS Promotion. A harmonious reading of Clauses 12.6 and 12.7 of the Statute read with the Preamble thereof, makes it clear that the term College used in the said statute is referable to only Constituent College but not affiliated College. 16. The High Court, by losing sight of a vital aspect namely, that the first respondent was not in actual service of the University or of the constituent College, has ordered to extend the benefit from 01.01.2009, on the ground that he has completed three years of service, by working as Assistant Professor in Mathematics in UGC pay scale with effect from 01.01.2006 to 01.01.2009. There cannot be any promotion in the University for the period where the writ petitioner was not in effective service of the University. The University is not expected to order promotion for the period when he was working in affiliated college. The High Court, by mere mathematical calculation, by basing on the service certificate which is Annexure D before the High Court, has held that as he has completed three years of service as Assistant Professor in UGC scale and therefore the effective date of promotion should be 01.01.2009 and not 28.10.2013, as granted by the University. Further, the High Court has fell in error in interpreting clause/paragraph 12.7 of the Statute, by giving liberal meaning to the word colleges, by extending to affiliated college. Even the Division Bench has also committed the same error by recording a finding that a magnanimous interpretation is to be given for the wordings University/Colleges, as used in the paragraph/clause 12.7 of the Statute. The University has correctly interpreted the various clauses of the Statute and by giving the benefit of past service, has given effect to his promotion from the date of entry into the service of the University. It is also to be noticed that at the time of appointment itself, though the writ petitioner has completed three years of service, fully knowing that he was not eligible for appointment as a Professor, he has not claimed the post of Professor. Even the representations filed by the writ petitioner indicate that he claimed notional service, in spite of the same, the High Court, by misconstruing the statute contrary to its objectives, as mentioned in the preamble liberally construed, going beyond the scope of the statute and granted all consequential benefits, by declaring that the effective date for promotion was to be 01.01.2009 instead of 28.10.2013. 17. We do not find any substance in the argument made by the learned senior counsel appearing for the respondents, that the term principals of Constituent Colleges ought to be read disjunctively as against the other posts mentioned in the provision. If it is to be read in the manner as sought to be argued by learned counsel, same will run contrary to the objectives and preamble of the statute itself. Even the submission of the learned counsel relying on the definition under Section 2(2) of Karnataka State Universities Act, 2000, also does not render any assistance to support his case. Karnataka State Universities Act, 2000, applies to all the colleges, which includes private college. Even private colleges have to seek affiliation from the jurisdictional University, as such the College is widely defined in the Act. Said definition cannot be readily imported, as defined, for the purpose of grant of promotions under CAS. For the purpose of grant of promotions under CAS, the word College is to be interpreted, keeping in mind, the preamble of the statute, governing promotions. 18. In that view of the matter, we are of the clear view that, the incumbent teacher, who is entitled for promotion under the scheme, is to be given benefit only from the entry of service of such incumbent into the University. Though the earlier service is to be counted for the purpose of giving benefit of promotion, but effective date for all purposes is only from the date of entry of first respondent into the University service, i.e, 28.10.2013. The University is not expected to grant promotion, covering the period, anterior to the entry of service of the first respondent into University. As such, we are of the view that the University has rightly given the benefit of promotion from 28.10.2013.
### Response:
1
### Explanation:
A comprehensive reading of the statute makes it very clear that for the purpose of granting CAS promotion, the incumbent teacher must have holding a substantive sanctioned post, as much as CAS promotion being a personal promotion to the incumbent teacher and on superannuation of the individual incumbent, the said post shall revert back to its original cadre. It is also clear that the incumbent teacher must be on the roll and active services of the University or the College, on the date of consideration by the Selection Committee for selection under CAS Promotion. A harmonious reading of Clauses 12.6 and 12.7 of the Statute read with the Preamble thereof, makes it clear that the term College used in the said statute is referable to only Constituent College but not affiliated College.16. The High Court, by losing sight of a vital aspect namely, that the first respondent was not in actual service of the University or of the constituent College, has ordered to extend the benefit from 01.01.2009, on the ground that he has completed three years of service, by working as Assistant Professor in Mathematics in UGC pay scale with effect from 01.01.2006 to 01.01.2009. There cannot be any promotion in the University for the period where the writ petitioner was not in effective service of the University. The University is not expected to order promotion for the period when he was working in affiliated college. The High Court, by mere mathematical calculation, by basing on the service certificate which is Annexure D before the High Court, has held that as he has completed three years of service as Assistant Professor in UGC scale and therefore the effective date of promotion should be 01.01.2009 and not 28.10.2013, as granted by the University. Further, the High Court has fell in error in interpreting clause/paragraph 12.7 of the Statute, by giving liberal meaning to the word colleges, by extending to affiliated college. Even the Division Bench has also committed the same error by recording a finding that a magnanimous interpretation is to be given for the wordings University/Colleges, as used in the paragraph/clause 12.7 of the Statute. The University has correctly interpreted the various clauses of the Statute and by giving the benefit of past service, has given effect to his promotion from the date of entry into the service of the University. It is also to be noticed that at the time of appointment itself, though the writ petitioner has completed three years of service, fully knowing that he was not eligible for appointment as a Professor, he has not claimed the post of Professor. Even the representations filed by the writ petitioner indicate that he claimed notional service, in spite of the same, the High Court, by misconstruing the statute contrary to its objectives, as mentioned in the preamble liberally construed, going beyond the scope of the statute and granted all consequential benefits, by declaring that the effective date for promotion was to be 01.01.2009 instead of 28.10.2013.17. We do not find any substance in the argument made by the learned senior counsel appearing for the respondents, that the term principals of Constituent Colleges ought to be read disjunctively as against the other posts mentioned in the provision. If it is to be read in the manner as sought to be argued by learned counsel, same will run contrary to the objectives and preamble of the statute itself. Even the submission of the learned counsel relying on the definition under Section 2(2) of Karnataka State Universities Act, 2000, also does not render any assistance to support his case. Karnataka State Universities Act, 2000, applies to all the colleges, which includes private college. Even private colleges have to seek affiliation from the jurisdictional University, as such the College is widely defined in the Act. Said definition cannot be readily imported, as defined, for the purpose of grant of promotions under CAS. For the purpose of grant of promotions under CAS, the word College is to be interpreted, keeping in mind, the preamble of the statute, governing promotions.18. In that view of the matter, we are of the clear view that, the incumbent teacher, who is entitled for promotion under the scheme, is to be given benefit only from the entry of service of such incumbent into the University. Though the earlier service is to be counted for the purpose of giving benefit of promotion, but effective date for all purposes is only from the date of entry of first respondent into the University service, i.e, 28.10.2013. The University is not expected to grant promotion, covering the period, anterior to the entry of service of the first respondent into University. As such, we are of the view that the University has rightly given the benefit of promotion from 28.10.2013.
|
Sri Vijaylakshmi Rice Mills, New Contractors Company Etc Vs. State of Andhra Pradesh | submission, counsel has contended that as the prices fixed by the Government are me ant for the entire season, the appellants have to be paid at the controlled price as fixed vide the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, regardless of the dates an which the supplies were made. We cannot accede to this contention. It is no doubt true that the literal meaning of the word "substitute" is "to replace but the question before us is from which date the substitution or replacement of the new Schedule took effect. There is no deeming clause or some such provision in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 to indicate that it was intended to have a retrospective effect. It is a well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity, may be inferred, a notification takes effect from the date it is issued and not from any prior date. The principle is also well settled that statutes should not be construed so as to create new disability or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force. (See Mani Gopal Mitra v. The State of Bihar.4. The aforesaid sales in the instant cases having been made by the appellants before the coming into force of the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, and the property in the goods having passed to the Government of Andhra Pradesh on the dates the supplies were made, t he appellants had to be paid only at the controlled price obtaining on the dates the sales were effected and not at the increased price which came into operation subsequently. This view is in consonance with the provisions of section 3 of the Act and the Andhra Pradesh Rice Procurement (Levy) order, 1959 which clearly indicate that the price payable to the dealers and Millers for the supplies of rice made by them is the control price obtaining on the date when the sale is made. Similar view is taken in the unreported decision dated April 20, 1962 of this Court in K. Appayya Shambhague and Co. v. The State of Mysore &Anr. where it was laid down that the order made under section 3(2) (f) of the Act are offers of sale which the person on whom a requisition is served has no option but to accept and that the price that has to be paid is the controlled price fixed by the Government under section 3(2) (c) of the Act on the date when he goods are ascertain ed or when the property in the goods passes to the buyer. This decision was followed by the High Court of Andhra Pradesh in The Union of India, represented by the Secretary, Ministry of Food and Agriculture, Government of India, New Delhi v. Kanuri Damodariah &Co. Alluri Venkatanarasiah, where it was held that an order under section 3(2) (f) amounts to an agreement for sale and the price payable for the quantities of rice supplied is a price payable in accordance with the price notified under the provisions of section 3(3) of the Act.In the instant cases, the sale having been made before the coming into force of the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, the appellants cannot justifiably claim the benefit of the increased price specified in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964. The acceptance of the contention raised on behalf of the appellants will lead to grave consequences. It will have the effect of reopening the transactions past and closed and would thus give rise to lots of difficulties.5. Mr. Nariman has, in support of his contention, relied on the following passage occurring at p. 394 in Craies on Statute Law (Sixth Edition):-"Explanatory and declaratory Acts retrospectiveWhere a Statute is passed for the purpose of supplying an obvious omission in a former statute, or, as Parke J. (afterwards Baron Parke) said in R. V. Dursley (1832) 3 B. & Ad. 465, 469 "to `explain a former statute, " the subsequent statute has relation back to the time when the prior Act was passed. Thus in Att.-Gen v. Poughtt (1816) 2 Price 381, 392, it appeared that by a Customs Act of 187 3 (53 Geo. 3, c. 33) a duty was imposed upon hides of 9s. 4d., but the Act omitted to state that it was to be 9s. 4d. per cwt., and to remedy this omission another Customs Act 53 Geo. c. 105) was passed later in the same y ear. Between the passing of these two Acts some hides were exported, and it was contended that they were not liable to pay the duty 9s. 4d. per cwt., but Thomson C. B., in giving judgment for the Attorney General, said: "The duty in this instant was in fact imposed by the first Act, but the gross mistakes of the omission of the weight for which the sum expressed was to have been payable occasioned the amendment made by the subsequent Act, but that had reference to the former statute as soon as it passed, and they must be taken together as if they were one and the same Act."Where an Act is in its nature declaratory, the presumption against construing it retrospectively is inapplicable."6. This passage has, in our opinion, no bearing on the question before us in view of the fact that the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 is neither explanatory nor declaratory, as sought to be interpreted by the counsel.7. The contention of Mr. Nariman that the controlled prices fixed by the Central Government for sale of rice are seasonal prices not being based upon any cogent material cannot also be accepted.8. The High Court was, therefore, right in allowing the aforesaid appeals preferred by the respondent and reversing the judgment and decrees passed by the Subordinate Judge, Machilipatnam.9. | 0[ds]We cannot accede to this contention. It is no doubt true that the literal meaning of the word "substitute" is "to replace but the question before us is from which date the substitution or replacement of the new Schedule took effect. There is no deeming clause or some such provision in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 to indicate that it was intended to have a retrospective effect. It is a well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity, may be inferred, a notification takes effect from the date it is issued and not from any prior date. The principle is also well settled that statutes should not be construed so as to create new disability or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came intocontention of Mr. Nariman that the controlled prices fixed by the Central Government for sale of rice are seasonal prices not being based upon any cogent material cannot also beHigh Court was, therefore, right in allowing the aforesaid appeals preferred by the respondent and reversing the judgment and decrees passed by the Subordinate Judge, Machilipatnam. | 0 | 2,288 | 229 | ### 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:
submission, counsel has contended that as the prices fixed by the Government are me ant for the entire season, the appellants have to be paid at the controlled price as fixed vide the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, regardless of the dates an which the supplies were made. We cannot accede to this contention. It is no doubt true that the literal meaning of the word "substitute" is "to replace but the question before us is from which date the substitution or replacement of the new Schedule took effect. There is no deeming clause or some such provision in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 to indicate that it was intended to have a retrospective effect. It is a well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity, may be inferred, a notification takes effect from the date it is issued and not from any prior date. The principle is also well settled that statutes should not be construed so as to create new disability or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force. (See Mani Gopal Mitra v. The State of Bihar.4. The aforesaid sales in the instant cases having been made by the appellants before the coming into force of the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, and the property in the goods having passed to the Government of Andhra Pradesh on the dates the supplies were made, t he appellants had to be paid only at the controlled price obtaining on the dates the sales were effected and not at the increased price which came into operation subsequently. This view is in consonance with the provisions of section 3 of the Act and the Andhra Pradesh Rice Procurement (Levy) order, 1959 which clearly indicate that the price payable to the dealers and Millers for the supplies of rice made by them is the control price obtaining on the date when the sale is made. Similar view is taken in the unreported decision dated April 20, 1962 of this Court in K. Appayya Shambhague and Co. v. The State of Mysore &Anr. where it was laid down that the order made under section 3(2) (f) of the Act are offers of sale which the person on whom a requisition is served has no option but to accept and that the price that has to be paid is the controlled price fixed by the Government under section 3(2) (c) of the Act on the date when he goods are ascertain ed or when the property in the goods passes to the buyer. This decision was followed by the High Court of Andhra Pradesh in The Union of India, represented by the Secretary, Ministry of Food and Agriculture, Government of India, New Delhi v. Kanuri Damodariah &Co. Alluri Venkatanarasiah, where it was held that an order under section 3(2) (f) amounts to an agreement for sale and the price payable for the quantities of rice supplied is a price payable in accordance with the price notified under the provisions of section 3(3) of the Act.In the instant cases, the sale having been made before the coming into force of the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, the appellants cannot justifiably claim the benefit of the increased price specified in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964. The acceptance of the contention raised on behalf of the appellants will lead to grave consequences. It will have the effect of reopening the transactions past and closed and would thus give rise to lots of difficulties.5. Mr. Nariman has, in support of his contention, relied on the following passage occurring at p. 394 in Craies on Statute Law (Sixth Edition):-"Explanatory and declaratory Acts retrospectiveWhere a Statute is passed for the purpose of supplying an obvious omission in a former statute, or, as Parke J. (afterwards Baron Parke) said in R. V. Dursley (1832) 3 B. & Ad. 465, 469 "to `explain a former statute, " the subsequent statute has relation back to the time when the prior Act was passed. Thus in Att.-Gen v. Poughtt (1816) 2 Price 381, 392, it appeared that by a Customs Act of 187 3 (53 Geo. 3, c. 33) a duty was imposed upon hides of 9s. 4d., but the Act omitted to state that it was to be 9s. 4d. per cwt., and to remedy this omission another Customs Act 53 Geo. c. 105) was passed later in the same y ear. Between the passing of these two Acts some hides were exported, and it was contended that they were not liable to pay the duty 9s. 4d. per cwt., but Thomson C. B., in giving judgment for the Attorney General, said: "The duty in this instant was in fact imposed by the first Act, but the gross mistakes of the omission of the weight for which the sum expressed was to have been payable occasioned the amendment made by the subsequent Act, but that had reference to the former statute as soon as it passed, and they must be taken together as if they were one and the same Act."Where an Act is in its nature declaratory, the presumption against construing it retrospectively is inapplicable."6. This passage has, in our opinion, no bearing on the question before us in view of the fact that the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 is neither explanatory nor declaratory, as sought to be interpreted by the counsel.7. The contention of Mr. Nariman that the controlled prices fixed by the Central Government for sale of rice are seasonal prices not being based upon any cogent material cannot also be accepted.8. The High Court was, therefore, right in allowing the aforesaid appeals preferred by the respondent and reversing the judgment and decrees passed by the Subordinate Judge, Machilipatnam.9.
### Response:
0
### Explanation:
We cannot accede to this contention. It is no doubt true that the literal meaning of the word "substitute" is "to replace but the question before us is from which date the substitution or replacement of the new Schedule took effect. There is no deeming clause or some such provision in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 to indicate that it was intended to have a retrospective effect. It is a well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity, may be inferred, a notification takes effect from the date it is issued and not from any prior date. The principle is also well settled that statutes should not be construed so as to create new disability or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came intocontention of Mr. Nariman that the controlled prices fixed by the Central Government for sale of rice are seasonal prices not being based upon any cogent material cannot also beHigh Court was, therefore, right in allowing the aforesaid appeals preferred by the respondent and reversing the judgment and decrees passed by the Subordinate Judge, Machilipatnam.
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