Case Name
stringlengths 11
235
| Input
stringlengths 944
6.86k
| Output
stringlengths 11
196k
| Label
int64 0
1
| Count
int64 176
118k
| Decision_Count
int64 7
37.8k
| text
stringlengths 1.43k
13.9k
|
|---|---|---|---|---|---|---|
ANEESH KUMAR V. S.& ORS Vs. THE STATE OF KERALA & ORS | of interim order passed by this Court on 3.11.2014, which stood vacated whilst allowing the Civil Appeal on 13.10.2015. The one-year period referred to in Rule 13 of the 1976 Rules, as per the general application, would have expired on 10.9.2014. There was no complete interdiction of the stated list until 3.11.2014 and for that reason, the KPSC was justified in issuing advice even after the interim order was passed by the Tribunal, namely, on 20.1.2014 (before the status quo order was passed by this Court for the first time on 3.11.2014). The final advice was admittedly issued on 11.11.2015 after the disposal of civil appeals by this Court on 13.10.2015. Pursuant to the final (third) advice, the last batch of 339 empanelled candidates from the first Ranked List (RL-I) was sent for training on 1.5.2016, as a result of which the first Ranked List (RL-I) ceased to exist on expiry of one month therefrom i.e. on 1.6.2016. This conclusion has been justly arrived at by the Full Bench disregarding the decision of the KPSC, dated 26.10.2015 to treat the first Ranked List (RL-I) having ceased to exist due to publication of second Ranked List (RL-II) on 26.5.2015. 27. The Full Bench also took notice of the fact that the vacancies were reported after a gap of more than eight months on 12.7.2016 and that the last (third) advice was made on 11.11.2015. The Full Bench taking notice of the settled legal position, as expounded in S.S. Balu (supra), Kerala Public Service Commission vs. Shanil Kumar (2002) 1 KLT 604 , Lal Sudheer & Ors. vs. Kerala State Road Transport Corporation & Anr. , (2003) 1 KLT 329 Secretary, Kerala Public Service Commission vs. Sheeja P.R. & Anr. (2013) 2 SCC 56 and Nair Service Society vs. Distt. Officer, Kerala Public Service Commission & Ors. (2003) 12 SCC 10 , went on to hold that by now it is well established that the Commission (KPSC) cannot advise any candidate after the expiry of a Ranked List, even to an NJD vacancy, if such vacancies are reported after the expiry of the list in question. We agree with this opinion of the Full Bench. Admittedly, all the appellants were empanelled in the first Ranked List (RL-I), which, as aforementioned, had ceased to exist on 1.6.2016. Resultantly, the appellants cannot set up any claim in respect of vacancies reported thereafter. The NJD vacancies reported after 1.6.2016 must be filled up from amongst the empanelled candidates in the fresh Ranked List (i.e. the second Ranked List (RL-II) published on 26.5.2015 or the third Ranked List (RL-III) published on 14.3.2019, as the case may be). 28. We will revert to the third issue, which has now become a side issue and insignificant to the case on hand - as to whether the maxims - actus curiae neminem gravabit and lex non cogit ad impossibilia will come to the aid of the appellants. From the analysis of factual matrix of the case on hand, it becomes evident that there was no complete interdiction of the first Ranked List (RL-I) published on 11.9.2013 until the order of status quo was passed on 3.11.2014 by this Court. It is true that despite the order of status quo, the second Ranked List (RL-II) came to be published on 26.5.2015. According to the respondents, the order of status quo must be construed as only restraining the respondents from giving effect to the first Ranked List (RL-I) in any manner. 29. Notably, the issue pending consideration in the civil appeal in which the order of status quo was passed by this Court on 3.11.2014, was in reference to the directions given by the Tribunal on 20.2.2014 to re-cast the first Ranked List (RL-I) with main and supplementary lists, and to refrain from advising candidates who had secured less than 49 marks. As noted earlier, no candidate with less than 49 marks had been advised either from the final first Ranked List (RL-I) published on 11.9.2013 or the second Ranked List (RL-II) published on 26.5.2015. Furthermore, this Court while disposing of Civil Appeal No. 8536/2015 and connected appeal on 13.10.2015, to which the appellants were also party, did not issue any direction to the respondents to report about the existing NJD vacancies at the relevant time or otherwise, to KPSC, so as to accommodate the remaining empanelled candidates from the first Ranked List (RL-I) before giving effect to the second Ranked List (RL-II) dated 26.5.2015. 30. Be it noted that grievance about publication of the second Ranked List (RL-II) during the pendency of appeal before this Court and despite the order of status quo, was not pursued before this Court on behalf of the appellants. We find force in the argument of the respondents that the order of status quo though interdicted processing of the first Ranked List (RL-I), that restriction stood lifted with setting aside of the decisions of the Tribunal and the High Court and allowing the appeal on 13.10.2015. Sans any direction by this Court and challenge to publication of the second Ranked List (RL-II) on 26.5.2015, nothing came in the way of the respondents to proceed with the final advice made on 11.11.2015 relating to 339 empanelled candidates from the first Ranked List (RL-I), who in turn, commenced their training on 1.5.2016. 31. Considering the indisputable facts and unexceptionable finding recorded by the Full Bench which commends to us, it must follow that the appellants were not entitled to base their claim in reference to the first Ranked List (RL-I), which had ceased to exist on 1.6.2016, by filing writ petition(s) on 12.10.2017 for the stated reliefs. As the first Ranked List (RL-I), in law, ceased to exist from 1.6.2016, no relief could be granted to the appellants and the principles of actus curiae neminem gravabit and lex non cogit ad impossibilia will be of no avail, as it was not a case of any prejudice caused to the appellants on account of Court order as such. | 0[ds]Ordinarily, the Full Bench is expected to decide only those issues which are referred to it by the Division Bench and must eschew from examining merits of the case as such. We are fortified in so observing in light of the dictum of this Court in T.A. Hameed vs. M. Viswanathan (2008) 3 SCC 243 . At the same time, we are also guided by the dictum of this Court in State of Punjab vs. Salil Sabhlok & Ors. (2013) 5 SCC 1. In that case, the Full Bench of the High Court while deciding the Reference, adjudicated other mattersOn a plain reading of this provision, it is amply clear that the Full Bench is competent to finally decide the case itself. It is an enabling provision. Nevertheless, we may first advert to the nature of Reference made by the Division Bench in the present case vide order dated 16.11.2018. The Division Bench in its Reference Order, had articulated the question posed by the appellants herein as to whether the candidates from the first Ranked List (RL-I) or from the second Ranked List (RL-II) have to be advised for the 93 (NJD) vacancies reported to the KPSC on 12.7.2016. From paragraph 5 onwards of the Reference Order, the Division Bench adverted to the relevant facts and noted that the candidates in the first Ranked List (RL-I) have to be advised for appointment to fill up the 93 NJD vacancies reported on 12.7.2016On perusal of the Reference Order, it appears that the Division Bench analysed the factual matrix of the case to opine that the candidates empanelled in the first Ranked List (RL-I) have to be advised for appointment to fill up the 93 NJD vacancies reported on 12.7.2016. However, it stopped short of issuing direction to the respondents on account of the exposition in Dr. Kesavankutty Nair (supra) and the purport of the governing rules. Further, the Reference Order had not formulated any specific question to be answered by the Full Bench, but an omnibus direction issued to the Registry to place the papers before the Honble Chief Justice for constitution of the Full Bench and an early resolution of the dispute . Such an omnibus reference would include exercise of jurisdiction by the Full Bench under Section 7 of the High Court Act, to finally decide the case itself. Ostensibly, it may appear as if Full Bench was sitting over in appeal on the findings of fact already recorded by the Division Bench. However, we find from the impugned judgment of the Full Bench that it was fully conscious about the limited scope of enquiry in Reference placed before it, but after due consideration of all aspects, deemed it necessary to analyse the factual matrix of the case in its correct perspective to justly answer the Reference. In the process, the Full Bench had to deviate from the observation made by the Division Bench that the candidates empanelled in the first Ranked List (RL-I) ought to be advised for appointment to fill up the 93 NJD vacancies reported on 12.7.2016, as, in its view, in law, the first Ranked List (RL-I) had expired on 1.6.2016. In other words, the Full Bench was fully conscious of the scope of its jurisdiction, as is evinced from the opening statement, in paragraph four of the impugned judgment. After recording the factual matrix and rival submissions, in paragraph 47 of the impugned judgment, the Full Bench noted that it was proceeding to answer the legal contentions within the parameters of the applicable law and after adverting to Rules 13 and 14 of the 1976 Rules, it analysed the factual matrix to conclude that since the last batch was advised by the KPSC from the first Ranked List (RL-I) on 11.11.2015 and it had joined training on 1.5.2016 in terms of first proviso to Rule 13, the first Ranked List (RL-I) ceased to operate from 1.6.2016 (namely, on completion of one month from 1.5.2016)23. Thus understood, in the peculiar facts of this case, the Full Bench had no other option but to analyse the factual matrix for ascertaining the applicability of extant rules and to answer the matters in issue involved in Reference appropriately. Suffice it to observe that the impugned judgment cannot be overturned on the basis of threshold (technical) plea under consideration. We are inclined to say so also because this is the second round of proceedings emanating from the selection process which had commenced with issuance of notification as back as 28.9.2007, for appointment to the post of Sub-Inspector of Police (Trainee). We are of the considered opinion that no fruitful purpose will be served by relegating the parties before the High Court on technicality. That objection, for the reasons already recorded, does not commend to us. Instead, in the peculiar facts of this case, we deem it necessary to answer the merits of the controversy so as to give quietus thereto concerning selection process commenced as back as in 2007 vide notification dated 28.9.2007On a plain reading of Rule 13, it is amply clear that the Ranked List published by the Commission (KPSC) would remain in force for a period of one year from the date on which it was brought into force. It further envisages that the said list will continue to be in force until the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years, whichever is earlier. The first proviso is an exception to the general rule. It predicates that the general rule shall not apply in respect of Ranked List of candidates for admission to training courses that leads to automatic appointment to services or posts and that in such cases, the Ranked Lists shall cease to be in force after one year from the date of finalization of the Ranked Lists or after one month from the date of commencement of the course in respect of the last batch selected from the list within a period of one year from the date of finalisation of the Ranked Lists, whichever is later. It is only this excepted eventuality which may elongate the tenure of the Ranked List published by the Commission (KPSC) beyond one year. The first Ranked List (RL-I) was published on 11.9.2013, but because of fortuitous situation, the final (third) advice from the first Ranked List (RL-I) was made by the KPSC on 11.11.2015 and the last batch of 339 candidates so advised was sent for training on 1.5.2016. Resultantly, the consequence provided by the first proviso to Rule 13 got triggered, whereby the first Ranked List (RL-I) ceased to operate in law, with effect from 1.6.2016We are in agreement with the analysis of factual matrix of the case undertaken by the Full Bench. Having said that, we must affirm the conclusion and application of Rule 13 by the Full Bench, to hold that the first Ranked List (RL-I) expired on 1.6.201626. The interim order passed by the Tribunal on 5.12.2013, in no way interdicted the operation of the first Ranked List (RL-I). As a matter of fact, none of the advised candidates from the first Ranked List (RL-I) had secured less than 49 marks in the preliminary examination. In any case, the original application(s) filed by the appellants before the Tribunal came to be disposed of on 20.2.2014, which order eventually became subject matter of Civil Appeal No. 8536/2015 and connected appeal before this Court. The operation of the first Ranked List (RL-I) was in a way interdicted for the first time on account of interim order passed by this Court on 3.11.2014, which stood vacated whilst allowing the Civil Appeal on 13.10.2015. The one-year period referred to in Rule 13 of the 1976 Rules, as per the general application, would have expired on 10.9.2014. There was no complete interdiction of the stated list until 3.11.2014 and for that reason, the KPSC was justified in issuing advice even after the interim order was passed by the Tribunal, namely, on 20.1.2014 (before the status quo order was passed by this Court for the first time on 3.11.2014). The final advice was admittedly issued on 11.11.2015 after the disposal of civil appeals by this Court on 13.10.2015. Pursuant to the final (third) advice, the last batch of 339 empanelled candidates from the first Ranked List (RL-I) was sent for training on 1.5.2016, as a result of which the first Ranked List (RL-I) ceased to exist on expiry of one month therefrom i.e. on 1.6.2016. This conclusion has been justly arrived at by the Full Bench disregarding the decision of the KPSC, dated 26.10.2015 to treat the first Ranked List (RL-I) having ceased to exist due to publication of second Ranked List (RL-II) on 26.5.201527. The Full Bench also took notice of the fact that the vacancies were reported after a gap of more than eight months on 12.7.2016 and that the last (third) advice was made on 11.11.2015. The Full Bench taking notice of the settled legal position, as expounded in S.S. Balu (supra), Kerala Public Service Commission vs. Shanil Kumar (2002) 1 KLT 604 , Lal Sudheer & Ors. vs. Kerala State Road Transport Corporation & Anr. , (2003) 1 KLT 329 Secretary, Kerala Public Service Commission vs. Sheeja P.R. & Anr. (2013) 2 SCC 56 and Nair Service Society vs. Distt. Officer, Kerala Public Service Commission & Ors. (2003) 12 SCC 10 , went on to hold that by now it is well established that the Commission (KPSC) cannot advise any candidate after the expiry of a Ranked List, even to an NJD vacancy, if such vacancies are reported after the expiry of the list in question. We agree with this opinion of the Full Bench. Admittedly, all the appellants were empanelled in the first Ranked List (RL-I), which, as aforementioned, had ceased to exist on 1.6.2016. Resultantly, the appellants cannot set up any claim in respect of vacancies reported thereafter. The NJD vacancies reported after 1.6.2016 must be filled up from amongst the empanelled candidates in the fresh Ranked List (i.e. the second Ranked List (RL-II) published on 26.5.2015 or the third Ranked List (RL-III) published on 14.3.2019, as the case may be)From the analysis of factual matrix of the case on hand, it becomes evident that there was no complete interdiction of the first Ranked List (RL-I) published on 11.9.2013 until the order of status quo was passed on 3.11.2014 by this Court. It is true that despite the order of status quo, the second Ranked List (RL-II) came to be published on 26.5.2015. According to the respondents, the order of status quo must be construed as only restraining the respondents from giving effect to the first Ranked List (RL-I) in any manner29. Notably, the issue pending consideration in the civil appeal in which the order of status quo was passed by this Court on 3.11.2014, was in reference to the directions given by the Tribunal on 20.2.2014 to re-cast the first Ranked List (RL-I) with main and supplementary lists, and to refrain from advising candidates who had secured less than 49 marks. As noted earlier, no candidate with less than 49 marks had been advised either from the final first Ranked List (RL-I) published on 11.9.2013 or the second Ranked List (RL-II) published on 26.5.2015. Furthermore, this Court while disposing of Civil Appeal No. 8536/2015 and connected appeal on 13.10.2015, to which the appellants were also party, did not issue any direction to the respondents to report about the existing NJD vacancies at the relevant time or otherwise, to KPSC, so as to accommodate the remaining empanelled candidates from the first Ranked List (RL-I) before giving effect to the second Ranked List (RL-II) dated 26.5.201530. Be it noted that grievance about publication of the second Ranked List (RL-II) during the pendency of appeal before this Court and despite the order of status quo, was not pursued before this Court on behalf of the appellants. We find force in the argument of the respondents that the order of status quo though interdicted processing of the first Ranked List (RL-I), that restriction stood lifted with setting aside of the decisions of the Tribunal and the High Court and allowing the appeal on 13.10.2015. Sans any direction by this Court and challenge to publication of the second Ranked List (RL-II) on 26.5.2015, nothing came in the way of the respondents to proceed with the final advice made on 11.11.2015 relating to 339 empanelled candidates from the first Ranked List (RL-I), who in turn, commenced their training on 1.5.201631. Considering the indisputable facts and unexceptionable finding recorded by the Full Bench which commends to us, it must follow that the appellants were not entitled to base their claim in reference to the first Ranked List (RL-I), which had ceased to exist on 1.6.2016, by filing writ petition(s) on 12.10.2017 for the stated reliefs. As the first Ranked List (RL-I), in law, ceased to exist from 1.6.2016, no relief could be granted to the appellants and the principles of actus curiae neminem gravabit and lex non cogit ad impossibilia will be of no avail, as it was not a case of any prejudice caused to the appellants on account of Court order as such. | 0 | 10,182 | 2,500 | ### 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:
of interim order passed by this Court on 3.11.2014, which stood vacated whilst allowing the Civil Appeal on 13.10.2015. The one-year period referred to in Rule 13 of the 1976 Rules, as per the general application, would have expired on 10.9.2014. There was no complete interdiction of the stated list until 3.11.2014 and for that reason, the KPSC was justified in issuing advice even after the interim order was passed by the Tribunal, namely, on 20.1.2014 (before the status quo order was passed by this Court for the first time on 3.11.2014). The final advice was admittedly issued on 11.11.2015 after the disposal of civil appeals by this Court on 13.10.2015. Pursuant to the final (third) advice, the last batch of 339 empanelled candidates from the first Ranked List (RL-I) was sent for training on 1.5.2016, as a result of which the first Ranked List (RL-I) ceased to exist on expiry of one month therefrom i.e. on 1.6.2016. This conclusion has been justly arrived at by the Full Bench disregarding the decision of the KPSC, dated 26.10.2015 to treat the first Ranked List (RL-I) having ceased to exist due to publication of second Ranked List (RL-II) on 26.5.2015. 27. The Full Bench also took notice of the fact that the vacancies were reported after a gap of more than eight months on 12.7.2016 and that the last (third) advice was made on 11.11.2015. The Full Bench taking notice of the settled legal position, as expounded in S.S. Balu (supra), Kerala Public Service Commission vs. Shanil Kumar (2002) 1 KLT 604 , Lal Sudheer & Ors. vs. Kerala State Road Transport Corporation & Anr. , (2003) 1 KLT 329 Secretary, Kerala Public Service Commission vs. Sheeja P.R. & Anr. (2013) 2 SCC 56 and Nair Service Society vs. Distt. Officer, Kerala Public Service Commission & Ors. (2003) 12 SCC 10 , went on to hold that by now it is well established that the Commission (KPSC) cannot advise any candidate after the expiry of a Ranked List, even to an NJD vacancy, if such vacancies are reported after the expiry of the list in question. We agree with this opinion of the Full Bench. Admittedly, all the appellants were empanelled in the first Ranked List (RL-I), which, as aforementioned, had ceased to exist on 1.6.2016. Resultantly, the appellants cannot set up any claim in respect of vacancies reported thereafter. The NJD vacancies reported after 1.6.2016 must be filled up from amongst the empanelled candidates in the fresh Ranked List (i.e. the second Ranked List (RL-II) published on 26.5.2015 or the third Ranked List (RL-III) published on 14.3.2019, as the case may be). 28. We will revert to the third issue, which has now become a side issue and insignificant to the case on hand - as to whether the maxims - actus curiae neminem gravabit and lex non cogit ad impossibilia will come to the aid of the appellants. From the analysis of factual matrix of the case on hand, it becomes evident that there was no complete interdiction of the first Ranked List (RL-I) published on 11.9.2013 until the order of status quo was passed on 3.11.2014 by this Court. It is true that despite the order of status quo, the second Ranked List (RL-II) came to be published on 26.5.2015. According to the respondents, the order of status quo must be construed as only restraining the respondents from giving effect to the first Ranked List (RL-I) in any manner. 29. Notably, the issue pending consideration in the civil appeal in which the order of status quo was passed by this Court on 3.11.2014, was in reference to the directions given by the Tribunal on 20.2.2014 to re-cast the first Ranked List (RL-I) with main and supplementary lists, and to refrain from advising candidates who had secured less than 49 marks. As noted earlier, no candidate with less than 49 marks had been advised either from the final first Ranked List (RL-I) published on 11.9.2013 or the second Ranked List (RL-II) published on 26.5.2015. Furthermore, this Court while disposing of Civil Appeal No. 8536/2015 and connected appeal on 13.10.2015, to which the appellants were also party, did not issue any direction to the respondents to report about the existing NJD vacancies at the relevant time or otherwise, to KPSC, so as to accommodate the remaining empanelled candidates from the first Ranked List (RL-I) before giving effect to the second Ranked List (RL-II) dated 26.5.2015. 30. Be it noted that grievance about publication of the second Ranked List (RL-II) during the pendency of appeal before this Court and despite the order of status quo, was not pursued before this Court on behalf of the appellants. We find force in the argument of the respondents that the order of status quo though interdicted processing of the first Ranked List (RL-I), that restriction stood lifted with setting aside of the decisions of the Tribunal and the High Court and allowing the appeal on 13.10.2015. Sans any direction by this Court and challenge to publication of the second Ranked List (RL-II) on 26.5.2015, nothing came in the way of the respondents to proceed with the final advice made on 11.11.2015 relating to 339 empanelled candidates from the first Ranked List (RL-I), who in turn, commenced their training on 1.5.2016. 31. Considering the indisputable facts and unexceptionable finding recorded by the Full Bench which commends to us, it must follow that the appellants were not entitled to base their claim in reference to the first Ranked List (RL-I), which had ceased to exist on 1.6.2016, by filing writ petition(s) on 12.10.2017 for the stated reliefs. As the first Ranked List (RL-I), in law, ceased to exist from 1.6.2016, no relief could be granted to the appellants and the principles of actus curiae neminem gravabit and lex non cogit ad impossibilia will be of no avail, as it was not a case of any prejudice caused to the appellants on account of Court order as such.
### Response:
0
### Explanation:
before the Tribunal came to be disposed of on 20.2.2014, which order eventually became subject matter of Civil Appeal No. 8536/2015 and connected appeal before this Court. The operation of the first Ranked List (RL-I) was in a way interdicted for the first time on account of interim order passed by this Court on 3.11.2014, which stood vacated whilst allowing the Civil Appeal on 13.10.2015. The one-year period referred to in Rule 13 of the 1976 Rules, as per the general application, would have expired on 10.9.2014. There was no complete interdiction of the stated list until 3.11.2014 and for that reason, the KPSC was justified in issuing advice even after the interim order was passed by the Tribunal, namely, on 20.1.2014 (before the status quo order was passed by this Court for the first time on 3.11.2014). The final advice was admittedly issued on 11.11.2015 after the disposal of civil appeals by this Court on 13.10.2015. Pursuant to the final (third) advice, the last batch of 339 empanelled candidates from the first Ranked List (RL-I) was sent for training on 1.5.2016, as a result of which the first Ranked List (RL-I) ceased to exist on expiry of one month therefrom i.e. on 1.6.2016. This conclusion has been justly arrived at by the Full Bench disregarding the decision of the KPSC, dated 26.10.2015 to treat the first Ranked List (RL-I) having ceased to exist due to publication of second Ranked List (RL-II) on 26.5.201527. The Full Bench also took notice of the fact that the vacancies were reported after a gap of more than eight months on 12.7.2016 and that the last (third) advice was made on 11.11.2015. The Full Bench taking notice of the settled legal position, as expounded in S.S. Balu (supra), Kerala Public Service Commission vs. Shanil Kumar (2002) 1 KLT 604 , Lal Sudheer & Ors. vs. Kerala State Road Transport Corporation & Anr. , (2003) 1 KLT 329 Secretary, Kerala Public Service Commission vs. Sheeja P.R. & Anr. (2013) 2 SCC 56 and Nair Service Society vs. Distt. Officer, Kerala Public Service Commission & Ors. (2003) 12 SCC 10 , went on to hold that by now it is well established that the Commission (KPSC) cannot advise any candidate after the expiry of a Ranked List, even to an NJD vacancy, if such vacancies are reported after the expiry of the list in question. We agree with this opinion of the Full Bench. Admittedly, all the appellants were empanelled in the first Ranked List (RL-I), which, as aforementioned, had ceased to exist on 1.6.2016. Resultantly, the appellants cannot set up any claim in respect of vacancies reported thereafter. The NJD vacancies reported after 1.6.2016 must be filled up from amongst the empanelled candidates in the fresh Ranked List (i.e. the second Ranked List (RL-II) published on 26.5.2015 or the third Ranked List (RL-III) published on 14.3.2019, as the case may be)From the analysis of factual matrix of the case on hand, it becomes evident that there was no complete interdiction of the first Ranked List (RL-I) published on 11.9.2013 until the order of status quo was passed on 3.11.2014 by this Court. It is true that despite the order of status quo, the second Ranked List (RL-II) came to be published on 26.5.2015. According to the respondents, the order of status quo must be construed as only restraining the respondents from giving effect to the first Ranked List (RL-I) in any manner29. Notably, the issue pending consideration in the civil appeal in which the order of status quo was passed by this Court on 3.11.2014, was in reference to the directions given by the Tribunal on 20.2.2014 to re-cast the first Ranked List (RL-I) with main and supplementary lists, and to refrain from advising candidates who had secured less than 49 marks. As noted earlier, no candidate with less than 49 marks had been advised either from the final first Ranked List (RL-I) published on 11.9.2013 or the second Ranked List (RL-II) published on 26.5.2015. Furthermore, this Court while disposing of Civil Appeal No. 8536/2015 and connected appeal on 13.10.2015, to which the appellants were also party, did not issue any direction to the respondents to report about the existing NJD vacancies at the relevant time or otherwise, to KPSC, so as to accommodate the remaining empanelled candidates from the first Ranked List (RL-I) before giving effect to the second Ranked List (RL-II) dated 26.5.201530. Be it noted that grievance about publication of the second Ranked List (RL-II) during the pendency of appeal before this Court and despite the order of status quo, was not pursued before this Court on behalf of the appellants. We find force in the argument of the respondents that the order of status quo though interdicted processing of the first Ranked List (RL-I), that restriction stood lifted with setting aside of the decisions of the Tribunal and the High Court and allowing the appeal on 13.10.2015. Sans any direction by this Court and challenge to publication of the second Ranked List (RL-II) on 26.5.2015, nothing came in the way of the respondents to proceed with the final advice made on 11.11.2015 relating to 339 empanelled candidates from the first Ranked List (RL-I), who in turn, commenced their training on 1.5.201631. Considering the indisputable facts and unexceptionable finding recorded by the Full Bench which commends to us, it must follow that the appellants were not entitled to base their claim in reference to the first Ranked List (RL-I), which had ceased to exist on 1.6.2016, by filing writ petition(s) on 12.10.2017 for the stated reliefs. As the first Ranked List (RL-I), in law, ceased to exist from 1.6.2016, no relief could be granted to the appellants and the principles of actus curiae neminem gravabit and lex non cogit ad impossibilia will be of no avail, as it was not a case of any prejudice caused to the appellants on account of Court order as such.
|
State Of Gujarat Vs. Ramesh Chandra Mashruwala | is in judicial service. 9. Reference to the Presidency Small Cause Courts Act, 1882 is necessary to find out the powers, position and duties of the Registrar of the Small Cause Court. Section 13 of the Act states : "There shall be appointed an officer to be called the Registrar of the Court who shall be chief ministerial officer of the Court". 10. The other provisions in the Act which deal with the powers of the Registrar are to be found in Sections 9(1)(aa), 14, 33, 34, 35 and 36, which read as follows :"9. (1)(aa) The High Court may, from time to time, by rules having the force of law, - empower the Registrar to hear and dispose of undefended suits and interlocutory application or matters. 14. The Provincial Government may invest the Registrar with the powers of a Judge under this Act for the trial of suits in which the amount or value of the subject-matter does not exceed twenty rupees. And subject to the orders of the Chief Judge any Judge of the Small Cause Court may, whenever he thinks fit, transfer from his own file to the file of the Registrar any suit which the latter is competent to try- "33. Any non-judicial or quasi-judicial act which the Code of Civil Procedure as applied by this Act required to be done by a Judge, and any act which may be done by a Commissioner appointed to examine and adjust accounts under Section 394 of that Code as so applied, may be done by the Registrar of the Small Cause Court or by such other officer of that Court as that Court may, from time to time, appoint in this behalf. 34. The suits cognizable by the Registrar under Section 14 shall be heard and determined by him in like manner in all respects as a Judge of the Court might hear and determine the same. 35. The Registrar may receive applications for the execution of decrees of any valued passed by the Court, and may commit and discharge judgment-debtors, and make any order in respect thereof which a Judge of the Court might make under this Act. 36. Every decree and order made by the Registrar in any suit or proceeding shall be subject to the same provisions in regard to new trial as if made by a Judge of the Court." 11. These provisions of the Act indicate in no uncertain manner that the Registrar of a Small Cause Court exercise judicial powers, hears suits, passes decrees and an appeal is preferred from a decree of the Registrar. 12. for the appellant is right in his contention that the Registrar, Small Cause Court, inasmuch as he exercise judicial functions, is a judicial officer in judicial service and comes within the scope and intent of Articles 235 and 236. 13. The High Court was in error in holding that the High Court had no power to order disciplinary proceedings. It is significant that the High Court abdicated its own disciplinary jurisdiction. The independence of the judiciary has been emphasised by this Court in unmistakable terms in the following two decisions :"1. High Court of Punjab and Haryana v. State of Haryana ([1975] 3 SCR 365 : (1975) 1 SCC 843 : 1975 SCC (L & S) 229). 2. Shamsher Singh v. State of Punjab ([1975] 1 SCR 814 : (1974) 2 SCC 831 : 1974 SCC (L & S) 550). 14. The Gujarat High Court like other High Courts is competent to enquire into such disciplinary matters." 14. In the present appeal there were five contentions before the High Court on behalf of the Registrar. The first contentions fails in view of our conclusion that the High Court is the competent authority to hold departmental enquiry. The second contention of the Registrar was that the High Court had no authority to direct further inquiry to be made in respect of recording the statement of Bhatt or to consider the reports made by the inquiry officer and come to a conclusion about the guilt of the Registrar. The third contention of the Registrar was that the direction of the High Court that the statement of Bhatt be recorded was passed without hearing the Registrar and was violative of the rule of natural justice. 15. It will appear that the High Court issued directions and the statement of Bhatt was recorded by the Inquiry Officer : Bhatt is a lawyer. He was busy in Court. He could not appear before the Inquiry Officer on the date fixed for taking his evidence. The High Court asked the Inquiry Officer to record the evidence of Bhatt. The Registrar was given a copy of the statement of Bhatt after recording of Bhatts evidence. The Registrar was given an opportunity to deal with the evidence of Bhatt. It is idle to contend that the Registrar ought to have been heard before the High Court directed that the statement of Bhatt should be recorded. 16. The fourth contention of the Registrar was that there was failure to give copies of documents demanded by him therefore he did not have reasonable opportunity to defend himself. The High Court did not go into this question in view of the fact that the High Court did not consider this question. The Counsel for the Registrar submitted that he wanted to address the Court on the materials which were not available now. We are of opinion that the matter should be remitted to the High Court only on this question, viz. failure to give copies of certain documents demanded by the Registrar thus depriving him of a reasonable opportunity to defend himself and therefore, the inquiry was contrary to the provisions of Article 311 of the Constitution. 17. The fifth contention that the impugned order was passed by the Government without consulting the Public Service Commission does not survive in view of our conclusion that the High Court is the competent authority to make departmental inquiry. 18. | 1[ds]11. These provisions of the Act indicate in no uncertain manner that the Registrar of a Small Cause Court exercise judicial powers, hears suits, passes decrees and an appeal is preferred from a decree of the Registrar12. for the appellant is right in his contention that the Registrar, Small Cause Court, inasmuch as he exercise judicial functions, is a judicial officer in judicial service and comes within the scope and intent of Articles 235 and 23613. The High Court was in error in holding that the High Court had no power to order disciplinary proceedings. It is significant that the High Court abdicated its own disciplinary jurisdictionIn the present appeal there were five contentions before the High Court on behalf of the Registrar. The first contentions fails in view of our conclusion that the High Court is the competent authority to hold departmental enquiry. The second contention of the Registrar was that the High Court had no authority to direct further inquiry to be made in respect of recording the statement of Bhatt or to consider the reports made by the inquiry officer and come to a conclusion about the guilt of the Registrar. The third contention of the Registrar was that the direction of the High Court that the statement of Bhatt be recorded was passed without hearing the Registrar and was violative of the rule of natural justiceIt will appear that the High Court issued directions and the statement of Bhatt was recorded by the Inquiry Officer : Bhatt is a lawyer. He was busy in Court. He could not appear before the Inquiry Officer on the date fixed for taking his evidence. The High Court asked the Inquiry Officer to record the evidence of Bhatt. The Registrar was given a copy of the statement of Bhatt after recording of Bhatts evidence. The Registrar was given an opportunity to deal with the evidence of Bhatt. It is idle to contend that the Registrar ought to have been heard before the High Court directed that the statement of Bhatt should be recorded17. Thefourth contention of the Registrar was that there was failure to give copies of documents demanded by him therefore he did not have reasonable opportunity to defend himself. The High Court did not go into this question in view of the fact that the High Court did not consider this question. The Counsel for the Registrar submitted that he wanted to address the Court on the materials which were not available now. We are of opinion that the matter should be remitted to the High Court only on this question, viz. failure to give copies of certain documents demanded by the Registrar thus depriving him of a reasonable opportunity to defend himself and therefore, the inquiry was contrary to the provisions of Article 311 of the Constitutionth contention that the impugned order was passed by the Government without consulting the Public Service Commission does not survive in view of our conclusion that the High Court is the competent authority to make departmental inquiry. | 1 | 1,414 | 536 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
is in judicial service. 9. Reference to the Presidency Small Cause Courts Act, 1882 is necessary to find out the powers, position and duties of the Registrar of the Small Cause Court. Section 13 of the Act states : "There shall be appointed an officer to be called the Registrar of the Court who shall be chief ministerial officer of the Court". 10. The other provisions in the Act which deal with the powers of the Registrar are to be found in Sections 9(1)(aa), 14, 33, 34, 35 and 36, which read as follows :"9. (1)(aa) The High Court may, from time to time, by rules having the force of law, - empower the Registrar to hear and dispose of undefended suits and interlocutory application or matters. 14. The Provincial Government may invest the Registrar with the powers of a Judge under this Act for the trial of suits in which the amount or value of the subject-matter does not exceed twenty rupees. And subject to the orders of the Chief Judge any Judge of the Small Cause Court may, whenever he thinks fit, transfer from his own file to the file of the Registrar any suit which the latter is competent to try- "33. Any non-judicial or quasi-judicial act which the Code of Civil Procedure as applied by this Act required to be done by a Judge, and any act which may be done by a Commissioner appointed to examine and adjust accounts under Section 394 of that Code as so applied, may be done by the Registrar of the Small Cause Court or by such other officer of that Court as that Court may, from time to time, appoint in this behalf. 34. The suits cognizable by the Registrar under Section 14 shall be heard and determined by him in like manner in all respects as a Judge of the Court might hear and determine the same. 35. The Registrar may receive applications for the execution of decrees of any valued passed by the Court, and may commit and discharge judgment-debtors, and make any order in respect thereof which a Judge of the Court might make under this Act. 36. Every decree and order made by the Registrar in any suit or proceeding shall be subject to the same provisions in regard to new trial as if made by a Judge of the Court." 11. These provisions of the Act indicate in no uncertain manner that the Registrar of a Small Cause Court exercise judicial powers, hears suits, passes decrees and an appeal is preferred from a decree of the Registrar. 12. for the appellant is right in his contention that the Registrar, Small Cause Court, inasmuch as he exercise judicial functions, is a judicial officer in judicial service and comes within the scope and intent of Articles 235 and 236. 13. The High Court was in error in holding that the High Court had no power to order disciplinary proceedings. It is significant that the High Court abdicated its own disciplinary jurisdiction. The independence of the judiciary has been emphasised by this Court in unmistakable terms in the following two decisions :"1. High Court of Punjab and Haryana v. State of Haryana ([1975] 3 SCR 365 : (1975) 1 SCC 843 : 1975 SCC (L & S) 229). 2. Shamsher Singh v. State of Punjab ([1975] 1 SCR 814 : (1974) 2 SCC 831 : 1974 SCC (L & S) 550). 14. The Gujarat High Court like other High Courts is competent to enquire into such disciplinary matters." 14. In the present appeal there were five contentions before the High Court on behalf of the Registrar. The first contentions fails in view of our conclusion that the High Court is the competent authority to hold departmental enquiry. The second contention of the Registrar was that the High Court had no authority to direct further inquiry to be made in respect of recording the statement of Bhatt or to consider the reports made by the inquiry officer and come to a conclusion about the guilt of the Registrar. The third contention of the Registrar was that the direction of the High Court that the statement of Bhatt be recorded was passed without hearing the Registrar and was violative of the rule of natural justice. 15. It will appear that the High Court issued directions and the statement of Bhatt was recorded by the Inquiry Officer : Bhatt is a lawyer. He was busy in Court. He could not appear before the Inquiry Officer on the date fixed for taking his evidence. The High Court asked the Inquiry Officer to record the evidence of Bhatt. The Registrar was given a copy of the statement of Bhatt after recording of Bhatts evidence. The Registrar was given an opportunity to deal with the evidence of Bhatt. It is idle to contend that the Registrar ought to have been heard before the High Court directed that the statement of Bhatt should be recorded. 16. The fourth contention of the Registrar was that there was failure to give copies of documents demanded by him therefore he did not have reasonable opportunity to defend himself. The High Court did not go into this question in view of the fact that the High Court did not consider this question. The Counsel for the Registrar submitted that he wanted to address the Court on the materials which were not available now. We are of opinion that the matter should be remitted to the High Court only on this question, viz. failure to give copies of certain documents demanded by the Registrar thus depriving him of a reasonable opportunity to defend himself and therefore, the inquiry was contrary to the provisions of Article 311 of the Constitution. 17. The fifth contention that the impugned order was passed by the Government without consulting the Public Service Commission does not survive in view of our conclusion that the High Court is the competent authority to make departmental inquiry. 18.
### Response:
1
### Explanation:
11. These provisions of the Act indicate in no uncertain manner that the Registrar of a Small Cause Court exercise judicial powers, hears suits, passes decrees and an appeal is preferred from a decree of the Registrar12. for the appellant is right in his contention that the Registrar, Small Cause Court, inasmuch as he exercise judicial functions, is a judicial officer in judicial service and comes within the scope and intent of Articles 235 and 23613. The High Court was in error in holding that the High Court had no power to order disciplinary proceedings. It is significant that the High Court abdicated its own disciplinary jurisdictionIn the present appeal there were five contentions before the High Court on behalf of the Registrar. The first contentions fails in view of our conclusion that the High Court is the competent authority to hold departmental enquiry. The second contention of the Registrar was that the High Court had no authority to direct further inquiry to be made in respect of recording the statement of Bhatt or to consider the reports made by the inquiry officer and come to a conclusion about the guilt of the Registrar. The third contention of the Registrar was that the direction of the High Court that the statement of Bhatt be recorded was passed without hearing the Registrar and was violative of the rule of natural justiceIt will appear that the High Court issued directions and the statement of Bhatt was recorded by the Inquiry Officer : Bhatt is a lawyer. He was busy in Court. He could not appear before the Inquiry Officer on the date fixed for taking his evidence. The High Court asked the Inquiry Officer to record the evidence of Bhatt. The Registrar was given a copy of the statement of Bhatt after recording of Bhatts evidence. The Registrar was given an opportunity to deal with the evidence of Bhatt. It is idle to contend that the Registrar ought to have been heard before the High Court directed that the statement of Bhatt should be recorded17. Thefourth contention of the Registrar was that there was failure to give copies of documents demanded by him therefore he did not have reasonable opportunity to defend himself. The High Court did not go into this question in view of the fact that the High Court did not consider this question. The Counsel for the Registrar submitted that he wanted to address the Court on the materials which were not available now. We are of opinion that the matter should be remitted to the High Court only on this question, viz. failure to give copies of certain documents demanded by the Registrar thus depriving him of a reasonable opportunity to defend himself and therefore, the inquiry was contrary to the provisions of Article 311 of the Constitutionth contention that the impugned order was passed by the Government without consulting the Public Service Commission does not survive in view of our conclusion that the High Court is the competent authority to make departmental inquiry.
|
Mahadev Pandurang Kambekar Vs. Shree Krishna Woollen Mills | encroachment thereof, does not hold any water and cannot be accepted for a moment. The learned single Judge failed to see that the price was fixed under the impression that the area is 14912 sq. yards. It is to be seen that the Defendant has stated that for the first time in 1967 he became aware that the area of these survey numbers is more. It means that when the lease was granted the defendant was under the impression that the area of the survey numbers was 14912 sq. yards, it was subsequently found as a result of survey conducted by the Government that the area is in excess of 21000 sq. yards. In these circumstances, the learned single judge ought to have considered the question whether the agreed consideration is adequate or not. In any case without applying mind to that aspect of the matter, a decree of specific performance should not have been made. . At the hearing of this Appeal, on behalf of the plaintiff a copy of the order passed by the superintendent of Land Record, Mumbai Suburban district has been produced. In that order, it appears that a finding has been recorded that the defendant was owner of land admeasuring 14912 sq. yards only. A submission was made on behalf of the Defendant that they have challenged the order before the superior authority. Thus, so far as the city survey department is concerned, it is apparent that final decision has not yet been taken. In our opinion, however, the decision of the civil suit cannot be based solely on the basis of the orders that may be passed by the city survey officer from time to time. The court will have to find out on the basis of the evidence on record as to what is the exact area in possession of the Plaintiff. It is the case of the Plaintiff that the Plaintiff is in possession of land admeasuring 14912 sq. yards only as a lessee, and it is the case of the Defendant that the Plaintiff is in possession of land in excess of that area. Therefore, it was for the Plaintiff and the Defendant to lead evidence of expert witnesses, who have measured the land, to establish what was the land actually held by the Plaintiff as a lessee and a finding as to actual land in possession of the plaintiff as a lessee could have been recorded by the learned single Judge only on the basis of the evidence led by the parties. It is clear from the record that both the parties have not led any evidence either documentary or oral on this aspect of the matter. In our opinion, therefore, the decree passed by the learned single Judge cannot be sustained. ( 19 ) IN our opinion, two more aspects which were relevant and which have not been properly considered by the learned single Judge are that a contention was specifically raised on behalf of the Defendant that under the lease deed option to purchase the land was given to the Plaintiff, the Plaintiff is a body corporate, therefore, a decision to exercise that option can be taken by that body corporate only by passing a resolution. But a resolution passed by the company taking decision to exercise the option under clause (7) of the lease deed was never produced. This submission has been considered by the learned single Judge and has been rejected only by saying that the witness Mr. Sood is a secretary of the company and the deposition given by him before the court is not repudiate by the company. In our opinion, this is not a satisfactory answer. It was, in our opinion, for the Plaintiff to lead evidence to show either that the Plaintiff-company has passed a resolution deciding to exercise the option given to it under Clause (7) or to produce material showing that that decision to exercise that option has been taken by any officer of the company, who was authorised either by the Memorandum of Association or articles of Association of the Company or by a resolution of the company. . Second aspect, in our opinion, which has been overlooked by the learned single Judge is that passing a decree of specific performance is in the discretion of the court. One relevant aspect, in our opinion, should have been considered by the learned single Judge while deciding to pass a decree of specific performance was the admitted conduct of the plaintiff of stopping payment of rent after giving the purchase notice and thereby forfeiting its lease. The Plaintiff was entitled to purchase the property in its character as a lessee and if the Plaintiff allows that character itself to be forfeited by its default, the question, in our opinion, to be considered would be whether such a Plaintiff is entitled to claim a decree of specific performance, which is in the discretion of the court. We do not propose to express any final opinion either on this aspect or the aspect considered earlier, because in our opinion, these aspects should be considered by the learned single Judge before passing a decree of specific performance in favour of the Plaintiff. ( 20 ) IN our opinion, therefore, the decree of specific performance passed by the learned single judge in favour of the Plaintiff is liable to be set aside. However, as observed above the most crucial aspect to be considered is the area of the land in possession of the Plaintiff and for recording a final finding on that aspect , in our opinion, additional evidence is necessary in view of the subsequent orders passed by the survey authorities. Considering the manner in which the suit was contested by both the sides, in our opinion, both the sides should be given an opportunity to lead further evidence in the matter. Therefore, we propose to remand the suit back to the learned single Judge for further hearing and decision in accordance with law. | 1[ds]It is true that in view of the provisions of Section 41 of the Presidency Small cause Courts Act, the counter claim of the Defendant for a decree of eviction against the tenant is not maintainable in this court is not raised by the plaintiff in the written statement to the counter claim. However, in our opinion, despite that the plaintiff is entitled to urge that contention in appeal for the first time because the facts that are necessary for deciding that contention can be culled out from the counter claim filed by the Defendant himself. In thefiled by the defendant, the Defendant admits the relationship between the parties. The Defendant admits that the defendant is the owner of the property and that the defendant has granted lease of the property for a period of 99 years in favour of the Plaintiff. Thus, so far as characters of the parties are concerned,. e. landlord and tenant are admitted by the defendant himself. Thus, this is a suit filed by a landlord for a decree of eviction against the tenant/lessee. Whether after forfeiture of the lease or termination of the lease the Plaintiff continues to be a tenant for the purpose of Section 41 of the presidency Small Cause Courts Act or not is a different question and for deciding that question pleadings of the parties are not really relevant. For the purpose of deciding this contention the pleadings in the counter claim of the Defendant can be taken at their face value and therefore, in our opinion, the Plaintiff is entitled to urge this contention( 13 ) IT is clear from the observations of the division Bench quoted above that the Division Bench has held that the words landlord and tenant are used in Section 41 as a means of identification or a label to point out particular rights and obligations which arise out of such relationship either during its subsistence or after its terminationAs we have come to the conclusion that the counter claim of the defendant for a decree of eviction against the plaintiff was not maintainable in this court, we do not propose to decide two other submissions that were advanced on behalf of the Plaintiff( 15 ) IN the result, therefore, we have no option but to allow the appeal filed by the Plaintiff and set aside the decree of possession passed by the learned single Judge in the counter claim filed by the defendant( 18 ) IT is common ground that the suit of the plaintiff for a decree of specific performance arises out of Clause (7) of the lease Deed. Clause (7) of the lease deed reads as under:7. It is hereby agreed between the Lessees and Lessor that at any time within 20 years from the date of this Lease the Lessees for a consideration of Rs. 82016/which amount represents the present market value of the land and if and when the Lessees so elect and intimate to the Lessor in writing about their intention to purchase the same the Lessor shall within 4 months from the date of such intimation make out a marketable title of the said land to himself and execute a proper deed of conveyance in favour of the Lessees against the payment of the aforesaid amount free from encumbrances and liabilities whatsoever. In the event of such conveyance being executed the costs of and all incidental expenses to the execution thereof shall be borne by the parties in equal mainly except the costs of their respective legal advisers. Perusal of the above quoted clause shows that an option has been given by this clause to the Plaintiff to purchase the entire demised premises from the defendant for a consideration of Rs.. It is also an admitted position that that option was exercised by the Plaintiff by letter dated 3rd february, 1978. As per Clause (7), the option was to be exercised within 20 years of the date of the ease. It is an admitted position that the option was exercised by letter dated8 within the period of 20 years from the date of leasePerusal of Clause (1) shows that lease of land admeasuring 14912 sq. yards or thereabout was agreed to be granted. Use of the phrase thereabout shows that the land of which lease was granted can be a few yards more than 14912 sq. yards or a few yards less. Perusal of Clause 7 of the lease deed shows that the option was given to the lessee to purchase the demised land. Therefore, while considering the question whether the Plaintiff is entitled to a decree of specific performance or not it was necessary for the Court to record a definite finding as to what is the area of the demised land. The observation of the learned Judge that the question whether the Plaintiff is in possession of any excess area is not relevant for deciding the issue of entitlement or otherwise of the Plaintiff to a decree of specific performance, in our opinion, is clearly wrong. In this regard it is pertinent to be noted that Clause (7) also mentions the purchase price to be paid by the Plaintiff. That price obviously is fixed with reference to the area of the demised land. The learned single Judge in the judgment has observed that because the lease deed uses the phrase thereabout in relation to the demised land, lease of definite area is not granted. The observation, in our opinion, is erroneous. As observed above use of the phrase thereabout in relation to area mentioned in the lease deed may permit allowance of a few yards, but in our opinion, to hold that the lease deed which grants lease of land admeasuring 14912 sq. yards. or thereabout actually grants lease of land admeasuring 21069 sq. yards is absolutely unjustifiable. It is clear from the judgment of the learned single Judge that in the Sanads at Exh. 1, property register card at Exh. 2 show that the area of city Survey No. 741, 741/1 to 741/7 is shown as 21564 sq. yards. Pursuant to Courts order the City Survey map of the above referred survey numbers was produced. That map also shows that the area of the above mentioned survey numbers is 21564 sq. yards. The learned Judge has also observed to the same effect. exh. S is the certified map of City Survey no. 741, 741/1 to 7 in pursuance of the order of this court in this suit and this map is relevant to show the boundary line of suit land which is shown in yellow colour. This map shows that the area of the suit land is 21564 sq. yards equal to 17,982. 6 sq. mrts.Thus, from the material on the record of the learned single Judge it is clear that the area of the survey numbers in relation to which he has passed a decree of specific performance was 21564 sq. yards. In view of this position of the record, by passing a decree of specific performance of a contract to sale the land admeasuring 14912 sq. yards or thereabout, the Defendant cannot be made to sale the land admeasuring 21564 sq. yards. The learned single Judge has referred to the description of the property in the lease deed and has held that the Plaintiff is entitled to the decree of specific performance of the contract, irrespective of the actual areasThe learned single Judge failed to see that the price was fixed under the impression that the area is 14912 sq. yards. It is to be seen that the Defendant has stated that for the first time in 1967 he became aware that the area of these survey numbers is more. It means that when the lease was granted the defendant was under the impression that the area of the survey numbers was 14912 sq. yards, it was subsequently found as a result of survey conducted by the Government that the area is in excess of 21000 sq. yards. In these circumstances, the learned single judge ought to have considered the question whether the agreed consideration is adequate or not. In any case without applying mind to that aspect of the matter, a decree of specific performance should not have been made. . At the hearing of this Appeal, on behalf of the plaintiff a copy of the order passed by the superintendent of Land Record, Mumbai Suburban district has been produced. In that order, it appears that a finding has been recorded that the defendant was owner of land admeasuring 14912 sq. yards only. A submission was made on behalf of the Defendant that they have challenged the order before the superior authority. Thus, so far as the city survey department is concerned, it is apparent that final decision has not yet been taken. In our opinion, however, the decision of the civil suit cannot be based solely on the basis of the orders that may be passed by the city survey officer from time to time. The court will have to find out on the basis of the evidence on record as to what is the exact area in possession of the Plaintiff. It is the case of the Plaintiff that the Plaintiff is in possession of land admeasuring 14912 sq. yards only as a lessee, and it is the case of the Defendant that the Plaintiff is in possession of land in excess of that area. Therefore, it was for the Plaintiff and the Defendant to lead evidence of expert witnesses, who have measured the land, to establish what was the land actually held by the Plaintiff as a lessee and a finding as to actual land in possession of the plaintiff as a lessee could have been recorded by the learned single Judge only on the basis of the evidence led by the parties. It is clear from the record that both the parties have not led any evidence either documentary or oral on this aspect of the matter. In our opinion, therefore, the decree passed by the learned single Judge cannot be sustained( 19 ) IN our opinion, two more aspects which were relevant and which have not been properly considered by the learned single Judge are that a contention was specifically raised on behalf of the Defendant that under the lease deed option to purchase the land was given to the Plaintiff, the Plaintiff is a body corporate, therefore, a decision to exercise that option can be taken by that body corporate only by passing a resolution. But a resolution passed by the company taking decision to exercise the option under clause (7) of the lease deed was never produced. This submission has been considered by the learned single Judge and has been rejected only by saying that the witness Mr. Sood is a secretary of the company and the deposition given by him before the court is not repudiate by the company. In our opinion, this is not a satisfactory answer. It was, in our opinion, for the Plaintiff to lead evidence to show either that they has passed a resolution deciding to exercise the option given to it under Clause (7) or to produce material showing that that decision to exercise that option has been taken by any officer of the company, who was authorised either by the Memorandum of Association or articles of Association of the Company or by a resolution of the company. . Second aspect, in our opinion, which has been overlooked by the learned single Judge is that passing a decree of specific performance is in the discretion of the court. One relevant aspect, in our opinion, should have been considered by the learned single Judge while deciding to pass a decree of specific performance was the admitted conduct of the plaintiff of stopping payment of rent after giving the purchase notice and thereby forfeiting its lease. The Plaintiff was entitled to purchase the property in its character as a lessee and if the Plaintiff allows that character itself to be forfeited by its default, the question, in our opinion, to be considered would be whether such a Plaintiff is entitled to claim a decree of specific performance, which is in the discretion of the court. We do not propose to express any final opinion either on this aspect or the aspect considered earlier, because in our opinion, these aspects should be considered by the learned single Judge before passing a decree of specific performance in favour of the Plaintiff( 20 ) IN our opinion, therefore, the decree of specific performance passed by the learned single judge in favour of the Plaintiff is liable to be set aside. However, as observed above the most crucial aspect to be considered is the area of the land in possession of the Plaintiff and for recording a final finding on that aspect , in our opinion, additional evidence is necessary in view of the subsequent orders passed by the survey authorities. Considering the manner in which the suit was contested by both the sides, in our opinion, both the sides should be given an opportunity to lead further evidence in the matter. Therefore, we propose to remand the suit back to the learned single Judge for further hearing and decision in accordance with law. | 1 | 8,158 | 2,397 | ### 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:
encroachment thereof, does not hold any water and cannot be accepted for a moment. The learned single Judge failed to see that the price was fixed under the impression that the area is 14912 sq. yards. It is to be seen that the Defendant has stated that for the first time in 1967 he became aware that the area of these survey numbers is more. It means that when the lease was granted the defendant was under the impression that the area of the survey numbers was 14912 sq. yards, it was subsequently found as a result of survey conducted by the Government that the area is in excess of 21000 sq. yards. In these circumstances, the learned single judge ought to have considered the question whether the agreed consideration is adequate or not. In any case without applying mind to that aspect of the matter, a decree of specific performance should not have been made. . At the hearing of this Appeal, on behalf of the plaintiff a copy of the order passed by the superintendent of Land Record, Mumbai Suburban district has been produced. In that order, it appears that a finding has been recorded that the defendant was owner of land admeasuring 14912 sq. yards only. A submission was made on behalf of the Defendant that they have challenged the order before the superior authority. Thus, so far as the city survey department is concerned, it is apparent that final decision has not yet been taken. In our opinion, however, the decision of the civil suit cannot be based solely on the basis of the orders that may be passed by the city survey officer from time to time. The court will have to find out on the basis of the evidence on record as to what is the exact area in possession of the Plaintiff. It is the case of the Plaintiff that the Plaintiff is in possession of land admeasuring 14912 sq. yards only as a lessee, and it is the case of the Defendant that the Plaintiff is in possession of land in excess of that area. Therefore, it was for the Plaintiff and the Defendant to lead evidence of expert witnesses, who have measured the land, to establish what was the land actually held by the Plaintiff as a lessee and a finding as to actual land in possession of the plaintiff as a lessee could have been recorded by the learned single Judge only on the basis of the evidence led by the parties. It is clear from the record that both the parties have not led any evidence either documentary or oral on this aspect of the matter. In our opinion, therefore, the decree passed by the learned single Judge cannot be sustained. ( 19 ) IN our opinion, two more aspects which were relevant and which have not been properly considered by the learned single Judge are that a contention was specifically raised on behalf of the Defendant that under the lease deed option to purchase the land was given to the Plaintiff, the Plaintiff is a body corporate, therefore, a decision to exercise that option can be taken by that body corporate only by passing a resolution. But a resolution passed by the company taking decision to exercise the option under clause (7) of the lease deed was never produced. This submission has been considered by the learned single Judge and has been rejected only by saying that the witness Mr. Sood is a secretary of the company and the deposition given by him before the court is not repudiate by the company. In our opinion, this is not a satisfactory answer. It was, in our opinion, for the Plaintiff to lead evidence to show either that the Plaintiff-company has passed a resolution deciding to exercise the option given to it under Clause (7) or to produce material showing that that decision to exercise that option has been taken by any officer of the company, who was authorised either by the Memorandum of Association or articles of Association of the Company or by a resolution of the company. . Second aspect, in our opinion, which has been overlooked by the learned single Judge is that passing a decree of specific performance is in the discretion of the court. One relevant aspect, in our opinion, should have been considered by the learned single Judge while deciding to pass a decree of specific performance was the admitted conduct of the plaintiff of stopping payment of rent after giving the purchase notice and thereby forfeiting its lease. The Plaintiff was entitled to purchase the property in its character as a lessee and if the Plaintiff allows that character itself to be forfeited by its default, the question, in our opinion, to be considered would be whether such a Plaintiff is entitled to claim a decree of specific performance, which is in the discretion of the court. We do not propose to express any final opinion either on this aspect or the aspect considered earlier, because in our opinion, these aspects should be considered by the learned single Judge before passing a decree of specific performance in favour of the Plaintiff. ( 20 ) IN our opinion, therefore, the decree of specific performance passed by the learned single judge in favour of the Plaintiff is liable to be set aside. However, as observed above the most crucial aspect to be considered is the area of the land in possession of the Plaintiff and for recording a final finding on that aspect , in our opinion, additional evidence is necessary in view of the subsequent orders passed by the survey authorities. Considering the manner in which the suit was contested by both the sides, in our opinion, both the sides should be given an opportunity to lead further evidence in the matter. Therefore, we propose to remand the suit back to the learned single Judge for further hearing and decision in accordance with law.
### Response:
1
### Explanation:
the Plaintiff is entitled to the decree of specific performance of the contract, irrespective of the actual areasThe learned single Judge failed to see that the price was fixed under the impression that the area is 14912 sq. yards. It is to be seen that the Defendant has stated that for the first time in 1967 he became aware that the area of these survey numbers is more. It means that when the lease was granted the defendant was under the impression that the area of the survey numbers was 14912 sq. yards, it was subsequently found as a result of survey conducted by the Government that the area is in excess of 21000 sq. yards. In these circumstances, the learned single judge ought to have considered the question whether the agreed consideration is adequate or not. In any case without applying mind to that aspect of the matter, a decree of specific performance should not have been made. . At the hearing of this Appeal, on behalf of the plaintiff a copy of the order passed by the superintendent of Land Record, Mumbai Suburban district has been produced. In that order, it appears that a finding has been recorded that the defendant was owner of land admeasuring 14912 sq. yards only. A submission was made on behalf of the Defendant that they have challenged the order before the superior authority. Thus, so far as the city survey department is concerned, it is apparent that final decision has not yet been taken. In our opinion, however, the decision of the civil suit cannot be based solely on the basis of the orders that may be passed by the city survey officer from time to time. The court will have to find out on the basis of the evidence on record as to what is the exact area in possession of the Plaintiff. It is the case of the Plaintiff that the Plaintiff is in possession of land admeasuring 14912 sq. yards only as a lessee, and it is the case of the Defendant that the Plaintiff is in possession of land in excess of that area. Therefore, it was for the Plaintiff and the Defendant to lead evidence of expert witnesses, who have measured the land, to establish what was the land actually held by the Plaintiff as a lessee and a finding as to actual land in possession of the plaintiff as a lessee could have been recorded by the learned single Judge only on the basis of the evidence led by the parties. It is clear from the record that both the parties have not led any evidence either documentary or oral on this aspect of the matter. In our opinion, therefore, the decree passed by the learned single Judge cannot be sustained( 19 ) IN our opinion, two more aspects which were relevant and which have not been properly considered by the learned single Judge are that a contention was specifically raised on behalf of the Defendant that under the lease deed option to purchase the land was given to the Plaintiff, the Plaintiff is a body corporate, therefore, a decision to exercise that option can be taken by that body corporate only by passing a resolution. But a resolution passed by the company taking decision to exercise the option under clause (7) of the lease deed was never produced. This submission has been considered by the learned single Judge and has been rejected only by saying that the witness Mr. Sood is a secretary of the company and the deposition given by him before the court is not repudiate by the company. In our opinion, this is not a satisfactory answer. It was, in our opinion, for the Plaintiff to lead evidence to show either that they has passed a resolution deciding to exercise the option given to it under Clause (7) or to produce material showing that that decision to exercise that option has been taken by any officer of the company, who was authorised either by the Memorandum of Association or articles of Association of the Company or by a resolution of the company. . Second aspect, in our opinion, which has been overlooked by the learned single Judge is that passing a decree of specific performance is in the discretion of the court. One relevant aspect, in our opinion, should have been considered by the learned single Judge while deciding to pass a decree of specific performance was the admitted conduct of the plaintiff of stopping payment of rent after giving the purchase notice and thereby forfeiting its lease. The Plaintiff was entitled to purchase the property in its character as a lessee and if the Plaintiff allows that character itself to be forfeited by its default, the question, in our opinion, to be considered would be whether such a Plaintiff is entitled to claim a decree of specific performance, which is in the discretion of the court. We do not propose to express any final opinion either on this aspect or the aspect considered earlier, because in our opinion, these aspects should be considered by the learned single Judge before passing a decree of specific performance in favour of the Plaintiff( 20 ) IN our opinion, therefore, the decree of specific performance passed by the learned single judge in favour of the Plaintiff is liable to be set aside. However, as observed above the most crucial aspect to be considered is the area of the land in possession of the Plaintiff and for recording a final finding on that aspect , in our opinion, additional evidence is necessary in view of the subsequent orders passed by the survey authorities. Considering the manner in which the suit was contested by both the sides, in our opinion, both the sides should be given an opportunity to lead further evidence in the matter. Therefore, we propose to remand the suit back to the learned single Judge for further hearing and decision in accordance with law.
|
Ramachandra Shenoy And Another Vs. Mrs. Hilda Brite And Others | where successive interests are created by the use of the words after the first takers death. In such a case even if the second taker were the issue of the first the first takers interest is for life since by the use of the words after his or her lifetime successive interests are intended to be created. In our opinion, the case on hand would fall within illustration (c) and the bequest to Severina is only of life interest, this being made clear by the use of the words after her lifetime. 13. It was next said that Cl. 4 of the will furnished cogent evidence of what might be called the vocabulary of the textatrix which she employed when she intended to create a life interest. This intention, it was urged, was manifested in that clause by two provisions, first by providing that the legatee-the second daughter should enjoy up to her death only and then as if to emphasise the limited nature of the interest conferred, by expressly prohibiting all alienations by way of gift, sale, mortgage etc. We however see no distinction between the phrase enjoy up to her death and a provision which directs an enjoyment by a legatee by a clause which proceeds to make a gift over of the absolute interest after the death of the first legatee. Nor do we consider that the emphasis contained in the prohibition against alienation in Cl. 4 as of any decisive importance in understanding the phraseology employed by the testatrix in this will. For when one turns to Cl. 5, we find there is what without doubt is a life interest in favour of her granddaughter-Julia-created by the use of the words enjoy the property up to her death without the addition of the prohibition against alienation which is found in Cl. 4. It is therefore manifest that expressions after the lifetime and after the death were words understood by the draftsman of the will to indicate that the interest referred to was a terminable one-a life interest-and we have these words after her lifetime in Cl. 3(c). 14. There is also one other consideration which supports the above construction. It was common ground that under Cl. 3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains on As death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour of Severina is established. It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely on or after or at As death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B.In the present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the male children of Severina the question is whether effect can or cannot be given to it. If the interest of Severina were held to be absolute no doubt effect could not be given to the said intention. But if there are words in the will which on a reasonable construction would denote that the interest of Severina was not intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in that context that the words after her lifetime occurring in Cl. 3 (c) assume crucial importance. These words do indicate that the persons designated by the words that followed were to take an interest after her, i.e., in succession and not jointly with her. And unless therefore the words referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the quality of the interest Severina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her male children. This was the interpretation which the learned Single Judge of the High Court adopted and we consider the same is correct. 15. Quite a number of authorities were cited by learned Counsel on either but in each one of these we find it stated that in the matter of the construction of a will authorities or precedents were of no help as each will has to be construed in its own terms and in the setting in which the clauses occur. We have therefore not thought it necessary to refer to these decisions. | 0[ds]14. There is also one other consideration which supports the above construction. It was common ground that under Cl. 3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains on As death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour of Severina is established. It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely on or after or at As death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B.In the present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the male children of Severina the question is whether effect can or cannot be given to it. If the interest of Severina were held to be absolute no doubt effect could not be given to the said intention. But if there are words in the will which on a reasonable construction would denote that the interest of Severina was not intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in that context that the words after her lifetime occurring in Cl. 3 (c) assume crucial importance. These words do indicate that the persons designated by the words that followed were to take an interest after her, i.e., in succession and not jointly with her. And unless therefore the words referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the quality of the interest Severina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her male children. This was the interpretation which the learned Single Judge of the High Court adopted and we consider the same is correct15. Quite a number of authorities were cited by learned Counsel on either but in each one of these we find it stated that in the matter of the construction of a will authorities or precedents were of no help as each will has to be construed in its own terms and in the setting in which the clauses occur. We have therefore not thought it necessary to refer to these decisions. | 0 | 4,598 | 693 | ### 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:
where successive interests are created by the use of the words after the first takers death. In such a case even if the second taker were the issue of the first the first takers interest is for life since by the use of the words after his or her lifetime successive interests are intended to be created. In our opinion, the case on hand would fall within illustration (c) and the bequest to Severina is only of life interest, this being made clear by the use of the words after her lifetime. 13. It was next said that Cl. 4 of the will furnished cogent evidence of what might be called the vocabulary of the textatrix which she employed when she intended to create a life interest. This intention, it was urged, was manifested in that clause by two provisions, first by providing that the legatee-the second daughter should enjoy up to her death only and then as if to emphasise the limited nature of the interest conferred, by expressly prohibiting all alienations by way of gift, sale, mortgage etc. We however see no distinction between the phrase enjoy up to her death and a provision which directs an enjoyment by a legatee by a clause which proceeds to make a gift over of the absolute interest after the death of the first legatee. Nor do we consider that the emphasis contained in the prohibition against alienation in Cl. 4 as of any decisive importance in understanding the phraseology employed by the testatrix in this will. For when one turns to Cl. 5, we find there is what without doubt is a life interest in favour of her granddaughter-Julia-created by the use of the words enjoy the property up to her death without the addition of the prohibition against alienation which is found in Cl. 4. It is therefore manifest that expressions after the lifetime and after the death were words understood by the draftsman of the will to indicate that the interest referred to was a terminable one-a life interest-and we have these words after her lifetime in Cl. 3(c). 14. There is also one other consideration which supports the above construction. It was common ground that under Cl. 3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains on As death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour of Severina is established. It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely on or after or at As death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B.In the present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the male children of Severina the question is whether effect can or cannot be given to it. If the interest of Severina were held to be absolute no doubt effect could not be given to the said intention. But if there are words in the will which on a reasonable construction would denote that the interest of Severina was not intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in that context that the words after her lifetime occurring in Cl. 3 (c) assume crucial importance. These words do indicate that the persons designated by the words that followed were to take an interest after her, i.e., in succession and not jointly with her. And unless therefore the words referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the quality of the interest Severina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her male children. This was the interpretation which the learned Single Judge of the High Court adopted and we consider the same is correct. 15. Quite a number of authorities were cited by learned Counsel on either but in each one of these we find it stated that in the matter of the construction of a will authorities or precedents were of no help as each will has to be construed in its own terms and in the setting in which the clauses occur. We have therefore not thought it necessary to refer to these decisions.
### Response:
0
### Explanation:
14. There is also one other consideration which supports the above construction. It was common ground that under Cl. 3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains on As death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour of Severina is established. It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely on or after or at As death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B.In the present case if, as has to be admitted, the testatrix did intend to confer an absolute interest in the male children of Severina the question is whether effect can or cannot be given to it. If the interest of Severina were held to be absolute no doubt effect could not be given to the said intention. But if there are words in the will which on a reasonable construction would denote that the interest of Severina was not intended to be absolute but was limited to her life only, it would be proper for the Court to adopt such a construction, for that would give effect to every testamentary disposition contained in the will. It is in that context that the words after her lifetime occurring in Cl. 3 (c) assume crucial importance. These words do indicate that the persons designated by the words that followed were to take an interest after her, i.e., in succession and not jointly with her. And unless therefore the words referring to the interest conferred on the male children were held to be words of limitation merely, i.e., as denoting the quality of the interest Severina herself was to take and not words of purchase, the only reasonable construction possible of the clause would be to hold that the interest created in favour of Severina was merely a life interest and that the remainder in absolute was conferred on her male children. This was the interpretation which the learned Single Judge of the High Court adopted and we consider the same is correct15. Quite a number of authorities were cited by learned Counsel on either but in each one of these we find it stated that in the matter of the construction of a will authorities or precedents were of no help as each will has to be construed in its own terms and in the setting in which the clauses occur. We have therefore not thought it necessary to refer to these decisions.
|
The New India Assurance Co. Ltd Vs. Smt. Uma V. Parthipan and Ors | 1. Mentioned at 10.30 a.m. Not on Board. Taken on Board. Papers called for. 2. Since morning the department of the Court is still searching the papers of this matter. It is a very sad state of affairs. During the last National Lok Adalat, this matter was before the Court and could not get disposed of due to the physical absence of Respondent Nos. 2, 6 & 7. Today Respondent Nos. 1, 2, 6 and 7 are present before the Court. In so far as Respondent No.1 is concerned, she is appearing for herself and Respondent Nos. 3 to 5 (who are minors). 3. As stated above, the papers in the department are still not traceable. We are at the end of the day. Mr. Dange for the Insurance Company has now produced a copy of the First Appeal paperbook and submitted the same to the Court which is taken on record. Mr. More has also gone through the said copy in my presence and confirmed the same. 4. Consent Terms dated 11.12.2021 are tendered which have been executed by the Chief Manager, Ms. Lata Iyer on behalf of the Appellant Insurance Company and Respondent No.1 for self and on behalf of Respondent Nos. 3 to 5 who are minors, Respondent No.2, Respondent No.6 and Respondent No.7 and their Advocates respectively. Respondent Nos. 6 and 7 have put their L.H.T.I. i.e. left hand thumb impression in my presence in the Court. Similarly, Respondent Nos.1 and 2 have appended their signatures which are in Tamil in my presence. The Respondents appearing today and their signatures have been identified and verified by Advocate Mr. More who has also appeared for them even in the Trial Court. Hence, I accept the same. The consent terms and undertakings given in the said consent terms are accepted. However, certain directions are necessary and required to be passed in the facts and circumstances of the present case so as to ensure speedy justice to the Respondents. 5. Respondents who are the widow, children and parents of the deceased are beneficiaries of the Award / compensation. Their appearance in Court today itself brings tears in the eyes of Court. They are extremely poor. The Respondent No.1 lives in a hut with her children i.e. Respondent Nos. 2 to 5 on a footpath opposite G.T. Hospital. They are present before us. We have been informed that the Respondent Nos. 6 & 7 had arrived from their native village in Tamil Nadu yesterday for this case and are staying with the Respondent No.1 - daughter-in-law. The counsels appearing for the parties including my co-panelists today in the National Lok Adalat are ad idem that real justice is required to be done in the present case so as to ameliorate and redress the grievance and sufferings of the Respondents before us. | 1[ds]4. Consent Terms dated 11.12.2021 are tendered which have been executed by the Chief Manager, Ms. Lata Iyer on behalf of the Appellant Insurance Company and Respondent No.1 for self and on behalf of Respondent Nos. 3 to 5 who are minors, Respondent No.2, Respondent No.6 and Respondent No.7 and their Advocates respectively. Respondent Nos. 6 and 7 have put their L.H.T.I. i.e. left hand thumb impression in my presence in the Court. Similarly, Respondent Nos.1 and 2 have appended their signatures which are in Tamil in my presence. The Respondents appearing today and their signatures have been identified and verified by Advocate Mr. More who has also appeared for them even in the Trial Court. Hence, I accept the same. The consent terms and undertakings given in the said consent terms are accepted. However, certain directions are necessary and required to be passed in the facts and circumstances of the present case so as to ensure speedy justice to the Respondents.5. Respondents who are the widow, children and parents of the deceased are beneficiaries of the Award / compensation. Their appearance in Court today itself brings tears in the eyes of Court. They are extremely poor. The Respondent No.1 lives in a hut with her children i.e. Respondent Nos. 2 to 5 on a footpath opposite G.T. Hospital. They are present before us. We have been informed that the Respondent Nos. 6 & 7 had arrived from their native village in Tamil Nadu yesterday for this case and are staying with the Respondent No.1 - daughter-in-law. The counsels appearing for the parties including my co-panelists today in the National Lok Adalat are ad idem that real justice is required to be done in the present case so as to ameliorate and redress the grievance and sufferings of the Respondents before us. | 1 | 528 | 336 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
1. Mentioned at 10.30 a.m. Not on Board. Taken on Board. Papers called for. 2. Since morning the department of the Court is still searching the papers of this matter. It is a very sad state of affairs. During the last National Lok Adalat, this matter was before the Court and could not get disposed of due to the physical absence of Respondent Nos. 2, 6 & 7. Today Respondent Nos. 1, 2, 6 and 7 are present before the Court. In so far as Respondent No.1 is concerned, she is appearing for herself and Respondent Nos. 3 to 5 (who are minors). 3. As stated above, the papers in the department are still not traceable. We are at the end of the day. Mr. Dange for the Insurance Company has now produced a copy of the First Appeal paperbook and submitted the same to the Court which is taken on record. Mr. More has also gone through the said copy in my presence and confirmed the same. 4. Consent Terms dated 11.12.2021 are tendered which have been executed by the Chief Manager, Ms. Lata Iyer on behalf of the Appellant Insurance Company and Respondent No.1 for self and on behalf of Respondent Nos. 3 to 5 who are minors, Respondent No.2, Respondent No.6 and Respondent No.7 and their Advocates respectively. Respondent Nos. 6 and 7 have put their L.H.T.I. i.e. left hand thumb impression in my presence in the Court. Similarly, Respondent Nos.1 and 2 have appended their signatures which are in Tamil in my presence. The Respondents appearing today and their signatures have been identified and verified by Advocate Mr. More who has also appeared for them even in the Trial Court. Hence, I accept the same. The consent terms and undertakings given in the said consent terms are accepted. However, certain directions are necessary and required to be passed in the facts and circumstances of the present case so as to ensure speedy justice to the Respondents. 5. Respondents who are the widow, children and parents of the deceased are beneficiaries of the Award / compensation. Their appearance in Court today itself brings tears in the eyes of Court. They are extremely poor. The Respondent No.1 lives in a hut with her children i.e. Respondent Nos. 2 to 5 on a footpath opposite G.T. Hospital. They are present before us. We have been informed that the Respondent Nos. 6 & 7 had arrived from their native village in Tamil Nadu yesterday for this case and are staying with the Respondent No.1 - daughter-in-law. The counsels appearing for the parties including my co-panelists today in the National Lok Adalat are ad idem that real justice is required to be done in the present case so as to ameliorate and redress the grievance and sufferings of the Respondents before us.
### Response:
1
### Explanation:
4. Consent Terms dated 11.12.2021 are tendered which have been executed by the Chief Manager, Ms. Lata Iyer on behalf of the Appellant Insurance Company and Respondent No.1 for self and on behalf of Respondent Nos. 3 to 5 who are minors, Respondent No.2, Respondent No.6 and Respondent No.7 and their Advocates respectively. Respondent Nos. 6 and 7 have put their L.H.T.I. i.e. left hand thumb impression in my presence in the Court. Similarly, Respondent Nos.1 and 2 have appended their signatures which are in Tamil in my presence. The Respondents appearing today and their signatures have been identified and verified by Advocate Mr. More who has also appeared for them even in the Trial Court. Hence, I accept the same. The consent terms and undertakings given in the said consent terms are accepted. However, certain directions are necessary and required to be passed in the facts and circumstances of the present case so as to ensure speedy justice to the Respondents.5. Respondents who are the widow, children and parents of the deceased are beneficiaries of the Award / compensation. Their appearance in Court today itself brings tears in the eyes of Court. They are extremely poor. The Respondent No.1 lives in a hut with her children i.e. Respondent Nos. 2 to 5 on a footpath opposite G.T. Hospital. They are present before us. We have been informed that the Respondent Nos. 6 & 7 had arrived from their native village in Tamil Nadu yesterday for this case and are staying with the Respondent No.1 - daughter-in-law. The counsels appearing for the parties including my co-panelists today in the National Lok Adalat are ad idem that real justice is required to be done in the present case so as to ameliorate and redress the grievance and sufferings of the Respondents before us.
|
Bhikhi Lal & Others Vs. Tribeni & Others | that "in the light of this judgment a fresh preliminary decree in the appropriate form will be passed and the usual period of redemption will be given under the Code. After this Court disposed of the appeal the Rajasthan High Court also allowed the revision petition filed by the appellants against the order of the Subordinate Judge. Ajmer refusing to amend the preliminary decree framed by his predecessor; the, High Court directed the Subordinate Judge to incorporate a direction in the fresh preliminary decree directing the appellants to account for the rents and profits received by them from the mortgaged properties pursuant to the direction given by this Court. The proceedings came up before the Senior Civil Judge. Ajmer for passing a fresh preliminary decree pursuant to the directions given both by the Supreme Court and by the High Court. Elaborate arguments were advanced before the learned Civil Judge on behalf of both the parties as regards the credit and debit item, that should be taken into consideration in passing the preliminary decree having regard to the directions given by the said two Courts. The learned Civil Judge broadly held that, having regard to the judgment of this Court the appellants would be entitled to get interest accrued prior to March 13, 1950; but even so they would not be entitled to an amount higher than that claimed in the plaint. Having regard to the directions given by the High Court, he held that the appellants were liable to furnish accounts of the receipts of the mortgaged properties from August 10, 1950, the date of the firing of the suit, till they handed over possession of the mortgaged properties to the respondents. He further held that the appellants would be entitled only to interest on the principal amount of Rs. 30,000 at the rate of 6 per cent per annum from the date of the suit till August 17, 1953, and made it conditional on their furnishing the said account of the receipts of the usufruct of the mortgaged properties. Pursuant to that order a preliminay decree was made carrying out the directions given in the judgment. The plaintiffs-appellants did not file any appeal against the said preliminary decree; but instead they filed an application in the said Court for amending the decree. It was contended before the learned Civil judge that the Supreme Court amended the previous preliminary decree only in regard to interest that accrued before March 13, 1950, and therefore the fresh preliminary decree in giving the other aforesaid directions to the detriment of the appellants was not in conformity with the judgment of this Court. The learned Civil Judge held that the fresh preliminary, decree was in conformity with the judgment given by him and that there was no mistake in the decree to be corrected by way, of amendment. The revision filed by the appellants was also dismissed on the ground that the fresh preliminary decree passed by the learned Civil judge involved fresh adjudication determining the rights of the parties and an appeal lay against the said preliminary decree and, therefore, no revision would lie against that decree. As regards the direction given in the preliminary decree in regard to the profits, the High Court held that the said direction was given in accordance with the order made by it and that apart, in view of the fact that a fresh preliminary, decree was trade, the Court had jurisdiction to give that direction Hence the appeal.3. If a decree is not in conformity with the judgment, the Court has the duty to amend the decree so as to bring it in conformity with the judgment. But the fallacy of the argument lies in the fact that the fresh preliminary decree made by the Senior Civil judge was not the decree of this Court, Pursuant to the directions given by this Court and those given by the High Court, the learned Civil judge heard fresh arguments and made a considered judgment. The decree passed, it cannot be disputed, was in terms of the judgment. That judgment had become final as the appellants did not prefer an appeal against the same, but instead filed an application for amendment of the decree. The High Court was, therefore, right in holding that the fresh preliminary decree was in conformity with the judgment of the Civil Judge and, therefore, there was no scope for amendment. The, order is perfectly right and there is no ground for interference.4. Even so, one of the directions given in the preliminary decree will have to be amended as in the events that have now happened that direction is not in conformity with the judgment of the Senior Civil Judge. We have held in Civil Appeal No. 257 of 1963 [Since reported in AIR 1965 SC 1055 ] in which judgment was just now delivered, that the High Court was wrong in holding that the respondents would be entitled to an account for the rents realized by the appellants for the period between the date of the plaint and the preliminary decree. Pursuant to the order of the High Court, which we have held now to be wrong to that extent, the learned Civil Judge gave a direction that the appellants shall be liable to furnish accounts of the receipts of the usufruct of the mortgaged properties from August 10, 1950, the date of the filing of the suit, till they hand over possession of the mortgaged properties to the defendants and that amount shall be adjusted towards the decretal amount". As we have held that that direction to the said extent was wrong, the order of the learned Civil Judge was also wrong to that extent and if that be so, the decree was also incorrect in that regard. We, therefore, hold that the High Court should have modified the decree to that extent as it would not be in conformity with the judgment as modified by the earlier judgment of this Court. | 0[ds]3. If a decree is not in conformity with the judgment, the Court has the duty to amend the decree so as to bring it in conformity with the judgment. But the fallacy of the argument lies in the fact that the fresh preliminary decree made by the Senior Civil judge was not the decree of this Court, Pursuant to the directions given by this Court and those given by the High Court, the learned Civil judge heard fresh arguments and made a considered judgment. The decree passed, it cannot be disputed, was in terms of the judgment. That judgment had become final as the appellants did not prefer an appeal against the same, but instead filed an application for amendment of the decree. The High Court was, therefore, right in holding that the fresh preliminary decree was in conformity with the judgment of the Civil Judge and, therefore, there was no scope for amendment. The, order is perfectly right and there is no ground for interference.4. Even so, one of the directions given in the preliminary decree will have to be amended as in the events that have now happened that direction is not in conformity with the judgment of the Senior Civil Judge. We have held in Civil Appeal No. 257 of 1963 [Since reported in AIR 1965 SC 1055 ] in which judgment was just now delivered, that the High Court was wrong in holding that the respondents would be entitled to an account for the rents realized by the appellants for the period between the date of the plaint and the preliminary decree. Pursuant to the order of the High Court, which we have held now to be wrong to that extent, the learned Civil Judge gave a direction that the appellants shall be liable to furnish accounts of the receipts of the usufruct of the mortgaged properties from August 10, 1950, the date of the filing of the suit, till they hand over possession of the mortgaged properties to the defendants and that amount shall be adjusted towards the decretal amount". As we have held that that direction to the said extent was wrong, the order of the learned Civil Judge was also wrong to that extent and if that be so, the decree was also incorrect in that regard. We, therefore, hold that the High Court should have modified the decree to that extent as it would not be in conformity with the judgment as modified by the earlier judgment of this Court. | 0 | 1,358 | 461 | ### 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:
that "in the light of this judgment a fresh preliminary decree in the appropriate form will be passed and the usual period of redemption will be given under the Code. After this Court disposed of the appeal the Rajasthan High Court also allowed the revision petition filed by the appellants against the order of the Subordinate Judge. Ajmer refusing to amend the preliminary decree framed by his predecessor; the, High Court directed the Subordinate Judge to incorporate a direction in the fresh preliminary decree directing the appellants to account for the rents and profits received by them from the mortgaged properties pursuant to the direction given by this Court. The proceedings came up before the Senior Civil Judge. Ajmer for passing a fresh preliminary decree pursuant to the directions given both by the Supreme Court and by the High Court. Elaborate arguments were advanced before the learned Civil Judge on behalf of both the parties as regards the credit and debit item, that should be taken into consideration in passing the preliminary decree having regard to the directions given by the said two Courts. The learned Civil Judge broadly held that, having regard to the judgment of this Court the appellants would be entitled to get interest accrued prior to March 13, 1950; but even so they would not be entitled to an amount higher than that claimed in the plaint. Having regard to the directions given by the High Court, he held that the appellants were liable to furnish accounts of the receipts of the mortgaged properties from August 10, 1950, the date of the firing of the suit, till they handed over possession of the mortgaged properties to the respondents. He further held that the appellants would be entitled only to interest on the principal amount of Rs. 30,000 at the rate of 6 per cent per annum from the date of the suit till August 17, 1953, and made it conditional on their furnishing the said account of the receipts of the usufruct of the mortgaged properties. Pursuant to that order a preliminay decree was made carrying out the directions given in the judgment. The plaintiffs-appellants did not file any appeal against the said preliminary decree; but instead they filed an application in the said Court for amending the decree. It was contended before the learned Civil judge that the Supreme Court amended the previous preliminary decree only in regard to interest that accrued before March 13, 1950, and therefore the fresh preliminary decree in giving the other aforesaid directions to the detriment of the appellants was not in conformity with the judgment of this Court. The learned Civil Judge held that the fresh preliminary, decree was in conformity with the judgment given by him and that there was no mistake in the decree to be corrected by way, of amendment. The revision filed by the appellants was also dismissed on the ground that the fresh preliminary decree passed by the learned Civil judge involved fresh adjudication determining the rights of the parties and an appeal lay against the said preliminary decree and, therefore, no revision would lie against that decree. As regards the direction given in the preliminary decree in regard to the profits, the High Court held that the said direction was given in accordance with the order made by it and that apart, in view of the fact that a fresh preliminary, decree was trade, the Court had jurisdiction to give that direction Hence the appeal.3. If a decree is not in conformity with the judgment, the Court has the duty to amend the decree so as to bring it in conformity with the judgment. But the fallacy of the argument lies in the fact that the fresh preliminary decree made by the Senior Civil judge was not the decree of this Court, Pursuant to the directions given by this Court and those given by the High Court, the learned Civil judge heard fresh arguments and made a considered judgment. The decree passed, it cannot be disputed, was in terms of the judgment. That judgment had become final as the appellants did not prefer an appeal against the same, but instead filed an application for amendment of the decree. The High Court was, therefore, right in holding that the fresh preliminary decree was in conformity with the judgment of the Civil Judge and, therefore, there was no scope for amendment. The, order is perfectly right and there is no ground for interference.4. Even so, one of the directions given in the preliminary decree will have to be amended as in the events that have now happened that direction is not in conformity with the judgment of the Senior Civil Judge. We have held in Civil Appeal No. 257 of 1963 [Since reported in AIR 1965 SC 1055 ] in which judgment was just now delivered, that the High Court was wrong in holding that the respondents would be entitled to an account for the rents realized by the appellants for the period between the date of the plaint and the preliminary decree. Pursuant to the order of the High Court, which we have held now to be wrong to that extent, the learned Civil Judge gave a direction that the appellants shall be liable to furnish accounts of the receipts of the usufruct of the mortgaged properties from August 10, 1950, the date of the filing of the suit, till they hand over possession of the mortgaged properties to the defendants and that amount shall be adjusted towards the decretal amount". As we have held that that direction to the said extent was wrong, the order of the learned Civil Judge was also wrong to that extent and if that be so, the decree was also incorrect in that regard. We, therefore, hold that the High Court should have modified the decree to that extent as it would not be in conformity with the judgment as modified by the earlier judgment of this Court.
### Response:
0
### Explanation:
3. If a decree is not in conformity with the judgment, the Court has the duty to amend the decree so as to bring it in conformity with the judgment. But the fallacy of the argument lies in the fact that the fresh preliminary decree made by the Senior Civil judge was not the decree of this Court, Pursuant to the directions given by this Court and those given by the High Court, the learned Civil judge heard fresh arguments and made a considered judgment. The decree passed, it cannot be disputed, was in terms of the judgment. That judgment had become final as the appellants did not prefer an appeal against the same, but instead filed an application for amendment of the decree. The High Court was, therefore, right in holding that the fresh preliminary decree was in conformity with the judgment of the Civil Judge and, therefore, there was no scope for amendment. The, order is perfectly right and there is no ground for interference.4. Even so, one of the directions given in the preliminary decree will have to be amended as in the events that have now happened that direction is not in conformity with the judgment of the Senior Civil Judge. We have held in Civil Appeal No. 257 of 1963 [Since reported in AIR 1965 SC 1055 ] in which judgment was just now delivered, that the High Court was wrong in holding that the respondents would be entitled to an account for the rents realized by the appellants for the period between the date of the plaint and the preliminary decree. Pursuant to the order of the High Court, which we have held now to be wrong to that extent, the learned Civil Judge gave a direction that the appellants shall be liable to furnish accounts of the receipts of the usufruct of the mortgaged properties from August 10, 1950, the date of the filing of the suit, till they hand over possession of the mortgaged properties to the defendants and that amount shall be adjusted towards the decretal amount". As we have held that that direction to the said extent was wrong, the order of the learned Civil Judge was also wrong to that extent and if that be so, the decree was also incorrect in that regard. We, therefore, hold that the High Court should have modified the decree to that extent as it would not be in conformity with the judgment as modified by the earlier judgment of this Court.
|
Kedarnath Jute Mfg. Co. Ltd Vs. Commissioner Of Income Tax, Central Calcutta | accounting followed by the assessee is cash system or mercantile system. It is indisputable that the amount of sales tax paid or payable by the assessee is an expenditure within the meaning of S. 10 (2) (xv).The amount in question was thus a kind of expenditure about which there can be no doubt that it had been laid out or expended wholly or exclusively for the purpose of business carried on by the assessee. 5. The submission on behalf of the assessee in the alternative is that apart from valid deductibility of sales tax as an expenditure under S. 10 (2) (xv) of the Act it is a permissible deduction even under S. 10 (1). The profits of a business which are to be assessed to tax must be real profits and they have to be ascertained on ordinary principles of commercial trading and commercial accounting. Where an assessee is under a liability or is bound to make certain payment from the gross receipts, the profits and gains can only be the net amount after such an amount is deducted from the gross profits or receipts. 6. In Commissioner of Income-tax, West Bengal v. Royal Boot House, (1970) 75 ITR 507 (Cal) it was held that where the assessee followed the mercantile system of accounting and, without disputing the liability to pay the sales tax, had made a provision for its payment in its account even though he had not actually paid the tax over to the authorities, the assessee was entitled to deduction in respect of the provision for sales tax from his income under S, 10 (2) (xv) of, the Act. It was pointed out that under the provisions of the Sales Tax Statutes, the liability to pay the tax was not dependent upon assessment or demand but was an obligation to pay the tax either annually, quarterly or monthly, as the case might be. This case was and has been sought to be distinguished by the Revenue on the ground that the liability to pay the sales tax had not been disputed and the assessee had made a provision for its payment in its account. As will be presently seen this distinction is without substance and does not affect the true legal position. 7. Now under all sales tax laws including the statute with which we are concerned, the moment a dealer makes either purchases or sales which are subject to taxation, the obligation to pay the tax arises and tax ability is attracted. Although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment. It is significant that in the present case, the liability had even been quantified and a demand had been created in the sum of Rupees 1,49,776/- by means of the notice dated 21st November, 1957 during the pendency of the assessment proceedings before the Income Tax Officer and before the finalisation of the assessment. It is not possible to comprehend how the liability would cease to be one because the assessee had taken proceedings before higher authorities for getting it reduced or wiped out so long as the contention of the assessee did not with regard to the quantum of liability etc. An assessee that follows the mercantile system of accounting is entitled to deduct from the profits and gains of the business such liability which had accrued during the period for which the profits and gains were being computed. It can again not be disputed that the liability to payment of sales tax had accrued during the year of assessment even though it had to be discharged at a future date.In Pope the King Match Factory v. Commissioner of Income-tax, Madras, (1963) 50 ITR 495 (Mad) a demand for excise duty was served on the assessee and though he was objecting to it and seeking to get the order of the Collector of Excise reversed, he debited that amount in his accounts on the last day of his accounting year and claimed that amount as a deductible allowance on the ground that he was keeping his accounts on the mercantile basis. The Madras High Court had no difficulty in holding that the assessee had incurred an enforceable legal liability on and from the date on which he received the Collectors demand for payment and that his endeavour to get out of that liability by preferring appeals could not in any way detract from or retard the efficacy of the liability which had been imposed upon him by the competent excise authority. In our judgment, the above decision lays down the law correctly. 8. The main contention of the learned Solicitor General is that the assessee failed to debit the liability in its books of accounts and, therefore, it was debarred from claiming the same as deduction either under Section 10 (1) or under S. 10 (2) (xv) of the Act. We are wholly unable to appreciate the suggestion that if an assessee under some misapprehension or mistake fails to make an entry in the books of account and although under the law, a deduction must be allowed by the Income Tax Officer, the assessee will lose the right of claiming or will be debarred from being allowed that deduction. Whether the assessee is entitled to a particular deduction or not will depend on the provision of law relating thereto and not on the view which the assessee might take of his rights nor can the existence or absence of entries in the books of account be decisive or conclusive in the matter. The assessee who was maintaining accounts on the mercantile system was fully justified in claiming deduction of the sum of Rs. 1,49,776/- being the amount of sales tax which it was liable under the law to pay during the relevant accounting year. It may be added that the liability remained intact even after the assessee had taken appeals to higher authorities or Courts which failed. | 1[ds]7. Now under all sales tax laws including the statute with which we are concerned, the moment a dealer makes either purchases or sales which are subject to taxation, the obligation to pay the tax arises and tax ability is attracted. Although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment. It is significant that in the present case, the liability had even been quantified and a demand had been created in the sum of Rupees 1,49,776/- by means of the notice dated 21st November, 1957 during the pendency of the assessment proceedings before the Income Tax Officer and before the finalisation of the assessmentIt is not possible to comprehend how the liability would cease to be one because the assessee had taken proceedings before higher authorities for getting it reduced or wiped out so long as the contention of the assessee did not with regard to the quantum of liability etc. An assessee that follows the mercantile system of accounting is entitled to deduct from the profits and gains of the business such liability which had accrued during the period for which the profits and gains were being computed. It can again not be disputed that the liability to payment of sales tax had accrued during the year of assessment even though it had to be discharged at a future date.In Pope the King Match Factory v. Commissioner of Income-tax, Madras, (1963) 50 ITR 495 (Mad) a demand for excise duty was served on the assessee and though he was objecting to it and seeking to get the order of the Collector of Excise reversed, he debited that amount in his accounts on the last day of his accounting year and claimed that amount as a deductible allowance on the ground that he was keeping his accounts on the mercantile basis. The Madras High Court had no difficulty in holding that the assessee had incurred an enforceable legal liability on and from the date on which he received the Collectors demand for payment and that his endeavour to get out of that liability by preferring appeals could not in any way detract from or retard the efficacy of the liability which had been imposed upon him by the competent excise authority. In our judgment, the above decision lays down the law correctlyWe are wholly unable to appreciate the suggestion that if an assessee under some misapprehension or mistake fails to make an entry in the books of account and although under the law, a deduction must be allowed by the Income Tax Officer, the assessee will lose the right of claiming or will be debarred from being allowed that deduction. Whether the assessee is entitled to a particular deduction or not will depend on the provision of law relating thereto and not on the view which the assessee might take of his rights nor can the existence or absence of entries in the books of account be decisive or conclusive in the matter. The assessee who was maintaining accounts on the mercantile system was fully justified in claiming deduction of the sum of Rs. 1,49,776/- being the amount of sales tax which it was liable under the law to pay during the relevant accounting year. It may be added that the liability remained intact even after the assessee had taken appeals to higher authorities or Courts which failed. | 1 | 1,809 | 606 | ### 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:
accounting followed by the assessee is cash system or mercantile system. It is indisputable that the amount of sales tax paid or payable by the assessee is an expenditure within the meaning of S. 10 (2) (xv).The amount in question was thus a kind of expenditure about which there can be no doubt that it had been laid out or expended wholly or exclusively for the purpose of business carried on by the assessee. 5. The submission on behalf of the assessee in the alternative is that apart from valid deductibility of sales tax as an expenditure under S. 10 (2) (xv) of the Act it is a permissible deduction even under S. 10 (1). The profits of a business which are to be assessed to tax must be real profits and they have to be ascertained on ordinary principles of commercial trading and commercial accounting. Where an assessee is under a liability or is bound to make certain payment from the gross receipts, the profits and gains can only be the net amount after such an amount is deducted from the gross profits or receipts. 6. In Commissioner of Income-tax, West Bengal v. Royal Boot House, (1970) 75 ITR 507 (Cal) it was held that where the assessee followed the mercantile system of accounting and, without disputing the liability to pay the sales tax, had made a provision for its payment in its account even though he had not actually paid the tax over to the authorities, the assessee was entitled to deduction in respect of the provision for sales tax from his income under S, 10 (2) (xv) of, the Act. It was pointed out that under the provisions of the Sales Tax Statutes, the liability to pay the tax was not dependent upon assessment or demand but was an obligation to pay the tax either annually, quarterly or monthly, as the case might be. This case was and has been sought to be distinguished by the Revenue on the ground that the liability to pay the sales tax had not been disputed and the assessee had made a provision for its payment in its account. As will be presently seen this distinction is without substance and does not affect the true legal position. 7. Now under all sales tax laws including the statute with which we are concerned, the moment a dealer makes either purchases or sales which are subject to taxation, the obligation to pay the tax arises and tax ability is attracted. Although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment. It is significant that in the present case, the liability had even been quantified and a demand had been created in the sum of Rupees 1,49,776/- by means of the notice dated 21st November, 1957 during the pendency of the assessment proceedings before the Income Tax Officer and before the finalisation of the assessment. It is not possible to comprehend how the liability would cease to be one because the assessee had taken proceedings before higher authorities for getting it reduced or wiped out so long as the contention of the assessee did not with regard to the quantum of liability etc. An assessee that follows the mercantile system of accounting is entitled to deduct from the profits and gains of the business such liability which had accrued during the period for which the profits and gains were being computed. It can again not be disputed that the liability to payment of sales tax had accrued during the year of assessment even though it had to be discharged at a future date.In Pope the King Match Factory v. Commissioner of Income-tax, Madras, (1963) 50 ITR 495 (Mad) a demand for excise duty was served on the assessee and though he was objecting to it and seeking to get the order of the Collector of Excise reversed, he debited that amount in his accounts on the last day of his accounting year and claimed that amount as a deductible allowance on the ground that he was keeping his accounts on the mercantile basis. The Madras High Court had no difficulty in holding that the assessee had incurred an enforceable legal liability on and from the date on which he received the Collectors demand for payment and that his endeavour to get out of that liability by preferring appeals could not in any way detract from or retard the efficacy of the liability which had been imposed upon him by the competent excise authority. In our judgment, the above decision lays down the law correctly. 8. The main contention of the learned Solicitor General is that the assessee failed to debit the liability in its books of accounts and, therefore, it was debarred from claiming the same as deduction either under Section 10 (1) or under S. 10 (2) (xv) of the Act. We are wholly unable to appreciate the suggestion that if an assessee under some misapprehension or mistake fails to make an entry in the books of account and although under the law, a deduction must be allowed by the Income Tax Officer, the assessee will lose the right of claiming or will be debarred from being allowed that deduction. Whether the assessee is entitled to a particular deduction or not will depend on the provision of law relating thereto and not on the view which the assessee might take of his rights nor can the existence or absence of entries in the books of account be decisive or conclusive in the matter. The assessee who was maintaining accounts on the mercantile system was fully justified in claiming deduction of the sum of Rs. 1,49,776/- being the amount of sales tax which it was liable under the law to pay during the relevant accounting year. It may be added that the liability remained intact even after the assessee had taken appeals to higher authorities or Courts which failed.
### Response:
1
### Explanation:
7. Now under all sales tax laws including the statute with which we are concerned, the moment a dealer makes either purchases or sales which are subject to taxation, the obligation to pay the tax arises and tax ability is attracted. Although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment. It is significant that in the present case, the liability had even been quantified and a demand had been created in the sum of Rupees 1,49,776/- by means of the notice dated 21st November, 1957 during the pendency of the assessment proceedings before the Income Tax Officer and before the finalisation of the assessmentIt is not possible to comprehend how the liability would cease to be one because the assessee had taken proceedings before higher authorities for getting it reduced or wiped out so long as the contention of the assessee did not with regard to the quantum of liability etc. An assessee that follows the mercantile system of accounting is entitled to deduct from the profits and gains of the business such liability which had accrued during the period for which the profits and gains were being computed. It can again not be disputed that the liability to payment of sales tax had accrued during the year of assessment even though it had to be discharged at a future date.In Pope the King Match Factory v. Commissioner of Income-tax, Madras, (1963) 50 ITR 495 (Mad) a demand for excise duty was served on the assessee and though he was objecting to it and seeking to get the order of the Collector of Excise reversed, he debited that amount in his accounts on the last day of his accounting year and claimed that amount as a deductible allowance on the ground that he was keeping his accounts on the mercantile basis. The Madras High Court had no difficulty in holding that the assessee had incurred an enforceable legal liability on and from the date on which he received the Collectors demand for payment and that his endeavour to get out of that liability by preferring appeals could not in any way detract from or retard the efficacy of the liability which had been imposed upon him by the competent excise authority. In our judgment, the above decision lays down the law correctlyWe are wholly unable to appreciate the suggestion that if an assessee under some misapprehension or mistake fails to make an entry in the books of account and although under the law, a deduction must be allowed by the Income Tax Officer, the assessee will lose the right of claiming or will be debarred from being allowed that deduction. Whether the assessee is entitled to a particular deduction or not will depend on the provision of law relating thereto and not on the view which the assessee might take of his rights nor can the existence or absence of entries in the books of account be decisive or conclusive in the matter. The assessee who was maintaining accounts on the mercantile system was fully justified in claiming deduction of the sum of Rs. 1,49,776/- being the amount of sales tax which it was liable under the law to pay during the relevant accounting year. It may be added that the liability remained intact even after the assessee had taken appeals to higher authorities or Courts which failed.
|
Andhra Pradesh State Road Transport Corp Vs. P. Venkateswara Rao Etc | the Co-operative Credit Society of the appellant Corporation from the gratuity which would have become payable to him on retirement. He was declared entitled to Rs. 1630/only. The two issues framed in that case were as follows:"1. Whether gratuity is wages within the meaning of payment of Wages Act ?2. Whether the Corporation had the discretion to refuse to pay the gratuity to the respondent and whether it cannot be questioned ?"The case had gone up to the High Court of Andhra Pradesh in revision under Section 115 Civil Procedure Code. The High Court, while rejecting the objection advanced on behalf of the appellant Corporation in a case arising out of the proceeding under the Payment of Wages Act, had observed that Rule 8.15 indicated that Rule 8.01 did not stand in the way of awarding gratuity to a person who is also entitled to the Provident Fund.4. We are unable to read Rule 8.15 in the same way as the High Court had done it in the earlier ca se. We think that Rule8.15 only explains how Rule 8.05 was to be applied in certain cases. It lays down that the period for which gratuity of retirement or contribution to the Provident Fund had been received will count towards the qualifications laid down in Rule 8.05. It then clarifies that this period will not, however, affect the calculation of the amount of gratuity under Rule 8.19. The obvious intention of Rule 8 .15 was that the amount already received either as gratuity or contribution to the Provident Fund will not be paid again to the employee. The period for which payments had already been made, which may happen in certain cases, such as those of broken service or of anticipatory payments, like the one to satisfy debt of the respondent P. Venkateswara Rao, to the Cooperative Society, would, nevertheless, count towards the qualifying period prescribed by Rule 8.05.On the strength of the judgment of the High Court, in the previous proceeding, which was the basis of the decision of the Labour Court, Learned Counsel for the respondent had put forward a preliminary objection that the matter cannot be reagitated. It is clear that the provisions of Section 11 C.P.C. have no application to such a case. The nature of the proceedings and of authorities before which the claims were made were different. It is, however, urged that the principles of res Judicata should bar raising the same question once again in a subsequent proceeding. It is true that the High Court h ad made observations which had a clear bearing on the question to be decided subsequently, but, it will be noticed that the question now before us was not directly the subject , matter of the issues framed in the previous proceeding which have been set out above. Nevertheless, an objection was taken on behalf of the appellant. that a basic condition for the eligibility of a claim for gratuity had not been satisfied inasmuch as the respondent was a subscriber to a Provident Fund. This objection had been over-ruled. It was held that the gratuity could be claimed as of right. We do not know what direction was exactly given in that case. The finding, however, that the petitioner was entitled to a payment of gratuity, as of right, to the extent of Rs. 1630/-, appears to have been given as a result of the decision that he was entitled to the payment of this much gratuity and no more for the purposes of the claim made in the proceedings under the Payment of Wages Act.5. It seems to us that, when gratuity was awarded in a previous proceeding, as a part of W ages, in the teeth of the clear provision of Rule 8.01 imposing a condition precedent, which was not satisfied, to eligibility for it, it is difficult to hold that such a patently illegal view could or should be held to be binding on the parties in a subsequent claim for gratuity on the same footing, before the Labour Court. We find that, even if we were to hold, as we think we must, as the matter was not taken further, that the declaration of entitlement to Rs. 1630/- in the previous proceeding should be held to be binding between parties, we cannot apply the same reasoning to the subsequent claim made before the Labour Court which is now before us. The Labour Court had not even deducted the amount already awarded earlier from the amount awarded by its judgment now before us. The most we can say is that the previous recognition of a claim to gratuity, practically in excess of jurisdiction to do so, debars the Labour Court from going into the question whether the respondent was rightly paid that amount as gratuity in the past. We have already set out the rule which disentitles him from being eligible for the award of gratuity when he contributes to a provident fund also. We have also interpreted the rule which was misunderstood earlier by the High Court.We need not here set out the relevant provident fund rules contained in Chapter 7 of the Code. It is true that the whole idea of the Provident Fund, to which the employer also contributes, seems to be different from a gratuity to which "good, continuous, efficient and faithful servant" may entitle an employee, yet, we are unable to hold that the employee is able to claim the benefit of , both a , guaranteed or other Provident Fund, to which the employer contributes, as well as to gratuity, as of right, in the face of the provisions of Rule 8.01 and 8.02 of the gratuity rules set out above.6. Although we have held that a claim to gratuity, as of right, cannot be put forward, under the Code, by an employee who gets the benefit of a Provident Fund also, yet illegal payments of gratuity in the past will not affect legal claims to Provident Fund. | 1[ds]We are unable to read Rule 8.15 in the same way as the High Court had done it in the earlier ca se. We think that Rule8.15 only explains how Rule 8.05 was to be applied in certain cases. It lays down that the period for which gratuity of retirement or contribution to the Provident Fund had been received will count towards the qualifications laid down in Rule 8.05. It then clarifies that this period will not, however, affect the calculation of the amount of gratuity under Rule 8.19. The obvious intention of Rule 8 .15 was that the amount already received either as gratuity or contribution to the Provident Fund will not be paid again to the employee. The period for which payments had already been made, which may happen in certain cases, such as those of broken service or of anticipatory payments, like the one to satisfy debt of the respondent P. Venkateswara Rao, to the Cooperative Society, would, nevertheless, count towards the qualifying period prescribed by Rule 8.05.On the strength of the judgment of the High Court, in the previous proceeding, which was the basis of the decision of the Labour Court, Learned Counsel for the respondent had put forward a preliminary objection that the matter cannot be reagitated. It is clear that the provisions of Section 11 C.P.C. have no application to such a case. The nature of the proceedings and of authorities before which the claims were made were different. It is, however, urged that the principles of res Judicata should bar raising the same question once again in a subsequent proceeding. It is true that the High Court h ad made observations which had a clear bearing on the question to be decided subsequently, but, it will be noticed that the question now before us was not directly the subject , matter of the issues framed in the previous proceeding which have been set out above. Nevertheless, an objection was taken on behalf of the appellant. that a basic condition for the eligibility of a claim for gratuity had not been satisfied inasmuch as the respondent was a subscriber to a Provident Fund. This objection had been over-ruled. It was held that the gratuity could be claimed as of right. We do not know what direction was exactly given in that case. The finding, however, that the petitioner was entitled to a payment of gratuity, as of right, to the extent of Rs. 1630/-, appears to have been given as a result of the decision that he was entitled to the payment of this much gratuity and no more for the purposes of the claim made in the proceedings under the Payment of Wagesseems to us that, when gratuity was awarded in a previous proceeding, as a part of W ages, in the teeth of the clear provision of Rule 8.01 imposing a condition precedent, which was not satisfied, to eligibility for it, it is difficult to hold that such a patently illegal view could or should be held to be binding on the parties in a subsequent claim for gratuity on the same footing, before the Labour Court. We find that, even if we were to hold, as we think we must, as the matter was not taken further, that the declaration of entitlement to Rs. 1630/- in the previous proceeding should be held to be binding between parties, we cannot apply the same reasoning to the subsequent claim made before the Labour Court which is now before us. The Labour Court had not even deducted the amount already awarded earlier from the amount awarded by its judgment now before us. The most we can say is that the previous recognition of a claim to gratuity, practically in excess of jurisdiction to do so, debars the Labour Court from going into the question whether the respondent was rightly paid that amount as gratuity in the past. We have already set out the rule which disentitles him from being eligible for the award of gratuity when he contributes to a provident fund also. We have also interpreted the rule which was misunderstood earlier by the High Court.We need not here set out the relevant provident fund rules contained in Chapter 7 of the Code. It is true that the whole idea of the Provident Fund, to which the employer also contributes, seems to be different from a gratuity to which "good, continuous, efficient and faithful servant" may entitle an employee, yet, we are unable to hold that the employee is able to claim the benefit of , both a , guaranteed or other Provident Fund, to which the employer contributes, as well as to gratuity, as of right, in the face of the provisions of Rule 8.01 and 8.02 of the gratuity rules set outwe have held that a claim to gratuity, as of right, cannot be put forward, under the Code, by an employee who gets the benefit of a Provident Fund also, yet illegal payments of gratuity in the past will not affect legal claims to Provident Fund. | 1 | 2,361 | 931 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the Co-operative Credit Society of the appellant Corporation from the gratuity which would have become payable to him on retirement. He was declared entitled to Rs. 1630/only. The two issues framed in that case were as follows:"1. Whether gratuity is wages within the meaning of payment of Wages Act ?2. Whether the Corporation had the discretion to refuse to pay the gratuity to the respondent and whether it cannot be questioned ?"The case had gone up to the High Court of Andhra Pradesh in revision under Section 115 Civil Procedure Code. The High Court, while rejecting the objection advanced on behalf of the appellant Corporation in a case arising out of the proceeding under the Payment of Wages Act, had observed that Rule 8.15 indicated that Rule 8.01 did not stand in the way of awarding gratuity to a person who is also entitled to the Provident Fund.4. We are unable to read Rule 8.15 in the same way as the High Court had done it in the earlier ca se. We think that Rule8.15 only explains how Rule 8.05 was to be applied in certain cases. It lays down that the period for which gratuity of retirement or contribution to the Provident Fund had been received will count towards the qualifications laid down in Rule 8.05. It then clarifies that this period will not, however, affect the calculation of the amount of gratuity under Rule 8.19. The obvious intention of Rule 8 .15 was that the amount already received either as gratuity or contribution to the Provident Fund will not be paid again to the employee. The period for which payments had already been made, which may happen in certain cases, such as those of broken service or of anticipatory payments, like the one to satisfy debt of the respondent P. Venkateswara Rao, to the Cooperative Society, would, nevertheless, count towards the qualifying period prescribed by Rule 8.05.On the strength of the judgment of the High Court, in the previous proceeding, which was the basis of the decision of the Labour Court, Learned Counsel for the respondent had put forward a preliminary objection that the matter cannot be reagitated. It is clear that the provisions of Section 11 C.P.C. have no application to such a case. The nature of the proceedings and of authorities before which the claims were made were different. It is, however, urged that the principles of res Judicata should bar raising the same question once again in a subsequent proceeding. It is true that the High Court h ad made observations which had a clear bearing on the question to be decided subsequently, but, it will be noticed that the question now before us was not directly the subject , matter of the issues framed in the previous proceeding which have been set out above. Nevertheless, an objection was taken on behalf of the appellant. that a basic condition for the eligibility of a claim for gratuity had not been satisfied inasmuch as the respondent was a subscriber to a Provident Fund. This objection had been over-ruled. It was held that the gratuity could be claimed as of right. We do not know what direction was exactly given in that case. The finding, however, that the petitioner was entitled to a payment of gratuity, as of right, to the extent of Rs. 1630/-, appears to have been given as a result of the decision that he was entitled to the payment of this much gratuity and no more for the purposes of the claim made in the proceedings under the Payment of Wages Act.5. It seems to us that, when gratuity was awarded in a previous proceeding, as a part of W ages, in the teeth of the clear provision of Rule 8.01 imposing a condition precedent, which was not satisfied, to eligibility for it, it is difficult to hold that such a patently illegal view could or should be held to be binding on the parties in a subsequent claim for gratuity on the same footing, before the Labour Court. We find that, even if we were to hold, as we think we must, as the matter was not taken further, that the declaration of entitlement to Rs. 1630/- in the previous proceeding should be held to be binding between parties, we cannot apply the same reasoning to the subsequent claim made before the Labour Court which is now before us. The Labour Court had not even deducted the amount already awarded earlier from the amount awarded by its judgment now before us. The most we can say is that the previous recognition of a claim to gratuity, practically in excess of jurisdiction to do so, debars the Labour Court from going into the question whether the respondent was rightly paid that amount as gratuity in the past. We have already set out the rule which disentitles him from being eligible for the award of gratuity when he contributes to a provident fund also. We have also interpreted the rule which was misunderstood earlier by the High Court.We need not here set out the relevant provident fund rules contained in Chapter 7 of the Code. It is true that the whole idea of the Provident Fund, to which the employer also contributes, seems to be different from a gratuity to which "good, continuous, efficient and faithful servant" may entitle an employee, yet, we are unable to hold that the employee is able to claim the benefit of , both a , guaranteed or other Provident Fund, to which the employer contributes, as well as to gratuity, as of right, in the face of the provisions of Rule 8.01 and 8.02 of the gratuity rules set out above.6. Although we have held that a claim to gratuity, as of right, cannot be put forward, under the Code, by an employee who gets the benefit of a Provident Fund also, yet illegal payments of gratuity in the past will not affect legal claims to Provident Fund.
### Response:
1
### Explanation:
We are unable to read Rule 8.15 in the same way as the High Court had done it in the earlier ca se. We think that Rule8.15 only explains how Rule 8.05 was to be applied in certain cases. It lays down that the period for which gratuity of retirement or contribution to the Provident Fund had been received will count towards the qualifications laid down in Rule 8.05. It then clarifies that this period will not, however, affect the calculation of the amount of gratuity under Rule 8.19. The obvious intention of Rule 8 .15 was that the amount already received either as gratuity or contribution to the Provident Fund will not be paid again to the employee. The period for which payments had already been made, which may happen in certain cases, such as those of broken service or of anticipatory payments, like the one to satisfy debt of the respondent P. Venkateswara Rao, to the Cooperative Society, would, nevertheless, count towards the qualifying period prescribed by Rule 8.05.On the strength of the judgment of the High Court, in the previous proceeding, which was the basis of the decision of the Labour Court, Learned Counsel for the respondent had put forward a preliminary objection that the matter cannot be reagitated. It is clear that the provisions of Section 11 C.P.C. have no application to such a case. The nature of the proceedings and of authorities before which the claims were made were different. It is, however, urged that the principles of res Judicata should bar raising the same question once again in a subsequent proceeding. It is true that the High Court h ad made observations which had a clear bearing on the question to be decided subsequently, but, it will be noticed that the question now before us was not directly the subject , matter of the issues framed in the previous proceeding which have been set out above. Nevertheless, an objection was taken on behalf of the appellant. that a basic condition for the eligibility of a claim for gratuity had not been satisfied inasmuch as the respondent was a subscriber to a Provident Fund. This objection had been over-ruled. It was held that the gratuity could be claimed as of right. We do not know what direction was exactly given in that case. The finding, however, that the petitioner was entitled to a payment of gratuity, as of right, to the extent of Rs. 1630/-, appears to have been given as a result of the decision that he was entitled to the payment of this much gratuity and no more for the purposes of the claim made in the proceedings under the Payment of Wagesseems to us that, when gratuity was awarded in a previous proceeding, as a part of W ages, in the teeth of the clear provision of Rule 8.01 imposing a condition precedent, which was not satisfied, to eligibility for it, it is difficult to hold that such a patently illegal view could or should be held to be binding on the parties in a subsequent claim for gratuity on the same footing, before the Labour Court. We find that, even if we were to hold, as we think we must, as the matter was not taken further, that the declaration of entitlement to Rs. 1630/- in the previous proceeding should be held to be binding between parties, we cannot apply the same reasoning to the subsequent claim made before the Labour Court which is now before us. The Labour Court had not even deducted the amount already awarded earlier from the amount awarded by its judgment now before us. The most we can say is that the previous recognition of a claim to gratuity, practically in excess of jurisdiction to do so, debars the Labour Court from going into the question whether the respondent was rightly paid that amount as gratuity in the past. We have already set out the rule which disentitles him from being eligible for the award of gratuity when he contributes to a provident fund also. We have also interpreted the rule which was misunderstood earlier by the High Court.We need not here set out the relevant provident fund rules contained in Chapter 7 of the Code. It is true that the whole idea of the Provident Fund, to which the employer also contributes, seems to be different from a gratuity to which "good, continuous, efficient and faithful servant" may entitle an employee, yet, we are unable to hold that the employee is able to claim the benefit of , both a , guaranteed or other Provident Fund, to which the employer contributes, as well as to gratuity, as of right, in the face of the provisions of Rule 8.01 and 8.02 of the gratuity rules set outwe have held that a claim to gratuity, as of right, cannot be put forward, under the Code, by an employee who gets the benefit of a Provident Fund also, yet illegal payments of gratuity in the past will not affect legal claims to Provident Fund.
|
Munir Khan Vs. State of Uttar Pradesh | Hegde, J. 1. This is an appeal by special leave. The appellant and two others were tried for various offenses before the learned Sessions Judge, Rampur. The appellant was convicted under Sections 304 (I)/149, 307/149 and 323/149, I. P. C. We are not concerned with the convictions of the other accused. The sentences imposed on various counts were ordered to run concurrently. The maximum sentence imposed on the appellant is 10 years rigorous imprisonment under Section 304 (I). In appeal the appellant was acquitted under Section 304 (I), I. P. C. The sentence imposed on him under Ss. 307/149 was reduced from five years to two years rigorous imprisonment. His conviction under Section 323 was maintained for which a sentence of one year rigorous imprisonment had been awarded by the trial Court. 2. The incident giving rise to this prosecution took place on May 7, 1964 at about 10 p. m. The complainant as well as the appellant were having cycle stands near the exhibition ground, Rampur. The appellant and another had taken a cycle stand on contract from the municipal council. They were permitted to charge for each cycle 12 N. P. whereas the complainant was having a private cycle stand. It is said that he was charging only 5 N. P. per cycle. As a result of this, the prosecution case is that there was a trade rivalry between the appellant and his men on the one side and the complainant and his men on the other. It was further stated that on the date of the occurrence the appellant and several others went and attacked the complainants party as a result of which several persons sustained injuries and one Anwarul Hasan died. 3. The defence admitted that there was trade rivalry between the appellants party and the complainants party. Their case was that it was the complainants party who came suddenly and attacked the appellants party as a result of which there was marpit in which both sides sustained injuries. The appellants party pleaded self-defence. The trial Court after carefully examining the evidence came to the following conclusions: (1) that the marpit was not preplanned. It developed suddenly as a result of some abuses given by P.W. 1. (2) that the marpit took place near the second gate of the accused and not in front of the cycle stand of the complainant. 4. In effect the learned trial judge accepted the defence version that it was the complainants party which started abusing the appellants party as a result of which a sudden fight developed in front of the second gate of the appellants cycle stand. On the facts found by the trial Court it follows clearly that there was a mutual fight between the parties. In that view, the trial Court was not justified in convicting any of the accused by having recourse to Section 149, I. P. C. In a mutual fight, there is no common object. But the trial Court arrived at the conclusion that the appellant was one of the persons who stabbed the deceased Anwarul Hasan. It did not give any finding as regards the nature of the injuries caused by the appellant. 5. In appeal the learned appellate judge on the erroneous basis that in the First Information Report, there is no reference to the appellants stabbing Anwarul Hasan, acquitted the appellant under Section 304 (I). I. P. C., but sustained his conviction under Section 307/149 and Section 323/149 I. P. C. We have gone through the First Information Report. Therein it is clearly stated that the appellant was one of the persons who stabbed Anwarul Hasan; but there is no evidence as to the nature of the injury caused by him.We have earlier come to the conclusion that injuries to deceased were caused during the course of a mutual fight. Hence on the basis of the evidence on record, the appellant can be convicted only under Section 324, I. P. C. His convictions under Section 307/149, I. P. C. as well as under Section 323/149, I. P. C. are clearly unsustainable. | 1[ds]5. In appeal the learned appellate judge on the erroneous basis that in the First Information Report, there is no reference to the appellants stabbing Anwarul Hasan, acquitted the appellant under Section 304 (I). I. P. C., but sustained his conviction under Section 307/149 and Section 323/149 I. P. C. We have gone through the First Information Report. Therein it is clearly stated that the appellant was one of the persons who stabbed Anwarul Hasan; but there is no evidence as to the nature of the injury caused by him.We have earlier come to the conclusion that injuries to deceased were caused during the course of a mutual fight. Hence on the basis of the evidence on record, the appellant can be convicted only under Section 324, I. P. C. His convictions under Section 307/149, I. P. C. as well as under Section 323/149, I. P. C. are clearly unsustainable. | 1 | 749 | 169 | ### 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:
Hegde, J. 1. This is an appeal by special leave. The appellant and two others were tried for various offenses before the learned Sessions Judge, Rampur. The appellant was convicted under Sections 304 (I)/149, 307/149 and 323/149, I. P. C. We are not concerned with the convictions of the other accused. The sentences imposed on various counts were ordered to run concurrently. The maximum sentence imposed on the appellant is 10 years rigorous imprisonment under Section 304 (I). In appeal the appellant was acquitted under Section 304 (I), I. P. C. The sentence imposed on him under Ss. 307/149 was reduced from five years to two years rigorous imprisonment. His conviction under Section 323 was maintained for which a sentence of one year rigorous imprisonment had been awarded by the trial Court. 2. The incident giving rise to this prosecution took place on May 7, 1964 at about 10 p. m. The complainant as well as the appellant were having cycle stands near the exhibition ground, Rampur. The appellant and another had taken a cycle stand on contract from the municipal council. They were permitted to charge for each cycle 12 N. P. whereas the complainant was having a private cycle stand. It is said that he was charging only 5 N. P. per cycle. As a result of this, the prosecution case is that there was a trade rivalry between the appellant and his men on the one side and the complainant and his men on the other. It was further stated that on the date of the occurrence the appellant and several others went and attacked the complainants party as a result of which several persons sustained injuries and one Anwarul Hasan died. 3. The defence admitted that there was trade rivalry between the appellants party and the complainants party. Their case was that it was the complainants party who came suddenly and attacked the appellants party as a result of which there was marpit in which both sides sustained injuries. The appellants party pleaded self-defence. The trial Court after carefully examining the evidence came to the following conclusions: (1) that the marpit was not preplanned. It developed suddenly as a result of some abuses given by P.W. 1. (2) that the marpit took place near the second gate of the accused and not in front of the cycle stand of the complainant. 4. In effect the learned trial judge accepted the defence version that it was the complainants party which started abusing the appellants party as a result of which a sudden fight developed in front of the second gate of the appellants cycle stand. On the facts found by the trial Court it follows clearly that there was a mutual fight between the parties. In that view, the trial Court was not justified in convicting any of the accused by having recourse to Section 149, I. P. C. In a mutual fight, there is no common object. But the trial Court arrived at the conclusion that the appellant was one of the persons who stabbed the deceased Anwarul Hasan. It did not give any finding as regards the nature of the injuries caused by the appellant. 5. In appeal the learned appellate judge on the erroneous basis that in the First Information Report, there is no reference to the appellants stabbing Anwarul Hasan, acquitted the appellant under Section 304 (I). I. P. C., but sustained his conviction under Section 307/149 and Section 323/149 I. P. C. We have gone through the First Information Report. Therein it is clearly stated that the appellant was one of the persons who stabbed Anwarul Hasan; but there is no evidence as to the nature of the injury caused by him.We have earlier come to the conclusion that injuries to deceased were caused during the course of a mutual fight. Hence on the basis of the evidence on record, the appellant can be convicted only under Section 324, I. P. C. His convictions under Section 307/149, I. P. C. as well as under Section 323/149, I. P. C. are clearly unsustainable.
### Response:
1
### Explanation:
5. In appeal the learned appellate judge on the erroneous basis that in the First Information Report, there is no reference to the appellants stabbing Anwarul Hasan, acquitted the appellant under Section 304 (I). I. P. C., but sustained his conviction under Section 307/149 and Section 323/149 I. P. C. We have gone through the First Information Report. Therein it is clearly stated that the appellant was one of the persons who stabbed Anwarul Hasan; but there is no evidence as to the nature of the injury caused by him.We have earlier come to the conclusion that injuries to deceased were caused during the course of a mutual fight. Hence on the basis of the evidence on record, the appellant can be convicted only under Section 324, I. P. C. His convictions under Section 307/149, I. P. C. as well as under Section 323/149, I. P. C. are clearly unsustainable.
|
State of West Bengal Vs. Shebaits of Iswar Sri Saradia Thakurani & Others | (1).5. As stated earlier, both the last District Settlement and the Revisional Settlement have recorded the tank fishery as the debuttor property in respect of which the names of the respondents were entered as shebaits. But in view of the names of the Sahas appearing therein as tenants paying Rs. 60/- as annual rent, a notice was served on the respondent by the Collector of Murshidabad to hand over possession of the said tank. The respondents objected to the said notice. The State Government thereupon filed an objection under Section 44(2-a) for revising the entry in the record-of-rights. The objection was heard by the Settlement Officer, Kandi, under Section 44(2-a). He rejected the Governments objection and held that the said tank was not leased out to the said Sahas, that what was described as lease in the said entry was no more than a right of fishing without any right in the sub-soil of the tank or its embankments, and therefore, the must be held to have been in the khas possession thereof immediately before the date of vesting under the Act. In an appeal by the Government, the District Judge, as the appellate tribunal under the Act, reversed the order of the Settlement Officer and held that the said Sahas were the tenants of the tank fishery immediately before the date of vesting, and that, therefore, the proviso to Section 6(2) applied and the said Sahas must be deemed to be the direct tenants of the Government.6. The respondents thereupon filed a writ petition in the High Court for having the said order of the tribunal quashed. The High Court agreed with the Settlement Officer and held that what was mentioned in the Revisional Record was an arrangement between the respondents and the said Sahas, under which the latter, in consideration of their cleansing the tank and payment of Rs. 60/- per year were to have the fish which they might catch from the tank, and that, therefore, Section 6(2) proviso, was not attracted. This appeal by the State Government disputes that view.7. On the facts on record there can be no manner of doubt that the deity was the intermediary in respect of the tank fishery within the meaning of Section 2(i). It is also beyond doubt that if the proviso to sub-section (2) of Section 6 were not to apply, the respondents as the shebaits of the deity would be entitled, notwithstanding Sections 4 and 5, to retain the said tank fishery under Section 6(1) but would hold it, under sub-section (2) of Section 6, directly under the State as tenants from the date of vesting.8. Did the proviso to Section 6(2) then apply to the present case ? The answer to that question depends upon, as the proviso says, whether the tank fishery was held immediately before the date of vesting under a lease by the said Sahas. If so, the lessees under such a lease, and not the lessors, would become the direct tenants of the State. In other words, the interest in the tank of the intermediary would disappear.9. It is true that both the entry in the Revisional Record and the receipt passed by the respondents in favour of the Sahas mentioned them as tenants. The receipt mentions that the tank was leased to them for a period of nine years at an annual rent of Rs. 60/- from 1358 B.S. to 1366 B. S. Two facts, however, emerge from the record. The first is that there was no deed, much less a registered deed, evidencing the alleged lease. The second is that neither the sub-soil nor the embankments of the tank were the subject-matter of the alleged lease. In the absence of any registered deed there could be no valid lease of the tank for a period of nine years as was the case of the appellant State. No right, either in the sub-soil of the tax or its embankments, was acquired by the said Sahas. The only interest, therefore, they could have acquired was in the fish in the tank. The materials on record show that their interest was confined to the fish they would catch from the tank in consideration for which they had agreed to pay Rs. 60/- per year and in addition were under the obligation to cleanse the tank and keep it cleansed. Such an arrangement would not mean a lease within the meaning of the proviso to Section 6(2), but only constitutes a licence under which, for the consideration above stated, they became entitled to fish yielded by and caught by them from the tank.10. A point somewhat similar to the one in this appeal arose in Ananda Behera v. State of Orissa ((1955) 2 SCR 919 : AIR 1956 SC 17 ) where it was held that a right to catch fish is profit a prendre which is immovable property within the meaning of the Transfer of Property Act read with Section 3(25) of the General Clauses Act, which would be accompanied by a licence to enter upon the land, in the present case the embankments, for the purpose of going into the tank to catch the fish and to keep the tank cleansed. It is clear, therefore, that there was no legally enforceable lease of the tank in the favour of the Sahas immediately before the date of vesting, so as to attract the proviso to Section 6(2). Therefore, it was the deity through the respondents, who was entitled under sub-section 6(2) read with Section 6(1) to become the tenant of the State and not the said Sahas. The notice directing the respondents to hand over possession to the State was, therefore, without jurisdiction and was liable to be quashed.11. In our view, the High Court was right in quashing the order of the appellate tribunal, inasmuch as the tribunal by wrongly interpreting the Revisional Record appropriated to itself the jurisdiction under Section 44(2) of the Act to revise the entry in the Record-of-rights. | 0[ds]7. On the facts on record there can be no manner of doubt that the deity was the intermediary in respect of the tank fishery within the meaning of Section 2(i). It is also beyond doubt that if the proviso to(2) of Section 6 were not to apply, the respondents as the shebaits of the deity would be entitled, notwithstanding Sections 4 and 5, to retain the said tank fishery under Section 6(1) but would hold it, under(2) of Section 6, directly under the State as tenants from the date of vesting.8. Did the proviso to Section 6(2) then apply to the present case ? The answer to that question depends upon, as the proviso says, whether the tank fishery was held immediately before the date of vesting under a lease by the said Sahas. If so, the lessees under such a lease, and not the lessors, would become the direct tenants of the State. In other words, the interest in the tank of the intermediary wouldfacts, however, emerge from the record. The first is that there was no deed, much less a registered deed, evidencing the alleged lease. The second is that neither thenor the embankments of the tank were theof the alleged lease. In the absence of any registered deed there could be no valid lease of the tank for a period of nine years as was the case of the appellant State. No right, either in theof the tax or its embankments, was acquired by the said Sahas. The only interest, therefore, they could have acquired was in the fish in the tank. The materials on record show that their interest was confined to the fish they would catch from the tank in consideration for which they had agreed to pay Rs. 60/per year and in addition were under the obligation to cleanse the tank and keep it cleansed. Such an arrangement would not mean a lease within the meaning of the proviso to Section 6(2), but only constitutes a licence under which, for the consideration above stated, they became entitled to fish yielded by and caught by them from theis clear, therefore, that there was no legally enforceable lease of the tank in the favour of the Sahas immediately before the date of vesting, so as to attract the proviso to Section 6(2). Therefore, it was the deity through the respondents, who was entitled under6(2) read with Section 6(1) to become the tenant of the State and not the said Sahas. The notice directing the respondents to hand over possession to the State was, therefore, without jurisdiction and was liable to be quashed.11. In our view, the High Court was right in quashing the order of the appellate tribunal, inasmuch as the tribunal by wrongly interpreting the Revisional Record appropriated to itself the jurisdiction under Section 44(2) of the Act to revise the entry in the | 0 | 2,283 | 561 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
(1).5. As stated earlier, both the last District Settlement and the Revisional Settlement have recorded the tank fishery as the debuttor property in respect of which the names of the respondents were entered as shebaits. But in view of the names of the Sahas appearing therein as tenants paying Rs. 60/- as annual rent, a notice was served on the respondent by the Collector of Murshidabad to hand over possession of the said tank. The respondents objected to the said notice. The State Government thereupon filed an objection under Section 44(2-a) for revising the entry in the record-of-rights. The objection was heard by the Settlement Officer, Kandi, under Section 44(2-a). He rejected the Governments objection and held that the said tank was not leased out to the said Sahas, that what was described as lease in the said entry was no more than a right of fishing without any right in the sub-soil of the tank or its embankments, and therefore, the must be held to have been in the khas possession thereof immediately before the date of vesting under the Act. In an appeal by the Government, the District Judge, as the appellate tribunal under the Act, reversed the order of the Settlement Officer and held that the said Sahas were the tenants of the tank fishery immediately before the date of vesting, and that, therefore, the proviso to Section 6(2) applied and the said Sahas must be deemed to be the direct tenants of the Government.6. The respondents thereupon filed a writ petition in the High Court for having the said order of the tribunal quashed. The High Court agreed with the Settlement Officer and held that what was mentioned in the Revisional Record was an arrangement between the respondents and the said Sahas, under which the latter, in consideration of their cleansing the tank and payment of Rs. 60/- per year were to have the fish which they might catch from the tank, and that, therefore, Section 6(2) proviso, was not attracted. This appeal by the State Government disputes that view.7. On the facts on record there can be no manner of doubt that the deity was the intermediary in respect of the tank fishery within the meaning of Section 2(i). It is also beyond doubt that if the proviso to sub-section (2) of Section 6 were not to apply, the respondents as the shebaits of the deity would be entitled, notwithstanding Sections 4 and 5, to retain the said tank fishery under Section 6(1) but would hold it, under sub-section (2) of Section 6, directly under the State as tenants from the date of vesting.8. Did the proviso to Section 6(2) then apply to the present case ? The answer to that question depends upon, as the proviso says, whether the tank fishery was held immediately before the date of vesting under a lease by the said Sahas. If so, the lessees under such a lease, and not the lessors, would become the direct tenants of the State. In other words, the interest in the tank of the intermediary would disappear.9. It is true that both the entry in the Revisional Record and the receipt passed by the respondents in favour of the Sahas mentioned them as tenants. The receipt mentions that the tank was leased to them for a period of nine years at an annual rent of Rs. 60/- from 1358 B.S. to 1366 B. S. Two facts, however, emerge from the record. The first is that there was no deed, much less a registered deed, evidencing the alleged lease. The second is that neither the sub-soil nor the embankments of the tank were the subject-matter of the alleged lease. In the absence of any registered deed there could be no valid lease of the tank for a period of nine years as was the case of the appellant State. No right, either in the sub-soil of the tax or its embankments, was acquired by the said Sahas. The only interest, therefore, they could have acquired was in the fish in the tank. The materials on record show that their interest was confined to the fish they would catch from the tank in consideration for which they had agreed to pay Rs. 60/- per year and in addition were under the obligation to cleanse the tank and keep it cleansed. Such an arrangement would not mean a lease within the meaning of the proviso to Section 6(2), but only constitutes a licence under which, for the consideration above stated, they became entitled to fish yielded by and caught by them from the tank.10. A point somewhat similar to the one in this appeal arose in Ananda Behera v. State of Orissa ((1955) 2 SCR 919 : AIR 1956 SC 17 ) where it was held that a right to catch fish is profit a prendre which is immovable property within the meaning of the Transfer of Property Act read with Section 3(25) of the General Clauses Act, which would be accompanied by a licence to enter upon the land, in the present case the embankments, for the purpose of going into the tank to catch the fish and to keep the tank cleansed. It is clear, therefore, that there was no legally enforceable lease of the tank in the favour of the Sahas immediately before the date of vesting, so as to attract the proviso to Section 6(2). Therefore, it was the deity through the respondents, who was entitled under sub-section 6(2) read with Section 6(1) to become the tenant of the State and not the said Sahas. The notice directing the respondents to hand over possession to the State was, therefore, without jurisdiction and was liable to be quashed.11. In our view, the High Court was right in quashing the order of the appellate tribunal, inasmuch as the tribunal by wrongly interpreting the Revisional Record appropriated to itself the jurisdiction under Section 44(2) of the Act to revise the entry in the Record-of-rights.
### Response:
0
### Explanation:
7. On the facts on record there can be no manner of doubt that the deity was the intermediary in respect of the tank fishery within the meaning of Section 2(i). It is also beyond doubt that if the proviso to(2) of Section 6 were not to apply, the respondents as the shebaits of the deity would be entitled, notwithstanding Sections 4 and 5, to retain the said tank fishery under Section 6(1) but would hold it, under(2) of Section 6, directly under the State as tenants from the date of vesting.8. Did the proviso to Section 6(2) then apply to the present case ? The answer to that question depends upon, as the proviso says, whether the tank fishery was held immediately before the date of vesting under a lease by the said Sahas. If so, the lessees under such a lease, and not the lessors, would become the direct tenants of the State. In other words, the interest in the tank of the intermediary wouldfacts, however, emerge from the record. The first is that there was no deed, much less a registered deed, evidencing the alleged lease. The second is that neither thenor the embankments of the tank were theof the alleged lease. In the absence of any registered deed there could be no valid lease of the tank for a period of nine years as was the case of the appellant State. No right, either in theof the tax or its embankments, was acquired by the said Sahas. The only interest, therefore, they could have acquired was in the fish in the tank. The materials on record show that their interest was confined to the fish they would catch from the tank in consideration for which they had agreed to pay Rs. 60/per year and in addition were under the obligation to cleanse the tank and keep it cleansed. Such an arrangement would not mean a lease within the meaning of the proviso to Section 6(2), but only constitutes a licence under which, for the consideration above stated, they became entitled to fish yielded by and caught by them from theis clear, therefore, that there was no legally enforceable lease of the tank in the favour of the Sahas immediately before the date of vesting, so as to attract the proviso to Section 6(2). Therefore, it was the deity through the respondents, who was entitled under6(2) read with Section 6(1) to become the tenant of the State and not the said Sahas. The notice directing the respondents to hand over possession to the State was, therefore, without jurisdiction and was liable to be quashed.11. In our view, the High Court was right in quashing the order of the appellate tribunal, inasmuch as the tribunal by wrongly interpreting the Revisional Record appropriated to itself the jurisdiction under Section 44(2) of the Act to revise the entry in the
|
State of Rajasthan Vs. Mohan Lal Vyas | Ray, J.1. This is an appeal by special leave against the judgment, dated February 8, 1966, of the High Court of Rajasthan upholding the judgment and decree of the District Judge, Jodhpur, restraining the appellant State of Rajasthan from recovering any amount from the respondent under two agreements for plying buses or trucks on route or routes mentioned in the agreements. The High Court further upheld the judgment of the District Judge that the contracts granting monopoly rights to the respondent became void with the coming into force of the Constitution, and, therefore, the State Government had no right to demand or realise from the respondent any amount for plying the buses and trucks on the routes mentioned in the impugned contracts.2. In the month of December, 1948, the respondent and the Government of the State of Jodhpur which subsequently on April 7, 1949, merged with the State of Rajasthan entered into two agreements in respect of two bus routes. The first route was Nagaur-Role-Deh for three years form December 1, 1948, to November 30, 1951, and the second was for Kuchera-Khajwana route from July 1, 1948, to November 30, 1951. Under both the agreements the respondent was given the monopoly right to ply the buses on the routes mentioned. Under the first agreement the respondent was to pay to the State, Rs. 72, 121/- for the period mentioned thereunder. For the second agreement the respondent was to pay Rs. 41, 121/- for the entire period. The several sums of money under both the agreements were payable by instalments. Up to January 26, 1950, the respondent paid Rs. 51, 000/- to the State. The respondent contended that on the Constitution coming into force on January 26, 1950, the monopoly contracts between the respondent and the State became void and were unenforceable.3. The State issued a demand notice for Rs. 69, 932-4-0 under the aforesaid two agreements. The alleged amounts, according to the State, were payable subsequent to January 26, 1950, for the remaining period. The respondent filed the suit for an injunction restraining the State from recovering the sum of Rs. 69, 932-4-0 inasmuch as the monopoly contracts became illegal, void and unenforceable.4. The State contended that the Marwar Motor Vehicles Act, 1945, remained in force up to April 1, 1951, when the Motor Vehicles Act of 1939 was extended to the entire area of the State of Rajasthan including the former State of Jodhpur and therefore the monopoly contracts which were entered into by and between the respondent on the one hand and the State of Jodhpur on the other continued in force. Reliance was also placed on sub-section (8) to Section 57 of the Marwar Motor Vehicles Act, 1945, which was brought into effect on June 8, 1946, whereby the monopoly permits could be granted.5. It is manifest that after the Constitution came into force every citizen under Article 19(1)(g) of the Constitution has the right of freedom of trade including the right to ply buses and trucks on the road. Under Article 13 the law has to be in consonance with the Constitution. It has, therefore, to be found out as to whether there is any law by virtue of which the State of Rajasthan could grant or keep alive any monopoly contract. The answer is in the negative. There cannot be any law in violation of the provisions of the Constitution. A monopoly right cannot be conferred on a citizen under the Constitution nor can it be justified under the Constitution.6. In 1951, there was amendment of the Constitution whereby Article 19(6) provided that the monopoly rights could be created in favour of the State in respect of any trade or business. The monopoly contracts in the present case were not in favour of the State Government. Article 19(6) of the Constitution provides a reasonable restriction on the fundamental rights of citizens as contained in Article 19(1)(g). If the State obtained a monopoly it would be defensible as a reasonable restriction on the rights of citizens to carry on any business or trade and to ply buses. On the other hand, if the State conferred any monopoly right on a citizen it would be indefensible and impermissible and would be an infraction of the inviolable provision of the Constitution.7. The Constitution forbids grant by the State to a citizen of monopoly right to carry on the business of plying buses undertaken in the agreements. The manner in which the agreements were to be performed became illegal as a result of the Constitution. The arguments were therefore incapable of enforcement. The Constitution struck at the root of the agreements. The effect was that circumstances of the agreements were radically changed as a result of the Constitution and the agreements were incapable of performance under the law of the land.8. We are of opinion that the High Court correctly held that the State was unable to rely on any provision of the law which empowered the State Government to realise the amount demanded from the respondent for using the highway. No reliance could be placed by the State on the monopoly contracts which were impeached by the respondent inasmuch as these were unenforceable and unconstitutional. | 0[ds]5. It is manifest that after the Constitution came into force every citizen under Article 19(1)(g) of the Constitution has the right of freedom of trade including the right to ply buses and trucks on the road. Under Article 13 the law has to be in consonance with the Constitution. It has, therefore, to be found out as to whether there is any law by virtue of which the State of Rajasthan could grant or keep alive any monopoly contract. The answer is in the negative. There cannot be any law in violation of the provisions of the Constitution. A monopoly right cannot be conferred on a citizen under the Constitution nor can it be justified under the Constitution.6. In 1951, there was amendment of the Constitution whereby Article 19(6) provided that the monopoly rights could be created in favour of the State in respect of any trade or business. The monopoly contracts in the present case were not in favour of the State Government. Article 19(6) of the Constitution provides a reasonable restriction on the fundamental rights of citizens as contained in Article 19(1)(g). If the State obtained a monopoly it would be defensible as a reasonable restriction on the rights of citizens to carry on any business or trade and to ply buses. On the other hand, if the State conferred any monopoly right on a citizen it would be indefensible and impermissible and would be an infraction of the inviolable provision of the Constitution.7. The Constitution forbids grant by the State to a citizen of monopoly right to carry on the business of plying buses undertaken in the agreements. The manner in which the agreements were to be performed became illegal as a result of the Constitution. The arguments were therefore incapable of enforcement. The Constitution struck at the root of the agreements. The effect was that circumstances of the agreements were radically changed as a result of the Constitution and the agreements were incapable of performance under the law of the land.8. We are of opinion that the High Court correctly held that the State was unable to rely on any provision of the law which empowered the State Government to realise the amount demanded from the respondent for using the highway. No reliance could be placed by the State on the monopoly contracts which were impeached by the respondent inasmuch as these were unenforceable and unconstitutional. | 0 | 975 | 448 | ### 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:
Ray, J.1. This is an appeal by special leave against the judgment, dated February 8, 1966, of the High Court of Rajasthan upholding the judgment and decree of the District Judge, Jodhpur, restraining the appellant State of Rajasthan from recovering any amount from the respondent under two agreements for plying buses or trucks on route or routes mentioned in the agreements. The High Court further upheld the judgment of the District Judge that the contracts granting monopoly rights to the respondent became void with the coming into force of the Constitution, and, therefore, the State Government had no right to demand or realise from the respondent any amount for plying the buses and trucks on the routes mentioned in the impugned contracts.2. In the month of December, 1948, the respondent and the Government of the State of Jodhpur which subsequently on April 7, 1949, merged with the State of Rajasthan entered into two agreements in respect of two bus routes. The first route was Nagaur-Role-Deh for three years form December 1, 1948, to November 30, 1951, and the second was for Kuchera-Khajwana route from July 1, 1948, to November 30, 1951. Under both the agreements the respondent was given the monopoly right to ply the buses on the routes mentioned. Under the first agreement the respondent was to pay to the State, Rs. 72, 121/- for the period mentioned thereunder. For the second agreement the respondent was to pay Rs. 41, 121/- for the entire period. The several sums of money under both the agreements were payable by instalments. Up to January 26, 1950, the respondent paid Rs. 51, 000/- to the State. The respondent contended that on the Constitution coming into force on January 26, 1950, the monopoly contracts between the respondent and the State became void and were unenforceable.3. The State issued a demand notice for Rs. 69, 932-4-0 under the aforesaid two agreements. The alleged amounts, according to the State, were payable subsequent to January 26, 1950, for the remaining period. The respondent filed the suit for an injunction restraining the State from recovering the sum of Rs. 69, 932-4-0 inasmuch as the monopoly contracts became illegal, void and unenforceable.4. The State contended that the Marwar Motor Vehicles Act, 1945, remained in force up to April 1, 1951, when the Motor Vehicles Act of 1939 was extended to the entire area of the State of Rajasthan including the former State of Jodhpur and therefore the monopoly contracts which were entered into by and between the respondent on the one hand and the State of Jodhpur on the other continued in force. Reliance was also placed on sub-section (8) to Section 57 of the Marwar Motor Vehicles Act, 1945, which was brought into effect on June 8, 1946, whereby the monopoly permits could be granted.5. It is manifest that after the Constitution came into force every citizen under Article 19(1)(g) of the Constitution has the right of freedom of trade including the right to ply buses and trucks on the road. Under Article 13 the law has to be in consonance with the Constitution. It has, therefore, to be found out as to whether there is any law by virtue of which the State of Rajasthan could grant or keep alive any monopoly contract. The answer is in the negative. There cannot be any law in violation of the provisions of the Constitution. A monopoly right cannot be conferred on a citizen under the Constitution nor can it be justified under the Constitution.6. In 1951, there was amendment of the Constitution whereby Article 19(6) provided that the monopoly rights could be created in favour of the State in respect of any trade or business. The monopoly contracts in the present case were not in favour of the State Government. Article 19(6) of the Constitution provides a reasonable restriction on the fundamental rights of citizens as contained in Article 19(1)(g). If the State obtained a monopoly it would be defensible as a reasonable restriction on the rights of citizens to carry on any business or trade and to ply buses. On the other hand, if the State conferred any monopoly right on a citizen it would be indefensible and impermissible and would be an infraction of the inviolable provision of the Constitution.7. The Constitution forbids grant by the State to a citizen of monopoly right to carry on the business of plying buses undertaken in the agreements. The manner in which the agreements were to be performed became illegal as a result of the Constitution. The arguments were therefore incapable of enforcement. The Constitution struck at the root of the agreements. The effect was that circumstances of the agreements were radically changed as a result of the Constitution and the agreements were incapable of performance under the law of the land.8. We are of opinion that the High Court correctly held that the State was unable to rely on any provision of the law which empowered the State Government to realise the amount demanded from the respondent for using the highway. No reliance could be placed by the State on the monopoly contracts which were impeached by the respondent inasmuch as these were unenforceable and unconstitutional.
### Response:
0
### Explanation:
5. It is manifest that after the Constitution came into force every citizen under Article 19(1)(g) of the Constitution has the right of freedom of trade including the right to ply buses and trucks on the road. Under Article 13 the law has to be in consonance with the Constitution. It has, therefore, to be found out as to whether there is any law by virtue of which the State of Rajasthan could grant or keep alive any monopoly contract. The answer is in the negative. There cannot be any law in violation of the provisions of the Constitution. A monopoly right cannot be conferred on a citizen under the Constitution nor can it be justified under the Constitution.6. In 1951, there was amendment of the Constitution whereby Article 19(6) provided that the monopoly rights could be created in favour of the State in respect of any trade or business. The monopoly contracts in the present case were not in favour of the State Government. Article 19(6) of the Constitution provides a reasonable restriction on the fundamental rights of citizens as contained in Article 19(1)(g). If the State obtained a monopoly it would be defensible as a reasonable restriction on the rights of citizens to carry on any business or trade and to ply buses. On the other hand, if the State conferred any monopoly right on a citizen it would be indefensible and impermissible and would be an infraction of the inviolable provision of the Constitution.7. The Constitution forbids grant by the State to a citizen of monopoly right to carry on the business of plying buses undertaken in the agreements. The manner in which the agreements were to be performed became illegal as a result of the Constitution. The arguments were therefore incapable of enforcement. The Constitution struck at the root of the agreements. The effect was that circumstances of the agreements were radically changed as a result of the Constitution and the agreements were incapable of performance under the law of the land.8. We are of opinion that the High Court correctly held that the State was unable to rely on any provision of the law which empowered the State Government to realise the amount demanded from the respondent for using the highway. No reliance could be placed by the State on the monopoly contracts which were impeached by the respondent inasmuch as these were unenforceable and unconstitutional.
|
Messrs Mehta Parikh & Co Vs. The Commissioner Of Income-Tax,Bombay | dislodge the position taken up by the appellants, supported as it was, by the entries in the cash book and the affidavits put in by the appellants before the Appellate Commissioner.15. The Tribunal also fell into the same error. It could not negative the possibility of the appellant being in possession of a substantial number of these high denomination currency notes. It, however, considered that it was impossible for the appellants to have had 61 such notes in the cash balance in their hands on 12-1-1946 and then it applies a rule of the thumb treating 31 out of such 61 notes as within the bounds of possibility excluding 30 such notes as not covered by the explanation of the appellants. This was pure surmise and had no basis in the evidence, which was on the record of the proceedings.16. The High Court treated this finding of the Tribunal as a mere findings of fact. The position in regard to all such findings of fact, as to whether they can be questioned in appeal, is thus laid down by the House of Lords in Cameron v. Prendergast (1940) 8 ITR (Sup) 75 (81) (A)."Inference from facts stated by the Commissioners are matters of law and can be questioned on appeal. The same remark is true as to the construction of documents. If the Commissioners state the evidence and hold upon that evidence that certain results follow, it is open to the Court of differ from such a holding."To the same effect are the observations of the House of Lords in Bomford v. Osborne (1942) 10 ITR (Sup) 27 (34) (B)."No doubt there are many cases in which Commissioners, having had proved or admitted before them a series of facts, may deduce therefrom further conclusion which are themselves conclusions of pure fact. But in such cases the determination in point of law is that the facts proved or admitted provide evidence to support the Commissioners conclusions."The latest pronouncement of the House of Lords on this question it to be found in Edwards v. Bairstow (1955) 28 ITR 579 (C) Viscount Simonds observed at page 586 :-"For it is universally conceded that, though it is a pure, finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the Commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained."and Lord Radcliffe expressed himself as under at page 592 :-"If the case contains anything ex facie which is bad law and which bears upon the determination, it is obviously erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law should have come to the determination under appeal. In those circumstances, too, the court must intervene."17. It follows, therefore, that facts proved or admitted may provide evidence to support further conclusion to be deduced from them, which conclusions may themselves be conclusions of fact and such inferences from facts proved or admitted could be matters of law. The court would be entitled to intervene if it appears that the fact finding authority has acted without any evidence or upon a view of the facts, which could not reasonably be entertained or the facts found are such that no person acting judicially and properly instructed as to the relevant law would have come to the determination in question.18. The High Court recognised this position in effect but went wrong in applying the true principles of interference with such findings of fact to the present case. The attempt which was made by the High Court to probe into the mind of the Tribunal by trying to discard the affidavit of Govindprasad Ramjivan Ninetia in regard to the payment of Rs. 15,000 to the appellants in 15 currency notes of Rs. 1,000 each on 6-1-1946 and thus reducing the aggregate sum of Rs. 43,500 to Rs. 28,500 and justifying the figure of Rs. 31,000 arrived at by the Tribunal was really far-fetched and contrary to the terms of the Tribunals order itself, the Tribunal not having given any inkling, whatever, of what was at the back of its mind when it fixed upon the figure Rs. 31,000. Really speaking the Tribunal had not indicated upon what material it held that Rs. 30,000 should be treated as secret profit or profits from undisclosed sources and the order passed by it was bad. The appellants had furnished a reasonable explanation for the possession of the high denomination notes of the face value of Rs. 61,000 and there was no justification for having accepted it in part and discarded it in relation to a sum of Rs. 30,000. The case was analogous to the one before the Patna High Court in Chunilal Tichamchand Coal Co. Ltd. v. Commissioner of Income-tax, Bihar and Orissa, 1955 Pat. 185 (AIR V 42) (D), and should have been similarly decided in favour of the appellants.19.For the reasons indicated above, we are of the opinion that the High Court was in error in answering the first referred question in the affirmative. It ought to have answered it in the negative and held that there were no materials to justify the assessment of Rs. 30,000 from out of the sum of Rs. 61,000, for Income-tax and Excess Profits Tax and Business Profits Tax purposes representing the value of the high denomination notes which were encashed on 18-1-1946.20. In view of the above it is not necessary for us to go into the question whether the High Court ought to have answered the second referred question also. The answer to the first referred question being in the negative, the very basis for Excess Profits Tax and Business Profits Tax disappears and the second referred question becomes purely academical. | 1[ds]19.For the reasons indicated above, we are of the opinion that the High Court was in error in answering the first referred question in the affirmative. It ought to have answered it in the negative and held that there were no materials to justify the assessment of Rs. 30,000 from out of the sum of Rs. 61,000, for Income-tax and Excess Profits Tax and Business Profits Tax purposes representing the value of the high denomination notes which were encashed on 18-1-1946.20. In view of the above it is not necessary for us to go into the question whether the High Court ought to have answered the second referred question also. The answer to the first referred question being in the negative, the very basis for Excess Profits Tax and Business Profits Tax disappears and the second referred question becomes purely academical. | 1 | 3,559 | 154 | ### 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:
dislodge the position taken up by the appellants, supported as it was, by the entries in the cash book and the affidavits put in by the appellants before the Appellate Commissioner.15. The Tribunal also fell into the same error. It could not negative the possibility of the appellant being in possession of a substantial number of these high denomination currency notes. It, however, considered that it was impossible for the appellants to have had 61 such notes in the cash balance in their hands on 12-1-1946 and then it applies a rule of the thumb treating 31 out of such 61 notes as within the bounds of possibility excluding 30 such notes as not covered by the explanation of the appellants. This was pure surmise and had no basis in the evidence, which was on the record of the proceedings.16. The High Court treated this finding of the Tribunal as a mere findings of fact. The position in regard to all such findings of fact, as to whether they can be questioned in appeal, is thus laid down by the House of Lords in Cameron v. Prendergast (1940) 8 ITR (Sup) 75 (81) (A)."Inference from facts stated by the Commissioners are matters of law and can be questioned on appeal. The same remark is true as to the construction of documents. If the Commissioners state the evidence and hold upon that evidence that certain results follow, it is open to the Court of differ from such a holding."To the same effect are the observations of the House of Lords in Bomford v. Osborne (1942) 10 ITR (Sup) 27 (34) (B)."No doubt there are many cases in which Commissioners, having had proved or admitted before them a series of facts, may deduce therefrom further conclusion which are themselves conclusions of pure fact. But in such cases the determination in point of law is that the facts proved or admitted provide evidence to support the Commissioners conclusions."The latest pronouncement of the House of Lords on this question it to be found in Edwards v. Bairstow (1955) 28 ITR 579 (C) Viscount Simonds observed at page 586 :-"For it is universally conceded that, though it is a pure, finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the Commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained."and Lord Radcliffe expressed himself as under at page 592 :-"If the case contains anything ex facie which is bad law and which bears upon the determination, it is obviously erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law should have come to the determination under appeal. In those circumstances, too, the court must intervene."17. It follows, therefore, that facts proved or admitted may provide evidence to support further conclusion to be deduced from them, which conclusions may themselves be conclusions of fact and such inferences from facts proved or admitted could be matters of law. The court would be entitled to intervene if it appears that the fact finding authority has acted without any evidence or upon a view of the facts, which could not reasonably be entertained or the facts found are such that no person acting judicially and properly instructed as to the relevant law would have come to the determination in question.18. The High Court recognised this position in effect but went wrong in applying the true principles of interference with such findings of fact to the present case. The attempt which was made by the High Court to probe into the mind of the Tribunal by trying to discard the affidavit of Govindprasad Ramjivan Ninetia in regard to the payment of Rs. 15,000 to the appellants in 15 currency notes of Rs. 1,000 each on 6-1-1946 and thus reducing the aggregate sum of Rs. 43,500 to Rs. 28,500 and justifying the figure of Rs. 31,000 arrived at by the Tribunal was really far-fetched and contrary to the terms of the Tribunals order itself, the Tribunal not having given any inkling, whatever, of what was at the back of its mind when it fixed upon the figure Rs. 31,000. Really speaking the Tribunal had not indicated upon what material it held that Rs. 30,000 should be treated as secret profit or profits from undisclosed sources and the order passed by it was bad. The appellants had furnished a reasonable explanation for the possession of the high denomination notes of the face value of Rs. 61,000 and there was no justification for having accepted it in part and discarded it in relation to a sum of Rs. 30,000. The case was analogous to the one before the Patna High Court in Chunilal Tichamchand Coal Co. Ltd. v. Commissioner of Income-tax, Bihar and Orissa, 1955 Pat. 185 (AIR V 42) (D), and should have been similarly decided in favour of the appellants.19.For the reasons indicated above, we are of the opinion that the High Court was in error in answering the first referred question in the affirmative. It ought to have answered it in the negative and held that there were no materials to justify the assessment of Rs. 30,000 from out of the sum of Rs. 61,000, for Income-tax and Excess Profits Tax and Business Profits Tax purposes representing the value of the high denomination notes which were encashed on 18-1-1946.20. In view of the above it is not necessary for us to go into the question whether the High Court ought to have answered the second referred question also. The answer to the first referred question being in the negative, the very basis for Excess Profits Tax and Business Profits Tax disappears and the second referred question becomes purely academical.
### Response:
1
### Explanation:
19.For the reasons indicated above, we are of the opinion that the High Court was in error in answering the first referred question in the affirmative. It ought to have answered it in the negative and held that there were no materials to justify the assessment of Rs. 30,000 from out of the sum of Rs. 61,000, for Income-tax and Excess Profits Tax and Business Profits Tax purposes representing the value of the high denomination notes which were encashed on 18-1-1946.20. In view of the above it is not necessary for us to go into the question whether the High Court ought to have answered the second referred question also. The answer to the first referred question being in the negative, the very basis for Excess Profits Tax and Business Profits Tax disappears and the second referred question becomes purely academical.
|
Jaydip Industries, Thana Vs. The Workmen | notwithstanding anything contained in this Act, the minimum rates of wages so fixed or so revised shall not apply to those employees during the period in which the proceeding is pending and the award made therein is in operation, or, as the case may be, where the notification is issued during the period of operation of an award, during that period; and where such proceeding or award relates to the rates of wages payable to all the employees in the scheduled employment, no minimum rates of wages shall be fixed or revised in respect of that employment during the said period."10. It may be recalled that it was during the pendency of the proceedings before the Tribunal that the notification by the Maharashtra Government fixing minimum rates of wages came into operation. The sub-section would make it clear that even after the fixation of minimum rates of wages by the appropriate Government under section 3 of the Act, it is open to an Industrial Tribunal adjudicating an industrial dispute relating to wages payable to the employees in a scheduled employment to fix minimum wages at higher or lower rates, if the dispute was pending at the time of fixation of minimum wages under S. 3 of the Act. So it was open to the Tribunal to fix rates of minimum wages at rates higher than the rates fixed by the Government under section 3 of the Act. In other words the Tribunal was not bound by the fixation of the minimum rates of wages by the Government under the provisions of S. 3 of the Act and could fix higher rates as minimum wages in its award.11. In considering the question what are the component elements of minimum wages, this Court observed as follows in U. Unichoyi v. State of Kerala, (1962) 1 SCR 946 at p. 957 = (AIR 1962 SC 12 at p. 17):"Sometimes the minimum wage is described as a bare minimum wage in order to distinguish it from the wage structure which is subsistence plus or fair wage, but too mush emphasis on the adjective bare in relation to the minimum wage is apt to lead to the erroneous assumption that the maintenance wage is a wage which enables the worker to cover his bare physical needs and keep himself just above starvation. That clearly is not intended by the concept of minimum wage. On the other hand, since the capacity of the employer to pay is treated as irrelevant, it is but right that no addition should be made to the components of the minimum wage which would take the minimum wage near the lower level of the fair wage, but the contents of this concept must ensure for the employee not only his subsistence and that of his family but must also preserve his efficiency as a worker."The Act contemplates that minimum wage rates should be fixed in the scheduled industries with the dual object or providing sustenance and maintenance of the worker and his family and preserving his efficiency as a worker."It is, therefore, clear that the minimum wage can provide not only for the bare sustenance of life but also for the preservation of the efficiency of the worker. We do not think that the rates of wages fixed by the Tribunal were fair wages or wages bordering on fair wages. The Tribunal has referred to the minimum rates of wages fixed in the several awards passed by it from 1962 onwards, and also considered the is in the cost of living. In particular, the Tribunal was careful to take into account the Consumer Price Index for the month of December, 1966, and that for the month of January, 1967, for coming to the conclusion that rates higher than those specified in the notification published by Government should be fixed as minimum wages. As the rates fixed by the Tribunal were minimum rates of wages as explained in the case of (1962) 1 SCR 946 = (AIR 1962 SC 12 ) we do not think that the capacity of the industry to pay was a relevant consideration.12. There was also no material before the Tribunal to come to the conclusion that the Government, in fixing the minimum rates of wages, took into consideration all the components in the fixation of minimum wages as explained by this Court in (1962) 1 SCR 946 = (AIR 1962 SC 12 ).13. In the light of the provisions of section 3 (2A) of the Act, we hold that the Tribunal was not bound by the rates of minimum wages fixed by the Government under section 3 of the Act and that it was open of the Tribunal to fix rates of minimum wages to be paid to the workmen concerned in the dispute at figures higher than those fixed by the Government.14. It was contended on behalf of the appellant that the employer has his place of business outside the city of Bombay and that in the city of Bombay, the wages for workmen are generally higher than those outside the city, and therefore, the Tribunal went wrong in taking the minimum rates of wages fixed in the various awards for workmen in the city of Bombay as criteria for fixing the minimum wages for workmen outside the city. The Tribunal considered this question and held that the rates of minimum wages fixed by the Government for the city of Bombay, the town of Thana and also for the village of Majiwade, where the appellants factory is situate, are the same and so, the rates of wages at Majiwade are not lower than the wage rates obtaining in the city of Bombay and Thana. We do not, therefore, think that the Tribunal went wrong in taking into account the rates of minimum wages fixed in the several awards for the workmen employed in the city of Bombay as affording criteria for fixing minimum rates of wages with suitable modification for the workmen employed under the appellant. | 0[ds]It is, therefore, clear that the minimum wage can provide not only for the bare sustenance of life but also for the preservation of the efficiency of the worker. We do not think that the rates of wages fixed by the Tribunal were fair wages or wages bordering on fair wages. The Tribunal has referred to the minimum rates of wages fixed in the several awards passed by it from 1962 onwards, and also considered the is in the cost of living. In particular, the Tribunal was careful to take into account the Consumer Price Index for the month of December, 1966, and that for the month of January, 1967, for coming to the conclusion that rates higher than those specified in the notification published by Government should be fixed as minimum wages. As the rates fixed by the Tribunal were minimum rates of wages as explained in the case of (1962) 1 SCR 946 = (AIR 1962 SC 12 ) we do not think that the capacity of the industry to pay was a relevant consideration.In the light of the provisions of section 3 (2A) of the Act, we hold that the Tribunal was not bound by the rates of minimum wages fixed by the Government under section 3 of the Act and that it was open of the Tribunal to fix rates of minimum wages to be paid to the workmen concerned in the dispute at figures higher than those fixed by thedo not, therefore, think that the Tribunal went wrong in taking into account the rates of minimum wages fixed in the several awards for the workmen employed in the city of Bombay as affording criteria for fixing minimum rates of wages with suitable modification for the workmen employed under the appellant.It may be recalled that it was during the pendency of the proceedings before the Tribunal that the notification by the Maharashtra Government fixing minimum rates of wages came into operation. Thewould make it clear that even after the fixation of minimum rates of wages by the appropriate Government under section 3 of the Act, it is open to an Industrial Tribunal adjudicating an industrial dispute relating to wages payable to the employees in a scheduled employment to fix minimum wages at higher or lower rates, if the dispute was pending at the time of fixation of minimum wages under S. 3 of the Act. So it was open to the Tribunal to fix rates of minimum wages at rates higher than the rates fixed by the Government under section 3 of the Act. In other words the Tribunal was not bound by the fixation of the minimum rates of wages by the Government under the provisions of S. 3 of the Act and could fix higher rates as minimum wages in its award.11. In considering the question what are the component elements of minimum wages, this Court observed as follows in U. Unichoyi v. State of Kerala, (1962) 1 SCR 946 at p. 957 = (AIR 1962 SC 12 at p.the minimum wage is described as a bare minimum wage in order to distinguish it from the wage structure which is subsistence plus or fair wage, but too mush emphasis on the adjective bare in relation to the minimum wage is apt to lead to the erroneous assumption that the maintenance wage is a wage which enables the worker to cover his bare physical needs and keep himself just above starvation. That clearly is not intended by the concept of minimum wage. On the other hand, since the capacity of the employer to pay is treated as irrelevant, it is but right that no addition should be made to the components of the minimum wage which would take the minimum wage near the lower level of the fair wage, but the contents of this concept must ensure for the employee not only his subsistence and that of his family but must also preserve his efficiency as aAct contemplates that minimum wage rates should be fixed in the scheduled industries with the dual object or providing sustenance and maintenance of the worker and his family and preserving his efficiency as ais, therefore, clear that the minimum wage can provide not only for the bare sustenance of life but also for the preservation of the efficiency of the worker. We do not think that the rates of wages fixed by the Tribunal were fair wages or wages bordering on fair wages. The Tribunal has referred to the minimum rates of wages fixed in the several awards passed by it from 1962 onwards, and also considered the is in the cost of living. In particular, the Tribunal was careful to take into account the Consumer Price Index for the month of December, 1966, and that for the month of January, 1967, for coming to the conclusion that rates higher than those specified in the notification published by Government should be fixed as minimum wages. As the rates fixed by the Tribunal were minimum rates of wages as explained in the case of (1962) 1 SCR 946 = (AIR 1962 SC 12 ) we do not think that the capacity of the industry to pay was a relevant consideration.There was also no material before the Tribunal to come to the conclusion that the Government, in fixing the minimum rates of wages, took into consideration all the components in the fixation of minimum wages as explained by this Court in (1962) 1 SCR 946 = (AIR 1962 SC 12 ). | 0 | 2,368 | 982 | ### 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:
notwithstanding anything contained in this Act, the minimum rates of wages so fixed or so revised shall not apply to those employees during the period in which the proceeding is pending and the award made therein is in operation, or, as the case may be, where the notification is issued during the period of operation of an award, during that period; and where such proceeding or award relates to the rates of wages payable to all the employees in the scheduled employment, no minimum rates of wages shall be fixed or revised in respect of that employment during the said period."10. It may be recalled that it was during the pendency of the proceedings before the Tribunal that the notification by the Maharashtra Government fixing minimum rates of wages came into operation. The sub-section would make it clear that even after the fixation of minimum rates of wages by the appropriate Government under section 3 of the Act, it is open to an Industrial Tribunal adjudicating an industrial dispute relating to wages payable to the employees in a scheduled employment to fix minimum wages at higher or lower rates, if the dispute was pending at the time of fixation of minimum wages under S. 3 of the Act. So it was open to the Tribunal to fix rates of minimum wages at rates higher than the rates fixed by the Government under section 3 of the Act. In other words the Tribunal was not bound by the fixation of the minimum rates of wages by the Government under the provisions of S. 3 of the Act and could fix higher rates as minimum wages in its award.11. In considering the question what are the component elements of minimum wages, this Court observed as follows in U. Unichoyi v. State of Kerala, (1962) 1 SCR 946 at p. 957 = (AIR 1962 SC 12 at p. 17):"Sometimes the minimum wage is described as a bare minimum wage in order to distinguish it from the wage structure which is subsistence plus or fair wage, but too mush emphasis on the adjective bare in relation to the minimum wage is apt to lead to the erroneous assumption that the maintenance wage is a wage which enables the worker to cover his bare physical needs and keep himself just above starvation. That clearly is not intended by the concept of minimum wage. On the other hand, since the capacity of the employer to pay is treated as irrelevant, it is but right that no addition should be made to the components of the minimum wage which would take the minimum wage near the lower level of the fair wage, but the contents of this concept must ensure for the employee not only his subsistence and that of his family but must also preserve his efficiency as a worker."The Act contemplates that minimum wage rates should be fixed in the scheduled industries with the dual object or providing sustenance and maintenance of the worker and his family and preserving his efficiency as a worker."It is, therefore, clear that the minimum wage can provide not only for the bare sustenance of life but also for the preservation of the efficiency of the worker. We do not think that the rates of wages fixed by the Tribunal were fair wages or wages bordering on fair wages. The Tribunal has referred to the minimum rates of wages fixed in the several awards passed by it from 1962 onwards, and also considered the is in the cost of living. In particular, the Tribunal was careful to take into account the Consumer Price Index for the month of December, 1966, and that for the month of January, 1967, for coming to the conclusion that rates higher than those specified in the notification published by Government should be fixed as minimum wages. As the rates fixed by the Tribunal were minimum rates of wages as explained in the case of (1962) 1 SCR 946 = (AIR 1962 SC 12 ) we do not think that the capacity of the industry to pay was a relevant consideration.12. There was also no material before the Tribunal to come to the conclusion that the Government, in fixing the minimum rates of wages, took into consideration all the components in the fixation of minimum wages as explained by this Court in (1962) 1 SCR 946 = (AIR 1962 SC 12 ).13. In the light of the provisions of section 3 (2A) of the Act, we hold that the Tribunal was not bound by the rates of minimum wages fixed by the Government under section 3 of the Act and that it was open of the Tribunal to fix rates of minimum wages to be paid to the workmen concerned in the dispute at figures higher than those fixed by the Government.14. It was contended on behalf of the appellant that the employer has his place of business outside the city of Bombay and that in the city of Bombay, the wages for workmen are generally higher than those outside the city, and therefore, the Tribunal went wrong in taking the minimum rates of wages fixed in the various awards for workmen in the city of Bombay as criteria for fixing the minimum wages for workmen outside the city. The Tribunal considered this question and held that the rates of minimum wages fixed by the Government for the city of Bombay, the town of Thana and also for the village of Majiwade, where the appellants factory is situate, are the same and so, the rates of wages at Majiwade are not lower than the wage rates obtaining in the city of Bombay and Thana. We do not, therefore, think that the Tribunal went wrong in taking into account the rates of minimum wages fixed in the several awards for the workmen employed in the city of Bombay as affording criteria for fixing minimum rates of wages with suitable modification for the workmen employed under the appellant.
### Response:
0
### Explanation:
It is, therefore, clear that the minimum wage can provide not only for the bare sustenance of life but also for the preservation of the efficiency of the worker. We do not think that the rates of wages fixed by the Tribunal were fair wages or wages bordering on fair wages. The Tribunal has referred to the minimum rates of wages fixed in the several awards passed by it from 1962 onwards, and also considered the is in the cost of living. In particular, the Tribunal was careful to take into account the Consumer Price Index for the month of December, 1966, and that for the month of January, 1967, for coming to the conclusion that rates higher than those specified in the notification published by Government should be fixed as minimum wages. As the rates fixed by the Tribunal were minimum rates of wages as explained in the case of (1962) 1 SCR 946 = (AIR 1962 SC 12 ) we do not think that the capacity of the industry to pay was a relevant consideration.In the light of the provisions of section 3 (2A) of the Act, we hold that the Tribunal was not bound by the rates of minimum wages fixed by the Government under section 3 of the Act and that it was open of the Tribunal to fix rates of minimum wages to be paid to the workmen concerned in the dispute at figures higher than those fixed by thedo not, therefore, think that the Tribunal went wrong in taking into account the rates of minimum wages fixed in the several awards for the workmen employed in the city of Bombay as affording criteria for fixing minimum rates of wages with suitable modification for the workmen employed under the appellant.It may be recalled that it was during the pendency of the proceedings before the Tribunal that the notification by the Maharashtra Government fixing minimum rates of wages came into operation. Thewould make it clear that even after the fixation of minimum rates of wages by the appropriate Government under section 3 of the Act, it is open to an Industrial Tribunal adjudicating an industrial dispute relating to wages payable to the employees in a scheduled employment to fix minimum wages at higher or lower rates, if the dispute was pending at the time of fixation of minimum wages under S. 3 of the Act. So it was open to the Tribunal to fix rates of minimum wages at rates higher than the rates fixed by the Government under section 3 of the Act. In other words the Tribunal was not bound by the fixation of the minimum rates of wages by the Government under the provisions of S. 3 of the Act and could fix higher rates as minimum wages in its award.11. In considering the question what are the component elements of minimum wages, this Court observed as follows in U. Unichoyi v. State of Kerala, (1962) 1 SCR 946 at p. 957 = (AIR 1962 SC 12 at p.the minimum wage is described as a bare minimum wage in order to distinguish it from the wage structure which is subsistence plus or fair wage, but too mush emphasis on the adjective bare in relation to the minimum wage is apt to lead to the erroneous assumption that the maintenance wage is a wage which enables the worker to cover his bare physical needs and keep himself just above starvation. That clearly is not intended by the concept of minimum wage. On the other hand, since the capacity of the employer to pay is treated as irrelevant, it is but right that no addition should be made to the components of the minimum wage which would take the minimum wage near the lower level of the fair wage, but the contents of this concept must ensure for the employee not only his subsistence and that of his family but must also preserve his efficiency as aAct contemplates that minimum wage rates should be fixed in the scheduled industries with the dual object or providing sustenance and maintenance of the worker and his family and preserving his efficiency as ais, therefore, clear that the minimum wage can provide not only for the bare sustenance of life but also for the preservation of the efficiency of the worker. We do not think that the rates of wages fixed by the Tribunal were fair wages or wages bordering on fair wages. The Tribunal has referred to the minimum rates of wages fixed in the several awards passed by it from 1962 onwards, and also considered the is in the cost of living. In particular, the Tribunal was careful to take into account the Consumer Price Index for the month of December, 1966, and that for the month of January, 1967, for coming to the conclusion that rates higher than those specified in the notification published by Government should be fixed as minimum wages. As the rates fixed by the Tribunal were minimum rates of wages as explained in the case of (1962) 1 SCR 946 = (AIR 1962 SC 12 ) we do not think that the capacity of the industry to pay was a relevant consideration.There was also no material before the Tribunal to come to the conclusion that the Government, in fixing the minimum rates of wages, took into consideration all the components in the fixation of minimum wages as explained by this Court in (1962) 1 SCR 946 = (AIR 1962 SC 12 ).
|
Excel Dealcomm Pvt. Ltd Vs. Asset Reconst. Company (India) Ltd. & Or | immovable property, [See: Adcon Electronics Pvt. Ltd. vs. Daulat and Anr., (2001) 7 SCC 698 ]. Further it is an established rule that to determine whether it is a suit for land, the Court will look into barely the Plaint and no other evidence, [Indian Mineral & Chemicals Co. and Others vs. Deutsche Bank, (2004) 12 SCC 376 ]. If by the averments in the plaint and prayers therein, it appears that the suit is one for land, it shall be so held and if it does not so appear, then the suit shall continue under leave granted under clause 12. In the present case, the prayer in the plaint was couched in following words: ?A decree for specific performance of the agreement for sale recorded in the document dated February 13, 2007 being Annexure ?A? hereto by directing the Defendant no. 1 and 2 to issue in favour of the plaintiff Sale Certificate in respect of assets mentioned in Schedule 1 to Annexure A hereto and on as is where is basis in terms of the said agreement? 12. The learned counsel for the Respondent has very emphatically argued that this prayer is in effect a prayer for possession of the said properties since the procedure under the Rules for execution of the sale certificate, the transfer of possession is pre-requisite. Therefore, he has submitted that although, the possession is not asked for in direct words but that would be the obvious corollary to granting of the prayer. Further, another point which has been emphasized on behalf of respondent is that the prayer requires sale to be effected in terms of the Agreement, and therefore, the entire agreement may be read as a part of the prayer. 13. On the question of suit for specific performance of an agreement to sell being a suit for land, this Court has laid down a clear principle in Adcon Electronics Pvt. Ltd. vs. Daulat Ram and Anr., (2001) 7 SCC 698 , that a suit for specific performance simplicitor without a prayer for delivery of possession is not a suit for land as Section 22 of the Specific Relief Act, 1963 categorically bars any Court to grant such relief of possession in a suit for specific performance unless specifically sought. In view of this judgment, in the present case, the only question for our determination in the plaint is whether a prayer for delivery of possession is sought or not ? The prayer sought is issuance of sale certificate which is provided in Appendix V to the Rules under SARFAESI Act. The sale certificate reads as follows: ?Whereas the undersigned being the authorized officer of the …......................... (name of the institution) under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and in exercise of the powers conferred under Section 13 read with Rule 12 of the Security Interest Enforcement Rules, 2002 sold on behalf of the …........................ (name of the secured creditor/institution) in favour of the …......................... (purchaser), the immoveable property shown in the schedule below secured in favour of the …......................... (name of the secured creditor) by …..................... (the names of the borrowers) towards the financial facility ….......................... (description) offered by ….......................... (secured creditor). The undersigned acknowledge the receipt of the sale price in full and handed over the delivery and possession of the scheduled property. The sale of the scheduled property was made free from all encumbrances known to the secured creditor listed below on deposit of the money demanded by the undersigned.? 14. It may be noted that the sale certificate sought under the prayer requires the delivery of possession of the suit property. Thus, we find that the prayer for delivery of possession was an implicit one in the present case. The prayer as sought in the plaint could not have been granted without the delivery of possession of the suit property as the sale certificate itself contemplates the delivery of the immovable property. Thus, in view of this we find that the Adcon Electronics would not apply as there was a prayer for delivery of possession in the present case. Therefore, we hold that the present suit was indeed a suit for land. Exclusive jurisdiction 15. Now, we shall consider as to which court has the jurisdiction to entertain and try the suit. Clause 5 of the Agreement entered into between the parties reads as under: ?The payment/cheque shall be drawn and made payable in Mumbai. The jurisdiction shall be Courts of Mumbai.? Clause 9(e)(viii) of the Agreements further reads as follows: ?Disputes, if any, shall be subject to the jurisdiction of Mumbai Court/Tribunals only? It is clear from these two clauses that the intention of the parties to the Agreement was to restrict limitation to the forums/courts of Mumbai only. This Court in Swastik Gases P. Ltd. vs. Indian Oil Corporation Ltd., (2013) 9 SCC 32 , has held as under: ?The very existence of a jurisdiction clause in an agreement makes the intention of the parties to an agreement quite clear and it is not advisable to read such a clause in the agreement like a statute. In the present case, only the Courts in Kolkata had jurisdiction to entertain the disputes between the parties.? Therefore, we are of the opinion that the Courts of Mumbai were granted exclusive jurisdiction as per the Agreement and we find no reason to create any exception to the intention of the parties. 16. In view of the above-mentioned two findings that the present suit is a suit for land, and that the parties had granted exclusive jurisdiction to the Court of Mumbai, the jurisdiction of the Court at Calcutta is clearly ousted as per law. Thus, from the above conclusion it appears that the plaint will have to be returned by the Calcutta High Court as it does not have the jurisdiction. Therefore, we are of the view that the question of jurisdiction of the Debt Recovery Tribunal need not be answered. | 0[ds]10. In the present case, a suit was filed for the specific performance of the Agreement which contemplated the sale of property, as has been described in para 1 under Section 13 of SARFAESI Act in terms of the Rules. The question with respect to Clause 12 of Letters Patent in the present case is that whether the present suit is suit for land12. The learned counsel for the Respondent has very emphatically argued that this prayer is in effect a prayer for possession of the said properties since the procedure under the Rules for execution of the sale certificate, the transfer of possession is pre-requisite. Therefore, he has submitted that although, the possession is not asked for in direct words but that would be the obvious corollary to granting of the prayer. Further, another point which has been emphasized on behalf of respondent is that the prayer requires sale to be effected in terms of the Agreement, and therefore, the entire agreement may be read as a part of the prayerTherefore, we are of the opinion that the Courts of Mumbai were granted exclusive jurisdiction as per the Agreement and we find no reason to create any exception to the intention of the parties16. In view of the above-mentioned two findings that the present suit is a suit for land, and that the parties had granted exclusive jurisdiction to the Court of Mumbai, the jurisdiction of the Court at Calcutta is clearly ousted as per law. Thus, from the above conclusion it appears that the plaint will have to be returned by the Calcutta High Court as it does not have the jurisdiction. Therefore, we are of the view that the question of jurisdiction of the Debt Recovery Tribunal need not be answered. | 0 | 3,180 | 320 | ### 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:
immovable property, [See: Adcon Electronics Pvt. Ltd. vs. Daulat and Anr., (2001) 7 SCC 698 ]. Further it is an established rule that to determine whether it is a suit for land, the Court will look into barely the Plaint and no other evidence, [Indian Mineral & Chemicals Co. and Others vs. Deutsche Bank, (2004) 12 SCC 376 ]. If by the averments in the plaint and prayers therein, it appears that the suit is one for land, it shall be so held and if it does not so appear, then the suit shall continue under leave granted under clause 12. In the present case, the prayer in the plaint was couched in following words: ?A decree for specific performance of the agreement for sale recorded in the document dated February 13, 2007 being Annexure ?A? hereto by directing the Defendant no. 1 and 2 to issue in favour of the plaintiff Sale Certificate in respect of assets mentioned in Schedule 1 to Annexure A hereto and on as is where is basis in terms of the said agreement? 12. The learned counsel for the Respondent has very emphatically argued that this prayer is in effect a prayer for possession of the said properties since the procedure under the Rules for execution of the sale certificate, the transfer of possession is pre-requisite. Therefore, he has submitted that although, the possession is not asked for in direct words but that would be the obvious corollary to granting of the prayer. Further, another point which has been emphasized on behalf of respondent is that the prayer requires sale to be effected in terms of the Agreement, and therefore, the entire agreement may be read as a part of the prayer. 13. On the question of suit for specific performance of an agreement to sell being a suit for land, this Court has laid down a clear principle in Adcon Electronics Pvt. Ltd. vs. Daulat Ram and Anr., (2001) 7 SCC 698 , that a suit for specific performance simplicitor without a prayer for delivery of possession is not a suit for land as Section 22 of the Specific Relief Act, 1963 categorically bars any Court to grant such relief of possession in a suit for specific performance unless specifically sought. In view of this judgment, in the present case, the only question for our determination in the plaint is whether a prayer for delivery of possession is sought or not ? The prayer sought is issuance of sale certificate which is provided in Appendix V to the Rules under SARFAESI Act. The sale certificate reads as follows: ?Whereas the undersigned being the authorized officer of the …......................... (name of the institution) under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and in exercise of the powers conferred under Section 13 read with Rule 12 of the Security Interest Enforcement Rules, 2002 sold on behalf of the …........................ (name of the secured creditor/institution) in favour of the …......................... (purchaser), the immoveable property shown in the schedule below secured in favour of the …......................... (name of the secured creditor) by …..................... (the names of the borrowers) towards the financial facility ….......................... (description) offered by ….......................... (secured creditor). The undersigned acknowledge the receipt of the sale price in full and handed over the delivery and possession of the scheduled property. The sale of the scheduled property was made free from all encumbrances known to the secured creditor listed below on deposit of the money demanded by the undersigned.? 14. It may be noted that the sale certificate sought under the prayer requires the delivery of possession of the suit property. Thus, we find that the prayer for delivery of possession was an implicit one in the present case. The prayer as sought in the plaint could not have been granted without the delivery of possession of the suit property as the sale certificate itself contemplates the delivery of the immovable property. Thus, in view of this we find that the Adcon Electronics would not apply as there was a prayer for delivery of possession in the present case. Therefore, we hold that the present suit was indeed a suit for land. Exclusive jurisdiction 15. Now, we shall consider as to which court has the jurisdiction to entertain and try the suit. Clause 5 of the Agreement entered into between the parties reads as under: ?The payment/cheque shall be drawn and made payable in Mumbai. The jurisdiction shall be Courts of Mumbai.? Clause 9(e)(viii) of the Agreements further reads as follows: ?Disputes, if any, shall be subject to the jurisdiction of Mumbai Court/Tribunals only? It is clear from these two clauses that the intention of the parties to the Agreement was to restrict limitation to the forums/courts of Mumbai only. This Court in Swastik Gases P. Ltd. vs. Indian Oil Corporation Ltd., (2013) 9 SCC 32 , has held as under: ?The very existence of a jurisdiction clause in an agreement makes the intention of the parties to an agreement quite clear and it is not advisable to read such a clause in the agreement like a statute. In the present case, only the Courts in Kolkata had jurisdiction to entertain the disputes between the parties.? Therefore, we are of the opinion that the Courts of Mumbai were granted exclusive jurisdiction as per the Agreement and we find no reason to create any exception to the intention of the parties. 16. In view of the above-mentioned two findings that the present suit is a suit for land, and that the parties had granted exclusive jurisdiction to the Court of Mumbai, the jurisdiction of the Court at Calcutta is clearly ousted as per law. Thus, from the above conclusion it appears that the plaint will have to be returned by the Calcutta High Court as it does not have the jurisdiction. Therefore, we are of the view that the question of jurisdiction of the Debt Recovery Tribunal need not be answered.
### Response:
0
### Explanation:
10. In the present case, a suit was filed for the specific performance of the Agreement which contemplated the sale of property, as has been described in para 1 under Section 13 of SARFAESI Act in terms of the Rules. The question with respect to Clause 12 of Letters Patent in the present case is that whether the present suit is suit for land12. The learned counsel for the Respondent has very emphatically argued that this prayer is in effect a prayer for possession of the said properties since the procedure under the Rules for execution of the sale certificate, the transfer of possession is pre-requisite. Therefore, he has submitted that although, the possession is not asked for in direct words but that would be the obvious corollary to granting of the prayer. Further, another point which has been emphasized on behalf of respondent is that the prayer requires sale to be effected in terms of the Agreement, and therefore, the entire agreement may be read as a part of the prayerTherefore, we are of the opinion that the Courts of Mumbai were granted exclusive jurisdiction as per the Agreement and we find no reason to create any exception to the intention of the parties16. In view of the above-mentioned two findings that the present suit is a suit for land, and that the parties had granted exclusive jurisdiction to the Court of Mumbai, the jurisdiction of the Court at Calcutta is clearly ousted as per law. Thus, from the above conclusion it appears that the plaint will have to be returned by the Calcutta High Court as it does not have the jurisdiction. Therefore, we are of the view that the question of jurisdiction of the Debt Recovery Tribunal need not be answered.
|
Rameshwar Prasad And Others Vs. M/S. Shyam Beharilaljagannathand Others | of the High Courts have taken the correct view viz., that the appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. XLI, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under O.XXII, r. 3. See : Ramphal Sahu v. Babu Satdeo Jha 1953 (2) ILR(All) 434 .); Amin Chand v. Baldeo Sahai Ganga Sahai 15 ILR(Lah) 667 ), Baij Nath v. Ram Bharose Order XLI, r. 33 is of no greater help to the contention of the appellants that their appeal could continue even though the appeal by Kedar Nath had abated, as the Court could have passed a decree in favour of the rights and interests of Kedar Nath, deceased, as well. This rule reads :"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, an( this power may be exer- cised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection : Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." *14. This rule is under the sub-heading judgment in appeal. Rule 31 provides that the judgment of the Appellate Court shall be in writing and shall state inter alia the relief to which the appellant is entitled in case the decree appealed from is reversed or varied. Rule 32 provides as to what the judgment may direct and states that the judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly. The reversal or variation in the decree would, therefore, be in accordance with what the appellant had been found to be entitled. The decree therefore, is not to be reversed or varied with respect to such rights to which the appellant is not found entitled. Rule 33 really provides as to what the Appellate Court can find the appellant entitled to. It empowers the Appellate Court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and -thus could have reference only to the nature of the decree or Order in so far as it affects the rights of the appellant. It further empowers the Appellate Court to pass or make such further or other decree or Order as the case may require. The Court is thus given wide discretion to pass such decrees and Orders as the interests of justice demand. Such a power is to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of rights of the various parties. A case like the present is not a case of such a kind.When the legal representatives of the deceased appellant and the surviving appellants were negligent in not taking steps for substitution, the Court is not to exercise its discretion in favour of such a party. The discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as Kedar Nath is concerned. In fact such an exercise of power will lead to the existence of two contradictory decrees between the heirs of Kedar Nath and the respondents, one passed by the appellate Court and another to the contrary effect by the Court below which has attained finality consequent on the abatement of the appeal in so far as they are concerned. This is always avoided.15. Rule 33 deals with a matter different from the matter dealt with by r. 9 of O. XXII and no question of its provisions overriding those of r. 9 of O. XXII or vice versa arises.16. In Mahomed Khaleel Shirazi & Sons v. Los Panneries Lyonnaises 53 IA 84 it was held that O. XLI, r. 33 was not intended to apply to an appeal which was not a competent appeal against a party under the Code or under the Letters Patent of the High Court. This principle applies with equal force in the present case. The appeal by the surviving appellants is not competent in the circumstance of the case and, therefore, the provisions of 0. XLI, r. 33 are not applicable to it.17. We are, therefore, of opinion that the High Court could not have heard the appeal of the surviving appellants when the appeal by kedar Nath had abated as all the appellants had a common right and interest in getting a decree of ejectment against defendant No. 2 and such decree could have been on a ground common to all of them. The defendant cannot be ejected from the premises when he has a right to remain in occupation of the premises on the basis of the decree holding that Kedar Nath, one of the persons having a joint interest in letting out the property could not have ejected him. It is not possible for the defendant to continue as tenant of one of the landlords and not as a tenant of the others when all of them had a joint right to eject him or to have him as their tenant.18. | 0[ds]We see no force in the first contention. We have already referred to the contents of the various affidavits filed by the parties subsequent to the point being raised that Kedar Nath, the deceased appellant and the surviving appellants constituted a joint Hindu family. They clearly indicate that the affidavits filed on behalf of the appellants made no averment that Kedar Nath and the surviving appellants formed a joint Hindu family, even though time had been given to them for filing an affidavit stating such a fact. The inference is obvious, and is that these people did not form a joint Hindu family as alleged by the respondents.It is further of significance that the application made on October 1, 1956, for substituting the sons of Kedar Nath in his place stated that they were his heirs and legal representatives. The application was on the basis that Kedar Nath was not a member of the joint Hindu family. We are, therefore, of opinion that it is not proved that Kedar Nath, deceased, and the other appellants constituted a joint Hindu family that the right to appeal survived to the surviving appellants alone and that they could have continued their appeal in view of r. 2 of of XXII of thesecond contention really is that the surviving appellants could have instituted the appeal against the entire decree in view of the provisions of O. XLI, r. 4 of the Code, that they were, therefore, competent to continue the appeal even after the death of Kedar Nath and the abatement of the appeal so far as he was concerned, that the Court could have reversed or varied the whole decree in favour of all the original plaintiffs and could have granted reliefwith respect to the rights and interests of Kedar Nath as well. We do not agree with this contention Rule 4 ofprovisions enable one of the plaintiffs or one of the defendants to file an appeal against the entire decree. The second appeal filed in the High Court was not filed by any one or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and, therefore, was not an appeal to which the provisions of r. 4 O.XLI could apply.The appeal could not have been taken to be an appeal filed by some of the plaintiffs against the whole decree in pursuance of the provisions of r. 4 of O.XLI from the date when the appeal abated so far as Kedar Nath was concerned. If the appeal could be treated to have been so filed, then, it would have been filed beyond the period prescribed for the appeal. At that time, the decree stood against the surviving plaintiffs and the legal representatives of Kedar Nath. The legal representatives could not have taken advantage of r. 4 of O. XLI. It follows that r. 4 of O. XLI would not be available to the surviving plaintiffs at thatthe principle behind the provisions of r. 4 seems to be that any one of the plaintiffs or defendants, in filing such an. appeal, represents all the other non- appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Kedar Nath was alive when the appeal was filed and was actually one of the appellants. The surviving appellants cannot be said to have filed the appeal as representing KedarNaths appeal has abated and the decree in favour of the respondents has become final against his legal representatives. His legal representatives cannot eject the defendants from the premises in suit. It will be against the scheme of the Code to hold that r. 4 of O. XLI empowered the Court to pass a decree in favour of the legal representatives of the deceased Kedar Nath on hearing an appeal by the surviving appellants even though the decree against him has become final.question of the Provisions of r. 4 of O.XLI overriding the provisions of r. 9 of O. XXII arises. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of 0 XLI applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the plaintiffs the provisions of 0 XLI, r. 4 became unavailable. Order XXII operates during the pendency of an appeal and not at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the previsions of r. 9 of O. XXII and those of r. 4 of O~. XLI, C.P.C. They operate at different stages and provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of thedo not consider it necessary to discuss the cases referred to at the hearing. Suffice it to say that the majority of the High Courts have taken the correct view viz., that the appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. XLI, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under O.XXII, r.33 is of no greater help to the contention of the appellants that their appeal could continue even though the appeal by Kedar Nath had abated, as the Court could have passed a decree in favour of the rights and interests of Kedar Nath, deceased, as well.case like the present is not a case of such a kind.When the legal representatives of the deceased appellant and the surviving appellants were negligent in not taking steps for substitution, the Court is not to exercise its discretion in favour of such a party. The discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as Kedar Nath is concerned. In fact such an exercise of power will lead to the existence of two contradictory decrees between the heirs of Kedar Nath and the respondents, one passed by the appellate Court and another to the contrary effect by the Court below which has attained finality consequent on the abatement of the appeal in so far as they are concerned. This is always33 deals with a matter different from the matter dealt with by r. 9 of O. XXII and no question of its provisions overriding those of r. 9 of O. XXII or vice versaare, therefore, of opinion that the High Court could not have heard the appeal of the surviving appellants when the appeal by kedar Nath had abated as all the appellants had a common right and interest in getting a decree of ejectment against defendant No. 2 and such decree could have been on a ground common to all of them. The defendant cannot be ejected from the premises when he has a right to remain in occupation of the premises on the basis of the decree holding that Kedar Nath, one of the persons having a joint interest in letting out the property could not have ejected him. It is not possible for the defendant to continue as tenant of one of the landlords and not as a tenant of the others when all of them had a joint right to eject him or to have him as their tenant. | 0 | 3,252 | 1,427 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
of the High Courts have taken the correct view viz., that the appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. XLI, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under O.XXII, r. 3. See : Ramphal Sahu v. Babu Satdeo Jha 1953 (2) ILR(All) 434 .); Amin Chand v. Baldeo Sahai Ganga Sahai 15 ILR(Lah) 667 ), Baij Nath v. Ram Bharose Order XLI, r. 33 is of no greater help to the contention of the appellants that their appeal could continue even though the appeal by Kedar Nath had abated, as the Court could have passed a decree in favour of the rights and interests of Kedar Nath, deceased, as well. This rule reads :"The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, an( this power may be exer- cised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection : Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." *14. This rule is under the sub-heading judgment in appeal. Rule 31 provides that the judgment of the Appellate Court shall be in writing and shall state inter alia the relief to which the appellant is entitled in case the decree appealed from is reversed or varied. Rule 32 provides as to what the judgment may direct and states that the judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly. The reversal or variation in the decree would, therefore, be in accordance with what the appellant had been found to be entitled. The decree therefore, is not to be reversed or varied with respect to such rights to which the appellant is not found entitled. Rule 33 really provides as to what the Appellate Court can find the appellant entitled to. It empowers the Appellate Court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and -thus could have reference only to the nature of the decree or Order in so far as it affects the rights of the appellant. It further empowers the Appellate Court to pass or make such further or other decree or Order as the case may require. The Court is thus given wide discretion to pass such decrees and Orders as the interests of justice demand. Such a power is to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of rights of the various parties. A case like the present is not a case of such a kind.When the legal representatives of the deceased appellant and the surviving appellants were negligent in not taking steps for substitution, the Court is not to exercise its discretion in favour of such a party. The discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as Kedar Nath is concerned. In fact such an exercise of power will lead to the existence of two contradictory decrees between the heirs of Kedar Nath and the respondents, one passed by the appellate Court and another to the contrary effect by the Court below which has attained finality consequent on the abatement of the appeal in so far as they are concerned. This is always avoided.15. Rule 33 deals with a matter different from the matter dealt with by r. 9 of O. XXII and no question of its provisions overriding those of r. 9 of O. XXII or vice versa arises.16. In Mahomed Khaleel Shirazi & Sons v. Los Panneries Lyonnaises 53 IA 84 it was held that O. XLI, r. 33 was not intended to apply to an appeal which was not a competent appeal against a party under the Code or under the Letters Patent of the High Court. This principle applies with equal force in the present case. The appeal by the surviving appellants is not competent in the circumstance of the case and, therefore, the provisions of 0. XLI, r. 33 are not applicable to it.17. We are, therefore, of opinion that the High Court could not have heard the appeal of the surviving appellants when the appeal by kedar Nath had abated as all the appellants had a common right and interest in getting a decree of ejectment against defendant No. 2 and such decree could have been on a ground common to all of them. The defendant cannot be ejected from the premises when he has a right to remain in occupation of the premises on the basis of the decree holding that Kedar Nath, one of the persons having a joint interest in letting out the property could not have ejected him. It is not possible for the defendant to continue as tenant of one of the landlords and not as a tenant of the others when all of them had a joint right to eject him or to have him as their tenant.18.
### Response:
0
### Explanation:
by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and, therefore, was not an appeal to which the provisions of r. 4 O.XLI could apply.The appeal could not have been taken to be an appeal filed by some of the plaintiffs against the whole decree in pursuance of the provisions of r. 4 of O.XLI from the date when the appeal abated so far as Kedar Nath was concerned. If the appeal could be treated to have been so filed, then, it would have been filed beyond the period prescribed for the appeal. At that time, the decree stood against the surviving plaintiffs and the legal representatives of Kedar Nath. The legal representatives could not have taken advantage of r. 4 of O. XLI. It follows that r. 4 of O. XLI would not be available to the surviving plaintiffs at thatthe principle behind the provisions of r. 4 seems to be that any one of the plaintiffs or defendants, in filing such an. appeal, represents all the other non- appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Kedar Nath was alive when the appeal was filed and was actually one of the appellants. The surviving appellants cannot be said to have filed the appeal as representing KedarNaths appeal has abated and the decree in favour of the respondents has become final against his legal representatives. His legal representatives cannot eject the defendants from the premises in suit. It will be against the scheme of the Code to hold that r. 4 of O. XLI empowered the Court to pass a decree in favour of the legal representatives of the deceased Kedar Nath on hearing an appeal by the surviving appellants even though the decree against him has become final.question of the Provisions of r. 4 of O.XLI overriding the provisions of r. 9 of O. XXII arises. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of 0 XLI applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the plaintiffs the provisions of 0 XLI, r. 4 became unavailable. Order XXII operates during the pendency of an appeal and not at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the previsions of r. 9 of O. XXII and those of r. 4 of O~. XLI, C.P.C. They operate at different stages and provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of thedo not consider it necessary to discuss the cases referred to at the hearing. Suffice it to say that the majority of the High Courts have taken the correct view viz., that the appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. XLI, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under O.XXII, r.33 is of no greater help to the contention of the appellants that their appeal could continue even though the appeal by Kedar Nath had abated, as the Court could have passed a decree in favour of the rights and interests of Kedar Nath, deceased, as well.case like the present is not a case of such a kind.When the legal representatives of the deceased appellant and the surviving appellants were negligent in not taking steps for substitution, the Court is not to exercise its discretion in favour of such a party. The discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as Kedar Nath is concerned. In fact such an exercise of power will lead to the existence of two contradictory decrees between the heirs of Kedar Nath and the respondents, one passed by the appellate Court and another to the contrary effect by the Court below which has attained finality consequent on the abatement of the appeal in so far as they are concerned. This is always33 deals with a matter different from the matter dealt with by r. 9 of O. XXII and no question of its provisions overriding those of r. 9 of O. XXII or vice versaare, therefore, of opinion that the High Court could not have heard the appeal of the surviving appellants when the appeal by kedar Nath had abated as all the appellants had a common right and interest in getting a decree of ejectment against defendant No. 2 and such decree could have been on a ground common to all of them. The defendant cannot be ejected from the premises when he has a right to remain in occupation of the premises on the basis of the decree holding that Kedar Nath, one of the persons having a joint interest in letting out the property could not have ejected him. It is not possible for the defendant to continue as tenant of one of the landlords and not as a tenant of the others when all of them had a joint right to eject him or to have him as their tenant.
|
SOUTH EAST ASIA MARINE ENGINEERING AND CONSTRUCTIONS LTD. (SEAMEC LTD.) Vs. OIL INDIA LIMITED | per the old doctrine was moderated by the introduction of the law of restitution. Interestingly, Lord Shaw in Cantiare San Rocco SA (Shipbuilding Company) v. Clyde Shipbuilding and Engineering Co. Ltd., [1924] AC 226, had observed that English law of leaving the loss to where it fell unless the contract provided otherwise was, he said, appropriate only among tricksters, gamblers and thieves. The UK Parliament took notice of the aforesaid judgment and legislated Law Reform (Frustrated Contracts) Act, 1943. 23. In India, the Contract Act had already recognized the harsh consequences of such frustration to some extent and had provided for a limited mechanism to ameliorate the same under Section 65 of the Contract Act. Section 65 provides as under: 65. Obligation of person who has received advantage under void agreement, or contract that becomes void When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it. The aforesaid clause provides the basis of restitution for failure of basis. We are cognizant that the aforesaid provision addresses limited circumstances wherein an agreement is void ab initio or the contract becomes subsequently void. 24. Coming back to the case, the contract has explicitly recognized force majeure events in Clause 44.3 in the following manner: For purpose of this clause Force Majeure means an act of God, war, revolt, riots, strikes, bandh, fire, flood, sabotage, failure or destruction of roads, systems and acts and regulations of the Government of India and other clauses (but not due to employment problem of the contractor) beyond the reasonable control of the parties. Further, under Clause 22.23, the parties had agreed for a payment of force majeure rate to tide over any force majeure event, which is temporary in nature. 25. Having regards to the law discussed herein, we do not subscribe to either the reasons provided by the Arbitral Tribunal or the High Court. Although, the Arbitral Tribunal correctly held that a contract needs to be interpreted taking into consideration all the clauses of the contract, it failed to apply the same standard while interpreting Clause 23 of the Contract. 26. We also do not completely subscribe to the reasoning of the High Court holding that Clause 23 was inserted in furtherance of the doctrine of frustration. Rather, under Indian contract law, the effect of the doctrine of frustration is that it discharges all the parties from future obligations. In order to mitigate the harsh consequences of frustration and to uphold the sanctity of the contract, the parties with their commercial wisdom, chose to mitigate the risk under Clause 23 of the contract. 27. Our attention was drawn to Sumitomo Heavy Industries Limited v. Oil and Natural Gas Corporation Limited, (2010) 11 SCC 296 , where this Court interpreted an indemnity clause and found that an additional tax burden could be recovered under such clause. Based on an appreciation of the evidence, the Court ruled that additional tax burden could be recovered under the clause as such an interpretation was a plausible view that a reasonable person could take and accordingly sustained the award. However, we are of the opinion that the aforesaid case and ratio may not be applicable herein as the evidence on record does not suggest that the parties had agreed to a broad interpretation to the clause in question. 28. In this context, the interpretation of Clause 23 of the Contract by the Arbitral Tribunal, to provide a wide interpretation cannot be accepted, as the thumb rule of interpretation is that the document forming a written contract should be read as a whole and so far as possible as mutually explanatory. In the case at hand, this basic rule was ignored by the Tribunal while interpreting the clause. 29. The contract was entered into between the parties in furtherance of a tender issued by the Respondent herein. After considering the tender bids, the Appellant issued a Letter of Intent. In furtherance of the Letter of Intent, the contract (Contract No. CCO/FC/0040/95) was for drilling oil wells and auxiliary operations. It is important to note that the contract price was payable to the contractor for full and proper performance of its contractual obligations. Further, Clauses 14.7 and 14.11 of the Contract states that the rates, terms and conditions were to be in force until the completion or abandonment of the last well being drilled. 30. From the aforesaid discussion, it can be said that the contract was based on a fixed rate. The party, before entering the tender process, entered the contract after mitigating the risk of such an increase. If the purpose of the tender was to limit the risks of price variations, then the interpretation placed by the Arbitral Tribunal cannot be said to be possible one, as it would completely defeat the explicit wordings and purpose of the contract. There is no gainsaying that there will be price fluctuations which a prudent contractor would have taken into margin, while bidding in the tender. Such price fluctuations cannot be brought under Clause 23 unless specific language points to the inclusion. 31. The interpretation of the Arbitral Tribunal to expand the meaning of Clause 23 to include change in rate of HSD is not a possible interpretation of this contract, as the appellant did not introduce any evidence which proves the same. 32. The other contractual terms also suggest that the interpretation of the clause, as suggested by the Arbitral Tribunal, is perverse. For instance, Item 1 of List II (Consumables) of Exhibit C (Consolidated Statement of Equipment and Services Furnished by Contractor or Operator for the Onshore Rig Operation), indicates that fuel would be supplied by the contactor, at his expense. The existence of such a clause shows that the interpretation of the contract by the Arbitral Tribunal is not a possible interpretation of the contract. | 0[ds]12. It is a settled position that a Court can set aside the award only on the grounds as provided in the Arbitration Act as interpreted by the Courts13. It is also settled law that where two views are possible, the Court cannot interfere in the plausible view taken by the arbitrator supported by reasoning15. In the present case, respondent has argued that the view taken by the Arbitral Tribunal was not even a possible interpretation, therefore the award being unreasonable and unfair suffers from perversity. Hence, the respondent has pleaded that the award ought to be set aside.In this context, we may state that usually the Court is not required to examine the merits of the interpretation provided in the award by the arbitrator, if it comes to a conclusion that such an interpretation was reasonably possible25. Having regards to the law discussed herein, we do not subscribe to either the reasons provided by the Arbitral Tribunal or the High Court. Although, the Arbitral Tribunal correctly held that a contract needs to be interpreted taking into consideration all the clauses of the contract, it failed to apply the same standard while interpreting Clause 23 of the Contract26. We also do not completely subscribe to the reasoning of the High Court holding that Clause 23 was inserted in furtherance of the doctrine of frustration. Rather, under Indian contract law, the effect of the doctrine of frustration is that it discharges all the parties from future obligations. In order to mitigate the harsh consequences of frustration and to uphold the sanctity of the contract, the parties with their commercial wisdom, chose to mitigate the risk under Clause 23 of the contract27. Our attention was drawn to Sumitomo Heavy Industries Limited v. Oil and Natural Gas Corporation Limited, (2010) 11 SCC 296 , where this Court interpreted an indemnity clause and found that an additional tax burden could be recovered under such clause. Based on an appreciation of the evidence, the Court ruled that additional tax burden could be recovered under the clause as such an interpretation was a plausible view that a reasonable person could take and accordingly sustained the award. However, we are of the opinion that the aforesaid case and ratio may not be applicable herein as the evidence on record does not suggest that the parties had agreed to a broad interpretation to the clause in question28. In this context, the interpretation of Clause 23 of the Contract by the Arbitral Tribunal, to provide a wide interpretation cannot be accepted, as the thumb rule of interpretation is that the document forming a written contract should be read as a whole and so far as possible as mutually explanatory. In the case at hand, this basic rule was ignored by the Tribunal while interpreting the clause29. The contract was entered into between the parties in furtherance of a tender issued by the Respondent herein. After considering the tender bids, the Appellant issued a Letter of Intent. In furtherance of the Letter of Intent, the contract (Contract No. CCO/FC/0040/95) was for drilling oil wells and auxiliary operations. It is important to note that the contract price was payable to the contractor for full and proper performance of its contractual obligations. Further, Clauses 14.7 and 14.11 of the Contract states that the rates, terms and conditions were to be in force until the completion or abandonment of the last well being drilled30. From the aforesaid discussion, it can be said that the contract was based on a fixed rate. The party, before entering the tender process, entered the contract after mitigating the risk of such an increase. If the purpose of the tender was to limit the risks of price variations, then the interpretation placed by the Arbitral Tribunal cannot be said to be possible one, as it would completely defeat the explicit wordings and purpose of the contract. There is no gainsaying that there will be price fluctuations which a prudent contractor would have taken into margin, while bidding in the tender. Such price fluctuations cannot be brought under Clause 23 unless specific language points to the inclusion31. The interpretation of the Arbitral Tribunal to expand the meaning of Clause 23 to include change in rate of HSD is not a possible interpretation of this contract, as the appellant did not introduce any evidence which proves the same32. The other contractual terms also suggest that the interpretation of the clause, as suggested by the Arbitral Tribunal, is perverse. For instance, Item 1 of List II (Consumables) of Exhibit C (Consolidated Statement of Equipment and Services Furnished by Contractor or Operator for the Onshore Rig Operation), indicates that fuel would be supplied by the contactor, at his expense. The existence of such a clause shows that the interpretation of the contract by the Arbitral Tribunal is not a possible interpretation of the contract. | 0 | 4,699 | 894 | ### 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:
per the old doctrine was moderated by the introduction of the law of restitution. Interestingly, Lord Shaw in Cantiare San Rocco SA (Shipbuilding Company) v. Clyde Shipbuilding and Engineering Co. Ltd., [1924] AC 226, had observed that English law of leaving the loss to where it fell unless the contract provided otherwise was, he said, appropriate only among tricksters, gamblers and thieves. The UK Parliament took notice of the aforesaid judgment and legislated Law Reform (Frustrated Contracts) Act, 1943. 23. In India, the Contract Act had already recognized the harsh consequences of such frustration to some extent and had provided for a limited mechanism to ameliorate the same under Section 65 of the Contract Act. Section 65 provides as under: 65. Obligation of person who has received advantage under void agreement, or contract that becomes void When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it. The aforesaid clause provides the basis of restitution for failure of basis. We are cognizant that the aforesaid provision addresses limited circumstances wherein an agreement is void ab initio or the contract becomes subsequently void. 24. Coming back to the case, the contract has explicitly recognized force majeure events in Clause 44.3 in the following manner: For purpose of this clause Force Majeure means an act of God, war, revolt, riots, strikes, bandh, fire, flood, sabotage, failure or destruction of roads, systems and acts and regulations of the Government of India and other clauses (but not due to employment problem of the contractor) beyond the reasonable control of the parties. Further, under Clause 22.23, the parties had agreed for a payment of force majeure rate to tide over any force majeure event, which is temporary in nature. 25. Having regards to the law discussed herein, we do not subscribe to either the reasons provided by the Arbitral Tribunal or the High Court. Although, the Arbitral Tribunal correctly held that a contract needs to be interpreted taking into consideration all the clauses of the contract, it failed to apply the same standard while interpreting Clause 23 of the Contract. 26. We also do not completely subscribe to the reasoning of the High Court holding that Clause 23 was inserted in furtherance of the doctrine of frustration. Rather, under Indian contract law, the effect of the doctrine of frustration is that it discharges all the parties from future obligations. In order to mitigate the harsh consequences of frustration and to uphold the sanctity of the contract, the parties with their commercial wisdom, chose to mitigate the risk under Clause 23 of the contract. 27. Our attention was drawn to Sumitomo Heavy Industries Limited v. Oil and Natural Gas Corporation Limited, (2010) 11 SCC 296 , where this Court interpreted an indemnity clause and found that an additional tax burden could be recovered under such clause. Based on an appreciation of the evidence, the Court ruled that additional tax burden could be recovered under the clause as such an interpretation was a plausible view that a reasonable person could take and accordingly sustained the award. However, we are of the opinion that the aforesaid case and ratio may not be applicable herein as the evidence on record does not suggest that the parties had agreed to a broad interpretation to the clause in question. 28. In this context, the interpretation of Clause 23 of the Contract by the Arbitral Tribunal, to provide a wide interpretation cannot be accepted, as the thumb rule of interpretation is that the document forming a written contract should be read as a whole and so far as possible as mutually explanatory. In the case at hand, this basic rule was ignored by the Tribunal while interpreting the clause. 29. The contract was entered into between the parties in furtherance of a tender issued by the Respondent herein. After considering the tender bids, the Appellant issued a Letter of Intent. In furtherance of the Letter of Intent, the contract (Contract No. CCO/FC/0040/95) was for drilling oil wells and auxiliary operations. It is important to note that the contract price was payable to the contractor for full and proper performance of its contractual obligations. Further, Clauses 14.7 and 14.11 of the Contract states that the rates, terms and conditions were to be in force until the completion or abandonment of the last well being drilled. 30. From the aforesaid discussion, it can be said that the contract was based on a fixed rate. The party, before entering the tender process, entered the contract after mitigating the risk of such an increase. If the purpose of the tender was to limit the risks of price variations, then the interpretation placed by the Arbitral Tribunal cannot be said to be possible one, as it would completely defeat the explicit wordings and purpose of the contract. There is no gainsaying that there will be price fluctuations which a prudent contractor would have taken into margin, while bidding in the tender. Such price fluctuations cannot be brought under Clause 23 unless specific language points to the inclusion. 31. The interpretation of the Arbitral Tribunal to expand the meaning of Clause 23 to include change in rate of HSD is not a possible interpretation of this contract, as the appellant did not introduce any evidence which proves the same. 32. The other contractual terms also suggest that the interpretation of the clause, as suggested by the Arbitral Tribunal, is perverse. For instance, Item 1 of List II (Consumables) of Exhibit C (Consolidated Statement of Equipment and Services Furnished by Contractor or Operator for the Onshore Rig Operation), indicates that fuel would be supplied by the contactor, at his expense. The existence of such a clause shows that the interpretation of the contract by the Arbitral Tribunal is not a possible interpretation of the contract.
### Response:
0
### Explanation:
12. It is a settled position that a Court can set aside the award only on the grounds as provided in the Arbitration Act as interpreted by the Courts13. It is also settled law that where two views are possible, the Court cannot interfere in the plausible view taken by the arbitrator supported by reasoning15. In the present case, respondent has argued that the view taken by the Arbitral Tribunal was not even a possible interpretation, therefore the award being unreasonable and unfair suffers from perversity. Hence, the respondent has pleaded that the award ought to be set aside.In this context, we may state that usually the Court is not required to examine the merits of the interpretation provided in the award by the arbitrator, if it comes to a conclusion that such an interpretation was reasonably possible25. Having regards to the law discussed herein, we do not subscribe to either the reasons provided by the Arbitral Tribunal or the High Court. Although, the Arbitral Tribunal correctly held that a contract needs to be interpreted taking into consideration all the clauses of the contract, it failed to apply the same standard while interpreting Clause 23 of the Contract26. We also do not completely subscribe to the reasoning of the High Court holding that Clause 23 was inserted in furtherance of the doctrine of frustration. Rather, under Indian contract law, the effect of the doctrine of frustration is that it discharges all the parties from future obligations. In order to mitigate the harsh consequences of frustration and to uphold the sanctity of the contract, the parties with their commercial wisdom, chose to mitigate the risk under Clause 23 of the contract27. Our attention was drawn to Sumitomo Heavy Industries Limited v. Oil and Natural Gas Corporation Limited, (2010) 11 SCC 296 , where this Court interpreted an indemnity clause and found that an additional tax burden could be recovered under such clause. Based on an appreciation of the evidence, the Court ruled that additional tax burden could be recovered under the clause as such an interpretation was a plausible view that a reasonable person could take and accordingly sustained the award. However, we are of the opinion that the aforesaid case and ratio may not be applicable herein as the evidence on record does not suggest that the parties had agreed to a broad interpretation to the clause in question28. In this context, the interpretation of Clause 23 of the Contract by the Arbitral Tribunal, to provide a wide interpretation cannot be accepted, as the thumb rule of interpretation is that the document forming a written contract should be read as a whole and so far as possible as mutually explanatory. In the case at hand, this basic rule was ignored by the Tribunal while interpreting the clause29. The contract was entered into between the parties in furtherance of a tender issued by the Respondent herein. After considering the tender bids, the Appellant issued a Letter of Intent. In furtherance of the Letter of Intent, the contract (Contract No. CCO/FC/0040/95) was for drilling oil wells and auxiliary operations. It is important to note that the contract price was payable to the contractor for full and proper performance of its contractual obligations. Further, Clauses 14.7 and 14.11 of the Contract states that the rates, terms and conditions were to be in force until the completion or abandonment of the last well being drilled30. From the aforesaid discussion, it can be said that the contract was based on a fixed rate. The party, before entering the tender process, entered the contract after mitigating the risk of such an increase. If the purpose of the tender was to limit the risks of price variations, then the interpretation placed by the Arbitral Tribunal cannot be said to be possible one, as it would completely defeat the explicit wordings and purpose of the contract. There is no gainsaying that there will be price fluctuations which a prudent contractor would have taken into margin, while bidding in the tender. Such price fluctuations cannot be brought under Clause 23 unless specific language points to the inclusion31. The interpretation of the Arbitral Tribunal to expand the meaning of Clause 23 to include change in rate of HSD is not a possible interpretation of this contract, as the appellant did not introduce any evidence which proves the same32. The other contractual terms also suggest that the interpretation of the clause, as suggested by the Arbitral Tribunal, is perverse. For instance, Item 1 of List II (Consumables) of Exhibit C (Consolidated Statement of Equipment and Services Furnished by Contractor or Operator for the Onshore Rig Operation), indicates that fuel would be supplied by the contactor, at his expense. The existence of such a clause shows that the interpretation of the contract by the Arbitral Tribunal is not a possible interpretation of the contract.
|
Esthuri Aswathiah Vs. Commissioner of Income Tax, Mysore | a previous year need not necessarily be 12 calendar months. Under section 2(11)(i)(b), the previous year is such period as may be determined by the Central Board of Revenue or such authority as the Board may authorise in this behalf, and the period so determined may be more or less than 12 months. Under section 2(11)(i)(c), the period of the previous year in respect of a newly set up business, profession or vocation may be less than 12 months. In this background, let us consider the meaning of section 2(11)(i)(a). The assessee has the option to choose his accounting year ending on any date within the preceding financial year as his previous year. Once he exercises this option, the meaning of the expression " previous year " as applicable to him is determined, and he cannot exercise this option again " so as to vary the meaning of the expression previous year as then applicable to him except with the consent of the Income-tax Officer and upon such conditions as the Income-tax Officer may think fit to impose. " If the assessee wants to change the meaning of the previous year as then applicable to him, he must obtain the consent of the Income-tax Officer, and the Income-tax Officer may accord such consent on proper terms. The Income-tax Officer may refuse to give his consent, but if he does give his consent, he has ample power to impose the condition that the full period from the end of the " previous year " for the preceding years assessment to the end of the new accounting year should be taken as the previous year for the current assessment year. Thus, if the previous year at any given time applicable to the assessee ends on June 30 and he wants to vary it so as to make it end on March 31 next, the Income-tax Officer has power to accord sanction to the change on the condition that the previous year would consist of the entire period of 21 months commencing on June 30 of the year up to which his accounts were last made up to March 31 of the year up to which his accounts are newly made up. The condition properly safeguards the interest of the revenue. Had he sanctioned the change on the footing that the previous year of the assessee in relation to the current assessment year would be the period of 12 months from April 1 to March 31, the income of the preceding 9 months from July 1 to March 31 would have escaped taxation altogetherMr. Srinivasan submitted that the Income-tax Officer could grant the sanction on condition that the assessee should have two previous years, one consisting of a period of nine months from July 1 up to March 31 ; and the other of a period of 12 months from April 1 to the next succeeding March 31. This is an impossible contention. There cannot be two previous years in respect of the same assessment year. The charge under section 3 for any assessment year is in respect of the income of the previous year. The concept of two previous years in relation to the same assessment year is repugnant to section 3. In Dhandhania Kedia & Co. v. Commissioner of Income-tax, this court pointed out that it is a contradiction in terms to speak of six previous years in relation to any specified assessment year. Mr. Srinivasan is not right in submitting that section 25(1) contemplates two previous years. Section 25(1) provides that in case of discontinuance of any business, profession or vocation in any assessment year, the Income-tax Officer may in that year make an accelerated assessment in respect of the income of the period between the end of the previous year and the date of such discontinuance, in addition to the useful assessment in respect of the income of the previous year. Section 25(1) contemplates the usual assessment in respect of the income of the previous year and a special and separate assessment in the same assessment year in respect of the income of the broken period between the end of the previous year and the end of the discontinuance; it does not contemplate, as counsel submitted, assessments in the same assessment year in respect of two previous years6. Mr. Srinivasan alternatively submitted that the Income-tax Officer could accord sanction to the change on the basis that the income for 21 months should be assessed at the rate applicable to the income of the last period of 12 months. This again is an impossible contention. The Income-tax Officer has no power to vary the rate on which the income of the previous year is to be assessed. The rate of tax is fixed by the Finance Act every year. By section 3, the tax is levied at that rate for an assessment year in respect of the income of the previous year. Once the length of the previous year is fixed and the income of the previous year is determined, that income must be charged at the rate specified in the Finance Act and at no other rate. The order of the Income-tax Officer, in substance, permitted the change of the previous year on condition that the previous year in relation to the assessment year 1952-53 would consist of the period of 21 months commencing from July 1, 1950, and ending on March 31, 1952. The Income-tax Officer had power to impose this condition. The further condition that the income of the previous year of 21 months would be assessed at the rate applicable to the income for 21 months is redundant. Once the length of the previous year is found to be a period of 21 months, the income of the entire period of 21 months must be considered to be the income of the previous year relevant for the assessment year 1952-53, and the entire income must be assessed at the rate specified in the relevant Finance Act | 0[ds]We are unable to accept thisA combined reading of the several clauses of section 2(11) shows that the length of a previous year need not necessarily be 12 calendar months. Under section 2(11)(i)(b), the previous year is such period as may be determined by the Central Board of Revenue or such authority as the Board may authorise in this behalf, and the period so determined may be more or less than 12 months. Under section 2(11)(i)(c), the period of the previous year in respect of a newly set up business, profession or vocation may be less than 12 months. In this background, let us consider the meaning of section 2(11)(i)(a). The assessee has the option to choose his accounting year ending on any date within the preceding financial year as his previous year. Once he exercises this option, the meaning of the expression " previous year " as applicable to him is determined, and he cannot exercise this option again " so as to vary the meaning of the expression previous year as then applicable to him except with the consent of theOfficer and upon such conditions as theOfficer may think fit to impose. " If the assessee wants to change the meaning of the previous year as then applicable to him, he must obtain the consent of theOfficer, and theOfficer may accord such consent on proper terms. TheOfficer may refuse to give his consent, but if he does give his consent, he has ample power to impose the condition that the full period from the end of the " previous year " for the preceding years assessment to the end of the new accounting year should be taken as the previous year for the current assessment year. Thus, if the previous year at any given time applicable to the assessee ends on June 30 and he wants to vary it so as to make it end on March 31 next, theOfficer has power to accord sanction to the change on the condition that the previous year would consist of the entire period of 21 months commencing on June 30 of the year up to which his accounts were last made up to March 31 of the year up to which his accounts are newly made up. The condition properly safeguards the interest of the revenue. Had he sanctioned the change on the footing that the previous year of the assessee in relation to the current assessment year would be the period of 12 months from April 1 to March 31, the income of the preceding 9 months from July 1 to March 31 would have escaped taxationis an impossible contention. There cannot be two previous years in respect of the same assessment year. The charge under section 3 for any assessment year is in respect of the income of the previous year. The concept of two previous years in relation to the same assessment year is repugnant to section 3. In Dhandhania Kedia & Co. v. Commissioner ofthis court pointed out that it is a contradiction in terms to speak of six previous years in relation to any specified assessment year. Mr. Srinivasan is not right in submitting that section 25(1) contemplates two previous years. Section 25(1) provides that in case of discontinuance of any business, profession or vocation in any assessment year, theOfficer may in that year make an accelerated assessment in respect of the income of the period between the end of the previous year and the date of such discontinuance, in addition to the useful assessment in respect of the income of the previous year. Section 25(1) contemplates the usual assessment in respect of the income of the previous year and a special and separate assessment in the same assessment year in respect of the income of the broken period between the end of the previous year and the end of the discontinuance; it does not contemplate, as counsel submitted, assessments in the same assessment year in respect of two previousagain is an impossible contention. TheOfficer has no power to vary the rate on which the income of the previous year is to be assessed. The rate of tax is fixed by the Finance Act every year. By section 3, the tax is levied at that rate for an assessment year in respect of the income of the previous year. Once the length of the previous year is fixed and the income of the previous year is determined, that income must be charged at the rate specified in the Finance Act and at no other rate. The order of theOfficer, in substance, permitted the change of the previous year on condition that the previous year in relation to the assessment yearwould consist of the period of 21 months commencing from July 1, 1950, and ending on March 31, 1952. TheOfficer had power to impose this condition. The further condition that the income of the previous year of 21 months would be assessed at the rate applicable to the income for 21 months is redundant. Once the length of the previous year is found to be a period of 21 months, the income of the entire period of 21 months must be considered to be the income of the previous year relevant for the assessment yearand the entire income must be assessed at the rate specified in the relevant Finance Act | 0 | 2,418 | 991 | ### 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:
a previous year need not necessarily be 12 calendar months. Under section 2(11)(i)(b), the previous year is such period as may be determined by the Central Board of Revenue or such authority as the Board may authorise in this behalf, and the period so determined may be more or less than 12 months. Under section 2(11)(i)(c), the period of the previous year in respect of a newly set up business, profession or vocation may be less than 12 months. In this background, let us consider the meaning of section 2(11)(i)(a). The assessee has the option to choose his accounting year ending on any date within the preceding financial year as his previous year. Once he exercises this option, the meaning of the expression " previous year " as applicable to him is determined, and he cannot exercise this option again " so as to vary the meaning of the expression previous year as then applicable to him except with the consent of the Income-tax Officer and upon such conditions as the Income-tax Officer may think fit to impose. " If the assessee wants to change the meaning of the previous year as then applicable to him, he must obtain the consent of the Income-tax Officer, and the Income-tax Officer may accord such consent on proper terms. The Income-tax Officer may refuse to give his consent, but if he does give his consent, he has ample power to impose the condition that the full period from the end of the " previous year " for the preceding years assessment to the end of the new accounting year should be taken as the previous year for the current assessment year. Thus, if the previous year at any given time applicable to the assessee ends on June 30 and he wants to vary it so as to make it end on March 31 next, the Income-tax Officer has power to accord sanction to the change on the condition that the previous year would consist of the entire period of 21 months commencing on June 30 of the year up to which his accounts were last made up to March 31 of the year up to which his accounts are newly made up. The condition properly safeguards the interest of the revenue. Had he sanctioned the change on the footing that the previous year of the assessee in relation to the current assessment year would be the period of 12 months from April 1 to March 31, the income of the preceding 9 months from July 1 to March 31 would have escaped taxation altogetherMr. Srinivasan submitted that the Income-tax Officer could grant the sanction on condition that the assessee should have two previous years, one consisting of a period of nine months from July 1 up to March 31 ; and the other of a period of 12 months from April 1 to the next succeeding March 31. This is an impossible contention. There cannot be two previous years in respect of the same assessment year. The charge under section 3 for any assessment year is in respect of the income of the previous year. The concept of two previous years in relation to the same assessment year is repugnant to section 3. In Dhandhania Kedia & Co. v. Commissioner of Income-tax, this court pointed out that it is a contradiction in terms to speak of six previous years in relation to any specified assessment year. Mr. Srinivasan is not right in submitting that section 25(1) contemplates two previous years. Section 25(1) provides that in case of discontinuance of any business, profession or vocation in any assessment year, the Income-tax Officer may in that year make an accelerated assessment in respect of the income of the period between the end of the previous year and the date of such discontinuance, in addition to the useful assessment in respect of the income of the previous year. Section 25(1) contemplates the usual assessment in respect of the income of the previous year and a special and separate assessment in the same assessment year in respect of the income of the broken period between the end of the previous year and the end of the discontinuance; it does not contemplate, as counsel submitted, assessments in the same assessment year in respect of two previous years6. Mr. Srinivasan alternatively submitted that the Income-tax Officer could accord sanction to the change on the basis that the income for 21 months should be assessed at the rate applicable to the income of the last period of 12 months. This again is an impossible contention. The Income-tax Officer has no power to vary the rate on which the income of the previous year is to be assessed. The rate of tax is fixed by the Finance Act every year. By section 3, the tax is levied at that rate for an assessment year in respect of the income of the previous year. Once the length of the previous year is fixed and the income of the previous year is determined, that income must be charged at the rate specified in the Finance Act and at no other rate. The order of the Income-tax Officer, in substance, permitted the change of the previous year on condition that the previous year in relation to the assessment year 1952-53 would consist of the period of 21 months commencing from July 1, 1950, and ending on March 31, 1952. The Income-tax Officer had power to impose this condition. The further condition that the income of the previous year of 21 months would be assessed at the rate applicable to the income for 21 months is redundant. Once the length of the previous year is found to be a period of 21 months, the income of the entire period of 21 months must be considered to be the income of the previous year relevant for the assessment year 1952-53, and the entire income must be assessed at the rate specified in the relevant Finance Act
### Response:
0
### Explanation:
We are unable to accept thisA combined reading of the several clauses of section 2(11) shows that the length of a previous year need not necessarily be 12 calendar months. Under section 2(11)(i)(b), the previous year is such period as may be determined by the Central Board of Revenue or such authority as the Board may authorise in this behalf, and the period so determined may be more or less than 12 months. Under section 2(11)(i)(c), the period of the previous year in respect of a newly set up business, profession or vocation may be less than 12 months. In this background, let us consider the meaning of section 2(11)(i)(a). The assessee has the option to choose his accounting year ending on any date within the preceding financial year as his previous year. Once he exercises this option, the meaning of the expression " previous year " as applicable to him is determined, and he cannot exercise this option again " so as to vary the meaning of the expression previous year as then applicable to him except with the consent of theOfficer and upon such conditions as theOfficer may think fit to impose. " If the assessee wants to change the meaning of the previous year as then applicable to him, he must obtain the consent of theOfficer, and theOfficer may accord such consent on proper terms. TheOfficer may refuse to give his consent, but if he does give his consent, he has ample power to impose the condition that the full period from the end of the " previous year " for the preceding years assessment to the end of the new accounting year should be taken as the previous year for the current assessment year. Thus, if the previous year at any given time applicable to the assessee ends on June 30 and he wants to vary it so as to make it end on March 31 next, theOfficer has power to accord sanction to the change on the condition that the previous year would consist of the entire period of 21 months commencing on June 30 of the year up to which his accounts were last made up to March 31 of the year up to which his accounts are newly made up. The condition properly safeguards the interest of the revenue. Had he sanctioned the change on the footing that the previous year of the assessee in relation to the current assessment year would be the period of 12 months from April 1 to March 31, the income of the preceding 9 months from July 1 to March 31 would have escaped taxationis an impossible contention. There cannot be two previous years in respect of the same assessment year. The charge under section 3 for any assessment year is in respect of the income of the previous year. The concept of two previous years in relation to the same assessment year is repugnant to section 3. In Dhandhania Kedia & Co. v. Commissioner ofthis court pointed out that it is a contradiction in terms to speak of six previous years in relation to any specified assessment year. Mr. Srinivasan is not right in submitting that section 25(1) contemplates two previous years. Section 25(1) provides that in case of discontinuance of any business, profession or vocation in any assessment year, theOfficer may in that year make an accelerated assessment in respect of the income of the period between the end of the previous year and the date of such discontinuance, in addition to the useful assessment in respect of the income of the previous year. Section 25(1) contemplates the usual assessment in respect of the income of the previous year and a special and separate assessment in the same assessment year in respect of the income of the broken period between the end of the previous year and the end of the discontinuance; it does not contemplate, as counsel submitted, assessments in the same assessment year in respect of two previousagain is an impossible contention. TheOfficer has no power to vary the rate on which the income of the previous year is to be assessed. The rate of tax is fixed by the Finance Act every year. By section 3, the tax is levied at that rate for an assessment year in respect of the income of the previous year. Once the length of the previous year is fixed and the income of the previous year is determined, that income must be charged at the rate specified in the Finance Act and at no other rate. The order of theOfficer, in substance, permitted the change of the previous year on condition that the previous year in relation to the assessment yearwould consist of the period of 21 months commencing from July 1, 1950, and ending on March 31, 1952. TheOfficer had power to impose this condition. The further condition that the income of the previous year of 21 months would be assessed at the rate applicable to the income for 21 months is redundant. Once the length of the previous year is found to be a period of 21 months, the income of the entire period of 21 months must be considered to be the income of the previous year relevant for the assessment yearand the entire income must be assessed at the rate specified in the relevant Finance Act
|
M/s. National Insurance Co. Ltd Vs. Smt. Jijubhai Nathuji Dabhi and others | K. Venkataswami, J. 1. This appeal by special leave is confined to the question as to whether the accident had occurred during the operation of the insurance policy in controversy. The admitted position is that the renewal of the insurance was effected as under : "Address : Jal Apartment _______. Rd. Vile Parle (N) Bombay 5.It is hereby understood and agreed that the renewal premium of Rs. 1307/- only under this policy having been paid on 25-10-1983 and not within the renewal date viz., 14-10-1983 the Insurance by this policy is suspended from 14-10-1983 (4 p.m.) to 24-10-1983.Further, it is declared and agreed that the cover under this policy is reinstated and renewed for a further period of twelve months from 25-10-1983 to 24-10-1984 at a premium of Rs. 1307/-." 2. The Tribunal also had recorded, as a fact, that on October 25, 1983 at 4.00 p.m., the contract of renewal had come into force and it would be operative up to October 24, 1984. The Tribunal also recorded, as a fact, that the accident had occurred on October 25, 1983 at 11.14 a.m. that is before the renewal of the contract. Under these circumstances, it would be clear that the accident had occurred when the renewal had not taken effect.3. This Court in New India Assurance Co. v. Ram Dayal, 1990(2) SCR 570, had held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the mid-night of the day by operation of provisions of the General Clauses Act. But in view of the Special contract mentioned in the insurance policy, namely, it would be operative from 4.00 p.m. on October 25, 1983 and the accident had occurred earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant-company. | 1[ds]Under these circumstances, it would be clear that the accident had occurred when the renewal had not taken effect.3. This Court in New India Assurance Co. v. Ram Dayal, 1990(2) SCR 570, had held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the mid-night of the day by operation of provisions of the General Clauses Act. But in view of the Special contract mentioned in the insurance policy, namely, it would be operative from 4.00 p.m. on October 25, 1983 and the accident had occurred earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant-company. | 1 | 348 | 132 | ### 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:
K. Venkataswami, J. 1. This appeal by special leave is confined to the question as to whether the accident had occurred during the operation of the insurance policy in controversy. The admitted position is that the renewal of the insurance was effected as under : "Address : Jal Apartment _______. Rd. Vile Parle (N) Bombay 5.It is hereby understood and agreed that the renewal premium of Rs. 1307/- only under this policy having been paid on 25-10-1983 and not within the renewal date viz., 14-10-1983 the Insurance by this policy is suspended from 14-10-1983 (4 p.m.) to 24-10-1983.Further, it is declared and agreed that the cover under this policy is reinstated and renewed for a further period of twelve months from 25-10-1983 to 24-10-1984 at a premium of Rs. 1307/-." 2. The Tribunal also had recorded, as a fact, that on October 25, 1983 at 4.00 p.m., the contract of renewal had come into force and it would be operative up to October 24, 1984. The Tribunal also recorded, as a fact, that the accident had occurred on October 25, 1983 at 11.14 a.m. that is before the renewal of the contract. Under these circumstances, it would be clear that the accident had occurred when the renewal had not taken effect.3. This Court in New India Assurance Co. v. Ram Dayal, 1990(2) SCR 570, had held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the mid-night of the day by operation of provisions of the General Clauses Act. But in view of the Special contract mentioned in the insurance policy, namely, it would be operative from 4.00 p.m. on October 25, 1983 and the accident had occurred earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant-company.
### Response:
1
### Explanation:
Under these circumstances, it would be clear that the accident had occurred when the renewal had not taken effect.3. This Court in New India Assurance Co. v. Ram Dayal, 1990(2) SCR 570, had held that in the absence of any specific time mentioned in that behalf, the contract would be operative from the mid-night of the day by operation of provisions of the General Clauses Act. But in view of the Special contract mentioned in the insurance policy, namely, it would be operative from 4.00 p.m. on October 25, 1983 and the accident had occurred earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant-company.
|
M/s. Jaipur Hosiery Mills Pvt. Ltd. & Others Vs. State of Rajasthan & Others | Grover, J.1. These eight appeals by certificate arise out of a common judgment of the Rajasthan High Court dismissing the petitions under Article 226 of the Constitution filed by the appellants.2. The appellants carry on the business inter alia, of manufacture and sale of vests and underwears (Baniyans and Chaddies) out of knitted fabric. On January 31, 1958 a notification was issued by the State Government under Section 4 (2) of the Rajasthan Sales Tax Act, 1950. hereinafter called the "Act, exempting from tax the sale of any garment whether prepared within or imported from outisde Rajasthan the value of which did not exceed Rs.4 in single piece. In spite of the aforesaid notification the authorities did not exempt from payment of sales tax the sale of vests and underwears the value of which did not exceed Rs.4 in single piece. The notification was interpreted to mean that the goods manufactured by the appellants were not garments within its meaning. M/s. Pareek Hosiery Products Jaipur took the matter to the High Court by way of a writ petition under Article 226 of the Constitution which was allowed and it was held that the vests and underwears were covered by the said notification. On March 26, 1962 the State of Rajasthan issued another notification in exercise of the powers under Section 4 (2) of the Act by which the sale of garments whether prepared within or imported from outside Rajasthan the value of which did not exceed Rs. 4 in a single piece were exempted from payment of sales tax but this exemption excluded "hosiery" products and hats of all kinds." The appellants were subjected to sales tax in respect of sales of vests and underwears of knitted fabric for the periods of assessment ranging between April 1, 1961 to October 31, 1965 Penalties were also levied on them. It was in these circumstances that the appellants filed writ petitions in the High Court.3. The principal attack on the impugned notification was based on Article 14 of the Constitution. It was urged before the High Court as it has been contended before us that there was no rational basis for classification between garments as such and knitted garments like Baniyans and Chaddies.In the affidavit which was filed by the State no reason was given why particular kind of garments were exempted whereas others of the same value were not given the benefit of exemption. It is well settled that although a taxing statute can be challenged on the ground to infringement of Art. 14 but in deciding whether the law challenged is discriminatory it has to be borne in mind that in matters of taxation the legislature possesses the large freedom in the matter of classification. Thus wide discretion can be exercised in selecting persons or objects which will be taxed and the statute is not open to attack on the mere ground that it taxes some persons or objects and not others. It is only when within the range of its selection the law operates unequally and cannot be justified on the basis of a valid classification that there would be a violation of Article 14.4. Section 4 (2) of the Act provides that no tax shall be payable on the sale or purchase of any of the exempted goods if the conditions specified in column 3 of the schedule are satisfied. Where the State Government is of opinion that it is necessary or expedient in the public interest so to do, it may by notification exempt from tax the sale or purchase of any goods or class of goods or any person or class of persons on such conditions as may be specified. The impugned notification was issued in accordance with this section. It is for the State to decide while granting the exemption by means of a notification as to the class of goods which should be exempted in public interest. As rightly pointed out by the High Court the notification makes a classification between garments in general the value of which does not exceed Rs.4 in a single piece and hosiery products including hosiery garments. Hosiery products generally are knitted articles. They are different from woven articles. It is not for the Court to decide whether the policy of exempting articles made from woven cloth was justified or that hosiery articles should have been given the exemption in the same way as other garments. It is entirely for the taxing authorities to take a decision as to the goods which will be subjected to taxation and those which would be exempted from it. As no other discriminatory treatment has been suggested on behalf of the appellants we must hold in concurrence with the view of the High Court that the impugned notification is not hit by Article 14 of the Constitution.5. It has been pointed out that the High Court proceeded to decide whether the Baniyans and Chaddies were included in the term "hosiery products". Such a decision should not have been given by the High Court but should have been left to the assessing authorities dealing with each individual case. In our judgment the High Court ought not to have gone into that matter as it was for the assessing authorities to decide in each case whether the goods which had been subjected to tax were hosiery products. | 0[ds]As rightly pointed out by the High Court the notification makes a classification between garments in general the value of which does not exceed Rs.4 in a single piece and hosiery products including hosiery garments. Hosiery products generally are knitted articles. They are different from woven articles. It is not for the Court to decide whether the policy of exempting articles made from woven cloth was justified or that hosiery articles should have been given the exemption in the same way as other garments. It is entirely for the taxing authorities to take a decision as to the goods which will be subjected to taxation and those which would be exempted from it. As no other discriminatory treatment has been suggested on behalf of the appellants we must hold in concurrence with the view of the High Court that the impugned notification is not hit by Article 14 of the Constitution.5. It has been pointed out that the High Court proceeded to decide whether the Baniyans and Chaddies were included in the term "hosiery products". Such a decision should not have been given by the High Court but should have been left to the assessing authorities dealing with each individual case. In our judgment the High Court ought not to have gone into that matter as it was for the assessing authorities to decide in each case whether the goods which had been subjected to tax were hosiery products. | 0 | 947 | 254 | ### 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:
Grover, J.1. These eight appeals by certificate arise out of a common judgment of the Rajasthan High Court dismissing the petitions under Article 226 of the Constitution filed by the appellants.2. The appellants carry on the business inter alia, of manufacture and sale of vests and underwears (Baniyans and Chaddies) out of knitted fabric. On January 31, 1958 a notification was issued by the State Government under Section 4 (2) of the Rajasthan Sales Tax Act, 1950. hereinafter called the "Act, exempting from tax the sale of any garment whether prepared within or imported from outisde Rajasthan the value of which did not exceed Rs.4 in single piece. In spite of the aforesaid notification the authorities did not exempt from payment of sales tax the sale of vests and underwears the value of which did not exceed Rs.4 in single piece. The notification was interpreted to mean that the goods manufactured by the appellants were not garments within its meaning. M/s. Pareek Hosiery Products Jaipur took the matter to the High Court by way of a writ petition under Article 226 of the Constitution which was allowed and it was held that the vests and underwears were covered by the said notification. On March 26, 1962 the State of Rajasthan issued another notification in exercise of the powers under Section 4 (2) of the Act by which the sale of garments whether prepared within or imported from outside Rajasthan the value of which did not exceed Rs. 4 in a single piece were exempted from payment of sales tax but this exemption excluded "hosiery" products and hats of all kinds." The appellants were subjected to sales tax in respect of sales of vests and underwears of knitted fabric for the periods of assessment ranging between April 1, 1961 to October 31, 1965 Penalties were also levied on them. It was in these circumstances that the appellants filed writ petitions in the High Court.3. The principal attack on the impugned notification was based on Article 14 of the Constitution. It was urged before the High Court as it has been contended before us that there was no rational basis for classification between garments as such and knitted garments like Baniyans and Chaddies.In the affidavit which was filed by the State no reason was given why particular kind of garments were exempted whereas others of the same value were not given the benefit of exemption. It is well settled that although a taxing statute can be challenged on the ground to infringement of Art. 14 but in deciding whether the law challenged is discriminatory it has to be borne in mind that in matters of taxation the legislature possesses the large freedom in the matter of classification. Thus wide discretion can be exercised in selecting persons or objects which will be taxed and the statute is not open to attack on the mere ground that it taxes some persons or objects and not others. It is only when within the range of its selection the law operates unequally and cannot be justified on the basis of a valid classification that there would be a violation of Article 14.4. Section 4 (2) of the Act provides that no tax shall be payable on the sale or purchase of any of the exempted goods if the conditions specified in column 3 of the schedule are satisfied. Where the State Government is of opinion that it is necessary or expedient in the public interest so to do, it may by notification exempt from tax the sale or purchase of any goods or class of goods or any person or class of persons on such conditions as may be specified. The impugned notification was issued in accordance with this section. It is for the State to decide while granting the exemption by means of a notification as to the class of goods which should be exempted in public interest. As rightly pointed out by the High Court the notification makes a classification between garments in general the value of which does not exceed Rs.4 in a single piece and hosiery products including hosiery garments. Hosiery products generally are knitted articles. They are different from woven articles. It is not for the Court to decide whether the policy of exempting articles made from woven cloth was justified or that hosiery articles should have been given the exemption in the same way as other garments. It is entirely for the taxing authorities to take a decision as to the goods which will be subjected to taxation and those which would be exempted from it. As no other discriminatory treatment has been suggested on behalf of the appellants we must hold in concurrence with the view of the High Court that the impugned notification is not hit by Article 14 of the Constitution.5. It has been pointed out that the High Court proceeded to decide whether the Baniyans and Chaddies were included in the term "hosiery products". Such a decision should not have been given by the High Court but should have been left to the assessing authorities dealing with each individual case. In our judgment the High Court ought not to have gone into that matter as it was for the assessing authorities to decide in each case whether the goods which had been subjected to tax were hosiery products.
### Response:
0
### Explanation:
As rightly pointed out by the High Court the notification makes a classification between garments in general the value of which does not exceed Rs.4 in a single piece and hosiery products including hosiery garments. Hosiery products generally are knitted articles. They are different from woven articles. It is not for the Court to decide whether the policy of exempting articles made from woven cloth was justified or that hosiery articles should have been given the exemption in the same way as other garments. It is entirely for the taxing authorities to take a decision as to the goods which will be subjected to taxation and those which would be exempted from it. As no other discriminatory treatment has been suggested on behalf of the appellants we must hold in concurrence with the view of the High Court that the impugned notification is not hit by Article 14 of the Constitution.5. It has been pointed out that the High Court proceeded to decide whether the Baniyans and Chaddies were included in the term "hosiery products". Such a decision should not have been given by the High Court but should have been left to the assessing authorities dealing with each individual case. In our judgment the High Court ought not to have gone into that matter as it was for the assessing authorities to decide in each case whether the goods which had been subjected to tax were hosiery products.
|
Miss Dhun Dadabhoy Kapadia Vs. Commissioner Of Income-Tax, Bombay | purchasing those shares at the prescribed rate, or by renouncing those shares in favour of another person and obtaining monetary gain in that transaction. At the time, therefore, when the appellant renounced her right to take these new shares, the capital assets which she actually possessed consisted of her old 710 shares plus this right to take 710 new shares. At the time of her transaction, her old shares were valued at Rs. 253 per share, so that the capital asset in her possession can be treated to be the cash value of 710 multiplied by Rs. 253 of the old shares plus this right to obtain new shares. After she had transferred this right to obtain new shares, the capital assets that came into her hands were the 710 old shares, which became valued at Rs.198.75 nP. per share, together with the sum of Rs. 45.262.50 nP. The net capital gain or loss to the appellant obviously would be the difference between to value of the capital asset and the cash in her hands after she had renounced her right and realised, the cash value in respect of it, and the value of the capital asset including the right which she possessed just before these new shares were issued and before she realised any cash in respect of the right by renouncing it in favour of some other person. As we have indicated above, the value of the capital asset, after renouncement would be 710 multiplied by Rs. 198.75 nP. plus the sum of Rupees 45,262.50 nP., while the value of the asset, immediately before the renouncement, would be 710 multiplied by Rs. 253, there being no cash value at that time of the right to be taken into account Thus, the capital gain or loss would be worked out at Rs. 45.262.50 nP after deducting from it the sum worked out at 710 multiplied by the difference between Rs.253 and Rs. l98.75 nP This last amount comes to a little more than the sum of Rs 37,630 which the appellant claimed should be deducted from Rupees 45.262.50 nP in computing her capital gain. The claim made by the appellant was thus clearly justified, because the net capital gain by her in the transaction, which consisted of issue of new shares together with her renouncement of the right to receive new shares and make some money thereby, could only be properly computed in the manner indicated by us above. 4. In the alternative, the case can be examined in another aspect. At the time of the issue of new shares, the appellant possessed 710 old shares and she also got the right to obtain 710 new shares. When she sold this right to obtain 710 new shares and realised the sum of Rs. 45,262.50 nP., she capitalised that right and converted it into money. The value of the right may be measured by setting off against the appreciation in the face value of the new shares the depreciation in the old shares and, consequently, to the extent of the depreciation in the value of her original shares, she must be deemed to have invested money in acquisition of this new right. A concomitant of the acquisition of the new right was the depreciation in the value of the old shares and the deprecations may, in a commercial sense, be deemed to be the value of the right which she subsequently transferred. The capital gain made by her would, therefore be represented only by the difference between the money realised on transfer of the right, and the amount which she lost in the form of depreciation of her original shares in order to acquire that right. Looked at in this manner also, it is clear that the net capital gain by her would be represented by the amount realised by her on transferring the right to receive new shares, after deducting therefrom the amount of depreciation in the value of her original shares, being the loss incurred by her in her capital asset in the transaction in which she acquired the right for which she realised the cash. This method of looking at the transaction also leads to the same conclusion which we have indicated in the preceding paragraph. 5. The view that we have taken finds support from the principle laid down by this Court for valuation of bonus shares issued by a company to holders of original shares in the case of Commissioner of Income-tax, Bihar v. Dalmia Investment Co. Ltd., 1944-52 ITR 567 : (AIR 1964 SC 1464 ). 6. The High Court, in dealing with this question, had expressed the view that principles of Accountancy applicable to valuation of such right to receive new shares issued by a company are not applicable when computation has to be made for purposes of taxation; but we are unable to accept this proposition. In working out capital gain or loss, the principles that have to be applied are those which are a part of the commercial practice or which an ordinary man of business will resort to when making computation for his business purposes. The principles of accounting indicated by us above are clearly the principle that must be applied in order to find out the net capital gain or loss arising out of a transaction of the nature with which we are concerned. The application of those principle indicates that the claim of the appellant that the net capital gain by her is not represented by the whole amount of Rs.45,262.50 nP. realised by her on renouncement of her right to receive the new shares was correct and that the net capital gain can only be properly computed after deducting the sum of Rs. 37,630 which approximately represents the loss incurred simultaneously by the appellant in her original asset of 710 old shares as a result of the depreciation in their value. The question referred to the High Court must, therefore, be answered in favour of the appellant. | 1[ds]6. The High Court, in dealing with this question, had expressed the view that principles of Accountancy applicable to valuation of such right to receive new shares issued by a company are not applicable when computation has to be made for purposes of taxation; but we are unable to accept this proposition. In working out capital gain or loss, the principles that have to be applied are those which are a part of the commercial practice or which an ordinary man of business will resort to when making computation for his business purposes. The principles of accounting indicated by us above are clearly the principle that must be applied in order to find out the net capital gain or loss arising out of a transaction of the nature with which we are concerned. The application of those principle indicates that the claim of the appellant that the net capital gain by her is not represented by the whole amount of Rs.45,262.50 nP. realised by her on renouncement of her right to receive the new shares was correct and that the net capital gain can only be properly computed after deducting the sum of Rs. 37,630 which approximately represents the loss incurred simultaneously by the appellant in her original asset of 710 old shares as a result of the depreciation in their value. The question referred to the High Court must, therefore, be answered in favour of the appellant3. In order to answer the question referred to the High Court, it appears to us that the nature of the transaction, which resulted in this receipt of Rs. 45,262.50 nP. by the appellant, must be analysed and properly understood. The amount, it is the agreed case of the parties, was a capital gain. The capital asset which the appellant originally possessed consisted of 710 ordinary shares of the Company. There was already a provision that, if the Company issued any new shares, every holder of old shares would be entitled to such number of ordinary shares as the Board may, by resolution, decide. This right was possessed by the appellant because of her ownership of the old 710 ordinary shares, and when the Board of Directors of the Company passed a resolution for issue of new shares, this right of the appellant matured to the extent that she became entitled to receive 710 new shares. This right could be exercised by her by actually purchasing those shares at the prescribed rate, or by renouncing those shares in favour of another person and obtaining monetary gain in that transaction. At the time, therefore, when the appellant renounced her right to take these new shares, the capital assets which she actually possessed consisted of her old 710 shares plus this right to take 710 new shares. At the time of her transaction, her old shares were valued at Rs. 253 per share, so that the capital asset in her possession can be treated to be the cash value of 710 multiplied by Rs. 253 of the old shares plus this right to obtain new shares. After she had transferred this right to obtain new shares, the capital assets that came into her hands were the 710 old shares, which became valued at Rs.198.75 nP. per share, together with the sum of Rs. 45.262.50 nP. The net capital gain or loss to the appellant obviously would be the difference between to value of the capital asset and the cash in her hands after she had renounced her right and realised, the cash value in respect of it, and the value of the capital asset including the right which she possessed just before these new shares were issued and before she realised any cash in respect of the right by renouncing it in favour of some other person. As we have indicated above, the value of the capital asset, after renouncement would be 710 multiplied by Rs. 198.75 nP. plus the sum of Rupees 45,262.50 nP., while the value of the asset, immediately before the renouncement, would be 710 multiplied by Rs. 253, there being no cash value at that time of the right to be taken into account Thus, the capital gain or loss would be worked out at Rs. 45.262.50 nP after deducting from it the sum worked out at 710 multiplied by the difference between Rs.253 and Rs. l98.75 nP This last amount comes to a little more than the sum of Rs 37,630 which the appellant claimed should be deducted from Rupees 45.262.50 nP in computing her capital gain. The claim made by the appellant was thus clearly justified, because the net capital gain by her in the transaction, which consisted of issue of new shares together with her renouncement of the right to receive new shares and make some money thereby, could only be properly computed in the manner indicated by us above4. In the alternative, the case can be examined in another aspect. At the time of the issue of new shares, the appellant possessed 710 old shares and she also got the right to obtain 710 new shares. When she sold this right to obtain 710 new shares and realised the sum of Rs. 45,262.50 nP., she capitalised that right and converted it into money. The value of the right may be measured by setting off against the appreciation in the face value of the new shares the depreciation in the old shares and, consequently, to the extent of the depreciation in the value of her original shares, she must be deemed to have invested money in acquisition of this new right. A concomitant of the acquisition of the new right was the depreciation in the value of the old shares and the deprecations may, in a commercial sense, be deemed to be the value of the right which she subsequently transferred. The capital gain made by her would, therefore be represented only by the difference between the money realised on transfer of the right, and the amount which she lost in the form of depreciation of her original shares in order to acquire that right. Looked at in this manner also, it is clear that the net capital gain by her would be represented by the amount realised by her on transferring the right to receive new shares, after deducting therefrom the amount of depreciation in the value of her original shares, being the loss incurred by her in her capital asset in the transaction in which she acquired the right for which she realised the cash. This method of looking at the transaction also leads to the same conclusion which we have indicated in the preceding paragraph5. The view that we have taken finds support from the principle laid down by this Court for valuation of bonus shares issued by a company to holders of original shares in the case of Commissioner of, Bihar v. Dalmia Investment Co. Ltd.,2 ITR 567 : (AIR 1964 SC 1464 ) | 1 | 2,246 | 1,257 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
purchasing those shares at the prescribed rate, or by renouncing those shares in favour of another person and obtaining monetary gain in that transaction. At the time, therefore, when the appellant renounced her right to take these new shares, the capital assets which she actually possessed consisted of her old 710 shares plus this right to take 710 new shares. At the time of her transaction, her old shares were valued at Rs. 253 per share, so that the capital asset in her possession can be treated to be the cash value of 710 multiplied by Rs. 253 of the old shares plus this right to obtain new shares. After she had transferred this right to obtain new shares, the capital assets that came into her hands were the 710 old shares, which became valued at Rs.198.75 nP. per share, together with the sum of Rs. 45.262.50 nP. The net capital gain or loss to the appellant obviously would be the difference between to value of the capital asset and the cash in her hands after she had renounced her right and realised, the cash value in respect of it, and the value of the capital asset including the right which she possessed just before these new shares were issued and before she realised any cash in respect of the right by renouncing it in favour of some other person. As we have indicated above, the value of the capital asset, after renouncement would be 710 multiplied by Rs. 198.75 nP. plus the sum of Rupees 45,262.50 nP., while the value of the asset, immediately before the renouncement, would be 710 multiplied by Rs. 253, there being no cash value at that time of the right to be taken into account Thus, the capital gain or loss would be worked out at Rs. 45.262.50 nP after deducting from it the sum worked out at 710 multiplied by the difference between Rs.253 and Rs. l98.75 nP This last amount comes to a little more than the sum of Rs 37,630 which the appellant claimed should be deducted from Rupees 45.262.50 nP in computing her capital gain. The claim made by the appellant was thus clearly justified, because the net capital gain by her in the transaction, which consisted of issue of new shares together with her renouncement of the right to receive new shares and make some money thereby, could only be properly computed in the manner indicated by us above. 4. In the alternative, the case can be examined in another aspect. At the time of the issue of new shares, the appellant possessed 710 old shares and she also got the right to obtain 710 new shares. When she sold this right to obtain 710 new shares and realised the sum of Rs. 45,262.50 nP., she capitalised that right and converted it into money. The value of the right may be measured by setting off against the appreciation in the face value of the new shares the depreciation in the old shares and, consequently, to the extent of the depreciation in the value of her original shares, she must be deemed to have invested money in acquisition of this new right. A concomitant of the acquisition of the new right was the depreciation in the value of the old shares and the deprecations may, in a commercial sense, be deemed to be the value of the right which she subsequently transferred. The capital gain made by her would, therefore be represented only by the difference between the money realised on transfer of the right, and the amount which she lost in the form of depreciation of her original shares in order to acquire that right. Looked at in this manner also, it is clear that the net capital gain by her would be represented by the amount realised by her on transferring the right to receive new shares, after deducting therefrom the amount of depreciation in the value of her original shares, being the loss incurred by her in her capital asset in the transaction in which she acquired the right for which she realised the cash. This method of looking at the transaction also leads to the same conclusion which we have indicated in the preceding paragraph. 5. The view that we have taken finds support from the principle laid down by this Court for valuation of bonus shares issued by a company to holders of original shares in the case of Commissioner of Income-tax, Bihar v. Dalmia Investment Co. Ltd., 1944-52 ITR 567 : (AIR 1964 SC 1464 ). 6. The High Court, in dealing with this question, had expressed the view that principles of Accountancy applicable to valuation of such right to receive new shares issued by a company are not applicable when computation has to be made for purposes of taxation; but we are unable to accept this proposition. In working out capital gain or loss, the principles that have to be applied are those which are a part of the commercial practice or which an ordinary man of business will resort to when making computation for his business purposes. The principles of accounting indicated by us above are clearly the principle that must be applied in order to find out the net capital gain or loss arising out of a transaction of the nature with which we are concerned. The application of those principle indicates that the claim of the appellant that the net capital gain by her is not represented by the whole amount of Rs.45,262.50 nP. realised by her on renouncement of her right to receive the new shares was correct and that the net capital gain can only be properly computed after deducting the sum of Rs. 37,630 which approximately represents the loss incurred simultaneously by the appellant in her original asset of 710 old shares as a result of the depreciation in their value. The question referred to the High Court must, therefore, be answered in favour of the appellant.
### Response:
1
### Explanation:
nP. realised by her on renouncement of her right to receive the new shares was correct and that the net capital gain can only be properly computed after deducting the sum of Rs. 37,630 which approximately represents the loss incurred simultaneously by the appellant in her original asset of 710 old shares as a result of the depreciation in their value. The question referred to the High Court must, therefore, be answered in favour of the appellant3. In order to answer the question referred to the High Court, it appears to us that the nature of the transaction, which resulted in this receipt of Rs. 45,262.50 nP. by the appellant, must be analysed and properly understood. The amount, it is the agreed case of the parties, was a capital gain. The capital asset which the appellant originally possessed consisted of 710 ordinary shares of the Company. There was already a provision that, if the Company issued any new shares, every holder of old shares would be entitled to such number of ordinary shares as the Board may, by resolution, decide. This right was possessed by the appellant because of her ownership of the old 710 ordinary shares, and when the Board of Directors of the Company passed a resolution for issue of new shares, this right of the appellant matured to the extent that she became entitled to receive 710 new shares. This right could be exercised by her by actually purchasing those shares at the prescribed rate, or by renouncing those shares in favour of another person and obtaining monetary gain in that transaction. At the time, therefore, when the appellant renounced her right to take these new shares, the capital assets which she actually possessed consisted of her old 710 shares plus this right to take 710 new shares. At the time of her transaction, her old shares were valued at Rs. 253 per share, so that the capital asset in her possession can be treated to be the cash value of 710 multiplied by Rs. 253 of the old shares plus this right to obtain new shares. After she had transferred this right to obtain new shares, the capital assets that came into her hands were the 710 old shares, which became valued at Rs.198.75 nP. per share, together with the sum of Rs. 45.262.50 nP. The net capital gain or loss to the appellant obviously would be the difference between to value of the capital asset and the cash in her hands after she had renounced her right and realised, the cash value in respect of it, and the value of the capital asset including the right which she possessed just before these new shares were issued and before she realised any cash in respect of the right by renouncing it in favour of some other person. As we have indicated above, the value of the capital asset, after renouncement would be 710 multiplied by Rs. 198.75 nP. plus the sum of Rupees 45,262.50 nP., while the value of the asset, immediately before the renouncement, would be 710 multiplied by Rs. 253, there being no cash value at that time of the right to be taken into account Thus, the capital gain or loss would be worked out at Rs. 45.262.50 nP after deducting from it the sum worked out at 710 multiplied by the difference between Rs.253 and Rs. l98.75 nP This last amount comes to a little more than the sum of Rs 37,630 which the appellant claimed should be deducted from Rupees 45.262.50 nP in computing her capital gain. The claim made by the appellant was thus clearly justified, because the net capital gain by her in the transaction, which consisted of issue of new shares together with her renouncement of the right to receive new shares and make some money thereby, could only be properly computed in the manner indicated by us above4. In the alternative, the case can be examined in another aspect. At the time of the issue of new shares, the appellant possessed 710 old shares and she also got the right to obtain 710 new shares. When she sold this right to obtain 710 new shares and realised the sum of Rs. 45,262.50 nP., she capitalised that right and converted it into money. The value of the right may be measured by setting off against the appreciation in the face value of the new shares the depreciation in the old shares and, consequently, to the extent of the depreciation in the value of her original shares, she must be deemed to have invested money in acquisition of this new right. A concomitant of the acquisition of the new right was the depreciation in the value of the old shares and the deprecations may, in a commercial sense, be deemed to be the value of the right which she subsequently transferred. The capital gain made by her would, therefore be represented only by the difference between the money realised on transfer of the right, and the amount which she lost in the form of depreciation of her original shares in order to acquire that right. Looked at in this manner also, it is clear that the net capital gain by her would be represented by the amount realised by her on transferring the right to receive new shares, after deducting therefrom the amount of depreciation in the value of her original shares, being the loss incurred by her in her capital asset in the transaction in which she acquired the right for which she realised the cash. This method of looking at the transaction also leads to the same conclusion which we have indicated in the preceding paragraph5. The view that we have taken finds support from the principle laid down by this Court for valuation of bonus shares issued by a company to holders of original shares in the case of Commissioner of, Bihar v. Dalmia Investment Co. Ltd.,2 ITR 567 : (AIR 1964 SC 1464 )
|
M/S. I.C.D.S. Ltd Vs. Commissioner Of Income Tax | issued in respect of a motor vehicle, unless such person pays the prescribed fee:Provided further that a fresh certificate of registration issued in respect of a motor vehicle, other than a transport vehicle, shall be valid only for the remaining period for which the certificate cancelled under this sub-section would have been in force.” Therefore, the MV Act mandates that during the period of lease, the vehicle be registered, in the certificate of registration, in the name of the lessee and, on conclusion of the lease period, the vehicle be registered in the name of lessor as owner. The Section leaves no choice to the lessor but to allow the vehicle to be registered in the name of the lessee Thus, no inference can be drawn from the registration certificate as to ownership of the legal title of the vehicle; and (iii) if the lessee was in fact the owner, he would have claimed depreciation on the vehicles, which, as specifically recorded in the order of the Appellate Tribunal, was not done. It would be a strange situation to have no claim of depreciation in case of a particular depreciable asset due to a vacuum of ownership. As afore- noted, the entire lease rent received by the assessee is assessed as business income in its hands and the entire lease rent paid by the lessee has been treated as deductible revenue expenditure in the hands of the lessee. This reaffirms the position that the assessee is in fact the owner of the vehicle, in so far as Section 32 of the Act is concerned.27. Finally, learned senior counsel appearing on behalf of the assessee also pointed out a large number of cases, accepted and unchallenged by the Revenue, wherein the lessor has been held as the owner of an asset in a lease agreement. [Commissioner of Income-Tax Vs. A.M. Constructions [(1999) 238 ITR 775 (AP)]; Commissioner of Income- Tax Vs. Bansal Credits Ltd. [(2003) 259 ITR 69 (Del) ]; Commissioner of Income-Tax Vs. M.G.F. (India) Ltd. [(2006) 285 ITR 142 (Del.)]; Commissioner of Income-Tax Vs. Annamalai Finance Ltd. [(2005) 275 ITR 451 (Mad)]]. In each of these cases, the leasing company was held to be the owner of the asset, and accordingly held entitled to claim depreciation and also at the higher rate applicable on the asset hired out. We are in complete agreement with these decisions on the said point.28. There was some controversy regarding the invoices issued by the manufacturer – whether they were issued in the name of the lessee or the lessor. For the view we have taken above, we deem it unnecessary to go into the said question as it is of no consequence to our final opinion on the main issue. From a perusal of the lease agreement and other related factors, as discussed above, we are satisfied of the assessee’s ownership of the trucks in question.29. Therefore, in the facts of the present case, we hold that the lessor i.e. the assessee is the owner of the vehicles. As the owner, it used the assets in the course of its business, satisfying both requirements of Section 32 of the Act and hence, is entitled to claim depreciation in respect of additions made to the trucks, which were leased out.30. With regard to the claim of the assessee for a higher rate of depreciation, the import of the same term “purposes of business”, used in the second proviso to Section 32(1) of the Act gains significance. We are of the view that the interpretation of these words would not be any different from that which we ascribed to them earlier, under Section 32 (1) of the Act. Therefore, the assessee fulfills even the requirements for a claim of a higher rate of depreciation, and hence is entitled to the same. 31. In this regard, we endorse the following observations of the Tribunal, which clinch the issue in favour of the assessee. “15. The CBDT vide Circular No. 652, dated 14-6-1993 has clarified that the higher rate of 40% in case of lorries etc. plying on hire shall not apply if the vehicle is used in a non- hiring business of the assessee. This circular cannot be read out of its context to deny higher appreciation in case of leased vehicles when the actual use is in hiring business.(Emphasis supplied)Perhaps, the author meant that when the actual use of the vehicle is in hire business, it is entitled for depreciation at a higher rate.*** *** ***39. The gist of the decision of the apex court in the case of Shaan Finance (P) Ltd. is that where the business of the assessee consists of hiring out machinery and/ or where the income derived by the assessee from the hiring of such machinery is business income, the assessee must be considered as having used the machinery for the purpose of business.40. In the present case, the business of the assessee consists of hiring out machinery and trucks where the income derived by the assessee from hiring of such machinery is business income. Therefore, the assessee- appellant viz. ICDS should be considered as having used the trucks for the purpose of business.41. It was further brought to our notice that the Hon’ble Karnataka High Court in its judgment in ITRC No. 789 of 1998 for the asst. year 1986- 87 in the case of the assessee- appellant itself (viz. ICDS) has already decided the issue in question in favour of the assessee, confirming the decision of the CIT (A) and the ITAT holding that the assessee company is entitled to the investment allowance and additional depreciation. In this judgment of the Karnataka High Court the decision of the Supreme Court reported in 231 ITR 308 was relied upon. Therefore we have no hesitation to hold that the appellant- company is entitled to a higher rate of depreciation at 50% on the trucks leased out by it. We therefore, reverse the orders of the CIT (Appeals) on this issue.” | 1[ds]26. We do not find merit in theargument for more than oneSection 2(30) is a deeming provision that creates a legal fiction of ownership in favour of lessee only for the purpose of the MV Act. It defines ownership for the subsequent provisions of the MV Act, not for the purpose of law in general. It serves more as a guide to what terms in the MV Act mean. Therefore, if the MV Act at any point uses the term owner in any Section, it means the one in whose name the vehicle is registered and in the case of a lease agreement, the lessee. That is all. It is not a statement of law on ownership in general. Perhaps, the repository of a general statement of law on ownership may be the Sale of Goods Act;(ii) Section 2(30) of the MV Act must be read in consonance with(4) and (5) of Section 51 of the MV Act, which were referred to by Mr. S. Ganesh, learned senior counsel for the assessee. The provisions read asNo entry regarding the transfer of ownership of any motor vehicle which is held under the said agreement shall be made in the certificate of registration except with the written consent of the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the said agreement.(5) Where the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the said agreement, satisfies the registering authority that he has taken possession of the vehicle from the registered owner owing to the default of the registered owner under the provisions of the said agreement and that the registered owner refuses to deliver the certificate of registration or has absconded, such authority may, after giving the registered owner an opportunity to make such representation as he may wish to make (by sending to him a notice by registered post acknowledgment due at his address entered in the certificate of registration) and notwithstanding that the certificate of registration is not produced before it, cancel the certificate and issue a fresh certificate of registration in the name of the person with whom the registered owner has entered into the said agreement:Provided that a fresh certificate of registration shall not be issued in respect of a motor vehicle, unless such person pays the prescribed fee:Provided further that a fresh certificate of registration issued in respect of a motor vehicle, other than a transport vehicle, shall be valid only for the remaining period for which the certificate cancelled under thiswould have been inthe MV Act mandates that during the period of lease, the vehicle be registered, in the certificate of registration, in the name of the lessee and, on conclusion of the lease period, the vehicle be registered in the name of lessor as owner. The Section leaves no choice to the lessor but to allow the vehicle to be registered in the name of the lessee Thus, no inference can be drawn from the registration certificate as to ownership of the legal title of the vehicle; and (iii) if the lessee was in fact the owner, he would have claimed depreciation on the vehicles, which, as specifically recorded in the order of the Appellate Tribunal, was not done. It would be a strange situation to have no claim of depreciation in case of a particular depreciable asset due to a vacuum of ownership. As aforenoted, the entire lease rent received by the assessee is assessed as business income in its hands and the entire lease rent paid by the lessee has been treated as deductible revenue expenditure in the hands of the lessee. This reaffirms the position that the assessee is in fact the owner of the vehicle, in so far as Section 32 of the Act is concerned.27. Finally, learned senior counsel appearing on behalf of the assessee also pointed out a large number of cases, accepted and unchallenged by the Revenue, wherein the lessor has been held as the owner of an asset in a lease agreement. [Commissioner ofVs. A.M. Constructions [(1999) 238 ITR 775 (AP)]; Commissioner of IncomeTax Vs. Bansal Credits Ltd. [(2003) 259 ITR 69 (Del) ]; Commissioner ofVs. M.G.F. (India) Ltd. [(2006) 285 ITR 142 (Del.)]; Commissioner ofVs. Annamalai Finance Ltd. [(2005) 275 ITR 451 (Mad)]]. In each of these cases, the leasing company was held to be the owner of the asset, and accordingly held entitled to claim depreciation and also at the higher rate applicable on the asset hired out. We are in complete agreement with these decisions on the said point.28. There was some controversy regarding the invoices issued by the manufacturer – whether they were issued in the name of the lessee or the lessor. For the view we have taken above, we deem it unnecessary to go into the said question as it is of no consequence to our final opinion on the main issue. From a perusal of the lease agreement and other related factors, as discussed above, we are satisfied of theownership of the trucks in question.29. Therefore, in the facts of the present case, we hold that the lessor i.e. the assessee is the owner of the vehicles. As the owner, it used the assets in the course of its business, satisfying both requirements of Section 32 of the Act and hence, is entitled to claim depreciation in respect of additions made to the trucks, which were leased out.30. With regard to the claim of the assessee for a higher rate of depreciation, the import of the same termused in the second proviso to Section 32(1) of the Act gains significance. We are of the view that the interpretation of these words would not be any different from that which we ascribed to them earlier, under Section 32 (1) of the Act. Therefore, the assessee fulfills even the requirements for a claim of a higher rate of depreciation, and hence is entitled to the same. | 1 | 7,127 | 1,153 | ### 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:
issued in respect of a motor vehicle, unless such person pays the prescribed fee:Provided further that a fresh certificate of registration issued in respect of a motor vehicle, other than a transport vehicle, shall be valid only for the remaining period for which the certificate cancelled under this sub-section would have been in force.” Therefore, the MV Act mandates that during the period of lease, the vehicle be registered, in the certificate of registration, in the name of the lessee and, on conclusion of the lease period, the vehicle be registered in the name of lessor as owner. The Section leaves no choice to the lessor but to allow the vehicle to be registered in the name of the lessee Thus, no inference can be drawn from the registration certificate as to ownership of the legal title of the vehicle; and (iii) if the lessee was in fact the owner, he would have claimed depreciation on the vehicles, which, as specifically recorded in the order of the Appellate Tribunal, was not done. It would be a strange situation to have no claim of depreciation in case of a particular depreciable asset due to a vacuum of ownership. As afore- noted, the entire lease rent received by the assessee is assessed as business income in its hands and the entire lease rent paid by the lessee has been treated as deductible revenue expenditure in the hands of the lessee. This reaffirms the position that the assessee is in fact the owner of the vehicle, in so far as Section 32 of the Act is concerned.27. Finally, learned senior counsel appearing on behalf of the assessee also pointed out a large number of cases, accepted and unchallenged by the Revenue, wherein the lessor has been held as the owner of an asset in a lease agreement. [Commissioner of Income-Tax Vs. A.M. Constructions [(1999) 238 ITR 775 (AP)]; Commissioner of Income- Tax Vs. Bansal Credits Ltd. [(2003) 259 ITR 69 (Del) ]; Commissioner of Income-Tax Vs. M.G.F. (India) Ltd. [(2006) 285 ITR 142 (Del.)]; Commissioner of Income-Tax Vs. Annamalai Finance Ltd. [(2005) 275 ITR 451 (Mad)]]. In each of these cases, the leasing company was held to be the owner of the asset, and accordingly held entitled to claim depreciation and also at the higher rate applicable on the asset hired out. We are in complete agreement with these decisions on the said point.28. There was some controversy regarding the invoices issued by the manufacturer – whether they were issued in the name of the lessee or the lessor. For the view we have taken above, we deem it unnecessary to go into the said question as it is of no consequence to our final opinion on the main issue. From a perusal of the lease agreement and other related factors, as discussed above, we are satisfied of the assessee’s ownership of the trucks in question.29. Therefore, in the facts of the present case, we hold that the lessor i.e. the assessee is the owner of the vehicles. As the owner, it used the assets in the course of its business, satisfying both requirements of Section 32 of the Act and hence, is entitled to claim depreciation in respect of additions made to the trucks, which were leased out.30. With regard to the claim of the assessee for a higher rate of depreciation, the import of the same term “purposes of business”, used in the second proviso to Section 32(1) of the Act gains significance. We are of the view that the interpretation of these words would not be any different from that which we ascribed to them earlier, under Section 32 (1) of the Act. Therefore, the assessee fulfills even the requirements for a claim of a higher rate of depreciation, and hence is entitled to the same. 31. In this regard, we endorse the following observations of the Tribunal, which clinch the issue in favour of the assessee. “15. The CBDT vide Circular No. 652, dated 14-6-1993 has clarified that the higher rate of 40% in case of lorries etc. plying on hire shall not apply if the vehicle is used in a non- hiring business of the assessee. This circular cannot be read out of its context to deny higher appreciation in case of leased vehicles when the actual use is in hiring business.(Emphasis supplied)Perhaps, the author meant that when the actual use of the vehicle is in hire business, it is entitled for depreciation at a higher rate.*** *** ***39. The gist of the decision of the apex court in the case of Shaan Finance (P) Ltd. is that where the business of the assessee consists of hiring out machinery and/ or where the income derived by the assessee from the hiring of such machinery is business income, the assessee must be considered as having used the machinery for the purpose of business.40. In the present case, the business of the assessee consists of hiring out machinery and trucks where the income derived by the assessee from hiring of such machinery is business income. Therefore, the assessee- appellant viz. ICDS should be considered as having used the trucks for the purpose of business.41. It was further brought to our notice that the Hon’ble Karnataka High Court in its judgment in ITRC No. 789 of 1998 for the asst. year 1986- 87 in the case of the assessee- appellant itself (viz. ICDS) has already decided the issue in question in favour of the assessee, confirming the decision of the CIT (A) and the ITAT holding that the assessee company is entitled to the investment allowance and additional depreciation. In this judgment of the Karnataka High Court the decision of the Supreme Court reported in 231 ITR 308 was relied upon. Therefore we have no hesitation to hold that the appellant- company is entitled to a higher rate of depreciation at 50% on the trucks leased out by it. We therefore, reverse the orders of the CIT (Appeals) on this issue.”
### Response:
1
### Explanation:
oneSection 2(30) is a deeming provision that creates a legal fiction of ownership in favour of lessee only for the purpose of the MV Act. It defines ownership for the subsequent provisions of the MV Act, not for the purpose of law in general. It serves more as a guide to what terms in the MV Act mean. Therefore, if the MV Act at any point uses the term owner in any Section, it means the one in whose name the vehicle is registered and in the case of a lease agreement, the lessee. That is all. It is not a statement of law on ownership in general. Perhaps, the repository of a general statement of law on ownership may be the Sale of Goods Act;(ii) Section 2(30) of the MV Act must be read in consonance with(4) and (5) of Section 51 of the MV Act, which were referred to by Mr. S. Ganesh, learned senior counsel for the assessee. The provisions read asNo entry regarding the transfer of ownership of any motor vehicle which is held under the said agreement shall be made in the certificate of registration except with the written consent of the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the said agreement.(5) Where the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the said agreement, satisfies the registering authority that he has taken possession of the vehicle from the registered owner owing to the default of the registered owner under the provisions of the said agreement and that the registered owner refuses to deliver the certificate of registration or has absconded, such authority may, after giving the registered owner an opportunity to make such representation as he may wish to make (by sending to him a notice by registered post acknowledgment due at his address entered in the certificate of registration) and notwithstanding that the certificate of registration is not produced before it, cancel the certificate and issue a fresh certificate of registration in the name of the person with whom the registered owner has entered into the said agreement:Provided that a fresh certificate of registration shall not be issued in respect of a motor vehicle, unless such person pays the prescribed fee:Provided further that a fresh certificate of registration issued in respect of a motor vehicle, other than a transport vehicle, shall be valid only for the remaining period for which the certificate cancelled under thiswould have been inthe MV Act mandates that during the period of lease, the vehicle be registered, in the certificate of registration, in the name of the lessee and, on conclusion of the lease period, the vehicle be registered in the name of lessor as owner. The Section leaves no choice to the lessor but to allow the vehicle to be registered in the name of the lessee Thus, no inference can be drawn from the registration certificate as to ownership of the legal title of the vehicle; and (iii) if the lessee was in fact the owner, he would have claimed depreciation on the vehicles, which, as specifically recorded in the order of the Appellate Tribunal, was not done. It would be a strange situation to have no claim of depreciation in case of a particular depreciable asset due to a vacuum of ownership. As aforenoted, the entire lease rent received by the assessee is assessed as business income in its hands and the entire lease rent paid by the lessee has been treated as deductible revenue expenditure in the hands of the lessee. This reaffirms the position that the assessee is in fact the owner of the vehicle, in so far as Section 32 of the Act is concerned.27. Finally, learned senior counsel appearing on behalf of the assessee also pointed out a large number of cases, accepted and unchallenged by the Revenue, wherein the lessor has been held as the owner of an asset in a lease agreement. [Commissioner ofVs. A.M. Constructions [(1999) 238 ITR 775 (AP)]; Commissioner of IncomeTax Vs. Bansal Credits Ltd. [(2003) 259 ITR 69 (Del) ]; Commissioner ofVs. M.G.F. (India) Ltd. [(2006) 285 ITR 142 (Del.)]; Commissioner ofVs. Annamalai Finance Ltd. [(2005) 275 ITR 451 (Mad)]]. In each of these cases, the leasing company was held to be the owner of the asset, and accordingly held entitled to claim depreciation and also at the higher rate applicable on the asset hired out. We are in complete agreement with these decisions on the said point.28. There was some controversy regarding the invoices issued by the manufacturer – whether they were issued in the name of the lessee or the lessor. For the view we have taken above, we deem it unnecessary to go into the said question as it is of no consequence to our final opinion on the main issue. From a perusal of the lease agreement and other related factors, as discussed above, we are satisfied of theownership of the trucks in question.29. Therefore, in the facts of the present case, we hold that the lessor i.e. the assessee is the owner of the vehicles. As the owner, it used the assets in the course of its business, satisfying both requirements of Section 32 of the Act and hence, is entitled to claim depreciation in respect of additions made to the trucks, which were leased out.30. With regard to the claim of the assessee for a higher rate of depreciation, the import of the same termused in the second proviso to Section 32(1) of the Act gains significance. We are of the view that the interpretation of these words would not be any different from that which we ascribed to them earlier, under Section 32 (1) of the Act. Therefore, the assessee fulfills even the requirements for a claim of a higher rate of depreciation, and hence is entitled to the same.
|
R. Viswanathan Vs. R. Narayanaswamy Substituted By V.R. Ranganathan & Others | 14-A was as follow :"The Decree is not in accordance with the Judgment." 28. The records in the above appeal, as well as the connected appeal 104 of 1947-48 were inspected by the learned Judges of the High Court and they were satisfied that the above statements are contained in the memorandum of grounds accompanying the appeal. Paragraph 14 of the memorandum of appeal in R.A. 109 of 1947-48 clearly shows that though there was a common judgment in both the suits by the trial Court, a separate copy of the decree drawn up in O.S. 61-A of 1947 has been filed. That shows that as a fact, the certified copy of the decree in the said suit had been filed along with the appeal. It would not have been possible for the appellant therein to file a certified copy of the decree, unless the decree had been drawn up by the trial Court. The appellant who was a party in the said appeal, and on whom a copy of the memorandum of appeal must have been served, should have known about this recital therein. Notwithstanding that, he never raised any objection before the Full Bench of the Mysore High Court, which heard the appeal, that no degree copy has been filed. The further statement in ground 14-A, referred to above could not have been taken unless a decree copy had been made available to the appellant therein and filed along with the appeal. The specific plea is that the decree as drawn up by the trial Court in O.S. 61-A of 1947 is not in accordance with the judgment in the said suit. 29. The High Court office did not return the appeal, which would have been the case, if a decree copy had not been filed. There is an endorsement, as noted by the High Court, in the memorandum of appeal made by the Receiving Clerk of the Mysore High Court that a court-fee of Re. 1 has been paid on the "copy". The word "copy", it is not controverted, refers to the decree copy on which a court fee of Re. 1 had to be affixed. There is also an additional circumstance that in the Schedule of the cost attached to the degree in R.A. 109 of 1947-48, the sum of Re. 1 paid on the decree copy has been made payable to the appellant therein, and it has also been included along with other items. 30. There is also another circumstance to be noted. In the judgment of Ramaswami, J. of the Madras High Court, when exercising original jurisdiction in respect of the application for Probate and the suit filed by the members of the family, there is a reference to the Full Bench judgment of the Mysore High Court. It has been noted that though a common judgment has been delivered by the trial Court in the two suits, separate decrees have been drafted therein. This observation clearly shows that even at that time it has been noted by the Madras High Court that a separate decree has been drawn up in O.S. 61-A of 1947. 31. All the above circumstances clearly show that a decree had been drafted in O.S. 61-A of 1947 and a certified copy of the same was filed by the Executors in R.A. 109 of 1947-48. Mere endorsement of the Ministerial Officer and the order of the District Judge relied on by the appellant, do not, as rightly pointed out by the High Court, afford any assistance to the appellant excepting to create some confusion regarding the facts. We are in agreement with the finding of the learned Judges that appeal filed by the Executors, namely, R.A. 109 of 1947-48 was accompanied by a certified copy of the decree in O.S. 61-A of 1947 and therefore, the decree of the High Court cannot be treated as a nullity. 32. The effect to non-filing of a certified copy of the decree as well as the procedure to be adopted in respect of such appeals, have been considered by this Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava ((1961) 2 SCR 918 : AIR 1961 SC 832 : (1963) 2 SCJ 11). Phoolchand v. Gopal Lal ((1967) 3 SCR 153 : AIR 1967 SC 1470 : (1968) 2 SCJ 155), and Shakuntala Devi Jain v. Kuntal Kumari ((1969) 1 SCR 1006 : AIR 1969 SC 575 : (1969) 1 SCJ 912). As we have agreed with the finding of fact recorded by the High Court regarding the certified copy of the degree of the trial Court, having been filed, along with the appeal R.A. 109 of 1947-48, it is not necessary for us to deal in any great detail with the propositions laid down in the above decisions. 33. Regarding the second contention that there was no proper representation of the estate when the appeal 109 of 1947-48 was filed, in our opinion, this contention should not have been allowed to be raised by the appellant. This contention, even if accepted, is not one going to the root of the jurisdiction of the High Court to entertain the appeal so as to make the decree in appeal a nullity as claimed by the appellant. On the other hand, this is really a matter relating to merits which should have been raised during the hearing of the appeal. If the appeal was not maintainable, on any ground available in law, the appellant who was a party to the said appeal before the Mysore High Court, should have raised it at the proper stage and invited a decision on the same. The said question requires investigation into various facts. No doubt, the High Court in the present judgment has dealt with that contention and rejected the same holding that the estate was properly represented. As we are of the view that such a question should not have been allowed to be raised, it is not necessary for us to pursue this aspect further. | 0[ds]13. From the above narration of facts it will be seen that regarding the immovable properties situated within the State of Mysore and movable properties outside the said State, the full Bench decision of the Mysore High Court holding that the properties ared properties and that the will has effect, holds the field. On the other hand in respect of the immovable properties dealt with under the will and situated within the jurisdiction of the Madras High Court, in view of the decision of this court approving that of the Madras High Court, the position is that the will is not operative21. Mr. Somnatha Iyer, learned Counsel for the respondent has referred us to various circumstances to show that the appellant had at no stage raised the contention that the appeal R.A. 109 of8 has been filed without a certified copy of the decree in O.S.A of 1947. The counsel also urged that the members of the testators family including the appellant who were all parties, to the various proceedings never challenged the Full Bench judgment of the Mysore High Court that it is a nullity, on the ground that is now taken in I.A. 20. On the other hand, they have proceeded on the basis that the appeal by the High Court. The binding nature of that judgment was contested before the Madras High court only on the ground that it has become Coram Non Judice. Even the second contention that the executor who filed the appeal did not have a representative capacity was not raised by the appellant who was a party to the appeal; nor by any member of the family. That contention is one relating to the merits and it should have been raised at the time when the appeal was being disposed of by the Mysore High Court. None of these contentions, the counsel pointed out, was raised even before this Court in C.A. 277 of 195823. It is really on the basis of the above office not and the order of the District Judge, referred to above, that the appellant filed I.A. 20 seeking the reliefs mentioned earlier. The High Court has declined to give much importance to this office note as well as the order of the District Judge on the ground that the District Judge, who made the endorsement was not the Presiding Officer in the Cantonment Court in 1947 and that the Ministerial Officer, who had put up the note did not have personal knowledge about what happened in 1947. This reasoning of the High court is very strenuously attacked by Mr. Iyengar24. It is pertinent to note that at no stage prior to the filing of this I.A. 20, the appellant had pleaded that the Full Bench judgment of the Mysore High court is a nullity in view of the fact that no decree copy in O.S.A of 1947 was filed along with the memorandum of appeal. There are several circumstances to show that this plea of the appellant is an after though and has absolutely no foundation whatever on facts25. We will now briefly refer to the various circumstances which will clearly show that not only was a decree drawn up in O. s.A of 1947 and that a certified copy of the decree was also filed along with the appeal R.A. 109 of. We have already pointed out that the appellant never raised this plea in any of the proceedings, on the former occasions. His only attack against the judgment of the Full Bench of the Mysore High court was that it has become coram non judice31. All the above circumstances clearly show that a decree had been drafted in O.S.A of 1947 and a certified copy of the same was filed by the Executors in R.A. 109 of. Mere endorsement of the Ministerial Officer and the order of the District Judge relied on by the appellant, do not, as rightly pointed out by the High Court, afford any assistance to the appellant excepting to create some confusion regarding the facts. We are in agreement with the finding of the learned Judges that appeal filed by the Executors, namely, R.A. 109 of8 was accompanied by a certified copy of the decree in O.S.A of 1947 and therefore, the decree of the High Court cannot be treated as a nullity33. Regarding the second contention that there was no proper representation of the estate when the appeal 109 of8 was filed, in our opinion, this contention should not have been allowed to be raised by the appellant. This contention, even if accepted, is not one going to the root of the jurisdiction of the High Court to entertain the appeal so as to make the decree in appeal a nullity as claimed by the appellant. On the other hand, this is really a matter relating to merits which should have been raised during the hearing of the appeal. If the appeal was not maintainable, on any ground available in law, the appellant who was a party to the said appeal before the Mysore High Court, should have raised it at the proper stage and invited a decision on the same. The said question requires investigation into various facts. No doubt, the High Court in the present judgment has dealt with that contention and rejected the same holding that the estate was properly represented. As we are of the view that such a question should not have been allowed to be raised, it is not necessary for us to pursue this aspect further. | 0 | 4,959 | 992 | ### 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:
14-A was as follow :"The Decree is not in accordance with the Judgment." 28. The records in the above appeal, as well as the connected appeal 104 of 1947-48 were inspected by the learned Judges of the High Court and they were satisfied that the above statements are contained in the memorandum of grounds accompanying the appeal. Paragraph 14 of the memorandum of appeal in R.A. 109 of 1947-48 clearly shows that though there was a common judgment in both the suits by the trial Court, a separate copy of the decree drawn up in O.S. 61-A of 1947 has been filed. That shows that as a fact, the certified copy of the decree in the said suit had been filed along with the appeal. It would not have been possible for the appellant therein to file a certified copy of the decree, unless the decree had been drawn up by the trial Court. The appellant who was a party in the said appeal, and on whom a copy of the memorandum of appeal must have been served, should have known about this recital therein. Notwithstanding that, he never raised any objection before the Full Bench of the Mysore High Court, which heard the appeal, that no degree copy has been filed. The further statement in ground 14-A, referred to above could not have been taken unless a decree copy had been made available to the appellant therein and filed along with the appeal. The specific plea is that the decree as drawn up by the trial Court in O.S. 61-A of 1947 is not in accordance with the judgment in the said suit. 29. The High Court office did not return the appeal, which would have been the case, if a decree copy had not been filed. There is an endorsement, as noted by the High Court, in the memorandum of appeal made by the Receiving Clerk of the Mysore High Court that a court-fee of Re. 1 has been paid on the "copy". The word "copy", it is not controverted, refers to the decree copy on which a court fee of Re. 1 had to be affixed. There is also an additional circumstance that in the Schedule of the cost attached to the degree in R.A. 109 of 1947-48, the sum of Re. 1 paid on the decree copy has been made payable to the appellant therein, and it has also been included along with other items. 30. There is also another circumstance to be noted. In the judgment of Ramaswami, J. of the Madras High Court, when exercising original jurisdiction in respect of the application for Probate and the suit filed by the members of the family, there is a reference to the Full Bench judgment of the Mysore High Court. It has been noted that though a common judgment has been delivered by the trial Court in the two suits, separate decrees have been drafted therein. This observation clearly shows that even at that time it has been noted by the Madras High Court that a separate decree has been drawn up in O.S. 61-A of 1947. 31. All the above circumstances clearly show that a decree had been drafted in O.S. 61-A of 1947 and a certified copy of the same was filed by the Executors in R.A. 109 of 1947-48. Mere endorsement of the Ministerial Officer and the order of the District Judge relied on by the appellant, do not, as rightly pointed out by the High Court, afford any assistance to the appellant excepting to create some confusion regarding the facts. We are in agreement with the finding of the learned Judges that appeal filed by the Executors, namely, R.A. 109 of 1947-48 was accompanied by a certified copy of the decree in O.S. 61-A of 1947 and therefore, the decree of the High Court cannot be treated as a nullity. 32. The effect to non-filing of a certified copy of the decree as well as the procedure to be adopted in respect of such appeals, have been considered by this Court in Jagat Dhish Bhargava v. Jawahar Lal Bhargava ((1961) 2 SCR 918 : AIR 1961 SC 832 : (1963) 2 SCJ 11). Phoolchand v. Gopal Lal ((1967) 3 SCR 153 : AIR 1967 SC 1470 : (1968) 2 SCJ 155), and Shakuntala Devi Jain v. Kuntal Kumari ((1969) 1 SCR 1006 : AIR 1969 SC 575 : (1969) 1 SCJ 912). As we have agreed with the finding of fact recorded by the High Court regarding the certified copy of the degree of the trial Court, having been filed, along with the appeal R.A. 109 of 1947-48, it is not necessary for us to deal in any great detail with the propositions laid down in the above decisions. 33. Regarding the second contention that there was no proper representation of the estate when the appeal 109 of 1947-48 was filed, in our opinion, this contention should not have been allowed to be raised by the appellant. This contention, even if accepted, is not one going to the root of the jurisdiction of the High Court to entertain the appeal so as to make the decree in appeal a nullity as claimed by the appellant. On the other hand, this is really a matter relating to merits which should have been raised during the hearing of the appeal. If the appeal was not maintainable, on any ground available in law, the appellant who was a party to the said appeal before the Mysore High Court, should have raised it at the proper stage and invited a decision on the same. The said question requires investigation into various facts. No doubt, the High Court in the present judgment has dealt with that contention and rejected the same holding that the estate was properly represented. As we are of the view that such a question should not have been allowed to be raised, it is not necessary for us to pursue this aspect further.
### Response:
0
### Explanation:
13. From the above narration of facts it will be seen that regarding the immovable properties situated within the State of Mysore and movable properties outside the said State, the full Bench decision of the Mysore High Court holding that the properties ared properties and that the will has effect, holds the field. On the other hand in respect of the immovable properties dealt with under the will and situated within the jurisdiction of the Madras High Court, in view of the decision of this court approving that of the Madras High Court, the position is that the will is not operative21. Mr. Somnatha Iyer, learned Counsel for the respondent has referred us to various circumstances to show that the appellant had at no stage raised the contention that the appeal R.A. 109 of8 has been filed without a certified copy of the decree in O.S.A of 1947. The counsel also urged that the members of the testators family including the appellant who were all parties, to the various proceedings never challenged the Full Bench judgment of the Mysore High Court that it is a nullity, on the ground that is now taken in I.A. 20. On the other hand, they have proceeded on the basis that the appeal by the High Court. The binding nature of that judgment was contested before the Madras High court only on the ground that it has become Coram Non Judice. Even the second contention that the executor who filed the appeal did not have a representative capacity was not raised by the appellant who was a party to the appeal; nor by any member of the family. That contention is one relating to the merits and it should have been raised at the time when the appeal was being disposed of by the Mysore High Court. None of these contentions, the counsel pointed out, was raised even before this Court in C.A. 277 of 195823. It is really on the basis of the above office not and the order of the District Judge, referred to above, that the appellant filed I.A. 20 seeking the reliefs mentioned earlier. The High Court has declined to give much importance to this office note as well as the order of the District Judge on the ground that the District Judge, who made the endorsement was not the Presiding Officer in the Cantonment Court in 1947 and that the Ministerial Officer, who had put up the note did not have personal knowledge about what happened in 1947. This reasoning of the High court is very strenuously attacked by Mr. Iyengar24. It is pertinent to note that at no stage prior to the filing of this I.A. 20, the appellant had pleaded that the Full Bench judgment of the Mysore High court is a nullity in view of the fact that no decree copy in O.S.A of 1947 was filed along with the memorandum of appeal. There are several circumstances to show that this plea of the appellant is an after though and has absolutely no foundation whatever on facts25. We will now briefly refer to the various circumstances which will clearly show that not only was a decree drawn up in O. s.A of 1947 and that a certified copy of the decree was also filed along with the appeal R.A. 109 of. We have already pointed out that the appellant never raised this plea in any of the proceedings, on the former occasions. His only attack against the judgment of the Full Bench of the Mysore High court was that it has become coram non judice31. All the above circumstances clearly show that a decree had been drafted in O.S.A of 1947 and a certified copy of the same was filed by the Executors in R.A. 109 of. Mere endorsement of the Ministerial Officer and the order of the District Judge relied on by the appellant, do not, as rightly pointed out by the High Court, afford any assistance to the appellant excepting to create some confusion regarding the facts. We are in agreement with the finding of the learned Judges that appeal filed by the Executors, namely, R.A. 109 of8 was accompanied by a certified copy of the decree in O.S.A of 1947 and therefore, the decree of the High Court cannot be treated as a nullity33. Regarding the second contention that there was no proper representation of the estate when the appeal 109 of8 was filed, in our opinion, this contention should not have been allowed to be raised by the appellant. This contention, even if accepted, is not one going to the root of the jurisdiction of the High Court to entertain the appeal so as to make the decree in appeal a nullity as claimed by the appellant. On the other hand, this is really a matter relating to merits which should have been raised during the hearing of the appeal. If the appeal was not maintainable, on any ground available in law, the appellant who was a party to the said appeal before the Mysore High Court, should have raised it at the proper stage and invited a decision on the same. The said question requires investigation into various facts. No doubt, the High Court in the present judgment has dealt with that contention and rejected the same holding that the estate was properly represented. As we are of the view that such a question should not have been allowed to be raised, it is not necessary for us to pursue this aspect further.
|
Jain Engineering Company Vs. Collector of Customs, Bombay | issued on the self-same subject. This Notification which is dated 1-3-1986 came to be amended by Notification No. 208-Cus., dated 13-3-1986. The benefit of the exemption under these Notifications was initially denied to the appellants but came to be granted ultimately.3. The Customs Tariff Act was amended subsequently and a new Notification, this time bearing No. 69-Cus/87, came to be issued on 1-3-1987. The appellant claimed exemption under this Notification also which has not been granted yet. On this not being done, an approach was made to the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) which too did not grant this prayer of the appellant. Feeling aggrieved, this appeal has been filed under the provisions of Section 130E(b) of the Customs Act, 1962. ns 4. A perusal of the order of the Tribunal shows that it required the appellant to follow the hierarchy inasmuch as even the Collector had not taken a final decision in the matter and no assessment order refusing the exemption had been passed. It is because of this that the Tribunal held that it cannot pass any order relating to the claim of exemption inasmuch as the party which may get affected has not been given opportunity to put forth its ground. 5. Shri Dholakia, learned counsel for the appellant, contends that though there is no assessment order as such after refusing the exemption prayed for, the order of the Collector noted by the Tribunal would show that he had virtually refused the exemption; and so, it is fit case where in this proceeding itself this Court should decide the question raised by the appellant, instead of leaving it to agitate the matter before the Collector which, according to learned counsel, would serve no purpose in view of the stand taken by the Collector. 6. Let it be seen as to what is the stand of the Collector. This appears from the following observations made by him as noted at paragraph 11 of the Tribunals order :- "With reference to the claims made by M/s. Jain Engineering Co., Delhi, for extending the benefit in terms of Notification No. 69/87, dated 1-3-1987, I observe that this benefit flows to parts falling under heading 98.06. The statute i.e. the Customs Tariff Act, was amended w.e.f. 1-3-1987 and that in the statute both 84.09 and 98.06 are co-existing and in the matter gone into by the Honble Supreme Court there was no occasion to consider the changes effected in the statute, even though their order was dated September 1987. I do not accept the contention of the importer for benefit under Notification 69/87-Cus. in respect of parts which are not classifiable under Heading No. 98.06 of C.T.A. If the importer has any grievance with reference to classification of any parts or application or otherwise of Notification No. 69/87-Cus. or any other Notification, he is advised to agitate the matter before the competent assessing officer for his consideration. I hold that the request for extension of the benefit under Notification No. 69/87-Cus., dated 1-3-1987 does not flow directly from the decision and directions contained in the original order dated 18-9-1987 of the Honble Supreme Court which is the main judgment which has to be applied in deciding all the pending cases." * 7. The aforesaid shows that the view of the Collector was that the claim for exemption under Notification No. 67/87 did not flow directly from the decision of this Court. Shri Dholakia contends that the Collector was only technically right in taking this view because a close reading of this Courts aforesaid judgment would go to show that exemption under Notification No. 69-Cus/87 could not have been denied merely because under the Customs Tariff Act as amended Headings 84.09 and 98.06 co-exist inasmuch as Chapter 98 of the Act, if read in its entirety alongwith Notes 1 and 7 and Heading 98.06 would show that the fact that in the present classification the machinery parts are covered by 98.06 would not make any difference and the goods in question shall have to be taken to fall under 84.07 and 84.08, which headings under Notification No. 281-Cus/76 (which was the subject matter of this Courts examination in the aforesaid case) was 84.06. Shri Dholakia strenuously urges that the observation made by this Court in its earlier judgment that parts covered by Heading 84.06 will get benefit of exemption leaves no manner of doubt that benefit under Notification No. 69-Cus/87 has also to be given. 8. We have not felt inclined to express our view on the contention advanced by Shri Dholakia because there is no order of even the first assessing authority denying the exemption, de hors what was held by this Court in its aforesaid judgment. It is apparent that by this force of the aforesaid judgment alone, benefit of the exemption under Notification No. 69-Cus/87 cannot be claimed, though it may be that the view taken by this Court in the earlier appeal lends support to the contention of the assessee, if what has been provided in amended Chapter 98 is read as Shri Dholakia would like.9. The learned counsel presses for our decision on the point involved by referring to order dated 1-8-1989 (passed in the aforesaid appeal of this Court) by which the Collector was required to dispose of the claim of the appellant for exemption under the subsequent notification. This not having been done, it is urged that the appellants prayer in question may be considered by us in this proceeding itself, instead of requiring it to knock the door to the Collector again. It may be that the Collector should have finally disposed of this order. But he has not. In view of this, it may as well be that the Court has no jurisdiction to entertain the present appeal because of what has been held in Navin Chemicals Manufacturing and Trading Company Ltd. v. Collector of Customs, as there is yet no assessment for the period in question. So, we refrain. | 0[ds]4. A perusal of the order of the Tribunal shows that it required the appellant to follow the hierarchy inasmuch as even the Collector had not taken a final decision in the matter and no assessment order refusing the exemption had been passed. It is because of this that the Tribunal held that it cannot pass any order relating to the claim of exemption inasmuch as the party which may get affected has not been given opportunity to put forth its ground.We have not felt inclined to express our view on the contention advanced by Shri Dholakia because there is no order of even the first assessing authority denying the exemption, de hors what was held by this Court in its aforesaid judgment. It is apparent that by this force of the aforesaid judgment alone, benefit of the exemption under Notification No.cannot be claimed, though it may be that the view taken by this Court in the earlier appeal lends support to the contention of the assessee, if what has been provided in amended Chapter 98 is read as Shri Dholakia would like.9. The learned counsel presses for our decision on the point involved by referring to order dated(passed in the aforesaid appeal of this Court) by which the Collector was required to dispose of the claim of the appellant for exemption under the subsequent notification. This not having been done, it is urged that the appellants prayer in question may be considered by us in this proceeding itself, instead of requiring it to knock the door to the Collector again. It may be that the Collector should have finally disposed of this order. But he has not. In view of this, it may as well be that the Court has no jurisdiction to entertain the present appeal because of what has been held in Navin Chemicals Manufacturing and Trading Company Ltd. v. Collector of Customs, as there is yet no assessment for the period in question. So, we refrain. | 0 | 1,229 | 359 | ### 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:
issued on the self-same subject. This Notification which is dated 1-3-1986 came to be amended by Notification No. 208-Cus., dated 13-3-1986. The benefit of the exemption under these Notifications was initially denied to the appellants but came to be granted ultimately.3. The Customs Tariff Act was amended subsequently and a new Notification, this time bearing No. 69-Cus/87, came to be issued on 1-3-1987. The appellant claimed exemption under this Notification also which has not been granted yet. On this not being done, an approach was made to the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) which too did not grant this prayer of the appellant. Feeling aggrieved, this appeal has been filed under the provisions of Section 130E(b) of the Customs Act, 1962. ns 4. A perusal of the order of the Tribunal shows that it required the appellant to follow the hierarchy inasmuch as even the Collector had not taken a final decision in the matter and no assessment order refusing the exemption had been passed. It is because of this that the Tribunal held that it cannot pass any order relating to the claim of exemption inasmuch as the party which may get affected has not been given opportunity to put forth its ground. 5. Shri Dholakia, learned counsel for the appellant, contends that though there is no assessment order as such after refusing the exemption prayed for, the order of the Collector noted by the Tribunal would show that he had virtually refused the exemption; and so, it is fit case where in this proceeding itself this Court should decide the question raised by the appellant, instead of leaving it to agitate the matter before the Collector which, according to learned counsel, would serve no purpose in view of the stand taken by the Collector. 6. Let it be seen as to what is the stand of the Collector. This appears from the following observations made by him as noted at paragraph 11 of the Tribunals order :- "With reference to the claims made by M/s. Jain Engineering Co., Delhi, for extending the benefit in terms of Notification No. 69/87, dated 1-3-1987, I observe that this benefit flows to parts falling under heading 98.06. The statute i.e. the Customs Tariff Act, was amended w.e.f. 1-3-1987 and that in the statute both 84.09 and 98.06 are co-existing and in the matter gone into by the Honble Supreme Court there was no occasion to consider the changes effected in the statute, even though their order was dated September 1987. I do not accept the contention of the importer for benefit under Notification 69/87-Cus. in respect of parts which are not classifiable under Heading No. 98.06 of C.T.A. If the importer has any grievance with reference to classification of any parts or application or otherwise of Notification No. 69/87-Cus. or any other Notification, he is advised to agitate the matter before the competent assessing officer for his consideration. I hold that the request for extension of the benefit under Notification No. 69/87-Cus., dated 1-3-1987 does not flow directly from the decision and directions contained in the original order dated 18-9-1987 of the Honble Supreme Court which is the main judgment which has to be applied in deciding all the pending cases." * 7. The aforesaid shows that the view of the Collector was that the claim for exemption under Notification No. 67/87 did not flow directly from the decision of this Court. Shri Dholakia contends that the Collector was only technically right in taking this view because a close reading of this Courts aforesaid judgment would go to show that exemption under Notification No. 69-Cus/87 could not have been denied merely because under the Customs Tariff Act as amended Headings 84.09 and 98.06 co-exist inasmuch as Chapter 98 of the Act, if read in its entirety alongwith Notes 1 and 7 and Heading 98.06 would show that the fact that in the present classification the machinery parts are covered by 98.06 would not make any difference and the goods in question shall have to be taken to fall under 84.07 and 84.08, which headings under Notification No. 281-Cus/76 (which was the subject matter of this Courts examination in the aforesaid case) was 84.06. Shri Dholakia strenuously urges that the observation made by this Court in its earlier judgment that parts covered by Heading 84.06 will get benefit of exemption leaves no manner of doubt that benefit under Notification No. 69-Cus/87 has also to be given. 8. We have not felt inclined to express our view on the contention advanced by Shri Dholakia because there is no order of even the first assessing authority denying the exemption, de hors what was held by this Court in its aforesaid judgment. It is apparent that by this force of the aforesaid judgment alone, benefit of the exemption under Notification No. 69-Cus/87 cannot be claimed, though it may be that the view taken by this Court in the earlier appeal lends support to the contention of the assessee, if what has been provided in amended Chapter 98 is read as Shri Dholakia would like.9. The learned counsel presses for our decision on the point involved by referring to order dated 1-8-1989 (passed in the aforesaid appeal of this Court) by which the Collector was required to dispose of the claim of the appellant for exemption under the subsequent notification. This not having been done, it is urged that the appellants prayer in question may be considered by us in this proceeding itself, instead of requiring it to knock the door to the Collector again. It may be that the Collector should have finally disposed of this order. But he has not. In view of this, it may as well be that the Court has no jurisdiction to entertain the present appeal because of what has been held in Navin Chemicals Manufacturing and Trading Company Ltd. v. Collector of Customs, as there is yet no assessment for the period in question. So, we refrain.
### Response:
0
### Explanation:
4. A perusal of the order of the Tribunal shows that it required the appellant to follow the hierarchy inasmuch as even the Collector had not taken a final decision in the matter and no assessment order refusing the exemption had been passed. It is because of this that the Tribunal held that it cannot pass any order relating to the claim of exemption inasmuch as the party which may get affected has not been given opportunity to put forth its ground.We have not felt inclined to express our view on the contention advanced by Shri Dholakia because there is no order of even the first assessing authority denying the exemption, de hors what was held by this Court in its aforesaid judgment. It is apparent that by this force of the aforesaid judgment alone, benefit of the exemption under Notification No.cannot be claimed, though it may be that the view taken by this Court in the earlier appeal lends support to the contention of the assessee, if what has been provided in amended Chapter 98 is read as Shri Dholakia would like.9. The learned counsel presses for our decision on the point involved by referring to order dated(passed in the aforesaid appeal of this Court) by which the Collector was required to dispose of the claim of the appellant for exemption under the subsequent notification. This not having been done, it is urged that the appellants prayer in question may be considered by us in this proceeding itself, instead of requiring it to knock the door to the Collector again. It may be that the Collector should have finally disposed of this order. But he has not. In view of this, it may as well be that the Court has no jurisdiction to entertain the present appeal because of what has been held in Navin Chemicals Manufacturing and Trading Company Ltd. v. Collector of Customs, as there is yet no assessment for the period in question. So, we refrain.
|
Indian Iron and Steel Company Limited v. Chhaganlal Marwari Vs. State of West Bengal | get the declaration of title to the disputed site and other reliefs sought in the suit. Order 21, Rule 35(1), CPC provides " (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property." * Sub-rules (2) and (3) are not material, hence omitted. Order 21, Rule 36 provides "Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous places on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property." * 4. Delivery of immovable property from the judgment-debtor should be obtained in execution of the decree under Order 21, Rules 35 and 36 within the period of limitation allowed under Article 136 of the Schedule to the Limitation Act, 1963 (Article 182 of Schedule 1 of old Act) without the need to file an independent suit for the purpose. It becomes, thereby, clear that after the expiry of the prescribed period, no independent suit for recovery of possession of the property which is the subject-matter of the decree, would lie. All questions arising between the parties or their representatives relating to the execution or satisfaction of that decree should also be determined by the executing court and not by a separate suit. However, the condition precedent for applicability of the said provision is that a person in possession should have derivative title of tenancy rights of the demised property, i. e. the subject-matter in execution through the judgment-debtor in that suit5. Admittedly, the respondent had not become the tenant of the appellant by attornment. Nor was he a sub-tenant. Though it was claimed that the 1st respondent came into possession of the site as a tenant from Mohammadin & Bros., the latter having migrated to East Pakistan, the tenancy rights which they had with the appellant had come to an end by the decree in the suit. Admittedly, there existed no relationship of landlord and tenant or sub-tenant between the appellant and the respondent. On the other hand, the respondent set up his own title either by oral purchase from Mohammadin Bros. or by adverse possession. Both the pleas were negatived by the courts below and the High Court did not go into that question, nor disturbed those findings. Therefore, the only question which requires examination is as to what is the nature of right of the respondent in the property (site and structures). By reason of his own plea of ownership by purchase or adverse possession, it was not open to him to claim any right as a tenant under Mohammadin Bros. or a sub-tenant of the appellant. His tenancy rights with Mohammadin Bros. having been merged into his ownership right, he denied himself of the right under Section 47 read with Order 21 Rule 36, CPC. In these circumstances Order 21 Rule 36 is inapplicable to the case of respondent, nor is he entitled to take aid of the inexecutability of the decree made in Title Suit No. 76 of 1953. The High Court was, therefore, in error, in assuming that the respondent has been continuing as a tenant and, therefore, Order 21 Rule 36, CPC and Section 47 CPC stood in the way of the appellant to have the declaration of title and possession sought for. We are of the considered opinion that on the factual matrix of the case, the approach adopted by the High Court is wholly unsustainable. The further finding of the High Court that Section 70 of the West Bengal Non-Agricultural Tenancy Act impedes execution of the decree is obviously erroneous. The condition precedent to apply Section 70 is that the respondent should be a tenant and that there should be a decree of eviction by the civil court pursuant to which the tenant should be ejected. Since the respondent did not claim the right of tenancy under the appellant, Section 70 was clearly inapplicable. Accordingly we hold that the decree in T. S. No. 76 of 1953 is not of any consequence. The appellant as an owner of the disputed site, is, therefore, entitled to the declaration of title as prayed for and the consequential reliefs. The suit as decreed by the appellate court is, therefore, legal and is accordingly confirmed6. However, in view of the fact that there are certain structures existing on the disputed site to which the appellant cannot lay any claim, a reasonable compensation for removal of the structures should be determined. It is stated that in terms of the final decree a sum of Rs. 1390 was already deposited. If that amount is available, it is open to the respondent to withdraw the same from the trial court. Even otherwise, the appellant, shall pay a sum of Rs. 5000 to the respondent towards the value of structures, if the respondent files the usual undertaking before this Court that he and his tenants or anybody else would vacate the suit premises within the period of four months from today. The undertaking should be signed by him as well as by all the tenants whom he has inducted into the suit premises within a period of six weeks from today. Failure on the part of respondent to give an undertaking and affidavits, shall disentitle him to get Rs. 5000 or Rs. 1390 and this conditional order shall stand vacated and a preliminary decree for mesne profits from three years prior to the date of the suit would be passed. | 1[ds]4. Delivery of immovable property from theshould be obtained in execution of the decree under Order 21, Rules 35 and 36 within the period of limitation allowed under Article 136 of the Schedule to the Limitation Act, 1963 (Article 182 of Schedule 1 of old Act) without the need to file an independent suit for the purpose. It becomes, thereby, clear that after the expiry of the prescribed period, no independent suit for recovery of possession of the property which is theof the decree, would lie. All questions arising between the parties or their representatives relating to the execution or satisfaction of that decree should also be determined by the executing court and not by a separate suit. However, the condition precedent for applicability of the said provision is that a person in possession should have derivative title of tenancy rights of the demised property, i. e. thein execution through thein that suit5. Admittedly, the respondent had not become the tenant of the appellant by attornment. Nor was he aThough it was claimed that the 1st respondent came into possession of the site as a tenant from MohammadinBros., the latter having migrated to East Pakistan, the tenancy rights which they had with the appellant had come to an end by the decree in the suit. Admittedly, there existed no relationship of landlord and tenant orbetween the appellant and the respondent. On the other hand, the respondent set up his own title either by oral purchase from Mohammadin Bros. or by adverse possession. Both the pleas were negatived by the courts below and the High Court did not go into that question, nor disturbed those findings. Therefore, the only question which requires examination is as to what is the nature of right of the respondent in the property (site and structures). By reason of his own plea of ownership by purchase or adverse possession, it was not open to him to claim any right as a tenant under Mohammadin Bros. or aof the appellant. His tenancy rights with Mohammadin Bros. having been merged into his ownership right, he denied himself of the right under Section 47 read with Order 21 Rule 36, CPC. In these circumstances Order 21 Rule 36 is inapplicable to the case of respondent, nor is he entitled to take aid of the inexecutability of the decree made in Title Suit No. 76 of 1953. The High Court was, therefore, in error, in assuming that the respondent has been continuing as a tenant and, therefore, Order 21 Rule 36, CPC and Section 47 CPC stood in the way of the appellant to have the declaration of title and possession sought for. We are of the considered opinion that on the factual matrix of the case, the approach adopted by the High Court is wholly unsustainable. The further finding of the High Court that Section 70 of the West BengalTenancy Act impedes execution of the decree is obviously erroneous. The condition precedent to apply Section 70 is that the respondent should be a tenant and that there should be a decree of eviction by the civil court pursuant to which the tenant should be ejected. Since the respondent did not claim the right of tenancy under the appellant, Section 70 was clearly inapplicable. Accordingly we hold that the decree in T. S. No. 76 of 1953 is not of any consequence. The appellant as an owner of the disputed site, is, therefore, entitled to the declaration of title as prayed for and the consequential reliefs. The suit as decreed by the appellate court is, therefore, legal and is accordingly confirmed6. However, in view of the fact that there are certain structures existing on the disputed site to which the appellant cannot lay any claim, a reasonable compensation for removal of the structures should be determined. It is stated that in terms of the final decree a sum of Rs. 1390 was already deposited. If that amount is available, it is open to the respondent to withdraw the same from the trial court. Even otherwise, the appellant, shall pay a sum of Rs. 5000 to the respondent towards the value of structures, if the respondent files the usual undertaking before this Court that he and his tenants or anybody else would vacate the suit premises within the period of four months from today. The undertaking should be signed by him as well as by all the tenants whom he has inducted into the suit premises within a period of six weeks from today. Failure on the part of respondent to give an undertaking and affidavits, shall disentitle him to get Rs. 5000 or Rs. 1390 and this conditional order shall stand vacated and a preliminary decree for mesne profits from three years prior to the date of the suit would be passed. | 1 | 1,798 | 884 | ### 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:
get the declaration of title to the disputed site and other reliefs sought in the suit. Order 21, Rule 35(1), CPC provides " (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property." * Sub-rules (2) and (3) are not material, hence omitted. Order 21, Rule 36 provides "Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the court shall order delivery to be made by affixing a copy of the warrant in some conspicuous places on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property." * 4. Delivery of immovable property from the judgment-debtor should be obtained in execution of the decree under Order 21, Rules 35 and 36 within the period of limitation allowed under Article 136 of the Schedule to the Limitation Act, 1963 (Article 182 of Schedule 1 of old Act) without the need to file an independent suit for the purpose. It becomes, thereby, clear that after the expiry of the prescribed period, no independent suit for recovery of possession of the property which is the subject-matter of the decree, would lie. All questions arising between the parties or their representatives relating to the execution or satisfaction of that decree should also be determined by the executing court and not by a separate suit. However, the condition precedent for applicability of the said provision is that a person in possession should have derivative title of tenancy rights of the demised property, i. e. the subject-matter in execution through the judgment-debtor in that suit5. Admittedly, the respondent had not become the tenant of the appellant by attornment. Nor was he a sub-tenant. Though it was claimed that the 1st respondent came into possession of the site as a tenant from Mohammadin & Bros., the latter having migrated to East Pakistan, the tenancy rights which they had with the appellant had come to an end by the decree in the suit. Admittedly, there existed no relationship of landlord and tenant or sub-tenant between the appellant and the respondent. On the other hand, the respondent set up his own title either by oral purchase from Mohammadin Bros. or by adverse possession. Both the pleas were negatived by the courts below and the High Court did not go into that question, nor disturbed those findings. Therefore, the only question which requires examination is as to what is the nature of right of the respondent in the property (site and structures). By reason of his own plea of ownership by purchase or adverse possession, it was not open to him to claim any right as a tenant under Mohammadin Bros. or a sub-tenant of the appellant. His tenancy rights with Mohammadin Bros. having been merged into his ownership right, he denied himself of the right under Section 47 read with Order 21 Rule 36, CPC. In these circumstances Order 21 Rule 36 is inapplicable to the case of respondent, nor is he entitled to take aid of the inexecutability of the decree made in Title Suit No. 76 of 1953. The High Court was, therefore, in error, in assuming that the respondent has been continuing as a tenant and, therefore, Order 21 Rule 36, CPC and Section 47 CPC stood in the way of the appellant to have the declaration of title and possession sought for. We are of the considered opinion that on the factual matrix of the case, the approach adopted by the High Court is wholly unsustainable. The further finding of the High Court that Section 70 of the West Bengal Non-Agricultural Tenancy Act impedes execution of the decree is obviously erroneous. The condition precedent to apply Section 70 is that the respondent should be a tenant and that there should be a decree of eviction by the civil court pursuant to which the tenant should be ejected. Since the respondent did not claim the right of tenancy under the appellant, Section 70 was clearly inapplicable. Accordingly we hold that the decree in T. S. No. 76 of 1953 is not of any consequence. The appellant as an owner of the disputed site, is, therefore, entitled to the declaration of title as prayed for and the consequential reliefs. The suit as decreed by the appellate court is, therefore, legal and is accordingly confirmed6. However, in view of the fact that there are certain structures existing on the disputed site to which the appellant cannot lay any claim, a reasonable compensation for removal of the structures should be determined. It is stated that in terms of the final decree a sum of Rs. 1390 was already deposited. If that amount is available, it is open to the respondent to withdraw the same from the trial court. Even otherwise, the appellant, shall pay a sum of Rs. 5000 to the respondent towards the value of structures, if the respondent files the usual undertaking before this Court that he and his tenants or anybody else would vacate the suit premises within the period of four months from today. The undertaking should be signed by him as well as by all the tenants whom he has inducted into the suit premises within a period of six weeks from today. Failure on the part of respondent to give an undertaking and affidavits, shall disentitle him to get Rs. 5000 or Rs. 1390 and this conditional order shall stand vacated and a preliminary decree for mesne profits from three years prior to the date of the suit would be passed.
### Response:
1
### Explanation:
4. Delivery of immovable property from theshould be obtained in execution of the decree under Order 21, Rules 35 and 36 within the period of limitation allowed under Article 136 of the Schedule to the Limitation Act, 1963 (Article 182 of Schedule 1 of old Act) without the need to file an independent suit for the purpose. It becomes, thereby, clear that after the expiry of the prescribed period, no independent suit for recovery of possession of the property which is theof the decree, would lie. All questions arising between the parties or their representatives relating to the execution or satisfaction of that decree should also be determined by the executing court and not by a separate suit. However, the condition precedent for applicability of the said provision is that a person in possession should have derivative title of tenancy rights of the demised property, i. e. thein execution through thein that suit5. Admittedly, the respondent had not become the tenant of the appellant by attornment. Nor was he aThough it was claimed that the 1st respondent came into possession of the site as a tenant from MohammadinBros., the latter having migrated to East Pakistan, the tenancy rights which they had with the appellant had come to an end by the decree in the suit. Admittedly, there existed no relationship of landlord and tenant orbetween the appellant and the respondent. On the other hand, the respondent set up his own title either by oral purchase from Mohammadin Bros. or by adverse possession. Both the pleas were negatived by the courts below and the High Court did not go into that question, nor disturbed those findings. Therefore, the only question which requires examination is as to what is the nature of right of the respondent in the property (site and structures). By reason of his own plea of ownership by purchase or adverse possession, it was not open to him to claim any right as a tenant under Mohammadin Bros. or aof the appellant. His tenancy rights with Mohammadin Bros. having been merged into his ownership right, he denied himself of the right under Section 47 read with Order 21 Rule 36, CPC. In these circumstances Order 21 Rule 36 is inapplicable to the case of respondent, nor is he entitled to take aid of the inexecutability of the decree made in Title Suit No. 76 of 1953. The High Court was, therefore, in error, in assuming that the respondent has been continuing as a tenant and, therefore, Order 21 Rule 36, CPC and Section 47 CPC stood in the way of the appellant to have the declaration of title and possession sought for. We are of the considered opinion that on the factual matrix of the case, the approach adopted by the High Court is wholly unsustainable. The further finding of the High Court that Section 70 of the West BengalTenancy Act impedes execution of the decree is obviously erroneous. The condition precedent to apply Section 70 is that the respondent should be a tenant and that there should be a decree of eviction by the civil court pursuant to which the tenant should be ejected. Since the respondent did not claim the right of tenancy under the appellant, Section 70 was clearly inapplicable. Accordingly we hold that the decree in T. S. No. 76 of 1953 is not of any consequence. The appellant as an owner of the disputed site, is, therefore, entitled to the declaration of title as prayed for and the consequential reliefs. The suit as decreed by the appellate court is, therefore, legal and is accordingly confirmed6. However, in view of the fact that there are certain structures existing on the disputed site to which the appellant cannot lay any claim, a reasonable compensation for removal of the structures should be determined. It is stated that in terms of the final decree a sum of Rs. 1390 was already deposited. If that amount is available, it is open to the respondent to withdraw the same from the trial court. Even otherwise, the appellant, shall pay a sum of Rs. 5000 to the respondent towards the value of structures, if the respondent files the usual undertaking before this Court that he and his tenants or anybody else would vacate the suit premises within the period of four months from today. The undertaking should be signed by him as well as by all the tenants whom he has inducted into the suit premises within a period of six weeks from today. Failure on the part of respondent to give an undertaking and affidavits, shall disentitle him to get Rs. 5000 or Rs. 1390 and this conditional order shall stand vacated and a preliminary decree for mesne profits from three years prior to the date of the suit would be passed.
|
State Of Jharkhand Vs. M/S. La Opala R.G. Ltd | and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction… 21. This Court in Gammon (I) Ltd. v. Commr. of Customs, (2011) 12 SCC 499 while rejecting the plea of the appellant that the exemption notification should receive a liberal construction to further the object underlying it relied upon the decision of a Three-Judge Bench of this Court in Novopan India Ltd., which stated the aforesaid principle and the object behind adopting literal interpretation in determining eligibility for claiming exemption or exception from tax as follows: 16. …The principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee—assuming that the said principle is good and sound—does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions viz. each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. CCE and Customs that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification i.e. by the plain terms of the exemption. (emphasis supplied) 22. In CCE v. Mahaan Dairies this Court has observed that: 8. It is settled law that in order to claim benefit of a notification, a party must strictly comply with the terms of the notification. If on wording of the notification the benefit is not available then by stretching the words of the notification or by adding words to the notification benefit cannot be conferred. 23. CCE v. Bhalla Enterprises laid down a proposition that notification has to be construed on the basis of the language used. A similar view has been expressed by a Division Bench of this Court in Tata Iron & Steel Co. Ltd. v. State of Jharkhand, Kartar Rolling Mills v. CCE, Eagle Flask Industries Ltd. v. CCE, Govt. of India v. Indian Tobacco Assn., (2005) 7 SCC 396 , Collector of Customs (Preventive) v. Malwa Industries Ltd., (2009) 12 SCC 735 and CCE v. Rukmani Pakkwell Traders. 24. Having said that, we would now examine whether the notification would at all be applicable to the sale of product in question. 25. In the instant case, the State Government has issued a notification and has used the expression types of glass and not the expression forms of glass. Therefore, what requires to be examined is whether the two terms would be identical in their connotation and import. 26. It is a settled law that in taxing statutes the terms and expressions must be seen in their common and popular parlance and not be attributed their scientific or technical meanings. In common parlance, the two words type and form are not of the same import. According to the Oxford Dictionary, whereas the meaning of the expression types is kind, class, breed, group, family, genus; the meaning of the word form is visible shape or configuration of something or the style, design, and arrangement in an artistic work as distinct from its content. Similarly, Macmillian Dictionary defines type as a group of people or things with similar qualities or features that make them different from other groups and form as the particular way in which something appears or exists or a shape of someone or something. Therefore, types are based on the broad nature of the item intended to be classified and in terms of forms, the distinguishable feature is the particular way in which the items exist. An example could be the item wax. The types of wax would include animal, vegetable, petroleum, mineral or synthetic wax whereas the form of wax could be candles, lubricant wax, sealing wax, etc. 27. Admittedly, glassware is a form of glass and it is contended by the assessee that forms of glass are also covered by the said notification. The term glassware would generally encompass ornaments, objects and articles made from glass. The New Oxford Dictionary, the Merriam-Webster Dictionary and the Macmillian Dictionary refer to the said general meaning while defining it. Glassware would include crockery such as drinking vessels (drinkware) and tableware and general glass items such as vases, pots, etc. Therefore, it cannot be accepted that the expression types of glass could have been intended to refer to or include forms of glass. 28. In the present case, the respondent-dealer is a manufacturer of glassware. In our considered view, the glassware so manufactured by the respondent-dealer though made of glass cannot be considered or called as a type of glass in light of the aforesaid discussion and since the notification only provides for the reduction in the rate of tax of types of glass and not for forms of glass which is manufactured by the respondent as glassware, the respondent would not be covered by the notification. Keeping that aspect in mind, | 1[ds]19. We do not concur with the proposition put forth by Shri S.D. Sanjay, learned senior counsel that a notification which grants tax incentives should to be liberally construed in support of his submission. It is settled rule of construction of a notification that at the outset a strict approach ought to be adopted in administering whether a dealer/ manufacturer is covered by it at all and if the dealer/manufacturer falls within the notification, then the provisions of the notification be liberally construed20. Literally speaking, an exemption is freedom from any liability, payment of tax or duty. It may assume different applications in a growing economy such as provisioning for tax holiday to new units, concessional rate of tax to goods or persons for a limited period under specific conditions and therefore, in Union of India v. Wood Papers Ltd., (1990) 4 SCC 256 this Court has observed that construction of an exemption notification or an exemption clause in contrast with the charging provision has to be tested on different touchstone and held that the eligibility clause in relation to an exemption notification is given strict meaning and the notification has to be interpreted in terms of its language, however, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed literally.Therefore, it cannot be accepted that the expression types of glass could have been intended to refer to or include forms of glass28. In the present case, the respondent-dealer is a manufacturer of glassware. In our considered view, the glassware so manufactured by the respondent-dealer though made of glass cannot be considered or called as a type of glass in light of the aforesaid discussion and since the notification only provides for the reduction in the rate of tax of types of glass and not for forms of glass which is manufactured by the respondent as glassware, the respondent would not be covered by the notification. | 1 | 2,913 | 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.
### Input:
and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction… 21. This Court in Gammon (I) Ltd. v. Commr. of Customs, (2011) 12 SCC 499 while rejecting the plea of the appellant that the exemption notification should receive a liberal construction to further the object underlying it relied upon the decision of a Three-Judge Bench of this Court in Novopan India Ltd., which stated the aforesaid principle and the object behind adopting literal interpretation in determining eligibility for claiming exemption or exception from tax as follows: 16. …The principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee—assuming that the said principle is good and sound—does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the State. This is for the reason explained in Mangalore Chemicals and other decisions viz. each such exception/exemption increases the tax burden on other members of the community correspondingly. Once, of course, the provision is found applicable to him, full effect must be given to it. As observed by a Constitution Bench of this Court in Hansraj Gordhandas v. CCE and Customs that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification i.e. by the plain terms of the exemption. (emphasis supplied) 22. In CCE v. Mahaan Dairies this Court has observed that: 8. It is settled law that in order to claim benefit of a notification, a party must strictly comply with the terms of the notification. If on wording of the notification the benefit is not available then by stretching the words of the notification or by adding words to the notification benefit cannot be conferred. 23. CCE v. Bhalla Enterprises laid down a proposition that notification has to be construed on the basis of the language used. A similar view has been expressed by a Division Bench of this Court in Tata Iron & Steel Co. Ltd. v. State of Jharkhand, Kartar Rolling Mills v. CCE, Eagle Flask Industries Ltd. v. CCE, Govt. of India v. Indian Tobacco Assn., (2005) 7 SCC 396 , Collector of Customs (Preventive) v. Malwa Industries Ltd., (2009) 12 SCC 735 and CCE v. Rukmani Pakkwell Traders. 24. Having said that, we would now examine whether the notification would at all be applicable to the sale of product in question. 25. In the instant case, the State Government has issued a notification and has used the expression types of glass and not the expression forms of glass. Therefore, what requires to be examined is whether the two terms would be identical in their connotation and import. 26. It is a settled law that in taxing statutes the terms and expressions must be seen in their common and popular parlance and not be attributed their scientific or technical meanings. In common parlance, the two words type and form are not of the same import. According to the Oxford Dictionary, whereas the meaning of the expression types is kind, class, breed, group, family, genus; the meaning of the word form is visible shape or configuration of something or the style, design, and arrangement in an artistic work as distinct from its content. Similarly, Macmillian Dictionary defines type as a group of people or things with similar qualities or features that make them different from other groups and form as the particular way in which something appears or exists or a shape of someone or something. Therefore, types are based on the broad nature of the item intended to be classified and in terms of forms, the distinguishable feature is the particular way in which the items exist. An example could be the item wax. The types of wax would include animal, vegetable, petroleum, mineral or synthetic wax whereas the form of wax could be candles, lubricant wax, sealing wax, etc. 27. Admittedly, glassware is a form of glass and it is contended by the assessee that forms of glass are also covered by the said notification. The term glassware would generally encompass ornaments, objects and articles made from glass. The New Oxford Dictionary, the Merriam-Webster Dictionary and the Macmillian Dictionary refer to the said general meaning while defining it. Glassware would include crockery such as drinking vessels (drinkware) and tableware and general glass items such as vases, pots, etc. Therefore, it cannot be accepted that the expression types of glass could have been intended to refer to or include forms of glass. 28. In the present case, the respondent-dealer is a manufacturer of glassware. In our considered view, the glassware so manufactured by the respondent-dealer though made of glass cannot be considered or called as a type of glass in light of the aforesaid discussion and since the notification only provides for the reduction in the rate of tax of types of glass and not for forms of glass which is manufactured by the respondent as glassware, the respondent would not be covered by the notification. Keeping that aspect in mind,
### Response:
1
### Explanation:
19. We do not concur with the proposition put forth by Shri S.D. Sanjay, learned senior counsel that a notification which grants tax incentives should to be liberally construed in support of his submission. It is settled rule of construction of a notification that at the outset a strict approach ought to be adopted in administering whether a dealer/ manufacturer is covered by it at all and if the dealer/manufacturer falls within the notification, then the provisions of the notification be liberally construed20. Literally speaking, an exemption is freedom from any liability, payment of tax or duty. It may assume different applications in a growing economy such as provisioning for tax holiday to new units, concessional rate of tax to goods or persons for a limited period under specific conditions and therefore, in Union of India v. Wood Papers Ltd., (1990) 4 SCC 256 this Court has observed that construction of an exemption notification or an exemption clause in contrast with the charging provision has to be tested on different touchstone and held that the eligibility clause in relation to an exemption notification is given strict meaning and the notification has to be interpreted in terms of its language, however, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed literally.Therefore, it cannot be accepted that the expression types of glass could have been intended to refer to or include forms of glass28. In the present case, the respondent-dealer is a manufacturer of glassware. In our considered view, the glassware so manufactured by the respondent-dealer though made of glass cannot be considered or called as a type of glass in light of the aforesaid discussion and since the notification only provides for the reduction in the rate of tax of types of glass and not for forms of glass which is manufactured by the respondent as glassware, the respondent would not be covered by the notification.
|
National Fertilizers Ltd. Vs. Somvir Singh | regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here - can only encourage the State the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision had laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent. It was furthermore opined: 26. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency and ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment. 21. Taking note of some recent decisions of this Court, it was held that the State does not enjoy a power to make appointments in terms of Article 162 of the Constitution of India. It further quoted with approval a decision of this Court in Union Public Service Commission vs. Girish Jayanti Lal Vaghela & Others [2006 (2) SCALE 115 ] in the following terms: ...The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution... It was clearly held: These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment. 22. The contention of the learned counsel appearing on behalf of the Respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban in employment, no recruitment was permissible in law. The reservation policy adopted by the Appellant had not been maintained. Even cases of minorities had not been given due consideration. 23. The Constitution Bench thought of directing regularisation of the services only of those employee whose appointments were irregular as explained in State of Mysore vs. S.V. Narayanappa [(1967) 1 SCR 799], Nanjundappa vs T. Thimmiah & Anr [(1972) 2 SCR 799] and B.N. Nagarajan & Ors. vs. State of Karnataka & Ors. [(1979) 3 SCR 937] wherein this Court observed: In B.N. Nagarajan & Ors. vs. State of Karnataka & Ors. [(1979) 3 SCR 937] , this court clearly held that the words regular or regularization do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments.. 24. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the Respondents are illegal. They do not, thus, have any legal right to continue in service. 25. It is true that the Respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale or pay. Furthermore, only because the Respondents have worked for some time, the same by itself would not be a ground for directing regularisation of their services in view of the decision of this Court in Uma Devi (supra). 26. In view of the authoritative pronouncement of the Constitution Bench, in our opinion, the impugned judgments cannot be sustained. They are set aside accordingly. 27. Shri Somvir Singh, Hansraj Benewal, Malkiat Singh, Ranjit Singh are said to be working. They may be relieved of their posts. We may, however, observe that their cases may be considered for future appointment and age bar, if any, in view of the policy decision of the Appellant itself may be relaxed to the extent they had worked. The salary or any remuneration paid to them, however, may not be recovered. This order however, is being passed in exercise of our jurisdiction under Article 142 of the Constitution of India keeping in view the principles embodied in Section 70 of the Contract Act. | 1[ds]18. Regularisation, furthermore, is not a mode of appointment. If appointment is made without following the Rules, the same being a nullity the question of confirmation of an employee upon the expiry of the purported period of probation would not arise. The Constitution Bench in Umadevi (supra) made a detailed survey of the case laws operating in the field19. The referral order to the Constitution Bench was made by a 3-Judge Bench of this Court stating:1. Apart from the conflicting opinions between the three Judges Bench decisions in Ashwani Kumar and Ors. vs. State of Bihar and Ors., reported in 1997 (2) SCC 1, State of Haryana and Ors. vs. Piara Singh and Ors. Reported in 1992 (4) SCC 118 and Dharwad Dist. P.W.D. LiterateDaily Wage Employees Association and Ors. vs. State of Karnataka and Ors. Reported in 1990 (2) SCC 396, on the one hand and State of Himachal Pradesh vs. Suresh Kumar Verma and Anr., reported in AIR 1996 SC 1565 , State of Punjab vs. Surinder Kumar and Ors. Reported in AIR 1992 SC 1593 , and B.N. Nagarajan and Ors. vs. State of Karnataka and Ors., reported in 1979 (4) SCC 507 on the other, which has been brought out in one of the judgments under appeal of Karnataka High Court in State of Karnataka vs. H. Ganesh Rao, decided on 1.6.2000, reported in 2001 (4) Karnataka Law Journal 466, learned Additional Solicitor General urged that the scheme for regularization is repugnant to Articles 16(4), 309, 320 and 335 of the Constitution of India and, therefore, these cases are required to be heard by a Bench of Five learned Judges (constitution Bench)2. On the other hand, Mr. M.C. Bhandare, learned senior counsel, appearing for the employees urged that such a scheme for regularization is consistent with the provision of Articles 14 and 21 of the Constitution3. Mr. V. Lakshmi Narayan, learned counsel, appearing in CC Nos. 109-498 of 2003, has filed the G.O. dated 19.7.2002, and submitted that orders have already been implemented4. After having found that there is conflict of opinion between three Judges Bench decisions of this Court, we are of the view that these cases are required to be heard by a Bench of five learned Judges5. Let these matters be placed before Honble the Chief Justice for appropriate orders20. The Constitution Bench opined that any appointment made in violation of the Recruitment Rules as also in violation of Articles 14 and 16 of the Constitution would be nullity. The contention raised on behalf of the employees that those temporary or ad hoc employees who had continued for a fairly long spell, the authorities must consider their cases for regularisation was answered, thus:With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here - can only encourage the State the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision had laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent26. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency and ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment21. Taking note of some recent decisions of this Court, it was held that the State does not enjoy a power to make appointments in terms of Article 162 of the Constitution of India. It further quoted with approval a decision of this Court in Union Public Service Commission vs. Girish Jayanti Lal Vaghela & Others [2006 (2) SCALE 115 ] in the following terms:...The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the ConstitutionThese binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment22. The contention of the learned counsel appearing on behalf of the Respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban in employment, no recruitment was permissible in law. The reservation policy adopted by the Appellant had not been maintained. Even cases of minorities had not been given due consideration23. The Constitution Bench thought of directing regularisation of the services only of those employee whose appointments were irregular as explained in State of Mysore vs. S.V. Narayanappa [(1967) 1 SCR 799], Nanjundappa vs T. Thimmiah & Anr [(1972) 2 SCR 799] and B.N. Nagarajan & Ors. vs. State of Karnataka & Ors. [(1979) 3 SCR 937] wherein this Court observed:In B.N. Nagarajan & Ors. vs. State of Karnataka & Ors. [(1979) 3 SCR 937] , this court clearly held that the words regular or regularization do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments24. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the Respondents are illegal. They do not, thus, have any legal right to continue in service25. It is true that the Respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale or pay. Furthermore, only because the Respondents have worked for some time, the same by itself would not be a ground for directing regularisation of their services in view of the decision of this Court in Uma Devi (supra)In view of the authoritative pronouncement of the Constitution Bench, in our opinion, the impugned judgments cannot be sustained. They are set aside accordinglyShri Somvir Singh, Hansraj Benewal, Malkiat Singh, Ranjit Singh are said to be working. They may be relieved of their posts. We may, however, observe that their cases may be considered for future appointment and age bar, if any, in view of the policy decision of the Appellant itself may be relaxed to the extent they had worked. The salary or any remuneration paid to them, however, may not be recovered. This order however, is being passed in exercise of our jurisdiction under Article 142 of the Constitution of India keeping in view the principles embodied in Section 70 of the Contract Act | 1 | 3,388 | 1,650 | ### 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:
regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here - can only encourage the State the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision had laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent. It was furthermore opined: 26. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency and ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment. 21. Taking note of some recent decisions of this Court, it was held that the State does not enjoy a power to make appointments in terms of Article 162 of the Constitution of India. It further quoted with approval a decision of this Court in Union Public Service Commission vs. Girish Jayanti Lal Vaghela & Others [2006 (2) SCALE 115 ] in the following terms: ...The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution... It was clearly held: These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment. 22. The contention of the learned counsel appearing on behalf of the Respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban in employment, no recruitment was permissible in law. The reservation policy adopted by the Appellant had not been maintained. Even cases of minorities had not been given due consideration. 23. The Constitution Bench thought of directing regularisation of the services only of those employee whose appointments were irregular as explained in State of Mysore vs. S.V. Narayanappa [(1967) 1 SCR 799], Nanjundappa vs T. Thimmiah & Anr [(1972) 2 SCR 799] and B.N. Nagarajan & Ors. vs. State of Karnataka & Ors. [(1979) 3 SCR 937] wherein this Court observed: In B.N. Nagarajan & Ors. vs. State of Karnataka & Ors. [(1979) 3 SCR 937] , this court clearly held that the words regular or regularization do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments.. 24. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the Respondents are illegal. They do not, thus, have any legal right to continue in service. 25. It is true that the Respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale or pay. Furthermore, only because the Respondents have worked for some time, the same by itself would not be a ground for directing regularisation of their services in view of the decision of this Court in Uma Devi (supra). 26. In view of the authoritative pronouncement of the Constitution Bench, in our opinion, the impugned judgments cannot be sustained. They are set aside accordingly. 27. Shri Somvir Singh, Hansraj Benewal, Malkiat Singh, Ranjit Singh are said to be working. They may be relieved of their posts. We may, however, observe that their cases may be considered for future appointment and age bar, if any, in view of the policy decision of the Appellant itself may be relaxed to the extent they had worked. The salary or any remuneration paid to them, however, may not be recovered. This order however, is being passed in exercise of our jurisdiction under Article 142 of the Constitution of India keeping in view the principles embodied in Section 70 of the Contract Act.
### Response:
1
### Explanation:
and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here - can only encourage the State the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision had laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent26. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency and ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment21. Taking note of some recent decisions of this Court, it was held that the State does not enjoy a power to make appointments in terms of Article 162 of the Constitution of India. It further quoted with approval a decision of this Court in Union Public Service Commission vs. Girish Jayanti Lal Vaghela & Others [2006 (2) SCALE 115 ] in the following terms:...The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the ConstitutionThese binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment22. The contention of the learned counsel appearing on behalf of the Respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban in employment, no recruitment was permissible in law. The reservation policy adopted by the Appellant had not been maintained. Even cases of minorities had not been given due consideration23. The Constitution Bench thought of directing regularisation of the services only of those employee whose appointments were irregular as explained in State of Mysore vs. S.V. Narayanappa [(1967) 1 SCR 799], Nanjundappa vs T. Thimmiah & Anr [(1972) 2 SCR 799] and B.N. Nagarajan & Ors. vs. State of Karnataka & Ors. [(1979) 3 SCR 937] wherein this Court observed:In B.N. Nagarajan & Ors. vs. State of Karnataka & Ors. [(1979) 3 SCR 937] , this court clearly held that the words regular or regularization do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments24. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the Respondents are illegal. They do not, thus, have any legal right to continue in service25. It is true that the Respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale or pay. Furthermore, only because the Respondents have worked for some time, the same by itself would not be a ground for directing regularisation of their services in view of the decision of this Court in Uma Devi (supra)In view of the authoritative pronouncement of the Constitution Bench, in our opinion, the impugned judgments cannot be sustained. They are set aside accordinglyShri Somvir Singh, Hansraj Benewal, Malkiat Singh, Ranjit Singh are said to be working. They may be relieved of their posts. We may, however, observe that their cases may be considered for future appointment and age bar, if any, in view of the policy decision of the Appellant itself may be relaxed to the extent they had worked. The salary or any remuneration paid to them, however, may not be recovered. This order however, is being passed in exercise of our jurisdiction under Article 142 of the Constitution of India keeping in view the principles embodied in Section 70 of the Contract Act
|
Malini Ayyappa Naicker (Now Dead) Through L.R. Etc. Etc Vs. Seth Manghraj Udhavdas Firm By Managing Partner Chathurbh | to be influenced by the apparent contradiction appearing between the recitals in Exhs. A-1 and A-2 and those in Exhs. A-11, A-12 and the account entries. 17. One other circumstance which had weighed with the High Court in holding that Exhs. A-1 and A-2 do not represent genuine transactions is that in their pleadings the mortgagees have stuck to their case that cash consideration passed under Exhs. A-1 and A-2 and this the Court thought was a deliberately false. The learned District Judge had carefully considered this circumstance but was of opinion that the same was of no consequence. We think that the High Court had attached undue importance to that circumstance. The issue before the parties at the time of the pleadings was whether the mortgages in question were supported by consideration or not and not the manner in which that consideration was paid. In their plea the mortgagees were merely adhering to the tenor of the mortgage deeds. From the facts stated earlier, it is clear that the mortgagees at all stages proceeded on the basis that Exhs. A-1 and A-2 were executed for cash consideration, the other steps taken by them being merely incidental. 18. The last and by far the most important circumstance that appears to have influenced the High Court was the failure of the mortgagees to produce their account books. This circumstance was carefully considered by the District Judge. He held that the adverse inference that could be drawn from that circumstance was rebutted by the other evidence available in the case. It was open to him to do so. His finding on this point is also a finding of fact and by no means a wholly unreasonable finding. The High Court could not have interfered with the same. 19.From the above discussion it follow that generally speaking-we shall come to the details of consideration presently-the findings of the District Court as regards the payment of consideration under Exhs. A-1 and A-2 are findings of facts and they were not open to review by the High Court. 20. This takes us to the various items of consideration said to have passed under Exhs. A-1 and A-2 and the proof thereof. The District Court has held that the entire consideration mentioned in those documents has passed. We have now to see whether its finding in respect of the various items of consideration is supported by legal evidence. The challenge to the payment of consideration trader Exhs. A-1 and A-2 made by the petitioning creditor includes a challenge to the passing of the various items of consideration said to have passed.Ordinarily the burden of proving that a document impeached under Section 53 of the Act is not supported by consideration is on the party who challenges its validity. That is so because the party who stands by the document can take advantage of the admission made by the insolvent in the document in question. But in this case the mortgagees themselves do not stand by the recitals in the documents as regards the manner in which consideration was paid. Therefore it is for them to prove the passing of consideration. Hence we have to see how far they have succeeded in proving the same. 21. We shall first take up Exh. A-2, mortgage deed executed in favour of Srinivasa Naicker. It is said that the consideration payable under that mortgage was paid in the following manner: Rs. 5,000 under promissory note Exh. A-11; Rs. 1,700 paid in cash on 7th January.1951 and Rs. 3,300 also paid in cash on 10th February, 1951. The receipt of the aforementioned sums is entered in the day book and ledger of the insolvents. The relevant entries amount to an admission on the part of the insolvents of having received the amounts mentioned therein. We have earlier considered the authenticity of those account books. The evidence of the mortgagees as regards the payment of consideration is strongly corroborated by the entries in the insolvents account books. It was open to the learned District Judge to rely on them. Hence his finding as regards the validity of the mortgage under Exh. A-2 must be held to be final. 22. So far as the consideration for Exh. A-1 is concerned it is said to have been made up of- (i) a sum of Rs. 10,000 advanced under Exh. A-11; (ii) Rs. 500 the interest due under Exhs. A-11 and A-12; and (iii) Rs. 4,500 paid on 6th November. 1950. 23. The receipts of the various sums mentioned above excepting the sum of Rs. 4,500 said to have been paid on 6th November 1950, are entered in the day book and the ledger of the insolvents. Hence to that extent the finding of the learned District Judge is unassailable. So far as the payment of Rs. 4,500 said to have been made on November 6, 1950 is concerned no corresponding entry in the day book or the ledger had been proved. This important circumstance was not noticed by the learned District Judge. He proceeded on the basis that the account entries support the payment of that item as well. The evidence of Ayyappa Naicker as regards that payment is necessarily interested. The only other evidence on that point is that of P. W. 2, the Registrar who registered Exhs. A-1 and A-2. He is a relation of the insolvents. He did not endorse that payment in Exh. A-1, though he knew that he was required to do so under the rules. We are also surprised how he could have remembered that fact after several year. Had the learned District Judges attention been drawn to the fact that there is no documentary evidence in proof of the payment of that item it is highly doubtful whether he would have held in favour of the mortgagees as regards the payment of that item. After going through the evidence bearing on the point we are not satisfied that the payment of that amount is satisfactorily proved. 24. | 1[ds]6. We are of the opinion that the extreme contentions advanced on either side cannot be accepted. Quite clearly the legislature did not confer on the High Court under the 1st proviso to Section 75 (1) of the Act an appellate power nor did it confer on it a jurisdiction to re-appreciate the evidence on record. While exercising that power the High Court is by and large bound by the findings of fact reached by the District Court. If the legislature intended to confer power on it to re-examine both questions of law and fact it would have conveyed its intention by appropriate words as has been done under various other statutes.A wrong decision on facts by a competent court is also a decision according to law. For these reasons we cannot accept the contention of Mr. Naunit Lal that the power conferred under the 1st proviso to Section 75 (1) of the Act enables it to de novo examine the findings of fact reached by the District Court7. A decision being contrary to law (as provided in Section 100 (1) (a) of theCode of Civil Procedure is not the same thing as a decision being not according to law as prescribed in the 1st proviso of Section 75 (1) of the Act. The latter expression is wider in ambit than the former. It is neither desirable nor possible to give an exhaustive definition of the expression according to law. The power given to the High Court under the 1st proviso to Section 75 (1) of the Act is similar to that given to it under Sec. 25 of the Provincial Small Cause Courts Act. Explaining the scope of the latter provision, Beaumont, C. J. (as he then was) in Bell and Co. Ltd. v. Waman Hemraj, 40 Bom LR 125 = (AIR 1938 Bom 223 ) observed:The object of Section 25 is to enable the High Court to see that them has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision as does Section 115 of theCode of Civil Procedure, and I certainly do not propose to attempt any exhaustive definition of the circumstances which may justify such interference;but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given to proper opportunity of being heard, or the burden of proof as been placed on the wrong shoulders.Wherever the Court comes, to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at8. The said statement of the law was accepted as correct by this Court in Hari Shankar v. Rao Girdhari Lal Chowdhury, 1962 Supp 1 SCR 933 = (AIR 1963 SC 698 ). We think the same applies squarely to the 1st proviso to Section 75 (1) of the Act15. In the insolvency proceedings on the application of the petitioning creditor, a commissioner to search the house of the insolvents and seize their books of account and other relevant records was appointed. After search the commissioner seized from the house of the insolvents several account books (ledgers as well as day books) as well as A-11 and A-12 which were found punched and defaced. Exhibits A-11, A-12 as well as several of the entries in the ledger and day books were marked by consent in the proceedings from which these appeals have arisen. Hence their genuineness is not open to question16. It is most unlikely that those documents were got up by the insolvents and kept in their house depending on the off chance of a Court commissioner searching their house and seizing them, so that they may serve as corroborating evidence in support of the impugned mortgages. If Exhs . A-11 and A-12 as well as the entries in the account books were intended to support the claim under Exhs. A-1 and A-2, the most natural course would have been to draw up the mortgage deeds in such a way as to take assistance from them. In that case the mortgage deeds would not have recited that they were executed for cash consideration. Further Exhs. A-11 and A-12 would have been left in the possession of the mortgagees. We are convinced that the version put forward by the mortgagees is substantially true. The original agreement between the parties was to take mortgagees of the Tuticorin properties for cash consideration. The intermediate steps taken were necessitated by the fact that mortgagees were not able to get together in one lump the required amount. The promissory notes Exhs. A-11 and A-12 were taken as stop gap arrangements. The recitals in the mortgage deeds accord with the original agreement between the parties. That was likely to be the reason why the promissory notes Exhs. A-11 and A-12 were returned to the parties. The entries in the account books of the insolvents reflect the transactions as they took place. If they were bogus entries made to support Exhs. A-1 and A-2 a receipt of Rs. 25,000 in cash on 4th November 1950 would have been shown therein. The learned District Judge correctly thought that the account entries in question had a great deal of intrinsic value. On the other hand the insolvency court and the High Court unnecessarily allowed them selves to be influenced by the apparent contradiction appearing between the recitals in Exhs. A-1 and A-2 and those in Exhs. A-11, A-12 and the account entries17. One other circumstance which had weighed with the High Court in holding that Exhs. A-1 and A-2 do not represent genuine transactions is that in their pleadings the mortgagees have stuck to their case that cash consideration passed under Exhs. A-1 and A-2 and this the Court thought was a deliberately false. The learned District Judge had carefully considered this circumstance but was of opinion that the same was of no consequence. We think that the High Court had attached undue importance to that circumstance. The issue before the parties at the time of the pleadings was whether the mortgages in question were supported by consideration or not and not the manner in which that consideration was paid. In their plea the mortgagees were merely adhering to the tenor of the mortgage deeds. From the facts stated earlier, it is clear that the mortgagees at all stages proceeded on the basis that Exhs. A-1 and A-2 were executed for cash consideration, the other steps taken by them being merely incidental18. The last and by far the most important circumstance that appears to have influenced the High Court was the failure of the mortgagees to produce their account books. This circumstance was carefully considered by the District Judge. He held that the adverse inference that could be drawn from that circumstance was rebutted by the other evidence available in the case. It was open to him to do so. His finding on this point is also a finding of fact and by no means a wholly unreasonable finding. The High Court could not have interfered with the same20. This takes us to the various items of consideration said to have passed under Exhs. A-1 and A-2 and the proof thereof. The District Court has held that the entire consideration mentioned in those documents has passed. We have now to see whether its finding in respect of the various items of consideration is supported by legal evidence. The challenge to the payment of consideration trader Exhs. A-1 and A-2 made by the petitioning creditor includes a challenge to the passing of the various items of consideration said to have passed.Ordinarily the burden of proving that a document impeached under Section 53 of the Act is not supported by consideration is on the party who challenges its validity. That is so because the party who stands by the document can take advantage of the admission made by the insolvent in the document in question. But in this case the mortgagees themselves do not stand by the recitals in the documents as regards the manner in which consideration was paid. Therefore it is for them to prove the passing of consideration. Hence we have to see how far they have succeeded in proving the sameThe receipt of the aforementioned sums is entered in the day book and ledger of the insolvents. The relevant entries amount to an admission on the part of the insolvents of having received the amounts mentioned therein. We have earlier considered the authenticity of those account books. The evidence of the mortgagees as regards the payment of consideration is strongly corroborated by the entries in the insolvents account books. It was open to the learned District Judge to rely on them. Hence his finding as regards the validity of the mortgage under Exh. A-2 must be held to be final23. The receipts of the various sums mentioned above excepting the sum of Rs. 4,500 said to have been paid on 6th November 1950, are entered in the day book and the ledger of the insolvents. Hence to that extent the finding of the learned District Judge is unassailable. So far as the payment of Rs. 4,500 said to have been made on November 6, 1950 is concerned no corresponding entry in the day book or the ledger had been proved. This important circumstance was not noticed by the learned District Judge. He proceeded on the basis that the account entries support the payment of that item as well. The evidence of Ayyappa Naicker as regards that payment is necessarily interested. The only other evidence on that point is that of P. W. 2, the Registrar who registered Exhs. A-1 and A-2. He is a relation of the insolvents. He did not endorse that payment in Exh. A-1, though he knew that he was required to do so under the rules. We are also surprised how he could have remembered that fact after several year. Had the learned District Judges attention been drawn to the fact that there is no documentary evidence in proof of the payment of that item it is highly doubtful whether he would have held in favour of the mortgagees as regards the payment of that item. After going through the evidence bearing on the point we are not satisfied that the payment of that amount is satisfactorily proved. | 1 | 4,283 | 1,944 | ### 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:
to be influenced by the apparent contradiction appearing between the recitals in Exhs. A-1 and A-2 and those in Exhs. A-11, A-12 and the account entries. 17. One other circumstance which had weighed with the High Court in holding that Exhs. A-1 and A-2 do not represent genuine transactions is that in their pleadings the mortgagees have stuck to their case that cash consideration passed under Exhs. A-1 and A-2 and this the Court thought was a deliberately false. The learned District Judge had carefully considered this circumstance but was of opinion that the same was of no consequence. We think that the High Court had attached undue importance to that circumstance. The issue before the parties at the time of the pleadings was whether the mortgages in question were supported by consideration or not and not the manner in which that consideration was paid. In their plea the mortgagees were merely adhering to the tenor of the mortgage deeds. From the facts stated earlier, it is clear that the mortgagees at all stages proceeded on the basis that Exhs. A-1 and A-2 were executed for cash consideration, the other steps taken by them being merely incidental. 18. The last and by far the most important circumstance that appears to have influenced the High Court was the failure of the mortgagees to produce their account books. This circumstance was carefully considered by the District Judge. He held that the adverse inference that could be drawn from that circumstance was rebutted by the other evidence available in the case. It was open to him to do so. His finding on this point is also a finding of fact and by no means a wholly unreasonable finding. The High Court could not have interfered with the same. 19.From the above discussion it follow that generally speaking-we shall come to the details of consideration presently-the findings of the District Court as regards the payment of consideration under Exhs. A-1 and A-2 are findings of facts and they were not open to review by the High Court. 20. This takes us to the various items of consideration said to have passed under Exhs. A-1 and A-2 and the proof thereof. The District Court has held that the entire consideration mentioned in those documents has passed. We have now to see whether its finding in respect of the various items of consideration is supported by legal evidence. The challenge to the payment of consideration trader Exhs. A-1 and A-2 made by the petitioning creditor includes a challenge to the passing of the various items of consideration said to have passed.Ordinarily the burden of proving that a document impeached under Section 53 of the Act is not supported by consideration is on the party who challenges its validity. That is so because the party who stands by the document can take advantage of the admission made by the insolvent in the document in question. But in this case the mortgagees themselves do not stand by the recitals in the documents as regards the manner in which consideration was paid. Therefore it is for them to prove the passing of consideration. Hence we have to see how far they have succeeded in proving the same. 21. We shall first take up Exh. A-2, mortgage deed executed in favour of Srinivasa Naicker. It is said that the consideration payable under that mortgage was paid in the following manner: Rs. 5,000 under promissory note Exh. A-11; Rs. 1,700 paid in cash on 7th January.1951 and Rs. 3,300 also paid in cash on 10th February, 1951. The receipt of the aforementioned sums is entered in the day book and ledger of the insolvents. The relevant entries amount to an admission on the part of the insolvents of having received the amounts mentioned therein. We have earlier considered the authenticity of those account books. The evidence of the mortgagees as regards the payment of consideration is strongly corroborated by the entries in the insolvents account books. It was open to the learned District Judge to rely on them. Hence his finding as regards the validity of the mortgage under Exh. A-2 must be held to be final. 22. So far as the consideration for Exh. A-1 is concerned it is said to have been made up of- (i) a sum of Rs. 10,000 advanced under Exh. A-11; (ii) Rs. 500 the interest due under Exhs. A-11 and A-12; and (iii) Rs. 4,500 paid on 6th November. 1950. 23. The receipts of the various sums mentioned above excepting the sum of Rs. 4,500 said to have been paid on 6th November 1950, are entered in the day book and the ledger of the insolvents. Hence to that extent the finding of the learned District Judge is unassailable. So far as the payment of Rs. 4,500 said to have been made on November 6, 1950 is concerned no corresponding entry in the day book or the ledger had been proved. This important circumstance was not noticed by the learned District Judge. He proceeded on the basis that the account entries support the payment of that item as well. The evidence of Ayyappa Naicker as regards that payment is necessarily interested. The only other evidence on that point is that of P. W. 2, the Registrar who registered Exhs. A-1 and A-2. He is a relation of the insolvents. He did not endorse that payment in Exh. A-1, though he knew that he was required to do so under the rules. We are also surprised how he could have remembered that fact after several year. Had the learned District Judges attention been drawn to the fact that there is no documentary evidence in proof of the payment of that item it is highly doubtful whether he would have held in favour of the mortgagees as regards the payment of that item. After going through the evidence bearing on the point we are not satisfied that the payment of that amount is satisfactorily proved. 24.
### Response:
1
### Explanation:
between the parties was to take mortgagees of the Tuticorin properties for cash consideration. The intermediate steps taken were necessitated by the fact that mortgagees were not able to get together in one lump the required amount. The promissory notes Exhs. A-11 and A-12 were taken as stop gap arrangements. The recitals in the mortgage deeds accord with the original agreement between the parties. That was likely to be the reason why the promissory notes Exhs. A-11 and A-12 were returned to the parties. The entries in the account books of the insolvents reflect the transactions as they took place. If they were bogus entries made to support Exhs. A-1 and A-2 a receipt of Rs. 25,000 in cash on 4th November 1950 would have been shown therein. The learned District Judge correctly thought that the account entries in question had a great deal of intrinsic value. On the other hand the insolvency court and the High Court unnecessarily allowed them selves to be influenced by the apparent contradiction appearing between the recitals in Exhs. A-1 and A-2 and those in Exhs. A-11, A-12 and the account entries17. One other circumstance which had weighed with the High Court in holding that Exhs. A-1 and A-2 do not represent genuine transactions is that in their pleadings the mortgagees have stuck to their case that cash consideration passed under Exhs. A-1 and A-2 and this the Court thought was a deliberately false. The learned District Judge had carefully considered this circumstance but was of opinion that the same was of no consequence. We think that the High Court had attached undue importance to that circumstance. The issue before the parties at the time of the pleadings was whether the mortgages in question were supported by consideration or not and not the manner in which that consideration was paid. In their plea the mortgagees were merely adhering to the tenor of the mortgage deeds. From the facts stated earlier, it is clear that the mortgagees at all stages proceeded on the basis that Exhs. A-1 and A-2 were executed for cash consideration, the other steps taken by them being merely incidental18. The last and by far the most important circumstance that appears to have influenced the High Court was the failure of the mortgagees to produce their account books. This circumstance was carefully considered by the District Judge. He held that the adverse inference that could be drawn from that circumstance was rebutted by the other evidence available in the case. It was open to him to do so. His finding on this point is also a finding of fact and by no means a wholly unreasonable finding. The High Court could not have interfered with the same20. This takes us to the various items of consideration said to have passed under Exhs. A-1 and A-2 and the proof thereof. The District Court has held that the entire consideration mentioned in those documents has passed. We have now to see whether its finding in respect of the various items of consideration is supported by legal evidence. The challenge to the payment of consideration trader Exhs. A-1 and A-2 made by the petitioning creditor includes a challenge to the passing of the various items of consideration said to have passed.Ordinarily the burden of proving that a document impeached under Section 53 of the Act is not supported by consideration is on the party who challenges its validity. That is so because the party who stands by the document can take advantage of the admission made by the insolvent in the document in question. But in this case the mortgagees themselves do not stand by the recitals in the documents as regards the manner in which consideration was paid. Therefore it is for them to prove the passing of consideration. Hence we have to see how far they have succeeded in proving the sameThe receipt of the aforementioned sums is entered in the day book and ledger of the insolvents. The relevant entries amount to an admission on the part of the insolvents of having received the amounts mentioned therein. We have earlier considered the authenticity of those account books. The evidence of the mortgagees as regards the payment of consideration is strongly corroborated by the entries in the insolvents account books. It was open to the learned District Judge to rely on them. Hence his finding as regards the validity of the mortgage under Exh. A-2 must be held to be final23. The receipts of the various sums mentioned above excepting the sum of Rs. 4,500 said to have been paid on 6th November 1950, are entered in the day book and the ledger of the insolvents. Hence to that extent the finding of the learned District Judge is unassailable. So far as the payment of Rs. 4,500 said to have been made on November 6, 1950 is concerned no corresponding entry in the day book or the ledger had been proved. This important circumstance was not noticed by the learned District Judge. He proceeded on the basis that the account entries support the payment of that item as well. The evidence of Ayyappa Naicker as regards that payment is necessarily interested. The only other evidence on that point is that of P. W. 2, the Registrar who registered Exhs. A-1 and A-2. He is a relation of the insolvents. He did not endorse that payment in Exh. A-1, though he knew that he was required to do so under the rules. We are also surprised how he could have remembered that fact after several year. Had the learned District Judges attention been drawn to the fact that there is no documentary evidence in proof of the payment of that item it is highly doubtful whether he would have held in favour of the mortgagees as regards the payment of that item. After going through the evidence bearing on the point we are not satisfied that the payment of that amount is satisfactorily proved.
|
State Of Tamil Nadu, Etc Vs. Sitalakshmi Mills, Etc | and that the movement is incidental and a consequence of the sale. He observed further that even assuming that the Central Sales Tax is within the mischief of Article 301, it is certainly a law made by Parliament in the public interest and is saved by Article 302. 9. As already stated, Section 8(2)(b) deals with sale of goods other than declared goods and it is confined to inter-State sale of goods to persons other than registered dealers or Governments. The rate of tax prescribed is ten per cent or the rate of tax imposed on sale or purchase of goods inside the appropriate State, whichever is higher. The report of the Taxation Inquiry Committee would indicate that the main reasons for enacting the provisions was to canalize inter-State trade through registered dealers, over whom the appropriate Government has a great deal of control and thus to prevent evasion of tax : Where transactions take place between registered dealers in one State and unregistered dealers or consumers in another, this low rate of levy will not be suitable, as it is likely to encourage avoidance of tax on more or less of the same scale as the present provisions of Article 286 have done. If this is to be prevented, it is necessary that transactions of this type should be taxable at the same rates which exporting State impose on similar transactions within their own territories. The unregistered dealers and consumers in the importing State will then find themselves unable to secure any advantage over the consumers of locally purchased articles; nor of course will they, under this system be able to escape the taxation altogether, as many of them do at present (See Report of the Taxation Enquiry Commission, 1953-54, Vol. 3, p. 57). In others words, it was to discourage inter-State sale to unregistered dealers that Parliament provided a high rate of tax, namely 10 per cent. But even that might not serve the purpose if the rate applicable to intra-State sales of such goods was more than 10 per cent. The rate of 10 per cent would then be favourable and they would be at an advantage compared to local consumers. It is because of this that Parliament provided, as a matter of legislative policy that the rate of tax shall be 10 per cent or the rate applicable to intra-State sales whichever is higher. 10. If prevention of evasion of tax is a measure in the public interest, there can be no doubt that Parliament is competent to make a provision for that purpose under Article 302, even if the provision would impose restrictions on the inter-State trade or commerce. 11. But quite apart from this, the majority judgment in (1968) 3 SCR 829 = (AIR 1969 SC 147 ) has categorically stated that the exercise of the power to tax may normally be presumed to be in the public interest. We do not think it necessary to go into the question whether it is open to the Court to conduct an enquiry whether the levy of a tax is the imposition of a restriction on the freedom of trade and commerce in the public interest. It cannot be presumed, because the rate of tax was 10 per cent at the material time on this class of transaction or the rate fixed by the appropriate State in respect of intra-State sales, whichever was higher, the imposition of this rate was not in the public interest. Therefore, in any view of the matter, Parliament was competent to enact Section 8 (2) (b) of the Act. In other words, even if it be assumed that the tax at the higher rate imposed under Section 8 (2) (b) places restrictions on the freedom of trade and commerce throughout the territory of India, as Parliament is competent to impose restrictions on that freedom in the public interest and as the imposition of a tax is normally to be presumed in the public interest, we see no reason to hold that Section 8 (2) (b) is bad for the reason that it violates Article 301. 12. As regards the contention that section 8 (2) (b) is violative of Article 303(1) in that there will be varying rates of tax on inter-State sales in different States depending upon their rates of sales tax for intra-State sales and that will lead to the imposition of dissimilar tax on the sale of same or similar commodities, it is enough to state that this question has been considered by this Court in (1968) 3 SCR 829 = (AIR 1969 SC 147 ) and the Court said that the existence of different rates of tax on the sale of the same or similar commodity in different States by itself would not be discriminatory as the flow of trade does not necessarily depend upon the rates of sales tax; it depends, according to the Court, upon a variety of factors such as the source of supply, place of consumption, existence of trade channels, the rates of freight, trading facilities, availability of efficient transport and other facilities for carrying on the trade. The Court referred to the observations of Isaacs, J. in King v. Barger, (1908) 6 CLR 41 at p. 108 and said : ..... The Central sales tax though leived for and collected in the name of the Central Government is a part of the sales tax levy imposed for the benefit of the States. By leaving it to the States to levy sales tax in respect of a commodity on intra-State transactions no discrimination is practised; and by authorising the State from which the movement of goods commences to levy on transactions of sale Central sales tax, at rates prevailing in the State, subject to the limitation already set out, in our judgment, no discrimination can be deemed to be practised. 13. We think there is no merit in the contention that Section 8 (2) (b) of the Act offends the provision of Article 303(1). | 1[ds]2. In Larsen and Toubro Ltd. v. Joint Commercial Tax Officer, 20 STC 150 = (AIR 1968 Mad 407), the High Court of Madras held that sub-sections (2), (2A) and (5) of Section 8 of the Act were bad for the reason that they violated the provisions of Articles 301 and 303 (1) of the Constitution. This was on the basis that the different rates of tax and exemptions in the sales tax law of the various States placed an unequal burden on the sale of same or similar goods which impeded their free flow and movement in inter-State trade and commerce. In the appeal, preferred from the decision, this Court set aside the decision of the High Court (see State of Madras v. N. K. Nataraja Mudaliar, (1968) 3 SCR 829 = (AIR 1969 SC 147 ). The question whether section 8 (2) (b) is violative of provisions of Article 301 or 303 (1) was not specifically considered in either the majority judgment delivered by Shah J. or in the concurring judgment of Bachawat. J. Hegde, J., however, made certain observations in his judgment that section 8 (2) (b) was enacted to check evasion of sales tax and the restriction imposed by it was in the public interest.scope of Article 286 was considered by this Court in the State of Bombay v. United Motors (India) Ltd., 1953 SCR 1069 = (AIR 1953 SC 252 ) in an appeal to this Court in which the validity of the provisions of the Bombay Sales Tax Act, 1952, was challenged. The majority of the Judges who heard the appeal held that Article 286 (1) (a) prohibited taxation of sales or purchases involving inter-State elements by all States except the State in which the goods were actually delivered for the purpose of consumption therein and that the effect of the Explanation thereto was to convert inter-State transactions into intra-State transactions and to remove them from the operation of Cl. 2. This interpretation of Article 286 was not accepted by a larger Bench of this Court which heard and decided the Bengal Immunity Co. Ltd. v. The State of Bihar, (1955) 2 SCR 603 = (AIR 1955 SC 661 ). That case held that the bans imposed by Article 286 of the Constitution on the taking powers of the States were independent and separate and each one of them had to be got over before a State legislature could impose tax on transactions of sale or purchase of goods. The case further held that the Explanations of Article 286 (1) (a) determined by the legal fiction created therein the situs of the sale in the case of transactions coming within that category and that once it is determined by the application of the Explanation that a transaction is outside the State, it followed that the State, with reference to which the transaction can thus be predicated to be outside it, can never tax the transaction. The Constitution was thereafter amended, Explanation 1 of Article 286 was deleted and clauses (2) and (3) thereto were altered by the amendments. Simultaneously, item 92-A was incorporated in List I of the Seventh Schedule authorising Parliament to legislate for levying tax on the sale or purchase of goods other than newspapers, where such sale or purchase took place in the course of inter-State trade or commerce and item 54 of List II was amended to exclude taxation of inter-State sales from the competence of the State legislatures.n Atibari Tea Co. Ltd. v. The State of Assam, (1961) 1 SCR 809 = (AIR 1961 SC 232 ), Gajendragadkar, J. speaking for himself, Wanchoo and Das Gupta, JJ., observed :.... we think it would be reasonable and proper to hold that restrictions, freedom from which is guaranteed by Article 301, would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade.. In Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan, 1963 Supp 2 SCR 435 = (1963-1 SCR 491 = AIR 1962 SC 1406 ), the Court partically agreed with the view of the majority in Atiabari Tea Co. Ltd.s case (1961) 1 SCR 809 = (AIR 1961 SC 232 ) but added a clarification that a regulatory measure or a measure imposing a compensatory tax for the using of trading facilities would not come within the purview of restrictions contemplated by Article 301. Normally, a tax on sale of goods does not directly interfere with the free flow or movement of trade. But a tax can be such that because of its rate or other features, it might operate to impede the free movement of goods. The majority judgment delivered by Shah, J. in (1968) 3 SCR 829 = (AIR 1969 SC 147 ) proceeds all the basis that tax under the Central Sales Tax Act is in its essence a tax which encumbers movement of trade and commerce, but the tax imposed in the case in question was saved by the other provisions of Part XIII, The Court then said that the exercise of the power to tax would normally be presumed to be in the public interest and as Parliament is competent under Article 302 to impose restrictions on the freedom of trade, commerce, and intercourse between one State and another or within any part of the territory of India as may be required in the public interest, the tax was saved8. Bachawat, J. in his judgment in the case said that if a tax on intra-State sales does not offend Article 301, logically, a tax on inter-State sales also cannot do so, that a tax does not operate directly or immediately on the free flow of trade or the free movement or transport of goods from one part of the country to the other, that the tax is on the sale, and that the movement is incidental and a consequence of the sale. He observed further that even assuming that the Central Sales Tax is within the mischief of Article 301, it is certainly a law made by Parliament in the public interest and is saved by Article 302.10. If prevention of evasion of tax is a measure in the public interest, there can be no doubt that Parliament is competent to make a provision for that purpose under Article 302, even if the provision would impose restrictions on the inter-State trade or commerce11. But quite apart from this, the majority judgment in (1968) 3 SCR 829 = (AIR 1969 SC 147 ) has categorically stated that the exercise of the power to tax may normally be presumed to be in the public interest. We do not think it necessary to go into the question whether it is open to the Court to conduct an enquiry whether the levy of a tax is the imposition of a restriction on the freedom of trade and commerce in the public interest. It cannot be presumed, because the rate of tax was 10 per cent at the material time on this class of transaction or the rate fixed by the appropriate State in respect of intra-State sales, whichever was higher, the imposition of this rate was not in the public interest. Therefore, in any view of the matter, Parliament was competent to enact Section 8 (2) (b) of the Act. In other words, even if it be assumed that the tax at the higher rate imposed under Section 8 (2) (b) places restrictions on the freedom of trade and commerce throughout the territory of India, as Parliament is competent to impose restrictions on that freedom in the public interest and as the imposition of a tax is normally to be presumed in the public interest, we see no reason to hold that Section 8 (2) (b) is bad for the reason that it violates Article 30112. As regards the contention that section 8 (2) (b) is violative of Article 303(1) in that there will be varying rates of tax on inter-State sales in different States depending upon their rates of sales tax for intra-State sales and that will lead to the imposition of dissimilar tax on the sale of same or similar commodities, it is enough to state that this question has been considered by this Court in (1968) 3 SCR 829 = (AIR 1969 SC 147 ) and the Court said that the existence of different rates of tax on the sale of the same or similar commodity in different States by itself would not be discriminatory as the flow of trade does not necessarily depend upon the rates of sales tax; it depends, according to the Court, upon a variety of factors such as the source of supply, place of consumption, existence of trade channels, the rates of freight, trading facilities, availability of efficient transport and other facilities for carrying on the trade. The Court referred to the observations of Isaacs, J. inKing v. Barger, (1908) 6 CLR 41 at p. 108and said :..... The Central sales tax though leived for and collected in the name of the Central Government is a part of the sales tax levy imposed for the benefit of the States. By leaving it to the States to levy sales tax in respect of a commodity on intra-State transactions no discrimination is practised; and by authorising the State from which the movement of goods commences to levy on transactions of sale Central sales tax, at rates prevailing in the State, subject to the limitation already set out, in our judgment, no discrimination can be deemed to be practised.. We think there is no merit in the contention that Section 8 (2) (b) of the Act offends the provision of Article 303(1). | 1 | 3,461 | 1,812 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
and that the movement is incidental and a consequence of the sale. He observed further that even assuming that the Central Sales Tax is within the mischief of Article 301, it is certainly a law made by Parliament in the public interest and is saved by Article 302. 9. As already stated, Section 8(2)(b) deals with sale of goods other than declared goods and it is confined to inter-State sale of goods to persons other than registered dealers or Governments. The rate of tax prescribed is ten per cent or the rate of tax imposed on sale or purchase of goods inside the appropriate State, whichever is higher. The report of the Taxation Inquiry Committee would indicate that the main reasons for enacting the provisions was to canalize inter-State trade through registered dealers, over whom the appropriate Government has a great deal of control and thus to prevent evasion of tax : Where transactions take place between registered dealers in one State and unregistered dealers or consumers in another, this low rate of levy will not be suitable, as it is likely to encourage avoidance of tax on more or less of the same scale as the present provisions of Article 286 have done. If this is to be prevented, it is necessary that transactions of this type should be taxable at the same rates which exporting State impose on similar transactions within their own territories. The unregistered dealers and consumers in the importing State will then find themselves unable to secure any advantage over the consumers of locally purchased articles; nor of course will they, under this system be able to escape the taxation altogether, as many of them do at present (See Report of the Taxation Enquiry Commission, 1953-54, Vol. 3, p. 57). In others words, it was to discourage inter-State sale to unregistered dealers that Parliament provided a high rate of tax, namely 10 per cent. But even that might not serve the purpose if the rate applicable to intra-State sales of such goods was more than 10 per cent. The rate of 10 per cent would then be favourable and they would be at an advantage compared to local consumers. It is because of this that Parliament provided, as a matter of legislative policy that the rate of tax shall be 10 per cent or the rate applicable to intra-State sales whichever is higher. 10. If prevention of evasion of tax is a measure in the public interest, there can be no doubt that Parliament is competent to make a provision for that purpose under Article 302, even if the provision would impose restrictions on the inter-State trade or commerce. 11. But quite apart from this, the majority judgment in (1968) 3 SCR 829 = (AIR 1969 SC 147 ) has categorically stated that the exercise of the power to tax may normally be presumed to be in the public interest. We do not think it necessary to go into the question whether it is open to the Court to conduct an enquiry whether the levy of a tax is the imposition of a restriction on the freedom of trade and commerce in the public interest. It cannot be presumed, because the rate of tax was 10 per cent at the material time on this class of transaction or the rate fixed by the appropriate State in respect of intra-State sales, whichever was higher, the imposition of this rate was not in the public interest. Therefore, in any view of the matter, Parliament was competent to enact Section 8 (2) (b) of the Act. In other words, even if it be assumed that the tax at the higher rate imposed under Section 8 (2) (b) places restrictions on the freedom of trade and commerce throughout the territory of India, as Parliament is competent to impose restrictions on that freedom in the public interest and as the imposition of a tax is normally to be presumed in the public interest, we see no reason to hold that Section 8 (2) (b) is bad for the reason that it violates Article 301. 12. As regards the contention that section 8 (2) (b) is violative of Article 303(1) in that there will be varying rates of tax on inter-State sales in different States depending upon their rates of sales tax for intra-State sales and that will lead to the imposition of dissimilar tax on the sale of same or similar commodities, it is enough to state that this question has been considered by this Court in (1968) 3 SCR 829 = (AIR 1969 SC 147 ) and the Court said that the existence of different rates of tax on the sale of the same or similar commodity in different States by itself would not be discriminatory as the flow of trade does not necessarily depend upon the rates of sales tax; it depends, according to the Court, upon a variety of factors such as the source of supply, place of consumption, existence of trade channels, the rates of freight, trading facilities, availability of efficient transport and other facilities for carrying on the trade. The Court referred to the observations of Isaacs, J. in King v. Barger, (1908) 6 CLR 41 at p. 108 and said : ..... The Central sales tax though leived for and collected in the name of the Central Government is a part of the sales tax levy imposed for the benefit of the States. By leaving it to the States to levy sales tax in respect of a commodity on intra-State transactions no discrimination is practised; and by authorising the State from which the movement of goods commences to levy on transactions of sale Central sales tax, at rates prevailing in the State, subject to the limitation already set out, in our judgment, no discrimination can be deemed to be practised. 13. We think there is no merit in the contention that Section 8 (2) (b) of the Act offends the provision of Article 303(1).
### Response:
1
### Explanation:
freedom from which is guaranteed by Article 301, would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade.. In Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan, 1963 Supp 2 SCR 435 = (1963-1 SCR 491 = AIR 1962 SC 1406 ), the Court partically agreed with the view of the majority in Atiabari Tea Co. Ltd.s case (1961) 1 SCR 809 = (AIR 1961 SC 232 ) but added a clarification that a regulatory measure or a measure imposing a compensatory tax for the using of trading facilities would not come within the purview of restrictions contemplated by Article 301. Normally, a tax on sale of goods does not directly interfere with the free flow or movement of trade. But a tax can be such that because of its rate or other features, it might operate to impede the free movement of goods. The majority judgment delivered by Shah, J. in (1968) 3 SCR 829 = (AIR 1969 SC 147 ) proceeds all the basis that tax under the Central Sales Tax Act is in its essence a tax which encumbers movement of trade and commerce, but the tax imposed in the case in question was saved by the other provisions of Part XIII, The Court then said that the exercise of the power to tax would normally be presumed to be in the public interest and as Parliament is competent under Article 302 to impose restrictions on the freedom of trade, commerce, and intercourse between one State and another or within any part of the territory of India as may be required in the public interest, the tax was saved8. Bachawat, J. in his judgment in the case said that if a tax on intra-State sales does not offend Article 301, logically, a tax on inter-State sales also cannot do so, that a tax does not operate directly or immediately on the free flow of trade or the free movement or transport of goods from one part of the country to the other, that the tax is on the sale, and that the movement is incidental and a consequence of the sale. He observed further that even assuming that the Central Sales Tax is within the mischief of Article 301, it is certainly a law made by Parliament in the public interest and is saved by Article 302.10. If prevention of evasion of tax is a measure in the public interest, there can be no doubt that Parliament is competent to make a provision for that purpose under Article 302, even if the provision would impose restrictions on the inter-State trade or commerce11. But quite apart from this, the majority judgment in (1968) 3 SCR 829 = (AIR 1969 SC 147 ) has categorically stated that the exercise of the power to tax may normally be presumed to be in the public interest. We do not think it necessary to go into the question whether it is open to the Court to conduct an enquiry whether the levy of a tax is the imposition of a restriction on the freedom of trade and commerce in the public interest. It cannot be presumed, because the rate of tax was 10 per cent at the material time on this class of transaction or the rate fixed by the appropriate State in respect of intra-State sales, whichever was higher, the imposition of this rate was not in the public interest. Therefore, in any view of the matter, Parliament was competent to enact Section 8 (2) (b) of the Act. In other words, even if it be assumed that the tax at the higher rate imposed under Section 8 (2) (b) places restrictions on the freedom of trade and commerce throughout the territory of India, as Parliament is competent to impose restrictions on that freedom in the public interest and as the imposition of a tax is normally to be presumed in the public interest, we see no reason to hold that Section 8 (2) (b) is bad for the reason that it violates Article 30112. As regards the contention that section 8 (2) (b) is violative of Article 303(1) in that there will be varying rates of tax on inter-State sales in different States depending upon their rates of sales tax for intra-State sales and that will lead to the imposition of dissimilar tax on the sale of same or similar commodities, it is enough to state that this question has been considered by this Court in (1968) 3 SCR 829 = (AIR 1969 SC 147 ) and the Court said that the existence of different rates of tax on the sale of the same or similar commodity in different States by itself would not be discriminatory as the flow of trade does not necessarily depend upon the rates of sales tax; it depends, according to the Court, upon a variety of factors such as the source of supply, place of consumption, existence of trade channels, the rates of freight, trading facilities, availability of efficient transport and other facilities for carrying on the trade. The Court referred to the observations of Isaacs, J. inKing v. Barger, (1908) 6 CLR 41 at p. 108and said :..... The Central sales tax though leived for and collected in the name of the Central Government is a part of the sales tax levy imposed for the benefit of the States. By leaving it to the States to levy sales tax in respect of a commodity on intra-State transactions no discrimination is practised; and by authorising the State from which the movement of goods commences to levy on transactions of sale Central sales tax, at rates prevailing in the State, subject to the limitation already set out, in our judgment, no discrimination can be deemed to be practised.. We think there is no merit in the contention that Section 8 (2) (b) of the Act offends the provision of Article 303(1).
|
Steel Authority Of India Ltd Vs. Salem Stainless Steel Suppliers | the Authority reiterated the contents of its telegram dated December 19, 1989 and further informed them that the suggestion made by the traders in their letter dated December 4, 1989 was not acceptable to the Authority, inter alia, for the reason that the said suggestion was contrary to the scheme contained in the circular.7. The respondents filed a writ petition before the Madras High Court contending that they had started lifting material since December 4, 1989 and as such they sought a direction from the High Court that the discount benefits be disbursed to them. The writ petition was allowed by a learned Single Judge of the High Court by the judgment dated April 17, 1990 primarily on the ground that the clarifications given by the Authority by its letter dated December 2, 1989 were binding on the Authority. The Authority filed appeals against the judgment of the learned Single Judge. A Division Bench of the High Court by the impugned judgment dated October 9, 1990 dismissed the appeal. These appeals by the Steel Authority of India are against the judgment of the Division Bench of the High Court. 8. The Division Bench of the High Court upheld the findings of the learned Single Judge on the following reasoning: “Thus, the entitlement for the discount and the willingness to avail such discount are quite separate and distinct in the sense that while discount is on the quantity lifted and thus these dealers or actual users who qualified under the circular automatically became entitled to discount, the claim on behalf of those who joined in a group was required to be indicated for the purpose of working but some formula under which the discount amount could be equitably distributed among them. Such equitable distribution could be in the manner indicated in the clarification as well as left to the dealers who decided how they would inter se distribute the discount amongst themselves. They indicated a formula in a subsequent letter dated 4.12.1989. It appears however, that nothing was said why the formula indicated by them was not accepted by the appellants. The learned Single Judge has rightly taken notice of this aspect of the matter to conclude that when the writ petitioners are a group of business people who had joined together and had in fact lifted quantities in excess of 400 metric tonnes in the month of December, 1989, and when they projected a claim for a discount based on the scheme which is still in force, the refusal on the part of the appellants to implement the scheme cannot be permitted. We are satisfied that there has been no mistake committed by the learned, Single Judge in accepting the promise under the circular of the entitlement of discount as clarified under letter dt. 2.12.89. The right under the circular was not in the nature of a contract which depended upon the acceptance or otherwise of the offer of the appellants by the dealers.” It is obvious that the High Court did not allow the writ petitions on the ground that a binding contract had concluded between the parties but solely on the ground that under the price circular dated March 17, 1989 the respondents were entitled to the discount. We agree with the High Court that the respondents could claim the discount only in terms of the price circular and not on the basis of any contract purported to have been concluded as a result of the correspondence exchanged between the parties. We are, however, of the view that High Court felt into patent error in appreciating the scope and extent of the circular. A bare reading of the circular makes it clear that the benefit there under was available to “any customer” and not to a group of customers. Suppose there are 20 traders in the city of Madras and each one of them lifts 300 tonnes of steel per month. The off take being less than 400 tonnes per month, individually none of them would be entitled to the benefit of the scheme. Can they claim that since jointly they have lifted 6000 tones of steel which is more than 400 tonnes in a particular month they are entitled to the discount under the scheme for the off take over and above 400 tones. Accepting such a claim would be making mockery of the scheme under the circular. As mentioned above the price discount scheme under the circular was for “any customer” and not for “group of customers”. The circular did not permit a group of customers not related to each other by Constitution to avail the benefit of the scheme on the basis of their combined off-take. The respondents could not have availed the benefit of the scheme jointly unless and until the scheme as a whole was amended and made applicable to all the customers of the Authority by issuing a fresh circular informing all concerned about the change in the scheme. 9. Even otherwise there could be no concluded contract between the parties. It was for the first time on December 4, 1989 that the six traders made an offer and expressed their desire to avail the benefit of the circular on the basis of their combined off-take. Prior to that there was no communication from the traders as a group to the Authority with regard to the admissibility of any such discount to them under the circular. The methodology suggested by the traders to share the discount was not envisaged under the circular. The said method was even not in accordance with the letter dated December 2, 1989 written by the Authority. The Authority rejected the offer of the traders by its telegram dated December 19, 1989 and the letter dated January 23, 1990. No concluded contract can, thus, be deciphered from the correspondence between the parties. Looked from any angle, the High Court fell into patent error in directing the Authority to extend the benefit of the circular to the respondents. 10. | 1[ds]9. Even otherwise there could be no concluded contract between the parties. It was for the first time on December 4, 1989 that the six traders made an offer and expressed their desire to avail the benefit of the circular on the basis of their combinedPrior to that there was no communication from the traders as a group to the Authority with regard to the admissibility of any such discount to them under the circular. The methodology suggested by the traders to share the discount was not envisaged under the circular. The said method was even not in accordance with the letter dated December 2, 1989 written by the Authority. The Authority rejected the offer of the traders by its telegram dated December 19, 1989 and the letter dated January 23, 1990. No concluded contract can, thus, be deciphered from the correspondence between the parties. Looked from any angle, the High Court fell into patent error in directing the Authority to extend the benefit of the circular to theis obvious that the High Court did not allow the writ petitions on the ground that a binding contract had concluded between the parties but solely on the ground that under the price circular dated March 17, 1989 the respondents were entitled to the discount. We agree with the High Court that the respondents could claim the discount only in terms of the price circular and not on the basis of any contract purported to have beenas a result of the correspondence exchanged between the parties. We are, however, of the view that High Court felt into patent error inthe scope and extent of the circular. A bare reading of the circular makes it clear that the benefit there under was available tond not to a group of customers. Suppose there are 20 traders in the city of Madras and each one of them lifts 300 tonnes of steel per month. Thetake being less than 400 tonnes per month, individually none of them would be entitled to the benefit of the scheme. Can they claim that since jointly they have lifted 6000 tones of steel which is more than 400 tonnes in a particular month they are entitled to the discount under the scheme for the off take over and above 400 tones. Accepting such a claim would be making mockery of the scheme under the circular. As mentioned above the price discount scheme under the circular was fornd not forThe circular did not permit a group of customers not related to each other by Constitution to avail the benefit of the scheme on the basis of their combinedThe respondents could not have availed the benefit of the scheme jointly unless and until the scheme as a whole was amended and made applicable to all the customers of the Authority by issuing a fresh circular informing all concerned about the change in the scheme.Even otherwise there could be no concluded contract between the parties. It was for the first time on December 4, 1989 that the six traders made an offer and expressed their desire to avail the benefit of the circular on the basis of their combinedr to that there was no communication from the traders as a group to the Authority with regard to the admissibility of any such discount to them under the circular. The methodology suggested by the traders to share the discount was not envisaged under the circular. The said method was even not in accordance with the letter dated December 2, 1989 written by the Authority. The Authority rejected the offer of the traders by its telegram dated December 19, 1989 and the letter dated January 23, 1990. No concluded contract can, thus, be deciphered from the correspondence between the parties. Looked from any angle, the High Court fell into patent error in directing the Authority to extend the benefit of the circular to the | 1 | 2,065 | 692 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
the Authority reiterated the contents of its telegram dated December 19, 1989 and further informed them that the suggestion made by the traders in their letter dated December 4, 1989 was not acceptable to the Authority, inter alia, for the reason that the said suggestion was contrary to the scheme contained in the circular.7. The respondents filed a writ petition before the Madras High Court contending that they had started lifting material since December 4, 1989 and as such they sought a direction from the High Court that the discount benefits be disbursed to them. The writ petition was allowed by a learned Single Judge of the High Court by the judgment dated April 17, 1990 primarily on the ground that the clarifications given by the Authority by its letter dated December 2, 1989 were binding on the Authority. The Authority filed appeals against the judgment of the learned Single Judge. A Division Bench of the High Court by the impugned judgment dated October 9, 1990 dismissed the appeal. These appeals by the Steel Authority of India are against the judgment of the Division Bench of the High Court. 8. The Division Bench of the High Court upheld the findings of the learned Single Judge on the following reasoning: “Thus, the entitlement for the discount and the willingness to avail such discount are quite separate and distinct in the sense that while discount is on the quantity lifted and thus these dealers or actual users who qualified under the circular automatically became entitled to discount, the claim on behalf of those who joined in a group was required to be indicated for the purpose of working but some formula under which the discount amount could be equitably distributed among them. Such equitable distribution could be in the manner indicated in the clarification as well as left to the dealers who decided how they would inter se distribute the discount amongst themselves. They indicated a formula in a subsequent letter dated 4.12.1989. It appears however, that nothing was said why the formula indicated by them was not accepted by the appellants. The learned Single Judge has rightly taken notice of this aspect of the matter to conclude that when the writ petitioners are a group of business people who had joined together and had in fact lifted quantities in excess of 400 metric tonnes in the month of December, 1989, and when they projected a claim for a discount based on the scheme which is still in force, the refusal on the part of the appellants to implement the scheme cannot be permitted. We are satisfied that there has been no mistake committed by the learned, Single Judge in accepting the promise under the circular of the entitlement of discount as clarified under letter dt. 2.12.89. The right under the circular was not in the nature of a contract which depended upon the acceptance or otherwise of the offer of the appellants by the dealers.” It is obvious that the High Court did not allow the writ petitions on the ground that a binding contract had concluded between the parties but solely on the ground that under the price circular dated March 17, 1989 the respondents were entitled to the discount. We agree with the High Court that the respondents could claim the discount only in terms of the price circular and not on the basis of any contract purported to have been concluded as a result of the correspondence exchanged between the parties. We are, however, of the view that High Court felt into patent error in appreciating the scope and extent of the circular. A bare reading of the circular makes it clear that the benefit there under was available to “any customer” and not to a group of customers. Suppose there are 20 traders in the city of Madras and each one of them lifts 300 tonnes of steel per month. The off take being less than 400 tonnes per month, individually none of them would be entitled to the benefit of the scheme. Can they claim that since jointly they have lifted 6000 tones of steel which is more than 400 tonnes in a particular month they are entitled to the discount under the scheme for the off take over and above 400 tones. Accepting such a claim would be making mockery of the scheme under the circular. As mentioned above the price discount scheme under the circular was for “any customer” and not for “group of customers”. The circular did not permit a group of customers not related to each other by Constitution to avail the benefit of the scheme on the basis of their combined off-take. The respondents could not have availed the benefit of the scheme jointly unless and until the scheme as a whole was amended and made applicable to all the customers of the Authority by issuing a fresh circular informing all concerned about the change in the scheme. 9. Even otherwise there could be no concluded contract between the parties. It was for the first time on December 4, 1989 that the six traders made an offer and expressed their desire to avail the benefit of the circular on the basis of their combined off-take. Prior to that there was no communication from the traders as a group to the Authority with regard to the admissibility of any such discount to them under the circular. The methodology suggested by the traders to share the discount was not envisaged under the circular. The said method was even not in accordance with the letter dated December 2, 1989 written by the Authority. The Authority rejected the offer of the traders by its telegram dated December 19, 1989 and the letter dated January 23, 1990. No concluded contract can, thus, be deciphered from the correspondence between the parties. Looked from any angle, the High Court fell into patent error in directing the Authority to extend the benefit of the circular to the respondents. 10.
### Response:
1
### Explanation:
9. Even otherwise there could be no concluded contract between the parties. It was for the first time on December 4, 1989 that the six traders made an offer and expressed their desire to avail the benefit of the circular on the basis of their combinedPrior to that there was no communication from the traders as a group to the Authority with regard to the admissibility of any such discount to them under the circular. The methodology suggested by the traders to share the discount was not envisaged under the circular. The said method was even not in accordance with the letter dated December 2, 1989 written by the Authority. The Authority rejected the offer of the traders by its telegram dated December 19, 1989 and the letter dated January 23, 1990. No concluded contract can, thus, be deciphered from the correspondence between the parties. Looked from any angle, the High Court fell into patent error in directing the Authority to extend the benefit of the circular to theis obvious that the High Court did not allow the writ petitions on the ground that a binding contract had concluded between the parties but solely on the ground that under the price circular dated March 17, 1989 the respondents were entitled to the discount. We agree with the High Court that the respondents could claim the discount only in terms of the price circular and not on the basis of any contract purported to have beenas a result of the correspondence exchanged between the parties. We are, however, of the view that High Court felt into patent error inthe scope and extent of the circular. A bare reading of the circular makes it clear that the benefit there under was available tond not to a group of customers. Suppose there are 20 traders in the city of Madras and each one of them lifts 300 tonnes of steel per month. Thetake being less than 400 tonnes per month, individually none of them would be entitled to the benefit of the scheme. Can they claim that since jointly they have lifted 6000 tones of steel which is more than 400 tonnes in a particular month they are entitled to the discount under the scheme for the off take over and above 400 tones. Accepting such a claim would be making mockery of the scheme under the circular. As mentioned above the price discount scheme under the circular was fornd not forThe circular did not permit a group of customers not related to each other by Constitution to avail the benefit of the scheme on the basis of their combinedThe respondents could not have availed the benefit of the scheme jointly unless and until the scheme as a whole was amended and made applicable to all the customers of the Authority by issuing a fresh circular informing all concerned about the change in the scheme.Even otherwise there could be no concluded contract between the parties. It was for the first time on December 4, 1989 that the six traders made an offer and expressed their desire to avail the benefit of the circular on the basis of their combinedr to that there was no communication from the traders as a group to the Authority with regard to the admissibility of any such discount to them under the circular. The methodology suggested by the traders to share the discount was not envisaged under the circular. The said method was even not in accordance with the letter dated December 2, 1989 written by the Authority. The Authority rejected the offer of the traders by its telegram dated December 19, 1989 and the letter dated January 23, 1990. No concluded contract can, thus, be deciphered from the correspondence between the parties. Looked from any angle, the High Court fell into patent error in directing the Authority to extend the benefit of the circular to the
|
Commnr. Central Excise & Customs, Mumbai & Others Vs. M/s. I.T.C. Ltd. & Others | of Section 11-A of the Act would clearly show that the impugned show cause notices were illegal.19. Section 11-A of the Act provides for a penal provision. Before a penalty can be levied, the procedures laid down therein must be complied with. For construction of a penal provision, it is trite, the golden rule of literal interpretation should be applied. The difficulty which may be faced by the Revenue is of no consequence. The power under Section 11-A of the Act can be invoked only when a duty has not been levied or paid or has been short-levied or short-paid. Such a proceeding can be initiated within six months from the relevant date which in terms of Sub-section (3)(ii)(b) of Section 11-A of the Act (which is applicable in the instant case) in a case where duty of excise is provisionally assessed under the Act or the Rules made thereunder, the date of adjustment of duty after the final assessment thereof. A proceeding under Section 11-A of the Act cannot, therefore, be initiated without completing the assessment proceedings. 20. Ranganathan, J. in Ujjagar Prints (II) v. Union of India [(1989) 3 SCC 488] defined the word “levied” in the following terms: “...The word “levied” is a wide and generic expression. One can say with as much appropriateness that the Income Tax Act levies a tax on income as that the Income Tax Officer levies the tax in accordance with the provisions of the Act. It is an expression of wide import and takes in all the stages of charge, quantification and recovery of duty, though in certain contexts it may have a restricted meaning...” 21. The question as to non-levy or short-levy of an excise duty would arise only when the levy had been laid in accordance with law. When a duty is levied, it becomes payable which in turn would mean legally recoverable. 22. In New Delhi Municipal Committee v. Kalu Ram [(1976) 3 SCC 407] , the word “payable” has been defined in the following terms: “The word “payable” is somewhat indefinite in import and its meaning must be gathered from the context in which it occurs. “payable” generally means that which should be paid.” 23. Concededly, in terms of the provisions of the Act and the Rules framed thereunder, the amount becomes payable only in the event, the assessee does not deposit the amount levied within a period of ten days from the date of completion of the order of assessment. A provisional assessment is made in terms of Rule 9B inter alia at the instance of the assessee. Such a recourse is resorted to only when the conditions laid down therein are satisfied, viz., where the assessee is found to be unable to produce any document or furnish any information necessary for assessment of duty on any excisable good.24. Whereas provisional duty is levied in terms of Sub-Rule (1) of Rule 9B, final assessment is contemplated under Sub-Rule (5) thereof by reason of which the duty provisionally assessed shall be adjusted against the duty finally assessed and in the event, the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee will pay the deficiency or will be entitled to a refund, as the case may be. Ultimately, thus, the liability of the assessee would depend upon the undertaking of exercises by the assessing officer to complete the assessment proceeding as contemplated under the Rules.25. On a plain reading of the provisions of the Act and the Rules framed thereunder, we have no doubt in our mind that the Tribunal was correct in its finding that the impugned show cause notices were illegal.26. The question came up for consideration before this Court in Serai Kella Glass Works Pvt. Ltd. v. Collector of C. Excise, Patna [1997 (91) ELT 497 : (1997) 4 SCC 641 ] wherein this Court clearly opined: “Section 11-A deals with recovery of duty not levied or not paid or short-levied or short-paid or erroneously refunded. Proceedings under Section 11-A have to be commenced with a show-cause notice issued within six months from the relevant date. “Relevant date” has been defined under sub- section (3)(ii) to mean in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof.After final assessment, a copy of the order on the return filed by the assessee has to be sent to him. Duty has to be paid by the assessee on the basis of the final assessment within ten days time from the receipt of the return. No question of giving any notice under Section 11-A arises in such a case. It is only when even after final assessment and payment of duties, it is found that there has been a short-levy or non-levy of duty, the Excise Officer is empowered to take proceedings under Section 11-A within the period of limitation after issuing a show-cause notice. In such a case, limitation period will run from the date of the final assessment. The scope of Section 11-A and Rule 173-I are quite different. In this case, the provisional assessment earlier made by the proper officer has been quashed and pursuant to the direction of the High Court, the proper officer has made the final assessment. No question of failure of issuance of show-cause notice under Section 11- A arises in this case. Even otherwise, we do not find any infirmity in the order of the Tribunal.” 27. The said decision has been relied upon by the Tribunal in arriving at its finding. The learned Additional Solicitor General would contend that the said decision was rendered in a different fact situation. We do not agree, as the ratio is clearly decipherable therefrom. 28. The said decision was noticed by a Division Bench of this Court in M/s. Duncans Industries Ltd., Calcutta vs. Commissioner of Central Excise, New Delhi [2006 (8) SCALE 463 ]. | 0[ds]23. Concededly, in terms of the provisions of the Act and the Rules framed thereunder, the amount becomes payable only in the event, the assessee does not deposit the amount levied within a period of ten days from the date of completion of the order of assessment. A provisional assessment is made in terms of Rule 9B inter alia at the instance of the assessee. Such a recourse is resorted to only when the conditions laid down therein are satisfied, viz., where the assessee is found to be unable to produce any document or furnish any information necessary for assessment of duty on any excisable good.24. Whereas provisional duty is levied in terms of Sub-Rule (1) of Rule 9B, final assessment is contemplated under Sub-Rule (5) thereof by reason of which the duty provisionally assessed shall be adjusted against the duty finally assessed and in the event, the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee will pay the deficiency or will be entitled to a refund, as the case may be. Ultimately, thus, the liability of the assessee would depend upon the undertaking of exercises by the assessing officer to complete the assessment proceeding as contemplated under the Rules.25. On a plain reading of the provisions of the Act and the Rules framed thereunder, we have no doubt in our mind that the Tribunal was correct in its finding that the impugned show cause notices were illegal. | 0 | 3,228 | 274 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
of Section 11-A of the Act would clearly show that the impugned show cause notices were illegal.19. Section 11-A of the Act provides for a penal provision. Before a penalty can be levied, the procedures laid down therein must be complied with. For construction of a penal provision, it is trite, the golden rule of literal interpretation should be applied. The difficulty which may be faced by the Revenue is of no consequence. The power under Section 11-A of the Act can be invoked only when a duty has not been levied or paid or has been short-levied or short-paid. Such a proceeding can be initiated within six months from the relevant date which in terms of Sub-section (3)(ii)(b) of Section 11-A of the Act (which is applicable in the instant case) in a case where duty of excise is provisionally assessed under the Act or the Rules made thereunder, the date of adjustment of duty after the final assessment thereof. A proceeding under Section 11-A of the Act cannot, therefore, be initiated without completing the assessment proceedings. 20. Ranganathan, J. in Ujjagar Prints (II) v. Union of India [(1989) 3 SCC 488] defined the word “levied” in the following terms: “...The word “levied” is a wide and generic expression. One can say with as much appropriateness that the Income Tax Act levies a tax on income as that the Income Tax Officer levies the tax in accordance with the provisions of the Act. It is an expression of wide import and takes in all the stages of charge, quantification and recovery of duty, though in certain contexts it may have a restricted meaning...” 21. The question as to non-levy or short-levy of an excise duty would arise only when the levy had been laid in accordance with law. When a duty is levied, it becomes payable which in turn would mean legally recoverable. 22. In New Delhi Municipal Committee v. Kalu Ram [(1976) 3 SCC 407] , the word “payable” has been defined in the following terms: “The word “payable” is somewhat indefinite in import and its meaning must be gathered from the context in which it occurs. “payable” generally means that which should be paid.” 23. Concededly, in terms of the provisions of the Act and the Rules framed thereunder, the amount becomes payable only in the event, the assessee does not deposit the amount levied within a period of ten days from the date of completion of the order of assessment. A provisional assessment is made in terms of Rule 9B inter alia at the instance of the assessee. Such a recourse is resorted to only when the conditions laid down therein are satisfied, viz., where the assessee is found to be unable to produce any document or furnish any information necessary for assessment of duty on any excisable good.24. Whereas provisional duty is levied in terms of Sub-Rule (1) of Rule 9B, final assessment is contemplated under Sub-Rule (5) thereof by reason of which the duty provisionally assessed shall be adjusted against the duty finally assessed and in the event, the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee will pay the deficiency or will be entitled to a refund, as the case may be. Ultimately, thus, the liability of the assessee would depend upon the undertaking of exercises by the assessing officer to complete the assessment proceeding as contemplated under the Rules.25. On a plain reading of the provisions of the Act and the Rules framed thereunder, we have no doubt in our mind that the Tribunal was correct in its finding that the impugned show cause notices were illegal.26. The question came up for consideration before this Court in Serai Kella Glass Works Pvt. Ltd. v. Collector of C. Excise, Patna [1997 (91) ELT 497 : (1997) 4 SCC 641 ] wherein this Court clearly opined: “Section 11-A deals with recovery of duty not levied or not paid or short-levied or short-paid or erroneously refunded. Proceedings under Section 11-A have to be commenced with a show-cause notice issued within six months from the relevant date. “Relevant date” has been defined under sub- section (3)(ii) to mean in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof.After final assessment, a copy of the order on the return filed by the assessee has to be sent to him. Duty has to be paid by the assessee on the basis of the final assessment within ten days time from the receipt of the return. No question of giving any notice under Section 11-A arises in such a case. It is only when even after final assessment and payment of duties, it is found that there has been a short-levy or non-levy of duty, the Excise Officer is empowered to take proceedings under Section 11-A within the period of limitation after issuing a show-cause notice. In such a case, limitation period will run from the date of the final assessment. The scope of Section 11-A and Rule 173-I are quite different. In this case, the provisional assessment earlier made by the proper officer has been quashed and pursuant to the direction of the High Court, the proper officer has made the final assessment. No question of failure of issuance of show-cause notice under Section 11- A arises in this case. Even otherwise, we do not find any infirmity in the order of the Tribunal.” 27. The said decision has been relied upon by the Tribunal in arriving at its finding. The learned Additional Solicitor General would contend that the said decision was rendered in a different fact situation. We do not agree, as the ratio is clearly decipherable therefrom. 28. The said decision was noticed by a Division Bench of this Court in M/s. Duncans Industries Ltd., Calcutta vs. Commissioner of Central Excise, New Delhi [2006 (8) SCALE 463 ].
### Response:
0
### Explanation:
23. Concededly, in terms of the provisions of the Act and the Rules framed thereunder, the amount becomes payable only in the event, the assessee does not deposit the amount levied within a period of ten days from the date of completion of the order of assessment. A provisional assessment is made in terms of Rule 9B inter alia at the instance of the assessee. Such a recourse is resorted to only when the conditions laid down therein are satisfied, viz., where the assessee is found to be unable to produce any document or furnish any information necessary for assessment of duty on any excisable good.24. Whereas provisional duty is levied in terms of Sub-Rule (1) of Rule 9B, final assessment is contemplated under Sub-Rule (5) thereof by reason of which the duty provisionally assessed shall be adjusted against the duty finally assessed and in the event, the duty provisionally assessed falls short of or is in excess of the duty finally assessed, the assessee will pay the deficiency or will be entitled to a refund, as the case may be. Ultimately, thus, the liability of the assessee would depend upon the undertaking of exercises by the assessing officer to complete the assessment proceeding as contemplated under the Rules.25. On a plain reading of the provisions of the Act and the Rules framed thereunder, we have no doubt in our mind that the Tribunal was correct in its finding that the impugned show cause notices were illegal.
|
The Vith Income-Tax Officer, City Circle Ii-A, Abangalore Vs. K.Y. Pillaiah & Sons | Shah, J. 1. The respondents - a Hindu undivided family - were assessed for the assessment year 1949-50 to tax under S. 23 of the Mysore Income-tax Act on a total income of Rs. 10,100/-. The Second Additional Income-tax Officer (Urban Circle) Bangalore, commenced a proceeding under S. 34 of the Mysore Income-tax Act for reassessment of the income of the respondent for the assessment year 1949-50, and served a notice in that behalf on March 6, 1951. On May 21, 1954 the Income-tax Officer determined the respondents total income at Rs. 75,957/-. In appeal against the order the Appellate Assistant Commissioner of Income-tax, A Range, Bangalore, by order dated November 4, 1961, set aside the order and directed the Income-tax Officer to make a fresh assessment after making inquiries on certain matters specified in the order. 2. At the request of the respondent under S. 66 (2) Of the Mysore Income-tax Act, the Commissioner of Income-tax, Mysore, referred the following questions to the High Court of Mysore :"1. On the facts and in the circumstances of the assessees case whether within the meaning of S. 94 of the Mysore Incometax Act, if a notice under that section is issued within the prescribed period, whether the Income-tax Officer can proceed to assess or re-assess such escaped income after four years from the close of the assessment year ? 2. On the facts and in the circumstances of the case, whether the Appellate Assistant Commissioner of Income-tax is competent to set aside and give directions to the Incometax Officer to re-do the assessment in the manner the Appellate Assistant Commissioner of Income-tax has done ?" At the hearing of the reference, the respondents did not press the first question, and the High Court answered the second question in the affirmative. 3. The Income-tax Officer commenced inquiry directed by the Appellate Assistant Commissioner. The respondents then applied to the High Court of Mysore for issue of a writ of prohibition restraining the Income-tax Officer from continuing the assessment proceeding for the year 1949-50 on the plea that the proceeding was because of expiry of the period of limitation barred. The High Court of Mysore upheld the contention of the respondents and allowed the petition. In the view of the High Court the provisions of S. 34 of the Mysore Incometax Act were "more or less similar to Rule 34 of the Mysore Sales Tax Act, 1948. Hence the present case clearly comes within the rule laid down by this Court in K. S. Subbarayappa and Sons v. State of Mysore, 1952 Mys LJ 234 which means that the present proceedings are barred." The Commissioner of Income-tax has appealed to this Court with special leave. 4. The question arising in this appeal must, it is common ground, be determined in the light of the provisions of the Mysore Income-tax Act, 1923. Even after the merger of the State of Mysore with the Union of India a proceeding for assessment of income-tax relating to the assessment year 1949-50 has to be heard and disposed of under the Mysore Act. Section 34 of the Mysore Income-tax Act reads as follows :"If for any reason, profits or gains chargeable to income-tax have escaped assessment in any year, or have been assessed at too low a rate, the Income-tax Officer may, at any time within four years of the end of that year, serve on the person liable to pay tax on such income, profits or gains, or in the case of a company, on the principal officer thereof a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of Section 22, and may proceed to assess or re-assess such income, profits or gains and the provisions of this Act shall, so far as may be, apply according as if the notice were issued under that sub-section." A proceeding for re-assessment under S. 84 of the Mysore Act may be commenced if two conditions co-exist :(i) that the profits and gains chargeable to income-tax have escaped assessment or have been assessed at too low a rate, and (ii) the notice is served within four years of the end of the year of assessment. But if a proper notice is served within the period provided by the section, the proceeding may be completed in even after the expiry of four years from the close of the assessment year, for the Act prescribes no period for completion of the proceeding. 5. A notice for re-assessment was in fact served on the respondents on March 6, 1951 under S. 34 of the Mysore Act. That notice was served within four years of the end of the year of assessment 1949-50, and the Income-tax Officer was of the view that the profits or gains chargeable to income-tax had escaped assessment in the year 1949-50. It is true that the Appellate Assistant Commissioner vacated the order of assessment dated May 21, 1954, but he did not set aside the notice served upon the respondents. He merely remanded the case for further inquiry to be made in the light of the directions given by him. It is difficult to appreciate the grounds on which it could be held that the proceeding for re-assessment to tax the income which had escaped assessment in the year 1949-50 commenced after due notice served on March 1951 was barred. The High Court was, in our judgment, plainly in error in holding that the proceeding for re-assessment was barred. 6. It must also be remembered that the respondents had under an order of the Commissioner obtained a reference on the first question set out hereinbefore. That question was not pressed before the High Court, and it must be deemed to have been answered against the respondents. That question could not thereafter be re-agitated by the respondents in a petition for the issue of a writ under Art. 226 of the Constitution. | 1[ds]It is true that the Appellate Assistant Commissioner vacated the order of assessment dated May 21, 1954, but he did not set aside the notice served upon the respondents. He merely remanded the case for further inquiry to be made in the light of the directions given by him. It is difficult to appreciate the grounds on which it could be held that the proceeding for re-assessment to tax the income which had escaped assessment in the year 1949-50 commenced after due notice served on March 1951 was barred. The High Court was, in our judgment, plainly in error in holding that the proceeding for re-assessment was barred6. It must also be remembered that the respondents had under an order of the Commissioner obtained a reference on the first question set out hereinbefore. That question was not pressed before the High Court, and it must be deemed to have been answered against the respondents. That question could not thereafter be re-agitated by the respondents in a petition for the issue of a writ under Art. 226 of the Constitution. | 1 | 1,093 | 196 | ### 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:
Shah, J. 1. The respondents - a Hindu undivided family - were assessed for the assessment year 1949-50 to tax under S. 23 of the Mysore Income-tax Act on a total income of Rs. 10,100/-. The Second Additional Income-tax Officer (Urban Circle) Bangalore, commenced a proceeding under S. 34 of the Mysore Income-tax Act for reassessment of the income of the respondent for the assessment year 1949-50, and served a notice in that behalf on March 6, 1951. On May 21, 1954 the Income-tax Officer determined the respondents total income at Rs. 75,957/-. In appeal against the order the Appellate Assistant Commissioner of Income-tax, A Range, Bangalore, by order dated November 4, 1961, set aside the order and directed the Income-tax Officer to make a fresh assessment after making inquiries on certain matters specified in the order. 2. At the request of the respondent under S. 66 (2) Of the Mysore Income-tax Act, the Commissioner of Income-tax, Mysore, referred the following questions to the High Court of Mysore :"1. On the facts and in the circumstances of the assessees case whether within the meaning of S. 94 of the Mysore Incometax Act, if a notice under that section is issued within the prescribed period, whether the Income-tax Officer can proceed to assess or re-assess such escaped income after four years from the close of the assessment year ? 2. On the facts and in the circumstances of the case, whether the Appellate Assistant Commissioner of Income-tax is competent to set aside and give directions to the Incometax Officer to re-do the assessment in the manner the Appellate Assistant Commissioner of Income-tax has done ?" At the hearing of the reference, the respondents did not press the first question, and the High Court answered the second question in the affirmative. 3. The Income-tax Officer commenced inquiry directed by the Appellate Assistant Commissioner. The respondents then applied to the High Court of Mysore for issue of a writ of prohibition restraining the Income-tax Officer from continuing the assessment proceeding for the year 1949-50 on the plea that the proceeding was because of expiry of the period of limitation barred. The High Court of Mysore upheld the contention of the respondents and allowed the petition. In the view of the High Court the provisions of S. 34 of the Mysore Incometax Act were "more or less similar to Rule 34 of the Mysore Sales Tax Act, 1948. Hence the present case clearly comes within the rule laid down by this Court in K. S. Subbarayappa and Sons v. State of Mysore, 1952 Mys LJ 234 which means that the present proceedings are barred." The Commissioner of Income-tax has appealed to this Court with special leave. 4. The question arising in this appeal must, it is common ground, be determined in the light of the provisions of the Mysore Income-tax Act, 1923. Even after the merger of the State of Mysore with the Union of India a proceeding for assessment of income-tax relating to the assessment year 1949-50 has to be heard and disposed of under the Mysore Act. Section 34 of the Mysore Income-tax Act reads as follows :"If for any reason, profits or gains chargeable to income-tax have escaped assessment in any year, or have been assessed at too low a rate, the Income-tax Officer may, at any time within four years of the end of that year, serve on the person liable to pay tax on such income, profits or gains, or in the case of a company, on the principal officer thereof a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of Section 22, and may proceed to assess or re-assess such income, profits or gains and the provisions of this Act shall, so far as may be, apply according as if the notice were issued under that sub-section." A proceeding for re-assessment under S. 84 of the Mysore Act may be commenced if two conditions co-exist :(i) that the profits and gains chargeable to income-tax have escaped assessment or have been assessed at too low a rate, and (ii) the notice is served within four years of the end of the year of assessment. But if a proper notice is served within the period provided by the section, the proceeding may be completed in even after the expiry of four years from the close of the assessment year, for the Act prescribes no period for completion of the proceeding. 5. A notice for re-assessment was in fact served on the respondents on March 6, 1951 under S. 34 of the Mysore Act. That notice was served within four years of the end of the year of assessment 1949-50, and the Income-tax Officer was of the view that the profits or gains chargeable to income-tax had escaped assessment in the year 1949-50. It is true that the Appellate Assistant Commissioner vacated the order of assessment dated May 21, 1954, but he did not set aside the notice served upon the respondents. He merely remanded the case for further inquiry to be made in the light of the directions given by him. It is difficult to appreciate the grounds on which it could be held that the proceeding for re-assessment to tax the income which had escaped assessment in the year 1949-50 commenced after due notice served on March 1951 was barred. The High Court was, in our judgment, plainly in error in holding that the proceeding for re-assessment was barred. 6. It must also be remembered that the respondents had under an order of the Commissioner obtained a reference on the first question set out hereinbefore. That question was not pressed before the High Court, and it must be deemed to have been answered against the respondents. That question could not thereafter be re-agitated by the respondents in a petition for the issue of a writ under Art. 226 of the Constitution.
### Response:
1
### Explanation:
It is true that the Appellate Assistant Commissioner vacated the order of assessment dated May 21, 1954, but he did not set aside the notice served upon the respondents. He merely remanded the case for further inquiry to be made in the light of the directions given by him. It is difficult to appreciate the grounds on which it could be held that the proceeding for re-assessment to tax the income which had escaped assessment in the year 1949-50 commenced after due notice served on March 1951 was barred. The High Court was, in our judgment, plainly in error in holding that the proceeding for re-assessment was barred6. It must also be remembered that the respondents had under an order of the Commissioner obtained a reference on the first question set out hereinbefore. That question was not pressed before the High Court, and it must be deemed to have been answered against the respondents. That question could not thereafter be re-agitated by the respondents in a petition for the issue of a writ under Art. 226 of the Constitution.
|
Panipat Co-Operative Sugar Mills etc Vs. Union of India | stocks lying unrealeased with the factories both in the case of levy as well as free sugar, with the result that the factories had to bear additional interest on the working capital involved in such unreleased stocks. The usual period of six months for the release of stock on the basis of which the return on capital at the static figure of Rs. 10.50 a quintal had actually become unrealistic. The result, therefore, was that the factories could not expect to get the said return on the capital employed.40. Since the question was an important one we called upon the Government to disclose the correspondence, if any, which it had in this connection with the Tariff Commission. Thereupon the Government produced the relevant correspondence. It appears from that correspondence that on March 26, 1970 the Indian Sugar Mills Association had made a representation for addition in the return of Rs. 10.50 on the ground that the 1969-70 years production had come to 42 lac tonnes, an all time record and in addition thereto there was already at hand a large stock lying undisposed of resulting in the component of working capital being very much higher than that calculated by the Tariff Commission while fixing Rs. 10.50 as the return. On June 5, 1970, the Government referred this representation to the Commission. By its letter dated July 29, 1970, the Commission recommended that the question of accumulation of stocks as represented by the association required sympathetic consideration and suggested an increase in lieu of interest at 9% on the additional working capital represented by the accumulated stock.41. In considering this claim, however, two facts need to be borne in mind. The production in 1970-71 was not as high as that in 1969-70 and in fact had considerably declined. So far as the Haryana factories were concerned, none of them had purchased cane at a price higher than the minimum fixed by Government, although the assumption behind the policy of partial control leaving 40% of the stock for free market and the unconventional method of granting a fixed return of Rs. 10.50 was that these two factors would enable the manufacturer to pay a higher cane price. The figures supplied to us by Government called out from the returns filed by the factories would also suggest that the claim for Rs. 2.29 per quintal was not warranted. The total production by the Haryana factories during 1970-71 was of the tune of 82,756 tonnes. Despatches upto May 24, 1971, when sugar was decontrolled, of free sugar were 7,065 tonnes at Rs. 139.70 per quintal. Despatches of levy sugar, upto the date of the interim order of stay dated April 8, 1971 were 2,380 tonnes and from April 8, 1971 to May 24, 1971, 4,194 tonnes at Rupees 158.02 per quintal. The balance of stock lying with the factories as on June 1, 1971 was 6911.7 tonnes. Despatches during the decontrol period, i.e., from June 1, 1971 to December 31, 1971 were 63,023 tonnes at the rate of Rs. 151.39 per quintal, leaving a balance in hand of 6094 tonnes. It may be mentioned that on June 30, 1972 the stock lying on hand came to 427 tonnes only. Since this was the position, the claim for additional interest at Rs. 2.29 per quintal does not appear to be sustainable, nor also the claim for deterioration of stock owing to the stock lying stored up beyond the normal period, the loss by way of deterioration during such period being the normal incidence of the trade which the manufacturer must anticipate.42. Regarding the claim of 63 paise owing to increase in freightage (i.e., of 54 paise by road and 9 paise by rail), the Tariff Commission refused to concede that claim. Even before us there are no adequate materials to come to any precise conclusion as to the extra burden which the appellants had actually to bear, though increase in freightage during the year is admitted.43. Have the Haryana factories then not received in fact during 1970-71 the reasonable return as envisaged by sub-section (3C) ?44. The actual figures of the year for duration and recovery were not in dispute. They were 162 days and 8.69% respectively. On that basis, the cost, according to the cost-schedule worked out for Haryana by the Commission, would come to Rs. 126.61, including Rs. 10.50. To that amount may be added the following, even assuming that they are all allowable : (1) increase in wages, Re. 1.05, (2) increase in depreciation, 56 paise, (3) deterioration in quality, 10 paise, (4) insurance and godown costs, 7 paise, (5) increase in cost of consumable stores, 12 paise, (6) increase in cost of gunny bags, Re. 1.20, (7) increase in freightage by road and rail, 63 paise, (8) interest on longer storage, Rs. 2.84 and (9) selling expenses, 45 paise (total Rs. 7.18 = Rs. 133.79). But for the reasons given above, items 3, 7 and 8 (total Rs. 3,66) must go and therefore the figure would come to Rs. 130.13. As against this, the realisations for levy and free sugar upto the date of decontrol, i.e, May 24, 1971 were as follows : 63,741 quintals at the average rate of Rupees 124.63 and 70,650 quintals at the average rate of Rs. 136.49. The average price thus realised comes to Rs. 130.77. There is no doubt that if the sales after May 24, 1971 which were all in free market were to be taken into account, the average realised would come to much more than Rs. 130.77. There is, therefore, no doubt that taking the picture as a whole the Haryana factories got in any event a reasonable return on the capital employed.45. On the construction of sub-section (3C) adopted by us and such of the materials produced before us, we are of the opinion that no case for quashing the impugned order has been made out, nor has the price fixed by Government been shown to be inconsistent with the sub-section. | 0[ds]20. The history of control over sugar set out above shows that right from 1958 and even earlier, ex-factory prices of sugar were worked out on the basis of cost-schedules prepared by export bodies appointed for that purpose, that such prices and cost-schedules were prepared in respect of the entire production and not in relation only to that part of it which was required to be sold to Government, although partial control in one form or the other was in vogue for some periods before 1967, that such cost-schedules were prepared on the basis of average duration and recovery, the minimum price of cane, the average cost of production in the various zones, taxes, and lastly, a return on the capital employed, which as stated above was fixed at the static figure of Rs. 10.50 per quintal, that being the amount considered a fair return on capital employed in the industry. Both the Central Government and Parliament were aware of the methods followed by these expert bodies in framing cost-schedules on the basis of which ex-factory prices were fixed, the problems which the Government was faced with the securing adequate supply of sugar and its equitable distribution at reasonable price to remedy which sub-section (3C) was enacted. It is in the light of this back-ground that the provisions of that sub-section can be properly understood.Sub-section (3C), with which we are presently concerned, was inserted in Section 3 by Section 3 of Act 36 of 1967. The sub-section lays down two conditions which must exist before it applies. The first is that there must be an order made with reference to sub-section (2), clause (f), and the second is that there is no notification under sub-section (3A) or if any such notification has been issued it is no longer in force owing to efflux of time. Next, the words "notwithstanding anything contained in sub-section (3)" suggest that the amount payable to the person required to sell his stock of sugar would be with reference to the price fixed under the sub-section and not the agreed price or the market price in the absence of any controlled price under sub-section (3A). The sub-section then lays down two things; firstly, that where a producer is required by an order with reference to sub-section (2) (f) to sell any kind of sugar, there shall be paid to that producer an amount therefor, that is for such stock of sugar as is required to be sold, and secondly, that such amount shall be calculated with reference to such price of sugar as the Central Government may, by order, determine, having regard to the four factors set out in clauses (a), (b), (c) and (d). Unlike the preceding three sub-sections under which the amount payable is either to agreed price, or the controlled price, or where neither of these prices is applicable at the market or average market price, the amount in respect of sugar required to be sold is to be calculated at the price determined by the Central Government. The last words of the sub-section empower the Central Government to determine prices either from time to time or for different areas, which means that it may determine zonal or regional prices, or for different factories, i.e., unitwise, or for different kinds or grades of sugar.The fair price, therefore, has to be determined on the minimum price of cane fixed by Government, the manufacturing cost on the basis of zonal cost-schedules, the tax or duty applicable in the zones and must be so structured as to leave in the ultimate result to the industry a reasonable return on the capital employed by it in the business of manufacturing sugar. It is clear from the reports of the Tariff Commission that a reasonable return recommended by that body at a fixed amount of Rs. 10.50 per quintal which worked out in 1966-67 at 12.5% per annum was not in respect of levy sugar only but on the whole, so that even if such a return was not obtainable on levy sugar but was obtainable on the whole, it would meet the requirement of cl. (d). In this conclusion we derive a two-fold support, firstly, from the language used in cl. (d) itself, viz., a reasonable return on the capital employed in the business of manufacturing sugar, which must mean the business as a whole and not the business of manufacturing levy sugar only, and secondly, from the fact of the Commission having all along used the same phraseology while recommending Rs. 10.50 per quintal as an addition by way of a reasonable return on the capital employed in the industry. The cost-schedules prepared by these bodies were for determining a fair price in relation to the entire sugar produced by the industry and the return which should be granted to it on the capital employed in the industry and not with respect to that stock only required to be sold under sub-section (2) (f). This is clear from the heading of Ch. 9 of the Tariff Commissions report, 1969, "Cost Structure and Price Fixation.To accept these contentions would in our view mean disregarding (1) the language of the sub-section, and (2) the entire background in which it was enacted and the mischief it was intended to remedy. As explained earlier, the sub-section provides two things; (a) the determination by Government of a fair price during the process of which regard shall be had to the four matters set out therein, and (b) payment to the manufacturer, part of whose stock is levied, an amount "therefor" calculated with reference to "such price" as the Central Government may determine. Though the payment would of course be for the stock required to be sold to Government, there is nothing in the sub-section to suggest that the price to be determined is to be with respect of that part of the stock of a particular manufacturer which is required to be sold to Government.The basis of a fair price would have to be built on a reasonably efficient and economic representative cross-section on whose workings cost-schedules would have been worked out and the price to be determined by Government under sub-section (3C) would have to be built. A claim that such a price has to be determined unitwise and a reasonable return has to be ensured to each unit or that such a price with such a return would be in respect of that part of its stock required to be sold under sub-section (2) (f) would appear to be inconsistent with the concept of partial control, the background in which it was evolved and the object with it attempted to secure. Such a policy meant determination of a fair price on the basis of which a producer would be paid for part of his stock required to be sold to Government. Such a price would have to be determined having regard to the four factors set out in the sub-section. Though factors (a) and (c) would be static, factor (b) would largely depend on variables, such as duration and recovery, the prices of fuel, labour etc. differing from zone to zone and sometimes within the zone, necessitating averaging and costing by selecting a representative cross-section of units for that purpose and arriving at a cost-schedule which would do justice to the weak and the strong alike. If this be the true meaning of clause (b), it must mean securing a reasonable return to the industry and not to each unit, irrespective of whether it is economic or reasonably efficient or not, or only in respect of its stock required to be compulsorily sold to Government. A unitwise fixation of price, as suggested by counsel, and payment on the basis of a price so worked out would mean perpetuating inefficiency and mismanagement, and depriving the partial control policy of the incentives for economy and efficiency inherent in it.We are, therefore, satisfied both on the language of the sub-section, the background in which it was enacted and the mischief the legislature sought to remedy through its working that the true construction is that a fair price has to be determined in respect of the entire produce, ensuring to the industry a reasonable return on the capital employed in the business of manufacturing sugar. But this does not mean that Government can fix any arbitrary price, or a price fixed on extraneous considerations or such that it does not secure a reasonable return on the capital employed in the industry. Such a fixation would at once evoke a challenge, both on the ground of its being inconsistent with the guidelines built in the sub-section and its being in contravention of Arts. 19 (1) (f) and (g), and 31.It would appear that barring the statement in the impugned order that Government had fixed the price at Rs. 124.63, the Government had not disclosed even in its return how it had worked out that price. At the instance of the appellants, the High Court, therefore, by its order dated September 14, 1971 called upon the Government to show the basis on which it had fixed the price. The Government thereupon filed an additional affidavit of the Deputy Secretary to the Ministry of Agricultural dated September 14, 1971 according to which on the available data before it the price would come to Rs: 126.93. This figure took note of the increase in the purchase tax by Haryana Government from 24 to 50 paise per quintal of cane. That was how the Government mentioned Rupees 8.003 as the price of cane per quintal instead of Rs. 7.37 which was the floor price fixed by Government for the year. Government also added Re. 1.05 being the estimated impact of increase in wages recommended by the Second Central Wage Board, the added depreciation allowed through changes in the Income-tax Act and increased cost in packing materials, the total of all the three having been worked out at Rs. 2.81 per quintal of sugar. According to this affidavit, when Government was considering the fixation of price for 1970-71, it had before it the actuals as to recovery and duration for 1969-70 as also the estimates supplied by the factories for 1970-71. From these, the Government came to the conclusion that there would not be any material difference in recovery and duration between the two years and that was why it decided to continue the ex-factory price for 1969-70 for the year 1970-71 also. The incidence of purchase tax for 1970-71 was placed at Rs. 2.06, higher than during the preceding year, because for 1969-70 it was from April 1, 1969, while in 1970-71 it was for the whole year. The estimates for recovery and duration for 1970-71 were on the actual recovery and duration for the preceding year which came to 8.76% and 187 days, as against the estimates given for that year by the factories, viz., 9.04% and 157 days. These were accepted for 1970-71 as the only actuals available to the Government on January 8, 1971 were in respect of the month of November 1970, which obviously were too meagre for acceptance for the whole year.34. Annexures II and III to this affidavit show that as against the levy price of Rs. 124.63 fixed by Government, free sugar was sold during 1969-70 at prices ranging from Rs. 126.21 to Rupees 138.01, exclusive of excise duty, and from October 1970 to May 25, 1971 when sugar was totally decontrolled at rates ranging from Rs. 132.30 to Rupees 151-38. It is undisputed that during the period of six weeks when the stay order granted by the High Court operated the appellants sold sugar at about Rs. 150.35. These figures were not accepted by the appellants, for, according to them, they sold free sugar during January 1971 to May 24, 1971 at prices ranging from Rs. 135.19 to Rs. 150.47, the average rate being Rs. 139.70 less Rs. 1.07 differential = Rs. 138.63. As against the levy price worked out by Government at Rs. 126.93, the appellants case was that on the actuals worked out for the year 1970-71, the price would be Rs. 129.42, thus causing to them a loss of Rs. 5.20 per quintal on levy sugar. The difference between the price calculated by the appellants and that calculated by the Government (Rs. 126.93) arises because of certain disparities in their respective figures, as also the percentage in recovery and duration. To the figure of Rs. 129.42, the appellants add additional cost of interest, increase is freightage by road and rail during the year, deterioration in quality, thus bringing the cost to Rs. 138.98. The loss on this calculation, according to them, would come to Rs. 3 lacs and odd on levy sugar which totalled 65,741 quintals.36. On Governments calculations based on the returns filed by the appellants, the Haryana factories realised Rs. 126.50 per quintal on levy sugar taking into account the different grades produced by them and Rs. 139.70 per quintal on free sugar upto May 25, 1971 when sugar was decontrolled. If levy sugar alone were to be taken into consideration, the loss per quintal of levy sugar would be the difference between Rs. 124.63 and Rs. 129.42, i.e., Rs. 5.20, and nearly double if the additional costs claimed by the appellants were to be admissible, which would raise their cost of production to Rs. 138.98. This calculation is of course on the basis that the return of Rs. 10.50 per quintal was altogether net, in the sense that it was not expected to absorb items such as interest and the profits on free sugar were not to be taken into consideration for ascertaining whether a reasonable return on the capital employed was actually obtained or not by the industry.37. The High Court, no doubt, did not hold the price of Rs. 124.63 as realistic and in view of the changes which had taken place during the year added in all Rs. 3.22, that is, Rs. 1.16 increase in wages, Rs. 0.56 additional depreciation and Rs. 1.20 as additional packing charges, totalling Rs. 2.92 and presumably Re. 0.30 for increase in purchase tax. Adding Rs. 3.22 to the Government price, the High Court worked out the fair price at Rs. 127.85 instead of Rs. 124.63. We need not examine the correctness or otherwise of this addition as the Solicitor General told us that he did not challenge the correctness of this addition. On the basis of Rs. 127.85 being the correct price, the appellants would lose Rs. 3.22 per quintal on levy sugar, if the price realised on levy sugar alone were to be taken into consideration. The Solicitor General also conceded that purchase tax on cane in Haryana was increased during the year 1970-71 from 24 paise to 50 paise per quintal with effect from April 1, 1970 and that increase according to para. 11 of the return, dated May 1971 was not taken into account as the Government was of the opinion that the price of 1969-70, which was adopted for 1970-71, contained sufficient cushion to absorb the impact of this increase. This opinion was based on the fact that the working results for the year 1969-70 turned out to be actually very much better than estimated.As already stated, the increase in purchase tax appears to be included in Rs. 3.22, granted by the High Court for otherwise the three increases stated in the judgment, viz., increase in wages, increase in depreciation and increase in packing charges, would make the total of Rupees 2.92 only.39. The largest addition in the price claimed by the appellants was Rs. 2.29 per quintal by way of additional interest. The basis for the claim was that owing to the production of sugar in 1969-70 being the all time highest, there were larger stocks lying unrealeased with the factories both in the case of levy as well as free sugar, with the result that the factories had to bear additional interest on the working capital involved in such unreleased stocks. The usual period of six months for the release of stock on the basis of which the return on capital at the static figure of Rs. 10.50 a quintal had actually become unrealistic. The result, therefore, was that the factories could not expect to get the said return on the capital employed.40. Since the question was an important one we called upon the Government to disclose the correspondence, if any, which it had in this connection with the Tariff Commission. Thereupon the Government produced the relevant correspondence. It appears from that correspondence that on March 26, 1970 the Indian Sugar Mills Association had made a representation for addition in the return of Rs. 10.50 on the ground that the 1969-70 years production had come to 42 lac tonnes, an all time record and in addition thereto there was already at hand a large stock lying undisposed of resulting in the component of working capital being very much higher than that calculated by the Tariff Commission while fixing Rs. 10.50 as the return. On June 5, 1970, the Government referred this representation to the Commission. By its letter dated July 29, 1970, the Commission recommended that the question of accumulation of stocks as represented by the association required sympathetic consideration and suggested an increase in lieu of interest at 9% on the additional working capital represented by the accumulated stock.41. In considering this claim, however, two facts need to be borne in mind. The production in 1970-71 was not as high as that in 1969-70 and in fact had considerably declined. So far as the Haryana factories were concerned, none of them had purchased cane at a price higher than the minimum fixed by Government, although the assumption behind the policy of partial control leaving 40% of the stock for free market and the unconventional method of granting a fixed return of Rs. 10.50 was that these two factors would enable the manufacturer to pay a higher cane price. The figures supplied to us by Government called out from the returns filed by the factories would also suggest that the claim for Rs. 2.29 per quintal was not warranted. The total production by the Haryana factories during 1970-71 was of the tune of 82,756 tonnes. Despatches upto May 24, 1971, when sugar was decontrolled, of free sugar were 7,065 tonnes at Rs. 139.70 per quintal. Despatches of levy sugar, upto the date of the interim order of stay dated April 8, 1971 were 2,380 tonnes and from April 8, 1971 to May 24, 1971, 4,194 tonnes at Rupees 158.02 per quintal. The balance of stock lying with the factories as on June 1, 1971 was 6911.7 tonnes. Despatches during the decontrol period, i.e., from June 1, 1971 to December 31, 1971 were 63,023 tonnes at the rate of Rs. 151.39 per quintal, leaving a balance in hand of 6094 tonnes. It may be mentioned that on June 30, 1972 the stock lying on hand came to 427 tonnes only. Since this was the position, the claim for additional interest at Rs. 2.29 per quintal does not appear to be sustainable, nor also the claim for deterioration of stock owing to the stock lying stored up beyond the normal period, the loss by way of deterioration during such period being the normal incidence of the trade which the manufacturer must anticipate.42. Regarding the claim of 63 paise owing to increase in freightage (i.e., of 54 paise by road and 9 paise by rail), the Tariff Commission refused to concede that claim. Even before us there are no adequate materials to come to any precise conclusion as to the extra burden which the appellants had actually to bear, though increase in freightage during the year is admitted.The actual figures of the year for duration and recovery were not in dispute. They were 162 days and 8.69% respectively. On that basis, the cost, according to the cost-schedule worked out for Haryana by the Commission, would come to Rs. 126.61, including Rs. 10.50. To that amount may be added the following, even assuming that they are all allowable : (1) increase in wages, Re. 1.05, (2) increase in depreciation, 56 paise, (3) deterioration in quality, 10 paise, (4) insurance and godown costs, 7 paise, (5) increase in cost of consumable stores, 12 paise, (6) increase in cost of gunny bags, Re. 1.20, (7) increase in freightage by road and rail, 63 paise, (8) interest on longer storage, Rs. 2.84 and (9) selling expenses, 45 paise (total Rs. 7.18 = Rs. 133.79). But for the reasons given above, items 3, 7 and 8 (total Rs. 3,66) must go and therefore the figure would come to Rs. 130.13. As against this, the realisations for levy and free sugar upto the date of decontrol, i.e, May 24, 1971 were as follows : 63,741 quintals at the average rate of Rupees 124.63 and 70,650 quintals at the average rate of Rs. 136.49. The average price thus realised comes to Rs. 130.77. There is no doubt that if the sales after May 24, 1971 which were all in free market were to be taken into account, the average realised would come to much more than Rs. 130.77. There is, therefore, no doubt that taking the picture as a whole the Haryana factories got in any event a reasonable return on the capital employed.45. On the construction of sub-section (3C) adopted by us and such of the materials produced before us, we are of the opinion that no case for quashing the impugned order has been made out, nor has the price fixed by Government been shown to be inconsistent with the sub-section. | 0 | 10,565 | 4,087 | ### 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:
stocks lying unrealeased with the factories both in the case of levy as well as free sugar, with the result that the factories had to bear additional interest on the working capital involved in such unreleased stocks. The usual period of six months for the release of stock on the basis of which the return on capital at the static figure of Rs. 10.50 a quintal had actually become unrealistic. The result, therefore, was that the factories could not expect to get the said return on the capital employed.40. Since the question was an important one we called upon the Government to disclose the correspondence, if any, which it had in this connection with the Tariff Commission. Thereupon the Government produced the relevant correspondence. It appears from that correspondence that on March 26, 1970 the Indian Sugar Mills Association had made a representation for addition in the return of Rs. 10.50 on the ground that the 1969-70 years production had come to 42 lac tonnes, an all time record and in addition thereto there was already at hand a large stock lying undisposed of resulting in the component of working capital being very much higher than that calculated by the Tariff Commission while fixing Rs. 10.50 as the return. On June 5, 1970, the Government referred this representation to the Commission. By its letter dated July 29, 1970, the Commission recommended that the question of accumulation of stocks as represented by the association required sympathetic consideration and suggested an increase in lieu of interest at 9% on the additional working capital represented by the accumulated stock.41. In considering this claim, however, two facts need to be borne in mind. The production in 1970-71 was not as high as that in 1969-70 and in fact had considerably declined. So far as the Haryana factories were concerned, none of them had purchased cane at a price higher than the minimum fixed by Government, although the assumption behind the policy of partial control leaving 40% of the stock for free market and the unconventional method of granting a fixed return of Rs. 10.50 was that these two factors would enable the manufacturer to pay a higher cane price. The figures supplied to us by Government called out from the returns filed by the factories would also suggest that the claim for Rs. 2.29 per quintal was not warranted. The total production by the Haryana factories during 1970-71 was of the tune of 82,756 tonnes. Despatches upto May 24, 1971, when sugar was decontrolled, of free sugar were 7,065 tonnes at Rs. 139.70 per quintal. Despatches of levy sugar, upto the date of the interim order of stay dated April 8, 1971 were 2,380 tonnes and from April 8, 1971 to May 24, 1971, 4,194 tonnes at Rupees 158.02 per quintal. The balance of stock lying with the factories as on June 1, 1971 was 6911.7 tonnes. Despatches during the decontrol period, i.e., from June 1, 1971 to December 31, 1971 were 63,023 tonnes at the rate of Rs. 151.39 per quintal, leaving a balance in hand of 6094 tonnes. It may be mentioned that on June 30, 1972 the stock lying on hand came to 427 tonnes only. Since this was the position, the claim for additional interest at Rs. 2.29 per quintal does not appear to be sustainable, nor also the claim for deterioration of stock owing to the stock lying stored up beyond the normal period, the loss by way of deterioration during such period being the normal incidence of the trade which the manufacturer must anticipate.42. Regarding the claim of 63 paise owing to increase in freightage (i.e., of 54 paise by road and 9 paise by rail), the Tariff Commission refused to concede that claim. Even before us there are no adequate materials to come to any precise conclusion as to the extra burden which the appellants had actually to bear, though increase in freightage during the year is admitted.43. Have the Haryana factories then not received in fact during 1970-71 the reasonable return as envisaged by sub-section (3C) ?44. The actual figures of the year for duration and recovery were not in dispute. They were 162 days and 8.69% respectively. On that basis, the cost, according to the cost-schedule worked out for Haryana by the Commission, would come to Rs. 126.61, including Rs. 10.50. To that amount may be added the following, even assuming that they are all allowable : (1) increase in wages, Re. 1.05, (2) increase in depreciation, 56 paise, (3) deterioration in quality, 10 paise, (4) insurance and godown costs, 7 paise, (5) increase in cost of consumable stores, 12 paise, (6) increase in cost of gunny bags, Re. 1.20, (7) increase in freightage by road and rail, 63 paise, (8) interest on longer storage, Rs. 2.84 and (9) selling expenses, 45 paise (total Rs. 7.18 = Rs. 133.79). But for the reasons given above, items 3, 7 and 8 (total Rs. 3,66) must go and therefore the figure would come to Rs. 130.13. As against this, the realisations for levy and free sugar upto the date of decontrol, i.e, May 24, 1971 were as follows : 63,741 quintals at the average rate of Rupees 124.63 and 70,650 quintals at the average rate of Rs. 136.49. The average price thus realised comes to Rs. 130.77. There is no doubt that if the sales after May 24, 1971 which were all in free market were to be taken into account, the average realised would come to much more than Rs. 130.77. There is, therefore, no doubt that taking the picture as a whole the Haryana factories got in any event a reasonable return on the capital employed.45. On the construction of sub-section (3C) adopted by us and such of the materials produced before us, we are of the opinion that no case for quashing the impugned order has been made out, nor has the price fixed by Government been shown to be inconsistent with the sub-section.
### Response:
0
### Explanation:
for the claim was that owing to the production of sugar in 1969-70 being the all time highest, there were larger stocks lying unrealeased with the factories both in the case of levy as well as free sugar, with the result that the factories had to bear additional interest on the working capital involved in such unreleased stocks. The usual period of six months for the release of stock on the basis of which the return on capital at the static figure of Rs. 10.50 a quintal had actually become unrealistic. The result, therefore, was that the factories could not expect to get the said return on the capital employed.40. Since the question was an important one we called upon the Government to disclose the correspondence, if any, which it had in this connection with the Tariff Commission. Thereupon the Government produced the relevant correspondence. It appears from that correspondence that on March 26, 1970 the Indian Sugar Mills Association had made a representation for addition in the return of Rs. 10.50 on the ground that the 1969-70 years production had come to 42 lac tonnes, an all time record and in addition thereto there was already at hand a large stock lying undisposed of resulting in the component of working capital being very much higher than that calculated by the Tariff Commission while fixing Rs. 10.50 as the return. On June 5, 1970, the Government referred this representation to the Commission. By its letter dated July 29, 1970, the Commission recommended that the question of accumulation of stocks as represented by the association required sympathetic consideration and suggested an increase in lieu of interest at 9% on the additional working capital represented by the accumulated stock.41. In considering this claim, however, two facts need to be borne in mind. The production in 1970-71 was not as high as that in 1969-70 and in fact had considerably declined. So far as the Haryana factories were concerned, none of them had purchased cane at a price higher than the minimum fixed by Government, although the assumption behind the policy of partial control leaving 40% of the stock for free market and the unconventional method of granting a fixed return of Rs. 10.50 was that these two factors would enable the manufacturer to pay a higher cane price. The figures supplied to us by Government called out from the returns filed by the factories would also suggest that the claim for Rs. 2.29 per quintal was not warranted. The total production by the Haryana factories during 1970-71 was of the tune of 82,756 tonnes. Despatches upto May 24, 1971, when sugar was decontrolled, of free sugar were 7,065 tonnes at Rs. 139.70 per quintal. Despatches of levy sugar, upto the date of the interim order of stay dated April 8, 1971 were 2,380 tonnes and from April 8, 1971 to May 24, 1971, 4,194 tonnes at Rupees 158.02 per quintal. The balance of stock lying with the factories as on June 1, 1971 was 6911.7 tonnes. Despatches during the decontrol period, i.e., from June 1, 1971 to December 31, 1971 were 63,023 tonnes at the rate of Rs. 151.39 per quintal, leaving a balance in hand of 6094 tonnes. It may be mentioned that on June 30, 1972 the stock lying on hand came to 427 tonnes only. Since this was the position, the claim for additional interest at Rs. 2.29 per quintal does not appear to be sustainable, nor also the claim for deterioration of stock owing to the stock lying stored up beyond the normal period, the loss by way of deterioration during such period being the normal incidence of the trade which the manufacturer must anticipate.42. Regarding the claim of 63 paise owing to increase in freightage (i.e., of 54 paise by road and 9 paise by rail), the Tariff Commission refused to concede that claim. Even before us there are no adequate materials to come to any precise conclusion as to the extra burden which the appellants had actually to bear, though increase in freightage during the year is admitted.The actual figures of the year for duration and recovery were not in dispute. They were 162 days and 8.69% respectively. On that basis, the cost, according to the cost-schedule worked out for Haryana by the Commission, would come to Rs. 126.61, including Rs. 10.50. To that amount may be added the following, even assuming that they are all allowable : (1) increase in wages, Re. 1.05, (2) increase in depreciation, 56 paise, (3) deterioration in quality, 10 paise, (4) insurance and godown costs, 7 paise, (5) increase in cost of consumable stores, 12 paise, (6) increase in cost of gunny bags, Re. 1.20, (7) increase in freightage by road and rail, 63 paise, (8) interest on longer storage, Rs. 2.84 and (9) selling expenses, 45 paise (total Rs. 7.18 = Rs. 133.79). But for the reasons given above, items 3, 7 and 8 (total Rs. 3,66) must go and therefore the figure would come to Rs. 130.13. As against this, the realisations for levy and free sugar upto the date of decontrol, i.e, May 24, 1971 were as follows : 63,741 quintals at the average rate of Rupees 124.63 and 70,650 quintals at the average rate of Rs. 136.49. The average price thus realised comes to Rs. 130.77. There is no doubt that if the sales after May 24, 1971 which were all in free market were to be taken into account, the average realised would come to much more than Rs. 130.77. There is, therefore, no doubt that taking the picture as a whole the Haryana factories got in any event a reasonable return on the capital employed.45. On the construction of sub-section (3C) adopted by us and such of the materials produced before us, we are of the opinion that no case for quashing the impugned order has been made out, nor has the price fixed by Government been shown to be inconsistent with the sub-section.
|
Shyam Sunder Vs. Satya Ketu & Ors | provisions of Chapter XIV-A. Therefore, so far as the Rules of Court are concerned, they do not provide for filing of a copy of the decree-and rightly so, for no decree is required to be prepared at the conclusion of the trial of an election petition by the tribunal. 9. Reference is also made to 0. XLI, R. 1 of the Code of Civil Procedure, which provides that a memorandum of appeal shall be accompanied by a copy of the decree appealed from and, unless the appellate Court dispenses therewith, of the judgment on which it is founded. That rule, however, cannot apply in full in the case of an appeal from an order of the election tribunal in an election petition, for, if the Act does not contemplate the framing of a decree and does not provide for an appeal from a decree, that part of 0. XLI, R 1 which requires the filing of a copy of the decree appealed from, cannot in the very nature of things apply to an appeal under S. 116-A of the Act. We are, therefore, of opinion that in an appeal under S. 116-A, all that is necessary to be filed is a copy of the judgment of the tribunal, and no more. The preliminary objection therefore fails. 10. Coming now to the merits of the appeal, the whole argument of the appellant is based on R. 73 (2) of the Rules, which is in these terms:"(2) A ballot paper shall be invalid on which (a) the figure 1 is not marked, or (b) the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it is intended to apply; or (c) the figure 1 and some other figures are set opposite the name of the same candidate; or (d) there is any mark or writing by which the elector can be identified." What is contended is that R. 73 (2) (a) requires that figure 1 must be marked on the ballot paper, and if that is not marked, the ballot paper would be invalid. That is undoubtedly so. But the rule does not say that figure 1 which has to be marked must be marked in what are called Arabic numerals or the International form of Indian numerals. If that was the intention we should have found it specifically mentioned in the rule. It is true that in R. 73 (2) (a), the figure 1 is shown in the form of Arabic numeral, but that does not mean that the rule intended that figure 1 on the ballot paper can only be marked in the Arabic form and in no other. It would in our opinion not be right to read Cl. (a) as laying down that figure 1 has to be marked in Arabic notation and if that is not so, the ballot paper would be invalid. It seems to us that what the rule provides is that the ballot paper has to be marked with figure 1 to show first preference. Therefore, if there is figure 1, first preference would be shown irrespective of whether the figure was put down in the form of Arabic numerals or in any other form. So long as it is clear that figure 1 is marked on the ballot paper, the ballot paper would be valid and it is only when figure 1 is not marked at all in any form whatsoever that it can be said that the ballot paper is invalid. We may mention that the view we are taking has now beef made clear beyond doubt by the addition of an Explanation to S. 73 (2), which read thus:"The figures referred to in Cls. (a), (b) and (c) of this sub-rule may be marked in the international form of Indian numerals or in Roman form or in the form used in an Indian language, but shall not be indicated in words." We are of opinion that this must have been the intention of the rule as it stood before the Explanation was added, for the marking of figure I on the ballot paper was necessary to indicate the first preference without which the ballot paper would be invalid. If first preference is indicated by marking the figure 1 in one form or other, that would in our opinion be in full compliance with R. 73 (2) (a), and the ballot paper would not be invalid. It is only if figure 1 is not marked at all in any form that the ballot paper would be invalid under R. 73 (2) (a). We agree with the High Court that marking of figure 1 in Roman form is in full compliance with R. 73 (2) (a). To say that Roman figures are composed of letters of the alphabet is in our opinion no answer to the argument, for it is well known how figures are marked in Roman form, and there is no dispute as to the Roman form of the figure 1.We are, therefore, of opinion, where figure 1 is marked on the ballot paper, whether it be in one form or other including the Roman form, that is in full compliance with the rule, and the ballot paper would not be invalid in the circumstances. 11. Then it is urged that besides the Roman figure I, some other words were added in some cases. Even if that were so, we are of opinion that R. 73 (2) (a) would not justify declaration of a ballot paper as invalid so long as the figure 1 is marked. If any other word is put down, like "st", after the Roman figure I or the word "one in brackets thereafter, that would not invalidate the vote for the figure "1" would be there to show the first preference, and those words can be ignored. We are, therefore, of opinion that the view taken by the High Court is correct. | 0[ds]6. It will be seen from this brief review of the provisions of Part VI of the Act that there is no provision therein for passing a decree by the election tribunal. Section 98 which refers to the decision of the tribunal says in specific terms that the tribunal shall make an order at the conclusion of the trial and indicates the three types of orders that he tribunal is entitled to make. If the Act intended that tribunals shall pass a decree, there was nothing to prevent the legislature from saying so in terms in S. 98. Further S. 120 lays down that costs will be in the discretion of the tribunal, and S. 122 shows that any order as to costs shall be executed s if it were a money decree. Now if the Act intended that there should be a decree following the judgment of an election tribunal it would not have been necessary to say in S. 122 that an order passed by the tribunal with respect to costs shall be executed as if it were a money decree of a civil Court. It may be that the Tribunal in this case passed an order to the effect that a decree for costs be prepared; but the use of the word "decree" by the Tribunal was in our opinion an error and what may be prepared on the basis of an order for costs passed by a tribunal would be a memorandum of costs which can be executed, if necessary, under S. 122 of the Act. Therefore, when the Tribunal ordered that a decree containing the details of costs should be prepared all that it means is that a memorandum of costs should be prepared in case any party wanted it for purposes of execution under S. 122 of the Act. Further it is not disputed that there is no provision in any rule framed under the Act for the preparation of a decree by the election tribunal. What is urged is that under S. 90 (1). an election petition has to be tried as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits and that, it is urged, necessarily means that a decree should be prepared by the tribunal in the same manner as a decree is prepared by a civil Court at the end of the trial of a suit. We are of opinion that this conclusion does not follow from the language of 90. In the first place, S. 90 begins with the words "subject to the provisions of this Act and of any rules made thereunder", and in the next place, it enjoins that the procedure for the trial of suits should be followed as nearly as may be. Therefore, the scheme of Part VI with respect to election petitions and their trial shows that it is not necessary to draw up a decree at all, and that is undoubtedly so as we have already indicated above. The fact that the trial has to be in accordance with the procedure laid down for the trial of suits would not bring in those provisions of the Code of Civil Procedure, which require the preparation of a decree at the conclusion of trial of a suit. for S. 90 (1) itself indicates that the procedure should be as nearly as may be of the Code of Civil Procedure. We are, therefore, of opinion that in view of the provisions of the Act it is unnecessary to prepare a decree after the conclusion of the trial of an election petition; S. 90 (1) would not make those provisions of the Code of Civil Procedure which require the preparation of a decree applicable to the trial of an election petition, for the Code of Civil Procedure has to be applied to such trial as nearly as may be and subject to the provisions of the Act. Further we have no doubt that preparation of a decree is not necessary after the conclusion of the trial of an election petition7. Let us then turn to S. 116-A of the Act to see if there is anything in that section which requires the filing of a decree along with copy of the judgment of the tribunal Section 116-A inter alia provides for appeals against orders made by a tribunal, under S. 98. We have already referred to the fact that S. 98 does not speak of a decree. Section 116-A provides for an appeal not from a decree of the tribunal but from an order passed by it inter alia under S. 98. It is true that sub-s. (2) of S. 116-A lays down that the High Court shall follow the same procedure with respect to such an appeal as if the appeal were an appeal from an original decree passed by a civil Court. But that in our opinion does not mean that a copy of decree is necessary before an appeal under S. 116-A is maintainable, for the simple reason that the scheme of the Act shows that no decree is necessary to be prepared by the tribunal at all and the appeal under S. l16-A(l) is also from an order and not from a decree. In this connection we may refer to S. 96 of the Code of Civil Procedure which provides for an appeal from an original decree. That section inter alia provides that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. It will be seen that S. 96 of the Code of Civil Procedure provides for appeal from a decree in a suit, and that is why it is necessary to prepare a decree, the same is also provided in S. 33 of the Code of Civil Procedure which in terms lays down that `the Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow". We have no corresponding words in Ss. 98 and 116-A of the Act, and that shows that it is not necessary to prepare a decree at the conclusion of the trial of an election petition and in consequence no copy of decree is necessary to be filed when an appeal is filed under S. 116-A of the ActIt is true that in R. 73 (2) (a), the figure 1 is shown in the form of Arabic numeral, but that does not mean that the rule intended that figure 1 on the ballot paper can only be marked in the Arabic form and in no other. It would in our opinion not be right to read Cl. (a) as laying down that figure 1 has to be marked in Arabic notation and if that is not so, the ballot paper would be invalid. It seems to us that what the rule provides is that the ballot paper has to be marked with figure 1 to show first preference. Therefore, if there is figure 1, first preference would be shown irrespective of whether the figure was put down in the form of Arabic numerals or in any other form. So long as it is clear that figure 1 is marked on the ballot paper, the ballot paper would be valid and it is only when figure 1 is not marked at all in any form whatsoever that it can be said that the ballot paper is invalidWe are of opinion that this must have been the intention of the rule as it stood before the Explanation was added, for the marking of figure I on the ballot paper was necessary to indicate the first preference without which the ballot paper would be invalid. If first preference is indicated by marking the figure 1 in one form or other, that would in our opinion be in full compliance with R. 73 (2) (a), and the ballot paper would not be invalid. It is only if figure 1 is not marked at all in any form that the ballot paper would be invalid under R. 73 (2) (a). We agree with the High Court that marking of figure 1 in Roman form is in full compliance with R. 73 (2) (a). To say that Roman figures are composed of letters of the alphabet is in our opinion no answer to the argument, for it is well known how figures are marked in Roman form, and there is no dispute as to the Roman form of the figure 1.We are, therefore, of opinion, where figure 1 is marked on the ballot paper, whether it be in one form or other including the Roman form, that is in full compliance with the rule, and the ballot paper would not be invalid in the circumstancesEven if that were so, we are of opinion that R. 73 (2) (a) would not justify declaration of a ballot paper as invalid so long as the figure 1 is marked. If any other word is put down, like "st", after the Roman figure I or the word "one in brackets thereafter, that would not invalidate the vote for the figure "1" would be there to show the first preference, and those words can be ignored. We are, therefore, of opinion that the view taken by the High Court is correctTherefore, so far as the Rules of Court are concerned, they do not provide for filing of a copy of thed rightly so, for no decree is required to be prepared at the conclusion of the trial of an election petition by the tribunal9. Reference is also made to 0. XLI, R. 1 of the Code of Civil Procedure, which provides that a memorandum of appeal shall be accompanied by a copy of the decree appealed from and, unless the appellate Court dispenses therewith, of the judgment on which it is founded. That rule, however, cannot apply in full in the case of an appeal from an order of the election tribunal in an election petition, for, if the Act does not contemplate the framing of a decree and does not provide for an appeal from a decree, that part of 0. XLI, R 1 which requires the filing of a copy of the decree appealed from, cannot in the very nature of things apply to an appeal under S.A of the Act. We are, therefore, of opinion that in an appeal under S., all that is necessary to be filed is a copy of the judgment of the tribunal, and no more. The preliminary objection therefore failsThat is undoubtedly so. But the rule does not say that figure 1 which has to be marked must be marked in what are called Arabic numerals or the International form of Indian numerals. If that was the intention we should have found it specifically mentioned in the. It is true thatin R. 73 (2) (a), the figure 1 is shown in the form of Arabic numeral, but that does not mean that the rule intended that figure 1 on the ballot paper can only be marked in the Arabic form and in no other. It would in our opinion not be right to read Cl. (a) as laying down that figure 1 has to be marked in Arabic notation and if that is not so, the ballot paper would be invalid. It seems to us that what the rule provides is that the ballot paper has to be marked with figure 1 to show first preference. Therefore, if there is figure 1, first preference would be shown irrespective of whether the figure was put down in the form of Arabic numerals or in any other form. So long as it is clear that figure 1 is marked on the ballot paper, the ballot paper would be valid and it is only when figure 1 is not marked at all in any form whatsoever that it can be said that the ballot paper isinvalid.We may mention that the view we are taking has now beef made clear beyond doubt by the addition of an Explanation to S. 73 (2) | 0 | 4,011 | 2,219 | ### 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:
provisions of Chapter XIV-A. Therefore, so far as the Rules of Court are concerned, they do not provide for filing of a copy of the decree-and rightly so, for no decree is required to be prepared at the conclusion of the trial of an election petition by the tribunal. 9. Reference is also made to 0. XLI, R. 1 of the Code of Civil Procedure, which provides that a memorandum of appeal shall be accompanied by a copy of the decree appealed from and, unless the appellate Court dispenses therewith, of the judgment on which it is founded. That rule, however, cannot apply in full in the case of an appeal from an order of the election tribunal in an election petition, for, if the Act does not contemplate the framing of a decree and does not provide for an appeal from a decree, that part of 0. XLI, R 1 which requires the filing of a copy of the decree appealed from, cannot in the very nature of things apply to an appeal under S. 116-A of the Act. We are, therefore, of opinion that in an appeal under S. 116-A, all that is necessary to be filed is a copy of the judgment of the tribunal, and no more. The preliminary objection therefore fails. 10. Coming now to the merits of the appeal, the whole argument of the appellant is based on R. 73 (2) of the Rules, which is in these terms:"(2) A ballot paper shall be invalid on which (a) the figure 1 is not marked, or (b) the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it is intended to apply; or (c) the figure 1 and some other figures are set opposite the name of the same candidate; or (d) there is any mark or writing by which the elector can be identified." What is contended is that R. 73 (2) (a) requires that figure 1 must be marked on the ballot paper, and if that is not marked, the ballot paper would be invalid. That is undoubtedly so. But the rule does not say that figure 1 which has to be marked must be marked in what are called Arabic numerals or the International form of Indian numerals. If that was the intention we should have found it specifically mentioned in the rule. It is true that in R. 73 (2) (a), the figure 1 is shown in the form of Arabic numeral, but that does not mean that the rule intended that figure 1 on the ballot paper can only be marked in the Arabic form and in no other. It would in our opinion not be right to read Cl. (a) as laying down that figure 1 has to be marked in Arabic notation and if that is not so, the ballot paper would be invalid. It seems to us that what the rule provides is that the ballot paper has to be marked with figure 1 to show first preference. Therefore, if there is figure 1, first preference would be shown irrespective of whether the figure was put down in the form of Arabic numerals or in any other form. So long as it is clear that figure 1 is marked on the ballot paper, the ballot paper would be valid and it is only when figure 1 is not marked at all in any form whatsoever that it can be said that the ballot paper is invalid. We may mention that the view we are taking has now beef made clear beyond doubt by the addition of an Explanation to S. 73 (2), which read thus:"The figures referred to in Cls. (a), (b) and (c) of this sub-rule may be marked in the international form of Indian numerals or in Roman form or in the form used in an Indian language, but shall not be indicated in words." We are of opinion that this must have been the intention of the rule as it stood before the Explanation was added, for the marking of figure I on the ballot paper was necessary to indicate the first preference without which the ballot paper would be invalid. If first preference is indicated by marking the figure 1 in one form or other, that would in our opinion be in full compliance with R. 73 (2) (a), and the ballot paper would not be invalid. It is only if figure 1 is not marked at all in any form that the ballot paper would be invalid under R. 73 (2) (a). We agree with the High Court that marking of figure 1 in Roman form is in full compliance with R. 73 (2) (a). To say that Roman figures are composed of letters of the alphabet is in our opinion no answer to the argument, for it is well known how figures are marked in Roman form, and there is no dispute as to the Roman form of the figure 1.We are, therefore, of opinion, where figure 1 is marked on the ballot paper, whether it be in one form or other including the Roman form, that is in full compliance with the rule, and the ballot paper would not be invalid in the circumstances. 11. Then it is urged that besides the Roman figure I, some other words were added in some cases. Even if that were so, we are of opinion that R. 73 (2) (a) would not justify declaration of a ballot paper as invalid so long as the figure 1 is marked. If any other word is put down, like "st", after the Roman figure I or the word "one in brackets thereafter, that would not invalidate the vote for the figure "1" would be there to show the first preference, and those words can be ignored. We are, therefore, of opinion that the view taken by the High Court is correct.
### Response:
0
### Explanation:
decree at the conclusion of the trial of an election petition and in consequence no copy of decree is necessary to be filed when an appeal is filed under S. 116-A of the ActIt is true that in R. 73 (2) (a), the figure 1 is shown in the form of Arabic numeral, but that does not mean that the rule intended that figure 1 on the ballot paper can only be marked in the Arabic form and in no other. It would in our opinion not be right to read Cl. (a) as laying down that figure 1 has to be marked in Arabic notation and if that is not so, the ballot paper would be invalid. It seems to us that what the rule provides is that the ballot paper has to be marked with figure 1 to show first preference. Therefore, if there is figure 1, first preference would be shown irrespective of whether the figure was put down in the form of Arabic numerals or in any other form. So long as it is clear that figure 1 is marked on the ballot paper, the ballot paper would be valid and it is only when figure 1 is not marked at all in any form whatsoever that it can be said that the ballot paper is invalidWe are of opinion that this must have been the intention of the rule as it stood before the Explanation was added, for the marking of figure I on the ballot paper was necessary to indicate the first preference without which the ballot paper would be invalid. If first preference is indicated by marking the figure 1 in one form or other, that would in our opinion be in full compliance with R. 73 (2) (a), and the ballot paper would not be invalid. It is only if figure 1 is not marked at all in any form that the ballot paper would be invalid under R. 73 (2) (a). We agree with the High Court that marking of figure 1 in Roman form is in full compliance with R. 73 (2) (a). To say that Roman figures are composed of letters of the alphabet is in our opinion no answer to the argument, for it is well known how figures are marked in Roman form, and there is no dispute as to the Roman form of the figure 1.We are, therefore, of opinion, where figure 1 is marked on the ballot paper, whether it be in one form or other including the Roman form, that is in full compliance with the rule, and the ballot paper would not be invalid in the circumstancesEven if that were so, we are of opinion that R. 73 (2) (a) would not justify declaration of a ballot paper as invalid so long as the figure 1 is marked. If any other word is put down, like "st", after the Roman figure I or the word "one in brackets thereafter, that would not invalidate the vote for the figure "1" would be there to show the first preference, and those words can be ignored. We are, therefore, of opinion that the view taken by the High Court is correctTherefore, so far as the Rules of Court are concerned, they do not provide for filing of a copy of thed rightly so, for no decree is required to be prepared at the conclusion of the trial of an election petition by the tribunal9. Reference is also made to 0. XLI, R. 1 of the Code of Civil Procedure, which provides that a memorandum of appeal shall be accompanied by a copy of the decree appealed from and, unless the appellate Court dispenses therewith, of the judgment on which it is founded. That rule, however, cannot apply in full in the case of an appeal from an order of the election tribunal in an election petition, for, if the Act does not contemplate the framing of a decree and does not provide for an appeal from a decree, that part of 0. XLI, R 1 which requires the filing of a copy of the decree appealed from, cannot in the very nature of things apply to an appeal under S.A of the Act. We are, therefore, of opinion that in an appeal under S., all that is necessary to be filed is a copy of the judgment of the tribunal, and no more. The preliminary objection therefore failsThat is undoubtedly so. But the rule does not say that figure 1 which has to be marked must be marked in what are called Arabic numerals or the International form of Indian numerals. If that was the intention we should have found it specifically mentioned in the. It is true thatin R. 73 (2) (a), the figure 1 is shown in the form of Arabic numeral, but that does not mean that the rule intended that figure 1 on the ballot paper can only be marked in the Arabic form and in no other. It would in our opinion not be right to read Cl. (a) as laying down that figure 1 has to be marked in Arabic notation and if that is not so, the ballot paper would be invalid. It seems to us that what the rule provides is that the ballot paper has to be marked with figure 1 to show first preference. Therefore, if there is figure 1, first preference would be shown irrespective of whether the figure was put down in the form of Arabic numerals or in any other form. So long as it is clear that figure 1 is marked on the ballot paper, the ballot paper would be valid and it is only when figure 1 is not marked at all in any form whatsoever that it can be said that the ballot paper isinvalid.We may mention that the view we are taking has now beef made clear beyond doubt by the addition of an Explanation to S. 73 (2)
|
Laxmi Pat Surana Vs. Pantaloon Retail (India) Limited & Others | a claim is presented before the Court for sanction, the jurisdiction of the Court is supervisory and not appellate;(ii) Once it is established - as it has been - that requisite statutory compliances were made that the scheme was not against public interest and the requisite number of shareholders had accepted the scheme, the Court cannot refuse to sanction the scheme by questioning the wisdom and commercial interest of the general body of shareholders;(iii) The claim of the Appellant is pending adjudication in arbitral proceedings. Pending an arbitral award, it would not be appropriate for the Company Court to rule on the merits of the case or to record prima facie findings;(iv) Though a specific opportunity was granted to the Appellant to place an affidavit particularizing the details of the fraud alleged, the Appellant had not placed any particulars on record;(v) The claim of the Appellant has been secured by furnishing of a bank guarantee of Rs.6.50 crores in terms of the judgment of the Calcutta High Court.6. The learned counsel for the Appellant submits that :(i) The Appellant is a creditor who has a claim in the arbitration against Pantaloon Retail India Limited. No notice was issued to the Appellant though the company had undertaken before the Company Court while obtaining an order of dispensation of a meeting of the creditors that it would be by issuing individual notices to all creditors having a claim above Rs.1.00 lakh; and(ii) The accounts of the company would reveal liabilities of Rs.58.29 crores. No details of the creditors have been shown.7. Now, it is a well settled principle of law, following the decision of the Supreme Court in MiheerH. Mafatlal Vs. Mafatlal Industries Ltd. (AIR-1997-SC-506) that that the jurisdiction of the Court when a scheme of arrangement comes up for sanction is supervisory and not appellate. The court does not sit in judgment over the commercial wisdom of the shareholders. The jurisdiction of the Company Court is confined to determining whether there has been a compliance with the statutory requirements; whether the scheme has the support of a requisite majority; whether the required meetings of the creditors, or as the case may be, of the members were held; whether necessary material has been placed before the creditors, or as the case may, before the members; and whether the scheme is violative of any provision of law or contrary to public policy. The scheme must be just, fair and reasonable to prudent men of business.8. In the present case, it is not in dispute that the Company Court has dispensed with the convening of a meeting of the creditors on the undertaking of the company to furnish individual notices to all creditors of a value of Rs.1.00 lakh and above. The learned counsel for the First Respondent states that an affidavit was duly filed before the Company Court. Insofar as the Appellant is concerned, he has a claim in arbitration which is in dispute and pending adjudication. The claim of the Appellant is secured by furnishing of a bank guarantee of Rs.6.50 crores of a nationalized bank as directed in the judgment of the Calcutta High Court. The initial claim of the Appellant, as noted in the order of the learned Single Judge, was Rs.22.00 crores, which has been enhanced subsequently to Rs.220 crores. Be that as it may, we find no merit in the contention of the Appellant that the scheme must be held to be invalid for want of notice to the Appellant. In this regard, we are in respectful agreement with the judgment of a learned Single Judge of this Court in SarthakIndustries Limited Vs. British Motor Car Co. (1934) Ltd. (Company Scheme Petition No.377 of 2011 decided on 16 September 2011), where the learned Single Judge has held as follows :9. the objector or intervener cannot, on the basis of the claim which has been made against the transferee company, succeed and oppose the scheme when such a claim is pending adjudication. Once it has been pointed out that the sum is a disputed liability and it is being adjudicated, then, to my mind, it will not possible to withhold sanction and approval to the scheme only on account of such a claim. In the affidavits that have been filed by the parties, they have placed their own version in support of their claims and counter claims. This Court is not a forum which could adjudicate and decide the same. Admittedly, the parties are before the Arbitral Tribunal which has taken cognizance of these versions and they are being adjudicated. Nothing prevents the intervener/objector, on the basis of the contents of the balance sheet in making an application for securing the alleged admitted sum. Once such a course is available under the Arbitration and Conciliation Act, 1996 and even thereafter when the intervener/objector secures and obtains an award crystalising the claims, then, all the more there is no reason to withhold the approval and sanction to the scheme. Nothing has been pointed out in the statutory provisions relied upon, which would indicate that this court, can on the strength of a disputed claim, withhold the sanction and approval to the scheme.9. We do not find merit in the contention that there was no disclosure of necessary particulars. Though this submission has been vehementally urged, we must also take note of the observation of the learned Single Judge that sufficient opportunity was granted to the Appellant to file an affidavit setting out particulars of fraud. No such affidavit was filed.10. Having considered the submissions in support of the appeal, we are of the view that no interference of the Court is warranted. The claim of the Appellant is subject to an arbitration proceeding and is in dispute. The claim has been secured by furnishing of a bank guarantee as directed by the Calcutta High Court. In the meantime, during the pendency of the appeal, the scheme has been duly implemented. Hence, no case for interference in appeal is made out. | 0[ds]8. In the present case, it is not in dispute that the Company Court has dispensed with the convening of a meeting of the creditors on the undertaking of the company to furnish individual notices to all creditors of a value of Rs.1.00 lakh and above. The learned counsel for the First Respondent states that an affidavit was duly filed before the Company Court. Insofar as the Appellant is concerned, he has a claim in arbitration which is in dispute and pending adjudication. The claim of the Appellant is secured by furnishing of a bank guarantee of Rs.6.50 crores of a nationalized bank as directed in the judgment of the Calcutta High Court. The initial claim of the Appellant, as noted in the order of the learned Single Judge, was Rs.22.00 crores, which has been enhanced subsequently to Rs.220 crores. Be that as it may, we find no merit in the contention of the Appellant that the scheme must be held to be invalid for want of notice to the Appellant. In this regard, we are in respectful agreement with the judgment of a learned Single Judge of this Court in SarthakIndustries Limited Vs. British Motor Car Co. (1934) Ltd. (Company Scheme Petition No.377 of 2011 decided on 16 September 2011), where the learned Single Judge has held as follows :9.he objector or intervener cannot, on the basis of the claim which has been made against the transferee company, succeed and oppose the scheme when such a claim is pending adjudication. Once it has been pointed out that the sum is a disputed liability and it is being adjudicated, then, to my mind, it will not possible to withhold sanction and approval to the scheme only on account of such a claim. In the affidavits that have been filed by the parties, they have placed their own version in support of their claims and counter claims. This Court is not a forum which could adjudicate and decide the same. Admittedly, the parties are before the Arbitral Tribunal which has taken cognizance of these versions and they are being adjudicated. Nothing prevents the intervener/objector, on the basis of the contents of the balance sheet in making an application for securing the alleged admitted sum. Once such a course is available under the Arbitration and Conciliation Act, 1996 and even thereafter when the intervener/objector secures and obtains an award crystalising the claims, then, all the more there is no reason to withhold the approval and sanction to the scheme. Nothing has been pointed out in the statutory provisions relied upon, which would indicate that this court, can on the strength of a disputed claim, withhold the sanction and approval to the scheme.9. We do not find merit in the contention that there was no disclosure of necessary particulars. Though this submission has been vehementally urged, we must also take note of the observation of the learned Single Judge that sufficient opportunity was granted to the Appellant to file an affidavit setting out particulars of fraud. No such affidavit was filed.10. Having considered the submissions in support of the appeal, we are of the view that no interference of the Court is warranted. The claim of the Appellant is subject to an arbitration proceeding and is in dispute. The claim has been secured by furnishing of a bank guarantee as directed by the Calcutta High Court. In the meantime, during the pendency of the appeal, the scheme has been duly implemented. Hence, no case for interference in appeal is made out. | 0 | 1,632 | 647 | ### 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:
a claim is presented before the Court for sanction, the jurisdiction of the Court is supervisory and not appellate;(ii) Once it is established - as it has been - that requisite statutory compliances were made that the scheme was not against public interest and the requisite number of shareholders had accepted the scheme, the Court cannot refuse to sanction the scheme by questioning the wisdom and commercial interest of the general body of shareholders;(iii) The claim of the Appellant is pending adjudication in arbitral proceedings. Pending an arbitral award, it would not be appropriate for the Company Court to rule on the merits of the case or to record prima facie findings;(iv) Though a specific opportunity was granted to the Appellant to place an affidavit particularizing the details of the fraud alleged, the Appellant had not placed any particulars on record;(v) The claim of the Appellant has been secured by furnishing of a bank guarantee of Rs.6.50 crores in terms of the judgment of the Calcutta High Court.6. The learned counsel for the Appellant submits that :(i) The Appellant is a creditor who has a claim in the arbitration against Pantaloon Retail India Limited. No notice was issued to the Appellant though the company had undertaken before the Company Court while obtaining an order of dispensation of a meeting of the creditors that it would be by issuing individual notices to all creditors having a claim above Rs.1.00 lakh; and(ii) The accounts of the company would reveal liabilities of Rs.58.29 crores. No details of the creditors have been shown.7. Now, it is a well settled principle of law, following the decision of the Supreme Court in MiheerH. Mafatlal Vs. Mafatlal Industries Ltd. (AIR-1997-SC-506) that that the jurisdiction of the Court when a scheme of arrangement comes up for sanction is supervisory and not appellate. The court does not sit in judgment over the commercial wisdom of the shareholders. The jurisdiction of the Company Court is confined to determining whether there has been a compliance with the statutory requirements; whether the scheme has the support of a requisite majority; whether the required meetings of the creditors, or as the case may be, of the members were held; whether necessary material has been placed before the creditors, or as the case may, before the members; and whether the scheme is violative of any provision of law or contrary to public policy. The scheme must be just, fair and reasonable to prudent men of business.8. In the present case, it is not in dispute that the Company Court has dispensed with the convening of a meeting of the creditors on the undertaking of the company to furnish individual notices to all creditors of a value of Rs.1.00 lakh and above. The learned counsel for the First Respondent states that an affidavit was duly filed before the Company Court. Insofar as the Appellant is concerned, he has a claim in arbitration which is in dispute and pending adjudication. The claim of the Appellant is secured by furnishing of a bank guarantee of Rs.6.50 crores of a nationalized bank as directed in the judgment of the Calcutta High Court. The initial claim of the Appellant, as noted in the order of the learned Single Judge, was Rs.22.00 crores, which has been enhanced subsequently to Rs.220 crores. Be that as it may, we find no merit in the contention of the Appellant that the scheme must be held to be invalid for want of notice to the Appellant. In this regard, we are in respectful agreement with the judgment of a learned Single Judge of this Court in SarthakIndustries Limited Vs. British Motor Car Co. (1934) Ltd. (Company Scheme Petition No.377 of 2011 decided on 16 September 2011), where the learned Single Judge has held as follows :9. the objector or intervener cannot, on the basis of the claim which has been made against the transferee company, succeed and oppose the scheme when such a claim is pending adjudication. Once it has been pointed out that the sum is a disputed liability and it is being adjudicated, then, to my mind, it will not possible to withhold sanction and approval to the scheme only on account of such a claim. In the affidavits that have been filed by the parties, they have placed their own version in support of their claims and counter claims. This Court is not a forum which could adjudicate and decide the same. Admittedly, the parties are before the Arbitral Tribunal which has taken cognizance of these versions and they are being adjudicated. Nothing prevents the intervener/objector, on the basis of the contents of the balance sheet in making an application for securing the alleged admitted sum. Once such a course is available under the Arbitration and Conciliation Act, 1996 and even thereafter when the intervener/objector secures and obtains an award crystalising the claims, then, all the more there is no reason to withhold the approval and sanction to the scheme. Nothing has been pointed out in the statutory provisions relied upon, which would indicate that this court, can on the strength of a disputed claim, withhold the sanction and approval to the scheme.9. We do not find merit in the contention that there was no disclosure of necessary particulars. Though this submission has been vehementally urged, we must also take note of the observation of the learned Single Judge that sufficient opportunity was granted to the Appellant to file an affidavit setting out particulars of fraud. No such affidavit was filed.10. Having considered the submissions in support of the appeal, we are of the view that no interference of the Court is warranted. The claim of the Appellant is subject to an arbitration proceeding and is in dispute. The claim has been secured by furnishing of a bank guarantee as directed by the Calcutta High Court. In the meantime, during the pendency of the appeal, the scheme has been duly implemented. Hence, no case for interference in appeal is made out.
### Response:
0
### Explanation:
8. In the present case, it is not in dispute that the Company Court has dispensed with the convening of a meeting of the creditors on the undertaking of the company to furnish individual notices to all creditors of a value of Rs.1.00 lakh and above. The learned counsel for the First Respondent states that an affidavit was duly filed before the Company Court. Insofar as the Appellant is concerned, he has a claim in arbitration which is in dispute and pending adjudication. The claim of the Appellant is secured by furnishing of a bank guarantee of Rs.6.50 crores of a nationalized bank as directed in the judgment of the Calcutta High Court. The initial claim of the Appellant, as noted in the order of the learned Single Judge, was Rs.22.00 crores, which has been enhanced subsequently to Rs.220 crores. Be that as it may, we find no merit in the contention of the Appellant that the scheme must be held to be invalid for want of notice to the Appellant. In this regard, we are in respectful agreement with the judgment of a learned Single Judge of this Court in SarthakIndustries Limited Vs. British Motor Car Co. (1934) Ltd. (Company Scheme Petition No.377 of 2011 decided on 16 September 2011), where the learned Single Judge has held as follows :9.he objector or intervener cannot, on the basis of the claim which has been made against the transferee company, succeed and oppose the scheme when such a claim is pending adjudication. Once it has been pointed out that the sum is a disputed liability and it is being adjudicated, then, to my mind, it will not possible to withhold sanction and approval to the scheme only on account of such a claim. In the affidavits that have been filed by the parties, they have placed their own version in support of their claims and counter claims. This Court is not a forum which could adjudicate and decide the same. Admittedly, the parties are before the Arbitral Tribunal which has taken cognizance of these versions and they are being adjudicated. Nothing prevents the intervener/objector, on the basis of the contents of the balance sheet in making an application for securing the alleged admitted sum. Once such a course is available under the Arbitration and Conciliation Act, 1996 and even thereafter when the intervener/objector secures and obtains an award crystalising the claims, then, all the more there is no reason to withhold the approval and sanction to the scheme. Nothing has been pointed out in the statutory provisions relied upon, which would indicate that this court, can on the strength of a disputed claim, withhold the sanction and approval to the scheme.9. We do not find merit in the contention that there was no disclosure of necessary particulars. Though this submission has been vehementally urged, we must also take note of the observation of the learned Single Judge that sufficient opportunity was granted to the Appellant to file an affidavit setting out particulars of fraud. No such affidavit was filed.10. Having considered the submissions in support of the appeal, we are of the view that no interference of the Court is warranted. The claim of the Appellant is subject to an arbitration proceeding and is in dispute. The claim has been secured by furnishing of a bank guarantee as directed by the Calcutta High Court. In the meantime, during the pendency of the appeal, the scheme has been duly implemented. Hence, no case for interference in appeal is made out.
|
Bai Vajia (Dead) By L.Rs Vs. Thakorbhai Chelabhai and Others | commencement of the Act.The Explanation declares that the property mentioned in sub section (1) includes both movable and immovable property and then proceeds to enumerate the modes of acquisition of various kinds of property which the sub-section would embrace. Such modes of acquisition are:(a) by inheritance,(b) by devise,(c) at a partition,(d) in lieu of maintenance or arrears of maintenance,(e) by gift from any person, whether a relative or not, before, at or after her marriage,(f) by her own skill or exertion,(g) by purchase,(h) by prescription,(i) in any other manner what-so-ever, and(j) any such property held by her as "stridhana" immediately before the commencement of this Act.A reference to the Hindu law as it prevailed immediately before the commencement of the Act would lead one to the conclusion that the object of the Explanation was to make it clear beyond doubt that all kinds of property which fell within the ambit of the term "stridhana" would be held by the owner thereof as a full owner and not as a limited owner. Reference may in this connection be made to the following enumeration of "Stridhana" in paragraph 125 of Mullas Hindu law:(1) Gifts and bequests from relations.(2) Gifts and bequests from strangers.(3) Property obtained on partition.(4) Property given in lieu of maintenance.(5 ) Property acquired by inheritance.(6) Property acquired by mechanical arts(7) Property obtained by compromise.(8) Property acquired by adverse possession.(9) Property purchased with stridhana or with savings of income of stridhana.(10) Property acquired from sources other than those mentioned above.These heads of property are then dealt with at length by Mulla in paragraphs 126 to 135 of his treatise. Prior to the commencement of the Act, the Hindu female did not enjoy full ownership in respect of all kinds of "Stridhana" and her powers to deal with it further varied from school to school. There was a sharp difference in this behalf between Mitakshara and Dayabhaga. And then the Bombay, Benaras, Madras and Mithila schools also differed from each other on the point. Succession to different kinds of "Stridhana" did not follow a uniform pattern. The rights of the Hindu female over "Stridhana" varied according to her status as a maiden, a married woman and a widow. The source and nature of the property acquired also placed limitations on her ownership and made a difference to the mode of succession thereto. A comparison of the content s of the Explanation with those of paragraph 125 of Mullas Hindu Law would show that the two are practically identical. It follows that the Legislature in its wisdom took pains to enumerate specifically all kinds of "Stridhana" in the Explanation and declared that the same would form "property" within the meaning of that word as used in sub-section (1). This was done, in the words of Bhagwati, J, "to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society". It was a step in the direction of practical recognition of equality of the sexes and was meant to elevate women from a subservient position in the economic field to a pedestal where they could exercise full powers of enjoyment and disposal of the property held by them as owners, untrammelled by artificial limitations placed on their right of ownership by a society in which the will of the dominant male prevailed to bring about a subjugation of the opposite sex. It was also a step calculated to ensure uniformity in the law relating to the nature of ownership of "Stridhana". This dual purpose underlying the Explanation must be borne in mind and given effect to when the section is subjected to analysis and interpretation, and sub-section (2) is not to be given a meaning which would defeat that purpose and negative the legislative intent, if the language used so warrants. A Combined reading of the two sub-sections an d the Explanation leaves no doubt in our minds that sub-section (2) does not operate to take property acquired by a Hindu female in lieu of maintenance or arrears of maintenance (which is property specifically included in the enumeration contained in the Explanation) out of the purview of sub-section (1).14. . Tulasammas case (supra) having, in our opinion been decided correctly, the appeal in hand must succeed as the facts in the latter are on all fours with those in the former. Mr. Desai did vehemently argue that this was not so inasmuch as by the decree dated August 18, 1909 the ownership of the land in dispute was vested in Dayalji and Dayabhai sons of Mohanbhai and Motabhai son of Gulabbhai while Bai Vajia was only given the right to possess it for her life-the ownership remaining all along in the said three persons, but this argument does not find favour with us. It has to be noted that so long as she lived, Bai Vajia was to have full enjoyment of and complete control over the land, barring any right to alienate it. Such a right was also taken away from the said three persons. The arrangement meant that whatever rights existed in relation to the land during the life-time of Bai Vajia, were exercisable by her alone and by nobody else. Not even the said three persons could deal with the land in any manner whatsoever, and if they did, Bai Vajia had the right to have their acts declared null and void during her life-time. After the land was made over to her she became its owner for life although with a limited right and therefore only as a limited owner. Under the decree the land vested in the said three persons only so long as they were not dispossessed of it at the instance of Bai Vajia in accordance with the terms stated therein. As soon as Bai Vajia took possession of the land, no rights of any kind whatsoever in relation thereto remained with them and thus they ceased to be the owners for the span of Bai Vajias life.15. | 1[ds]We find that only that part of this argument which is interpretative of sub-section (1) is correct, namely, that it is only some kind of "limited ownership" that would get enlarged into full ownership and that where no ownership at all vested in the concerned Hindu female, no question of the applicability of the sub-section wouldplain reading of sub-section (1) makes it clear that the concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub section. If it was intended to enlarge any sort of a right which could in no sense be described as ownership, the expression "and not as a limited owner" would not have been used at all and becomes redundant, which is against the well-recognised principle of interpretation of statutes that the Legislature does not employ meaninglessthe reasons which weighed with Bhagwati and Fazal Ali, JJ., in rejecting this argument we find no substance in it as we are in full agreement with these reasons and the same may not be reiterated here. However we may emphasize one aspect of the matter which flows from a scrutiny of subsection (1) of section 14 of the Act and the explanation appended thereto. For the applicability of sub-section ( 1) two conditions must co- exist,the concerned female Hindu must be possessed of property and(2) such property must be possessed by her as a limited owner.If these two condition s are fulfilled, the sub-section gives her the right to hold the property as a full owner irrespective of the fact whether she acquired it before or after the commencement of the Act.The Explanation declares that the property mentioned in sub section (1) includes both movable and immovable property and then proceeds to enumerate the modes of acquisition of various kinds of property which the sub-section would embrace.Tulasammas case (supra) having, in our opinion been decided correctly, the appeal in hand must succeed as the facts in the latter are on all fours with those in the former.Desai did vehemently argue that this was not so inasmuch as by the decree dated August 18, 1909 the ownership of the land in dispute was vested in Dayalji and Dayabhai sons of Mohanbhai and Motabhai son of Gulabbhai while Bai Vajia was only given the right to possess it for her life-the ownership remaining all along in the said three persons, but this argument does not find favour with us. It has to be noted that so long as she lived, Bai Vajia was to have full enjoyment of and complete control over the land, barring any right to alienate it. Such a right was also taken away from the said three persons. The arrangement meant that whatever rights existed in relation to the land during the life-time of Bai Vajia, were exercisable by her alone and by nobody else. Not even the said three persons could deal with the land in any manner whatsoever, and if they did, Bai Vajia had the right to have their acts declared null and void during her life-time. After the land was made over to her she became its owner for life although with a limited right and therefore only as a limited owner. Under the decree the land vested in the said three persons only so long as they were not dispossessed of it at the instance of Bai Vajia in accordance with the terms stated therein. As soon as Bai Vajia took possession of the land, no rights of any kind whatsoever in relation thereto remained with them and thus they ceased to be the owners for the span of Bai Vajias life. | 1 | 8,293 | 665 | ### 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:
commencement of the Act.The Explanation declares that the property mentioned in sub section (1) includes both movable and immovable property and then proceeds to enumerate the modes of acquisition of various kinds of property which the sub-section would embrace. Such modes of acquisition are:(a) by inheritance,(b) by devise,(c) at a partition,(d) in lieu of maintenance or arrears of maintenance,(e) by gift from any person, whether a relative or not, before, at or after her marriage,(f) by her own skill or exertion,(g) by purchase,(h) by prescription,(i) in any other manner what-so-ever, and(j) any such property held by her as "stridhana" immediately before the commencement of this Act.A reference to the Hindu law as it prevailed immediately before the commencement of the Act would lead one to the conclusion that the object of the Explanation was to make it clear beyond doubt that all kinds of property which fell within the ambit of the term "stridhana" would be held by the owner thereof as a full owner and not as a limited owner. Reference may in this connection be made to the following enumeration of "Stridhana" in paragraph 125 of Mullas Hindu law:(1) Gifts and bequests from relations.(2) Gifts and bequests from strangers.(3) Property obtained on partition.(4) Property given in lieu of maintenance.(5 ) Property acquired by inheritance.(6) Property acquired by mechanical arts(7) Property obtained by compromise.(8) Property acquired by adverse possession.(9) Property purchased with stridhana or with savings of income of stridhana.(10) Property acquired from sources other than those mentioned above.These heads of property are then dealt with at length by Mulla in paragraphs 126 to 135 of his treatise. Prior to the commencement of the Act, the Hindu female did not enjoy full ownership in respect of all kinds of "Stridhana" and her powers to deal with it further varied from school to school. There was a sharp difference in this behalf between Mitakshara and Dayabhaga. And then the Bombay, Benaras, Madras and Mithila schools also differed from each other on the point. Succession to different kinds of "Stridhana" did not follow a uniform pattern. The rights of the Hindu female over "Stridhana" varied according to her status as a maiden, a married woman and a widow. The source and nature of the property acquired also placed limitations on her ownership and made a difference to the mode of succession thereto. A comparison of the content s of the Explanation with those of paragraph 125 of Mullas Hindu Law would show that the two are practically identical. It follows that the Legislature in its wisdom took pains to enumerate specifically all kinds of "Stridhana" in the Explanation and declared that the same would form "property" within the meaning of that word as used in sub-section (1). This was done, in the words of Bhagwati, J, "to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society". It was a step in the direction of practical recognition of equality of the sexes and was meant to elevate women from a subservient position in the economic field to a pedestal where they could exercise full powers of enjoyment and disposal of the property held by them as owners, untrammelled by artificial limitations placed on their right of ownership by a society in which the will of the dominant male prevailed to bring about a subjugation of the opposite sex. It was also a step calculated to ensure uniformity in the law relating to the nature of ownership of "Stridhana". This dual purpose underlying the Explanation must be borne in mind and given effect to when the section is subjected to analysis and interpretation, and sub-section (2) is not to be given a meaning which would defeat that purpose and negative the legislative intent, if the language used so warrants. A Combined reading of the two sub-sections an d the Explanation leaves no doubt in our minds that sub-section (2) does not operate to take property acquired by a Hindu female in lieu of maintenance or arrears of maintenance (which is property specifically included in the enumeration contained in the Explanation) out of the purview of sub-section (1).14. . Tulasammas case (supra) having, in our opinion been decided correctly, the appeal in hand must succeed as the facts in the latter are on all fours with those in the former. Mr. Desai did vehemently argue that this was not so inasmuch as by the decree dated August 18, 1909 the ownership of the land in dispute was vested in Dayalji and Dayabhai sons of Mohanbhai and Motabhai son of Gulabbhai while Bai Vajia was only given the right to possess it for her life-the ownership remaining all along in the said three persons, but this argument does not find favour with us. It has to be noted that so long as she lived, Bai Vajia was to have full enjoyment of and complete control over the land, barring any right to alienate it. Such a right was also taken away from the said three persons. The arrangement meant that whatever rights existed in relation to the land during the life-time of Bai Vajia, were exercisable by her alone and by nobody else. Not even the said three persons could deal with the land in any manner whatsoever, and if they did, Bai Vajia had the right to have their acts declared null and void during her life-time. After the land was made over to her she became its owner for life although with a limited right and therefore only as a limited owner. Under the decree the land vested in the said three persons only so long as they were not dispossessed of it at the instance of Bai Vajia in accordance with the terms stated therein. As soon as Bai Vajia took possession of the land, no rights of any kind whatsoever in relation thereto remained with them and thus they ceased to be the owners for the span of Bai Vajias life.15.
### Response:
1
### Explanation:
We find that only that part of this argument which is interpretative of sub-section (1) is correct, namely, that it is only some kind of "limited ownership" that would get enlarged into full ownership and that where no ownership at all vested in the concerned Hindu female, no question of the applicability of the sub-section wouldplain reading of sub-section (1) makes it clear that the concerned Hindu female must have limited ownership in property, which limited ownership would get enlarged by the operation of that sub section. If it was intended to enlarge any sort of a right which could in no sense be described as ownership, the expression "and not as a limited owner" would not have been used at all and becomes redundant, which is against the well-recognised principle of interpretation of statutes that the Legislature does not employ meaninglessthe reasons which weighed with Bhagwati and Fazal Ali, JJ., in rejecting this argument we find no substance in it as we are in full agreement with these reasons and the same may not be reiterated here. However we may emphasize one aspect of the matter which flows from a scrutiny of subsection (1) of section 14 of the Act and the explanation appended thereto. For the applicability of sub-section ( 1) two conditions must co- exist,the concerned female Hindu must be possessed of property and(2) such property must be possessed by her as a limited owner.If these two condition s are fulfilled, the sub-section gives her the right to hold the property as a full owner irrespective of the fact whether she acquired it before or after the commencement of the Act.The Explanation declares that the property mentioned in sub section (1) includes both movable and immovable property and then proceeds to enumerate the modes of acquisition of various kinds of property which the sub-section would embrace.Tulasammas case (supra) having, in our opinion been decided correctly, the appeal in hand must succeed as the facts in the latter are on all fours with those in the former.Desai did vehemently argue that this was not so inasmuch as by the decree dated August 18, 1909 the ownership of the land in dispute was vested in Dayalji and Dayabhai sons of Mohanbhai and Motabhai son of Gulabbhai while Bai Vajia was only given the right to possess it for her life-the ownership remaining all along in the said three persons, but this argument does not find favour with us. It has to be noted that so long as she lived, Bai Vajia was to have full enjoyment of and complete control over the land, barring any right to alienate it. Such a right was also taken away from the said three persons. The arrangement meant that whatever rights existed in relation to the land during the life-time of Bai Vajia, were exercisable by her alone and by nobody else. Not even the said three persons could deal with the land in any manner whatsoever, and if they did, Bai Vajia had the right to have their acts declared null and void during her life-time. After the land was made over to her she became its owner for life although with a limited right and therefore only as a limited owner. Under the decree the land vested in the said three persons only so long as they were not dispossessed of it at the instance of Bai Vajia in accordance with the terms stated therein. As soon as Bai Vajia took possession of the land, no rights of any kind whatsoever in relation thereto remained with them and thus they ceased to be the owners for the span of Bai Vajias life.
|
The Amalgamated Coalfields Ltd. And Another Vs. The Janapada Sabha, Chhindwara (And Connected Appeals) | 80A(3) could not be urged. From the recitals at the beginning of the Act it was found that the previous sanction of the Governor-General had been obtained to the introduction of the measure in the Local Legislature under S. 79(2) of the Government of India Act, 1915 - i.e., before S. 80A(3) introduced into the Government of India Act, 1919, was brought into force.10. The learned Attorney-General, therefore, modified his argument and presented it in this form : No doubt when S. 51 of the Act was enacted, it was within the competence of the Local Legislature. But the power conferred by that section to levy the tax was exercised only in 1935 and by that date S. 80A had been introduced into the Government of India Act and thereafter there could be no legal imposition of a tax, not included in the Scheduled Taxes Rules without the previous sanction of the Governor-General being obtained. We consider this argument wholly without force. The validity of S. 51 of the Act, when enacted, not being open to any objection under the Government of India Act, 1915, the amendments effected to the Government of India Act, 1915, by the Act of 1919 did not in any manner, or to any extent, expressly or even by implication affect, or trench upon the continued validity and operation of that section. Obviously S. 80A (3) was only concerned to lay down the preliminaries for enacting a law after that provision came into force and after a law has once been enacted and is in operation, there is no question of the procedure laid down for bills being attracted. This apart, all controversy is set at rest and any argument of the type now urged is precluded by R. 5 of the Scheduled Taxes Rules which runs :"Nothing in these rules shall affect the right of a local authority to impose a tax without previous sanction or with the previous sanction of the local Government when such right is conferred upon it by any law for the time in force."The submission therefore that before the power conferred by S. 51 of the Act, the previous sanction of the Governor-General had to be obtained or that there must be fresh legislation, must be rejected.11. (b) The second matter urged under this head was based on the meaning to be given to the opening words of S. 51 of the Act : "Subject to the provision of any law or enactment for the time being in force". It was suggested that the provision contained in S. 80A(3) of the Government of India Act read with the Scheduled Taxes Rules framed under that section constituted "a law for the time being in force" to which the power to levy the tax was subject. In the first place it is clear that a law like that which is found in S. 80A(3) prescribing a procedure for enacting future Acts of the Local Legislature could not be comprehended within those words. But even if it did, in the face of R. 5 of the Scheduled Taxes Rules, the construction suggested could have no basis.12. (c) The last reason assigned for disputing the validity of the original imposition of the tax, was that S. 51 of the Act on its language and in the context of the other provisions referred to in that section, did not authorise the levy of a tax or cess of the nature of the "coal tax". We are wholly unable to accept this argument. The relevant words of S. 51 are :"impose any tax, toll or rate other than those specified in Ss. 24, 48, 49 and 50".13. It is not suggested that "the coal tax" is one specified in any of the sections set out, and hence, there was power to levy any other tax including that which is now impugned. The learned Attorney-General however suggested that the tax authorised by S. 51 should still be somewhat like the taxes referred to in the other sections, thought not identical with them. Obviously, in the face of the words "other than those .........." the rule of ejusdem generis is contra-indicated and if so on no rule of construction could "the coal tax" be excluded from the purview of the local authority.14. We, therefore, hold that the original imposition of the tax in 1935 was valid.15. (2)The next question is : has the tax ceased to be legally leviable by reason of the coming into force of the Government of India Act, 1935 and of the Constitution? Both these constitutional enactments contain express provisions whereby taxes, cesses, etc., which were previously lawfully levied by local authorities for the purposes of their local areas, might continue to be collected and applied for the same purposes notwithstanding that those taxes could thereafter be imposed only by the Central or the Union Government, as the case may be (Vide S. 143 of the Government of India Act, 1935 and Art. 277 of the Constitution). The objection therefore that "coal tax" or some of the components of it, could have been imposed only by the Central Government or the Union Government is no ground for impugning the continued validity and exigibility of the tax. It is needless to add that if the tax fell within the Provincial or the State List, the levy would be valid under S. 292 of the Government of India Act and Art. 372 of the Constitution even without the aid of the special provisions in S. 143 or Art. 277.In view of these considerations the learned Attorney-General did not address us seriously on this point.16. (3) The last point urged was as regards the validity of the increase in the rate of tax to 9 pies per ton effected in 1949, i.e., after the commencement of Government of India Act, 1935. This objection was not even hinted in the petition now before us, and we did not consider it proper to permit petitioners to raise the point. | 0[ds]8. The petition as filed setting out this contention proceeds on the basis that the Act was passed after the Government of India Act, 1919, by which S. 80A was introduced into the Act of 1915 came into force. If that had been the correct position, the proviso to S. 80A(3) reading :"Provided that an Act or a provision of an Act made by a local legislature, and subsequently assented to by the Governor-General in pursuance of this Act, shall not be deemed invalid by reason only of its requiring the previous sanction of the Governor-General under this Act"would be a complete answer to the above objection, since under the Government of India Act, 1915, before and after its amendment in 1919, every bill passed by a local legislative council had, after receiving the assent of the Governor, to be transmitted to the Governor-General and could become law only after the latter had signified his assent (Vide S. 81(1) and (3) of the Act). That the Governor-General had assented to the Act under this provision was never in dispute. The saving contained in the proviso is, it should be noticed, in addition to the general saving contained S. 84(2) of the Government of India Act (to read only the material words): "........... the validity of any Act of ............. any local legislative shall not be open to question in any legal proceedings on the ground that the Act affects ....................... a central subject" which is of wider import and designed to remove all questions of legislative competence of the type now put forward from the purview of Courts.9. At the stage of the arguments, however, it was found that the Act had become law even prior to the coming into force of the Government of India Act, 1919, with the result that the contention raised in the petition based on S. 80A(3) could not be urged. From the recitals at the beginning of the Act it was found that the previous sanction of the Governor-General had been obtained to the introduction of the measure in the Local Legislature under S. 79(2) of the Government of India Act, 1915 - i.e., before S. 80A(3) introduced into the Government of India Act, 1919, was brought intoconsider this argument wholly without force. The validity of S. 51 of the Act, when enacted, not being open to any objection under the Government of India Act, 1915, the amendments effected to the Government of India Act, 1915, by the Act of 1919 did not in any manner, or to any extent, expressly or even by implication affect, or trench upon the continued validity and operation of that section. Obviously S. 80A (3) was only concerned to lay down the preliminaries for enacting a law after that provision came into force and after a law has once been enacted and is in operation, there is no question of the procedure laid down for bills being attracted. This apart, all controversy is set at rest and any argument of the type now urged is precluded by R. 5 of the Scheduled Taxessubmission therefore that before the power conferred by S. 51 of the Act, the previous sanction of the Governor-General had to be obtained or that there must be fresh legislation, must bethe first place it is clear that a law like that which is found in S. 80A(3) prescribing a procedure for enacting future Acts of the Local Legislature could not be comprehended within those words. But even if it did, in the face of R. 5 of the Scheduled Taxes Rules, the construction suggested could have noare wholly unable to accept this argument. The relevant words of S. 51 are :"impose any tax, toll or rate other than those specified in Ss. 24, 48, 49 and 50".13. It is not suggested that "the coal tax" is one specified in any of the sections set out, and hence, there was power to levy any other tax including that which is now impugned. The learned Attorney-General however suggested that the tax authorised by S. 51 should still be somewhat like the taxes referred to in the other sections, thought not identical with them. Obviously, in the face of the words "other than those .........." the rule of ejusdem generis is contra-indicated and if so on no rule of construction could "the coal tax" be excluded from the purview of the local authority.14. We, therefore, hold that the original imposition of the tax in 1935 wasthese constitutional enactments contain express provisions whereby taxes, cesses, etc., which were previously lawfully levied by local authorities for the purposes of their local areas, might continue to be collected and applied for the same purposes notwithstanding that those taxes could thereafter be imposed only by the Central or the Union Government, as the case may be (Vide S. 143 of the Government of India Act, 1935 and Art. 277 of the Constitution). The objection therefore that "coal tax" or some of the components of it, could have been imposed only by the Central Government or the Union Government is no ground for impugning the continued validity and exigibility of the tax. It is needless to add that if the tax fell within the Provincial or the State List, the levy would be valid under S. 292 of the Government of India Act and Art. 372 of the Constitution even without the aid of the special provisions in S. 143 or Art. 277.In view of these considerations the learned Attorney-General did not address us seriously on this point.16. (3) The last point urged was as regards the validity of the increase in the rate of tax to 9 pies per ton effected in 1949, i.e., after the commencement of Government of India Act, 1935. This objection was not even hinted in the petition now before us, and we did not consider it proper to permit petitioners to raise the point. | 0 | 2,729 | 1,124 | ### 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:
80A(3) could not be urged. From the recitals at the beginning of the Act it was found that the previous sanction of the Governor-General had been obtained to the introduction of the measure in the Local Legislature under S. 79(2) of the Government of India Act, 1915 - i.e., before S. 80A(3) introduced into the Government of India Act, 1919, was brought into force.10. The learned Attorney-General, therefore, modified his argument and presented it in this form : No doubt when S. 51 of the Act was enacted, it was within the competence of the Local Legislature. But the power conferred by that section to levy the tax was exercised only in 1935 and by that date S. 80A had been introduced into the Government of India Act and thereafter there could be no legal imposition of a tax, not included in the Scheduled Taxes Rules without the previous sanction of the Governor-General being obtained. We consider this argument wholly without force. The validity of S. 51 of the Act, when enacted, not being open to any objection under the Government of India Act, 1915, the amendments effected to the Government of India Act, 1915, by the Act of 1919 did not in any manner, or to any extent, expressly or even by implication affect, or trench upon the continued validity and operation of that section. Obviously S. 80A (3) was only concerned to lay down the preliminaries for enacting a law after that provision came into force and after a law has once been enacted and is in operation, there is no question of the procedure laid down for bills being attracted. This apart, all controversy is set at rest and any argument of the type now urged is precluded by R. 5 of the Scheduled Taxes Rules which runs :"Nothing in these rules shall affect the right of a local authority to impose a tax without previous sanction or with the previous sanction of the local Government when such right is conferred upon it by any law for the time in force."The submission therefore that before the power conferred by S. 51 of the Act, the previous sanction of the Governor-General had to be obtained or that there must be fresh legislation, must be rejected.11. (b) The second matter urged under this head was based on the meaning to be given to the opening words of S. 51 of the Act : "Subject to the provision of any law or enactment for the time being in force". It was suggested that the provision contained in S. 80A(3) of the Government of India Act read with the Scheduled Taxes Rules framed under that section constituted "a law for the time being in force" to which the power to levy the tax was subject. In the first place it is clear that a law like that which is found in S. 80A(3) prescribing a procedure for enacting future Acts of the Local Legislature could not be comprehended within those words. But even if it did, in the face of R. 5 of the Scheduled Taxes Rules, the construction suggested could have no basis.12. (c) The last reason assigned for disputing the validity of the original imposition of the tax, was that S. 51 of the Act on its language and in the context of the other provisions referred to in that section, did not authorise the levy of a tax or cess of the nature of the "coal tax". We are wholly unable to accept this argument. The relevant words of S. 51 are :"impose any tax, toll or rate other than those specified in Ss. 24, 48, 49 and 50".13. It is not suggested that "the coal tax" is one specified in any of the sections set out, and hence, there was power to levy any other tax including that which is now impugned. The learned Attorney-General however suggested that the tax authorised by S. 51 should still be somewhat like the taxes referred to in the other sections, thought not identical with them. Obviously, in the face of the words "other than those .........." the rule of ejusdem generis is contra-indicated and if so on no rule of construction could "the coal tax" be excluded from the purview of the local authority.14. We, therefore, hold that the original imposition of the tax in 1935 was valid.15. (2)The next question is : has the tax ceased to be legally leviable by reason of the coming into force of the Government of India Act, 1935 and of the Constitution? Both these constitutional enactments contain express provisions whereby taxes, cesses, etc., which were previously lawfully levied by local authorities for the purposes of their local areas, might continue to be collected and applied for the same purposes notwithstanding that those taxes could thereafter be imposed only by the Central or the Union Government, as the case may be (Vide S. 143 of the Government of India Act, 1935 and Art. 277 of the Constitution). The objection therefore that "coal tax" or some of the components of it, could have been imposed only by the Central Government or the Union Government is no ground for impugning the continued validity and exigibility of the tax. It is needless to add that if the tax fell within the Provincial or the State List, the levy would be valid under S. 292 of the Government of India Act and Art. 372 of the Constitution even without the aid of the special provisions in S. 143 or Art. 277.In view of these considerations the learned Attorney-General did not address us seriously on this point.16. (3) The last point urged was as regards the validity of the increase in the rate of tax to 9 pies per ton effected in 1949, i.e., after the commencement of Government of India Act, 1935. This objection was not even hinted in the petition now before us, and we did not consider it proper to permit petitioners to raise the point.
### Response:
0
### Explanation:
8. The petition as filed setting out this contention proceeds on the basis that the Act was passed after the Government of India Act, 1919, by which S. 80A was introduced into the Act of 1915 came into force. If that had been the correct position, the proviso to S. 80A(3) reading :"Provided that an Act or a provision of an Act made by a local legislature, and subsequently assented to by the Governor-General in pursuance of this Act, shall not be deemed invalid by reason only of its requiring the previous sanction of the Governor-General under this Act"would be a complete answer to the above objection, since under the Government of India Act, 1915, before and after its amendment in 1919, every bill passed by a local legislative council had, after receiving the assent of the Governor, to be transmitted to the Governor-General and could become law only after the latter had signified his assent (Vide S. 81(1) and (3) of the Act). That the Governor-General had assented to the Act under this provision was never in dispute. The saving contained in the proviso is, it should be noticed, in addition to the general saving contained S. 84(2) of the Government of India Act (to read only the material words): "........... the validity of any Act of ............. any local legislative shall not be open to question in any legal proceedings on the ground that the Act affects ....................... a central subject" which is of wider import and designed to remove all questions of legislative competence of the type now put forward from the purview of Courts.9. At the stage of the arguments, however, it was found that the Act had become law even prior to the coming into force of the Government of India Act, 1919, with the result that the contention raised in the petition based on S. 80A(3) could not be urged. From the recitals at the beginning of the Act it was found that the previous sanction of the Governor-General had been obtained to the introduction of the measure in the Local Legislature under S. 79(2) of the Government of India Act, 1915 - i.e., before S. 80A(3) introduced into the Government of India Act, 1919, was brought intoconsider this argument wholly without force. The validity of S. 51 of the Act, when enacted, not being open to any objection under the Government of India Act, 1915, the amendments effected to the Government of India Act, 1915, by the Act of 1919 did not in any manner, or to any extent, expressly or even by implication affect, or trench upon the continued validity and operation of that section. Obviously S. 80A (3) was only concerned to lay down the preliminaries for enacting a law after that provision came into force and after a law has once been enacted and is in operation, there is no question of the procedure laid down for bills being attracted. This apart, all controversy is set at rest and any argument of the type now urged is precluded by R. 5 of the Scheduled Taxessubmission therefore that before the power conferred by S. 51 of the Act, the previous sanction of the Governor-General had to be obtained or that there must be fresh legislation, must bethe first place it is clear that a law like that which is found in S. 80A(3) prescribing a procedure for enacting future Acts of the Local Legislature could not be comprehended within those words. But even if it did, in the face of R. 5 of the Scheduled Taxes Rules, the construction suggested could have noare wholly unable to accept this argument. The relevant words of S. 51 are :"impose any tax, toll or rate other than those specified in Ss. 24, 48, 49 and 50".13. It is not suggested that "the coal tax" is one specified in any of the sections set out, and hence, there was power to levy any other tax including that which is now impugned. The learned Attorney-General however suggested that the tax authorised by S. 51 should still be somewhat like the taxes referred to in the other sections, thought not identical with them. Obviously, in the face of the words "other than those .........." the rule of ejusdem generis is contra-indicated and if so on no rule of construction could "the coal tax" be excluded from the purview of the local authority.14. We, therefore, hold that the original imposition of the tax in 1935 wasthese constitutional enactments contain express provisions whereby taxes, cesses, etc., which were previously lawfully levied by local authorities for the purposes of their local areas, might continue to be collected and applied for the same purposes notwithstanding that those taxes could thereafter be imposed only by the Central or the Union Government, as the case may be (Vide S. 143 of the Government of India Act, 1935 and Art. 277 of the Constitution). The objection therefore that "coal tax" or some of the components of it, could have been imposed only by the Central Government or the Union Government is no ground for impugning the continued validity and exigibility of the tax. It is needless to add that if the tax fell within the Provincial or the State List, the levy would be valid under S. 292 of the Government of India Act and Art. 372 of the Constitution even without the aid of the special provisions in S. 143 or Art. 277.In view of these considerations the learned Attorney-General did not address us seriously on this point.16. (3) The last point urged was as regards the validity of the increase in the rate of tax to 9 pies per ton effected in 1949, i.e., after the commencement of Government of India Act, 1935. This objection was not even hinted in the petition now before us, and we did not consider it proper to permit petitioners to raise the point.
|
Jute & Gunny Brokers Ltd Vs. M/S. New Central Jute Mills Co., Ltd | in question, that the Board did not specify a date within which the contract was to be entered into and that, finally, the delivery period fixed in the contract was in contravention of the provisions of the Act and the rules and, therefore, the contract was void under S. 5 (2) of the Act, if Ss. 5, 6 and 7 were in force at the date of the contract.6. The respondent companys aforesaid application for setting aside the award having come on for hearing, the learned Single Judge sitting on the Original Side reported the matter, under R. 2 of Ch. V of the Original Side Rules, to the Chief Justice for forming a larger Bench for hearing of the said application. A Special Bench was accordingly constituted by the Chief Justice and the application came up for hearing before that Bench. Three points were urged before the High Court, namely, (1) that the Act was ultra vires the Bengal Legislature; (2) that even if the Act were intra vires Ss. 5, 6 and 7 of the Act were never brought into force and (3). that there was a subsequent independent agreement to refer the disputes to the arbitration of the Bengal Chamber of Commerce. The High Court negatived all the contentions raised by the appellant company and by its judgment date January 23, 1953, allowed the application and declared the award to be null and void, but directed the parties to bear their own costs. This appeal, as already stated, has been filed against the judgment of the High Court upon a certificate of fitness granted by the High Court.7. The learned Attorney General appearing in support of this appeal has urged before us only the second point urged before the High Court, namely, that even if the Act were intra vires Ss. 5, 6 and 7 had never been brought into force, and therefore, the contract in question containing the arbitration clause was valid and consequently the award was binding and enforceable. He does not dispute that, by virtue of S. 16 of the Act, the notification issued on December 29, 1950, under S. 2 (1) of the Ordinance has to be deemed to have been issued under the Act, but he contends that even so the notification dated December 29, 1950, cannot be read as having brought Ss. 5, 6 and 7 of the Act into force, for it, in terms, specified December 30 1950, as the appointed day "for the purposes of Ss. 5, 6 and 7 of the Ordinance." He urges that this Court has to take the notification made under the Ordinance as it finds it and then, under S. 16 of the Act, to deem it to have been made under the Act. According to him the fiction created by S. 16 ends as soon as the notification is deemed to have been made under the Act and goes no further. He concludes, on the authority of the decisions in Hamilton and Co. v. Mackie and Sons 1889-5 T L R 677 and Thomas and Co. Ltd. v. Portsea Steamship Co. Ltd., (1912) A C 1 that, on a plain reading of it, the notification, when it is deemed to have been made under the Act, makes no sense, for it does not purport to bring any of the sections of the Act, into force but expressly brings Ss. 5, 6 and 7 of the Ordinance into force. He submits that it is not for the Court to alter the terms of the notification so as to make it possible to read it as a notification made under the Act. We are unable to accept this line of argument. The decisions relied on by the learned Attorney General can have no application to the present cash. In those cases there was no statutory provision for deeming the provision of the charter party referring all disputes under the charter party to arbitration as an integral part of the provisions of the bill of lading and, therefore, the only thing to be done in those cases was to lift bodily the relevant provision of the charter party and to insert it in and to read it as a part of the bill of lading. It was held that so read it became insensible, for an arbitration clause referring all disputes arising out of the charter party was wholly out of place and meaningless as a term of the bill of lading.A cursory perusal of S. 16 will, however, show that there are two fictions created by that section : One is that the Act shall be deemed to have commenced on December 14, 1950, and the other is that the notification issued under the Ordinance shall be deemed to have been issued under the Act. If the Act fictionally commenced on December 14, 1950, then the Ordinance would have to be treated as not promulgated at all, for the two could not have co-existed and when the Act provided that the notification, which for identification, is described as having been issued under the Ordinance, then, unless we read the word "Ordinance" as "Act", we do not give full effect to the twin fictions created by the Act. In other words the creation of the statutory fictions compels us to adopt the principle of mutatis mutandis and to substitute the word "Act" for the word "Ordinance" used in the notification, so as to give full effect to the fictions created by the statute. We see no reason in support of the contentions of the Attorney General that the fiction raised by S. 16 stops short at mere issuing of the notification. The ambit of the fiction appears to us to cover not only the issuance of the notification but to extend to our reading it as having been one issued under the Act. We cannot read it as having been issued under the Act unless we read the word "Ordinance" used in the notification as "Act". | 0[ds].A cursory perusal of S. 16 will, however, show that there are two fictions created by that section : One is that the Act shall be deemed to have commenced on December 14, 1950, and the other is that the notification issued under the Ordinance shall be deemed to have been issued under the Act. If the Act fictionally commenced on December 14, 1950, then the Ordinance would have to be treated as not promulgated at all, for the two could not have co-existed and when the Act provided that the notification, which for identification, is described as having been issued under the Ordinance, then, unless we read the word "Ordinance" as "Act", we do not give full effect to the twin fictions created by the Act. In other words the creation of the statutory fictions compels us to adopt the principle of mutatis mutandis and to substitute the word "Act" for the word "Ordinance" used in the notification, so as to give full effect to the fictions created by the statute. We see no reason in support of the contentions of the Attorney General that the fiction raised by S. 16 stops short at mere issuing of the notification. The ambit of the fiction appears to us to cover not only the issuance of the notification but to extend to our reading it as having been one issued under the Act. We cannot read it as having been issued under the Act unless we read the word "Ordinance" used in the notification as "Act". | 0 | 2,688 | 291 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
in question, that the Board did not specify a date within which the contract was to be entered into and that, finally, the delivery period fixed in the contract was in contravention of the provisions of the Act and the rules and, therefore, the contract was void under S. 5 (2) of the Act, if Ss. 5, 6 and 7 were in force at the date of the contract.6. The respondent companys aforesaid application for setting aside the award having come on for hearing, the learned Single Judge sitting on the Original Side reported the matter, under R. 2 of Ch. V of the Original Side Rules, to the Chief Justice for forming a larger Bench for hearing of the said application. A Special Bench was accordingly constituted by the Chief Justice and the application came up for hearing before that Bench. Three points were urged before the High Court, namely, (1) that the Act was ultra vires the Bengal Legislature; (2) that even if the Act were intra vires Ss. 5, 6 and 7 of the Act were never brought into force and (3). that there was a subsequent independent agreement to refer the disputes to the arbitration of the Bengal Chamber of Commerce. The High Court negatived all the contentions raised by the appellant company and by its judgment date January 23, 1953, allowed the application and declared the award to be null and void, but directed the parties to bear their own costs. This appeal, as already stated, has been filed against the judgment of the High Court upon a certificate of fitness granted by the High Court.7. The learned Attorney General appearing in support of this appeal has urged before us only the second point urged before the High Court, namely, that even if the Act were intra vires Ss. 5, 6 and 7 had never been brought into force, and therefore, the contract in question containing the arbitration clause was valid and consequently the award was binding and enforceable. He does not dispute that, by virtue of S. 16 of the Act, the notification issued on December 29, 1950, under S. 2 (1) of the Ordinance has to be deemed to have been issued under the Act, but he contends that even so the notification dated December 29, 1950, cannot be read as having brought Ss. 5, 6 and 7 of the Act into force, for it, in terms, specified December 30 1950, as the appointed day "for the purposes of Ss. 5, 6 and 7 of the Ordinance." He urges that this Court has to take the notification made under the Ordinance as it finds it and then, under S. 16 of the Act, to deem it to have been made under the Act. According to him the fiction created by S. 16 ends as soon as the notification is deemed to have been made under the Act and goes no further. He concludes, on the authority of the decisions in Hamilton and Co. v. Mackie and Sons 1889-5 T L R 677 and Thomas and Co. Ltd. v. Portsea Steamship Co. Ltd., (1912) A C 1 that, on a plain reading of it, the notification, when it is deemed to have been made under the Act, makes no sense, for it does not purport to bring any of the sections of the Act, into force but expressly brings Ss. 5, 6 and 7 of the Ordinance into force. He submits that it is not for the Court to alter the terms of the notification so as to make it possible to read it as a notification made under the Act. We are unable to accept this line of argument. The decisions relied on by the learned Attorney General can have no application to the present cash. In those cases there was no statutory provision for deeming the provision of the charter party referring all disputes under the charter party to arbitration as an integral part of the provisions of the bill of lading and, therefore, the only thing to be done in those cases was to lift bodily the relevant provision of the charter party and to insert it in and to read it as a part of the bill of lading. It was held that so read it became insensible, for an arbitration clause referring all disputes arising out of the charter party was wholly out of place and meaningless as a term of the bill of lading.A cursory perusal of S. 16 will, however, show that there are two fictions created by that section : One is that the Act shall be deemed to have commenced on December 14, 1950, and the other is that the notification issued under the Ordinance shall be deemed to have been issued under the Act. If the Act fictionally commenced on December 14, 1950, then the Ordinance would have to be treated as not promulgated at all, for the two could not have co-existed and when the Act provided that the notification, which for identification, is described as having been issued under the Ordinance, then, unless we read the word "Ordinance" as "Act", we do not give full effect to the twin fictions created by the Act. In other words the creation of the statutory fictions compels us to adopt the principle of mutatis mutandis and to substitute the word "Act" for the word "Ordinance" used in the notification, so as to give full effect to the fictions created by the statute. We see no reason in support of the contentions of the Attorney General that the fiction raised by S. 16 stops short at mere issuing of the notification. The ambit of the fiction appears to us to cover not only the issuance of the notification but to extend to our reading it as having been one issued under the Act. We cannot read it as having been issued under the Act unless we read the word "Ordinance" used in the notification as "Act".
### Response:
0
### Explanation:
.A cursory perusal of S. 16 will, however, show that there are two fictions created by that section : One is that the Act shall be deemed to have commenced on December 14, 1950, and the other is that the notification issued under the Ordinance shall be deemed to have been issued under the Act. If the Act fictionally commenced on December 14, 1950, then the Ordinance would have to be treated as not promulgated at all, for the two could not have co-existed and when the Act provided that the notification, which for identification, is described as having been issued under the Ordinance, then, unless we read the word "Ordinance" as "Act", we do not give full effect to the twin fictions created by the Act. In other words the creation of the statutory fictions compels us to adopt the principle of mutatis mutandis and to substitute the word "Act" for the word "Ordinance" used in the notification, so as to give full effect to the fictions created by the statute. We see no reason in support of the contentions of the Attorney General that the fiction raised by S. 16 stops short at mere issuing of the notification. The ambit of the fiction appears to us to cover not only the issuance of the notification but to extend to our reading it as having been one issued under the Act. We cannot read it as having been issued under the Act unless we read the word "Ordinance" used in the notification as "Act".
|
KUMUD W/O MAHADEORAO SLUNKE Vs. SHRI PANDURANG NARAYAN GANDHEWAR THROUGH LRS | 1982. Thereafter, he filed Civil Suit No.334 of 1996 seeking eviction of the respondent. However, an objection was taken by the respondent that the premises were governed by the Maharashtra Slum Areas (Improvement, clearance and Re-development) Act, 1971 (hereinafter referred to as, ‘the Act?) and as such the requisite permission of the Slum Authority under Section 22 had to be obtained. The suit was therefore withdrawn by the appellant, and application was preferred by him before the Slum Authority seeking required permission. 4. The Slum Authority vide its order dated 28.11.2000 granted the permission. In an appeal arising therefrom, an order of remand was passed by the Appellate Authority. The matter was gone into by the Slum Authority afresh and by its order dated 30.05.2002 the permission was granted to the appellant to file the suit for eviction. The appeal preferred by the respondent challenging the order passed by the Slum Authority was dismissed by the Appellate Authority on 31.10.2002 after giving opportunity to the parties and after scrutinising the material on record. While considering the submission made on behalf of the respondent as regards alternative accommodation, it was observed by the Appellate Authority as under:?5-4. U/s 22 (4) of Maharashtra Slum (Improvement & Re-development Act, 1971 the competent authority should have seen that whether the alternative accommodation is available to the occupied within his means it does not mean that the competent Authority should search the accommodation. The wife of appellant as in service in mentioned in para 15 of written notes of arguments. Under the circumstances whether alternative accommodation is available and can be made available, the burden of proof lies with the appellant. However, the appellant failed to prove the same and hence there is no substance in the point. 6. On the basis of above discussion and verifying the record of lower court and provisions of Maharashtra Slum (Improvement & Re-development) Act, 1971, therefore I come to the conclusion that no substantial proof is presented by the appellant to interfere with the finding of lower court & hence I pass the following order. ORDER The appeal is rejected and the order passed by lower court dt.30 th May, 2002 is confirmed.?5. Having secured the permission from the Slum Authority, Civil Suit No.113 of 2003 was filed by the appellant seeking decree of eviction of the respondent. The suit was however dismissed by the Trial Court on 27.09.2007. Regular Civil Appeal No.444 of 2007 arising therefrom was allowed by the Appellate Court and by its judgment and order dated 17.08.2010 it passed decree for eviction of the respondent and also passed order as regards payment of arrears. It is undisputed that the decree passed by the Appellate Court was not challenged in any manner and has attained finality. 6. In the meantime, Writ Petition No.2199 of 2003 was filed by the respondent challenging the permission granted by the Slum Authority as confirmed by the Appellate Authority vide its order dated 31.10.2002. This Writ Petition was allowed by the High Court by its judgment and order dated 19.06.2014. It was observed that the Slum Authority had not considered the relevant factorsenumerated in Clauses (a) to (c) of Section 22(4) of the Slum Act, 1971 and consideration of those factors by the Appellate Authority would not legalize the absence of such consideration by the competent authority. It was observed as under:-?7. In the present case, it is undisputed that he competent authority has not applied its mind and has not taken into consideration the relevant factors enumerated in clause (a) to (c) of section 22(4) of the Slum Act, 1971. The consideration of these factors by the appellate authority does not legalize the order passed by the competent authority. It is settled law that if anything has to be done according to the provisions of law, then it should be done in that manner only. The competent authority has passed the cryptic order. The appellate order cannot substitute its reasoning to legalize the order passed by the fact-finding authority.?With this view, the writ petition was allowed and the matter was again remitted to the authority for inquiry. 7. We heard Dr. A. Rajeev B. Masodkar, learned Advocate in support of the appeal and Mr. Kishor Lambat, learned Advocate for the respondents. 8. In Vidarbha part of the State of Maharashtra, before the enactment of Maharashtra Rent Control Act, 1989, there had to be two rounds of litigation to seek eviction of a tenant. The first round had to be before the Rent Controller seeking permission to issue a quit notice under Section 108 of the Transfer of Property Act. If such permission was granted, then only the landlord could issue a notice of termination of tenancy and file a civil suit seeking eviction of a tenant. In the present case the first round before the Rent Controller was gone into. Bona fide need as a ground for eviction may, in a given case, have an additional facet of comparative hardship and whether the tenant has any alternative accommodation or not. In any case, the matter had attained finality. The permission was granted by the Rent Controller and the civil suit was filed only thereafter in which an objection was taken that the premises being governed by the provisions of the Act, the requisite permission of the Slum Authority was mandatory. 9. In the proceedings so initiated the Slum Authority granted that permission. The matter was carried in appeal and the issue whether the requirements under Section 22(4) of the Act stood satisfied or not was also considered by the Appellate Authority. It must also be noted that the Civil Suit seeking eviction also attained finality. 10. In the circumstances, the view that weighed with the High Court was not correct. The respondent had opportunity at every stage to present his case and whether the requirements of Section 22(4) of the Act stood satisfied or not was a matter which was dealt with by the Appellate Authority in sufficient detail. | 1[ds]8. In Vidarbha part of the State of Maharashtra, before the enactment of Maharashtra Rent Control Act, 1989, there had to be two rounds of litigation to seek eviction of a tenant. The first round had to be before the Rent Controller seeking permission to issue a quit notice under Section 108 of the Transfer of Property Act. If such permission was granted, then only the landlord could issue a notice of termination of tenancy and file a civil suit seeking eviction of a tenant. In the present case the first round before the Rent Controller was gone into. Bona fide need as a ground for eviction may, in a given case, have an additional facet of comparative hardship and whether the tenant has any alternative accommodation or not. In any case, the matter had attained finality. The permission was granted by the Rent Controller and the civil suit was filed only thereafter in which an objection was taken that the premises being governed by the provisions of the Act, the requisite permission of the Slum Authority was mandatory.In the proceedings so initiated the Slum Authority granted that permission. The matter was carried in appeal and the issue whether the requirements under Section 22(4) of the Act stood satisfied or not was also considered by the Appellatemust also be noted that the Civil Suit seeking eviction also attained finality.In the circumstances, the view that weighed with the High Court was not correct. The respondent had opportunity at every stage to present his case and whether the requirements of Section 22(4) of the Act stood satisfied or not was a matter which was dealt with by the Appellate Authority in sufficient detail. | 1 | 1,256 | 310 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
1982. Thereafter, he filed Civil Suit No.334 of 1996 seeking eviction of the respondent. However, an objection was taken by the respondent that the premises were governed by the Maharashtra Slum Areas (Improvement, clearance and Re-development) Act, 1971 (hereinafter referred to as, ‘the Act?) and as such the requisite permission of the Slum Authority under Section 22 had to be obtained. The suit was therefore withdrawn by the appellant, and application was preferred by him before the Slum Authority seeking required permission. 4. The Slum Authority vide its order dated 28.11.2000 granted the permission. In an appeal arising therefrom, an order of remand was passed by the Appellate Authority. The matter was gone into by the Slum Authority afresh and by its order dated 30.05.2002 the permission was granted to the appellant to file the suit for eviction. The appeal preferred by the respondent challenging the order passed by the Slum Authority was dismissed by the Appellate Authority on 31.10.2002 after giving opportunity to the parties and after scrutinising the material on record. While considering the submission made on behalf of the respondent as regards alternative accommodation, it was observed by the Appellate Authority as under:?5-4. U/s 22 (4) of Maharashtra Slum (Improvement & Re-development Act, 1971 the competent authority should have seen that whether the alternative accommodation is available to the occupied within his means it does not mean that the competent Authority should search the accommodation. The wife of appellant as in service in mentioned in para 15 of written notes of arguments. Under the circumstances whether alternative accommodation is available and can be made available, the burden of proof lies with the appellant. However, the appellant failed to prove the same and hence there is no substance in the point. 6. On the basis of above discussion and verifying the record of lower court and provisions of Maharashtra Slum (Improvement & Re-development) Act, 1971, therefore I come to the conclusion that no substantial proof is presented by the appellant to interfere with the finding of lower court & hence I pass the following order. ORDER The appeal is rejected and the order passed by lower court dt.30 th May, 2002 is confirmed.?5. Having secured the permission from the Slum Authority, Civil Suit No.113 of 2003 was filed by the appellant seeking decree of eviction of the respondent. The suit was however dismissed by the Trial Court on 27.09.2007. Regular Civil Appeal No.444 of 2007 arising therefrom was allowed by the Appellate Court and by its judgment and order dated 17.08.2010 it passed decree for eviction of the respondent and also passed order as regards payment of arrears. It is undisputed that the decree passed by the Appellate Court was not challenged in any manner and has attained finality. 6. In the meantime, Writ Petition No.2199 of 2003 was filed by the respondent challenging the permission granted by the Slum Authority as confirmed by the Appellate Authority vide its order dated 31.10.2002. This Writ Petition was allowed by the High Court by its judgment and order dated 19.06.2014. It was observed that the Slum Authority had not considered the relevant factorsenumerated in Clauses (a) to (c) of Section 22(4) of the Slum Act, 1971 and consideration of those factors by the Appellate Authority would not legalize the absence of such consideration by the competent authority. It was observed as under:-?7. In the present case, it is undisputed that he competent authority has not applied its mind and has not taken into consideration the relevant factors enumerated in clause (a) to (c) of section 22(4) of the Slum Act, 1971. The consideration of these factors by the appellate authority does not legalize the order passed by the competent authority. It is settled law that if anything has to be done according to the provisions of law, then it should be done in that manner only. The competent authority has passed the cryptic order. The appellate order cannot substitute its reasoning to legalize the order passed by the fact-finding authority.?With this view, the writ petition was allowed and the matter was again remitted to the authority for inquiry. 7. We heard Dr. A. Rajeev B. Masodkar, learned Advocate in support of the appeal and Mr. Kishor Lambat, learned Advocate for the respondents. 8. In Vidarbha part of the State of Maharashtra, before the enactment of Maharashtra Rent Control Act, 1989, there had to be two rounds of litigation to seek eviction of a tenant. The first round had to be before the Rent Controller seeking permission to issue a quit notice under Section 108 of the Transfer of Property Act. If such permission was granted, then only the landlord could issue a notice of termination of tenancy and file a civil suit seeking eviction of a tenant. In the present case the first round before the Rent Controller was gone into. Bona fide need as a ground for eviction may, in a given case, have an additional facet of comparative hardship and whether the tenant has any alternative accommodation or not. In any case, the matter had attained finality. The permission was granted by the Rent Controller and the civil suit was filed only thereafter in which an objection was taken that the premises being governed by the provisions of the Act, the requisite permission of the Slum Authority was mandatory. 9. In the proceedings so initiated the Slum Authority granted that permission. The matter was carried in appeal and the issue whether the requirements under Section 22(4) of the Act stood satisfied or not was also considered by the Appellate Authority. It must also be noted that the Civil Suit seeking eviction also attained finality. 10. In the circumstances, the view that weighed with the High Court was not correct. The respondent had opportunity at every stage to present his case and whether the requirements of Section 22(4) of the Act stood satisfied or not was a matter which was dealt with by the Appellate Authority in sufficient detail.
### Response:
1
### Explanation:
8. In Vidarbha part of the State of Maharashtra, before the enactment of Maharashtra Rent Control Act, 1989, there had to be two rounds of litigation to seek eviction of a tenant. The first round had to be before the Rent Controller seeking permission to issue a quit notice under Section 108 of the Transfer of Property Act. If such permission was granted, then only the landlord could issue a notice of termination of tenancy and file a civil suit seeking eviction of a tenant. In the present case the first round before the Rent Controller was gone into. Bona fide need as a ground for eviction may, in a given case, have an additional facet of comparative hardship and whether the tenant has any alternative accommodation or not. In any case, the matter had attained finality. The permission was granted by the Rent Controller and the civil suit was filed only thereafter in which an objection was taken that the premises being governed by the provisions of the Act, the requisite permission of the Slum Authority was mandatory.In the proceedings so initiated the Slum Authority granted that permission. The matter was carried in appeal and the issue whether the requirements under Section 22(4) of the Act stood satisfied or not was also considered by the Appellatemust also be noted that the Civil Suit seeking eviction also attained finality.In the circumstances, the view that weighed with the High Court was not correct. The respondent had opportunity at every stage to present his case and whether the requirements of Section 22(4) of the Act stood satisfied or not was a matter which was dealt with by the Appellate Authority in sufficient detail.
|
The Principal Commissioner of Income Tax-1 Vs. M/s. Bajaj Herbals Pvt. Ltd | M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with impugned order dated 01.10.2020/02.12.2020 (modification order) passed by the Division Bench of the High Court of Gujarat at Ahmedabad in R/Tax Appeal No. 278 of 2020, by which the High Court has dismissed the said appeal preferred by the appellant herein – Revenue, the present appeal has been preferred by the Revenue. 2. As per the office report the respondent is served. From the office report, it appears that the respondent – assessee sent a letter to the Registry of this Court on 22.10.2021 to grant an adjournment of three months. The time was accordingly granted. Despite the same no one has filed vakalatnama and none has appeared on behalf of the respondent. Hence, service of notice on the respondent is complete. 3. By the impugned order the High Court has dismissed the said appeal simply by observing that none of the questions as proposed by the revenue could be termed as the substantial questions of law and all the questions proposed are on factual aspects of the matter. However, it is required to be noted that except re--producing the proposed questions of law, there is no further discussion on the factual matrix of the case. While issuing the notice, this Court passed the following order: - Mr. Balbir Singh, learned ASG, has vehemently submitted that in the impugned order except narrating the proposed questions of law, there is no independent reasoning given by the High Court while dismissing the appeal except recording that having gone through the materials on record, we are of the view that none of the questions as proposed by the revenue could be termed as the substantial questions of law. All the questions proposed are on factual aspects of the matter. Hence, issue notice for final disposal returnable within six weeks. Counter be filed within four weeks from the date of receipt of the notice. Dasti, in addition, is permitted. 3.1 As the impugned order passed by the High Court is a nonspeaking and non--reasoned order and even the submissions on behalf of the revenue are not recorded, the impugned order passed by the High Court dismissing the appeal is unsustainable. | 1[ds]3.1 As the impugned order passed by the High Court is a nonspeaking and non--reasoned order and even the submissions on behalf of the revenue are not recorded, the impugned order passed by the High Court dismissing the appeal is unsustainable. | 1 | 408 | 49 | ### 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:
M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with impugned order dated 01.10.2020/02.12.2020 (modification order) passed by the Division Bench of the High Court of Gujarat at Ahmedabad in R/Tax Appeal No. 278 of 2020, by which the High Court has dismissed the said appeal preferred by the appellant herein – Revenue, the present appeal has been preferred by the Revenue. 2. As per the office report the respondent is served. From the office report, it appears that the respondent – assessee sent a letter to the Registry of this Court on 22.10.2021 to grant an adjournment of three months. The time was accordingly granted. Despite the same no one has filed vakalatnama and none has appeared on behalf of the respondent. Hence, service of notice on the respondent is complete. 3. By the impugned order the High Court has dismissed the said appeal simply by observing that none of the questions as proposed by the revenue could be termed as the substantial questions of law and all the questions proposed are on factual aspects of the matter. However, it is required to be noted that except re--producing the proposed questions of law, there is no further discussion on the factual matrix of the case. While issuing the notice, this Court passed the following order: - Mr. Balbir Singh, learned ASG, has vehemently submitted that in the impugned order except narrating the proposed questions of law, there is no independent reasoning given by the High Court while dismissing the appeal except recording that having gone through the materials on record, we are of the view that none of the questions as proposed by the revenue could be termed as the substantial questions of law. All the questions proposed are on factual aspects of the matter. Hence, issue notice for final disposal returnable within six weeks. Counter be filed within four weeks from the date of receipt of the notice. Dasti, in addition, is permitted. 3.1 As the impugned order passed by the High Court is a nonspeaking and non--reasoned order and even the submissions on behalf of the revenue are not recorded, the impugned order passed by the High Court dismissing the appeal is unsustainable.
### Response:
1
### Explanation:
3.1 As the impugned order passed by the High Court is a nonspeaking and non--reasoned order and even the submissions on behalf of the revenue are not recorded, the impugned order passed by the High Court dismissing the appeal is unsustainable.
|
DHV BV Vs. Tahal Consulting Engineers Ltd. & Another | that the client shall pay on behalf of the Consultants and the Personnel any taxes, duties, fees, levies and other impositions imposed, under the Applicable Law, on the consultants and the Personnel in respect of: (a) any payments whatsoever made to the Consultants, Sub-Consultants and the Personnel of either of them (other than Indian Nationals or Foreign Nationals now permanently residing in India), in connection with the carrying out of the Services; (b) any equipment, materials and supplies brought into India by the Consultants or Sub-consultants for the purpose of carrying out the Services and which after having been bought into such territories will be subsequently withdrawn therefrom by them; (c) any equipment imported for the purpose of carrying out the Services and paid for out of funds provided by the client and which is treated as property of the client. (d) Any property brought into India by the Consultants, any sub-consultants, the Personnel of either of them (other than Indian nationals or permanent residents of India), or the eligible dependants of such Personnel for their personal use and which will subsequently be withdrawn therefrom by them upon their respective departure from India, provided that: (1) the consultants, sub-consultants and personnel and their eligible dependants, shall follow the usual customs procedures of the Government in importing property into India; and (2) If the consultants, sub-consultants or personnel, or their eligible dependants, do not withdraw but dispose of any property in India country upon which customs duties and taxes have been exempted, the consultants, sub-consultants or personnel, as the case may be, (i) shall bear all such customs duties and taxes in conformity with the regulations of the Government. (ii) Shall reimburse them to the client if they were paid by the client at the time the property in question was brought into the Governments country. 14. Under the said clause, TNPWD, as a client had taken upon itself the obligation to pay on behalf of the consultants, sub-consultants and the personnel any taxes, dues, fees, etc. imposed under the applicable law. At the same time, it is significant to note that as per clause (d) thereof, not only there is an obligation to pay taxes etc. in certain situations, reimbursement of some of the amounts by the consultants to the client, which the client was compelled to pay, is also postulated. Obviously, such a situation may arise and this clause would be enforceable even after the expiry of the contract on completion of the services and on the payments having been made. Therefore, it cannot be laid as an abstract proposition that whenever the contracted work is completed, all the rights and obligations of the parties under the contract, ipso facto, come to an end and the arbitration agreement also perishes with the contract. Each case is required to be considered on its own facts. In the instant case, though it is true that all the payments were to be made by TNPWD to the consultants, namely, Tahal, but the obligation to pay taxes was also in respect of the payments which were to be received by the sub-consultants, namely, DHV in terms of sub-clause (a). Similarly, DHV as well as Tahal was under an obligation to reimburse to TNPWD the amount, if any, paid by them in terms of the aforenoted clause. Thus, it was the performance of the contract that had come to an end, but the contract is still in existence insofar as the dispute arising under clause 1.10 thereof is concerned. I have, therefore, no hesitation in rejecting the plea of learned counsel for the TNPWD that DHV had no direct contract with them insofar as the payments of taxes were concerned, and, therefore, the dispute raised by them could not fall within the ambit of arbitration agreement between TNPWD the client and Tahal the consultant or that on completion of the contract, the arbitration clause in the main contract got extinct. In my opinion, therefore, an enforceable arbitration agreement exists between the parties. 15. Clause 8.2 of the main contract provides for the right to arbitration and reads as follows: 8.2 Right to Arbitration Any dispute between the parties as to matters arising pursuant to this contract which cannot be settled amicably within thirty (30) days after receipt by one Party of the other Partys request for such amicable settlement, may be submitted by either Party for arbitration in accordance with the following provisions: xxxxxxxxx 16. The arbitration agreement is in clear terms and brings within its ambit any dispute between the parties as to matters arising pursuant to the main contract which cannot be settled amicably. Admittedly, the liability to pay the taxes flows from the contract and not otherwise. Having found that it was obligatory upon TNPWD to discharge the tax liability in respect of the payments made to the sub-consultants and DHV being a signatory to the main contract, I am of the opinion that claim made by DHV in respect of the Income tax dues would fall within the ambit of the arbitration agreement between the parties. 17. As regards the question as to whether the said claim can be said to be stale in the sense that after the last payment in January, 2003, none of the three parties herein had any pending claims against each other insofar as the payments under the main contract were concerned, I am of the view that notwithstanding the fact that payments against all the invoices raised by DHV stood paid, in the light of the agreement between the parties in terms of clause 1.10, subsequent creation of an additional payment by the Income tax department in respect of the payments made by TNPWD to DHV through Tahal, has given rise to a live dispute requiring settlement between the parties in terms of the arbitration agreement. For the view I have taken, it is axiomatic that prima facie, the claim made by DHV is not barred by limitation. 18. For the aforesaid reasons the | 1[ds]As regards the question as to whether the said claim can be said to be stale in the sense that after the last payment in January, 2003, none of the three parties herein had any pending claims against each other insofar as the payments under the main contract were concerned, I am of the view that notwithstanding the fact that payments against all the invoices raised by DHV stood paid, in the light of the agreement between the parties in terms of clause 1.10, subsequent creation of an additional payment by the Income tax department in respect of the payments made by TNPWD to DHV through Tahal, has given rise to a live dispute requiring settlement between the parties in terms of the arbitration agreement. For the view I have taken, it is axiomatic that prima facie, the claim made by DHV is not barred by limitation | 1 | 3,212 | 160 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
that the client shall pay on behalf of the Consultants and the Personnel any taxes, duties, fees, levies and other impositions imposed, under the Applicable Law, on the consultants and the Personnel in respect of: (a) any payments whatsoever made to the Consultants, Sub-Consultants and the Personnel of either of them (other than Indian Nationals or Foreign Nationals now permanently residing in India), in connection with the carrying out of the Services; (b) any equipment, materials and supplies brought into India by the Consultants or Sub-consultants for the purpose of carrying out the Services and which after having been bought into such territories will be subsequently withdrawn therefrom by them; (c) any equipment imported for the purpose of carrying out the Services and paid for out of funds provided by the client and which is treated as property of the client. (d) Any property brought into India by the Consultants, any sub-consultants, the Personnel of either of them (other than Indian nationals or permanent residents of India), or the eligible dependants of such Personnel for their personal use and which will subsequently be withdrawn therefrom by them upon their respective departure from India, provided that: (1) the consultants, sub-consultants and personnel and their eligible dependants, shall follow the usual customs procedures of the Government in importing property into India; and (2) If the consultants, sub-consultants or personnel, or their eligible dependants, do not withdraw but dispose of any property in India country upon which customs duties and taxes have been exempted, the consultants, sub-consultants or personnel, as the case may be, (i) shall bear all such customs duties and taxes in conformity with the regulations of the Government. (ii) Shall reimburse them to the client if they were paid by the client at the time the property in question was brought into the Governments country. 14. Under the said clause, TNPWD, as a client had taken upon itself the obligation to pay on behalf of the consultants, sub-consultants and the personnel any taxes, dues, fees, etc. imposed under the applicable law. At the same time, it is significant to note that as per clause (d) thereof, not only there is an obligation to pay taxes etc. in certain situations, reimbursement of some of the amounts by the consultants to the client, which the client was compelled to pay, is also postulated. Obviously, such a situation may arise and this clause would be enforceable even after the expiry of the contract on completion of the services and on the payments having been made. Therefore, it cannot be laid as an abstract proposition that whenever the contracted work is completed, all the rights and obligations of the parties under the contract, ipso facto, come to an end and the arbitration agreement also perishes with the contract. Each case is required to be considered on its own facts. In the instant case, though it is true that all the payments were to be made by TNPWD to the consultants, namely, Tahal, but the obligation to pay taxes was also in respect of the payments which were to be received by the sub-consultants, namely, DHV in terms of sub-clause (a). Similarly, DHV as well as Tahal was under an obligation to reimburse to TNPWD the amount, if any, paid by them in terms of the aforenoted clause. Thus, it was the performance of the contract that had come to an end, but the contract is still in existence insofar as the dispute arising under clause 1.10 thereof is concerned. I have, therefore, no hesitation in rejecting the plea of learned counsel for the TNPWD that DHV had no direct contract with them insofar as the payments of taxes were concerned, and, therefore, the dispute raised by them could not fall within the ambit of arbitration agreement between TNPWD the client and Tahal the consultant or that on completion of the contract, the arbitration clause in the main contract got extinct. In my opinion, therefore, an enforceable arbitration agreement exists between the parties. 15. Clause 8.2 of the main contract provides for the right to arbitration and reads as follows: 8.2 Right to Arbitration Any dispute between the parties as to matters arising pursuant to this contract which cannot be settled amicably within thirty (30) days after receipt by one Party of the other Partys request for such amicable settlement, may be submitted by either Party for arbitration in accordance with the following provisions: xxxxxxxxx 16. The arbitration agreement is in clear terms and brings within its ambit any dispute between the parties as to matters arising pursuant to the main contract which cannot be settled amicably. Admittedly, the liability to pay the taxes flows from the contract and not otherwise. Having found that it was obligatory upon TNPWD to discharge the tax liability in respect of the payments made to the sub-consultants and DHV being a signatory to the main contract, I am of the opinion that claim made by DHV in respect of the Income tax dues would fall within the ambit of the arbitration agreement between the parties. 17. As regards the question as to whether the said claim can be said to be stale in the sense that after the last payment in January, 2003, none of the three parties herein had any pending claims against each other insofar as the payments under the main contract were concerned, I am of the view that notwithstanding the fact that payments against all the invoices raised by DHV stood paid, in the light of the agreement between the parties in terms of clause 1.10, subsequent creation of an additional payment by the Income tax department in respect of the payments made by TNPWD to DHV through Tahal, has given rise to a live dispute requiring settlement between the parties in terms of the arbitration agreement. For the view I have taken, it is axiomatic that prima facie, the claim made by DHV is not barred by limitation. 18. For the aforesaid reasons the
### Response:
1
### Explanation:
As regards the question as to whether the said claim can be said to be stale in the sense that after the last payment in January, 2003, none of the three parties herein had any pending claims against each other insofar as the payments under the main contract were concerned, I am of the view that notwithstanding the fact that payments against all the invoices raised by DHV stood paid, in the light of the agreement between the parties in terms of clause 1.10, subsequent creation of an additional payment by the Income tax department in respect of the payments made by TNPWD to DHV through Tahal, has given rise to a live dispute requiring settlement between the parties in terms of the arbitration agreement. For the view I have taken, it is axiomatic that prima facie, the claim made by DHV is not barred by limitation
|
Subhas Chandra And Others Vs. Municipal Corporation Of Delhi And Another | on the ground that the Government could not make such an order without giving an opportunity to the petitioner, who was affected by the order, to offer an explanation as contemplated by the first proviso to S. 36 of the Act. This decision cannot afford any assistance to the petitioners before us as there is no provision in the Punjab Municipal Act analogous to the above provision requiring the Government to afford an opportunity to all the persons affected, to offer an explanation Section 235 requires the State Government to give an opportunity to the municipality and to none else. No grievance is alleged to have been made by the Committee of the omission by the Government to give it the opportunity contemplated by S. 235.It has to be borne in mind that an order under S. 232 takes effect immediately and its operation is not made dependent upon the action contemplated under S. 235. Where an order is made thereunder by an authority other than the State Government that authority has to report to the State Government. But, though such authority is bound to make a report its order is not inoperative or inchoate. It has to be given effect to by the Committee. It is true that till the procedure set out in S. 235 is complied with it cannot be regarded as final. But want of finality does not vitiate the order under S. 232. The order is, unless modified or annulled by the State Government, legally effective and binding on the Committee. The Committee can, therefore, acquiesce in it and waive the non-compliance by the State Government with the provisions of S. 235. Since S. 235 does not require an opportunity to be given to parties affected by the, order other than the Municipality, the petitioners are not entitled to say that the order is bad. The decision relied on that does not assist them. Besides, as we have already pointed out, in the present case S. 235 is wholly inapplicable because the order in question has been passed by the Chief Commissioner.15. Then, according to him, the Chief Commissioner or the State Government could not resort to S. 232 of the Act which is a general provision but could act only under S. 236. subs. (2) read with sub-s. (1) which is a special provision dealing with the powers of the State Government. The provisions runs thus:"236 (1) The State Government and Deputy Commissioners acting under the orders of the State Government, shall be bound to require that the proceedings of committees shall be in conformity with law and with the rules in force under any enactment for the time being applicable to Punjab generally or the areas over which the committees have authority.(2) The State Government may exercise all powers necessary for the performance of this duty, and may among other things. by order in writing;, annul or modify any proceeding which it may consider not to be in conformity with law or with such rules as aforesaid, or for the reason which would in its opinion justify an order by the Deputy Commissioner under Section 232."16.Comparing them with those of S. 232 it would he apparent that though there is a certain amount of overlapping when we read in S. 232 the words State Government for Commissioner the ambits of the two provisions are not quite the same. The overlapping is due to the fact that the two provisions are contained in an Act which was passed in 1911 for being applied in the former Province of Punjab and that it was by virtue of the Delhi Laws Act, 1912 that they were applied to the erstwhile province of Delhi with certain modifications. In its original form the power under S. 232 was not exercisable by the Provincial Government. It is only because of the modification made in S. 232 that the words "the Provincial Government of Delhi and later "the State Government of Delhi had to be read for the word "Commissioner in S. 232. As a result of the overlapping between the two sets of provisions in their application to the State of Delhi what has happened is that two sources of power one under S. 232 and another under S. 235, are now available to the State Government and it was free to avail itself of either source.17. Finally, according to Mr. Mehta the proper provision under which action could be taken by the authorities was S. 42 and this provision rendered S. 232 inapplicable. Under that provision a Deputy Commissioner can check extravagant expenditure by the Committee and order it to reduce the remuneration of any of its employees but that action under it cannot be taken in anticipation. No ground has been raised in the petition in regard to this. That apart, here we are concerned with the competence of the State Government to make an order of the kind which the Chief Commissioner made on October 30, 1956. That provision could not have been resorted to by him and cannot, therefore, be regarded as a special provision which excluded the utilisation of S. 232. Further, it cannot be so construed as to disentitle the authorities mentioned in S. 232 from prohibiting in anticipation an action such as increasing the emoluments of its employees.18. We are satisfied that the order of the Chief Commissioner dated October 30, 1956 was perfectly legal and in view of that order it was not open to the Committee to sanction the payment of an allowance to any of its employees thereafter. The resolution passed by it on November 1, 1957 was therefore beyond its jurisdiction and consequently the Commissioner of the Corporation could not treat it as a basis for sanctioning the allowance of Rs. 20 p.m. to any graduate employee of the Municipal Committee who was not in receipt of the allowance till then. The order of the Commissioner dated November 5, 1958 being thus illegal no question of discrimination arises.19. | 0[ds]By the aforesaid Act the words "Commissioner or the" were deleted. It has not been brought to our notice that the Amending Act was applied to the State of Delhi. We must, therefore, proceed on the footing that the word "Commissioner" was still there in S. 232 of the Act as applied to the State of Delhi. By virtue of the provisions ofthe Delhi Laws Act, 1912 contained in Schedule B as adapted by the Adaptation of Laws Order, 1950 the expression "the Commissioner" used in any enactment applicable to the State of Delhi has to be read as "the State Government of Delhi." The expression "State Government" as defined in sub-s. (60) of S. 3 of the General Clause Act 1897 shall as respects anything done after the commencement of the Constitution and before the commencement of the Constitution (Seventh Amendment) Act, 1956 mean, in a Part C State, the Central Government, "Central Government" is defined in subs. (8) of S. 3 of that Act and meant in relation to a Part C State like Delhi, the Chief Commissioner thereof. Clearly therefore, the Chief Commissioner could make an order of the kind we have to consider here under S. 232 of theis true that the section did not enable the Chief Commissioner to prohibit a Committee from passing a particular kind of resolution but it certainly empowered him to prohibit the committee from doing an act which was about to be done. Here, the order of the Chief Commissioner to which we have adverted, in fact prohibited the Committee from, among other things, granting special pay or any other pecuniary advantage to any of its employees. What was thus expressly prohibited was the doing of an act but not passing of a resolution. Even so, we think that when the doing of an act was prohibited the Committee ceased to have any power to do that act and resolution passed by it to the effect that the act be done, can have no legalthis extent, therefore, Mr. Mehta is right that S. 232 does not authorise the authorities mentioned therein to make a blanket prohibition as to the doing of an act or a series of acts unless the authority anticipated that such acts would be done. There is, however, no difficulty in the case before us because the order itself mentions that it had been made to appear to the Chief Commissioner that the Municipal Committee of Delhi, amongst other things, was about to revise the existing scales of pay of its employees, creating posts and granting advance increments or special pay or other pecuniary benefits to some of its existing employees. The obvious reason for making this order was that the Municipal Committee was soon to cease to exist and the Corporation of Delhi to take its place. The Chief Commissioner, therefore, did not want the Committee to enter into commitments which would bind its successor. A perusal of the proceedings of the Committee during the relevant period shows that the Committee had before it numerous proposals relating to the emoluments of its employees and the Chief Commissioner must have known aboutof these cases helps him but one of them goes against his contention. In the first case the Deputy Commissioner had ordered the suspension of a resolution passed by a Committee sanctioning the construction of a platform after the platform had been constructed. In order to give effect to the order the Committee ordered under S. 172 the demolition of the platform. The High Court held that as the platform could not be said to have been constructed without sanction its demolition could not be ordered under S. 172. In the second case the High Court, following the above decision, held that under S. 232 the Deputy Commissioner can prohibit the doing of an act or suspend the execution of a resolution before the act was done or the resolution carried out. In the third case the Allahabad High Court had, amongst other provisions, to consider S. 34 (1) of the U. P. Municipalities Act, 1916 whereunder the District Magistrate could prohibit the execution or further execution of a resolution passed by a Municipal Committee. The High Court pointed out that this provision did not, as did the corresponding provision in an earlier Act, empower the District Magistrate to make an order in anticipation of an act which was about to be done. This case is thusdecision cannot afford any assistance to the petitioners before us as there is no provision in the Punjab Municipal Act analogous to the above provision requiring the Government to afford an opportunity to all the persons affected, to offer an explanation Section 235 requires the State Government to give an opportunity to the municipality and to none else. No grievance is alleged to have been made by the Committee of the omission by the Government to give it the opportunity contemplated by S. 235.It has to be borne in mind that an order under S. 232 takes effect immediately and its operation is not made dependent upon the action contemplated under S. 235. Where an order is made thereunder by an authority other than the State Government that authority has to report to the State Government. But, though such authority is bound to make a report its order is not inoperative or inchoate. It has to be given effect to by the Committee. It is true that till the procedure set out in S. 235 is complied with it cannot be regarded as final. But want of finality does not vitiate the order under S. 232. The order is, unless modified or annulled by the State Government, legally effective and binding on the Committee. The Committee can, therefore, acquiesce in it and waive the non-compliance by the State Government with the provisions of S. 235. Since S. 235 does not require an opportunity to be given to parties affected by the, order other than the Municipality, the petitioners are not entitled to say that the order is bad. The decision relied on that does not assist them. Besides, as we have already pointed out, in the present case S. 235 is wholly inapplicable because the order in question has been passed by the Chiefthem with those of S. 232 it would he apparent that though there is a certain amount of overlapping when we read in S. 232 the words State Government for Commissioner the ambits of the two provisions are not quite the same. The overlapping is due to the fact that the two provisions are contained in an Act which was passed in 1911 for being applied in the former Province of Punjab and that it was by virtue ofthe Delhi Laws Act, 1912 that they were applied to the erstwhile province of Delhi with certain modifications. In its original form the power under S. 232 was not exercisable by the Provincial Government. It is only because of the modification made in S. 232 that the words "the Provincial Government of Delhi and later "the State Government of Delhi had to be read for the word "Commissioner in S. 232. As a result of the overlapping between the two sets of provisions in their application to the State of Delhi what has happened is that two sources of power one under S. 232 and another under S. 235, are now available to the State Government and it was free to avail itself of eitherground has been raised in the petition in regard to this. That apart, here we are concerned with the competence of the State Government to make an order of the kind which the Chief Commissioner made on October 30, 1956. That provision could not have been resorted to by him and cannot, therefore, be regarded as a special provision which excluded the utilisation of S. 232. Further, it cannot be so construed as to disentitle the authorities mentioned in S. 232 from prohibiting in anticipation an action such as increasing the emoluments of its employees.We are satisfied that the order of the Chief Commissioner dated October 30, 1956 was perfectly legal and in view of that order it was not open to the Committee to sanction the payment of an allowance to any of its employees thereafter. The resolution passed by it on November 1, 1957 was therefore beyond its jurisdiction and consequently the Commissioner of the Corporation could not treat it as a basis for sanctioning the allowance of Rs. 20 p.m. to any graduate employee of the Municipal Committee who was not in receipt of the allowance till then. The order of the Commissioner dated November 5, 1958 being thus illegal no question of discrimination arises. | 0 | 3,948 | 1,578 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
on the ground that the Government could not make such an order without giving an opportunity to the petitioner, who was affected by the order, to offer an explanation as contemplated by the first proviso to S. 36 of the Act. This decision cannot afford any assistance to the petitioners before us as there is no provision in the Punjab Municipal Act analogous to the above provision requiring the Government to afford an opportunity to all the persons affected, to offer an explanation Section 235 requires the State Government to give an opportunity to the municipality and to none else. No grievance is alleged to have been made by the Committee of the omission by the Government to give it the opportunity contemplated by S. 235.It has to be borne in mind that an order under S. 232 takes effect immediately and its operation is not made dependent upon the action contemplated under S. 235. Where an order is made thereunder by an authority other than the State Government that authority has to report to the State Government. But, though such authority is bound to make a report its order is not inoperative or inchoate. It has to be given effect to by the Committee. It is true that till the procedure set out in S. 235 is complied with it cannot be regarded as final. But want of finality does not vitiate the order under S. 232. The order is, unless modified or annulled by the State Government, legally effective and binding on the Committee. The Committee can, therefore, acquiesce in it and waive the non-compliance by the State Government with the provisions of S. 235. Since S. 235 does not require an opportunity to be given to parties affected by the, order other than the Municipality, the petitioners are not entitled to say that the order is bad. The decision relied on that does not assist them. Besides, as we have already pointed out, in the present case S. 235 is wholly inapplicable because the order in question has been passed by the Chief Commissioner.15. Then, according to him, the Chief Commissioner or the State Government could not resort to S. 232 of the Act which is a general provision but could act only under S. 236. subs. (2) read with sub-s. (1) which is a special provision dealing with the powers of the State Government. The provisions runs thus:"236 (1) The State Government and Deputy Commissioners acting under the orders of the State Government, shall be bound to require that the proceedings of committees shall be in conformity with law and with the rules in force under any enactment for the time being applicable to Punjab generally or the areas over which the committees have authority.(2) The State Government may exercise all powers necessary for the performance of this duty, and may among other things. by order in writing;, annul or modify any proceeding which it may consider not to be in conformity with law or with such rules as aforesaid, or for the reason which would in its opinion justify an order by the Deputy Commissioner under Section 232."16.Comparing them with those of S. 232 it would he apparent that though there is a certain amount of overlapping when we read in S. 232 the words State Government for Commissioner the ambits of the two provisions are not quite the same. The overlapping is due to the fact that the two provisions are contained in an Act which was passed in 1911 for being applied in the former Province of Punjab and that it was by virtue of the Delhi Laws Act, 1912 that they were applied to the erstwhile province of Delhi with certain modifications. In its original form the power under S. 232 was not exercisable by the Provincial Government. It is only because of the modification made in S. 232 that the words "the Provincial Government of Delhi and later "the State Government of Delhi had to be read for the word "Commissioner in S. 232. As a result of the overlapping between the two sets of provisions in their application to the State of Delhi what has happened is that two sources of power one under S. 232 and another under S. 235, are now available to the State Government and it was free to avail itself of either source.17. Finally, according to Mr. Mehta the proper provision under which action could be taken by the authorities was S. 42 and this provision rendered S. 232 inapplicable. Under that provision a Deputy Commissioner can check extravagant expenditure by the Committee and order it to reduce the remuneration of any of its employees but that action under it cannot be taken in anticipation. No ground has been raised in the petition in regard to this. That apart, here we are concerned with the competence of the State Government to make an order of the kind which the Chief Commissioner made on October 30, 1956. That provision could not have been resorted to by him and cannot, therefore, be regarded as a special provision which excluded the utilisation of S. 232. Further, it cannot be so construed as to disentitle the authorities mentioned in S. 232 from prohibiting in anticipation an action such as increasing the emoluments of its employees.18. We are satisfied that the order of the Chief Commissioner dated October 30, 1956 was perfectly legal and in view of that order it was not open to the Committee to sanction the payment of an allowance to any of its employees thereafter. The resolution passed by it on November 1, 1957 was therefore beyond its jurisdiction and consequently the Commissioner of the Corporation could not treat it as a basis for sanctioning the allowance of Rs. 20 p.m. to any graduate employee of the Municipal Committee who was not in receipt of the allowance till then. The order of the Commissioner dated November 5, 1958 being thus illegal no question of discrimination arises.19.
### Response:
0
### Explanation:
the Municipal Committee was soon to cease to exist and the Corporation of Delhi to take its place. The Chief Commissioner, therefore, did not want the Committee to enter into commitments which would bind its successor. A perusal of the proceedings of the Committee during the relevant period shows that the Committee had before it numerous proposals relating to the emoluments of its employees and the Chief Commissioner must have known aboutof these cases helps him but one of them goes against his contention. In the first case the Deputy Commissioner had ordered the suspension of a resolution passed by a Committee sanctioning the construction of a platform after the platform had been constructed. In order to give effect to the order the Committee ordered under S. 172 the demolition of the platform. The High Court held that as the platform could not be said to have been constructed without sanction its demolition could not be ordered under S. 172. In the second case the High Court, following the above decision, held that under S. 232 the Deputy Commissioner can prohibit the doing of an act or suspend the execution of a resolution before the act was done or the resolution carried out. In the third case the Allahabad High Court had, amongst other provisions, to consider S. 34 (1) of the U. P. Municipalities Act, 1916 whereunder the District Magistrate could prohibit the execution or further execution of a resolution passed by a Municipal Committee. The High Court pointed out that this provision did not, as did the corresponding provision in an earlier Act, empower the District Magistrate to make an order in anticipation of an act which was about to be done. This case is thusdecision cannot afford any assistance to the petitioners before us as there is no provision in the Punjab Municipal Act analogous to the above provision requiring the Government to afford an opportunity to all the persons affected, to offer an explanation Section 235 requires the State Government to give an opportunity to the municipality and to none else. No grievance is alleged to have been made by the Committee of the omission by the Government to give it the opportunity contemplated by S. 235.It has to be borne in mind that an order under S. 232 takes effect immediately and its operation is not made dependent upon the action contemplated under S. 235. Where an order is made thereunder by an authority other than the State Government that authority has to report to the State Government. But, though such authority is bound to make a report its order is not inoperative or inchoate. It has to be given effect to by the Committee. It is true that till the procedure set out in S. 235 is complied with it cannot be regarded as final. But want of finality does not vitiate the order under S. 232. The order is, unless modified or annulled by the State Government, legally effective and binding on the Committee. The Committee can, therefore, acquiesce in it and waive the non-compliance by the State Government with the provisions of S. 235. Since S. 235 does not require an opportunity to be given to parties affected by the, order other than the Municipality, the petitioners are not entitled to say that the order is bad. The decision relied on that does not assist them. Besides, as we have already pointed out, in the present case S. 235 is wholly inapplicable because the order in question has been passed by the Chiefthem with those of S. 232 it would he apparent that though there is a certain amount of overlapping when we read in S. 232 the words State Government for Commissioner the ambits of the two provisions are not quite the same. The overlapping is due to the fact that the two provisions are contained in an Act which was passed in 1911 for being applied in the former Province of Punjab and that it was by virtue ofthe Delhi Laws Act, 1912 that they were applied to the erstwhile province of Delhi with certain modifications. In its original form the power under S. 232 was not exercisable by the Provincial Government. It is only because of the modification made in S. 232 that the words "the Provincial Government of Delhi and later "the State Government of Delhi had to be read for the word "Commissioner in S. 232. As a result of the overlapping between the two sets of provisions in their application to the State of Delhi what has happened is that two sources of power one under S. 232 and another under S. 235, are now available to the State Government and it was free to avail itself of eitherground has been raised in the petition in regard to this. That apart, here we are concerned with the competence of the State Government to make an order of the kind which the Chief Commissioner made on October 30, 1956. That provision could not have been resorted to by him and cannot, therefore, be regarded as a special provision which excluded the utilisation of S. 232. Further, it cannot be so construed as to disentitle the authorities mentioned in S. 232 from prohibiting in anticipation an action such as increasing the emoluments of its employees.We are satisfied that the order of the Chief Commissioner dated October 30, 1956 was perfectly legal and in view of that order it was not open to the Committee to sanction the payment of an allowance to any of its employees thereafter. The resolution passed by it on November 1, 1957 was therefore beyond its jurisdiction and consequently the Commissioner of the Corporation could not treat it as a basis for sanctioning the allowance of Rs. 20 p.m. to any graduate employee of the Municipal Committee who was not in receipt of the allowance till then. The order of the Commissioner dated November 5, 1958 being thus illegal no question of discrimination arises.
|
S. G. Jaisinghani Vs. Union Of India And Ors.(With Connected Writ Petition) | the number of officers recruited by the two methods of recruitment to Class I Service during the relevant years: Year UPSC Exam. Recruits War Service candidates Officers Selected from Class II. 1951 50 … … 1952 … 2 49 1953 52 … 38 1954 44 … 30 1955 45 … 24 1956 … … 25 It is not clear from the affidavit of Mr. R.C. Dutt whether the quota rule was strictly followed for the years in question. In the counter- affidavits of respondents 1 to 4 in Writ Petition No. 5 of 1966 there is however an assertion that the quota rule "has been substantially complied with."17. The Solicitor-General on behalf of respondents 1, 2, and 3 submitted that the quota rule was merely an administrative direction to determine recruitment from two different sources in the proportion stated in the rule and a breach of the quota rule was not a justiciable issue. The Solicitor-General said that there was, however, substantial compliance with the quota rule. But in the absence of figures of permanent vacancies in Class 1, Grade II for the relevant years the Solicitor-General was unable to say what extent there had been deviation from the rule. We are unable to accept the argument of the Solicitor-General that the quota rule was not legally binding on the Government. It is not disputed that rule 4 of the Income-tax Officers (Class 1, Grade II) Service Recruitment Rules is a statutory rule and there is a statutory duty cast on the Government under this rule to determine the method or methods to be employed for the purpose of filling the vacancies and the number of candidates to be recruited by each method. In the letter of the Government of India dated October 18, 1951 there is no specific reference to rule 4, but the quota fixed in their letter must be deemed to have been fixed by the Government of India in exercise of the statutory power given under rule 4.Having fixed the quota in that letter under rule 4, it is not now open to the Government of India to say that it is not incumbent upon it to follow the quota for each year and it is open to it to alter the quota on account of the particular situation (See Para 24 of the counter affidavit of respondents 1 to 3 in Writ Petition No. 5 of 1966). We are of opinion that having fixed the quota in exercise of their power under rule 4 between the two sources of recruitment, there is no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, at its own will and pleasure. As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice , it will be difficult to hold that the seniority rule. i.e., rule 1(f) (iii) and (iv), is not unreasonable and does not offend Art. 16 of the Constitution. We are accordingly of the opinion that promotees from Class II, Grade III to Class I, Grade II Service in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards have been illegally promoted and the appellant is entitled to a writ in the nature of mandamus commanding respondents 1 to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to1956 and onwards in accordance with the quota rule prescribed in the letter of the Government of India No. F. 24 (2). -Admn I. T./.51 dated October 18, 1951. We, however. wish to make it clear that this order will not affect such Class II Officers who have been appointed permanently as Assistant Commissioners of Income - tax. But this order will apply to all other officers including those who have been appointed Assistant Commissioners of Income-tax provisionally pursuant to the orders of the High Court.18. In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey- "Law of the Constitution -Tenth Edn., Introduction cx). "Law has reached its finest moments," stated Douglas, J. in United States v. Wunderlich. (1951) 342 US 98, "when it has freed man from the unlimited discretion of some ruler........Where discretion is absolute man has always suffered. It is in this sense that the rule of law may be said to be the sworn enemy of caprice .Discretion as Lord Mansfield stated it in classic terms in the case of John Wilkes. (1770) 4 Burr 2528 at p. 2539 "means sound discretion guided by law. It must be governed by rule not by humour it must not be arbitrary, vague and fanciful."19. We should also like to suggest to the Government that for future years the roster system should be adopted by framing an appropriate rule for working out the quota between the direct recruits and the promotees and that a roster should be maintained indicating the order in which appointments are made by direct recruitment and by promotion in accordance with the percentages fixed under the statutory rule for each method of recruitment.20. | 1[ds]In our opinion. it is not right to approach this problem as if it is a case of classification of one service into two classes for the purpose of promotion and as the promotion rule operating to the disadvantage of one of the two classes. It is really a case of recruitment to the Service from two different sources and then adjustment of seniority between the recruits coming form the two sources. So far as Art. 16 (I) is concerned, it cannot be said that the rule of seniority proceeds on an unreasonable basis. The reason for the classification is the objective of filling the higher echelons of the Income Tax Service by experienced officers possessing not only a high degree of ability but also first rate experience. Having regard to the particular circumstances of this case, we are of opinion that the seniority rule is not unreasonable when read with the quota rule which provides for a special reservation of a small percentage of posts for the promotees who are selected by a special Committee, which determines the fitness of the candidates for promotion after they have put in at least three. years of service as Income Tax Officers. A rule which gives seniority to outstanding officers with considerable experience, and selected on merit and limiting the promotion to a percentage not exceeding the prescribed limit cannot per se be regarded as unreasonable. As we have already pointed out, the direct recruits joining Class I, Grade II Service have to undergo a period of two years training and thereafter they become qualified for confirmation. A promotee having already undergone the very same training during the period of probation of Class II, Grade III, joins Class I, Grade with three years period of assessment and working experience of the Income-tax Department. It is necessary to add that the selection of a promotee to Class I is based on merit and great weight age is given by the Departmental Promotion Committee to outstanding qualifications, record of work and the ability of the candidate, so that those who come to Class I, Grade II are officers who have shown outstanding capability as Income-tax Officers in Class IT Service. The statement in Annexure 2 of the affidavit on behalf of respondents 1 to 4 in Writ Petition No. .5 of 1966 shows that the standards of selection are very stiff inasmuch as a very small proportion of officers considered for selection is actually promoted. The net effect of Rule,1(f) (iii) therefore is that three years of outstanding work in Class II is equated to two years of probation in Class I Service and on consideration of this aspect of the matter the promotee is given seniority over a direct- recruit completing the period of probation in the same year.The relevant law on the subject is well settled. Under Art. 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 of the Constitution- is only an incident of the application or the concept of equality enshrined in Art. 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion. The concept of equality in the matter of promotion can be predicated only when the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the differences between the said two sources, and the said differences have a reasonable relation to the nature of the office or offices to which recruitment is made, the, said recruitment can legitimately be sustained on the basis of a valid classification.Dealing with the extent of protection of Art. 16(1)) of theour opinion, there is no substance in the contention of the appellant. Once it is held that the rule of seniority enacted in rule 1 (f) (iii) is legally valid, the rule of promotion i. e. rule 4 of Ch 1X of the Central Board of Revenue Office Procedure Manual cannot be held to lead to any discrimination as between direct recruits and promotees. Rule 4 states that the prescribed minimum service for Class I, Grade II Officer in the matter of promotion to Grade I of that Service is five years gazetted service including one year in Class I, Grade II. For a promotee therefore the minimum period of service for promotion to Class I, Grade I is actually 4 years service in Class II, Grade III and one year service in Class I, Grade II. The object of the rule is really to carry out the policy of rule 1 (f) (iii) of the Rules of Seniority, and not allow it to be defeated by the requirement of five years service in Class I, Grade II itself before consideration for promotion to Class I, Grade I. The promotee is placed senior to a direct recruit who completes probation in the year in which the promotee is selected by the Departmental Promotion Committee. If it should be laid down that the past service as Income-tax Officer in Class II is not to be counted, then rule I (f) (iii) would be nullified, because directly recruited officers junior to the promotees would go to Grade I earlier than the promotee officers. For example, a promotee certified fit by the Departmental Promotion Committee in 1952 will be senior to the direct recruits who complete their probation in that year. And if it is to be laid down that the promotee officer shall not count his period of service in Class II for the purpose of promotion to Grade I, Class I he will have to wait till 1957 or 1958 to go to Grade I, Class I, While direct recruits who completed their probation in 1952 or 1953 would have gone to Grade I, Class l in 1955 or 1956. counting the five years period from the date; on which they were placed on probation. To remove this anomaly the promotion rule has been framed and we are unable to accept the argument of the appellant that there is any discrimination in the working of this rule. The rule of promotion is inextricably linked with the rule of weightage and seniority in Grade II. If in the rule of promotion the service in Grade III is not to be taken into account, seniority in Grade II would be an empty formality.There was also the further consideration that if rule I (f) (iv) did not exist there was no incentive to a promotee of this type to sit for the competitive examination. It should also be taken into account that if the service of the promotees in Class II, Grade III is entirely ignored and if they join the Class 1, Grade II Service as direct recruits they might well find themselves becoming junior to those who were left behind in Class II Grade III. Service by the operation of rule 1 (f) (iii).We are accordingly of the opinion that rule 1 (f) (iv) is based on a reasonable classification and does not offend the guarantee under Art. 14 or Art. 16 (1) of theare of opinion that having fixed the quota in exercise of their power under rule 4 between the two sources of recruitment, there is no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, at its own will and pleasure. As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice , it will be difficult to hold that the seniority rule. i.e., rule 1(f) (iii) and (iv), is not unreasonable and does not offend Art. 16 of the Constitution. We are accordingly of the opinion that promotees from Class II, Grade III to Class I, Grade II Service in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards have been illegally promoted and the appellant is entitled to a writ in the nature of mandamus commanding respondents 1 to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to1956 and onwards in accordance with the quota rule prescribed in the letter of the Government of India No. F. 24 (2). -Admn I. T./.51 dated October 18, 1951. We, however. wish to make it clear that this order will not affect such Class II Officers who have been appointed permanently as Assistant Commissioners of Income - tax. But this order will apply to all other officers including those who have been appointed Assistant Commissioners of Income-tax provisionally pursuant to the orders of the High Court.In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey- "Law of the Constitution -Tenth Edn., Introduction cx). "Law has reached its finest moments," stated Douglas, J. in United States v. Wunderlich. (1951) 342 US 98, "when it has freed man from the unlimited discretion of some ruler........Where discretion is absolute man has always suffered. It is in this sense that the rule of law may be said to be the sworn enemy of caprice .Discretion as Lord Mansfield stated it in classic terms in the case of John Wilkes. (1770) 4 Burr 2528 at p. 2539 "means sound discretion guided by law. It must be governed by rule not by humour it must not be arbitrary, vague and fanciful.We should also like to suggest to the Government that for future years the roster system should be adopted by framing an appropriate rule for working out the quota between the direct recruits and the promotees and that a roster should be maintained indicating the order in which appointments are made by direct recruitment and by promotion in accordance with the percentages fixed under the statutory rule for each method ofPetition No. 5 ofThe questions arising for determination in this case are similar in character to the questions which have been the subject matter of consideration in Civil Appeal No. 1038 of 1965. For the reasons given in that case, we hold that this petition should be allowed and writ in the nature of mandamus under Art. 32 of the Constitution should be granted commanding respondents l to 3 to adjust the seniority of the petitioner and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to 1956 and onwards in accordance with the quota rule prescribed in the letter No. F. 24 (2) Admn. I.T./51 dated October 18, 1951 of the Government of India. There will be no order as to costs. | 1 | 6,157 | 2,151 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
the number of officers recruited by the two methods of recruitment to Class I Service during the relevant years: Year UPSC Exam. Recruits War Service candidates Officers Selected from Class II. 1951 50 … … 1952 … 2 49 1953 52 … 38 1954 44 … 30 1955 45 … 24 1956 … … 25 It is not clear from the affidavit of Mr. R.C. Dutt whether the quota rule was strictly followed for the years in question. In the counter- affidavits of respondents 1 to 4 in Writ Petition No. 5 of 1966 there is however an assertion that the quota rule "has been substantially complied with."17. The Solicitor-General on behalf of respondents 1, 2, and 3 submitted that the quota rule was merely an administrative direction to determine recruitment from two different sources in the proportion stated in the rule and a breach of the quota rule was not a justiciable issue. The Solicitor-General said that there was, however, substantial compliance with the quota rule. But in the absence of figures of permanent vacancies in Class 1, Grade II for the relevant years the Solicitor-General was unable to say what extent there had been deviation from the rule. We are unable to accept the argument of the Solicitor-General that the quota rule was not legally binding on the Government. It is not disputed that rule 4 of the Income-tax Officers (Class 1, Grade II) Service Recruitment Rules is a statutory rule and there is a statutory duty cast on the Government under this rule to determine the method or methods to be employed for the purpose of filling the vacancies and the number of candidates to be recruited by each method. In the letter of the Government of India dated October 18, 1951 there is no specific reference to rule 4, but the quota fixed in their letter must be deemed to have been fixed by the Government of India in exercise of the statutory power given under rule 4.Having fixed the quota in that letter under rule 4, it is not now open to the Government of India to say that it is not incumbent upon it to follow the quota for each year and it is open to it to alter the quota on account of the particular situation (See Para 24 of the counter affidavit of respondents 1 to 3 in Writ Petition No. 5 of 1966). We are of opinion that having fixed the quota in exercise of their power under rule 4 between the two sources of recruitment, there is no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, at its own will and pleasure. As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice , it will be difficult to hold that the seniority rule. i.e., rule 1(f) (iii) and (iv), is not unreasonable and does not offend Art. 16 of the Constitution. We are accordingly of the opinion that promotees from Class II, Grade III to Class I, Grade II Service in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards have been illegally promoted and the appellant is entitled to a writ in the nature of mandamus commanding respondents 1 to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to1956 and onwards in accordance with the quota rule prescribed in the letter of the Government of India No. F. 24 (2). -Admn I. T./.51 dated October 18, 1951. We, however. wish to make it clear that this order will not affect such Class II Officers who have been appointed permanently as Assistant Commissioners of Income - tax. But this order will apply to all other officers including those who have been appointed Assistant Commissioners of Income-tax provisionally pursuant to the orders of the High Court.18. In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey- "Law of the Constitution -Tenth Edn., Introduction cx). "Law has reached its finest moments," stated Douglas, J. in United States v. Wunderlich. (1951) 342 US 98, "when it has freed man from the unlimited discretion of some ruler........Where discretion is absolute man has always suffered. It is in this sense that the rule of law may be said to be the sworn enemy of caprice .Discretion as Lord Mansfield stated it in classic terms in the case of John Wilkes. (1770) 4 Burr 2528 at p. 2539 "means sound discretion guided by law. It must be governed by rule not by humour it must not be arbitrary, vague and fanciful."19. We should also like to suggest to the Government that for future years the roster system should be adopted by framing an appropriate rule for working out the quota between the direct recruits and the promotees and that a roster should be maintained indicating the order in which appointments are made by direct recruitment and by promotion in accordance with the percentages fixed under the statutory rule for each method of recruitment.20.
### Response:
1
### Explanation:
period of service in Class II for the purpose of promotion to Grade I, Class I he will have to wait till 1957 or 1958 to go to Grade I, Class I, While direct recruits who completed their probation in 1952 or 1953 would have gone to Grade I, Class l in 1955 or 1956. counting the five years period from the date; on which they were placed on probation. To remove this anomaly the promotion rule has been framed and we are unable to accept the argument of the appellant that there is any discrimination in the working of this rule. The rule of promotion is inextricably linked with the rule of weightage and seniority in Grade II. If in the rule of promotion the service in Grade III is not to be taken into account, seniority in Grade II would be an empty formality.There was also the further consideration that if rule I (f) (iv) did not exist there was no incentive to a promotee of this type to sit for the competitive examination. It should also be taken into account that if the service of the promotees in Class II, Grade III is entirely ignored and if they join the Class 1, Grade II Service as direct recruits they might well find themselves becoming junior to those who were left behind in Class II Grade III. Service by the operation of rule 1 (f) (iii).We are accordingly of the opinion that rule 1 (f) (iv) is based on a reasonable classification and does not offend the guarantee under Art. 14 or Art. 16 (1) of theare of opinion that having fixed the quota in exercise of their power under rule 4 between the two sources of recruitment, there is no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, at its own will and pleasure. As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice , it will be difficult to hold that the seniority rule. i.e., rule 1(f) (iii) and (iv), is not unreasonable and does not offend Art. 16 of the Constitution. We are accordingly of the opinion that promotees from Class II, Grade III to Class I, Grade II Service in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards have been illegally promoted and the appellant is entitled to a writ in the nature of mandamus commanding respondents 1 to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to1956 and onwards in accordance with the quota rule prescribed in the letter of the Government of India No. F. 24 (2). -Admn I. T./.51 dated October 18, 1951. We, however. wish to make it clear that this order will not affect such Class II Officers who have been appointed permanently as Assistant Commissioners of Income - tax. But this order will apply to all other officers including those who have been appointed Assistant Commissioners of Income-tax provisionally pursuant to the orders of the High Court.In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey- "Law of the Constitution -Tenth Edn., Introduction cx). "Law has reached its finest moments," stated Douglas, J. in United States v. Wunderlich. (1951) 342 US 98, "when it has freed man from the unlimited discretion of some ruler........Where discretion is absolute man has always suffered. It is in this sense that the rule of law may be said to be the sworn enemy of caprice .Discretion as Lord Mansfield stated it in classic terms in the case of John Wilkes. (1770) 4 Burr 2528 at p. 2539 "means sound discretion guided by law. It must be governed by rule not by humour it must not be arbitrary, vague and fanciful.We should also like to suggest to the Government that for future years the roster system should be adopted by framing an appropriate rule for working out the quota between the direct recruits and the promotees and that a roster should be maintained indicating the order in which appointments are made by direct recruitment and by promotion in accordance with the percentages fixed under the statutory rule for each method ofPetition No. 5 ofThe questions arising for determination in this case are similar in character to the questions which have been the subject matter of consideration in Civil Appeal No. 1038 of 1965. For the reasons given in that case, we hold that this petition should be allowed and writ in the nature of mandamus under Art. 32 of the Constitution should be granted commanding respondents l to 3 to adjust the seniority of the petitioner and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period 1951 to 1956 and onwards in accordance with the quota rule prescribed in the letter No. F. 24 (2) Admn. I.T./51 dated October 18, 1951 of the Government of India. There will be no order as to costs.
|
Jai Charan Lal Vs. State Of U.P. & Ors | that the language excludes the 30th day from computation. In other words, although October 26 had to be excluded the date on which the meeting was to be called need not be excluded provided by doing so one did not go in breach of the expression not earlier than thirty days. The 25th of November was the 30th day counting from October 26 leaving out the initial day and, therefore, it cannot be described as earlier than thirty days. In other words, it was not earlier than thirty days from the date on which the notice under sub-s. (2) was delivered to the District Magistrate.This reading is also borne out by the other expression "not later than thirty-five days" which is used in the section. In this Court, Harinder Singh v. S. Karnail Singh, AIR 1957 SC 271 , the expression not later than 14 days as used in R. 119 under the Representation of the People Act was held to mean the same thing as "within a period of fourteen days". In that expression the number of days, it was held, should not exceed the number fourteen. In the sub-section we are dealing with the number of days should not exceed thirty five days. On a parity of reasoning not earlier than thirty days would include the 30th day but not the 29th day because 29th day must be regarded as earlier than thirty days. If the provision were "not earlier than thirty days and not later than thirty days" it is obvious that only the 30th day could be meant. This proves that the fixing of the date of the meeting was, therefore, in accordance with law and we respectfully disapprove of the view taken in the Andhra Pradesh case.6. The third point arises under the following circumstances. The District Magistrate had arranged with the District Judge for a stipendiary judicial officer to preside over the meeting to be convened on November 25. The District Judge had nominated one Mr. R. R. Agarwal, Additional Civil Judge, Aligarh for this purpose. Mr. R. R. Agarwal made an order on November 22, 1966 intimating that he was unable to preside over the meeting on November 25 and that the meeting would be adjourned to December 5. The District Magistrate sent out notices on the same day intimating the members of the change of date. It is contended that this action of the Additional Civil Judge, Aligarh violated the provisions of the fifth sub-section. The reason advanced is that the judicial officer is not empowered to adjourn the meeting in advance but he can only do so if he is unable to preside at the meeting, that is to say, on the day on which the meeting is to be held. In support of this contention a ruling of the Allahabad High Court reported in Krishna Chandra Gupta v. Prayag Narain, 1961 All LJ 226, is cited where at p. 229 a Divisional Bench said that the authority under sub-s. (5) to adjourn the meeting is exercisable only on the date on which the meeting is convened and if that occasion does not arise the adjournment is improper. Here again we find it difficult to accept the view expressed in the Allahabad High Court. Sub-section (4) provides that if the presiding judicial officer does not attend the meeting, the meeting stands automatically adjourned after half an hour to a date and time to be appointed later and notified to the members by that officer under sub-s. (5). It seems pointless, therefore, to think that if the judicial officer knows in advance that he would not be able to attend the meeting that he has not the power to adjourn the meeting in advance.No visible profit results from such a construction. In fact, the words of sub-s. (5) are that if the judicial officer is unable to preside at the meeting he may, after recording his reasons; adjourn the meeting to such other date and time as he may appoint. This can happen not only at the meeting but also before the date of meeting if the judicial officer is in a position to say that he would be unable to preside at the meeting. If this were not so some unforeseen event which requires the presiding officer to be absent would frustrate the entire non-confidence motion because the judicial officer would be unable to adjourn it in advance. That the consequences under sub-s. (4) would automatically flow also show that it should be possible for the presiding officer to adjourn a meeting which under the law would in any event be adjourned under sub-s. (4). In our opinion it is not necessary that the judicial officer show be present at the meeting and then adjourn it for purposes of sub-s. (5).He can take action in advance. This will be convenient al1 round became it will save members from attendance on that day. This vas done in this case and in our opinion the action was correct. We do not read the word adjourn as being in any way different from the word postpone which is some times used. The word adjourn means that the officer can postpone the meeting to a subsequent date.7. The High Court did not exercise its powers under Art. 226 of the Constitution and we must not be intended to have meant that where the High Court has refused to exercise its discretion this Court would always interfere. This case was admitted in this Court merely to clear a dispute about the law which seems to have evoked different interpretations in the High Courts.8. On a consideration of the whole matter we are of opinion that the petition was devoid of merit and although it was dismissed because the High Court did not choose to exercise its discretionary powers the result would have been the same if the High Court had gone into the matter elaborately and correctly. The appeal must, therefore, be dismissed. We order accordingly. | 0[ds]This argument is based upon the procedure which is laid down in S. 87-A of thethe notice was despatched on the 17th and presumably reached the next day the learned Counsel excludes the date of receipt of the notice and the date of the meeting and says that seven clear days did not intervene. In our judgment this is an erroneous reading of the sub-section.The sub-section says that the District Magistrate shall send the notice not less than seven clear days before the date of the meeting and the word send shows that the critical date is the date of the despatch of the notice. As the notice was sent on the 17th and the meeting was to be called on the 25th, it is obvious that seven clear days did intervene and there was no breach of this part of theis no doubt true that where the expression is not less than so many days both the terminal days have to be excluded and the number of days mentioned must be clear days but the force of the words not earlier than thirty days is not the same. Not earlier than thirty days means that it should not be the 29th day, but there is nothing to show that the language excludes the 30th day from computation. In other words, although October 26 had to be excluded the date on which the meeting was to be called need not be excluded provided by doing so one did not go in breach of the expression not earlier than thirty days. The 25th of November was the 30th day counting from October 26 leaving out the initial day and, therefore, it cannot be described as earlier than thirty days. In other words, it was not earlier than thirty days from the date on which the notice under sub-s. (2) was delivered to the District Magistrate.This reading is also borne out by the other expression "not later than thirty-five days" which is used in thethe sub-section we are dealing with the number of days should not exceed thirty five days. On a parity of reasoning not earlier than thirty days would include the 30th day but not the 29th day because 29th day must be regarded as earlier than thirty days. If the provision were "not earlier than thirty days and not later than thirty days" it is obvious that only the 30th day could be meant. This proves that the fixing of the date of the meeting was, therefore, in accordance with law and we respectfully disapprove of the view taken in the Andhra Pradeshagain we find it difficult to accept the view expressed in the Allahabad High Court. Sub-section (4) provides that if the presiding judicial officer does not attend the meeting, the meeting stands automatically adjourned after half an hour to a date and time to be appointed later and notified to the members by that officer under sub-s. (5). It seems pointless, therefore, to think that if the judicial officer knows in advance that he would not be able to attend the meeting that he has not the power to adjourn the meeting in advance.No visible profit results from such a construction. In fact, the words of sub-s. (5) are that if the judicial officer is unable to preside at the meeting he may, after recording his reasons; adjourn the meeting to such other date and time as he may appoint. This can happen not only at the meeting but also before the date of meeting if the judicial officer is in a position to say that he would be unable to preside at the meeting. If this were not so some unforeseen event which requires the presiding officer to be absent would frustrate the entire non-confidence motion because the judicial officer would be unable to adjourn it in advance. That the consequences under sub-s. (4) would automatically flow also show that it should be possible for the presiding officer to adjourn a meeting which under the law would in any event be adjourned under sub-s. (4). In our opinion it is not necessary that the judicial officer show be present at the meeting and then adjourn it for purposes of sub-s. (5).He can take action in advance. This will be convenient al1 round became it will save members from attendance on that day. This vas done in this case and in our opinion the action was correct. We do not read the word adjourn as being in any way different from the word postpone which is some times used. The word adjourn means that the officer can postpone the meeting to a subsequent date.7. The High Court did not exercise its powers under Art. 226 of the Constitution and we must not be intended to have meant that where the High Court has refused to exercise its discretion this Court would always interfere. This case was admitted in this Court merely to clear a dispute about the law which seems to have evoked different interpretations in the High Courts.8. On a consideration of the whole matter we are of opinion that the petition was devoid of merit and although it was dismissed because the High Court did not choose to exercise its discretionary powers the result would have been the same if the High Court had gone into the matter elaborately and correctly. The appeal must, therefore, be dismissed. We order accordingly. | 0 | 2,649 | 972 | ### 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:
that the language excludes the 30th day from computation. In other words, although October 26 had to be excluded the date on which the meeting was to be called need not be excluded provided by doing so one did not go in breach of the expression not earlier than thirty days. The 25th of November was the 30th day counting from October 26 leaving out the initial day and, therefore, it cannot be described as earlier than thirty days. In other words, it was not earlier than thirty days from the date on which the notice under sub-s. (2) was delivered to the District Magistrate.This reading is also borne out by the other expression "not later than thirty-five days" which is used in the section. In this Court, Harinder Singh v. S. Karnail Singh, AIR 1957 SC 271 , the expression not later than 14 days as used in R. 119 under the Representation of the People Act was held to mean the same thing as "within a period of fourteen days". In that expression the number of days, it was held, should not exceed the number fourteen. In the sub-section we are dealing with the number of days should not exceed thirty five days. On a parity of reasoning not earlier than thirty days would include the 30th day but not the 29th day because 29th day must be regarded as earlier than thirty days. If the provision were "not earlier than thirty days and not later than thirty days" it is obvious that only the 30th day could be meant. This proves that the fixing of the date of the meeting was, therefore, in accordance with law and we respectfully disapprove of the view taken in the Andhra Pradesh case.6. The third point arises under the following circumstances. The District Magistrate had arranged with the District Judge for a stipendiary judicial officer to preside over the meeting to be convened on November 25. The District Judge had nominated one Mr. R. R. Agarwal, Additional Civil Judge, Aligarh for this purpose. Mr. R. R. Agarwal made an order on November 22, 1966 intimating that he was unable to preside over the meeting on November 25 and that the meeting would be adjourned to December 5. The District Magistrate sent out notices on the same day intimating the members of the change of date. It is contended that this action of the Additional Civil Judge, Aligarh violated the provisions of the fifth sub-section. The reason advanced is that the judicial officer is not empowered to adjourn the meeting in advance but he can only do so if he is unable to preside at the meeting, that is to say, on the day on which the meeting is to be held. In support of this contention a ruling of the Allahabad High Court reported in Krishna Chandra Gupta v. Prayag Narain, 1961 All LJ 226, is cited where at p. 229 a Divisional Bench said that the authority under sub-s. (5) to adjourn the meeting is exercisable only on the date on which the meeting is convened and if that occasion does not arise the adjournment is improper. Here again we find it difficult to accept the view expressed in the Allahabad High Court. Sub-section (4) provides that if the presiding judicial officer does not attend the meeting, the meeting stands automatically adjourned after half an hour to a date and time to be appointed later and notified to the members by that officer under sub-s. (5). It seems pointless, therefore, to think that if the judicial officer knows in advance that he would not be able to attend the meeting that he has not the power to adjourn the meeting in advance.No visible profit results from such a construction. In fact, the words of sub-s. (5) are that if the judicial officer is unable to preside at the meeting he may, after recording his reasons; adjourn the meeting to such other date and time as he may appoint. This can happen not only at the meeting but also before the date of meeting if the judicial officer is in a position to say that he would be unable to preside at the meeting. If this were not so some unforeseen event which requires the presiding officer to be absent would frustrate the entire non-confidence motion because the judicial officer would be unable to adjourn it in advance. That the consequences under sub-s. (4) would automatically flow also show that it should be possible for the presiding officer to adjourn a meeting which under the law would in any event be adjourned under sub-s. (4). In our opinion it is not necessary that the judicial officer show be present at the meeting and then adjourn it for purposes of sub-s. (5).He can take action in advance. This will be convenient al1 round became it will save members from attendance on that day. This vas done in this case and in our opinion the action was correct. We do not read the word adjourn as being in any way different from the word postpone which is some times used. The word adjourn means that the officer can postpone the meeting to a subsequent date.7. The High Court did not exercise its powers under Art. 226 of the Constitution and we must not be intended to have meant that where the High Court has refused to exercise its discretion this Court would always interfere. This case was admitted in this Court merely to clear a dispute about the law which seems to have evoked different interpretations in the High Courts.8. On a consideration of the whole matter we are of opinion that the petition was devoid of merit and although it was dismissed because the High Court did not choose to exercise its discretionary powers the result would have been the same if the High Court had gone into the matter elaborately and correctly. The appeal must, therefore, be dismissed. We order accordingly.
### Response:
0
### Explanation:
This argument is based upon the procedure which is laid down in S. 87-A of thethe notice was despatched on the 17th and presumably reached the next day the learned Counsel excludes the date of receipt of the notice and the date of the meeting and says that seven clear days did not intervene. In our judgment this is an erroneous reading of the sub-section.The sub-section says that the District Magistrate shall send the notice not less than seven clear days before the date of the meeting and the word send shows that the critical date is the date of the despatch of the notice. As the notice was sent on the 17th and the meeting was to be called on the 25th, it is obvious that seven clear days did intervene and there was no breach of this part of theis no doubt true that where the expression is not less than so many days both the terminal days have to be excluded and the number of days mentioned must be clear days but the force of the words not earlier than thirty days is not the same. Not earlier than thirty days means that it should not be the 29th day, but there is nothing to show that the language excludes the 30th day from computation. In other words, although October 26 had to be excluded the date on which the meeting was to be called need not be excluded provided by doing so one did not go in breach of the expression not earlier than thirty days. The 25th of November was the 30th day counting from October 26 leaving out the initial day and, therefore, it cannot be described as earlier than thirty days. In other words, it was not earlier than thirty days from the date on which the notice under sub-s. (2) was delivered to the District Magistrate.This reading is also borne out by the other expression "not later than thirty-five days" which is used in thethe sub-section we are dealing with the number of days should not exceed thirty five days. On a parity of reasoning not earlier than thirty days would include the 30th day but not the 29th day because 29th day must be regarded as earlier than thirty days. If the provision were "not earlier than thirty days and not later than thirty days" it is obvious that only the 30th day could be meant. This proves that the fixing of the date of the meeting was, therefore, in accordance with law and we respectfully disapprove of the view taken in the Andhra Pradeshagain we find it difficult to accept the view expressed in the Allahabad High Court. Sub-section (4) provides that if the presiding judicial officer does not attend the meeting, the meeting stands automatically adjourned after half an hour to a date and time to be appointed later and notified to the members by that officer under sub-s. (5). It seems pointless, therefore, to think that if the judicial officer knows in advance that he would not be able to attend the meeting that he has not the power to adjourn the meeting in advance.No visible profit results from such a construction. In fact, the words of sub-s. (5) are that if the judicial officer is unable to preside at the meeting he may, after recording his reasons; adjourn the meeting to such other date and time as he may appoint. This can happen not only at the meeting but also before the date of meeting if the judicial officer is in a position to say that he would be unable to preside at the meeting. If this were not so some unforeseen event which requires the presiding officer to be absent would frustrate the entire non-confidence motion because the judicial officer would be unable to adjourn it in advance. That the consequences under sub-s. (4) would automatically flow also show that it should be possible for the presiding officer to adjourn a meeting which under the law would in any event be adjourned under sub-s. (4). In our opinion it is not necessary that the judicial officer show be present at the meeting and then adjourn it for purposes of sub-s. (5).He can take action in advance. This will be convenient al1 round became it will save members from attendance on that day. This vas done in this case and in our opinion the action was correct. We do not read the word adjourn as being in any way different from the word postpone which is some times used. The word adjourn means that the officer can postpone the meeting to a subsequent date.7. The High Court did not exercise its powers under Art. 226 of the Constitution and we must not be intended to have meant that where the High Court has refused to exercise its discretion this Court would always interfere. This case was admitted in this Court merely to clear a dispute about the law which seems to have evoked different interpretations in the High Courts.8. On a consideration of the whole matter we are of opinion that the petition was devoid of merit and although it was dismissed because the High Court did not choose to exercise its discretionary powers the result would have been the same if the High Court had gone into the matter elaborately and correctly. The appeal must, therefore, be dismissed. We order accordingly.
|
M/S Eureka Forbes Limited Vs. State Of Bihar | whether the article vacuum cleaner could be included within the Entry 81 of the Notification dated 26.12.1977 issued under Section 12 by the respondents. 9. Entry 81 of the said notification reads as follows:- “81. Electrical goods, instrument, apparatus and appliances including electric fans and lighting bulbs, electric earthware and porcelain and all other accessories excluding electric motor, dry cell batteries, torch, torch bulbs, exhaust fans, air circulators, and spare parts and accessories, electric heaters of all varieties.” 10. Counsel appearing for the Appellant has submitted before us that particular article, namely, vacuum cleaner, which is the article dealt with by the appellant in the course of its business cannot be included within the ambit and scope of Entry 81 in view of the fact that the said article is not mentioned specifically within the aforesaid Entry. In order to reinforce his arguments, Mr. S.B. Sanyal, learned senior counsel also relied upon the subsequent Notification which is issued by the respondents on 26.7.2000. He has drawn our attention to the contents of the said Notification and particularly to serial no. 247 where vacuum cleaner is specifically mentioned with the rate of sales tax payable @ 12%. It is submitted by him that since in the subsequent Notification in 2000, vacuum cleaner has been specifically stated under serial no. 247 specifying the rate of sales tax at 12%, it should be assumed that the aforesaid vacuum cleaner having not been specifically mentioned in the earlier Notification under Entry 81, would be liable for the purpose of tax at 8% being an unspecified good. We have considered the said submissions in the light of the records. The Entry 81, which we have extracted above, provides that electrical goods, instruments, apparatus and appliances would have to be levied 12% tax effective from 1.4.1982. However, when it states of electrical goods, the same appears to us to be an inclusive description as it emphasises on the word `including electrical fans and lighting bulbs, etc. and again it excludes from its purview electric motor, dry cell batteries, etc. 11. A reference to Section 12 of the Act would also make the position clear for Section 12 says in the proviso that the State Government can issue a notification fixing higher rate than eight percentum by specifying such goods or class of goods or description of goods. Therefore, by issuing a notification under Section 12, a higher rate than of 8% could be levied by the State Government on a class of articles of goods or goods specifically mentioned therein. The aforesaid position would be more explicit when we look to the Entries 116 and 127 of the same Notification of 1977 wherein by the Entry 116, articles like refrigerators, air- conditioners, air-coolers and air-conditioning plants, etc. have been taken out from the items “electrical goods” under Entry 81 by levying higher rate of tax. 12. That the vacuum cleaner dealt with by the appellant is an electrical good, there is no dispute raised for in the Special Leave Petition itself it is stated by the Appellant that the vacuum cleaner is a machinery which is run by electricity. Therefore, it is an agreed and uniform case of the parties that vacuum cleaner is an electrical good. The said vacuum cleaner is not excluded from the purview and ambit of Entry 81 in any manner as is apparent from a bare reading of the contents of Entry 81. 13. We are concerned with the assessment years prior to 2000 and, therefore, the Notification issued on 26.7.2000 shall have no relevance or application to the facts of the present case. 14. Counsel appearing for the Appellant has submitted that since vacuum cleaner is not specifically included within the Entry 81, therefore, it should be deemed to be excluded. We are unable to accept the aforesaid contention in view of the fact that none of any electrical goods, instruments, apparatus, which is included in the said Entry is specifically mentioned and if that interpretation is accepted, all electrical goods would have to be excluded because they are not specifically mentioned therein. That could not be the intention of the framers of the Notification while exercising the powers under the subordinate legislation. If we also accept such an interpretation, in our opinion, entire Entry 81 would be rendered otiose. 15. Learned counsel also relied upon a decision of this Court in The Federation of Andhra Pradesh Chambers of Commerce & Industry and Ors. Etc. Etc. v. State of Andhra Pradesh and Ors. Etc. Etc. reported in (2000) 6 SCC 550 , wherein it is laid down in para 7 that taxing statutes are to be strictly construed and that nothing could be added to what is stated in the statute itself. We agree and accept the aforesaid principles of law laid down by this Court. That is a settled position of law, but according to us, the said decision in no way helps the Appellant in view of the reasoning given by us for the findings arrived at by us. So far the decision of the Division Bench of the Patna High Court in Eureka Forbes Ltd. v. State of Bihar and Ors. reported in 2000 (119) STC 460 (Pat.) is concerned, the same is also not applicable to the facts of the present case as the same relates to a case of re- opening of assessment on the ground of change of opinion and therefore, the said case also has no application at all. The decision of the Bombay High Court in Indian National Shipowners Association, a Company having its registered office through its Deputy Secretary and Mr. Badrinath Durvasula having his place of business v. Union of India (UOI) through Secretary, Dept. of Revenue, Ministry of Finance Govt. of India and Ors. reported in 2009 (14) STR 289 (Bom.) also has no application to the facts of the present case. 16. We have given our reasons for arriving at our findings and in our considered opinion, the | 1[ds]Learned counsel also relied upon a decision of this Court in The Federation of Andhra Pradesh Chambers of Commerce & Industry and Ors. Etc. Etc. v. State of Andhra Pradesh and Ors. Etc. Etc. reported in (2000) 6 SCC 550 , wherein it is laid down in para 7 that taxing statutes are to be strictly construed and that nothing could be added to what is stated in the statute itself. We agree and accept the aforesaid principles of law laid down by this Court. That is a settled position of law, but according to us, the said decision in no way helps the Appellant in view of the reasoning given by us for the findings arrived at by us. So far the decision of the Division Bench of the Patna High Court in Eureka Forbes Ltd. v. State of Bihar and Ors. reported in 2000 (119) STC 460 (Pat.) is concerned, the same is also not applicable to the facts of the present case as the same relates to a case of re- opening of assessment on the ground of change of opinion and therefore, the said case also has no application at all. The decision of the Bombay High Court in Indian National Shipowners Association, a Company having its registered office through its Deputy Secretary and Mr. Badrinath Durvasula having his place of business v. Union of India (UOI) through Secretary, Dept. of Revenue, Ministry of Finance Govt. of India and Ors. reported in 2009 (14) STR 289 (Bom.) also has no application to the facts of the present case. | 1 | 1,519 | 302 | ### 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:
whether the article vacuum cleaner could be included within the Entry 81 of the Notification dated 26.12.1977 issued under Section 12 by the respondents. 9. Entry 81 of the said notification reads as follows:- “81. Electrical goods, instrument, apparatus and appliances including electric fans and lighting bulbs, electric earthware and porcelain and all other accessories excluding electric motor, dry cell batteries, torch, torch bulbs, exhaust fans, air circulators, and spare parts and accessories, electric heaters of all varieties.” 10. Counsel appearing for the Appellant has submitted before us that particular article, namely, vacuum cleaner, which is the article dealt with by the appellant in the course of its business cannot be included within the ambit and scope of Entry 81 in view of the fact that the said article is not mentioned specifically within the aforesaid Entry. In order to reinforce his arguments, Mr. S.B. Sanyal, learned senior counsel also relied upon the subsequent Notification which is issued by the respondents on 26.7.2000. He has drawn our attention to the contents of the said Notification and particularly to serial no. 247 where vacuum cleaner is specifically mentioned with the rate of sales tax payable @ 12%. It is submitted by him that since in the subsequent Notification in 2000, vacuum cleaner has been specifically stated under serial no. 247 specifying the rate of sales tax at 12%, it should be assumed that the aforesaid vacuum cleaner having not been specifically mentioned in the earlier Notification under Entry 81, would be liable for the purpose of tax at 8% being an unspecified good. We have considered the said submissions in the light of the records. The Entry 81, which we have extracted above, provides that electrical goods, instruments, apparatus and appliances would have to be levied 12% tax effective from 1.4.1982. However, when it states of electrical goods, the same appears to us to be an inclusive description as it emphasises on the word `including electrical fans and lighting bulbs, etc. and again it excludes from its purview electric motor, dry cell batteries, etc. 11. A reference to Section 12 of the Act would also make the position clear for Section 12 says in the proviso that the State Government can issue a notification fixing higher rate than eight percentum by specifying such goods or class of goods or description of goods. Therefore, by issuing a notification under Section 12, a higher rate than of 8% could be levied by the State Government on a class of articles of goods or goods specifically mentioned therein. The aforesaid position would be more explicit when we look to the Entries 116 and 127 of the same Notification of 1977 wherein by the Entry 116, articles like refrigerators, air- conditioners, air-coolers and air-conditioning plants, etc. have been taken out from the items “electrical goods” under Entry 81 by levying higher rate of tax. 12. That the vacuum cleaner dealt with by the appellant is an electrical good, there is no dispute raised for in the Special Leave Petition itself it is stated by the Appellant that the vacuum cleaner is a machinery which is run by electricity. Therefore, it is an agreed and uniform case of the parties that vacuum cleaner is an electrical good. The said vacuum cleaner is not excluded from the purview and ambit of Entry 81 in any manner as is apparent from a bare reading of the contents of Entry 81. 13. We are concerned with the assessment years prior to 2000 and, therefore, the Notification issued on 26.7.2000 shall have no relevance or application to the facts of the present case. 14. Counsel appearing for the Appellant has submitted that since vacuum cleaner is not specifically included within the Entry 81, therefore, it should be deemed to be excluded. We are unable to accept the aforesaid contention in view of the fact that none of any electrical goods, instruments, apparatus, which is included in the said Entry is specifically mentioned and if that interpretation is accepted, all electrical goods would have to be excluded because they are not specifically mentioned therein. That could not be the intention of the framers of the Notification while exercising the powers under the subordinate legislation. If we also accept such an interpretation, in our opinion, entire Entry 81 would be rendered otiose. 15. Learned counsel also relied upon a decision of this Court in The Federation of Andhra Pradesh Chambers of Commerce & Industry and Ors. Etc. Etc. v. State of Andhra Pradesh and Ors. Etc. Etc. reported in (2000) 6 SCC 550 , wherein it is laid down in para 7 that taxing statutes are to be strictly construed and that nothing could be added to what is stated in the statute itself. We agree and accept the aforesaid principles of law laid down by this Court. That is a settled position of law, but according to us, the said decision in no way helps the Appellant in view of the reasoning given by us for the findings arrived at by us. So far the decision of the Division Bench of the Patna High Court in Eureka Forbes Ltd. v. State of Bihar and Ors. reported in 2000 (119) STC 460 (Pat.) is concerned, the same is also not applicable to the facts of the present case as the same relates to a case of re- opening of assessment on the ground of change of opinion and therefore, the said case also has no application at all. The decision of the Bombay High Court in Indian National Shipowners Association, a Company having its registered office through its Deputy Secretary and Mr. Badrinath Durvasula having his place of business v. Union of India (UOI) through Secretary, Dept. of Revenue, Ministry of Finance Govt. of India and Ors. reported in 2009 (14) STR 289 (Bom.) also has no application to the facts of the present case. 16. We have given our reasons for arriving at our findings and in our considered opinion, the
### Response:
1
### Explanation:
Learned counsel also relied upon a decision of this Court in The Federation of Andhra Pradesh Chambers of Commerce & Industry and Ors. Etc. Etc. v. State of Andhra Pradesh and Ors. Etc. Etc. reported in (2000) 6 SCC 550 , wherein it is laid down in para 7 that taxing statutes are to be strictly construed and that nothing could be added to what is stated in the statute itself. We agree and accept the aforesaid principles of law laid down by this Court. That is a settled position of law, but according to us, the said decision in no way helps the Appellant in view of the reasoning given by us for the findings arrived at by us. So far the decision of the Division Bench of the Patna High Court in Eureka Forbes Ltd. v. State of Bihar and Ors. reported in 2000 (119) STC 460 (Pat.) is concerned, the same is also not applicable to the facts of the present case as the same relates to a case of re- opening of assessment on the ground of change of opinion and therefore, the said case also has no application at all. The decision of the Bombay High Court in Indian National Shipowners Association, a Company having its registered office through its Deputy Secretary and Mr. Badrinath Durvasula having his place of business v. Union of India (UOI) through Secretary, Dept. of Revenue, Ministry of Finance Govt. of India and Ors. reported in 2009 (14) STR 289 (Bom.) also has no application to the facts of the present case.
|
Municipal Council Palai Vs. T.J. Joseph and Others | Even assuming that it does, it will have to do so in consultation with the Municipality and it may be legitimate to expect that the ultimate action would be such as not to bring about any conflict.It has also to be borne in mind that s. 72 of the Travancore-Cochin Motor Vehicles Act was enacted for the purpose of enabling the Government and the appropriate authority to make provisions for parking places not only in municipal areas but in non municipal areas as well as also in municipal areas where the municipality has taken no action under s. 286. Would it then be proper to say that there is a conflict between s. 286 of the Travancore District Municipalities Act and s. 72 of the Travancore- Cochin Motor Vehicles Act ? The latter provision has a wider territorial application than the former and can in that sense be said to be a general one, while the former being applicable only to municipal areas is a special one. Being a special provision s. 286 cannot readily be considered as having been repealed by the more general provision of s. 72 of the Travancore Cochin Motor Vehicles Act. But we must bear in mind that s. 286 does not stand by itself and in order to effectuate the purpose underlying it the legislature has enacted s. 287, apparently intending that when action is taken by a municipality under s. 286 it may also take consequential action under s. 287.18. Could it, therefore, be said that there is conflict between ss. 286 and 287 on the one hand and s. 72 of the Travancore- Cochin Motor Vehicles Act on the other because while under s. 287 a municipality can prohibit the use as a halting place of any place within a specified distance of the bus stand constructed by it, the Government or other appropriate authority can by order permit places within the prohibited area to be used as halting places ? It is urged before us on behalf of the Municipal Council that until action is taken under s. 72 of the Travancore Cochin Motor Vehicles Act which will have such result, it cannot be said that a conflict will arise and that until such conflict actually takes place, the old provision must stand. In support of this contention learned counsel refers us to the decision of Sulaiman J., in Shyamakant Lal v. Rambhajan Singh ([1939] F.C.R. 193, 212.). There, the learned judge in his judgment has stated the principles of construction to be applied when the question arises as to whether provincial legislation is repugnant to an existing Indian law. In the course of judgment the learned judge has observed "Further, repugnancy must exist in fact, and not depend merely on a possibility."He relied upon the decision in Attorney-General for Ontario v. Attorney-General for the Dominion ([1896] A.C. 348, 369-370.) in support of his view. In that case there was a prior provincial law enabling local authorities to adopt certain provisions of a provincial law for enforcing prohibition. Then a later Dominion law was enacted called the Canada Temperance Act, 1886 which provided that part II of that law could be brought into operation in a province by an order of the Governor General of Canada in Council. It may be mentioned that there were certain provisions in the Dominion Act which purported to repeal the prohibitory provisions of the provincial Act. The Privy Council held that those provisions were ultra vires. It was contended before the Privy Council alternatively that the provisions of the Provincial Act being repugnant to the Dominion Act stood repealed by implication by the provisions of part II of the Dominion Act by resorting to which local authorities could introduce prohibition in their areas. The Privy Council pointed out that those provisions were inapplicable until an order was made by the Governor General of Canada in Council applying Part II of the Act to a province and in fact no such order was made. That case is clearly distinguishable because Part 11, of the Act had not come into force at all and since it was not in force in a province the question of its being in conflict with the provincial law did not arise.19. It seems to us however, clear that bearing in mind the fact that the provisions of s. 72 of the Travancore Cochin Motor Vehicles Act were intended to apply to a much wider area than those of ss. 286 and 287 of the Travancore District Municipalities Act it cannot be said that s. 72 was intended to replace those provisions of the Travancore District Municipalities Act. The proper way of construing the two sets of provisions would be to regard s. 72 of the Travancore-Cochin Motor Vehicles Act as a provision in continuity with ss. 286 and 287 of the Travancore District Municipalities Act so that it could be availed of by the appropriate authority as and when it chose. In other words the intention of the legislature appears to be to allow the two sets of provisions to co-exist because, both are enabling ones. Where such is the position, we cannot imply repeal. The result of this undoubtedly would be that a provision which is added subsequently, that is, which represents the latest will of the legislature will have an overriding effect on the earlier provision in the sense that despite the fact that some action has been taken by the Municipal Council by resorting to the earlier provision the appropriate authority may nevertheless take action under s. 72 of the Travancore Cochin Motor Vehicles Act, the result of which would be to override the action taken by the Municipal Council under s. 287 of the District Municipalities Act. No action under section 72 has so far been taken by the Government and, therefore, the resolutions of the municipal Council still hold good. Upon this view it is not necessary to consider certain other points raised by learned counsel, | 1[ds]Could it, therefore, be said that there is conflict between ss. 286 and 287 on the one hand and s. 72 of the Travancore- Cochin Motor Vehicles Act on the other because while under s. 287 a municipality can prohibit the use as a halting place of any place within a specified distance of the bus stand constructed by it, the Government or other appropriate authority can by order permit places within the prohibited area to be used as halting places ? It is urged before us on behalf of the Municipal Council that until action is taken under s. 72 of the Travancore Cochin Motor Vehicles Act which will have such result, it cannot be said that a conflict will arise and that until such conflict actually takes place, the old provision must stand. In support of this contention learned counsel refers us to the decision of Sulaiman J., in Shyamakant Lal v. Rambhajan Singh ([1939] F.C.R. 193, 212.). There, the learned judge in his judgment has stated the principles of construction to be applied when the question arises as to whether provincial legislation is repugnant to an existing Indian law. In the course of judgment the learned judge has observed "Further, repugnancy must exist in fact, and not depend merely on a possibility."He relied upon the decision in Attorney-Generalfor Ontario v. Attorney-General for the Dominion ([1896] A.C. 348, 369-370.)in support of his view. In that case there was a prior provincial law enabling local authorities to adopt certain provisions of a provincial law for enforcing prohibition. Then a later Dominion law was enacted called the Canada Temperance Act, 1886 which provided that part II of that law could be brought into operation in a province by an order of the Governor General of Canada in Council. It may be mentioned that there were certain provisions in the Dominion Act which purported to repeal the prohibitory provisions of the provincial Act. The Privy Council held that those provisions were ultra vires. It was contended before the Privy Council alternatively that the provisions of the Provincial Act being repugnant to the Dominion Act stood repealed by implication by the provisions of part II of the Dominion Act by resorting to which local authorities could introduce prohibition in their areas. The Privy Council pointed out that those provisions were inapplicable until an order was made by the Governor General of Canada in Council applying Part II of the Act to a province and in fact no such order was made. That case is clearly distinguishable because Part 11, of the Act had not come into force at all and since it was not in force in a province the question of its being in conflict with the provincial law did notseems to us however, clear that bearing in mind the fact that the provisions of s. 72 of the Travancore Cochin Motor Vehicles Act were intended to apply to a much wider area than those of ss. 286 and 287 of the Travancore District Municipalities Act it cannot be said that s. 72 was intended to replace those provisions of the Travancore District Municipalities Act. The proper way of construing the two sets of provisions would be to regard s. 72 of the Travancore-Cochin Motor Vehicles Act as a provision in continuity with ss. 286 and 287 of the Travancore District Municipalities Act so that it could be availed of by the appropriate authority as and when it chose. In other words the intention of the legislature appears to be to allow the two sets of provisions to co-exist because, both are enabling ones. Where such is the position, we cannot imply repeal. The result of this undoubtedly would be that a provision which is added subsequently, that is, which represents the latest will of the legislature will have an overriding effect on the earlier provision in the sense that despite the fact that some action has been taken by the Municipal Council by resorting to the earlier provision the appropriate authority may nevertheless take action under s. 72 of the Travancore Cochin Motor Vehicles Act, the result of which would be to override the action taken by the Municipal Council under s. 287 of the District Municipalities Act. No action under section 72 has so far been taken by the Government and, therefore, the resolutions of the municipal Council still hold good. Upon this view it is not necessary to consider certain other points raised by learned counsel, | 1 | 5,152 | 811 | ### 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:
Even assuming that it does, it will have to do so in consultation with the Municipality and it may be legitimate to expect that the ultimate action would be such as not to bring about any conflict.It has also to be borne in mind that s. 72 of the Travancore-Cochin Motor Vehicles Act was enacted for the purpose of enabling the Government and the appropriate authority to make provisions for parking places not only in municipal areas but in non municipal areas as well as also in municipal areas where the municipality has taken no action under s. 286. Would it then be proper to say that there is a conflict between s. 286 of the Travancore District Municipalities Act and s. 72 of the Travancore- Cochin Motor Vehicles Act ? The latter provision has a wider territorial application than the former and can in that sense be said to be a general one, while the former being applicable only to municipal areas is a special one. Being a special provision s. 286 cannot readily be considered as having been repealed by the more general provision of s. 72 of the Travancore Cochin Motor Vehicles Act. But we must bear in mind that s. 286 does not stand by itself and in order to effectuate the purpose underlying it the legislature has enacted s. 287, apparently intending that when action is taken by a municipality under s. 286 it may also take consequential action under s. 287.18. Could it, therefore, be said that there is conflict between ss. 286 and 287 on the one hand and s. 72 of the Travancore- Cochin Motor Vehicles Act on the other because while under s. 287 a municipality can prohibit the use as a halting place of any place within a specified distance of the bus stand constructed by it, the Government or other appropriate authority can by order permit places within the prohibited area to be used as halting places ? It is urged before us on behalf of the Municipal Council that until action is taken under s. 72 of the Travancore Cochin Motor Vehicles Act which will have such result, it cannot be said that a conflict will arise and that until such conflict actually takes place, the old provision must stand. In support of this contention learned counsel refers us to the decision of Sulaiman J., in Shyamakant Lal v. Rambhajan Singh ([1939] F.C.R. 193, 212.). There, the learned judge in his judgment has stated the principles of construction to be applied when the question arises as to whether provincial legislation is repugnant to an existing Indian law. In the course of judgment the learned judge has observed "Further, repugnancy must exist in fact, and not depend merely on a possibility."He relied upon the decision in Attorney-General for Ontario v. Attorney-General for the Dominion ([1896] A.C. 348, 369-370.) in support of his view. In that case there was a prior provincial law enabling local authorities to adopt certain provisions of a provincial law for enforcing prohibition. Then a later Dominion law was enacted called the Canada Temperance Act, 1886 which provided that part II of that law could be brought into operation in a province by an order of the Governor General of Canada in Council. It may be mentioned that there were certain provisions in the Dominion Act which purported to repeal the prohibitory provisions of the provincial Act. The Privy Council held that those provisions were ultra vires. It was contended before the Privy Council alternatively that the provisions of the Provincial Act being repugnant to the Dominion Act stood repealed by implication by the provisions of part II of the Dominion Act by resorting to which local authorities could introduce prohibition in their areas. The Privy Council pointed out that those provisions were inapplicable until an order was made by the Governor General of Canada in Council applying Part II of the Act to a province and in fact no such order was made. That case is clearly distinguishable because Part 11, of the Act had not come into force at all and since it was not in force in a province the question of its being in conflict with the provincial law did not arise.19. It seems to us however, clear that bearing in mind the fact that the provisions of s. 72 of the Travancore Cochin Motor Vehicles Act were intended to apply to a much wider area than those of ss. 286 and 287 of the Travancore District Municipalities Act it cannot be said that s. 72 was intended to replace those provisions of the Travancore District Municipalities Act. The proper way of construing the two sets of provisions would be to regard s. 72 of the Travancore-Cochin Motor Vehicles Act as a provision in continuity with ss. 286 and 287 of the Travancore District Municipalities Act so that it could be availed of by the appropriate authority as and when it chose. In other words the intention of the legislature appears to be to allow the two sets of provisions to co-exist because, both are enabling ones. Where such is the position, we cannot imply repeal. The result of this undoubtedly would be that a provision which is added subsequently, that is, which represents the latest will of the legislature will have an overriding effect on the earlier provision in the sense that despite the fact that some action has been taken by the Municipal Council by resorting to the earlier provision the appropriate authority may nevertheless take action under s. 72 of the Travancore Cochin Motor Vehicles Act, the result of which would be to override the action taken by the Municipal Council under s. 287 of the District Municipalities Act. No action under section 72 has so far been taken by the Government and, therefore, the resolutions of the municipal Council still hold good. Upon this view it is not necessary to consider certain other points raised by learned counsel,
### Response:
1
### Explanation:
Could it, therefore, be said that there is conflict between ss. 286 and 287 on the one hand and s. 72 of the Travancore- Cochin Motor Vehicles Act on the other because while under s. 287 a municipality can prohibit the use as a halting place of any place within a specified distance of the bus stand constructed by it, the Government or other appropriate authority can by order permit places within the prohibited area to be used as halting places ? It is urged before us on behalf of the Municipal Council that until action is taken under s. 72 of the Travancore Cochin Motor Vehicles Act which will have such result, it cannot be said that a conflict will arise and that until such conflict actually takes place, the old provision must stand. In support of this contention learned counsel refers us to the decision of Sulaiman J., in Shyamakant Lal v. Rambhajan Singh ([1939] F.C.R. 193, 212.). There, the learned judge in his judgment has stated the principles of construction to be applied when the question arises as to whether provincial legislation is repugnant to an existing Indian law. In the course of judgment the learned judge has observed "Further, repugnancy must exist in fact, and not depend merely on a possibility."He relied upon the decision in Attorney-Generalfor Ontario v. Attorney-General for the Dominion ([1896] A.C. 348, 369-370.)in support of his view. In that case there was a prior provincial law enabling local authorities to adopt certain provisions of a provincial law for enforcing prohibition. Then a later Dominion law was enacted called the Canada Temperance Act, 1886 which provided that part II of that law could be brought into operation in a province by an order of the Governor General of Canada in Council. It may be mentioned that there were certain provisions in the Dominion Act which purported to repeal the prohibitory provisions of the provincial Act. The Privy Council held that those provisions were ultra vires. It was contended before the Privy Council alternatively that the provisions of the Provincial Act being repugnant to the Dominion Act stood repealed by implication by the provisions of part II of the Dominion Act by resorting to which local authorities could introduce prohibition in their areas. The Privy Council pointed out that those provisions were inapplicable until an order was made by the Governor General of Canada in Council applying Part II of the Act to a province and in fact no such order was made. That case is clearly distinguishable because Part 11, of the Act had not come into force at all and since it was not in force in a province the question of its being in conflict with the provincial law did notseems to us however, clear that bearing in mind the fact that the provisions of s. 72 of the Travancore Cochin Motor Vehicles Act were intended to apply to a much wider area than those of ss. 286 and 287 of the Travancore District Municipalities Act it cannot be said that s. 72 was intended to replace those provisions of the Travancore District Municipalities Act. The proper way of construing the two sets of provisions would be to regard s. 72 of the Travancore-Cochin Motor Vehicles Act as a provision in continuity with ss. 286 and 287 of the Travancore District Municipalities Act so that it could be availed of by the appropriate authority as and when it chose. In other words the intention of the legislature appears to be to allow the two sets of provisions to co-exist because, both are enabling ones. Where such is the position, we cannot imply repeal. The result of this undoubtedly would be that a provision which is added subsequently, that is, which represents the latest will of the legislature will have an overriding effect on the earlier provision in the sense that despite the fact that some action has been taken by the Municipal Council by resorting to the earlier provision the appropriate authority may nevertheless take action under s. 72 of the Travancore Cochin Motor Vehicles Act, the result of which would be to override the action taken by the Municipal Council under s. 287 of the District Municipalities Act. No action under section 72 has so far been taken by the Government and, therefore, the resolutions of the municipal Council still hold good. Upon this view it is not necessary to consider certain other points raised by learned counsel,
|
S.Iyyapan Vs. M/S United India Insurance Co.Ld | insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. 15. In the case of National Insurance Co. Ltd. v. Kusum Rai and Others, (2006) 4 SCC 250 , the respondent was the owner of a jeep which was admittedly used as a taxi and thus a commercial vehicle. One Ram Lal was working as a Khalasi in the said taxi and used to drive the vehicle some times. He had a driving licence to drive light motor vehicle. The taxi met with an accident resulting in the death of a minor girl. One of the issues raised was as to whether the driver of the said jeep was having a valid and effective driving licence. The Tribunal relying on the decision of this Court in New India Assurance Co. v. Kamla (supra) held that the insurance company cannot get rid of its third party liability. It was further held that the insurance company can recover this amount from the owner of the vehicle. Appeal preferred by the insurance company was dismissed by the High Court. In appeal before this Court, the insurance company relying upon the decision in Oriental Insurance Co. Ltd. v. Nanjappan, 2004 (13) SCC 224 argued that the awarded amount may be paid and be recovered from the owner of the vehicle. The Insurance Company moved this Court in appeal against the judgment of the High Court which was dismissed. 16. In the case of National Insurance Company Ltd. v. Annappa Irappa Nesaria alias Nesaragi and Others, 2008 (3) SCC 464 , the vehicle involved in the accident was a matador having a goods carriage permit and was insured with the insurance company. An issue was raised that the driver of the vehicle did not possess an effective driving licence to drive a transport vehicle. The Tribunal held that the driver was having a valid driving licence and allowed the claim. In appeal filed by the insurance company, the High Court dismissed the appeal holding that the claimants are third parties and even on the ground that there is violation of terms and conditions of the policy the insurance company cannot be permitted to contend that it has no liability. This Court after considering the relevant provisions of the Act and definition and meaning of light goods carriage, light motor vehicles, heavy goods vehicles, finally came to conclusion that the driver, who was holding the licence duly granted to drive light motor vehicle, was entitled to drive the light passenger carriage vehicle, namely, the matador. This Court observed as under: 20. From what has been noticed hereinbefore, it is evident that transport vehicle has now been substituted for medium goods vehicle and heavy goods vehicle. The light motor vehicle continued, at the relevant point of time to cover both light passenger carriage vehicle and light goods carriage vehicle. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well. 17. The heading Insurance of Motor Vehicles against Third Party Risks given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. 18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurers right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy. 19. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside. 20. | 1[ds]Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurers right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy19. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside. | 1 | 7,137 | 364 | ### 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:
insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. 15. In the case of National Insurance Co. Ltd. v. Kusum Rai and Others, (2006) 4 SCC 250 , the respondent was the owner of a jeep which was admittedly used as a taxi and thus a commercial vehicle. One Ram Lal was working as a Khalasi in the said taxi and used to drive the vehicle some times. He had a driving licence to drive light motor vehicle. The taxi met with an accident resulting in the death of a minor girl. One of the issues raised was as to whether the driver of the said jeep was having a valid and effective driving licence. The Tribunal relying on the decision of this Court in New India Assurance Co. v. Kamla (supra) held that the insurance company cannot get rid of its third party liability. It was further held that the insurance company can recover this amount from the owner of the vehicle. Appeal preferred by the insurance company was dismissed by the High Court. In appeal before this Court, the insurance company relying upon the decision in Oriental Insurance Co. Ltd. v. Nanjappan, 2004 (13) SCC 224 argued that the awarded amount may be paid and be recovered from the owner of the vehicle. The Insurance Company moved this Court in appeal against the judgment of the High Court which was dismissed. 16. In the case of National Insurance Company Ltd. v. Annappa Irappa Nesaria alias Nesaragi and Others, 2008 (3) SCC 464 , the vehicle involved in the accident was a matador having a goods carriage permit and was insured with the insurance company. An issue was raised that the driver of the vehicle did not possess an effective driving licence to drive a transport vehicle. The Tribunal held that the driver was having a valid driving licence and allowed the claim. In appeal filed by the insurance company, the High Court dismissed the appeal holding that the claimants are third parties and even on the ground that there is violation of terms and conditions of the policy the insurance company cannot be permitted to contend that it has no liability. This Court after considering the relevant provisions of the Act and definition and meaning of light goods carriage, light motor vehicles, heavy goods vehicles, finally came to conclusion that the driver, who was holding the licence duly granted to drive light motor vehicle, was entitled to drive the light passenger carriage vehicle, namely, the matador. This Court observed as under: 20. From what has been noticed hereinbefore, it is evident that transport vehicle has now been substituted for medium goods vehicle and heavy goods vehicle. The light motor vehicle continued, at the relevant point of time to cover both light passenger carriage vehicle and light goods carriage vehicle. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well. 17. The heading Insurance of Motor Vehicles against Third Party Risks given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. 18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurers right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy. 19. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside. 20.
### Response:
1
### Explanation:
Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurers right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy19. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside.
|
Jagdish Saran and Others Vs. Union of India and Others | regard being had to over-all Indian conditions, can it be said that Delhi or the Delhi University, is backward or serves, through the medical colleges of its University, the students who will settle down to alleviate suffering in that region,Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for post-graduate or post-doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine-tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting sub-standard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super- skilled specialists, not humdrum second-rates. So it is that relaxation on merit, by over-ruling equality and quality altogether, is a social risk where the stage is post- graduate or post-doctoral.32. Of course, we should not exaggerate this factor. Post- graduate studies are not all that great and demanding as to invite only geniuses.33. We cannot be scared by glorifying merit nor be hypnotised by the cult of talent, seeing as we do, crowds of M.Ds, M.Ss and their foreign analogues. Nor, indeed, are the entrance tests any but the feeblest yardsticks to measure innate capabilities. Is it not the wildest hostage to fortune to swear by marks alone which are so freakish and determined by a chancy variety of variables ? We find different modes of examining faculties in different universities, commissions and countries and may, on closer scrutiny, pick holes in the scientific basis of our entrance tests themselves. We repeat all this only to stress the limitations on the current system of selection so that we may not be swept off our feet by the elitist feeling that something sacred or scientific is being jettisoned for the sake of accommodating nitwits of backward regions institutions or classes when marks are slightly slurred over. Even so, being realists, we go by existing methodology until better modes are devised.In the light of this discussion about the know-how and know-why of reservations, what are the conclusions that emerge vis a vis the Delhi graduates ? Neither Delhi nor the Delhi University medical colleges can be designated as categories which warrant reservation. But there is one weighty circumstance which must be in our remembrance. Reservation for Delhi graduates is not that invidious because, as stated in the beg inning, the students are from families drawn from all over India. Not `sons of the soil but sons and daughters of persons who are willy nilly pulled into the capital city for reasons beyond their control. This reservation is, therefore, qualitatively different.34. There is another pathological condition affecting `medical admissions which is at the back of the desperate `satyagraha of the students and this factor tilts the scale a great deal. Counsel for the University, supported by fragmentary material pointing to a pan-Indian tendency, argued that all the country round every university bangs, bars and bolts the doors of medical admission to outsiders and if Delhi alone were to keep its doors hospitably ajar where are the Delhi graduates to go for higher studies if squeezed out by All-India competition ? If reservation is evil, the embargo everywhere must be lifted, lest evil should beget evil. So long as other universities are out of bounds for Delhi graduates, exposure to all-India competition becomes intense and prejudices their chances. This indirect, real yet heavy handicap creates an under- current of discrimination and cannot be wished away and needs to be antidoted by some percent age of reservation or other legitimate device.35. Another consideration which justifies some measure of reservation is the desire of students for institutional continuity in education.Parents, pupils and teachers will usually prefer such continuity and it has its own value.36. We recognise that institution-wise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to. But even such rules until revised by competent authority or struck down judicially, will rule the roost. That is why we have to concede that until the signpost of `no admission for outsiders is removed from other universities and some fair percentage of seats in other universities is left for open competition the Delhi students cannot be made martyrs of the Constitution.37. Even so, `reservation must be administered in moderation, if it is to be constitutional. Some central technical institutions like the All India Institute of Medical Sciences, Delhi and Chandigarh and the Pondicherry Medical College have a much smaller fraction. Their circumstances may be different and we do not have the full facts, neither side having furnished more than fragments. Judicial surmise is too weak to be of decisional certainty. For reasons we have assigned 70% plus is too high at the post-graduate level in the half-proved circumstances. But we stop short of invalidating the rule because the facts are imperfect, the course has al ready started and the court must act only on sure ground, especially when matters of policy, socio-educational investigation and expert evaluation of variables are involved. Judges should not rush in where specialists fear to tread. We spare the impugned regulation even though we are, prima facie, sceptical about the vires thereof. To doubt is not enough to demolish. When fuller facts are placed, the court will go into this question more confidently.38. While reluctantly repelling the challenge of the petitioner we think two directions must be made in this case. If 70% reservation is on the high side and the petitioner is hopefully near `admission going by marks and reservation, it is but just that he is given a chance to do his post-graduate course. Indeed, his coming to Delhi itself was a compulsion beyond his control, as we have noted earlier.The petitioner, going by marks, deserves admission to the postgraduate degree course although he is now in the post-graduate diploma course. | 0[ds]A synthesis of both is where the truth lies. The key to this case, if we may anticipate ourselves, is in harmoniously blending developmental necessities of backward regions via institutionalnational considerations of everybodys equal opportunity for higher education being ensured regardless of geographical, institutional or other inhibition. We must never forget two values synthesised in our constitutional culture, as set out in theand integrity of the nation and equality of opportunity of weaker sections. Without the latter becoming a sure reality the former may be mere rhetoric !An epitome of the social background leading upto the controversy will give a hang of the case and elaboration may await a later stage. Post In dependence India has many universities with facilities for higher learning. Most of them give institutional preferences in the allocation of seats for technical courses and this tendency sometimes reaches the morbid point of total cornering of seats atlevel, especially in the coveted and competitive branches likenational demographic composition is relevant to the examination of the reservationare valuable aspects to shape policy but the court must test constitutionality and no more. To that extent alone we will weigh these factors in moulding our verdict.We will now identify the issues emerging from the matrix ofe rival contentions justify, albeit a little repetitively, the recapitulation of recent events, parochial realities and institutional behaviour, bearin on admissions to colleges in the Delhi University, with some comparative glance at others in thethis method, approximately half the number of seats were reserved for the Delhi graduates. But having regard to the figures of seats andof graduates earlier mentioned, t his did not meet the requirements of the aspirants fordegrees from Delhi. It must be remembered that Delhi is the seat of the elite, of high officials, of prosperous professionals, of rich businessmen, of important politicians and echelons of consequence and other men ofsons and daughters, already fed on superior facilities and coached in special schools beyond the reach of most other students in the rest of the country, have an appetite and opportunity for excellence in education ahead of others and wish to lap up all theseats, if possible. The cream must belong to the cream, generation to generation, may be a cynical social scientists comment,a larger number of Delhi medical graduates, relatively speaking, must be ambitiously wanting to continue their studies inmedical courses which are prized for their career potential. It is significant that these courses are not easily available elsewhere and the standards and prestige of these degrees in the Delhi University are high. Taking amedical degree thus opens up further vistas for studies abroad or employment at home. When we remember these f actors and the reduced chance for bright Delhi graduates to gain admission into the Delhicourses in the face ofcompetition, we can mildly appreciate the mood and demand of the student community for enlargement of their quota. But all grievances are not constitutional. Also, by remedying one groups misfortune other groups may be hurt. The Court can only view rights and wrongs, through the constitutional prism. The various universities show concern for their backward regions and alumni in the name of equal opportunity. But the Indian Medical Council, apprehensive of fall of standards lays stress on academic merit. This dilemma of the law between equality of opportunity and excellence of performance leads us to a demand for full facts, but, of course, we are left to speculate on many aspects of the problem because even the Delhi University and the Union of India have left us in theIndian Constitution is wedded to equal protection andArts. 14, 15 and 16 are inviolable and Art. 29(2) strikes a similar note though it does not refer to regional restrictions or reservations. Art. 15 saves the States power to make special provisions for women and children or for advancement of socially and educationally backward classes. Reservations under Art. 15(4) exist and are applied. There is no dispute about that and the whole debate has left that pattern and policy of reservation out of controversy. Wese quotas, reservations and preferences from the constitutional standpoint. The primary imperative of Arts. 14 and 15 is equal opportunity for all across the nation to attain excellenceand this has burning relevance to our times when the country is gradually being broken up into fragments by narrow domestic walls in politics, economics and education, undoing the founding faith of an undivided integrated India by surrender to lesser appeals and grosser passions. What is fundamental, as an enduring value of our polity, is guarantee to each of equal opportunity to unfold the full potential of his personalities. Anyone anywhere, humble or high, agrestic or urban, man or woman, and whatever his religion or irreligion, shall be afforded equal chance for admission to any secular educational course or school for cultural growth, training facility, speciality orliteral terms of Art. 14 do not tolerate it, the text of Art. 15 does not sanction it. Can we carve out a fresh ground of preference? Delhi University students, as such, are not an educationally backward class and, indeed,segregation or reservation has no place in the scheme of Art. 15, although social and educational destitution may be endemic in some parts of the country where a college or university may be started to remedy this glaring imbalance and reservation for those alumi for higher studies may be permissible. We will explain this further but, speaking generally, unless there is vital nexus with equal opportunity, broad validation ofreservation cannot be built on the vague ground that all other universities are practisingfact not fully proved before us either. Universality of illegality, even if the artists of discrimination are universities, cannot convert such praxis into constitutionality. Nor, indeed, can the painful circumstance that a batch of medical graduates demonstratively fasted in front of the Health Ministers house, ipso facto, legalise reservation of seats in theirhave sympathy for students, especially for those who sacrifice their comforts to claim an opportunity to takemedical degrees. We even feel that the student community often resorts to direct action of the satyagraha model when the pachydermic disposition of authorities drives them to such drastic heroics. But what ifstudents start a rival starvation exercise ? That will lead to testing the rule of law on the immolative or masochist capabilities of affected groups and not on the Articles of the Constitutional or provisions of the legislation. Protest fasting, a versatile weapon in our cultural armoury, is meant to sensitize or conscientize the soul o f the Administration when it is tooor callous to look at human problems from the angle of human justice. Beyond that, this great Gandhian technique cannot be blunted by promiscuous use, so long as democratic mechanisms are alive and not impervious to legitimate grievances and can be sparked into action not merely by sensational, though sincere, tactics like fasting unto death. While recognising, even reverencing, the role of soul force in quickening the callous conscience of authorities to grave injury and need for urgent remedy, we cannot uphold the Delhi Universitys reservation strategy merely because Government was faced with student fasts and ministers desired a compromise formula and the University bodies simply said Amen. The constitutionality of institutional reservation must be founded on facts of educational life and the social dynamics of equal opportunity Political panic does not ipso facto, make constitutional logic.Prima facie, equal marks must have equal chance for medical admissions, as urged by the practitioner. And neither university based favoured treatment nor satyagraha induced quota policy can survive the egalitarian attack. To repulse the charge, equality oriented grounds must be made out. Constitutional equality itself is dynamic, flexible, and moulded by the variables of life. For instance, if a region is educationally backward or woefully deficient in medical services, there occurs serious educational anddisparity for that human religion which must be redressed by an equality and service minded Welfare State. The purpose of such a policy is to remove the existing inequality and to promoteequality for the denizens of the backward regions. The specific strategy to ameliorate the unequal societal condition is left to the State, provided it is geared to producing equality in the quality of life of that handicapped area subject, of course, to basic recognition of individual quality and criteria ofif the State finds that only students from the backward regions, when given medical graduation, will care to serve in that area, drawn towards it by a sense of belonging, and those fromwill, on graduation, leave for the cities or their own regions, it may evolve a policy of preference or reservation for students of that University. That strategy ensures the probability of their serving the backward people for whose benefit the medical courses were opened. Such measures which make for equality of opportunity for medical education and medical service for backward human sectors may be constitutionalised even by Arts. 14 and 15. But it must be remembered that exceptions cannotthe rule itself by running riot or by making reservations as a matter of course, in every university and every course. For instance, you cannot wholly exclude meritorious candidates as that will promote substandard candidates and bring about a fall in medical competence, injurious, in the long run, to the very region. It is no blessing to inflict quacks and medical midgets on people by wholesale sacrifice of talent at the threshold. Nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nation. So, within these limitations, without going into excesses, there is room for play of the States policy choices.Before moving to the next aspect we may touch upon a slightly different angle which opens up a new point ofis merit or excellence ? If potential for rural service or aptitude for rendering medical attention among backward people is a criterion of merit and it, undoubtedly, is in a land of sickness and misery, neglect and penury, wails andsurely, belonging to a university catering to a deprived region is a plus point of merit. Excellence is composite and the heart and its sensitivity are as precious in the scale of educational values as the head and its creativity and social medicine for the common people is more relevant than peak performance in freak cases. Marks on this basis will take us to the same preference as reservations forcandidates. Here we are not preferring one with less marks, but adopting a holistic manner of marking linked up with backward settings, institution oriented and like considerations has somecaveat or two may be sounded even in this approach lest exception should consume the rule. The first caution is that reservation must be kept in check by the demands of competence. You cannot extend the shelter of reservation where minimum qualifications are absent. Similarly, all the best talent cannot be completely excluded by wholesale reservation. So, a certain percentage, which may be available, must be kept open for meritorious performance regardless of university, State and the like. Complete exclusion of the rest of the country for the sake of a province, wholesale banishment of proven ability to open up, hopefully, some dalit talent, total sacrifice of excellence at the altar ofthe Constitution mandates for every one equality before and equal protection of thebe fatal folly,educational technology and antinational if made a routine rule of State policy. A fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitiveas the dynamics of social justice which animates the three egalitarian articles of the Constitution.Flowing from the same stream of equalism is another limitation. The basic medical needs of a region or the preferential push justified for a handicapped group cannot prevail in the same measure at the highest scale of speciality where the best skill or talent, must be handpicked by selecting according toChanchalas case the basis of classification was different: "in that it is neithere, but is university wise."(5) The justification forreservation was the educational need and paucity of medical service in the area where the university was set up. Certain regions poorly served with medical facilities and with few doctors needed to produce more medical men who would settle down there. Likewise, in those backward regions the absence of medical colleges effectively inhibited the needs of medical education of the local student community. The question was whether these grounds would suffice for providing reservationIn this setting, the Court observed:"Since the universities are set up for satisfying the educational needs of different areas where they are set up and medical colleges are established in those areas, it can safely be presumed that they also were so set up to satisfy the needs of medical training of those attached to those universities. In our view there is nothing undesirable in ensuring that those attached to such universities have their ambitions to have training in specialised subjects, like medicine, satisfied through colleges affiliated to their own universities. Such a basis for selection has not the disadvantage ofse selection as any student from any part of the state can pass the qualifying examination in any of the three universities irrespective of the place of his birth or residence, Further, the rules confer a discretion on the selection committee to admit outsiders upto 20% of the total available seats in any one of these colleges, i.e. those who have passed the equivalent examination held by any other university not only in the State but also elsewhere inprinciple underlying Art. 15(4) is that a preferential treatment can validly be given because the socially and educationally backward classes need it, so that in course of time they stand in equal position with the more advanced sections of the society. It would not in any way be improper if that principle were also to be applied to those who are handicapped but do not fall under Art.conclusion that we reach from this ruling which adverts to earlier procedents on the point is thatpreferential treatment may still be consistent with the rule of equality of opportunity where it is calculated to correct an imbalance or handicap and permit equality in the largerextensive excursion is necessitated by the subtle tendency of advantage groups to exploit propositions applicable to disabled categories to good account. Now, let us look at the raw realities of the Delhi University medical graduates and their claim for larger reservation for M.D. and M.S. Facts, and only facts, must be the guide, of course, within the framework of Part III, and this Court has to play the role not only of the sentinel on the qui vive but also of t he hound of heaven, not merely watch but chase, to set things right if any constitutional wrong has been committed. So we must enquire whether 70% reservation for Delhi graduates which is prima facie discriminatory can be extricated by any amelioratory constitutional logic or ethic implicit in Arts. 14 and 15. We have set out the parameters within which alone reservation ismust go to the roots of the creed of equality and here the case of State of Kerala v. N. M. Thomas(1) has critical relevance. That decision dealt with the Scheduled Castes and Art. 16 and certain facilities other than reservation. But the core reasoning has crucial significance in all cases of protective discrimination. The process of equalisation and benign discrimination are integral, and not antagonistic, to the principle of equality. In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is sophistry to argue that progressive measures to eliminate group disabilities and promote collective equality are anathema on the score that every individual has entitlement on pure merit of marks. This narrow unsocial pedantry subverts the seminal essence of equal opportunity even for those who are humble and handicapped. Meritocracy cannot displace equality when the utterly backward masses labour under group disabilities. So we may weave those special facilities into the web of equality which, in an equitable setting, provide for the weak and promote their levelling up so that, in the long run, the community at large may enjoy a general measure of real equal opportunity. So we hold, even apart from Art. 15(3) and (4), that equality is not negated or neglected where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit. Indeed, Art. 14 implies all this, in its wider connotation, and has to inform the interpretation of Art.e classification formedical education is shown to be relevant and reasonable and the differential has a nexus to the larger goal of equalisation of educational opportunities the vice of discrimination may not invalidate theso, what is fundamental is equality, not classification. What is basic is equal opportunity, for each according to his ability, not artificial compartmentalisation and institutional apartheidisation, using the mask of handicaps. We cannot contemplate as consistent with Art. 14 a clanish exclusivism based upon a particular university, withoutthe constitutional principles and limitations are clear and the norms are belighted by the precedents but their application to the specific situation is an exacting task. The burden, when protective discrimination promotional of equalisation is pleaded, is on the party who seeks to justify the ex facie deviation fromlearned Attorney General frankly admitted that student agitation, without more, could not validate reservation and that excessive reservation was an obvious inequality. Nor, indeed, is it a good plea that illegal reservation is being practised by other universities and the Delhi University is forced to act illegally inLawlessness, under our system, is corrected by the law, not bySo it is strange for the Delhi University to say our disorderly behaviour is orderly because other universities behave similarly. Once these misguided defences of direct action by students or reprisals against other universities are brushed aside, we come to grips with the realcontention deserves close examination, not summary rejection.The mechanics of merit measurement is simple. All applicants, whichever the University from where they have taken M.B.B.S. degree, must apply for a common entrance test. Theof merit is the marks obtain ed. Thereafter 70% of the seats is allotted to Delhi graduates and the balance 30% is selected from out of all the remaining applicants, Delhi graduates included. So much so, Delhi graduates get much more than 70% of the total seats. Although the stage of application of reservation may bear upon the effective quantum of advantage, the principal question is as to whether a minimum of 70% for the Delhi graduate alone is not far too excessive, based on extraneous agitational factors and essentially contradicting Arts. 14 andequality of opportunity for every person in the country is the constitutional guarantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must b e the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education likecourses. After all, top technological expertise in any v ital field like medicine is nations human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levels of education, jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the countrys development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nations talent lying latent can produce. If the best potential in these fields isfor populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficiency may be good enough and what is needed is merely to we ed out the worthless.Coming to brasstacks, deviation from equal marks will meet with approval only if the essential conditions set out above are fulfilled. The class which enjoys reservation must be educationally handicapped. The reservation must be geared to getting over the handicap. The rationale of reservation must be in the case of medical students, removal of regional or class inadequacy or like disadvantage. The quantum of reservation should not be excessive or societally injurious measured by thecompetency of thes. A host of variables influence the quantification of the reservation. But one factor deserves great emphasis. The higher the level of the speciality the lesser the role of reservation. Such being the pragmatics and dynamics of social justice and equal rights, let us apply the tests to the case onhave two weighty differentiating factors here. Delhi is in no sense an educationally or economically backward human region, measured against the rest of our country. The students of Delhi, who are likely to seek admission to medical colleges, belong to classes higher in the scale than in most parts of India. As explained earlier the presence of huge central administrative establishments and higher echelons of the public services, members in numbers of the political aristocracy, thanks to Delhi being the seat of Parliament, countless executives clustering around big business and industrial houses and offices and many educational, research and other institutions, professional organisations, the Supreme Court, the High Court, and their natural human concomitants in the upperscale, make Delhi and the Delhi University the cynosure of the privileged species in a land ofpenury. Of course, like in any megalopolis of a dev eloping country, slums and other symptoms of deprivation show up and the desperately poor denizens below the visibility line unbiquitously abound. But they are not the potential candidates for medical admission or service and cannot be used as `alibi for reservation. In what sense, regard being had toIndian conditions, can it be said that Delhi or the Delhi University, is backward or serves, through the medical colleges of its University, the students who will settle down to alleviate suffering in that region,Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is foral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, forperformance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selectingcandidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of superskilled specialists, not humdrumSo it is that relaxation on merit, byequality and quality altogether, is a social risk where the stage is postWe repeat all this only to stress the limitations on the current system of selection so that we may not be swept off our feet by the elitist feeling that something sacred or scientific is being jettisoned for the sake of accommodating nitwits of backward regions institutions or classes when marks are slightly slurred over. Even so, being realists, we go by existing methodology until better modes are devised.In the light of this discussion about thehy of reservations, what are the conclusions that emerge vis a vis the Delhi graduates ? Neither Delhi nor the Delhi University medical colleges can be designated as categories which warrant reservation. But there is one weighty circumstance which must be in our remembrance. Reservation for Delhi graduates is not that invidious because, as stated in the beg inning, the students are from families drawn from all over India. Not `sons of the soil but sons and daughters of persons who are willy nilly pulled into the capital city for reasons beyond their control. This reservation is, therefore, qualitativelyise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to. But even such rules until revised by competent authority or struck down judicially, will rule the roost. That is why we have to concede that until the signpost of `no admission for outsiders is removed from other universities and some fair percentage of seats in other universities is left for open competition the Delhi students cannot be made martyrs of theso, `reservation must be administered in moderation, if it is to be constitutional. Some central technical institutions like the All India Institute of Medical Sciences, Delhi and Chandigarh and the Pondicherry Medical College have a much smaller fraction. Their circumstances may be different and we do not have the full facts, neither side having furnished more than fragments. Judicial surmise is too weak to be of decisional certainty. For reasons we have assigned 70% plus is too high at thelevel in thee spare the impugned regulation even though we are, prima facie, sceptical about the vires thereof. To doubt is not enough to demolish. When fuller facts are placed, the court will go into this question morereluctantly repelling the challenge of the petitioner we think two directions must be made in this case. If 70% reservation is on the high side and the petitioner is hopefully near `admission going by marks and reservation, it is but just that he is given a chance to do hiscourse. Indeed, his coming to Delhi itself was a compulsion beyond his control, as we have noted earlier.The petitioner, going by marks, deserves admission to the postgraduate degree course although he is now in theWe are disturbed by the tendency to wall of each university as an insulated island of education, mindless of the integrated unity and equal opportunity which are an inalienable part of our constitutional value system. There is good reason for reservation in many cases but the promiscuous, even profligate application of an exception as a rule of educational life by forward cities and universities will boomerang on the nation in the long run. The Union of India has a special responsibility to ensure that in higher education provincialism does not erode the integrity of India. Who lives if India dies, is a poignant interrogation with cultural projections in many dimensions which our administrators are not, we hope, innocent off: Mutations in reservations in other universities need not await litigation but can be undertaken before the court process is set in motion. The dialectic of constitutional protection in the dynamic context of equality in a developing country has been presented by us at some repetitive length so that the voyage ofmay not suffer from navigational errors.The Indian Medical Council is the statutory body at the national level whose functional obligations include setting standards for as well as regulation and coordination of medical education. What with a growing number of universities with divergent settings, standards and goals and a motley crowd of students with diverse academic and social backgrounds and ambitions, the prescription and invigilation of flexible yet principled norms regulating the entrance into medical courses and training of medical graduates at various levels of specialization are a demanding and dynamic task. The I.M.A. cannot be a silent spectator or a static instrument but must initiate, activist fashion, steps to make Indian medical education a meaning asset to the nations healing and hospital resources and a discipline with broad uniformity and assured standard. The Central Government, witness to a deteriorating situation, cannot but act to negate the confusing trend of fall in quality and conflict amongJ. I have had the benefit of reading the judgment prepared by my learned brother V. R. Krishna Iyer and while I agree with him that the writ petition should be dismissed, I propose to state my ownvalidity of a reservation of 70% of the seats in theclasses by the Delhi University in favour of its own medical graduates is assailed in this writ petition. The basis of the reservation is the consideration that the candidate for admission to theclasses is a medical graduate of the same University. No question of backward classes, scheduled castes and scheduled tribes, is involved. Criteria pertinent to reservation concerning them are, it seems to me, not relevant at all. Nor strictly is the test requiring a territorial nexus the University does not insist that the candidate should hail from any particular region or State for the purpose of the 70% reservation. The relationship is entirely institutional those who have graduated from the medical colleges run by the Delhi University are favoured for admission to the postgraduate classes. In my opinion, there is sufficient validity in that consideration. It is not beyond reason that a student who enters a medical college for his graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for hisstudies. There is the strong argument of convenience, of stability and familiarity with an educational environment which in different parts of the country is subject to varying economic and psychological pressures. But much more than convenience is involved. There are all the advantages of a continuing frame of educational experience in the same educational institution. It must be remembered that it is not an entirely different course of studies which is contemplated; it is a specialised and deeper experience in what has gone before. The student has become familiar with the teaching techniques and standards of scholarship, and has adjusted his responses and reactions according. The continuity of studies ensures a higher degree of competence in the assimilation of knowledge and experience. Not infrequently some of the same staff of Professors and Readers may lecture to theclasses also. Over theyears the teacher has come to understand the particular needs of the student, where he excels and where he needs an especial encouragement in the removal of deficiencies. In my judgment, there is good reason in an educational institution extending a certain degree of preference to its graduate for admission to its post graduate classes. The preference is based on a reasonable classification and bears a just relationship to the object of the education provided in the postgraduate classes. The concept of equality codified in our constitutional system is not violated. It has been said sometimes that classification contradicts equality. To my mind, classification is a feature o f the very core of equality. It is a vital concept in ensuring equality, for those who are similarly situated alone form a class between themselves, and the classification is not vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law. An institutional preference of the kind considered here does not offend the constitutional guarantee of equality.But the question really is: Is the degree of reservation excessive ? Is 70% too much ? Too excessive a reservation could result in preference to graduate candidates of severely limited aptitude and competence over meritorious candidates from other institutions whose exclusion could result in aborting a part of our national talent. The determining factor, it appears to me, is the measure of reciprocity prevailing between the different educational institutions in India regarding the availability of admission to graduates of other institutions. It can hardly be supposed that if the medical graduates of the Delhi University are shut out from adequate consideration for admission to thecourses of other institutions merely because they did not graduate from those institutions they should not think it unjust that the hospitality of their own University to outside medical graduates leaves insufficient provision for them. Not to be able to takestudies at all implies t he termination of their medical studies. This is a problem which can be tackled only on a national level, with all Universities and other medical institutions coming together around a common table with the object of fashioning out a mutual reasonable quota reservation. A wise andexercise, eschewing narrow parochial considerations, is called for. It is only by a joining of hands across the entire nation that a suitable and enduring solution can be evolved and the turbulence which disturbs the student body set atlearned brother has referred to the considerable attraction which an educational institution in New Delhi exerts over students from other parts of the country. I con fess I do not share the view entirely. So much, I think, depends on the choice of a particular subject or course of studies by the candidate. And medical course are not all necessarily to be found only in New Delhi. They are located in other parts of India and some of those | 0 | 10,795 | 5,977 | ### 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:
regard being had to over-all Indian conditions, can it be said that Delhi or the Delhi University, is backward or serves, through the medical colleges of its University, the students who will settle down to alleviate suffering in that region,Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for post-graduate or post-doctoral courses in specialised subjects. There is no substitute for sheer flair, for creative talent, for fine-tuned performance at the difficult heights of some disciplines where the best alone is likely to blossom as the best. To sympathise mawkishly with the weaker sections by selecting sub-standard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super- skilled specialists, not humdrum second-rates. So it is that relaxation on merit, by over-ruling equality and quality altogether, is a social risk where the stage is post- graduate or post-doctoral.32. Of course, we should not exaggerate this factor. Post- graduate studies are not all that great and demanding as to invite only geniuses.33. We cannot be scared by glorifying merit nor be hypnotised by the cult of talent, seeing as we do, crowds of M.Ds, M.Ss and their foreign analogues. Nor, indeed, are the entrance tests any but the feeblest yardsticks to measure innate capabilities. Is it not the wildest hostage to fortune to swear by marks alone which are so freakish and determined by a chancy variety of variables ? We find different modes of examining faculties in different universities, commissions and countries and may, on closer scrutiny, pick holes in the scientific basis of our entrance tests themselves. We repeat all this only to stress the limitations on the current system of selection so that we may not be swept off our feet by the elitist feeling that something sacred or scientific is being jettisoned for the sake of accommodating nitwits of backward regions institutions or classes when marks are slightly slurred over. Even so, being realists, we go by existing methodology until better modes are devised.In the light of this discussion about the know-how and know-why of reservations, what are the conclusions that emerge vis a vis the Delhi graduates ? Neither Delhi nor the Delhi University medical colleges can be designated as categories which warrant reservation. But there is one weighty circumstance which must be in our remembrance. Reservation for Delhi graduates is not that invidious because, as stated in the beg inning, the students are from families drawn from all over India. Not `sons of the soil but sons and daughters of persons who are willy nilly pulled into the capital city for reasons beyond their control. This reservation is, therefore, qualitatively different.34. There is another pathological condition affecting `medical admissions which is at the back of the desperate `satyagraha of the students and this factor tilts the scale a great deal. Counsel for the University, supported by fragmentary material pointing to a pan-Indian tendency, argued that all the country round every university bangs, bars and bolts the doors of medical admission to outsiders and if Delhi alone were to keep its doors hospitably ajar where are the Delhi graduates to go for higher studies if squeezed out by All-India competition ? If reservation is evil, the embargo everywhere must be lifted, lest evil should beget evil. So long as other universities are out of bounds for Delhi graduates, exposure to all-India competition becomes intense and prejudices their chances. This indirect, real yet heavy handicap creates an under- current of discrimination and cannot be wished away and needs to be antidoted by some percent age of reservation or other legitimate device.35. Another consideration which justifies some measure of reservation is the desire of students for institutional continuity in education.Parents, pupils and teachers will usually prefer such continuity and it has its own value.36. We recognise that institution-wise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to. But even such rules until revised by competent authority or struck down judicially, will rule the roost. That is why we have to concede that until the signpost of `no admission for outsiders is removed from other universities and some fair percentage of seats in other universities is left for open competition the Delhi students cannot be made martyrs of the Constitution.37. Even so, `reservation must be administered in moderation, if it is to be constitutional. Some central technical institutions like the All India Institute of Medical Sciences, Delhi and Chandigarh and the Pondicherry Medical College have a much smaller fraction. Their circumstances may be different and we do not have the full facts, neither side having furnished more than fragments. Judicial surmise is too weak to be of decisional certainty. For reasons we have assigned 70% plus is too high at the post-graduate level in the half-proved circumstances. But we stop short of invalidating the rule because the facts are imperfect, the course has al ready started and the court must act only on sure ground, especially when matters of policy, socio-educational investigation and expert evaluation of variables are involved. Judges should not rush in where specialists fear to tread. We spare the impugned regulation even though we are, prima facie, sceptical about the vires thereof. To doubt is not enough to demolish. When fuller facts are placed, the court will go into this question more confidently.38. While reluctantly repelling the challenge of the petitioner we think two directions must be made in this case. If 70% reservation is on the high side and the petitioner is hopefully near `admission going by marks and reservation, it is but just that he is given a chance to do his post-graduate course. Indeed, his coming to Delhi itself was a compulsion beyond his control, as we have noted earlier.The petitioner, going by marks, deserves admission to the postgraduate degree course although he is now in the post-graduate diploma course.
### Response:
0
### Explanation:
that the voyage ofmay not suffer from navigational errors.The Indian Medical Council is the statutory body at the national level whose functional obligations include setting standards for as well as regulation and coordination of medical education. What with a growing number of universities with divergent settings, standards and goals and a motley crowd of students with diverse academic and social backgrounds and ambitions, the prescription and invigilation of flexible yet principled norms regulating the entrance into medical courses and training of medical graduates at various levels of specialization are a demanding and dynamic task. The I.M.A. cannot be a silent spectator or a static instrument but must initiate, activist fashion, steps to make Indian medical education a meaning asset to the nations healing and hospital resources and a discipline with broad uniformity and assured standard. The Central Government, witness to a deteriorating situation, cannot but act to negate the confusing trend of fall in quality and conflict amongJ. I have had the benefit of reading the judgment prepared by my learned brother V. R. Krishna Iyer and while I agree with him that the writ petition should be dismissed, I propose to state my ownvalidity of a reservation of 70% of the seats in theclasses by the Delhi University in favour of its own medical graduates is assailed in this writ petition. The basis of the reservation is the consideration that the candidate for admission to theclasses is a medical graduate of the same University. No question of backward classes, scheduled castes and scheduled tribes, is involved. Criteria pertinent to reservation concerning them are, it seems to me, not relevant at all. Nor strictly is the test requiring a territorial nexus the University does not insist that the candidate should hail from any particular region or State for the purpose of the 70% reservation. The relationship is entirely institutional those who have graduated from the medical colleges run by the Delhi University are favoured for admission to the postgraduate classes. In my opinion, there is sufficient validity in that consideration. It is not beyond reason that a student who enters a medical college for his graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for hisstudies. There is the strong argument of convenience, of stability and familiarity with an educational environment which in different parts of the country is subject to varying economic and psychological pressures. But much more than convenience is involved. There are all the advantages of a continuing frame of educational experience in the same educational institution. It must be remembered that it is not an entirely different course of studies which is contemplated; it is a specialised and deeper experience in what has gone before. The student has become familiar with the teaching techniques and standards of scholarship, and has adjusted his responses and reactions according. The continuity of studies ensures a higher degree of competence in the assimilation of knowledge and experience. Not infrequently some of the same staff of Professors and Readers may lecture to theclasses also. Over theyears the teacher has come to understand the particular needs of the student, where he excels and where he needs an especial encouragement in the removal of deficiencies. In my judgment, there is good reason in an educational institution extending a certain degree of preference to its graduate for admission to its post graduate classes. The preference is based on a reasonable classification and bears a just relationship to the object of the education provided in the postgraduate classes. The concept of equality codified in our constitutional system is not violated. It has been said sometimes that classification contradicts equality. To my mind, classification is a feature o f the very core of equality. It is a vital concept in ensuring equality, for those who are similarly situated alone form a class between themselves, and the classification is not vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law. An institutional preference of the kind considered here does not offend the constitutional guarantee of equality.But the question really is: Is the degree of reservation excessive ? Is 70% too much ? Too excessive a reservation could result in preference to graduate candidates of severely limited aptitude and competence over meritorious candidates from other institutions whose exclusion could result in aborting a part of our national talent. The determining factor, it appears to me, is the measure of reciprocity prevailing between the different educational institutions in India regarding the availability of admission to graduates of other institutions. It can hardly be supposed that if the medical graduates of the Delhi University are shut out from adequate consideration for admission to thecourses of other institutions merely because they did not graduate from those institutions they should not think it unjust that the hospitality of their own University to outside medical graduates leaves insufficient provision for them. Not to be able to takestudies at all implies t he termination of their medical studies. This is a problem which can be tackled only on a national level, with all Universities and other medical institutions coming together around a common table with the object of fashioning out a mutual reasonable quota reservation. A wise andexercise, eschewing narrow parochial considerations, is called for. It is only by a joining of hands across the entire nation that a suitable and enduring solution can be evolved and the turbulence which disturbs the student body set atlearned brother has referred to the considerable attraction which an educational institution in New Delhi exerts over students from other parts of the country. I con fess I do not share the view entirely. So much, I think, depends on the choice of a particular subject or course of studies by the candidate. And medical course are not all necessarily to be found only in New Delhi. They are located in other parts of India and some of those
|
State of Kerala Vs. N. Sami Iyer | made thereunder.2. In calculating the total turnover for the financial year ending with 31st March 1958 of a dealer in the Malabar area for purposes of sub-section (3) of S. 3 of this Act, the turnover of the dealer under the Madras General Sales Tax Act, 1939 up to the commencement of the Travancore-Cochin General Sales Tax (Amendment) Act, 1957, shall also be taken into account...5. The effect of S. 26-A and the Schedule, among other things, is that the dealers registration and the licences are deemed to have been effected under this Act, and secondly, that the total turnover for the period April 1, 1957 to September 30, 1957, is to be taken into account under the General Sales Tax Act.6. Act 12 of 1957, by S, 15 inter alia repealed the Madras General Sales Tax Act, 1939, as in force in the Malabar District, referred to in sub-section (2) of S. 3 of the States Reorganisation Act, 1956. Section 3(5) of the General Sales Tax Act, 1125, is in the same terms as S. 3 (5) of the Madras General Sales Tax Act, reproduced above. Section 5 (vii) of the General Sales Tax Act (corresponding to S. 5 of the Madras General Sales Tax Act) provides as follows:The sale of goods specified in Col. (2) of Schedule I shall be liable to tax under S. 3, sub-section (1) only at such single point in the series of sales by successive dealers as may be specified by the Government by notification in the Gazette; and where the taxable point so specified is a point of sale, the seller shall be liable for the tax on the turnover for which the goods are sold by him at such point, and where the taxable point so specified is a point of purchase, the buyer shall be liable for the tax on the turnover for which the goods are brought by him at such point.The description of item 2 in column (2) of Schedule I at the relevant time was Tobacco other than Beedi Tobacco (Suka).7. In exercise of the powers conferred by S. 5 (vii) the Government issued a notification No. HI-10674/57/RD-2 dated September 28, 1957. The relevant portion of the notification reads as follows:In exercise of the powers conferred by Cl. (vii) of S. 5 of the General Sales Tax Act (Act XI of 1125) the Government of Kerala hereby specify the point mentioned in column 3 of the schedule, hereto appended as the point liable to tax under S. 3 (10 on the goods mentioned in column 2.SCHEDULESr. No. Description of goods Taxable point(1) (2) (3)2. Tobacco other than Beedi Tobacco (Suka)1st sale in the State by a dealer who is not exempt from taxation under section 3 (3)"8. The result of the above notification is that whereas previously the taxable point in respect of tobacco was the point of first purchase under the Madras Act, now the taxable point is the first sale in the State.9. The learned Advocate-General, who appeared on behalf of the appellant, has raised two points before us: first, that in this case there was no right, much less a vested right, not to be taxed except under the Madras General Sales Tax Act; the right if at all was to take advantage of the provisions of the repealed Act, namely, the proviso to S. 3 (5) of the Madras Act. Secondly, he says that even if there was such a right, Act 12 of 1957 manifests a contrary and different intention within the meaning of S. 4 (c) of the General Clauses Act, 1125, and the disputed turnover is liable to taxation under Act 12 of 1957.We may mention that S. 4(c) of the General Clauses Act, 1125, corresponds to S. 6 (c) of the Indian General Clauses Act. It appears to us that by virtue of S. 4 (c) the dealer continued to be liable to taxation under the Madras General Sales Tax Act in respect of the disputed turnover at the purchase point. For example, if for some reason he had not been assessed before Act 12 of 1957 came into force, he would have been assessed under; the Madras Act at the purchase point because a liability within the meaning of S. 4(c) would have been incurred by him. To this liability would be attached a right; the right being that he would not be liable to be taxed in respect of any sale of goods which had been the subject-matter of a purchase and taxation under the Madras Act. In other words, he was liable to be assessed under the Madras Act in respect of the purchase of goods but he had also a right not to be taxed again in respect of any sale of the same goods effected by him. Therefore, we repel the first argument of the learned Advocate-General.10. The next question that arises is whether Act 12 of 1957 manifests a different intention. As observed by this Court in State of Punjab v. Mohar Singh, 1955 SCR 893: ((S) AIR 1955 SC 84 ) when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot discern any intention in Act 12 of 1957 to destroy the rights and liabilities acquired or incurred under the Madras General Sales Tax Act. The second schedule reproduced above shows that the intention was to preserve old rights such as registration and licences issued under the old Act. In our opinion, if the Legislature had the intention to override the right attached to the liability under S. 3(5) of the Madras General Sales Tax Act, it would have used more clear and precise words. | 0[ds]We may mention that S. 4(c) of the General Clauses Act, 1125, corresponds to S. 6 (c) of the Indian General Clauses Act. It appears to us that by virtue of S. 4 (c) the dealer continued to be liable to taxation under the Madras General Sales Tax Act in respect of the disputed turnover at the purchase point. For example, if for some reason he had not been assessed before Act 12 of 1957 came into force, he would have been assessed under; the Madras Act at the purchase point because a liability within the meaning of S. 4(c) would have been incurred by him. To this liability would be attached a right; the right being that he would not be liable to be taxed in respect of any sale of goods which had been theThe next question that arises is whether Act 12 of 1957 manifests a different intention. As observed by this Court in State of Punjab v. Mohar Singh, 1955 SCR 893: ((S) AIR 1955 SC 84 ) when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot discern any intention in Act 12 of 1957 to destroy the rights and liabilities acquired or incurred under the Madras General Sales Tax Act. The second schedule reproduced above shows that the intention was to preserve old rights such as registration and licences issued under the old Act. In our opinion, if the Legislature had the intention to override the right attached to the liability under S. 3(5) of the Madras General Sales Tax Act, it would have used more clear and precise words. | 0 | 1,779 | 364 | ### 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:
made thereunder.2. In calculating the total turnover for the financial year ending with 31st March 1958 of a dealer in the Malabar area for purposes of sub-section (3) of S. 3 of this Act, the turnover of the dealer under the Madras General Sales Tax Act, 1939 up to the commencement of the Travancore-Cochin General Sales Tax (Amendment) Act, 1957, shall also be taken into account...5. The effect of S. 26-A and the Schedule, among other things, is that the dealers registration and the licences are deemed to have been effected under this Act, and secondly, that the total turnover for the period April 1, 1957 to September 30, 1957, is to be taken into account under the General Sales Tax Act.6. Act 12 of 1957, by S, 15 inter alia repealed the Madras General Sales Tax Act, 1939, as in force in the Malabar District, referred to in sub-section (2) of S. 3 of the States Reorganisation Act, 1956. Section 3(5) of the General Sales Tax Act, 1125, is in the same terms as S. 3 (5) of the Madras General Sales Tax Act, reproduced above. Section 5 (vii) of the General Sales Tax Act (corresponding to S. 5 of the Madras General Sales Tax Act) provides as follows:The sale of goods specified in Col. (2) of Schedule I shall be liable to tax under S. 3, sub-section (1) only at such single point in the series of sales by successive dealers as may be specified by the Government by notification in the Gazette; and where the taxable point so specified is a point of sale, the seller shall be liable for the tax on the turnover for which the goods are sold by him at such point, and where the taxable point so specified is a point of purchase, the buyer shall be liable for the tax on the turnover for which the goods are brought by him at such point.The description of item 2 in column (2) of Schedule I at the relevant time was Tobacco other than Beedi Tobacco (Suka).7. In exercise of the powers conferred by S. 5 (vii) the Government issued a notification No. HI-10674/57/RD-2 dated September 28, 1957. The relevant portion of the notification reads as follows:In exercise of the powers conferred by Cl. (vii) of S. 5 of the General Sales Tax Act (Act XI of 1125) the Government of Kerala hereby specify the point mentioned in column 3 of the schedule, hereto appended as the point liable to tax under S. 3 (10 on the goods mentioned in column 2.SCHEDULESr. No. Description of goods Taxable point(1) (2) (3)2. Tobacco other than Beedi Tobacco (Suka)1st sale in the State by a dealer who is not exempt from taxation under section 3 (3)"8. The result of the above notification is that whereas previously the taxable point in respect of tobacco was the point of first purchase under the Madras Act, now the taxable point is the first sale in the State.9. The learned Advocate-General, who appeared on behalf of the appellant, has raised two points before us: first, that in this case there was no right, much less a vested right, not to be taxed except under the Madras General Sales Tax Act; the right if at all was to take advantage of the provisions of the repealed Act, namely, the proviso to S. 3 (5) of the Madras Act. Secondly, he says that even if there was such a right, Act 12 of 1957 manifests a contrary and different intention within the meaning of S. 4 (c) of the General Clauses Act, 1125, and the disputed turnover is liable to taxation under Act 12 of 1957.We may mention that S. 4(c) of the General Clauses Act, 1125, corresponds to S. 6 (c) of the Indian General Clauses Act. It appears to us that by virtue of S. 4 (c) the dealer continued to be liable to taxation under the Madras General Sales Tax Act in respect of the disputed turnover at the purchase point. For example, if for some reason he had not been assessed before Act 12 of 1957 came into force, he would have been assessed under; the Madras Act at the purchase point because a liability within the meaning of S. 4(c) would have been incurred by him. To this liability would be attached a right; the right being that he would not be liable to be taxed in respect of any sale of goods which had been the subject-matter of a purchase and taxation under the Madras Act. In other words, he was liable to be assessed under the Madras Act in respect of the purchase of goods but he had also a right not to be taxed again in respect of any sale of the same goods effected by him. Therefore, we repel the first argument of the learned Advocate-General.10. The next question that arises is whether Act 12 of 1957 manifests a different intention. As observed by this Court in State of Punjab v. Mohar Singh, 1955 SCR 893: ((S) AIR 1955 SC 84 ) when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot discern any intention in Act 12 of 1957 to destroy the rights and liabilities acquired or incurred under the Madras General Sales Tax Act. The second schedule reproduced above shows that the intention was to preserve old rights such as registration and licences issued under the old Act. In our opinion, if the Legislature had the intention to override the right attached to the liability under S. 3(5) of the Madras General Sales Tax Act, it would have used more clear and precise words.
### Response:
0
### Explanation:
We may mention that S. 4(c) of the General Clauses Act, 1125, corresponds to S. 6 (c) of the Indian General Clauses Act. It appears to us that by virtue of S. 4 (c) the dealer continued to be liable to taxation under the Madras General Sales Tax Act in respect of the disputed turnover at the purchase point. For example, if for some reason he had not been assessed before Act 12 of 1957 came into force, he would have been assessed under; the Madras Act at the purchase point because a liability within the meaning of S. 4(c) would have been incurred by him. To this liability would be attached a right; the right being that he would not be liable to be taxed in respect of any sale of goods which had been theThe next question that arises is whether Act 12 of 1957 manifests a different intention. As observed by this Court in State of Punjab v. Mohar Singh, 1955 SCR 893: ((S) AIR 1955 SC 84 ) when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot discern any intention in Act 12 of 1957 to destroy the rights and liabilities acquired or incurred under the Madras General Sales Tax Act. The second schedule reproduced above shows that the intention was to preserve old rights such as registration and licences issued under the old Act. In our opinion, if the Legislature had the intention to override the right attached to the liability under S. 3(5) of the Madras General Sales Tax Act, it would have used more clear and precise words.
|
Gujarat Urja Vikas Nigam Ltd Vs. Solar Semiconductor Power Company (India ) Pvt Ltd | be specified. Section 2(62) defines "specified" as "specified by regulations made by the Appropriate Commission or the Authority, as the case may be, under this Act". 31. Section 94 provides that the Appropriate Commission shall be vested with certain powers as are vested in a civil court, only in six specified areas. Under Section 94(1)(g), the Commission has the powers of a civil court in respect of "any other matter which may be prescribed". Under Section 2(52) "prescribed means prescribed by rules made by the Appropriate Government under this Act". 32. Regulations 80 to 82 are instances of such powers specified by the Commission. Regulation 80 has provided for the inherent power of the Commission to the extent of making such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Commission. It has to be borne in mind that such inherent powers are to be exercised notwithstanding only the restrictions on the Commission under the Conduct of Business Regulations, meaning thereby that there cannot be any restrictions in the Conduct of Business Regulations on exercise of inherent powers by the Commission. But the specified inherent powers are not as pervasive a power as available to a court under Section 151 of the Code of Civil Procedure, 1908: "151. Saving of inherent powers of court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the court." However, the Commission is enjoined with powers to issue appropriate orders in the interest of justice and for preventing abuse of process of the Commission, to the extent not otherwise provided for under the Act or Rules. In other words, the inherent power of the Commission is available to it for exercise only in those areas where the Act or Rules are silent. 33. Under Regulation 81, the Commission is competent to adopt a procedure which is at variance with any of the other provisions of the Regulations in case the Commission is of the view that such an exercise is warranted in view of the special circumstances and such special circumstances are to be recorded in writing. However, it is specifically provided under Section 181 that there cannot be a Regulation which is not in conformity with the provisions of the Act or Rules.34. Under Regulation 82, the Commission has powers to deal with any matter or exercise any power under the Act for which no Regulations are framed meaning thereby where something is expressly provided in the Act, the Commission has to deal with it only in accordance with the manner prescribed in the Act. The only leeway available to the Commission is only when the Regulations on proceedings are silent on a specific issue. In other words, in case a specific subject or exercise of power by the Commission on a specific issue is otherwise provided under the Act or Rules, the same has to be exercised by the Commission only taking recourse to that power and in no other manner. To illustrate further, there cannot be any exercise of the inherent power for dealing with any matter which is otherwise specifically provided under the Act. The exercise of power which has the effect of amending the PPA by varying the tariff can only be done as per statutory provisions and not under the inherent power referred to in Regulations 80 to 82. In other words there cannot be any exercise of inherent power by the Commission on an issue which is otherwise dealt with or provided for in the Act or Rules.35. This Court should be specially careful in dealing with matters of exercise of inherent powers when the interest of consumers is at stake. The interest of consumers, as an objective, can be clearly ascertained from the Act. The Preamble of the Act mentions "protecting interest of consumers" and Section 61(d) requires that the interests of the consumers are to be safeguarded when the Appropriate Commission specifies the terms and conditions for determination of tariff. Under Section 64 read with Section 62, determination of tariff is to be made only after considering all suggestions and objections received from the public. Hence, the generic tariff once determined under the statute with notice to the public can be amended only by following the same procedure. Therefore, the approach of this Court ought to be cautious and guarded when the decision has its bearing on the consumers.36. Regulation 85 provides for extension of time. It may be seen that the same is available only in two specified situations - (i) for extension of time prescribed by the Regulations and (ii) extension of time prescribed by the Commission in its order for doing any act. The control period is not something prescribed by the Commission under the Conduct of Business Regulations. The control period is also not an order by the Commission for doing any act. Commissioning of a project is the act to be performed in terms of the obligation under the PPA and that is between the producer and the purchaser, viz., the respondent no.1 and appellant. Hence, the Commission cannot extend the time stipulated under the PPA for doing any act contemplated under the agreement in exercise of its powers under Regulation 85. Therefore, there cannot be a extension of the control period under the inherent powers of the Commission.37. The Commission being a creature of statute cannot assume to itself any powers which are not otherwise conferred on it. In other words, under the guise of exercising its inherent power, as we have already noticed above, the Commission cannot take recourse to exercise of a power, procedure for which is otherwise specifically provided under the Act.38. Extension of control period has been specifically held to be outside the purview of the power of the Commission as per EMCO (supra). | 1[ds]That question is no more res86 (1)(e) deals with promotingcogeneration and generation of electricity from renewable sources of. Therefore, there cannot be any quarrel with regard to the power conferred on the Commission with regard to fixation of tariff for the electricity procured from the generating companies or amendment thereof in the given circumstances.Under Regulation 81, the Commission is competent to adopt a procedure which is at variance with any of the other provisions of the Regulations in case the Commission is of the view that such an exercise is warranted in view of the special circumstances and such special circumstances are to be recorded in writing. However, it is specifically provided under Section 181 that there cannot be a Regulation which is not in conformity with the provisions of the Act or Rules.34. Under Regulation 82, the Commission has powers to deal with any matter or exercise any power under the Act for which no Regulations are framed meaning thereby where something is expressly provided in the Act, the Commission has to deal with it only in accordance with the manner prescribed in the Act. The only leeway available to the Commission is only when the Regulations on proceedings are silent on a specific issue. In other words, in case a specific subject or exercise of power by the Commission on a specific issue is otherwise provided under the Act or Rules, the same has to be exercised by the Commission only taking recourse to that power and in no other manner. To illustrate further, there cannot be any exercise of the inherent power for dealing with any matter which is otherwise specifically provided under the Act. The exercise of power which has the effect of amending the PPA by varying the tariff can only be done as per statutory provisions and not under the inherent power referred to in Regulations 80 to 82. In other words there cannot be any exercise of inherent power by the Commission on an issue which is otherwise dealt with or provided for in the Act or Rules.35. This Court should be specially careful in dealing with matters of exercise of inherent powers when the interest of consumers is at stake. The interest of consumers, as an objective, can be clearly ascertained from the Act. The Preamble of the Act mentions "protecting interest of consumers" and Section 61(d) requires that the interests of the consumers are to be safeguarded when the Appropriate Commission specifies the terms and conditions for determination of tariff. Under Section 64 read with Section 62, determination of tariff is to be made only after considering all suggestions and objections received from the public. Hence, the generic tariff once determined under the statute with notice to the public can be amended only by following the same procedure. Therefore, the approach of this Court ought to be cautious and guarded when the decision has its bearing on the consumers.36. Regulation 85 provides for extension of time. It may be seen that the same is available only in two specified situations(i) for extension of time prescribed by the Regulations and (ii) extension of time prescribed by the Commission in its order for doing any act. The control period is not something prescribed by the Commission under the Conduct of Business Regulations. The control period is also not an order by the Commission for doing any act. Commissioning of a project is the act to be performed in terms of the obligation under the PPA and that is between the producer and the purchaser, viz., the respondent no.1 and appellant. Hence, the Commission cannot extend the time stipulated under the PPA for doing any act contemplated under the agreement in exercise of its powers under Regulation 85. Therefore, there cannot be a extension of the control period under the inherent powers of the Commission.37. The Commission being a creature of statute cannot assume to itself any powers which are not otherwise conferred on it. In other words, under the guise of exercising its inherent power, as we have already noticed above, the Commission cannot take recourse to exercise of a power, procedure for which is otherwise specifically provided under the Act.38. Extension of control period has been specifically held to be outside the purview of the power of the Commission as per EMCO (supra). | 1 | 9,881 | 796 | ### 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:
be specified. Section 2(62) defines "specified" as "specified by regulations made by the Appropriate Commission or the Authority, as the case may be, under this Act". 31. Section 94 provides that the Appropriate Commission shall be vested with certain powers as are vested in a civil court, only in six specified areas. Under Section 94(1)(g), the Commission has the powers of a civil court in respect of "any other matter which may be prescribed". Under Section 2(52) "prescribed means prescribed by rules made by the Appropriate Government under this Act". 32. Regulations 80 to 82 are instances of such powers specified by the Commission. Regulation 80 has provided for the inherent power of the Commission to the extent of making such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Commission. It has to be borne in mind that such inherent powers are to be exercised notwithstanding only the restrictions on the Commission under the Conduct of Business Regulations, meaning thereby that there cannot be any restrictions in the Conduct of Business Regulations on exercise of inherent powers by the Commission. But the specified inherent powers are not as pervasive a power as available to a court under Section 151 of the Code of Civil Procedure, 1908: "151. Saving of inherent powers of court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the court." However, the Commission is enjoined with powers to issue appropriate orders in the interest of justice and for preventing abuse of process of the Commission, to the extent not otherwise provided for under the Act or Rules. In other words, the inherent power of the Commission is available to it for exercise only in those areas where the Act or Rules are silent. 33. Under Regulation 81, the Commission is competent to adopt a procedure which is at variance with any of the other provisions of the Regulations in case the Commission is of the view that such an exercise is warranted in view of the special circumstances and such special circumstances are to be recorded in writing. However, it is specifically provided under Section 181 that there cannot be a Regulation which is not in conformity with the provisions of the Act or Rules.34. Under Regulation 82, the Commission has powers to deal with any matter or exercise any power under the Act for which no Regulations are framed meaning thereby where something is expressly provided in the Act, the Commission has to deal with it only in accordance with the manner prescribed in the Act. The only leeway available to the Commission is only when the Regulations on proceedings are silent on a specific issue. In other words, in case a specific subject or exercise of power by the Commission on a specific issue is otherwise provided under the Act or Rules, the same has to be exercised by the Commission only taking recourse to that power and in no other manner. To illustrate further, there cannot be any exercise of the inherent power for dealing with any matter which is otherwise specifically provided under the Act. The exercise of power which has the effect of amending the PPA by varying the tariff can only be done as per statutory provisions and not under the inherent power referred to in Regulations 80 to 82. In other words there cannot be any exercise of inherent power by the Commission on an issue which is otherwise dealt with or provided for in the Act or Rules.35. This Court should be specially careful in dealing with matters of exercise of inherent powers when the interest of consumers is at stake. The interest of consumers, as an objective, can be clearly ascertained from the Act. The Preamble of the Act mentions "protecting interest of consumers" and Section 61(d) requires that the interests of the consumers are to be safeguarded when the Appropriate Commission specifies the terms and conditions for determination of tariff. Under Section 64 read with Section 62, determination of tariff is to be made only after considering all suggestions and objections received from the public. Hence, the generic tariff once determined under the statute with notice to the public can be amended only by following the same procedure. Therefore, the approach of this Court ought to be cautious and guarded when the decision has its bearing on the consumers.36. Regulation 85 provides for extension of time. It may be seen that the same is available only in two specified situations - (i) for extension of time prescribed by the Regulations and (ii) extension of time prescribed by the Commission in its order for doing any act. The control period is not something prescribed by the Commission under the Conduct of Business Regulations. The control period is also not an order by the Commission for doing any act. Commissioning of a project is the act to be performed in terms of the obligation under the PPA and that is between the producer and the purchaser, viz., the respondent no.1 and appellant. Hence, the Commission cannot extend the time stipulated under the PPA for doing any act contemplated under the agreement in exercise of its powers under Regulation 85. Therefore, there cannot be a extension of the control period under the inherent powers of the Commission.37. The Commission being a creature of statute cannot assume to itself any powers which are not otherwise conferred on it. In other words, under the guise of exercising its inherent power, as we have already noticed above, the Commission cannot take recourse to exercise of a power, procedure for which is otherwise specifically provided under the Act.38. Extension of control period has been specifically held to be outside the purview of the power of the Commission as per EMCO (supra).
### Response:
1
### Explanation:
That question is no more res86 (1)(e) deals with promotingcogeneration and generation of electricity from renewable sources of. Therefore, there cannot be any quarrel with regard to the power conferred on the Commission with regard to fixation of tariff for the electricity procured from the generating companies or amendment thereof in the given circumstances.Under Regulation 81, the Commission is competent to adopt a procedure which is at variance with any of the other provisions of the Regulations in case the Commission is of the view that such an exercise is warranted in view of the special circumstances and such special circumstances are to be recorded in writing. However, it is specifically provided under Section 181 that there cannot be a Regulation which is not in conformity with the provisions of the Act or Rules.34. Under Regulation 82, the Commission has powers to deal with any matter or exercise any power under the Act for which no Regulations are framed meaning thereby where something is expressly provided in the Act, the Commission has to deal with it only in accordance with the manner prescribed in the Act. The only leeway available to the Commission is only when the Regulations on proceedings are silent on a specific issue. In other words, in case a specific subject or exercise of power by the Commission on a specific issue is otherwise provided under the Act or Rules, the same has to be exercised by the Commission only taking recourse to that power and in no other manner. To illustrate further, there cannot be any exercise of the inherent power for dealing with any matter which is otherwise specifically provided under the Act. The exercise of power which has the effect of amending the PPA by varying the tariff can only be done as per statutory provisions and not under the inherent power referred to in Regulations 80 to 82. In other words there cannot be any exercise of inherent power by the Commission on an issue which is otherwise dealt with or provided for in the Act or Rules.35. This Court should be specially careful in dealing with matters of exercise of inherent powers when the interest of consumers is at stake. The interest of consumers, as an objective, can be clearly ascertained from the Act. The Preamble of the Act mentions "protecting interest of consumers" and Section 61(d) requires that the interests of the consumers are to be safeguarded when the Appropriate Commission specifies the terms and conditions for determination of tariff. Under Section 64 read with Section 62, determination of tariff is to be made only after considering all suggestions and objections received from the public. Hence, the generic tariff once determined under the statute with notice to the public can be amended only by following the same procedure. Therefore, the approach of this Court ought to be cautious and guarded when the decision has its bearing on the consumers.36. Regulation 85 provides for extension of time. It may be seen that the same is available only in two specified situations(i) for extension of time prescribed by the Regulations and (ii) extension of time prescribed by the Commission in its order for doing any act. The control period is not something prescribed by the Commission under the Conduct of Business Regulations. The control period is also not an order by the Commission for doing any act. Commissioning of a project is the act to be performed in terms of the obligation under the PPA and that is between the producer and the purchaser, viz., the respondent no.1 and appellant. Hence, the Commission cannot extend the time stipulated under the PPA for doing any act contemplated under the agreement in exercise of its powers under Regulation 85. Therefore, there cannot be a extension of the control period under the inherent powers of the Commission.37. The Commission being a creature of statute cannot assume to itself any powers which are not otherwise conferred on it. In other words, under the guise of exercising its inherent power, as we have already noticed above, the Commission cannot take recourse to exercise of a power, procedure for which is otherwise specifically provided under the Act.38. Extension of control period has been specifically held to be outside the purview of the power of the Commission as per EMCO (supra).
|
Union Of India And Ors Vs. Keshab Lal Roy And Ors | mitigate the hardship to the said retrenched employees that a scheme was evolved for providing employment to them. In the letter dated 17th March, 1978 in paragraph 2 it is stated that it has been decided to appoint such employees `as fresh entrants by offering them jobs in the categories for which they are found suitable. A screening committee was set up for the purpose of examining the suitability of these employees. It was clarified that these persons were to be considered for appointment, and not for absorption. Letters of appointment were to be issued only after suitability and medical test and clause V of the letter dated 17th March, 1978 further stipulated that these persons like the respondents were to ``be treated as having been recruited for the first time on the date of their appointment on the Railways as temporary employees. The pay of such employees was to be fixed at the minimum of the relevant revised scales. 8. From the aforesaid letter it clearly follows that the railway authorities did not intend to give any benefit of past service to the newly recruited erstwhile employees of the ASL Railways. It is for this reason that on their selection they were to be regarded as ``appointed and not ``absorbed and their pay was also to be fixed at the minimum of the relevant scales. To put the matter beyond doubt clause-v of the letter clearly mentions that these employees were to be treated as being recruited for the first time ``on the date of their appointment on the Railway as temporary employees. Even though in clause-ix of the said letter dated 17th March, 1978 it was stated that the service of these newly appointed employees will be pensionable, the letter contained no stipulation to the effect that the service rendered by these employees in the erstwhile private company would be taken into consideration for the purpose of paying them pension. 9. Faced with the situation that the terms of appointment did not entitle the respondents to claim the benefit of the past service to be counted for pension, the main emphasis on behalf of the respondents was that they were being discriminated against. In short the submission was that ASL Railways was a privately owned light railway like the K.F. Railways; the erstwhile staff of the K.F. Railways, on their appointment in the Indian Railways, pursuant to the decision taken in this behalf on 4th November, 1969, were allowed their entire past service to be counted for pensionary benefit and this being so, there was no reason as to why the case of the respondents should be dealt with differently. 10. This contention can be best dealt with by referring to letter dated 9th September, 1994 written by the then Minister of Railways to a Member of Parliament a note annexed thereto. It appears that a representation was sent to the Minister on behalf of the respondents herein in which it was contended that the case of the respondents and that of the erstwhile K.F. Railways was similar and, therefore, the respondents should also be granted pensionary benefits counting their past service. Reply dated 9th September, 1994 was sent to the Member of Parliament in which it was stated that a note explaining the position of the case was enclosed. The relevant portion of the said note accompanying the aforesaid letter of the Minister is as follows:- ``Shri K.L. Roy and other have pleaded for grant of pensionary benefits on the analogy of similar dispensation given to staff of Kalighat- Falta Railway (KF) under Mcleod and Company.K.F. Railways was not taken over as a going concern but on the basis of outright purchase of assets without any liability. It was closed down on and from 1.4.1957 and their employees were appointed afresh on ex-gratia grounds. Some of these employees joined Ahmed Katwa, Bankura Damodar River, and Burdwan Katwa Light Railways under same company viz. Mcleod, which were subsequently taken over as a going concern by the Indian Railways with their employees enjoying benefits of their earlier continuous service. A peculiar situation resulted from these changes. While those rendered surplus from K.F. Railways under the control of Mcleod Company and taken as fresh entrants on Indian Railways could not count their past service, those who joined AK, BK, BDR under the same company, on their being taken over, had their past service on Light Railways counted for pensionary benefits. To eliminate this discrimination, it was decided on 4.11.1969 that K.F. Light Railway Staff who were earlier treated as fresh entants, should also be permitted to count their entire service on K.F. Railways for pensionary benefits.It is evident from the above that the cases of employees of K.F. and A.S. Light Railway stand on different footing. 11. The facts stated in the aforesaid note clearly bring out the reason as to why the erstwhile employees of K.F. Railways were given the benefit of counting their past service in the Indian Railways for the purpose of pensionary benefits. This also shows that the respondents and the employees of the erstwhile K.F. Railways were not similarly situated and, therefore, there is no merit in the contention that the respondents had been discriminated. 12. Mrs. Issar then sought to contend that even in the case of ASL Railways there were some employees who had joined other companies which were then taken over by the Indian Railways and the past service of those employees was being counted for pensionary benefits. This contention was not raised before the Tribunal. No facts in this behalf are stated even in the application which was filed before the Tribunal. Had this contention been raised in the application filed before the Tribunal then the appellants herein would have had an opportunity of giving a reply. There has been no adjudication by the Tribunal as to whether the facts so alleged are correct or not. This contention cannot be allowed to be raised in this court for the first time. | 1[ds]It was not in dispute that on their appointment in the Indian Railways the employees of K.F. Railways were given the benefit of their past service and, it was contended, that there was no valid reason as to why the same benefits should not have been extended to the respondents. In short the submission was that all the ex-employees of different private railways were similarly situate and on their appointment in the Eastern Railways the earlier service rendered by them, in the erstwhile private companies should be taken into consideration for the purpose of pension.From the aforesaid letter it clearly follows that the railway authorities did not intend to give any benefit of past service to the newly recruited erstwhile employees of the ASL Railways. It is for this reason that on their selection they were to be regarded as ``appointed and not ``absorbed and their pay was also to be fixed at the minimum of the relevant scales.The facts stated in the aforesaid note clearly bring out the reason as to why the erstwhile employees of K.F. Railways were given the benefit of counting their past service in the Indian Railways for the purpose of pensionary benefits. This also shows that the respondents and the employees of the erstwhile K.F. Railways were not similarly situated and, therefore, there is no merit in the contention that the respondents had beencontention was not raised before the Tribunal. No facts in this behalf are stated even in the application which was filed before the Tribunal. Had this contention been raised in the application filed before the Tribunal then the appellants herein would have had an opportunity of giving a reply. There has been no adjudication by the Tribunal as to whether the facts so alleged are correct or not. This contention cannot be allowed to be raised in this court for the first time. | 1 | 1,923 | 335 | ### 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:
mitigate the hardship to the said retrenched employees that a scheme was evolved for providing employment to them. In the letter dated 17th March, 1978 in paragraph 2 it is stated that it has been decided to appoint such employees `as fresh entrants by offering them jobs in the categories for which they are found suitable. A screening committee was set up for the purpose of examining the suitability of these employees. It was clarified that these persons were to be considered for appointment, and not for absorption. Letters of appointment were to be issued only after suitability and medical test and clause V of the letter dated 17th March, 1978 further stipulated that these persons like the respondents were to ``be treated as having been recruited for the first time on the date of their appointment on the Railways as temporary employees. The pay of such employees was to be fixed at the minimum of the relevant revised scales. 8. From the aforesaid letter it clearly follows that the railway authorities did not intend to give any benefit of past service to the newly recruited erstwhile employees of the ASL Railways. It is for this reason that on their selection they were to be regarded as ``appointed and not ``absorbed and their pay was also to be fixed at the minimum of the relevant scales. To put the matter beyond doubt clause-v of the letter clearly mentions that these employees were to be treated as being recruited for the first time ``on the date of their appointment on the Railway as temporary employees. Even though in clause-ix of the said letter dated 17th March, 1978 it was stated that the service of these newly appointed employees will be pensionable, the letter contained no stipulation to the effect that the service rendered by these employees in the erstwhile private company would be taken into consideration for the purpose of paying them pension. 9. Faced with the situation that the terms of appointment did not entitle the respondents to claim the benefit of the past service to be counted for pension, the main emphasis on behalf of the respondents was that they were being discriminated against. In short the submission was that ASL Railways was a privately owned light railway like the K.F. Railways; the erstwhile staff of the K.F. Railways, on their appointment in the Indian Railways, pursuant to the decision taken in this behalf on 4th November, 1969, were allowed their entire past service to be counted for pensionary benefit and this being so, there was no reason as to why the case of the respondents should be dealt with differently. 10. This contention can be best dealt with by referring to letter dated 9th September, 1994 written by the then Minister of Railways to a Member of Parliament a note annexed thereto. It appears that a representation was sent to the Minister on behalf of the respondents herein in which it was contended that the case of the respondents and that of the erstwhile K.F. Railways was similar and, therefore, the respondents should also be granted pensionary benefits counting their past service. Reply dated 9th September, 1994 was sent to the Member of Parliament in which it was stated that a note explaining the position of the case was enclosed. The relevant portion of the said note accompanying the aforesaid letter of the Minister is as follows:- ``Shri K.L. Roy and other have pleaded for grant of pensionary benefits on the analogy of similar dispensation given to staff of Kalighat- Falta Railway (KF) under Mcleod and Company.K.F. Railways was not taken over as a going concern but on the basis of outright purchase of assets without any liability. It was closed down on and from 1.4.1957 and their employees were appointed afresh on ex-gratia grounds. Some of these employees joined Ahmed Katwa, Bankura Damodar River, and Burdwan Katwa Light Railways under same company viz. Mcleod, which were subsequently taken over as a going concern by the Indian Railways with their employees enjoying benefits of their earlier continuous service. A peculiar situation resulted from these changes. While those rendered surplus from K.F. Railways under the control of Mcleod Company and taken as fresh entrants on Indian Railways could not count their past service, those who joined AK, BK, BDR under the same company, on their being taken over, had their past service on Light Railways counted for pensionary benefits. To eliminate this discrimination, it was decided on 4.11.1969 that K.F. Light Railway Staff who were earlier treated as fresh entants, should also be permitted to count their entire service on K.F. Railways for pensionary benefits.It is evident from the above that the cases of employees of K.F. and A.S. Light Railway stand on different footing. 11. The facts stated in the aforesaid note clearly bring out the reason as to why the erstwhile employees of K.F. Railways were given the benefit of counting their past service in the Indian Railways for the purpose of pensionary benefits. This also shows that the respondents and the employees of the erstwhile K.F. Railways were not similarly situated and, therefore, there is no merit in the contention that the respondents had been discriminated. 12. Mrs. Issar then sought to contend that even in the case of ASL Railways there were some employees who had joined other companies which were then taken over by the Indian Railways and the past service of those employees was being counted for pensionary benefits. This contention was not raised before the Tribunal. No facts in this behalf are stated even in the application which was filed before the Tribunal. Had this contention been raised in the application filed before the Tribunal then the appellants herein would have had an opportunity of giving a reply. There has been no adjudication by the Tribunal as to whether the facts so alleged are correct or not. This contention cannot be allowed to be raised in this court for the first time.
### Response:
1
### Explanation:
It was not in dispute that on their appointment in the Indian Railways the employees of K.F. Railways were given the benefit of their past service and, it was contended, that there was no valid reason as to why the same benefits should not have been extended to the respondents. In short the submission was that all the ex-employees of different private railways were similarly situate and on their appointment in the Eastern Railways the earlier service rendered by them, in the erstwhile private companies should be taken into consideration for the purpose of pension.From the aforesaid letter it clearly follows that the railway authorities did not intend to give any benefit of past service to the newly recruited erstwhile employees of the ASL Railways. It is for this reason that on their selection they were to be regarded as ``appointed and not ``absorbed and their pay was also to be fixed at the minimum of the relevant scales.The facts stated in the aforesaid note clearly bring out the reason as to why the erstwhile employees of K.F. Railways were given the benefit of counting their past service in the Indian Railways for the purpose of pensionary benefits. This also shows that the respondents and the employees of the erstwhile K.F. Railways were not similarly situated and, therefore, there is no merit in the contention that the respondents had beencontention was not raised before the Tribunal. No facts in this behalf are stated even in the application which was filed before the Tribunal. Had this contention been raised in the application filed before the Tribunal then the appellants herein would have had an opportunity of giving a reply. There has been no adjudication by the Tribunal as to whether the facts so alleged are correct or not. This contention cannot be allowed to be raised in this court for the first time.
|
UMA SHANKAR GOPALIKA Vs. STATE OF BIHAR | the purchase of vehicles under hire purchase scheme and the complainant who was desirous of purchasing a truck approached the accused persons for financial assistance in the year 1991 whereupon the appellant and his brother Vijay Shanker agreed to finance the purchase of truck by the complainant on Hire Purchase Agreement. Pursuant to the aforesaid agreement, the complainant made over his part of the investment by paying a sum of Rs. 1,60,000/- to the appellant. He also handed over various documents to the appellant. Thereafter, on payment of balance price of the vehicle to the dealer by the financer, chassis was made over to the complainant, who spent a sum of Rs. one lakh for building body of the truck whereafter the truck started plying. The complainant could repay only three installments to the financer. In the meantime on 30.11.1991 the truck in question loaded with goods became traceless, for which the matter was reported to the police as well as the insurance company. The complainant submitted a claim before the insurance company to the tune of Rs. 4,20,000/-. According to the complainant thereafter on 20.7.1995 the appellant called upon him at his Sindhri house and induced him to permit the appellant to handle the insurance claim, which request was acceded to by the complainant on assurances given by the appellant that when the claim of Rs. 4,20,000/- is received from insurance company, out of that a sum of Rs. 2,60,000/- which the complainant was entitled to receive would be paid to him. Upon this assurance a complaint was made by the accused persons before the West Bengal Consumers Grievances Redressal Forum in which the complainant was also made a party and by order dated 23rd July, 1996 the entire claim was allowed and insurance company was directed to pay Rs. 4,20,000/- with interest accrued thereon and pursuant thereto insurance company issued a cheque for Rs. 4,20,000/- in favour of the Corporation which was encashed by the appellant but out of the said amount a sum of Rs. 2,60,000/- was never paid to the complainant in spite of assurances given to him by the appellant which necessitated filing of the complaint for prosecution of the accused persons. Upon filing of the complaint, the Magistrate did not entertain the same but directed the police to register a case and investigate. Pursuant to said direction, the police registered a first information report which was numbered as Sindhri P.S. Case No.23/98 dated 3.3.1998 under Sections 420/120B of the Indian Penal Code against all the aforesaid three accused persons including the appellant. 4. Challenging the first information report, the appellant moved the High Court on 11.3.1998 by filing a petition under Section 482 of the Criminal Procedure Code for quashing the first information report and the consequent police investigation in which at the time of issuing notice police investigation was stayed but ultimately by the impugned order, the High Court dismissed the application whereafter a petition for grant of special leave to appeal was filed before this Court in which on 6.10.1988 leave was granted and police investigation was stayed. By virtue of the interim order passed by the High Court as well as this Court the police investigation has remained stayed for a period of six years and the same could not proceed further. 5. Now the question to be examined by us is as to whether on the facts disclosed in the petition of complaint any criminal offence whatsoever is made out much less offences under Section 420/120B of the Indian Penal Code. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs. 4,20,000/-, they would pay a sum of Rs. 2,60,000/- to the complainant out of that but the same has never been paid. Apart from that there is no other allegation in the petition of complaint. It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the Consumer Forum in relation to claim of Rs. 4,20,000/-. It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is condition precedent for an offence under Section 420 of the Indian Penal Code. 6. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120B of the Indian Penal Code and the present case is a case of purely civil dispute between the parties for which remedy lies before a Civil Court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of Court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 of the Criminal Procedure Code which it has erroneously refused. It appears that though the complaint was filed against three persons one of whom Vijay Shankar has died as stated above, there is another accused Gopalika Financial Corporation Limited which has neither moved the High Court nor this Court for quashing the first information report relating to it. But in view of our conclusion that the first information report does not disclose any offence whatsoever and the prosecution is liable to be quashed, we are of the view that it would be just and expedient to quash prosecution launched against the aforesaid Corporation as well. | 1[ds]It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is condition precedent for an offence under Section 420 of the Indian Penal Code.6. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120B of the Indian Penal Code and the present case is a case of purely civil dispute between the parties for which remedy lies before a Civil Court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of Court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 of the Criminal Procedure Code which it has erroneously refused. It appears that though the complaint was filed against three persons one of whom Vijay Shankar has died as stated above, there is another accused Gopalika Financial Corporation Limited which has neither moved the High Court nor this Court for quashing the first information report relating to it. But in view of our conclusion that the first information report does not disclose any offence whatsoever and the prosecution is liable to be quashed, we are of the view that it would be just and expedient to quash prosecution launched against the aforesaid Corporation as well. | 1 | 1,227 | 324 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
the purchase of vehicles under hire purchase scheme and the complainant who was desirous of purchasing a truck approached the accused persons for financial assistance in the year 1991 whereupon the appellant and his brother Vijay Shanker agreed to finance the purchase of truck by the complainant on Hire Purchase Agreement. Pursuant to the aforesaid agreement, the complainant made over his part of the investment by paying a sum of Rs. 1,60,000/- to the appellant. He also handed over various documents to the appellant. Thereafter, on payment of balance price of the vehicle to the dealer by the financer, chassis was made over to the complainant, who spent a sum of Rs. one lakh for building body of the truck whereafter the truck started plying. The complainant could repay only three installments to the financer. In the meantime on 30.11.1991 the truck in question loaded with goods became traceless, for which the matter was reported to the police as well as the insurance company. The complainant submitted a claim before the insurance company to the tune of Rs. 4,20,000/-. According to the complainant thereafter on 20.7.1995 the appellant called upon him at his Sindhri house and induced him to permit the appellant to handle the insurance claim, which request was acceded to by the complainant on assurances given by the appellant that when the claim of Rs. 4,20,000/- is received from insurance company, out of that a sum of Rs. 2,60,000/- which the complainant was entitled to receive would be paid to him. Upon this assurance a complaint was made by the accused persons before the West Bengal Consumers Grievances Redressal Forum in which the complainant was also made a party and by order dated 23rd July, 1996 the entire claim was allowed and insurance company was directed to pay Rs. 4,20,000/- with interest accrued thereon and pursuant thereto insurance company issued a cheque for Rs. 4,20,000/- in favour of the Corporation which was encashed by the appellant but out of the said amount a sum of Rs. 2,60,000/- was never paid to the complainant in spite of assurances given to him by the appellant which necessitated filing of the complaint for prosecution of the accused persons. Upon filing of the complaint, the Magistrate did not entertain the same but directed the police to register a case and investigate. Pursuant to said direction, the police registered a first information report which was numbered as Sindhri P.S. Case No.23/98 dated 3.3.1998 under Sections 420/120B of the Indian Penal Code against all the aforesaid three accused persons including the appellant. 4. Challenging the first information report, the appellant moved the High Court on 11.3.1998 by filing a petition under Section 482 of the Criminal Procedure Code for quashing the first information report and the consequent police investigation in which at the time of issuing notice police investigation was stayed but ultimately by the impugned order, the High Court dismissed the application whereafter a petition for grant of special leave to appeal was filed before this Court in which on 6.10.1988 leave was granted and police investigation was stayed. By virtue of the interim order passed by the High Court as well as this Court the police investigation has remained stayed for a period of six years and the same could not proceed further. 5. Now the question to be examined by us is as to whether on the facts disclosed in the petition of complaint any criminal offence whatsoever is made out much less offences under Section 420/120B of the Indian Penal Code. The only allegation in the complaint petition against the accused persons is that they assured the complainant that when they receive the insurance claim amounting to Rs. 4,20,000/-, they would pay a sum of Rs. 2,60,000/- to the complainant out of that but the same has never been paid. Apart from that there is no other allegation in the petition of complaint. It was pointed out on behalf of the complainant that the accused fraudulently persuaded the complainant to agree so that the accused persons may take steps for moving the Consumer Forum in relation to claim of Rs. 4,20,000/-. It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is condition precedent for an offence under Section 420 of the Indian Penal Code. 6. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120B of the Indian Penal Code and the present case is a case of purely civil dispute between the parties for which remedy lies before a Civil Court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of Court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 of the Criminal Procedure Code which it has erroneously refused. It appears that though the complaint was filed against three persons one of whom Vijay Shankar has died as stated above, there is another accused Gopalika Financial Corporation Limited which has neither moved the High Court nor this Court for quashing the first information report relating to it. But in view of our conclusion that the first information report does not disclose any offence whatsoever and the prosecution is liable to be quashed, we are of the view that it would be just and expedient to quash prosecution launched against the aforesaid Corporation as well.
### Response:
1
### Explanation:
It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is condition precedent for an offence under Section 420 of the Indian Penal Code.6. In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120B of the Indian Penal Code and the present case is a case of purely civil dispute between the parties for which remedy lies before a Civil Court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of Court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 of the Criminal Procedure Code which it has erroneously refused. It appears that though the complaint was filed against three persons one of whom Vijay Shankar has died as stated above, there is another accused Gopalika Financial Corporation Limited which has neither moved the High Court nor this Court for quashing the first information report relating to it. But in view of our conclusion that the first information report does not disclose any offence whatsoever and the prosecution is liable to be quashed, we are of the view that it would be just and expedient to quash prosecution launched against the aforesaid Corporation as well.
|
Nagar Mahapalika, Meerut Vs. M/S.Prem Nath Monga Bottlerspvt.Ltd. And Anr | meaning of the expression "consumption, use or sale therein" within alone attracts the levy within the meaning of Section 128(1)(viii) of the Act and (2) that in any event, the said empty bottles are covered by the exemption clause contained in the said notification and in particular by Entry 13 thereof. Both the contentions were rejected by the appellant whereupon the respondent filed an appeal the learned District Judge under Section 472 of the Act. The learned District Judge upheld the contention of the appellant, which led the appellant-Corporation to approach the High Court by way of a writ petition. The High Court did not go into first of the two contentions mentioned above. It dismissed the writ petition upholding the second contention urged by the respondent 3. The notification dated 4-1-1975 appears to be in two parts. The first part mentions the articles subject to entry tax. They are as many as 190 entries (according to the copy placed before us). The second part contains a list of articles which are exempt from octroi and this part contains 37 entries. Entry 40 of the taxable items (first part) mentions "aerated water, cold drink of all kinds" among other goods. The entry reads. "Lime-juice and lime cordid (sic) gas of all kinds and aerated water, cold drinks of all kinds and sweetened milk." 4. Entry 13 of the second part (exempted articles) reads "Entry milk cans, mineral water bottles, kerosene oil tins and drums, gas cylinders, wine bottles and drums and gunny bags if imported for being refilled with commodities for which they are in ordinary use." * 5. The contention of the respondent which has been accepted by the High Court is that the words "mineral water bottles" in Entry 13 of the exempted articles are the empty bottles of "aerated water (and) cold drinks of all kinds" mentioned in Entry 40 of the taxable articles. It is pointed out that "mineral water" is not found in any of the taxable entries and that the said expression was contemplated as referring to aerated waters and cold drinks. It is submitted that in the year 1975, when the said notification was issued, mineral water as in now understood was not in use at all. On the other hand, the contention of the appellant-Corporation was that "mineral water" and "aerated water (and) cold drinks of all kinds" are two distinct articles as understood in common parlance and in the commercial world by people who deal in them. The submission is that the mineral water can never be understood as comprising either aerated water or cold drinks and, therefore, the bottles in question are not exempted under Entry 13 of the exempted articles. It is also brought to our notice by learned counsel for both the parties that since 1987, the relevant entries have undergone a change and that this question would not arise after the year 1987. 6. While we agree with the learned counsel for the appellant-Corporation that "mineral water" and "aerated water/cold drinks" are different and distinct articles, whether in common parlance or in the commercial parlance, we are not inclined to interfere in the matter in view of the following findings recorded by the learned Single Judge "In the list of exemptions drawn up in the year 1956 at Item 15 there was an entry corresponding to Entry 13 which runs as followsEmpty milk cans, mineral water bottles, kerosene oil tins and drums, gas cylinder, wine bottles and drums and gunny bags if imported for being refilled with the commodities for which they are in ordinary use.Judicial notice can be taken of the fact that there are no natural waters found within the Meerut Corporation limits. When the entry of mineral water was made mineral water was not prepared artificially in the year 1956. Thus the above entry in 1956 also could not have contemplated mineral water as the learned counsel for the Corporation would have the court understand the term. In the circumstances, the meaning suggested by the counsel for the Company that mineral water be held to include efforscent (effervescent ?) drinks, should be acceptedThe Corporation admits that Double Seven prepared by the Company is an aerated drink which means that it is an efforscent (effervescent ?) drink and it would be a mineral waterThus the mineral water bottled by the Company would be taxable under Item 138 of the Seventh Schedule and it can only escape octroi if it is shown that it is to be found in the list of exempted articles I hold that the empty Double Seven bottles being bottled by mineral water are exempted under Entry 15 of the list of exemption from octroi." * 7. The decision of the High Court was rendered on 13-1-1983. It may be noted that the learned District Judge was also of the same opinion. We are inclined to presume that the High Court and the learned District Judge were aware of the factual situation obtaining in that State both in 1956 and in 1975 and that at this distance of time, it would not be proper and advisable to interfere with their opinion. They have pointed out that the said notification of 1975 was preceded by a notification of 1956 and that in 1956 mineral water as we know today was not known in commercial circles and, therefore, when the notification used the expression "mineral water", it meant aerated water or the cold drinks. This course we are adopting also because it is stated that after 1987 this question would not arise. 8. In view of the above, it is not necessary for us to go into the question whether the entry of empty bottles for the purpose of being filled with cold drinks/aerated water constitutes use within the meaning of the expression "consumption, use or sale therein" occurring in Section 128(1)(viii) of the Act or for that matter in Entry 52 of List II of the Seventh Schedule to the Constitution of India. | 0[ds]6. While we agree with the learned counsel for the appellant-Corporation that "mineral water" and "aerated water/cold drinks" are different and distinct articles, whether in common parlance or in the commercial parlance, we are not inclined to interfere in the matter in view of the following findings recorded by the learned SingleThe decision of the High Court was rendered on 13-1-1983. It may be noted that the learned District Judge was also of the same opinion. We are inclined to presume that the High Court and the learned District Judge were aware of the factual situation obtaining in that State both in 1956 and in 1975 and that at this distance of time, it would not be proper and advisable to interfere with their opinion. They have pointed out that the said notification of 1975 was preceded by a notification of 1956 and that in 1956 mineral water as we know today was not known in commercial circles and, therefore, when the notification used the expression "mineral water", it meant aerated water or the cold drinks. This course we are adopting also because it is stated that after 1987 this question would notIn view of the above, it is not necessary for us to go into the question whetherthe entry of empty bottles for the purpose of being filled with cold drinks/aerated water constitutes use within the meaning of the expression "consumption, use or sale therein" occurring in Section 128(1)(viii) of theAct or for that matter in Entry 52 of List II of the Seventh Schedule to the Constitution of | 0 | 1,425 | 291 | ### 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:
meaning of the expression "consumption, use or sale therein" within alone attracts the levy within the meaning of Section 128(1)(viii) of the Act and (2) that in any event, the said empty bottles are covered by the exemption clause contained in the said notification and in particular by Entry 13 thereof. Both the contentions were rejected by the appellant whereupon the respondent filed an appeal the learned District Judge under Section 472 of the Act. The learned District Judge upheld the contention of the appellant, which led the appellant-Corporation to approach the High Court by way of a writ petition. The High Court did not go into first of the two contentions mentioned above. It dismissed the writ petition upholding the second contention urged by the respondent 3. The notification dated 4-1-1975 appears to be in two parts. The first part mentions the articles subject to entry tax. They are as many as 190 entries (according to the copy placed before us). The second part contains a list of articles which are exempt from octroi and this part contains 37 entries. Entry 40 of the taxable items (first part) mentions "aerated water, cold drink of all kinds" among other goods. The entry reads. "Lime-juice and lime cordid (sic) gas of all kinds and aerated water, cold drinks of all kinds and sweetened milk." 4. Entry 13 of the second part (exempted articles) reads "Entry milk cans, mineral water bottles, kerosene oil tins and drums, gas cylinders, wine bottles and drums and gunny bags if imported for being refilled with commodities for which they are in ordinary use." * 5. The contention of the respondent which has been accepted by the High Court is that the words "mineral water bottles" in Entry 13 of the exempted articles are the empty bottles of "aerated water (and) cold drinks of all kinds" mentioned in Entry 40 of the taxable articles. It is pointed out that "mineral water" is not found in any of the taxable entries and that the said expression was contemplated as referring to aerated waters and cold drinks. It is submitted that in the year 1975, when the said notification was issued, mineral water as in now understood was not in use at all. On the other hand, the contention of the appellant-Corporation was that "mineral water" and "aerated water (and) cold drinks of all kinds" are two distinct articles as understood in common parlance and in the commercial world by people who deal in them. The submission is that the mineral water can never be understood as comprising either aerated water or cold drinks and, therefore, the bottles in question are not exempted under Entry 13 of the exempted articles. It is also brought to our notice by learned counsel for both the parties that since 1987, the relevant entries have undergone a change and that this question would not arise after the year 1987. 6. While we agree with the learned counsel for the appellant-Corporation that "mineral water" and "aerated water/cold drinks" are different and distinct articles, whether in common parlance or in the commercial parlance, we are not inclined to interfere in the matter in view of the following findings recorded by the learned Single Judge "In the list of exemptions drawn up in the year 1956 at Item 15 there was an entry corresponding to Entry 13 which runs as followsEmpty milk cans, mineral water bottles, kerosene oil tins and drums, gas cylinder, wine bottles and drums and gunny bags if imported for being refilled with the commodities for which they are in ordinary use.Judicial notice can be taken of the fact that there are no natural waters found within the Meerut Corporation limits. When the entry of mineral water was made mineral water was not prepared artificially in the year 1956. Thus the above entry in 1956 also could not have contemplated mineral water as the learned counsel for the Corporation would have the court understand the term. In the circumstances, the meaning suggested by the counsel for the Company that mineral water be held to include efforscent (effervescent ?) drinks, should be acceptedThe Corporation admits that Double Seven prepared by the Company is an aerated drink which means that it is an efforscent (effervescent ?) drink and it would be a mineral waterThus the mineral water bottled by the Company would be taxable under Item 138 of the Seventh Schedule and it can only escape octroi if it is shown that it is to be found in the list of exempted articles I hold that the empty Double Seven bottles being bottled by mineral water are exempted under Entry 15 of the list of exemption from octroi." * 7. The decision of the High Court was rendered on 13-1-1983. It may be noted that the learned District Judge was also of the same opinion. We are inclined to presume that the High Court and the learned District Judge were aware of the factual situation obtaining in that State both in 1956 and in 1975 and that at this distance of time, it would not be proper and advisable to interfere with their opinion. They have pointed out that the said notification of 1975 was preceded by a notification of 1956 and that in 1956 mineral water as we know today was not known in commercial circles and, therefore, when the notification used the expression "mineral water", it meant aerated water or the cold drinks. This course we are adopting also because it is stated that after 1987 this question would not arise. 8. In view of the above, it is not necessary for us to go into the question whether the entry of empty bottles for the purpose of being filled with cold drinks/aerated water constitutes use within the meaning of the expression "consumption, use or sale therein" occurring in Section 128(1)(viii) of the Act or for that matter in Entry 52 of List II of the Seventh Schedule to the Constitution of India.
### Response:
0
### Explanation:
6. While we agree with the learned counsel for the appellant-Corporation that "mineral water" and "aerated water/cold drinks" are different and distinct articles, whether in common parlance or in the commercial parlance, we are not inclined to interfere in the matter in view of the following findings recorded by the learned SingleThe decision of the High Court was rendered on 13-1-1983. It may be noted that the learned District Judge was also of the same opinion. We are inclined to presume that the High Court and the learned District Judge were aware of the factual situation obtaining in that State both in 1956 and in 1975 and that at this distance of time, it would not be proper and advisable to interfere with their opinion. They have pointed out that the said notification of 1975 was preceded by a notification of 1956 and that in 1956 mineral water as we know today was not known in commercial circles and, therefore, when the notification used the expression "mineral water", it meant aerated water or the cold drinks. This course we are adopting also because it is stated that after 1987 this question would notIn view of the above, it is not necessary for us to go into the question whetherthe entry of empty bottles for the purpose of being filled with cold drinks/aerated water constitutes use within the meaning of the expression "consumption, use or sale therein" occurring in Section 128(1)(viii) of theAct or for that matter in Entry 52 of List II of the Seventh Schedule to the Constitution of
|
Paramananda Pegu Vs. State Of Assam | broad corroboration in conformity with the general trend of the confession, as pointed out in Subramania Goundans case. 22. The decision of this Court in Chandrakant Chimanial Desai vs. State of Gujarat (1992) 1 SCC 473 ) has created some difficulty in understanding the law which is otherwise so well settled. The learned Judges imported the observations which were made in Kashmira Singh vs. State of Madhya Pradesh (AIR 1952 SC 159 ) in the context of evidentiary value of the confession of co-accused and applied them to the case of retracted confession. It appears that the learned Judges went by the head-note in the AIR which opens up with the sentence "The confession of an accused person.." However, in the text of the judgment it is crystal clear that the entire discussion and the statement of law was only with reference to the confession of the co-accused. While clarifying that the confession of the co-accused is not evidence in the ordinary sense of the term as pointed out by the Privy Council, this Court observed in Kashmira Singhs case that such a confession cannot be made the foundation of a conviction and can only be used in support of other evidence. 23. In Chimanlals case, the learned Judges, after referring to the Head-note portion of the AIR 1952 SC 159 , proceeded to apply the test applicable to the confession of the co-accused to a case of retracted confession. The Court observed: "The High Court has on the other hand made this confessional statement as the basis and has then gone in search for corroboration. It concluded that the confessional statement is corroborated in material particulars by prosecution witnesses without first considering and marshalling the evidence against the accused excluding the confession altogether from consideration. As held in the decision cited above only if on such consideration on the evidence available, other than the confession a conviction can safely be based then only the confession could be used to support that belief or conclusion.." 24. In view of the error in comprehending the scope of the decision in Kashmira Singhs case, the decision in Chimanlals case falls close to the category of decisions rendered per incuriam. If followed, it would run counter to a catena of coordinate Bench decisions and the larger Bench decision in Pyare Lal vs. State of Rajasthan supra. 25. We may point out that in the State of Maharashtra vs. Damu (2000) 6 SCC 269 ), this Court noticed the apparent error in Chimanlals case and observed thus: "We may make it clear that in Kashmira Singh, this Court has rendered the ratio that confession cannot be made the foundation of conviction in the context of considering the utility of that confession as against a co-accused in view of Section 30 of the Evidence Act. Hence the observations in that decision cannot be misapplied to cases in which confession is considered as against its maker". 26. Having discussed the legal position with regard to the evidentiary value of retracted confession, we shall now scrutinize the facts of the present case. On such scrutiny, we find no other corroborative factors that lend assurance to the truth of the confession. Not a single circumstance or the fact proved corroborates the facts revealed in the confession. All the circumstances relied upon by the prosecution excepting the extra judicial confession only point to the involvement of the other accused-Jitu Pegu, but not the appellant. The extra-judicial confession has been eschewed from consideration for the reasons given supra. The confession of the appellant has not been substantiated by any evidence on record which is in line with the confessional statement. Therefore, the corroboration even in the limited sense does not exist in the case of the appellant. What is more, the cause of death as disclosed in the confession does not fit into the opinion of the medical expert. PW23, the Senior Medical Officer at Dhemaji Civil Hospital, who did the postmortem examination of the dead body of Robindra Taid on 2.7.1999, clearly stated that the death was caused on account of the head injury. There was no ligature mark over the body which indicates that there was no strangulation. He noticed hematoma in the middle line of scalp and a fracture in the mid part of the parietal bone. He also found blood around the mid part where the fracture was caused. There was also blood clot on the upper surface of the brain. He did not find any abnormality in other parts of the body. In the confessional statement, the appellant is alleged to have stated that he killed Robindra by strangulation, which is clearly inconsistent with medical evidence. If the confession was voluntary and the accused wanted to tell the truth out of repentance, he would have frankly said that he inflicted the injuries on the head of the victim. But, he did not give the true version of the mode of causing death. It only shows that the role of police in making him adhere to the version of strangulation in tune with what had been noted by the I.O. and presumably by the Executive Magistrate cannot be ruled out. Alternatively, it appears that the appellant faithfully repeated what the other accused stated as to the manner in which he killed Keshav. Thus, the confessional statement of the accused - appellant far from receiving corroboration of any sort from other circumstances, contradicts the medical evidence relating to cause of death which is an important aspect of the confession. We are therefore of the view that it is not safe to convict the appellant solely on the basis of the alleged confession which has been retracted. 27. Before parting with the case, we must observe that the High Court fell into a serious error in not considering the case of the appellant separately. The High Court applied the evidence relating to the other accused to the appellant. This mix up has led to miscarriage of justice. 28. | 1[ds]The last seen evidence is the first and foremost circumstance that has been relied upon by the High Court. However, we find no evidence that the victim boys were in the company of the appellant on the evening of 28.6.1999. PWs 1 to 3 categorically stated that it was Jitu Pegu who coaxed them to bring the boys Robindra and Keshav and detained them with him and quipped to PWs 1 to 3 that they would be returning by a different route later. It was Jitu Pegu who allegedly gave them threat not to reveal it to others. Nowhere the name of the appellant was mentioned. On the other hand, all of them stated that they did not know the other accused namely the appellant hereinThe second circumstance is also relatable to the first accused Jitu Pegu only. The recovery of silver chain of Robindra was at the instance of Jitu Pegu, but not the appellant. The seizure list dated 4.7.1999 relating to silver chain is Ex. 1. It was prepared by the I.O. - PW29 and witnessed by Late Shri C.R. Das, Executive Magistrate and PWs 4 & 6. It is evident from the said document that the silver chain was found and seized at the place shown by the accused Jitu Pegu. The name of the appellant does not figure in that document. PW4, who is the witness for the seizure, stated: "in our presence, Jitu Pegu told the Magistrate that he had kept the chain. The police seized the chain". PW4 further stated that he did not know the other accused. This is what PW6 deposed: "on the way back with the police party, Jitu Pegu recovered a silver chain in the yard of Padma Nath Doley (PW4) where he had thrown it and handed it over to the police. The police seized the silver chain. Ex. 1 is the seizure list and Ex. 1(ii) is my signature. M. Ex. 1 is the silver chain. The silver chain belonged to Robindra". Thus, the finding of High Court with regard to the second piece of circumstantial evidence, insofar as the appellant is concerned, is clearly unsustainableAs regards circumstance No. 6 i.e. recovery of dead body of Robindra at the instance of Jitu Pegu, the appellant is not in the picture. The High Court also stated so. Almost all prosecution witnesses viz. PWs 17, 14, 27, 12 & 8 stated that the body of Robindra was recovered at the instance of Jitu Pegu and Jitu Pegu led the police to the bamboo grove. No one connected Parmanand to the recovery of the dead body of any of the victim boys. Even the I.O. (PW29) categorically stated "as shown by Jitu Pegu, I found Robindra Taids body in a ditch in a bamboo grove and held inquest over it". However, we have referred to the other evidence on record only to steer clear of the doubt created by the statement in the inquest report that gives an impression that both Jitu Pegu and Parmanand led the police and those present at the inquest to the place where the dead body was found. But such statement cannot be true having regard to the clear evidence of PWs 17 and 29 on this pointThe High Court proceeded on the wrong premise that there was an extra judicial confession before PW22 (Additional C.J.M.). The High Court overlooked the fact that the confession recorded on 6.7.1999 by PW22 was a judicial confession and PW22 did not come into the picture at any time prior to that. Obviously, the High Court laboured under the wrong impression that the Magistrate in whose presence the scene was recreated was PW22 whereas the alleged extra judicial confession was in the presence of the Executive Magistrate who could not be examined. The High Court fell into an error of fact in thinking that there were two extra judicial confessions, one in the presence of PWs 25, 28 & 29 (I.O.) and another in the presence of PWs 22, 28 & 29. Notwithstanding this error committed by the High Court, we have to consider whether the extra judicial confession sought to be relied by the prosecution can be acted uponHaving discussed the legal position with regard to the evidentiary value of retracted confession, we shall now scrutinize the facts of the present case. On such scrutiny, we find no other corroborative factors that lend assurance to the truth of the confession. Not a single circumstance or the fact proved corroborates the facts revealed in the confession. All the circumstances relied upon by the prosecution excepting the extra judicial confession only point to the involvement of the other accused-Jitu Pegu, but not the appellant. The extra-judicial confession has been eschewed from consideration for the reasons given supra. The confession of the appellant has not been substantiated by any evidence on record which is in line with the confessional statement. Therefore, the corroboration even in the limited sense does not exist in the case of the appellant. What is more, the cause of death as disclosed in the confession does not fit into the opinion of the medical expert. PW23, the Senior Medical Officer at Dhemaji Civil Hospital, who did the postmortem examination of the dead body of Robindra Taid on 2.7.1999, clearly stated that the death was caused on account of the head injury. There was no ligature mark over the body which indicates that there was no strangulation. He noticed hematoma in the middle line of scalp and a fracture in the mid part of the parietal bone. He also found blood around the mid part where the fracture was caused. There was also blood clot on the upper surface of the brain. He did not find any abnormality in other parts of the body. In the confessional statement, the appellant is alleged to have stated that he killed Robindra by strangulation, which is clearly inconsistent with medical evidence. If the confession was voluntary and the accused wanted to tell the truth out of repentance, he would have frankly said that he inflicted the injuries on the head of the victim. But, he did not give the true version of the mode of causing death. It only shows that the role of police in making him adhere to the version of strangulation in tune with what had been noted by the I.O. and presumably by the Executive Magistrate cannot be ruled out. Alternatively, it appears that the appellant faithfully repeated what the other accused stated as to the manner in which he killed Keshav. Thus, the confessional statement of the accused - appellant far from receiving corroboration of any sort from other circumstances, contradicts the medical evidence relating to cause of death which is an important aspect of the confession. We are therefore of the view that it is not safe to convict the appellant solely on the basis of the alleged confession which has been retracted27. Before parting with the case, we must observe that the High Court fell into a serious error in not considering the case of the appellant separately. The High Court applied the evidence relating to the other accused to the appellant. This mix up has led to miscarriage of justice. | 1 | 6,173 | 1,334 | ### 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:
broad corroboration in conformity with the general trend of the confession, as pointed out in Subramania Goundans case. 22. The decision of this Court in Chandrakant Chimanial Desai vs. State of Gujarat (1992) 1 SCC 473 ) has created some difficulty in understanding the law which is otherwise so well settled. The learned Judges imported the observations which were made in Kashmira Singh vs. State of Madhya Pradesh (AIR 1952 SC 159 ) in the context of evidentiary value of the confession of co-accused and applied them to the case of retracted confession. It appears that the learned Judges went by the head-note in the AIR which opens up with the sentence "The confession of an accused person.." However, in the text of the judgment it is crystal clear that the entire discussion and the statement of law was only with reference to the confession of the co-accused. While clarifying that the confession of the co-accused is not evidence in the ordinary sense of the term as pointed out by the Privy Council, this Court observed in Kashmira Singhs case that such a confession cannot be made the foundation of a conviction and can only be used in support of other evidence. 23. In Chimanlals case, the learned Judges, after referring to the Head-note portion of the AIR 1952 SC 159 , proceeded to apply the test applicable to the confession of the co-accused to a case of retracted confession. The Court observed: "The High Court has on the other hand made this confessional statement as the basis and has then gone in search for corroboration. It concluded that the confessional statement is corroborated in material particulars by prosecution witnesses without first considering and marshalling the evidence against the accused excluding the confession altogether from consideration. As held in the decision cited above only if on such consideration on the evidence available, other than the confession a conviction can safely be based then only the confession could be used to support that belief or conclusion.." 24. In view of the error in comprehending the scope of the decision in Kashmira Singhs case, the decision in Chimanlals case falls close to the category of decisions rendered per incuriam. If followed, it would run counter to a catena of coordinate Bench decisions and the larger Bench decision in Pyare Lal vs. State of Rajasthan supra. 25. We may point out that in the State of Maharashtra vs. Damu (2000) 6 SCC 269 ), this Court noticed the apparent error in Chimanlals case and observed thus: "We may make it clear that in Kashmira Singh, this Court has rendered the ratio that confession cannot be made the foundation of conviction in the context of considering the utility of that confession as against a co-accused in view of Section 30 of the Evidence Act. Hence the observations in that decision cannot be misapplied to cases in which confession is considered as against its maker". 26. Having discussed the legal position with regard to the evidentiary value of retracted confession, we shall now scrutinize the facts of the present case. On such scrutiny, we find no other corroborative factors that lend assurance to the truth of the confession. Not a single circumstance or the fact proved corroborates the facts revealed in the confession. All the circumstances relied upon by the prosecution excepting the extra judicial confession only point to the involvement of the other accused-Jitu Pegu, but not the appellant. The extra-judicial confession has been eschewed from consideration for the reasons given supra. The confession of the appellant has not been substantiated by any evidence on record which is in line with the confessional statement. Therefore, the corroboration even in the limited sense does not exist in the case of the appellant. What is more, the cause of death as disclosed in the confession does not fit into the opinion of the medical expert. PW23, the Senior Medical Officer at Dhemaji Civil Hospital, who did the postmortem examination of the dead body of Robindra Taid on 2.7.1999, clearly stated that the death was caused on account of the head injury. There was no ligature mark over the body which indicates that there was no strangulation. He noticed hematoma in the middle line of scalp and a fracture in the mid part of the parietal bone. He also found blood around the mid part where the fracture was caused. There was also blood clot on the upper surface of the brain. He did not find any abnormality in other parts of the body. In the confessional statement, the appellant is alleged to have stated that he killed Robindra by strangulation, which is clearly inconsistent with medical evidence. If the confession was voluntary and the accused wanted to tell the truth out of repentance, he would have frankly said that he inflicted the injuries on the head of the victim. But, he did not give the true version of the mode of causing death. It only shows that the role of police in making him adhere to the version of strangulation in tune with what had been noted by the I.O. and presumably by the Executive Magistrate cannot be ruled out. Alternatively, it appears that the appellant faithfully repeated what the other accused stated as to the manner in which he killed Keshav. Thus, the confessional statement of the accused - appellant far from receiving corroboration of any sort from other circumstances, contradicts the medical evidence relating to cause of death which is an important aspect of the confession. We are therefore of the view that it is not safe to convict the appellant solely on the basis of the alleged confession which has been retracted. 27. Before parting with the case, we must observe that the High Court fell into a serious error in not considering the case of the appellant separately. The High Court applied the evidence relating to the other accused to the appellant. This mix up has led to miscarriage of justice. 28.
### Response:
1
### Explanation:
the place shown by the accused Jitu Pegu. The name of the appellant does not figure in that document. PW4, who is the witness for the seizure, stated: "in our presence, Jitu Pegu told the Magistrate that he had kept the chain. The police seized the chain". PW4 further stated that he did not know the other accused. This is what PW6 deposed: "on the way back with the police party, Jitu Pegu recovered a silver chain in the yard of Padma Nath Doley (PW4) where he had thrown it and handed it over to the police. The police seized the silver chain. Ex. 1 is the seizure list and Ex. 1(ii) is my signature. M. Ex. 1 is the silver chain. The silver chain belonged to Robindra". Thus, the finding of High Court with regard to the second piece of circumstantial evidence, insofar as the appellant is concerned, is clearly unsustainableAs regards circumstance No. 6 i.e. recovery of dead body of Robindra at the instance of Jitu Pegu, the appellant is not in the picture. The High Court also stated so. Almost all prosecution witnesses viz. PWs 17, 14, 27, 12 & 8 stated that the body of Robindra was recovered at the instance of Jitu Pegu and Jitu Pegu led the police to the bamboo grove. No one connected Parmanand to the recovery of the dead body of any of the victim boys. Even the I.O. (PW29) categorically stated "as shown by Jitu Pegu, I found Robindra Taids body in a ditch in a bamboo grove and held inquest over it". However, we have referred to the other evidence on record only to steer clear of the doubt created by the statement in the inquest report that gives an impression that both Jitu Pegu and Parmanand led the police and those present at the inquest to the place where the dead body was found. But such statement cannot be true having regard to the clear evidence of PWs 17 and 29 on this pointThe High Court proceeded on the wrong premise that there was an extra judicial confession before PW22 (Additional C.J.M.). The High Court overlooked the fact that the confession recorded on 6.7.1999 by PW22 was a judicial confession and PW22 did not come into the picture at any time prior to that. Obviously, the High Court laboured under the wrong impression that the Magistrate in whose presence the scene was recreated was PW22 whereas the alleged extra judicial confession was in the presence of the Executive Magistrate who could not be examined. The High Court fell into an error of fact in thinking that there were two extra judicial confessions, one in the presence of PWs 25, 28 & 29 (I.O.) and another in the presence of PWs 22, 28 & 29. Notwithstanding this error committed by the High Court, we have to consider whether the extra judicial confession sought to be relied by the prosecution can be acted uponHaving discussed the legal position with regard to the evidentiary value of retracted confession, we shall now scrutinize the facts of the present case. On such scrutiny, we find no other corroborative factors that lend assurance to the truth of the confession. Not a single circumstance or the fact proved corroborates the facts revealed in the confession. All the circumstances relied upon by the prosecution excepting the extra judicial confession only point to the involvement of the other accused-Jitu Pegu, but not the appellant. The extra-judicial confession has been eschewed from consideration for the reasons given supra. The confession of the appellant has not been substantiated by any evidence on record which is in line with the confessional statement. Therefore, the corroboration even in the limited sense does not exist in the case of the appellant. What is more, the cause of death as disclosed in the confession does not fit into the opinion of the medical expert. PW23, the Senior Medical Officer at Dhemaji Civil Hospital, who did the postmortem examination of the dead body of Robindra Taid on 2.7.1999, clearly stated that the death was caused on account of the head injury. There was no ligature mark over the body which indicates that there was no strangulation. He noticed hematoma in the middle line of scalp and a fracture in the mid part of the parietal bone. He also found blood around the mid part where the fracture was caused. There was also blood clot on the upper surface of the brain. He did not find any abnormality in other parts of the body. In the confessional statement, the appellant is alleged to have stated that he killed Robindra by strangulation, which is clearly inconsistent with medical evidence. If the confession was voluntary and the accused wanted to tell the truth out of repentance, he would have frankly said that he inflicted the injuries on the head of the victim. But, he did not give the true version of the mode of causing death. It only shows that the role of police in making him adhere to the version of strangulation in tune with what had been noted by the I.O. and presumably by the Executive Magistrate cannot be ruled out. Alternatively, it appears that the appellant faithfully repeated what the other accused stated as to the manner in which he killed Keshav. Thus, the confessional statement of the accused - appellant far from receiving corroboration of any sort from other circumstances, contradicts the medical evidence relating to cause of death which is an important aspect of the confession. We are therefore of the view that it is not safe to convict the appellant solely on the basis of the alleged confession which has been retracted27. Before parting with the case, we must observe that the High Court fell into a serious error in not considering the case of the appellant separately. The High Court applied the evidence relating to the other accused to the appellant. This mix up has led to miscarriage of justice.
|
Ladli Prasad Jaiswal Vs. Karnal Distillery Co., Ltd., & Ors | the resolutions the plaintiff acquired no overriding privilege. His rights were the same as of the other branches of the family. On the question as to what transpired at and before the meeting dated October 16, 1945 there is the evidence of Devi Prasad which may be briefly referred to: He has deposed that he was present at the meeting and that the compromise was arrived at by the free consent of the parties and no undue influence was exercised by any party on the other. The compromise talks had begun a week earlier, and the account books of the Karnal Distillery Company were produced at the time of the compromise, and the books were examined by defendants 2 to 5 and some objections raised during the talks of compromise were settled after seeing the books of account. The witness also produced a copy of the minutes of the meeting which had taken place at 10-30 A.M. on October 16, 1945 stating that the same were typed by him. There was substantially no cross-examination of this witness on the evidence given by him that the account books were examined during the negotiations for compromise. The finding of the High Court that the books of account were never examined and the plaintiff pursuaded the defendants to give him a complete discharge in respect of the liabilities incurred by him for his transactions was never pleaded in the written statement, though it was an important particular which if true would have been pleaded. Even assuming that on the general plea of undue influence it was open to the defendants to lead evidence on this matter, the defendants have not -chosen to lead any reliable evidence to show that that books of account were not examined and entries were not verified, and the equivocal evidence made by the witness Raghu Nandan has no evidentiary value at all. It is true that the plaintiff had started another Company in the name of Jagatjit Distilling and Allied Industries but even if that circumstance has any bearing on the issue of undue influence there is again little evidence that he had made large profits and had acquired influence and power thereby. The appointment of receivers by the Court of Subordinate Judge, Karnal was stayed by the High Court, but that single circumstance will not justify an inference that the defendants were effectively prevented from prosecuting their claim. There is no evidence to show that the plaintiff was interested in creating a deadlock so as to prevent the smooth and successful business of the Company.The only two facts viz. that the plaintiff was the eldest member and that he was before the resolution dated February 20, 1945 receiving very much larger sums of money from the Company as his remuneration in comparison with the Remuneration received by the defendants, viewed in the light of the other circumstances will not justify an inference that the plaintiff was in a position to dominate the will of the defendants. For reasons already stated the High Court was in error in relying upon the presumption under sub-section (3) of s. 16, because in our view the evidence does not justify the conclusion that the plaintiff was in a position to dominate the will of the defendants and that the resolutions gave an unconscionable advantage to the plaintiff. We must add that the decisions of the District Court and Division, Bench of the High Court, suffered from Serious infirmities in that they wrongly placed the onus of proof upon the plaintiff, and reached a conclusion that the plaintiff failed to prove that the resolutions were not obtained by the exercise of undue influence.18. It was urged that in any event, at this late stage-sixteen years after the date on which the resolutions were passed by the defendants at the meeting dated March 28, 1945-this Court would not be justified in declaring the actions of the defendants in pursuance of the resolutions, invalid, for they would affect third parties who must have dealt with the Company on the footing that the manangement of the Company had authority to transact business. But the plaintiff has unauthorisedly been deprived of his rights by the arbitrary conduct of the defendants. All the Courts below have held that the resolutions dated March 28, 1946 are invalid. The High Court declined to grant relief to the plaintiff, for in their view the plaintiff had disentitled himself to equitable relief because of his previous conduct in exercising undue influence, and thereby securing an unfair advantage to which he was not lawfully entitled. It is unnecessary to enter upon a discussion of the question whether in the circumstances it was a sufficient ground for depriving the plaintiff of relief, for we are of opinion that subject to the reservations made by Bishan Narain, J., which fully protect third parties, relief should be awarded. Before the learned judge, counsel for the plaintiff gave an undertaking that he will not question the dealings of the defendants qua third parties, and requested expressly that the prayer for declaration that all acts of the Company and the defendants which affected him personally qua the members of the Company may alone be declared invalid. That, in our judgment, should be sufficient to meet any objection which may be raised by the defendants on the score of delay.It was also submitted that the plaintiff has lost his right to the shares since the suit was instituted because the Company had enforced its lien and had sold the shares of the plaintiff in enforcement of the lien. The validity of that action of the Company has been challenged in a separate proceeding, and we need express no opinion on that question. All the Courts have come to the conclusion that the reso- lutions dated March 3, 1.946 and March 28, 1946 were invalid and not binding on the plaintiff. Therefore, any action taken by the defendants pursuant to those resolutions may prima facie be regarded as ineffective.19. | 1[ds]But the two expressions have not the same meaning. A court subordinate to the High Court is a court subject to the superintendence of the High Court. whereas a court immediately below is the court from whose decision the appeal has been filed. If the two expressions are equated, the right of appeal against the decree of the High Court sitting in appeal over the decision of a single judge exercising original jurisdiction would be severely restricted for in such an appeal whether the judgment is of affirmance or reversal -the High Court can certify a case under Art. 133 (1) cls. (a) & (b) only if the appeal involves a substantial question of law. The Attorney- General, however, concedes and in our judgment properly that there has been a long standing practice which has the approval of the Privy Council (see Tulsi Prasad v. Benayak : L. R. 23 I. A. 102) that if the decree or order of the Division Bench reverses the judgment of a single , Judge trying a suit or proceeding in exercise of original jurisdiction of the High Court and the condition as to valuation is satisfied, an appeal lies as a matter of course, i.e. without satisfying the condition that it involves a substantial question of law. This view can be justified only if a single Judge of a High Court trying a suit or proceeding in exercise of the original jurisdiction is a court immediately below the Division Bench of the High Court which decides an appeal from his decision. The right to appeal against the judgment of a single judge whether exercising original jurisdiction or exercising appellate jurisdiction to a Division Bench is governed by the same clause of the Letters Patent. If for certifying a case for appeal to this Court in a pro- ceeding tried in exercise of the original jurisdiction the judgment of a single judge is to be regarded as the decision of the court immediately below a Division Bench to which an appeal is filed under the Letters Patent, it is difficult to discover any logical ground for holding that the judgment of a single judge in exercise of appellate jurisdiction is not such a decision. Clause 10 of the Letters Patent of the Lahore High Court (which continues to apply to the Punjab High Court) provides, in so far as it is material:- "And we do further ordain that an appeal shall lie to the said High Court of judicature x x x x x x from thejudgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court x x x x x) of one judge of the said High Court x x x x x and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one judge of the said High Court x x x x x in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the judge who passed the judgment declares that the case is a fit one for appeal; x x x X. Manifestly the clause confers an unqualified right of appeal to the High Court from the judgment of a single judge exercising original civil jurisdiction. Similarly there is a right of appeal from a judgment of a single judge hearing a civil appeal where the judgment is not in an appeal from an appellate decree. But against the judgment of a single judge exercising powers in appeal from an appellate decree, an appeal under the Letters Patent only lies if the judge declares that the case is a fit one for appeal, and not otherwise. There is no warrant for making a distinction between an appeal filed against the judgment of a single judge exercising original jurisdiction and a judgment in exercise of appellate jurisdiction. There is nothing in the context to support the plea that the expression court immediately below includes a judge of the High Court trying a proceeding in exercise of original jurisdiction, i. e. sitting as a court of first instance, but not a judge exercising appellate jurisdiction. The Constitution in cl. (1) (a) of Art. 133 has expressly referred to a court of first instance in prescribing the condition relating to the value of the subject- matter and if it was intended that for the purpose of deciding whether the judgment of the High Court sought to be appealed against affirmed the decision of the Court immediately below, the decision of a single judge was to be ignored, if it was a judgment in exercise of appellate powers, but not when he was exercising original jurisdiction, an appropriate provision that behalf would have been enacted. In the absence of any such enactment, the expression "court immediately below in Act. 133 (1) must mean the court from the decision of which an appeal has been filed to the High Court, whether such court is a single judge of the High Court or a Court subject to the superintendence of the Highour judgment the appeal with certificate granted by the High Court under Art. 133 (1) (a) and (b) is competent, because a Single Judge of the High Court hearing either a proceeding as a Court of original jurisdiction or in exercise of appellate jurisdiction is a Court immediately below the Division Bench which hears an appeal against his judgment under the relevant clause of the Letters Patent.Bishan Narain J., was, it is true, hearing an appeal from an appellate decree and his powers were restricted, for a second appeal lies to the High Court only on the following grounds, namely:- (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage, having the force of law; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. Whether a particular transaction was vitiated on the ground of undue influence is primarily a decision on a question ofmust add that the decisions of the District Court and Division, Bench of the High Court, suffered from Serious infirmities in that they wrongly placed the onus of proof upon the plaintiff, and reached a conclusion that the plaintiff failed to prove that the resolutions were not obtained by the exercise of unduethe plaintiff has unauthorisedly been deprived of his rights by the arbitrary conduct of the defendants. All the Courts below have held that the resolutions dated March 28, 1946 are invalid. The High Court declined to grant relief to the plaintiff, for in their view the plaintiff had disentitled himself to equitable relief because of his previous conduct in exercising undue influence, and thereby securing an unfair advantage to which he was not lawfully entitled. It is unnecessary to enter upon a discussion of the question whether in the circumstances it was a sufficient ground for depriving the plaintiff of relief, for we are of opinion that subject to the reservations made by Bishan Narain, J., which fully protect third parties, relief should be awarded. Before the learned judge, counsel for the plaintiff gave an undertaking that he will not question the dealings of the defendants qua third parties, and requested expressly that the prayer for declaration that all acts of the Company and the defendants which affected him personally qua the members of the Company may alone be declared invalid. That, in our judgment, should be sufficient to meet any objection which may be raised by the defendants on the score of delay.It was also submitted that the plaintiff has lost his right to the shares since the suit was instituted because the Company had enforced its lien and had sold the shares of the plaintiff in enforcement of the lien. The validity of that action of the Company has been challenged in a separate proceeding, and we need express no opinion on that question. All the Courts have come to the conclusion that the reso- lutions dated March 3, 1.946 and March 28, 1946 were invalid and not binding on the plaintiff. Therefore, any action taken by the defendants pursuant to those resolutions may prima facie be regarded as ineffective. | 1 | 14,589 | 1,564 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the resolutions the plaintiff acquired no overriding privilege. His rights were the same as of the other branches of the family. On the question as to what transpired at and before the meeting dated October 16, 1945 there is the evidence of Devi Prasad which may be briefly referred to: He has deposed that he was present at the meeting and that the compromise was arrived at by the free consent of the parties and no undue influence was exercised by any party on the other. The compromise talks had begun a week earlier, and the account books of the Karnal Distillery Company were produced at the time of the compromise, and the books were examined by defendants 2 to 5 and some objections raised during the talks of compromise were settled after seeing the books of account. The witness also produced a copy of the minutes of the meeting which had taken place at 10-30 A.M. on October 16, 1945 stating that the same were typed by him. There was substantially no cross-examination of this witness on the evidence given by him that the account books were examined during the negotiations for compromise. The finding of the High Court that the books of account were never examined and the plaintiff pursuaded the defendants to give him a complete discharge in respect of the liabilities incurred by him for his transactions was never pleaded in the written statement, though it was an important particular which if true would have been pleaded. Even assuming that on the general plea of undue influence it was open to the defendants to lead evidence on this matter, the defendants have not -chosen to lead any reliable evidence to show that that books of account were not examined and entries were not verified, and the equivocal evidence made by the witness Raghu Nandan has no evidentiary value at all. It is true that the plaintiff had started another Company in the name of Jagatjit Distilling and Allied Industries but even if that circumstance has any bearing on the issue of undue influence there is again little evidence that he had made large profits and had acquired influence and power thereby. The appointment of receivers by the Court of Subordinate Judge, Karnal was stayed by the High Court, but that single circumstance will not justify an inference that the defendants were effectively prevented from prosecuting their claim. There is no evidence to show that the plaintiff was interested in creating a deadlock so as to prevent the smooth and successful business of the Company.The only two facts viz. that the plaintiff was the eldest member and that he was before the resolution dated February 20, 1945 receiving very much larger sums of money from the Company as his remuneration in comparison with the Remuneration received by the defendants, viewed in the light of the other circumstances will not justify an inference that the plaintiff was in a position to dominate the will of the defendants. For reasons already stated the High Court was in error in relying upon the presumption under sub-section (3) of s. 16, because in our view the evidence does not justify the conclusion that the plaintiff was in a position to dominate the will of the defendants and that the resolutions gave an unconscionable advantage to the plaintiff. We must add that the decisions of the District Court and Division, Bench of the High Court, suffered from Serious infirmities in that they wrongly placed the onus of proof upon the plaintiff, and reached a conclusion that the plaintiff failed to prove that the resolutions were not obtained by the exercise of undue influence.18. It was urged that in any event, at this late stage-sixteen years after the date on which the resolutions were passed by the defendants at the meeting dated March 28, 1945-this Court would not be justified in declaring the actions of the defendants in pursuance of the resolutions, invalid, for they would affect third parties who must have dealt with the Company on the footing that the manangement of the Company had authority to transact business. But the plaintiff has unauthorisedly been deprived of his rights by the arbitrary conduct of the defendants. All the Courts below have held that the resolutions dated March 28, 1946 are invalid. The High Court declined to grant relief to the plaintiff, for in their view the plaintiff had disentitled himself to equitable relief because of his previous conduct in exercising undue influence, and thereby securing an unfair advantage to which he was not lawfully entitled. It is unnecessary to enter upon a discussion of the question whether in the circumstances it was a sufficient ground for depriving the plaintiff of relief, for we are of opinion that subject to the reservations made by Bishan Narain, J., which fully protect third parties, relief should be awarded. Before the learned judge, counsel for the plaintiff gave an undertaking that he will not question the dealings of the defendants qua third parties, and requested expressly that the prayer for declaration that all acts of the Company and the defendants which affected him personally qua the members of the Company may alone be declared invalid. That, in our judgment, should be sufficient to meet any objection which may be raised by the defendants on the score of delay.It was also submitted that the plaintiff has lost his right to the shares since the suit was instituted because the Company had enforced its lien and had sold the shares of the plaintiff in enforcement of the lien. The validity of that action of the Company has been challenged in a separate proceeding, and we need express no opinion on that question. All the Courts have come to the conclusion that the reso- lutions dated March 3, 1.946 and March 28, 1946 were invalid and not binding on the plaintiff. Therefore, any action taken by the defendants pursuant to those resolutions may prima facie be regarded as ineffective.19.
### Response:
1
### Explanation:
exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court x x x x x) of one judge of the said High Court x x x x x and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one judge of the said High Court x x x x x in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the judge who passed the judgment declares that the case is a fit one for appeal; x x x X. Manifestly the clause confers an unqualified right of appeal to the High Court from the judgment of a single judge exercising original civil jurisdiction. Similarly there is a right of appeal from a judgment of a single judge hearing a civil appeal where the judgment is not in an appeal from an appellate decree. But against the judgment of a single judge exercising powers in appeal from an appellate decree, an appeal under the Letters Patent only lies if the judge declares that the case is a fit one for appeal, and not otherwise. There is no warrant for making a distinction between an appeal filed against the judgment of a single judge exercising original jurisdiction and a judgment in exercise of appellate jurisdiction. There is nothing in the context to support the plea that the expression court immediately below includes a judge of the High Court trying a proceeding in exercise of original jurisdiction, i. e. sitting as a court of first instance, but not a judge exercising appellate jurisdiction. The Constitution in cl. (1) (a) of Art. 133 has expressly referred to a court of first instance in prescribing the condition relating to the value of the subject- matter and if it was intended that for the purpose of deciding whether the judgment of the High Court sought to be appealed against affirmed the decision of the Court immediately below, the decision of a single judge was to be ignored, if it was a judgment in exercise of appellate powers, but not when he was exercising original jurisdiction, an appropriate provision that behalf would have been enacted. In the absence of any such enactment, the expression "court immediately below in Act. 133 (1) must mean the court from the decision of which an appeal has been filed to the High Court, whether such court is a single judge of the High Court or a Court subject to the superintendence of the Highour judgment the appeal with certificate granted by the High Court under Art. 133 (1) (a) and (b) is competent, because a Single Judge of the High Court hearing either a proceeding as a Court of original jurisdiction or in exercise of appellate jurisdiction is a Court immediately below the Division Bench which hears an appeal against his judgment under the relevant clause of the Letters Patent.Bishan Narain J., was, it is true, hearing an appeal from an appellate decree and his powers were restricted, for a second appeal lies to the High Court only on the following grounds, namely:- (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage, having the force of law; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. Whether a particular transaction was vitiated on the ground of undue influence is primarily a decision on a question ofmust add that the decisions of the District Court and Division, Bench of the High Court, suffered from Serious infirmities in that they wrongly placed the onus of proof upon the plaintiff, and reached a conclusion that the plaintiff failed to prove that the resolutions were not obtained by the exercise of unduethe plaintiff has unauthorisedly been deprived of his rights by the arbitrary conduct of the defendants. All the Courts below have held that the resolutions dated March 28, 1946 are invalid. The High Court declined to grant relief to the plaintiff, for in their view the plaintiff had disentitled himself to equitable relief because of his previous conduct in exercising undue influence, and thereby securing an unfair advantage to which he was not lawfully entitled. It is unnecessary to enter upon a discussion of the question whether in the circumstances it was a sufficient ground for depriving the plaintiff of relief, for we are of opinion that subject to the reservations made by Bishan Narain, J., which fully protect third parties, relief should be awarded. Before the learned judge, counsel for the plaintiff gave an undertaking that he will not question the dealings of the defendants qua third parties, and requested expressly that the prayer for declaration that all acts of the Company and the defendants which affected him personally qua the members of the Company may alone be declared invalid. That, in our judgment, should be sufficient to meet any objection which may be raised by the defendants on the score of delay.It was also submitted that the plaintiff has lost his right to the shares since the suit was instituted because the Company had enforced its lien and had sold the shares of the plaintiff in enforcement of the lien. The validity of that action of the Company has been challenged in a separate proceeding, and we need express no opinion on that question. All the Courts have come to the conclusion that the reso- lutions dated March 3, 1.946 and March 28, 1946 were invalid and not binding on the plaintiff. Therefore, any action taken by the defendants pursuant to those resolutions may prima facie be regarded as ineffective.
|
M/s. Orient Distributors Vs. Bank of India Limited and Others | of an easement (of right of way) granted by the second respondent to all their tenants including the appellants and as such was enforceable against their successors in interest by an injunction. It is not possible to accept either of his contentions for reason which we shall presently indicate.4. It is true that on the plea raised by the appellants a question did arise as to whether the use of the main gate abutting Errabalu Chetty Street and the disputed passage giving access to the appellants tenement on the first floor formed part of the demise granted by the second respondent to them at the time of the creation of tenancy in 1959. But, admittedly, the tenancy had been created orally and there being no document pertaining thereto the question depended upon the inference to be drawn from the facts and surrounding circumstances obtaining at that time. In our view, therefore, the High Court was right in taking the view that the question was not purely a factual one but one relating to the propriety of the legal conclusion that could be drawn on the basis of proved facts. The lower appellate Court principally relied upon two facts which emerged from the documentary evidence on record consisting of the correspondence between the parties and business advertisements given by the appellants : (1) in the correspondence as well as in the advertisements given by them the appellants had been uniformly giving their address as 26, Errabalu Chetty Street and they had also put their signboard on the Errabalu Chetty Street frontage, and (2) at the commencement of their tenancy the disputed passage was the only passage in use giving access to their tenement on the first floor. From these facts the lower appellate Court drew the inference that the disputed passage will have to be regarded as a part of the appellants tenancy. The High Court, in our view, has rightly come to the conclusion that from these proved facts the inference drawn by the lower appellate Court could not legally arise. If the entire building bore the number 26, Errabalu Chetty Street in the Corporation records then it is obvious that all the tenants occupying different portions of the building including the appellants would be giving the same address, namely, 26 Errabalu Chetty Street in their correspondence or advertisements and therefore, mentioning of this address by the appellants in their correspondence and advertisements or their having hung a signboard on the Errabalu Chetty Street frontage would not support and inference that the passage was part of their tenancy; similarly since the passage was, as a matter of fact, being used in common by the then owner (respondent 2) as also by several tenants in order to reach their respective portions it would not be correct to infer that the passage formed the subject-matter of the tenancy of any particular tenant or of each one of the tenants. In this view of the matter the High Court, in our view, was right in observing that the effect of the aforesaid facts was only this that the appellants were entitled to have access to their tenement through the disputed passage, not as a part of or constituting the subject-matter of the demise but because the tenement must have an access. We agree with the High Court that the finding of the lower appellate Court on the basis of which it granted relief of injunction to the appellants could not be sustained.5. After negativing the appellants case that the disputed passage formed the subject-matter of the appellants demise, as also the case that it was an essential element in the contract of tenancy, the High Court went on to consider whether the appellants would be entitled to the use of the disputed passage as an easement of necessity, for admittedly, real property had been severed by the grant of a portion it by the second respondent to the first respondent. In this behalf two facts appear clear from the sale deed in favour of the first respondent; in the first place it did not make any reservation in respect of the passage in favour of the second respondent (the lessor of the appellants), and secondly, it expressly permitted the first respondent to raise structures in the property conveyed without let or hindrance by the second respondent. In such a case it is obvious that if there be no other access whatsoever to the portion of the building retained by the second to the retained portion through the disputed passage as an easement of necessity but on admitted facts the second respondent had provided to their tenants alternative access to their respective tenements through Vanniar Street. In view of this, the High Court rightly concluded that there was no question of the appellants having the use of the disputed passage as easement of necessity. The aspect that the alternative access is not as convenient or advantageous as the entrance from the Errabalu Chetty Street would be irrelevant.6. As regards counsels contention that the user of the disputed passage should be regarded as by way of an easement of a right of way granted to the appellants and other tenants by the second respondent, it must be stated that no such plea or case was made out by the appellants in any of the courts below. Moreover, there is no material on record from which such a grant of easement to all the tenants could be inferred. On the contrary from the fact that the disputed passage in question was being used in common by the previous owner (second respondent) as also by all the tenants of the building clearly suggests that what was granted by the second respondent to the appellants and all other tenants was a bare licence to use the passage with a view to have access to their respective tenements, without any interest being created in their favour over such common passage. The contention raised is, therefore, devoid of any substance. | 0[ds]5. After negativing the appellants case that the disputed passage formed theof the appellants demise, as also the case that it was an essential element in the contract of tenancy, the High Court went on to consider whether the appellants would be entitled to the use of the disputed passage as an easement of necessity, for admittedly, real property had been severed by the grant of a portion it by the second respondent to the first respondent. In this behalf two facts appear clear from the sale deed in favour of the first respondent; in the first place it did not make any reservation in respect of the passage in favour of the second respondent (the lessor of the appellants), and secondly, it expressly permitted the first respondent to raise structures in the property conveyed without let or hindrance by the second respondent. In such a case it is obvious that if there be no other access whatsoever to the portion of the building retained by the second to the retained portion through the disputed passage as an easement of necessity but on admitted facts the second respondent had provided to their tenants alternative access to their respective tenements through Vanniar Street. In view of this, the High Court rightly concluded that there was no question of the appellants having the use of the disputed passage as easement of necessity. The aspect that the alternative access is not as convenient or advantageous as the entrance from the Errabalu Chetty Street would be irrelevant.6. As regards counsels contention that the user of the disputed passage should be regarded as by way of an easement of a right of way granted to the appellants and other tenants by the second respondent, it must be stated that no such plea or case was made out by the appellants in any of the courts below. Moreover, there is no material on record from which such a grant of easement to all the tenants could be inferred. On the contrary from the fact that the disputed passage in question was being used in common by the previous owner (second respondent) as also by all the tenants of the building clearly suggests that what was granted by the second respondent to the appellants and all other tenants was a bare licence to use the passage with a view to have access to their respective tenements, without any interest being created in their favour over such common passage. The contention raised is, therefore, devoid of any substance. | 0 | 2,135 | 451 | ### 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 an easement (of right of way) granted by the second respondent to all their tenants including the appellants and as such was enforceable against their successors in interest by an injunction. It is not possible to accept either of his contentions for reason which we shall presently indicate.4. It is true that on the plea raised by the appellants a question did arise as to whether the use of the main gate abutting Errabalu Chetty Street and the disputed passage giving access to the appellants tenement on the first floor formed part of the demise granted by the second respondent to them at the time of the creation of tenancy in 1959. But, admittedly, the tenancy had been created orally and there being no document pertaining thereto the question depended upon the inference to be drawn from the facts and surrounding circumstances obtaining at that time. In our view, therefore, the High Court was right in taking the view that the question was not purely a factual one but one relating to the propriety of the legal conclusion that could be drawn on the basis of proved facts. The lower appellate Court principally relied upon two facts which emerged from the documentary evidence on record consisting of the correspondence between the parties and business advertisements given by the appellants : (1) in the correspondence as well as in the advertisements given by them the appellants had been uniformly giving their address as 26, Errabalu Chetty Street and they had also put their signboard on the Errabalu Chetty Street frontage, and (2) at the commencement of their tenancy the disputed passage was the only passage in use giving access to their tenement on the first floor. From these facts the lower appellate Court drew the inference that the disputed passage will have to be regarded as a part of the appellants tenancy. The High Court, in our view, has rightly come to the conclusion that from these proved facts the inference drawn by the lower appellate Court could not legally arise. If the entire building bore the number 26, Errabalu Chetty Street in the Corporation records then it is obvious that all the tenants occupying different portions of the building including the appellants would be giving the same address, namely, 26 Errabalu Chetty Street in their correspondence or advertisements and therefore, mentioning of this address by the appellants in their correspondence and advertisements or their having hung a signboard on the Errabalu Chetty Street frontage would not support and inference that the passage was part of their tenancy; similarly since the passage was, as a matter of fact, being used in common by the then owner (respondent 2) as also by several tenants in order to reach their respective portions it would not be correct to infer that the passage formed the subject-matter of the tenancy of any particular tenant or of each one of the tenants. In this view of the matter the High Court, in our view, was right in observing that the effect of the aforesaid facts was only this that the appellants were entitled to have access to their tenement through the disputed passage, not as a part of or constituting the subject-matter of the demise but because the tenement must have an access. We agree with the High Court that the finding of the lower appellate Court on the basis of which it granted relief of injunction to the appellants could not be sustained.5. After negativing the appellants case that the disputed passage formed the subject-matter of the appellants demise, as also the case that it was an essential element in the contract of tenancy, the High Court went on to consider whether the appellants would be entitled to the use of the disputed passage as an easement of necessity, for admittedly, real property had been severed by the grant of a portion it by the second respondent to the first respondent. In this behalf two facts appear clear from the sale deed in favour of the first respondent; in the first place it did not make any reservation in respect of the passage in favour of the second respondent (the lessor of the appellants), and secondly, it expressly permitted the first respondent to raise structures in the property conveyed without let or hindrance by the second respondent. In such a case it is obvious that if there be no other access whatsoever to the portion of the building retained by the second to the retained portion through the disputed passage as an easement of necessity but on admitted facts the second respondent had provided to their tenants alternative access to their respective tenements through Vanniar Street. In view of this, the High Court rightly concluded that there was no question of the appellants having the use of the disputed passage as easement of necessity. The aspect that the alternative access is not as convenient or advantageous as the entrance from the Errabalu Chetty Street would be irrelevant.6. As regards counsels contention that the user of the disputed passage should be regarded as by way of an easement of a right of way granted to the appellants and other tenants by the second respondent, it must be stated that no such plea or case was made out by the appellants in any of the courts below. Moreover, there is no material on record from which such a grant of easement to all the tenants could be inferred. On the contrary from the fact that the disputed passage in question was being used in common by the previous owner (second respondent) as also by all the tenants of the building clearly suggests that what was granted by the second respondent to the appellants and all other tenants was a bare licence to use the passage with a view to have access to their respective tenements, without any interest being created in their favour over such common passage. The contention raised is, therefore, devoid of any substance.
### Response:
0
### Explanation:
5. After negativing the appellants case that the disputed passage formed theof the appellants demise, as also the case that it was an essential element in the contract of tenancy, the High Court went on to consider whether the appellants would be entitled to the use of the disputed passage as an easement of necessity, for admittedly, real property had been severed by the grant of a portion it by the second respondent to the first respondent. In this behalf two facts appear clear from the sale deed in favour of the first respondent; in the first place it did not make any reservation in respect of the passage in favour of the second respondent (the lessor of the appellants), and secondly, it expressly permitted the first respondent to raise structures in the property conveyed without let or hindrance by the second respondent. In such a case it is obvious that if there be no other access whatsoever to the portion of the building retained by the second to the retained portion through the disputed passage as an easement of necessity but on admitted facts the second respondent had provided to their tenants alternative access to their respective tenements through Vanniar Street. In view of this, the High Court rightly concluded that there was no question of the appellants having the use of the disputed passage as easement of necessity. The aspect that the alternative access is not as convenient or advantageous as the entrance from the Errabalu Chetty Street would be irrelevant.6. As regards counsels contention that the user of the disputed passage should be regarded as by way of an easement of a right of way granted to the appellants and other tenants by the second respondent, it must be stated that no such plea or case was made out by the appellants in any of the courts below. Moreover, there is no material on record from which such a grant of easement to all the tenants could be inferred. On the contrary from the fact that the disputed passage in question was being used in common by the previous owner (second respondent) as also by all the tenants of the building clearly suggests that what was granted by the second respondent to the appellants and all other tenants was a bare licence to use the passage with a view to have access to their respective tenements, without any interest being created in their favour over such common passage. The contention raised is, therefore, devoid of any substance.
|
National Bell Co. & Anr Vs. Metal Goods Mfg. Co. (P) Ltd. & Anr | the commencement of the proceedings distinctive of the goods of the respondent-company. The distinctiveness of the trade mark in relation to the goods of a registered proprietor of such a trade mark may be lost in a variety of ways, e.g., by the goods not being capable of being distinguished as the goods of such a proprietor or by extensive piracy so that the marks become public juries. The principle underlying clause (c) of Section 32 that the property in a trade mark exists so long as it continues to be distinctive of the goods of the registered proprietor in the eyes of the public or a section of the public. If the proprietor is not in a position to use the mark to distinguish his goods from those of others or has abandoned it or the mark has become so common in the market that it has ceased to connect him with his goods, there would hardly be any justification in retaining it on the register. The progressive increase in the sales of Asia Fifty and Asia 50 bells from 1949-50 and onwards together with the evidence of witnesses examined by the respondent-company shows that the said trade marks distinguished the goods of the respondent-company from those of other manufacturers in the field. Under Section 32 (c) the marks have to be distinctive at the commencement of the proceedings prima facie the expression "commencement of the proceedings" would mean the commencement of proceedings in which the question as to the conclusive character of the registration, as laid down in Section 32 arises. Such a question may arise in a suit for infringement of the trade mark in which the registered proprietor may rely on Section 32 to prove his title to the registered trade mark as also in rectification proceedings filed as a result of such a suit or otherwise, and the period of seven years would have to be calculated according to the particular proceedings in which the conclusive nature of the validity of registration is relied on. In the present case, whether the crucial date for the purpose of Section 32 (c) is taken to be 1959 when the suits were filed or 1961 when the appellant-companies took out the rectification proceedings it makes no difference as it is not possible from the evidence on record to say that the trade marks in question were not or had ceased to be distinctive. The indication, on the contrary, is that they were distinctive. This is to be found from the zeal with which the respondent-company tried to maintain its right in them. The evidence shows that when the respondent-company found in 1954 that M/s. Indian Union Manufacturers Ltd., Calcutta, had been inscribing the word Fifty on its bells, it at once filed an infringement action. The action ended in a compromise by which the said company acknowledged the respondent-companys rights in its trade marks of Fifty and 50. Again, when the attention of the respondent-company was drawn to an advertisement "Five 50", it addressed a notice to the manufacturers of those bells. The case of the respondent-company was that Gupta Industrial Corporation started using the word Fifty on its bells in 1958 and not in 1948 as contended by Mr. Desai. In the absence of any evidence as to the extent of manufacture and sale of those bells it would not be possible to say with any certainty that the respondent-company did not come to know about it till 1958 and therefore, presumed that Gupta Corporation had started using the word Fifty on its bells in that year. According to the appellant National Bell Co., it went into production only in 1957 and in 1956 the respondent-company commenced action against it. A similar notice of infringement followed by a suit was also given to M/s. Berry and Co., but the suit became infructuous on account of lack of the jurisdiction of the Court of Banaras where it was filed. This evidence negatives any abandonment of trade marks of letting infringements go unchallenged or misleading the other manufacturers that the respondent-company would not interfere if they were to use the same marks. Rights in a mark can, of course, be abandoned by its owner but so long as the remains the registered proprietor of the mark and carried on the business to which the mark is attached, a plea of abandonment if difficult to sustain. It would however, be a different matter if it is shown that there were repeated, undisturbed infringements. The evidence in the present case does not show that there were repeated breached which went unchallenged though known to the proprietor. Mere neglect to proceed does not necessarily constitute abandonment if it is respect of infringements which was not sufficient to affect the distinctiveness of the mark even if the proprietor is aware of them [See Re Farina ((1879) 27 WR 456)]. Where neglect to challenge infringement is alleged, the character and extent of the trade of the infringers and their position have to be reckoned in considering whether the registered proprietor is barred by such neglect. [See Rowlant v. Mitchell. ((1897) 14 RPC 37)] The plea of common use must fail, for to establish it the use by other person should be substantial. Though evidence was produced by the appellant-companies to show that there were other bells in the market with Fifty or 50 inscribed on them no evidence was led to show that the use of the word Fifty or the numeral 50 was substantial. In these circumstances, it is impossible to sustain the contention founded on clause (c) of Section 32.18. Under Section 56, the power to rectify is undoubtedly discretionary. Where such discretion has been properly exercised, a court of appeal would refuse to interfere. In the present case, however, the Trial Court did to appreciate the principle embodied in Section 32 and 11, with the result that the Division Bench was justified in interfering with discretion exercised by the Trial Court. | 0[ds]But both the learned Single Judge and the Division Bench clearly found, (i) that there was no evidence of any fraud having been committed by the respondent-company at the time of the registration; (2) that there was no averment by the appellant-company, mush less any evidence that Lucas or any other foreign concerns had obtained registration of trade marks either of the numeral 50 or the word Fifty, that the indication, 30, 61 and 50, etc. for distinguishing one type of bell from the other manufactures by them and (3) that about a year prior to the registration of the trade marks in question in 1953 foreign bells were prohibited from being imported. Obviously, therefore, the evidence as to purchases and sales by the dealers examined by the appellant-companies related to bells which had remained unsold from out of the stock earlier imported. As regard the bells called "Gupta 50" said to have been manufactured by one of the appellant-companies since 1947, no evidence was led to show either the extent of manufacture or sale between 1947 and 1953 or thereafter from which the High Court could be asked to draw any inference as to the likelihood of deception or confusion. Though there was some evidence that foreign made bells such as Lucas "30", "50" and "61" were being sold as late as 1958, such sales must have been few and far between as they could only be from the remaining stock out of the earlier imports. Such sales could hardly be considered as evidence showing a likelihood of confusion or deception as contemplated by Section 11(a). In fact, the evidence was that purchasers used to call those bells not by their numerals but simply as Lucas bells and those manufactured by the respondent-company as "Asia bells" and in some cases "Asia 50". As against the voluminous sales by the respondent-company shown by the statement filed by if for the years 1949-50 to 1961-62, there was no such corresponding evidence indicating the sales of other bells with numerals, such as "50" inscribed on them from which any likelihood of confusion or deception could be deduced. Regarding deception, there was indeed no evidence whatsoever in that regard. There was no question of piracy also on the part of the respondent-company as argued by counsel as there was nothing to show that Lucas or any other foreign concerns used this numeral except for distinguishing one type of bell from another manufactured by them. In our view, clause (a) of Section 11, therefore, is clearly not attracted.There then remains the question whether clause (c) of Section 32 applies, i.e., that the trade marks were not at the commencement of the proceedings distinctive of the goods of the respondent-company. The distinctiveness of the trade mark in relation to the goods of a registered proprietor of such a trade mark may be lost in a variety of ways, e.g., by the goods not being capable of being distinguished as the goods of such a proprietor or by extensive piracy so that the marks become public juries. The principle underlying clause (c) of Section 32 that the property in a trade mark exists so long as it continues to be distinctive of the goods of the registered proprietor in the eyes of the public or a section of the public. If the proprietor is not in a position to use the mark to distinguish his goods from those of others or has abandoned it or the mark has become so common in the market that it has ceased to connect him with his goods, there would hardly be any justification in retaining it on the register. The progressive increase in the sales of Asia Fifty and Asia 50 bells from 1949-50 and onwards together with the evidence of witnesses examined by the respondent-company shows that the said trade marks distinguished the goods of the respondent-company from those of other manufacturers in the field. Under Section 32 (c) the marks have to be distinctive at the commencement of the proceedings prima facie the expression "commencement of the proceedings" would mean the commencement of proceedings in which the question as to the conclusive character of the registration, as laid down in Section 32 arises. Such a question may arise in a suit for infringement of the trade mark in which the registered proprietor may rely on Section 32 to prove his title to the registered trade mark as also in rectification proceedings filed as a result of such a suit or otherwise, and the period of seven years would have to be calculated according to the particular proceedings in which the conclusive nature of the validity of registration is relied on. In the present case, whether the crucial date for the purpose of Section 32 (c) is taken to be 1959 when the suits were filed or 1961 when the appellant-companies took out the rectification proceedings it makes no difference as it is not possible from the evidence on record to say that the trade marks in question were not or had ceased to be distinctive. The indication, on the contrary, is that they were distinctive. This is to be found from the zeal with which the respondent-company tried to maintain its right in them. The evidence shows that when the respondent-company found in 1954 that M/s. Indian Union Manufacturers Ltd., Calcutta, had been inscribing the word Fifty on its bells, it at once filed an infringement action. The action ended in a compromise by which the said company acknowledged the respondent-companys rights in its trade marks of Fifty and 50. Again, when the attention of the respondent-company was drawn to an advertisement "Five 50", it addressed a notice to the manufacturers of those bells. The case of the respondent-company was that Gupta Industrial Corporation started using the word Fifty on its bells in 1958 and not in 1948 as contended by Mr. Desai. In the absence of any evidence as to the extent of manufacture and sale of those bells it would not be possible to say with any certainty that the respondent-company did not come to know about it till 1958 and therefore, presumed that Gupta Corporation had started using the word Fifty on its bells in that year. According to the appellant National Bell Co., it went into production only in 1957 and in 1956 the respondent-company commenced action against it. A similar notice of infringement followed by a suit was also given to M/s. Berry and Co., but the suit became infructuous on account of lack of the jurisdiction of the Court of Banaras where it was filed. This evidence negatives any abandonment of trade marks of letting infringements go unchallenged or misleading the other manufacturers that the respondent-company would not interfere if they were to use the same marks. Rights in a mark can, of course, be abandoned by its owner but so long as the remains the registered proprietor of the mark and carried on the business to which the mark is attached, a plea of abandonment if difficult to sustain. It would however, be a different matter if it is shown that there were repeated, undisturbed infringements. The evidence in the present case does not show that there were repeated breached which went unchallenged though known to the proprietor. Mere neglect to proceed does not necessarily constitute abandonment if it is respect of infringements which was not sufficient to affect the distinctiveness of the mark even if the proprietor is aware of them [See Re Farina ((1879) 27 WR 456)]. Where neglect to challenge infringement is alleged, the character and extent of the trade of the infringers and their position have to be reckoned in considering whether the registered proprietor is barred by such neglect. [See Rowlant v. Mitchell. ((1897) 14 RPC 37)] The plea of common use must fail, for to establish it the use by other person should be substantial. Though evidence was produced by the appellant-companies to show that there were other bells in the market with Fifty or 50 inscribed on them no evidence was led to show that the use of the word Fifty or the numeral 50 was substantial. In these circumstances, it is impossible to sustain the contention founded on clause (c) of Section 32.18. Under Section 56, the power to rectify is undoubtedly discretionary. Where such discretion has been properly exercised, a court of appeal would refuse to interfere. In the present case, however, the Trial Court did to appreciate the principle embodied in Section 32 and 11, with the result that the Division Bench was justified in interfering with discretion exercised by the Trial Court. | 0 | 7,423 | 1,590 | ### 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:
the commencement of the proceedings distinctive of the goods of the respondent-company. The distinctiveness of the trade mark in relation to the goods of a registered proprietor of such a trade mark may be lost in a variety of ways, e.g., by the goods not being capable of being distinguished as the goods of such a proprietor or by extensive piracy so that the marks become public juries. The principle underlying clause (c) of Section 32 that the property in a trade mark exists so long as it continues to be distinctive of the goods of the registered proprietor in the eyes of the public or a section of the public. If the proprietor is not in a position to use the mark to distinguish his goods from those of others or has abandoned it or the mark has become so common in the market that it has ceased to connect him with his goods, there would hardly be any justification in retaining it on the register. The progressive increase in the sales of Asia Fifty and Asia 50 bells from 1949-50 and onwards together with the evidence of witnesses examined by the respondent-company shows that the said trade marks distinguished the goods of the respondent-company from those of other manufacturers in the field. Under Section 32 (c) the marks have to be distinctive at the commencement of the proceedings prima facie the expression "commencement of the proceedings" would mean the commencement of proceedings in which the question as to the conclusive character of the registration, as laid down in Section 32 arises. Such a question may arise in a suit for infringement of the trade mark in which the registered proprietor may rely on Section 32 to prove his title to the registered trade mark as also in rectification proceedings filed as a result of such a suit or otherwise, and the period of seven years would have to be calculated according to the particular proceedings in which the conclusive nature of the validity of registration is relied on. In the present case, whether the crucial date for the purpose of Section 32 (c) is taken to be 1959 when the suits were filed or 1961 when the appellant-companies took out the rectification proceedings it makes no difference as it is not possible from the evidence on record to say that the trade marks in question were not or had ceased to be distinctive. The indication, on the contrary, is that they were distinctive. This is to be found from the zeal with which the respondent-company tried to maintain its right in them. The evidence shows that when the respondent-company found in 1954 that M/s. Indian Union Manufacturers Ltd., Calcutta, had been inscribing the word Fifty on its bells, it at once filed an infringement action. The action ended in a compromise by which the said company acknowledged the respondent-companys rights in its trade marks of Fifty and 50. Again, when the attention of the respondent-company was drawn to an advertisement "Five 50", it addressed a notice to the manufacturers of those bells. The case of the respondent-company was that Gupta Industrial Corporation started using the word Fifty on its bells in 1958 and not in 1948 as contended by Mr. Desai. In the absence of any evidence as to the extent of manufacture and sale of those bells it would not be possible to say with any certainty that the respondent-company did not come to know about it till 1958 and therefore, presumed that Gupta Corporation had started using the word Fifty on its bells in that year. According to the appellant National Bell Co., it went into production only in 1957 and in 1956 the respondent-company commenced action against it. A similar notice of infringement followed by a suit was also given to M/s. Berry and Co., but the suit became infructuous on account of lack of the jurisdiction of the Court of Banaras where it was filed. This evidence negatives any abandonment of trade marks of letting infringements go unchallenged or misleading the other manufacturers that the respondent-company would not interfere if they were to use the same marks. Rights in a mark can, of course, be abandoned by its owner but so long as the remains the registered proprietor of the mark and carried on the business to which the mark is attached, a plea of abandonment if difficult to sustain. It would however, be a different matter if it is shown that there were repeated, undisturbed infringements. The evidence in the present case does not show that there were repeated breached which went unchallenged though known to the proprietor. Mere neglect to proceed does not necessarily constitute abandonment if it is respect of infringements which was not sufficient to affect the distinctiveness of the mark even if the proprietor is aware of them [See Re Farina ((1879) 27 WR 456)]. Where neglect to challenge infringement is alleged, the character and extent of the trade of the infringers and their position have to be reckoned in considering whether the registered proprietor is barred by such neglect. [See Rowlant v. Mitchell. ((1897) 14 RPC 37)] The plea of common use must fail, for to establish it the use by other person should be substantial. Though evidence was produced by the appellant-companies to show that there were other bells in the market with Fifty or 50 inscribed on them no evidence was led to show that the use of the word Fifty or the numeral 50 was substantial. In these circumstances, it is impossible to sustain the contention founded on clause (c) of Section 32.18. Under Section 56, the power to rectify is undoubtedly discretionary. Where such discretion has been properly exercised, a court of appeal would refuse to interfere. In the present case, however, the Trial Court did to appreciate the principle embodied in Section 32 and 11, with the result that the Division Bench was justified in interfering with discretion exercised by the Trial Court.
### Response:
0
### Explanation:
the commencement of the proceedings distinctive of the goods of the respondent-company. The distinctiveness of the trade mark in relation to the goods of a registered proprietor of such a trade mark may be lost in a variety of ways, e.g., by the goods not being capable of being distinguished as the goods of such a proprietor or by extensive piracy so that the marks become public juries. The principle underlying clause (c) of Section 32 that the property in a trade mark exists so long as it continues to be distinctive of the goods of the registered proprietor in the eyes of the public or a section of the public. If the proprietor is not in a position to use the mark to distinguish his goods from those of others or has abandoned it or the mark has become so common in the market that it has ceased to connect him with his goods, there would hardly be any justification in retaining it on the register. The progressive increase in the sales of Asia Fifty and Asia 50 bells from 1949-50 and onwards together with the evidence of witnesses examined by the respondent-company shows that the said trade marks distinguished the goods of the respondent-company from those of other manufacturers in the field. Under Section 32 (c) the marks have to be distinctive at the commencement of the proceedings prima facie the expression "commencement of the proceedings" would mean the commencement of proceedings in which the question as to the conclusive character of the registration, as laid down in Section 32 arises. Such a question may arise in a suit for infringement of the trade mark in which the registered proprietor may rely on Section 32 to prove his title to the registered trade mark as also in rectification proceedings filed as a result of such a suit or otherwise, and the period of seven years would have to be calculated according to the particular proceedings in which the conclusive nature of the validity of registration is relied on. In the present case, whether the crucial date for the purpose of Section 32 (c) is taken to be 1959 when the suits were filed or 1961 when the appellant-companies took out the rectification proceedings it makes no difference as it is not possible from the evidence on record to say that the trade marks in question were not or had ceased to be distinctive. The indication, on the contrary, is that they were distinctive. This is to be found from the zeal with which the respondent-company tried to maintain its right in them. The evidence shows that when the respondent-company found in 1954 that M/s. Indian Union Manufacturers Ltd., Calcutta, had been inscribing the word Fifty on its bells, it at once filed an infringement action. The action ended in a compromise by which the said company acknowledged the respondent-companys rights in its trade marks of Fifty and 50. Again, when the attention of the respondent-company was drawn to an advertisement "Five 50", it addressed a notice to the manufacturers of those bells. The case of the respondent-company was that Gupta Industrial Corporation started using the word Fifty on its bells in 1958 and not in 1948 as contended by Mr. Desai. In the absence of any evidence as to the extent of manufacture and sale of those bells it would not be possible to say with any certainty that the respondent-company did not come to know about it till 1958 and therefore, presumed that Gupta Corporation had started using the word Fifty on its bells in that year. According to the appellant National Bell Co., it went into production only in 1957 and in 1956 the respondent-company commenced action against it. A similar notice of infringement followed by a suit was also given to M/s. Berry and Co., but the suit became infructuous on account of lack of the jurisdiction of the Court of Banaras where it was filed. This evidence negatives any abandonment of trade marks of letting infringements go unchallenged or misleading the other manufacturers that the respondent-company would not interfere if they were to use the same marks. Rights in a mark can, of course, be abandoned by its owner but so long as the remains the registered proprietor of the mark and carried on the business to which the mark is attached, a plea of abandonment if difficult to sustain. It would however, be a different matter if it is shown that there were repeated, undisturbed infringements. The evidence in the present case does not show that there were repeated breached which went unchallenged though known to the proprietor. Mere neglect to proceed does not necessarily constitute abandonment if it is respect of infringements which was not sufficient to affect the distinctiveness of the mark even if the proprietor is aware of them [See Re Farina ((1879) 27 WR 456)]. Where neglect to challenge infringement is alleged, the character and extent of the trade of the infringers and their position have to be reckoned in considering whether the registered proprietor is barred by such neglect. [See Rowlant v. Mitchell. ((1897) 14 RPC 37)] The plea of common use must fail, for to establish it the use by other person should be substantial. Though evidence was produced by the appellant-companies to show that there were other bells in the market with Fifty or 50 inscribed on them no evidence was led to show that the use of the word Fifty or the numeral 50 was substantial. In these circumstances, it is impossible to sustain the contention founded on clause (c) of Section 32.18. Under Section 56, the power to rectify is undoubtedly discretionary. Where such discretion has been properly exercised, a court of appeal would refuse to interfere. In the present case, however, the Trial Court did to appreciate the principle embodied in Section 32 and 11, with the result that the Division Bench was justified in interfering with discretion exercised by the Trial Court.
|
Firm of Harbanslal Jagmohandas & Another Vs. Prabhudas Shivlal | making material statements and setting forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked."In Rajabhai Abdul Rehman v. Vasudev Dhanjibhai, (1964) 3 SCR 480 = (AIR 1964 SC 345 ) this Court after referring to the previous decision, cited above, observed as follows:"Exercise of the jurisdiction of the Court under Art. 136 of the Constitution is discretionary: it is exercised sparingly and in exceptional cases, when a substantial question of law falls to be determined or where it appears to the Court that interference by this Court is necessary to remedy serious injustice. A party who approaches this Court invoking the exercise of this overriding discretion of the Court must come with clean hands. If there appears on his part any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal."In Sita Bai v. Soni Vanji Wani, Civil Appeal No. 982 of 1965 D/- 25-4-1968 (SC) this Court revoked special leave on the ground that on a matter of importance the appellants therein had made untrue statements before this Court. Recently in Shankar Madhoji Nemade v. Chisuji Janaji, Civil Appeal No. 85 of 1967 D/- 8-9-1970=(reported in AIR 1971 SC 281 ) this Court reiterated the principles laid down in the above decisions. But on facts it was held that there has been no untrue or false averment regarding material facts.16. Having due regard to the principles laid down above and applying them to the case on hand, we are of the opinion that the request of the respondent for revoking special leave granted has to be rejected. We are also satisfied that there has been no false or untrue averment on material facts made by the petitioners for the purpose of misleading this Court.Paragraph No. 2 of the special leave petition refers to the conflict between the Gujarat and Bombay High Courts with regard to the scope and applicability of S. 12 (3) (a) of the Bombay Rent Act. The contrary view taken by the Gujarat High Court is the one reported in Chunilal Shivlal v. Chimanlal Nagindas, (1966) 7 Guj LR 945 which has been followed by the two subordinate courts. No doubt the High Court has summarily rejected the Civil Revision Petition.Therefore, what is stated in paragraph No. 2 is a pure statement of the legal position and factually it is correct. We have also referred to the grounds Nos. 2, 3 and 16 which are purely legal contentions. The contention of Mr. Shroff, learned counsel for respondent is that a reading of these grounds gives the impression that the attention of the Gujarat High Court was drawn to the Full Bench decision of the Bombay High Court when the Civil Revision Petition was disposed of. Assuming it is so, in our opinion, it cannot be stated that there is any mis-statement or untrue averment contained in these grounds. It must be remembered that they are legal contentions taken in the grounds attacking the judgment of the Gujarat High Court. We fail to see in what other manner a party can draw the attention of this Court to a conflict between two High Courts with regard to the interpretation of a substantially similar provision of a statute. It is needless to state that if a party wants to have a particular legal position settled in a High Court reconsidered on the basis of a different decision on identical point by the other High Court and specially with regard to the same statute, he must draw the attention of the learned Judge to that decision bearing on the point in question. This will be a very proper thing for a party to do. But that is far from saying that if he has omitted to place a particular decision of another High Court on an identical matter, but nevertheless when the judgment so given is before a higher Tribunal, he should not be allowed to challenge the decision on the ground that the other High Courts have taken a different view.For instance, if a matter is disposed of by a Division Bench of the same High Court and a similar matter is disposed of by a Single Judge on the next day without being made aware of the decision of the Division Bench in our opinion, it will be perfectly open to the party aggrieved by the judgment of the Single Judge, when filing an appeal against that judgment to urge that it is contrary to the Division Bench decision of the same court though that judgment was not brought to the notice of the Single Judge.The grounds taken on legal points should not, in our opinion, be confused or mixed up with the averments regarding material facts or matters of importance.17. We are of the opinion that none of the statements in the special leave petition relied on by Mr. Shroff can be considered to be untrue or false statements on the material facts or matters of importance. Therefore, the prayer of the respondent for revoking the special leave granted will have to be rejected. The C. M. P. No. 2282 of 1971 is allowed and the prayer in C. M. P. No. 854 of 1971 will stand suitably amended. | 1[ds]9. It, therefore, appears that the petitioners have completely misled this Honble Court in regard to the true facts and have thereby obtained from this Honble Court Special Leave to Appeal, which in all probability, this Honble Court would not have been pleased to grant had the petitioners placed before this Honble Court true facts of theit will be seen from the material averments of the respondent that his bone of contention regarding the statements of fact by the petitioners is that the statements contained in the relevant paragraphs of the special leave petition, adverted to earlier, give the impression that the Full Bench decision of the Bombay High Court was placed before the Single Judge of the Gujarat High Court when C. R. P. No. 1353 of 1970 was being disposed of. That the said judgment was not brought to the notice of the High Court is clear from the fact that no grounds were taken in the Civil Revision Petition regarding any conflict between the Gujarat and the Bombay High Courts on identical provisions of thecan be no controversy that if the petitioners have made an untrue averment regarding material statements or false statement of matters of importance or a deliberate untrue statement of material facts so as to mislead this Court or if there has been any suppression on any point of importance, the special leave granted by this Court will have to be revoked.Having due regard to the principles laid down above and applying them to the case on hand, we are of the opinion that the request of the respondent for revoking special leave granted has to be rejected. We are also satisfied that there has been no false or untrue averment on material facts made by the petitioners for the purpose of misleading this Court.Paragraph No. 2 of the special leave petition refers to the conflict between the Gujarat and Bombay High Courts with regard to the scope and applicability of S. 12 (3) (a) of the Bombay Rent Act. The contrary view taken by the Gujarat High Court is the one reported in Chunilal Shivlal v. Chimanlal Nagindas, (1966) 7 Guj LR 945 which has been followed by the two subordinate courts. No doubt the High Court has summarily rejected the Civil Revision Petition.Therefore, what is stated in paragraph No. 2 is a pure statement of the legal position and factually it is correct. We have also referred to the grounds Nos. 2, 3 and 16 which are purely legal contentions. The contention of Mr. Shroff, learned counsel for respondent is that a reading of these grounds gives the impression that the attention of the Gujarat High Court was drawn to the Full Bench decision of the Bombay High Court when the Civil Revision Petition was disposed of. Assuming it is so, in our opinion, it cannot be stated that there is any mis-statement or untrue averment contained in these grounds. It must be remembered that they are legal contentions taken in the grounds attacking the judgment of the Gujarat High Court. We fail to see in what other manner a party can draw the attention of this Court to a conflict between two High Courts with regard to the interpretation of a substantially similar provision of a statute. It is needless to state that if a party wants to have a particular legal position settled in a High Court reconsidered on the basis of a different decision on identical point by the other High Court and specially with regard to the same statute, he must draw the attention of the learned Judge to that decision bearing on the point in question. This will be a very proper thing for a party to do. But that is far from saying that if he has omitted to place a particular decision of another High Court on an identical matter, but nevertheless when the judgment so given is before a higher Tribunal, he should not be allowed to challenge the decision on the ground that the other High Courts have taken a different view.For instance, if a matter is disposed of by a Division Bench of the same High Court and a similar matter is disposed of by a Single Judge on the next day without being made aware of the decision of the Division Bench in our opinion, it will be perfectly open to the party aggrieved by the judgment of the Single Judge, when filing an appeal against that judgment to urge that it is contrary to the Division Bench decision of the same court though that judgment was not brought to the notice of the Single Judge.The grounds taken on legal points should not, in our opinion, be confused or mixed up with the averments regarding material facts or matters of importance.17. We are of the opinion that none of the statements in the special leave petition relied on by Mr. Shroff can be considered to be untrue or false statements on the material facts or matters of importance. Therefore, the prayer of the respondent for revoking the special leave granted will have to be rejected. The C. M. P. No. 2282 of 1971 is allowed and the prayer in C. M. P. No. 854 of 1971 will stand suitably amended. | 1 | 3,974 | 936 | ### 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:
making material statements and setting forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked."In Rajabhai Abdul Rehman v. Vasudev Dhanjibhai, (1964) 3 SCR 480 = (AIR 1964 SC 345 ) this Court after referring to the previous decision, cited above, observed as follows:"Exercise of the jurisdiction of the Court under Art. 136 of the Constitution is discretionary: it is exercised sparingly and in exceptional cases, when a substantial question of law falls to be determined or where it appears to the Court that interference by this Court is necessary to remedy serious injustice. A party who approaches this Court invoking the exercise of this overriding discretion of the Court must come with clean hands. If there appears on his part any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the discretion, the Court would be justified in refusing to exercise the discretion or if the discretion has been exercised in revoking the leave to appeal granted even at the time of hearing of the appeal."In Sita Bai v. Soni Vanji Wani, Civil Appeal No. 982 of 1965 D/- 25-4-1968 (SC) this Court revoked special leave on the ground that on a matter of importance the appellants therein had made untrue statements before this Court. Recently in Shankar Madhoji Nemade v. Chisuji Janaji, Civil Appeal No. 85 of 1967 D/- 8-9-1970=(reported in AIR 1971 SC 281 ) this Court reiterated the principles laid down in the above decisions. But on facts it was held that there has been no untrue or false averment regarding material facts.16. Having due regard to the principles laid down above and applying them to the case on hand, we are of the opinion that the request of the respondent for revoking special leave granted has to be rejected. We are also satisfied that there has been no false or untrue averment on material facts made by the petitioners for the purpose of misleading this Court.Paragraph No. 2 of the special leave petition refers to the conflict between the Gujarat and Bombay High Courts with regard to the scope and applicability of S. 12 (3) (a) of the Bombay Rent Act. The contrary view taken by the Gujarat High Court is the one reported in Chunilal Shivlal v. Chimanlal Nagindas, (1966) 7 Guj LR 945 which has been followed by the two subordinate courts. No doubt the High Court has summarily rejected the Civil Revision Petition.Therefore, what is stated in paragraph No. 2 is a pure statement of the legal position and factually it is correct. We have also referred to the grounds Nos. 2, 3 and 16 which are purely legal contentions. The contention of Mr. Shroff, learned counsel for respondent is that a reading of these grounds gives the impression that the attention of the Gujarat High Court was drawn to the Full Bench decision of the Bombay High Court when the Civil Revision Petition was disposed of. Assuming it is so, in our opinion, it cannot be stated that there is any mis-statement or untrue averment contained in these grounds. It must be remembered that they are legal contentions taken in the grounds attacking the judgment of the Gujarat High Court. We fail to see in what other manner a party can draw the attention of this Court to a conflict between two High Courts with regard to the interpretation of a substantially similar provision of a statute. It is needless to state that if a party wants to have a particular legal position settled in a High Court reconsidered on the basis of a different decision on identical point by the other High Court and specially with regard to the same statute, he must draw the attention of the learned Judge to that decision bearing on the point in question. This will be a very proper thing for a party to do. But that is far from saying that if he has omitted to place a particular decision of another High Court on an identical matter, but nevertheless when the judgment so given is before a higher Tribunal, he should not be allowed to challenge the decision on the ground that the other High Courts have taken a different view.For instance, if a matter is disposed of by a Division Bench of the same High Court and a similar matter is disposed of by a Single Judge on the next day without being made aware of the decision of the Division Bench in our opinion, it will be perfectly open to the party aggrieved by the judgment of the Single Judge, when filing an appeal against that judgment to urge that it is contrary to the Division Bench decision of the same court though that judgment was not brought to the notice of the Single Judge.The grounds taken on legal points should not, in our opinion, be confused or mixed up with the averments regarding material facts or matters of importance.17. We are of the opinion that none of the statements in the special leave petition relied on by Mr. Shroff can be considered to be untrue or false statements on the material facts or matters of importance. Therefore, the prayer of the respondent for revoking the special leave granted will have to be rejected. The C. M. P. No. 2282 of 1971 is allowed and the prayer in C. M. P. No. 854 of 1971 will stand suitably amended.
### Response:
1
### Explanation:
9. It, therefore, appears that the petitioners have completely misled this Honble Court in regard to the true facts and have thereby obtained from this Honble Court Special Leave to Appeal, which in all probability, this Honble Court would not have been pleased to grant had the petitioners placed before this Honble Court true facts of theit will be seen from the material averments of the respondent that his bone of contention regarding the statements of fact by the petitioners is that the statements contained in the relevant paragraphs of the special leave petition, adverted to earlier, give the impression that the Full Bench decision of the Bombay High Court was placed before the Single Judge of the Gujarat High Court when C. R. P. No. 1353 of 1970 was being disposed of. That the said judgment was not brought to the notice of the High Court is clear from the fact that no grounds were taken in the Civil Revision Petition regarding any conflict between the Gujarat and the Bombay High Courts on identical provisions of thecan be no controversy that if the petitioners have made an untrue averment regarding material statements or false statement of matters of importance or a deliberate untrue statement of material facts so as to mislead this Court or if there has been any suppression on any point of importance, the special leave granted by this Court will have to be revoked.Having due regard to the principles laid down above and applying them to the case on hand, we are of the opinion that the request of the respondent for revoking special leave granted has to be rejected. We are also satisfied that there has been no false or untrue averment on material facts made by the petitioners for the purpose of misleading this Court.Paragraph No. 2 of the special leave petition refers to the conflict between the Gujarat and Bombay High Courts with regard to the scope and applicability of S. 12 (3) (a) of the Bombay Rent Act. The contrary view taken by the Gujarat High Court is the one reported in Chunilal Shivlal v. Chimanlal Nagindas, (1966) 7 Guj LR 945 which has been followed by the two subordinate courts. No doubt the High Court has summarily rejected the Civil Revision Petition.Therefore, what is stated in paragraph No. 2 is a pure statement of the legal position and factually it is correct. We have also referred to the grounds Nos. 2, 3 and 16 which are purely legal contentions. The contention of Mr. Shroff, learned counsel for respondent is that a reading of these grounds gives the impression that the attention of the Gujarat High Court was drawn to the Full Bench decision of the Bombay High Court when the Civil Revision Petition was disposed of. Assuming it is so, in our opinion, it cannot be stated that there is any mis-statement or untrue averment contained in these grounds. It must be remembered that they are legal contentions taken in the grounds attacking the judgment of the Gujarat High Court. We fail to see in what other manner a party can draw the attention of this Court to a conflict between two High Courts with regard to the interpretation of a substantially similar provision of a statute. It is needless to state that if a party wants to have a particular legal position settled in a High Court reconsidered on the basis of a different decision on identical point by the other High Court and specially with regard to the same statute, he must draw the attention of the learned Judge to that decision bearing on the point in question. This will be a very proper thing for a party to do. But that is far from saying that if he has omitted to place a particular decision of another High Court on an identical matter, but nevertheless when the judgment so given is before a higher Tribunal, he should not be allowed to challenge the decision on the ground that the other High Courts have taken a different view.For instance, if a matter is disposed of by a Division Bench of the same High Court and a similar matter is disposed of by a Single Judge on the next day without being made aware of the decision of the Division Bench in our opinion, it will be perfectly open to the party aggrieved by the judgment of the Single Judge, when filing an appeal against that judgment to urge that it is contrary to the Division Bench decision of the same court though that judgment was not brought to the notice of the Single Judge.The grounds taken on legal points should not, in our opinion, be confused or mixed up with the averments regarding material facts or matters of importance.17. We are of the opinion that none of the statements in the special leave petition relied on by Mr. Shroff can be considered to be untrue or false statements on the material facts or matters of importance. Therefore, the prayer of the respondent for revoking the special leave granted will have to be rejected. The C. M. P. No. 2282 of 1971 is allowed and the prayer in C. M. P. No. 854 of 1971 will stand suitably amended.
|
Municipality Of Taloda Vs. The Charity Commissioner & Ors | medical relief, and (4) the advancement of any other object of general public utility, but does not include purpose which relates- (a) exclusively to sports, or (b) exclusively to religious teaching or worship." Section 10 of the Act provides:"Notwithstanding any law, custom or usage, a public trust shall not be void, only on the ground that the persons or objects for the benefit of whom or which it is created are unascertained or unascertainable. Explanation.- * * *" The expression "public trust" is defined in S. a (13) as meaning an express or constructive trust for either a public, religious or charitable purpose, or both and includes a temple, a math, a wakf, a dharmada or any other religious or charitable purpose or for both and registered under the Societies Registration Act, 1860. A trust for either a religious or charitable purpose or for both by the express words of the definition is a public trust.We are unable to agree with the learned Assistant Judge that Sadhus, religious mendicants and visitors to the samadhi of Nagabawa are not a section of the public. They have a common bond of veneration for the samadhi. The beneficiaries of the trust are an uncertain and fluctuating body of persons forming a considerable section of the public and answering a particular description, and the fact that they belong to a religious faith or a sect or persons of a certain religious persuasion does not make any difference in the matter: Ram Saroop Dasji v S. P. Sahi, (1959) Supp (2) SCR 583: (AIR 1959 SC 951 ).The property is entrusted to the Municipality for providing shelter to "sadhus, saints and religious mendicants": the purpose, in our judgment is religious and charitable within the meaning of S. 2 (13) of the Act. 9. The plea that Dagadu Khushal had entrusted the property to the Municipality only for maintaining a Dharamshala for the benefit of persons visiting the samadhi of Guru Nagabawa and the trust was limited only to the building of the Dharamshala has also no force. The terms of Ex 14 are clear. The trust was not limited to the buildings standing on the land, it extended to the entire property. 10. Two procedural objections which were raised by counsel for the Municipality remain to be considered. It was urged that since Sambhusing applied for a declaration that the purpose of the trust was to give shelter to sadhus, saints and religious mendicants during their sojourn in Taloda and to maintain and look after Nagabawas samadhi, and for an order that all the lands adjoining the samadhi of Nagabawai. e., the Dharamshala, the whole building in which there was the Municipal Office, may be given into the possession of the Johari Panchas, it was not open to the Assistant Charity Commissioner to give a finding that there existed a public trust for the benefit of persons interested in the samadhi. It was contended that once it was found that the property was not for the benefit of the Johari Panchas, the application should have been dismissed. We are unable to agree with that contention. The proceedings were commenced under S. 19 of the Bombay Public Trusts Act, and it was open to the Assistant Charity Commissioner to determine whether a public trust existed, and if the Assistant Charity Commissioner was satisfied that there existed a public trust, whatever may be the claim made by the applicants, the Assistant Charity Commissioner was bound to declare the existence of the public trust and register it. Under S. 19 of the Bombay Public Trusts Act, an inquiry may be started by the Deputy or Assistant Charity Commissioner either on an application made under S. 18 or on an application made by any person having interest in a public trust or on his own motion. The proceeding before the Assistant Charity Commissioner was not a proceeding inter partes, and Sambhusing was not claiming any personal relief. He was entitled to set in motion an enquiry into the nature of the trust as a person claiming to be interested in the public trust. If the Assistant Charity Commissioner found that a public trust existed, he could make an appropriate declaration and consequential orders consistent with his findings. 11. It was finally urged that against the finding of the District Court that there was no public trust, and if there was a public trust the beneficiaries were not the members of the public, the Charity Commissioner could not appeal to the High Court, for, it was said, the Charity Commissioner is constituted by the Act, a judicial authority, and be cannot take up in the proceeding a contentious attitude. We are unable to accept that contention also. The powers of the Charity Commissioner under the Act are found in S. 3. That Officer is directed to exercise such powers and perform such duties and functions as are conferred by or under the provisions of the Act, and shall, subject to such general or special orders as the State Government may pass, superintend the administration and carry out the provisions of the Act throughout the State. If an adverse decision is arrived at by the Court under S. 72 and if he is denied the right to appeal to the High Court, it would be difficult for him, if he is of the view that the property is the property of the public trust and if the District Court rules otherwise, to carry out the provisions of the Act. The Charity Commissioner was made a party to the appeal, and he was entitled to support his order before the District Court.A person interested, as the Charity Commissioner is in the due administration of property, cannot be denied a right to appeal against an adverse decision in a proceeding to which ho is a party, on the ground that he is pleading for acceptance of the view which he had declared as a quasi-judicial authority at an earlier stage of that proceeding. | 0[ds]In that argument, in our judgment, there is to substance.The only dispute in suit No. 510 of 1936 of the Court of the Second Class Sub-Judge, Nandurbar, was about the right of the Municipality to call upon Baba Haridas to vacate and deliver possession of the property, which was in his occupation. It is true that the defendant Baba Haridas had contended that the property was the property reserved for "Sadhus, saints and religious mendicants" and he as a Sadhu was entitled to reside, therein But Baba. Haridas was not sued in a representative capacity on behalf of the beneflciaries of the trust created in 1883, he was sued as a trespasser. The judgment of the Civil Court does not operate to prevent the Assistant Charity Commissioner from determining in an appropriate proceeding whether the property was the property of a public trust of a religious or charitable nature7. The argument of counsel for the Municipality that the decision of the City Survey Officer operates, by virtue of S. 50-A of the Bombay District Municipal Act. 1901 to destroy the rights of the public, is also without substance. Sub-section (1) of S. 50A of the Bombay District Municipal Act 1901, authorises the City Survey Officer, in proceedings for survey of lands (other than land used for agriculture) in a Municipal District to determine the claim between) the Municipality and other persons after formal enquiry of which due notice has been given. By sub-s. (2) any suit instituted in any civil court after the expiration of one year from the date of any order passed by the Collector, or if an appeal has been made against such order within the period of limitation shall be dismissed if the suit is brought to set aside such order, or if the relief claimed is inconsistent with such order, provided that the plaintiff has had due notice of such order. The property undoubtedly is entered in the City Survey record as private property of the Taloda Municipality. But the legal ownership of the Municipality is not challenged in the proceedings before the Assistant Charity CommissionerThe proceeding under S. 19 of the Bombay Public Trusts Act for a declaration that the property is the property of a public trust is not a suit to set aside the order of the Collector, nor is it a suit in which the relief claimed is inconsistent with the order of the City Survey OfficerWe are unable to agree with that viewThe expression "public trust" is defined in S. a (13) as meaning an express or constructive trust for either a public, religious or charitable purpose, or both and includes a temple, a math, a wakf, a dharmada or any other religious or charitable purpose or for both and registered underthe Societies Registration Act, 1860. A trust for either a religious or charitable purpose or for both by the express words of the definition is a public trust.We are unable to agree with the learned Assistant Judge that Sadhus, religious mendicants and visitors to the samadhi of Nagabawa are not a section of the public. They have a common bond of veneration for the samadhi. The beneficiaries of the trust are an uncertain and fluctuating body of persons forming a considerable section of the public and answering a particular description, and the fact that they belong to a religious faith or a sect or persons of a certain religious persuasion does not make any difference in the matter: Ram Saroop Dasji v S. P. Sahi, (1959) Supp (2) SCR 583: (AIR 1959 SC 951 ).The property is entrusted to the Municipality for providing shelter to "sadhus, saints and religious mendicants": the purpose, in our judgment is religious and charitable within the meaning of S. 2 (13) of the Act9. The plea that Dagadu Khushal had entrusted the property to the Municipality only for maintaining a Dharamshala for the benefit of persons visiting the samadhi of Guru Nagabawa and the trust was limited only to the building of the Dharamshala has also no force. The terms of Ex 14 are clear. The trust was not limited to the buildings standing on the land, it extended to the entire propertyWe are unable to agree with that contention. The proceedings were commenced under S. 19 of the Bombay Public Trusts Act, and it was open to the Assistant Charity Commissioner to determine whether a public trust existed, and if the Assistant Charity Commissioner was satisfied that there existed a public trust, whatever may be the claim made by the applicants, the Assistant Charity Commissioner was bound to declare the existence of the public trust and register it. Under S. 19 of the Bombay Public Trusts Act, an inquiry may be started by the Deputy or Assistant Charity Commissioner either on an application made under S. 18 or on an application made by any person having interest in a public trust or on his own motion. The proceeding before the Assistant Charity Commissioner was not a proceeding inter partes, and Sambhusing was not claiming any personal relief. He was entitled to set in motion an enquiry into the nature of the trust as a person claiming to be interested in the public trust. If the Assistant Charity Commissioner found that a public trust existed, he could make an appropriate declaration and consequential orders consistent with his findingsWe are unable to accept that contention also. The powers of the Charity Commissioner under the Act are found in S. 3. That Officer is directed to exercise such powers and perform such duties and functions as are conferred by or under the provisions of the Act, and shall, subject to such general or special orders as the State Government may pass, superintend the administration and carry out the provisions of the Act throughout the State. If an adverse decision is arrived at by the Court under S. 72 and if he is denied the right to appeal to the High Court, it would be difficult for him, if he is of the view that the property is the property of the public trust and if the District Court rules otherwise, to carry out the provisions of the Act. The Charity Commissioner was made a party to the appeal, and he was entitled to support his order before the District Court.A person interested, as the Charity Commissioner is in the due administration of property, cannot be denied a right to appeal against an adverse decision in a proceeding to which ho is a party, on the ground that he is pleading for acceptance of the view which he had declared as a quasi-judicial authority at an earlier stage of that proceedingProperty belonging to a Municipality governed by the Act must undoubtedly be held under its direction, management and control and must be applied by it as a trustee, subject to the provisions and for the purposes of the Act. But there is nothing in the Act or in the general law which prevents a Municipality from accepting a trust in favour of a section of the general public in respect of property transferred to it, or authorises the Municipality after accepting a trust to utilise it for its own purposes in breach of the trustIt is true that the defendant Baba Haridas had contended that the property was the property reserved for "Sadhus, saints and religious mendicants" and he as a Sadhu was entitled to reside, therein But Baba. Haridas was not sued in a representative capacity on behalf of the beneflciaries of the trust created in 1883, he was sued as a trespasser. The judgment of the Civil Court does not operate to prevent the Assistant Charity Commissioner from determining in an appropriate proceeding whether the property was the property of a public trust of a religious or charitable | 0 | 3,462 | 1,415 | ### 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:
medical relief, and (4) the advancement of any other object of general public utility, but does not include purpose which relates- (a) exclusively to sports, or (b) exclusively to religious teaching or worship." Section 10 of the Act provides:"Notwithstanding any law, custom or usage, a public trust shall not be void, only on the ground that the persons or objects for the benefit of whom or which it is created are unascertained or unascertainable. Explanation.- * * *" The expression "public trust" is defined in S. a (13) as meaning an express or constructive trust for either a public, religious or charitable purpose, or both and includes a temple, a math, a wakf, a dharmada or any other religious or charitable purpose or for both and registered under the Societies Registration Act, 1860. A trust for either a religious or charitable purpose or for both by the express words of the definition is a public trust.We are unable to agree with the learned Assistant Judge that Sadhus, religious mendicants and visitors to the samadhi of Nagabawa are not a section of the public. They have a common bond of veneration for the samadhi. The beneficiaries of the trust are an uncertain and fluctuating body of persons forming a considerable section of the public and answering a particular description, and the fact that they belong to a religious faith or a sect or persons of a certain religious persuasion does not make any difference in the matter: Ram Saroop Dasji v S. P. Sahi, (1959) Supp (2) SCR 583: (AIR 1959 SC 951 ).The property is entrusted to the Municipality for providing shelter to "sadhus, saints and religious mendicants": the purpose, in our judgment is religious and charitable within the meaning of S. 2 (13) of the Act. 9. The plea that Dagadu Khushal had entrusted the property to the Municipality only for maintaining a Dharamshala for the benefit of persons visiting the samadhi of Guru Nagabawa and the trust was limited only to the building of the Dharamshala has also no force. The terms of Ex 14 are clear. The trust was not limited to the buildings standing on the land, it extended to the entire property. 10. Two procedural objections which were raised by counsel for the Municipality remain to be considered. It was urged that since Sambhusing applied for a declaration that the purpose of the trust was to give shelter to sadhus, saints and religious mendicants during their sojourn in Taloda and to maintain and look after Nagabawas samadhi, and for an order that all the lands adjoining the samadhi of Nagabawai. e., the Dharamshala, the whole building in which there was the Municipal Office, may be given into the possession of the Johari Panchas, it was not open to the Assistant Charity Commissioner to give a finding that there existed a public trust for the benefit of persons interested in the samadhi. It was contended that once it was found that the property was not for the benefit of the Johari Panchas, the application should have been dismissed. We are unable to agree with that contention. The proceedings were commenced under S. 19 of the Bombay Public Trusts Act, and it was open to the Assistant Charity Commissioner to determine whether a public trust existed, and if the Assistant Charity Commissioner was satisfied that there existed a public trust, whatever may be the claim made by the applicants, the Assistant Charity Commissioner was bound to declare the existence of the public trust and register it. Under S. 19 of the Bombay Public Trusts Act, an inquiry may be started by the Deputy or Assistant Charity Commissioner either on an application made under S. 18 or on an application made by any person having interest in a public trust or on his own motion. The proceeding before the Assistant Charity Commissioner was not a proceeding inter partes, and Sambhusing was not claiming any personal relief. He was entitled to set in motion an enquiry into the nature of the trust as a person claiming to be interested in the public trust. If the Assistant Charity Commissioner found that a public trust existed, he could make an appropriate declaration and consequential orders consistent with his findings. 11. It was finally urged that against the finding of the District Court that there was no public trust, and if there was a public trust the beneficiaries were not the members of the public, the Charity Commissioner could not appeal to the High Court, for, it was said, the Charity Commissioner is constituted by the Act, a judicial authority, and be cannot take up in the proceeding a contentious attitude. We are unable to accept that contention also. The powers of the Charity Commissioner under the Act are found in S. 3. That Officer is directed to exercise such powers and perform such duties and functions as are conferred by or under the provisions of the Act, and shall, subject to such general or special orders as the State Government may pass, superintend the administration and carry out the provisions of the Act throughout the State. If an adverse decision is arrived at by the Court under S. 72 and if he is denied the right to appeal to the High Court, it would be difficult for him, if he is of the view that the property is the property of the public trust and if the District Court rules otherwise, to carry out the provisions of the Act. The Charity Commissioner was made a party to the appeal, and he was entitled to support his order before the District Court.A person interested, as the Charity Commissioner is in the due administration of property, cannot be denied a right to appeal against an adverse decision in a proceeding to which ho is a party, on the ground that he is pleading for acceptance of the view which he had declared as a quasi-judicial authority at an earlier stage of that proceeding.
### Response:
0
### Explanation:
order, provided that the plaintiff has had due notice of such order. The property undoubtedly is entered in the City Survey record as private property of the Taloda Municipality. But the legal ownership of the Municipality is not challenged in the proceedings before the Assistant Charity CommissionerThe proceeding under S. 19 of the Bombay Public Trusts Act for a declaration that the property is the property of a public trust is not a suit to set aside the order of the Collector, nor is it a suit in which the relief claimed is inconsistent with the order of the City Survey OfficerWe are unable to agree with that viewThe expression "public trust" is defined in S. a (13) as meaning an express or constructive trust for either a public, religious or charitable purpose, or both and includes a temple, a math, a wakf, a dharmada or any other religious or charitable purpose or for both and registered underthe Societies Registration Act, 1860. A trust for either a religious or charitable purpose or for both by the express words of the definition is a public trust.We are unable to agree with the learned Assistant Judge that Sadhus, religious mendicants and visitors to the samadhi of Nagabawa are not a section of the public. They have a common bond of veneration for the samadhi. The beneficiaries of the trust are an uncertain and fluctuating body of persons forming a considerable section of the public and answering a particular description, and the fact that they belong to a religious faith or a sect or persons of a certain religious persuasion does not make any difference in the matter: Ram Saroop Dasji v S. P. Sahi, (1959) Supp (2) SCR 583: (AIR 1959 SC 951 ).The property is entrusted to the Municipality for providing shelter to "sadhus, saints and religious mendicants": the purpose, in our judgment is religious and charitable within the meaning of S. 2 (13) of the Act9. The plea that Dagadu Khushal had entrusted the property to the Municipality only for maintaining a Dharamshala for the benefit of persons visiting the samadhi of Guru Nagabawa and the trust was limited only to the building of the Dharamshala has also no force. The terms of Ex 14 are clear. The trust was not limited to the buildings standing on the land, it extended to the entire propertyWe are unable to agree with that contention. The proceedings were commenced under S. 19 of the Bombay Public Trusts Act, and it was open to the Assistant Charity Commissioner to determine whether a public trust existed, and if the Assistant Charity Commissioner was satisfied that there existed a public trust, whatever may be the claim made by the applicants, the Assistant Charity Commissioner was bound to declare the existence of the public trust and register it. Under S. 19 of the Bombay Public Trusts Act, an inquiry may be started by the Deputy or Assistant Charity Commissioner either on an application made under S. 18 or on an application made by any person having interest in a public trust or on his own motion. The proceeding before the Assistant Charity Commissioner was not a proceeding inter partes, and Sambhusing was not claiming any personal relief. He was entitled to set in motion an enquiry into the nature of the trust as a person claiming to be interested in the public trust. If the Assistant Charity Commissioner found that a public trust existed, he could make an appropriate declaration and consequential orders consistent with his findingsWe are unable to accept that contention also. The powers of the Charity Commissioner under the Act are found in S. 3. That Officer is directed to exercise such powers and perform such duties and functions as are conferred by or under the provisions of the Act, and shall, subject to such general or special orders as the State Government may pass, superintend the administration and carry out the provisions of the Act throughout the State. If an adverse decision is arrived at by the Court under S. 72 and if he is denied the right to appeal to the High Court, it would be difficult for him, if he is of the view that the property is the property of the public trust and if the District Court rules otherwise, to carry out the provisions of the Act. The Charity Commissioner was made a party to the appeal, and he was entitled to support his order before the District Court.A person interested, as the Charity Commissioner is in the due administration of property, cannot be denied a right to appeal against an adverse decision in a proceeding to which ho is a party, on the ground that he is pleading for acceptance of the view which he had declared as a quasi-judicial authority at an earlier stage of that proceedingProperty belonging to a Municipality governed by the Act must undoubtedly be held under its direction, management and control and must be applied by it as a trustee, subject to the provisions and for the purposes of the Act. But there is nothing in the Act or in the general law which prevents a Municipality from accepting a trust in favour of a section of the general public in respect of property transferred to it, or authorises the Municipality after accepting a trust to utilise it for its own purposes in breach of the trustIt is true that the defendant Baba Haridas had contended that the property was the property reserved for "Sadhus, saints and religious mendicants" and he as a Sadhu was entitled to reside, therein But Baba. Haridas was not sued in a representative capacity on behalf of the beneflciaries of the trust created in 1883, he was sued as a trespasser. The judgment of the Civil Court does not operate to prevent the Assistant Charity Commissioner from determining in an appropriate proceeding whether the property was the property of a public trust of a religious or charitable
|
Subramanian Swamy Vs. Union of India, Ministry of Law & Others | the case may also be tried where the offence was partly committed or continues to be committed (Section 178). The case may also be tried where the consequence of the act ensues (Section 179). The other provisions in the chapter also deal with regard to certain specific circumstances. Section 186 CrPC gives the High Court powers to determine the issue if two or more courts take cognizance of the same offence. If cases are filed in two or more courts in different jurisdictions, then the Jurisdiction to determine the case lies with the High Court under whose jurisdiction the first complaint was filed. Upon the decision of the High Court regarding the place of trial, the proceedings in all other places shall be discontinued. Thus, it is again left to the facts and circumstances of each case to determine the right forum for the trial of case of defamation. Thus, CrPC governs the territorial jurisdiction and needless to say, if there is abuse of the said jurisdiction, the person grieved by the issue of summons can take appropriate steps in accordance with law. But that cannot be a reason for declaring the provision unconstitutional. 196. Another aspect requires to be addressed pertains to issue of summons. Section 199 CrPC envisages filing of a complaint in court. In case of criminal defamation neither any FIR can be filed nor can any direction be issued under Section 156(3) CrPC. The offence has its own gravity and hence, the responsibility of the Magistrate is more. In a way, it is immense at the time of issue of process. Issue of process, as has been held in Rajindra Nath Mahato v. T. Ganguly, Dy. Superintendent and another, (1972) 1 SCC 450 , is a matter of judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank and others v. Surendra Prasad Sinha, 1993 Supp. (1) SCC 499 it has been held that judicial process should not be an instrument of oppression or needless harassment. The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. In Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, (1998) 5 SCC 749 a two-Judge Bench has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. 197. We have referred to these authorities to highlight that in matters of criminal defamation the heavy burden is on the Magistracy to scrutinise the complaint from all aspects. The Magistrate has also to keep in view the language employed in Section 202 CrPC which stipulates about the resident of the accused at a place beyond the area in which the Magistrate exercises his jurisdiction. He must be satisfied that ingredients of Section 499 CrPC are satisfied. Application of mind in the case of complaint is imperative. 198. We will be failing in our duty if we do not take note of submission of Mr. Bhambhani, learned senior counsel. It is submitted by the learned senior counsel that Exception to Section 499 are required to be considered at the time of summoning of the accused but as the same is not conceived in the provision, it is unconstitutional. It is settled position of law that those who plead Exception must prove it. It has been laid down in M.A. Rumugam (supra) that for the purpose of bringing any case within the purview of the Eighth and the Ninth Exceptions appended to Section 499 IPC, it would be necessary for the person who pleads the Exception to prove it. He has to prove good faith for the purpose of protection of the interests of the person making it or any other person or for the public good. The said proposition would definitely apply to any Exception who wants to have the benefit of the same. Therefore, the argument that if the said Exception should be taken into consideration at the time of the issuing summons it would be contrary to established criminal jurisprudence and, therefore, the stand that it cannot be taken into consideration makes the provision unreasonable, is absolutely an unsustainable one and in a way, a mercurial one. And we unhesitatingly repel the same.199. In view of the aforesaid analysis, we uphold the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. During the pendency of the Writ Petitions, this Court had directed stay of further proceedings before the trial court. As we declare the provisions to be constitutional, we observe that it will be open to the petitioners to challenge the issue of summons before the High Court either under Article 226 of the Constitution of India or Section 482 CrPC, as advised and seek appropriate relief and for the said purpose, we grant eight weeks time to the petitioners. The interim protection granted by this Court shall remain in force for a period of eight weeks. However, it is made clear that, if any of the petitioners has already approached the High Court and also become unsuccessful before this Court, he shall face trial and put forth his defence in accordance with law. | 1[ds]114. We have referred to a series of judgments on freedom of speech and then referred to Devidas Ramchandra Tuljapurkar (supra) which dealt with Section 292 IPC solely for the purpose that test in respect of that offence is different. That apart, constitutional validity of Section 292 has been upheld in Ranjit D. Udeshi (supra). It is to be noted that all the cases, barring Odyssey Communication Pvt. Ltd. (supra) and Bobby Art International (supra) [Bandit Queen case], all others are in the fictional realm. We are disposed to think that the right of expression with regard to fictional characters through any medium relating to creation of a fiction would be somewhat dissimilar for it may not have reference to an individual or a personality. Right of expression in such cases is different, and be guided by provisions of any enactment subject to constitutional scrutiny. The right of freedom of expression in a poem, play or a novel pertaining to fictional characters stand on a different footing than defamation as the latter directly concerns the living or the legal heirs of the dead and most importantly, having a known identity. A person in reality is defamed contrary to a "fictional character" being spoken of by another character or through any other mode of narrative. Liberty of freedom in that sphere is fundamentally different than the arena of defamation. Therefore, the decisions rendered in the said context are to be guardedly studied, appreciated and applied. It may be immediately added here that the freedom in the said sphere is not totally without any limit or boundary. We have only adverted to the said aspect to note that what could legally be permissible in the arena of fiction may not have that allowance in reality. Also, we may state in quite promptitude that we have adverted to this concept only to have the completeness with regard to precious value of freedom of speech and expression and the limitations perceived and stipulated thereon.Be that as it may, the aforesaid authorities clearly lay down that freedom of speech and expression is a highly treasured value under the Constitution and voice of dissent or disagreement has to be respected and regarded and not to be scuttled as unpalatable criticism. Emphasis has been laid on the fact that dissonant and discordant expressions are to be treated as view-points with objectivity and such expression of views and ideas being necessary for growth of democracy are to be zealously protected. Notwithstanding, the expansive and sweeping and ambit of freedom of speech, as all rights, right to freedom of speech and expression is not absolute. It is subject to imposition of reasonable restrictions.The thoughts of the aforesaid two thinkers, as we understand, are not contrary to each other. They relate to different situations and conceptually two different ideas; one speaks of an attitude of compromising liberty by accepting chains and slavery to save life and remain in peace than to death, and the other view relates to "qualified civil liberty" and needed control for existence of the society. Contexts are not different and reflect one idea. Rhetorics may have its own place when there is disproportionate restriction but acceptable restraint subserves the social interest. In the case at hand, it is to be seen whether right to freedom and speech and expression can be allowed so much room that even reputation of an individual which is a constituent of Article 21 would have no entry into that area. To put differently, in the name of freedom of speech and expression, should one be allowed to mar the others reputation as is understood within the ambit of defamation as defined in criminal law.In Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India and others, (2014) 9 SCC 737 , wherein the majority in the Constitution Bench has observed that the fundamental right to life among all fundamental rights is the most precious to all human beings. The aforementioned authorities clearly state that balancing of fundamental rights is a constitutional necessity. It is the duty of the Court to strike a balance so that the values are sustained. The submission is that continuance of criminal defamation under Section 499 IPC is constitutionally inconceivable as it creates a serious dent in the right to freedom of speech and expression. It is urged that to have defamation as a component of criminal law is an anathema to the idea of free speech which is recognized under the Constitution and, therefore, criminalization of defamation in any form is an unreasonable restriction. We have already held that reputation is an inextricable aspect of right to life under Article 21 of the Constitution and the State in order to sustain and protect the said reputation of an individual has kept the provision under Section 499 IPC alive as a part of law. The seminal point is permissibility of criminal defamation as a reasonable restriction as understood under Article 19(2) of the Constitution. To elucidate, the submission is that criminal defamation, a pre-Constitution law is totally alien to the concept of free speech. As stated earlier, the right to reputation is a constituent of Article 21 of the Constitution. It is an individuals fundamental right and, therefore, balancing of fundamental right is imperative. The Court has spoken about synthesis and overlapping of fundamental rights, and thus, sometimes conflicts between two rights and competing values. In the name of freedom of speech and expression, the right of another cannot be jeopardized. In this regard, reproduction of a passage from Noise Pollution (V), In re, (2005) 5 SCC 733 would be apposite. It reads asUndoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge in aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels, then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21. We need not further dwell on this aspect. Two decisions in this regard delivered by the High Courts have been brought to our notice wherein the right to live in an atmosphere free from noise pollution has been upheld as the one guaranteed by Article 21 of the Constitution. These decisions are Free Legal Aid Cell Shri Sugan Chand Aggarwal v. Govt. of NCT of Delhi, AIR 2001 Del 455 : (2001) 93 DLT 28 (DB) and P.A. Jacob v. Supdt. of Police, AIR 1993 Ker 1 . We have carefully gone through the reasoning adopted in the two decisions and the principle of law laid down therein, in particular, the exposition of Article 21 of the Constitution. We find ourselves in entire agreement therewith.We are in respectful agreement with the aforesaid enunciation of law. Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom. It is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being had to another persons right to go to Court and state that he has been wronged and abused. He can take recourse to a procedure recognized and accepted in law to retrieve and redeem his reputation. Therefore, the balance between the two rights needs to be struck. "Reputation" of one cannot be allowed to be crucified at the altar of the others right of free speech.The analysis therein would show that tendency to create public disorder is not evincible in the language employed in Section 66-A. Section 66-A dealt with punishment for certain obscene messages through communication service, etc. A new offence had been created and the boundary of the forbidding area was not clearly marked as has been held in Kedar Nath Singh (supra). The Court also opined that the expression used in Section 66-A having not been defined and further the provision having not used the expression that definitions in IPC will apply to the Information Technology Act, 2000, it was vague. The decision in Shreya Singhal (supra) is placed reliance upon to highlight that a restriction has to be narrowly tailored but criminal defamation is not a narrowly tailored concept. We have early opined that the word "defamation" is in existence from the very beginning of the Constitution. Defamation as an offence is admittedly a pre-constitutional law which was in existence when the Constitution came into force. To interpret that the word "defamation" occurring in Article 19(2) would not include "criminal defamation" or it should have a tendency to cause public disorder or incite for an offence, would not be in consonance with the principle of interpretation pertaining to the Constitution. It may be noted here that the decisions rendered in Ramji Lal Modi (supra) and Kedar Nath Singh (supra) where constitutional validity of Sections 124A and 295A IPC had been upheld subject to certain limitations. But inspiration cannot be drawn from the said authorities that to argue that they convey that defamation which would include criminal defamation must incorporate public order or intention of creating public disorder. The said decisions relate to a different sphere. The concept of defamation remains in a different area regard being had to the nature of the offence and also the safeguards provided therein which we shall advert to at a later stage. The passage which we have reproduced from S. Rangarajan (supra), which has also been referred to in Shreya Singhal (supra), has to be understood in the context in which it is stated having regard to the facts of the case. The said decision was rendered in the backdrop that the Tamil film `Ore Oru Gramathile which was given "U-Certificate" was revoked by the High Court observing that the certificate given to the movie was bound to invoke reactions which are bound to be volatile. This Court observed that all that film seems to suggest is that existing method of reservation on the basis of caste is bad and reservation on the basis of economic background is better and also the film deprecated the exploitation of people on caste considerations. In that context, the Court observed, as has been stated earlier, in a democracy it is not necessary that everyone should sing the same song; freedom of expression is the rule, and it is generally taken for granted. Criticism and commentary on policies, enactments or opinions do not remotely constitute defamation. Disapproval is not defamation. The argument ignores the scope and ambit of the contours of what is criminal defamation. Bearing in mind the factual scenario, the Court has discussed about balancing of freedom of expression and "special interest". The Court was not concerned with balancing of Article 19(1)(a) and the facet of Article 21 of the Constitution. Therefore, in the ultimate conclusion, we come to hold that applying the doctrine of balancing of fundamental rights, existence of defamation as a criminal offence is not beyond the boundary of Article 19(2) of the Constitution, especially when the word "defamation" has been used in the Constitution.We have referred to two concepts, namely, constitutional fraternity and the fundamental duty, as they constitute core constitutional values. Respect for the dignity of another is a constitutional norm. It would not amount to an overstatement if it is said that constitutional fraternity and the intrinsic value inhered in fundamental duty proclaim the constitutional assurance of mutual respect and concern for each others dignity. The individual interest of each individual serves the collective interest and correspondingly the collective interest enhances the individual excellence. Action against the State is different than an action taken by one citizen against the other. The constitutional value helps in structuring the individual as well as the community interest. Individual interest is strongly established when constitutional values are respected. The Preamble balances different and divergent rights. Keeping in view the constitutional value, the legislature has not repealed Section 499 and kept the same alive as a criminal offence. The studied analysis from various spectrums, it is difficult to come to a conclusion that the existence of criminal defamation is absolutely obnoxious to freedom of speech and expression. As a prescription, it neither invites the frown of any of the Articles of the Constitution nor its very existence can be regarded as an unreasonableas the Exception postulates that imputation even if true, if it is not to further public good then it will not be defamation, is absolutely irrational and does not stand to reason. It is urged that truth is the basic foundation of justice, but this Exception does not recognize truth as a defence and, therefore, it deserves to be struckcontext in which the said decision was rendered has to be appreciated. In the said case, the Court was dealing with the constitutional validity of the Gold Control Act, 1968. Section 27 of the said Act related to licensing of dealers. It was contended that the conditions imposed by sub-section (6) of the Act for grant or renewal of licences were uncertain, vague, unintelligible and consequently wide and unfettered power was conferred upon the statutory authorities in the matter of grant or renewal of licence. The Court expressed the view that the contention was well founded. Further analyzing, the Court expressedThe expression "anticipated demand" is a vague expression which is not capable of objective assessment and is bound to lead to a great deal of uncertainty. Similarly the expression "suitability of the applicant" in Section 27(6)(e) and "public interest" in Section 27(6)(g) do not provide any objective standard or norm or guidance. For these reasons it must be held that clauses (a),(d),(e) and (g) of Section 27(6) impose unreasonable restrictions on the fundamental right of the petitioner to carry on business and are constitutionally invalid...The detailed discussion made hereinabove do clearly reveal that neither the main provision nor the Explanation nor the Exceptions remotely indicate any vagueness. It is submitted that the Exceptions make the offence more rigorous and thereby making the concept of criminal defamation extremely unreasonable. The criticism advanced pertain to truth being not a defence, and unnecessary stress on `public good. The counter argument is that if a truthful statement is not made for any kind of public good but only to malign a person, it is a correct principle in law that the statement or writing can amount to defamation. Dr. Singhvi, learned senior counsel for some of the respondents has given certain examples. The examples pertain to an imputation that a person is an alcoholic; an imputation that two family members are involved in consensual incest; an imputation that a person is impotent; a statement is made in pubic that a particular person suffers from AIDS; an imputation that a person is a victim of rape; and an imputation that the child of a married couple is not fathered by the husband but born out of an affair with another man. We have set out the examples cited by the learned senior counsel only to show that there can be occasions or situations where truth may not be sole defence. And that is why the provision has given emphasis on public good. Needless to say, what is public good is a question of fact depending on the facts and circumstances of the case.From the analysis we have made it is clear as day that the provision along with Explanations and Exceptions cannot be called unreasonable, for they are neither vague nor excessive nor arbitrary. There can be no doubt that Court can strike down a provision, if it is excessive, unreasonable or disproportionate, but the Court cannot strike down if it thinks that the provision is unnecessary or unwarranted. Be it noted that it has also been argued that the provision is defeated by doctrine of proportionality. It has been argued that existence of criminal defamation on the statute book and the manner in which the provision is engrafted suffers from disproportionality because it has room for such restriction which is disproportionate. In Om Kumar v. Union of India, (2001) 2 SCC 386 , the Court has observed that while regulating the exercise of fundamental rights it is to be seen whether the legislature while exercising its choice has infringed the right excessively. Recently, the Constitution Bench in Modern Dental College & Research Centre and others v. State of Madhya Pradesh and others, 2016 (4) SCALE 478 , explaining the doctrine of proportionality has emphasized that when the Court is called upon to decide whether a statutory provision or a rule amounts to unreasonable restriction, the exercise that is required to be undertaken is the balancing of fundamental rights on the one hand and the restrictions imposed on the other. Emphasis is on recognition of affirmative constitutional rights along with its limitations. Limitations, save certain interests and especially public or social interests. Social interest takes in its sweep to confer protection to rights of the others to have social harmony founded on social values. To treat a restriction constitutionally permissible it is necessary to scrutinize whether the restriction or imposition of limitation is excessive oris a distinction between social interest and a notion of the majority. The legislature has exercised its legislative wisdom and it is inappropriate to say that it expresses the notion of the majority. It has kept the criminal defamation on the statute book as in the existing social climate it subserves the collective interest because reputation of each is ultimately inhered in the reputation of all. The submission that imposition of silence will rule over eloquence of free speech is a stretched concept inasmuch as the said proposition is basically founded on the theory of absoluteness of the fundamental right of freedom of speech and expression which the Constitution does not countenance.The said provision is criticized on the ground that "some person aggrieved" is on a broader spectrum and that is why, it allows all kinds of persons to take recourse to defamation. As far as the concept of "some person aggrieved" is concerned, we have referred to plethora of decisions in course of our deliberations to show how this Court has determined the concept of "some person aggrieved". While dealing with various Explanations, it has been clarified about definite identity of the body of persons or collection of persons. In fact, it can be stated that the "person aggrieved" is to be determined by the courts in each case according to the fact situation. It will require ascertainment on due deliberation of the facts. In John Thomas v. Dr. K. Jagadeesan, (2001) 6 SCC 30 while dealing with "person aggrieved", the Court opined that the test is whether the complainant has reason to feel hurt on account of publication is a matter to be determined by the court depending upon the facts of each case. In S. Khushboo (supra), while dealing with "person aggrieved", a three-Judge Bench has opined that the respondents therein were not "person aggrieved" within the meaning of Section 199(1) CrPC as there was no specific legal injury caused to any of the complainants since the appellants remarks were not directed at any individual or readily identifiable group of people. The Court placed reliance on M.S. Jayaraj v. Commr. of Excise, (2000) 7 SCC 552 and G. Narasimhan (supra) and observed that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not a "aggrieved person", the trial and conviction of an accused in such a case by the Magistrate would be void and illegal. Thus, it is seen that the words "some person aggrieved" are determined by the courts depending upon the facts of the case. Therefore, the submission that it can include any and everyone as a "person aggrieved" is too spacious a submission to beour considered opinion that the said aspects can be highlighted by an aggrieved person either in a challenge for quashing of the complaint or during the trial. There is no necessity to deal with the said facet while deliberating upon the constitutional validity of theis settled position of law that those who plead Exception must prove it. It has been laid down in M.A. Rumugam (supra) that for the purpose of bringing any case within the purview of the Eighth and the Ninth Exceptions appended to Section 499 IPC, it would be necessary for the person who pleads the Exception to prove it. He has to prove good faith for the purpose of protection of the interests of the person making it or any other person or for the public good. The said proposition would definitely apply to any Exception who wants to have the benefit of the same. Therefore, the argument that if the said Exception should be taken into consideration at the time of the issuing summons it would be contrary to established criminal jurisprudence and, therefore, the stand that it cannot be taken into consideration makes the provision unreasonable, is absolutely an unsustainable one and in a way, a mercurial one. And we unhesitatingly repel the same.199. In view of the aforesaid analysis, we uphold the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. During the pendency of the Writ Petitions, this Court had directed stay of further proceedings before the trial court. As we declare the provisions to be constitutional, we observe that it will be open to the petitioners to challenge the issue of summons before the High Court either under Article 226 of the Constitution of India or Section 482 CrPC, as advised and seek appropriate relief and for the said purpose, we grant eight weeks time to the petitioners. The interim protection granted by this Court shall remain in force for a period of eight weeks. However, it is made clear that, if any of the petitioners has already approached the High Court and also become unsuccessful before this Court, he shall face trial and put forth his defence in accordance with | 1 | 58,471 | 4,190 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
the case may also be tried where the offence was partly committed or continues to be committed (Section 178). The case may also be tried where the consequence of the act ensues (Section 179). The other provisions in the chapter also deal with regard to certain specific circumstances. Section 186 CrPC gives the High Court powers to determine the issue if two or more courts take cognizance of the same offence. If cases are filed in two or more courts in different jurisdictions, then the Jurisdiction to determine the case lies with the High Court under whose jurisdiction the first complaint was filed. Upon the decision of the High Court regarding the place of trial, the proceedings in all other places shall be discontinued. Thus, it is again left to the facts and circumstances of each case to determine the right forum for the trial of case of defamation. Thus, CrPC governs the territorial jurisdiction and needless to say, if there is abuse of the said jurisdiction, the person grieved by the issue of summons can take appropriate steps in accordance with law. But that cannot be a reason for declaring the provision unconstitutional. 196. Another aspect requires to be addressed pertains to issue of summons. Section 199 CrPC envisages filing of a complaint in court. In case of criminal defamation neither any FIR can be filed nor can any direction be issued under Section 156(3) CrPC. The offence has its own gravity and hence, the responsibility of the Magistrate is more. In a way, it is immense at the time of issue of process. Issue of process, as has been held in Rajindra Nath Mahato v. T. Ganguly, Dy. Superintendent and another, (1972) 1 SCC 450 , is a matter of judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank and others v. Surendra Prasad Sinha, 1993 Supp. (1) SCC 499 it has been held that judicial process should not be an instrument of oppression or needless harassment. The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. In Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, (1998) 5 SCC 749 a two-Judge Bench has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. 197. We have referred to these authorities to highlight that in matters of criminal defamation the heavy burden is on the Magistracy to scrutinise the complaint from all aspects. The Magistrate has also to keep in view the language employed in Section 202 CrPC which stipulates about the resident of the accused at a place beyond the area in which the Magistrate exercises his jurisdiction. He must be satisfied that ingredients of Section 499 CrPC are satisfied. Application of mind in the case of complaint is imperative. 198. We will be failing in our duty if we do not take note of submission of Mr. Bhambhani, learned senior counsel. It is submitted by the learned senior counsel that Exception to Section 499 are required to be considered at the time of summoning of the accused but as the same is not conceived in the provision, it is unconstitutional. It is settled position of law that those who plead Exception must prove it. It has been laid down in M.A. Rumugam (supra) that for the purpose of bringing any case within the purview of the Eighth and the Ninth Exceptions appended to Section 499 IPC, it would be necessary for the person who pleads the Exception to prove it. He has to prove good faith for the purpose of protection of the interests of the person making it or any other person or for the public good. The said proposition would definitely apply to any Exception who wants to have the benefit of the same. Therefore, the argument that if the said Exception should be taken into consideration at the time of the issuing summons it would be contrary to established criminal jurisprudence and, therefore, the stand that it cannot be taken into consideration makes the provision unreasonable, is absolutely an unsustainable one and in a way, a mercurial one. And we unhesitatingly repel the same.199. In view of the aforesaid analysis, we uphold the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. During the pendency of the Writ Petitions, this Court had directed stay of further proceedings before the trial court. As we declare the provisions to be constitutional, we observe that it will be open to the petitioners to challenge the issue of summons before the High Court either under Article 226 of the Constitution of India or Section 482 CrPC, as advised and seek appropriate relief and for the said purpose, we grant eight weeks time to the petitioners. The interim protection granted by this Court shall remain in force for a period of eight weeks. However, it is made clear that, if any of the petitioners has already approached the High Court and also become unsuccessful before this Court, he shall face trial and put forth his defence in accordance with law.
### Response:
1
### Explanation:
(2001) 2 SCC 386 , the Court has observed that while regulating the exercise of fundamental rights it is to be seen whether the legislature while exercising its choice has infringed the right excessively. Recently, the Constitution Bench in Modern Dental College & Research Centre and others v. State of Madhya Pradesh and others, 2016 (4) SCALE 478 , explaining the doctrine of proportionality has emphasized that when the Court is called upon to decide whether a statutory provision or a rule amounts to unreasonable restriction, the exercise that is required to be undertaken is the balancing of fundamental rights on the one hand and the restrictions imposed on the other. Emphasis is on recognition of affirmative constitutional rights along with its limitations. Limitations, save certain interests and especially public or social interests. Social interest takes in its sweep to confer protection to rights of the others to have social harmony founded on social values. To treat a restriction constitutionally permissible it is necessary to scrutinize whether the restriction or imposition of limitation is excessive oris a distinction between social interest and a notion of the majority. The legislature has exercised its legislative wisdom and it is inappropriate to say that it expresses the notion of the majority. It has kept the criminal defamation on the statute book as in the existing social climate it subserves the collective interest because reputation of each is ultimately inhered in the reputation of all. The submission that imposition of silence will rule over eloquence of free speech is a stretched concept inasmuch as the said proposition is basically founded on the theory of absoluteness of the fundamental right of freedom of speech and expression which the Constitution does not countenance.The said provision is criticized on the ground that "some person aggrieved" is on a broader spectrum and that is why, it allows all kinds of persons to take recourse to defamation. As far as the concept of "some person aggrieved" is concerned, we have referred to plethora of decisions in course of our deliberations to show how this Court has determined the concept of "some person aggrieved". While dealing with various Explanations, it has been clarified about definite identity of the body of persons or collection of persons. In fact, it can be stated that the "person aggrieved" is to be determined by the courts in each case according to the fact situation. It will require ascertainment on due deliberation of the facts. In John Thomas v. Dr. K. Jagadeesan, (2001) 6 SCC 30 while dealing with "person aggrieved", the Court opined that the test is whether the complainant has reason to feel hurt on account of publication is a matter to be determined by the court depending upon the facts of each case. In S. Khushboo (supra), while dealing with "person aggrieved", a three-Judge Bench has opined that the respondents therein were not "person aggrieved" within the meaning of Section 199(1) CrPC as there was no specific legal injury caused to any of the complainants since the appellants remarks were not directed at any individual or readily identifiable group of people. The Court placed reliance on M.S. Jayaraj v. Commr. of Excise, (2000) 7 SCC 552 and G. Narasimhan (supra) and observed that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not a "aggrieved person", the trial and conviction of an accused in such a case by the Magistrate would be void and illegal. Thus, it is seen that the words "some person aggrieved" are determined by the courts depending upon the facts of the case. Therefore, the submission that it can include any and everyone as a "person aggrieved" is too spacious a submission to beour considered opinion that the said aspects can be highlighted by an aggrieved person either in a challenge for quashing of the complaint or during the trial. There is no necessity to deal with the said facet while deliberating upon the constitutional validity of theis settled position of law that those who plead Exception must prove it. It has been laid down in M.A. Rumugam (supra) that for the purpose of bringing any case within the purview of the Eighth and the Ninth Exceptions appended to Section 499 IPC, it would be necessary for the person who pleads the Exception to prove it. He has to prove good faith for the purpose of protection of the interests of the person making it or any other person or for the public good. The said proposition would definitely apply to any Exception who wants to have the benefit of the same. Therefore, the argument that if the said Exception should be taken into consideration at the time of the issuing summons it would be contrary to established criminal jurisprudence and, therefore, the stand that it cannot be taken into consideration makes the provision unreasonable, is absolutely an unsustainable one and in a way, a mercurial one. And we unhesitatingly repel the same.199. In view of the aforesaid analysis, we uphold the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure. During the pendency of the Writ Petitions, this Court had directed stay of further proceedings before the trial court. As we declare the provisions to be constitutional, we observe that it will be open to the petitioners to challenge the issue of summons before the High Court either under Article 226 of the Constitution of India or Section 482 CrPC, as advised and seek appropriate relief and for the said purpose, we grant eight weeks time to the petitioners. The interim protection granted by this Court shall remain in force for a period of eight weeks. However, it is made clear that, if any of the petitioners has already approached the High Court and also become unsuccessful before this Court, he shall face trial and put forth his defence in accordance with
|
Eastern India Apparel & Textile Exporter Association & Another Vs. Official Liquidator & Another | Leave granted.2. This appeal is directed against the judgment and order dated 14.10.2004 passed by a Division Bench of the Calcutta High Court in A.P.O.T. No.434/2004 whereby and whereunder the appeal filed by the appellants was dismissed in limine. The said appeal was preferred by the appellants from an order dated 29.6.2004 passed by a learned Single Judge of the High Court, directing:?The representative of the Official Liquidator is directed to visit the premises at 10 OClock in the morning on June 21, 2004 and the representative is directed to hand over possession of the premises in question to the persons from whom the Official Liquidator has taken possession upon receipt of the said sum of Rs. 1,65,000/-. After receipt of the said sum the Official Liquidator will hold the same until further orders of the Court.? 3. Appellants contend that the building in question, namely, 26/Park Lane, 2nd Floor, Calcutta, originally belonged to one Mrs. Nasreen Wahhab. One B.Q. Nandy is said to be the tenant in the said premises. According to the appellants, Shri B.Q. Nandy had allowed the following five different concerns to use table spaces at the aforesaid premises:i) M/s. Fortune Multitraders Ltd.ii) M/s. Eastern India Apparel & Textiles Exporters Associationiii) M/s. Mon Lam (India) Pvt. Ltd.iv) M/s. Nandy Associatesv) M/s. B.Q. Global4. An affidavit of B.Q. Nandy has been placed on record. If what is stated by him in his affidavit is correct, we are prima facie of the opinion that there is some force in the contention of the learned counsel for the appellants that M/s. Fortune Multitraders Ltd., the company in liquidation was also only a table space holder and, thus, the right, title and interest of the other table space holders, like the appellants before us, could not have been the subject matter of any direction by the learned Company Judge. 5. We are, therefore, of the opinion that the Division Bench of the High Court committed a serious error in dismissing the appeal in limine. The impugned judgment is, therefore, set aside and the matter is remitted to the High Court for consideration of the appeal afresh on merit. | 1[ds]5. We are, therefore, of the opinion that the Division Bench of the High Court committed a serious error in dismissing the appeal in limine. The impugned judgment is, therefore, set aside and the matter is remitted to the High Court for consideration of the appeal afresh on merit. | 1 | 415 | 60 | ### 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:
Leave granted.2. This appeal is directed against the judgment and order dated 14.10.2004 passed by a Division Bench of the Calcutta High Court in A.P.O.T. No.434/2004 whereby and whereunder the appeal filed by the appellants was dismissed in limine. The said appeal was preferred by the appellants from an order dated 29.6.2004 passed by a learned Single Judge of the High Court, directing:?The representative of the Official Liquidator is directed to visit the premises at 10 OClock in the morning on June 21, 2004 and the representative is directed to hand over possession of the premises in question to the persons from whom the Official Liquidator has taken possession upon receipt of the said sum of Rs. 1,65,000/-. After receipt of the said sum the Official Liquidator will hold the same until further orders of the Court.? 3. Appellants contend that the building in question, namely, 26/Park Lane, 2nd Floor, Calcutta, originally belonged to one Mrs. Nasreen Wahhab. One B.Q. Nandy is said to be the tenant in the said premises. According to the appellants, Shri B.Q. Nandy had allowed the following five different concerns to use table spaces at the aforesaid premises:i) M/s. Fortune Multitraders Ltd.ii) M/s. Eastern India Apparel & Textiles Exporters Associationiii) M/s. Mon Lam (India) Pvt. Ltd.iv) M/s. Nandy Associatesv) M/s. B.Q. Global4. An affidavit of B.Q. Nandy has been placed on record. If what is stated by him in his affidavit is correct, we are prima facie of the opinion that there is some force in the contention of the learned counsel for the appellants that M/s. Fortune Multitraders Ltd., the company in liquidation was also only a table space holder and, thus, the right, title and interest of the other table space holders, like the appellants before us, could not have been the subject matter of any direction by the learned Company Judge. 5. We are, therefore, of the opinion that the Division Bench of the High Court committed a serious error in dismissing the appeal in limine. The impugned judgment is, therefore, set aside and the matter is remitted to the High Court for consideration of the appeal afresh on merit.
### Response:
1
### Explanation:
5. We are, therefore, of the opinion that the Division Bench of the High Court committed a serious error in dismissing the appeal in limine. The impugned judgment is, therefore, set aside and the matter is remitted to the High Court for consideration of the appeal afresh on merit.
|
Hoshiarpur Electric Supply Co Vs. Commissioner Of Income Tax, Simla | is used for supplying electrical energy remains an integral part of the distributing mains of an electrical undertaking. The High Court was exercising advisory jurisdiction, and the question as to who was the owner of the service lines after they were installed could be adjudicated upon only by the Tribunal. It was for the Tribunal to record its conclusion on that question, but the Tribunal has recorded none. In our judgment, the High Court was in error in assuming to itself jurisdiction substantially appellate in character and in proceeding to decide the question as to ownership of the service lines which is a mixed question of law and fact, on which the Tribunal has given no finding.7. The assessee contended that the amount paid by the consumers for new connections is capital receipt and not liable to tax, because the amount is paid by the consumers towards expenditure to be incurred by the assessee in laying new service lines - an asset of a lasting character. This question falls to be determined in the light of the nature of the receipt irrespective of who remained owner of the materials of the service lines installed for granting electrical connections of new customers.8. The assessee only spends a part of the amount received by it from the consumers. It is not clear from the statement of the case whether amongst the 229 new connections given, there were any which were of a length less than 100 ft. Payments received by the assessee must of course be for service lines installed of length more than 100 ft., but it is not clear on the record whether the expenditure of Rs. 5,929 incurred by the assessee is only in respect of service lines which exceeded 100 ft. in length or it is expenditure incurred in respect of all service lines. It is however not disputed that a part of the amount received from the consumers remains with the assessee after meeting the expenses incidental to the construction of service lines. But an electric service line requires constant inspection and occasional repairs and replacement and expenses in this behalf have to be undertaken by the assessee. The amount contributed by the consumer for obtaining a new connection would of necessity cover all those services. The amount contributed by the consumer is in direct recoupment of the expenditure for bringing into existence an asset of a lasting character enabling the assessee to conduct its business of supplying electrical energy. By the installation of the service lines, a capital asset is brought into existence. The contribution made by the consumers is substantially as consideration for a joint adventure; the service line when installed becomes an appanage of the mains of the assessee, and by the provisions of the Electricity Act, the assessee is obliged to maintain it in proper repairs for ensuring efficient supply of energy. The assumption made by the Department that the excess remaining in the hands of the assessee, after defraying the immediate cost of installation of a service line must be regarded as a trading profit of the company is not correct. The assessee is undoubtedly carrying on the business of distributing electrical energy to the consumers. Installation of service lines is not an isolated or casual act; it is an incident of the business of the assessee. But if the amount contributed by the consumers for installation of what is essentially reimbursement of capital expenditure, the excess remaining after expending the costs of installation out of the amount contributed is not converted into a trading receipt. This excess - which is called by the Tribunal "profit element" - was not received in the form of profit of the business; it was part of a capital receipt in the hands of the assessee, and it was not converted into a trading profit because the assessee was engaged in the business of distribution of electrical energy, with which the receipt was connected.9. In Commissioner of Income-tax v. Poona Electric Supply Co. Ltd., 1946-14 ITR 622 : (AIR 1947 Bom 263), it was held by a Division Bench of the Bombay High Court that the amount received from the Government of Bombay by the Poona Electric Company in reimbursement of expenses incurred for constructing new supply lines for supplying energy to new areas not previously served, was a capital receipt and not a trade receipt. The question of the taxability of the "profit element" in the contribution received from the Government was not expressly determined; but the court in that case held that the entire amount received by the Poona Electric Company from the Government as contribution was a capital receipt.10. In Monghyr Electric Supply Co. Ltd. Monghyr v. Commissioner of Income-tax, B. and O., 1954-26 ITR 15 : (AIR 1954 Pat 471 ), it was held that the amount paid by consumers of electricity for meeting the cost of service connections was a capital receipt in the hands of the electricity undertaking and not revenue receipt and the difference between the amount received on account of service connection charges and the amount immediately not expended was not taxable as revenue.11. The receipts though related to the business of the assessee as distributors of electricity were not indicental to nor in the course of the carrying on of the assessees business; they were receipts for bringing into existence capital of lasting value. Contributions were not made merely for services rendered and to be rendered but for installation of capital equipment under an agreement for a joint venture. The total receipts being capital receipts the fact that in the installation of capital, only a certain amount was immediately expended, the balance remaining in hand, could not be regarded as profit in the nature of a trading receipt. On that view of the case, in our judgment, the High Court was in error in holding that the excess of the receipts over the amount expended for installation of service lines by the assessee was a trading receipt. | 1[ds]8. The assessee only spends a part of the amount received by it from the consumers. It is not clear from the statement of the case whether amongst the 229 new connections given, there were any which were of a length less than 100 ft. Payments received by the assessee must of course be for service lines installed of length more than 100 ft., but it is not clear on the record whether the expenditure of Rs. 5,929 incurred by the assessee is only in respect of service lines which exceeded 100 ft. in length or it is expenditure incurred in respect of all service lines. It is however not disputed that a part of the amount received from the consumers remains with the assessee after meeting the expenses incidental to the construction of service lines. But an electric service line requires constant inspection and occasional repairs and replacement and expenses in this behalf have to be undertaken by the assessee. The amount contributed by the consumer for obtaining a new connection would of necessity cover all those services. The amount contributed by the consumer is in direct recoupment of the expenditure for bringing into existence an asset of a lasting character enabling the assessee to conduct its business of supplying electrical energy. By the installation of the service lines, a capital asset is brought into existence. The contribution made by the consumers is substantially as consideration for a joint adventure; the service line when installed becomes an appanage of the mains of the assessee, and by the provisions of the Electricity Act, the assessee is obliged to maintain it in proper repairs for ensuring efficient supply of energy. The assumption made by the Department that the excess remaining in the hands of the assessee, after defraying the immediate cost of installation of a service line must be regarded as a trading profit of the company is not correct. The assessee is undoubtedly carrying on the business of distributing electrical energy to the consumers. Installation of service lines is not an isolated or casual act; it is an incident of the business of the assessee. But if the amount contributed by the consumers for installation of what is essentially reimbursement of capital expenditure, the excess remaining after expending the costs of installation out of the amount contributed is not converted into a trading receipt. This excess - which is called by the Tribunal "profit element" - was not received in the form of profit of the business; it was part of a capital receipt in the hands of the assessee, and it was not converted into a trading profit because the assessee was engaged in the business of distribution of electrical energy, with which the receipt was connected.The receipts though related to the business of the assessee as distributors of electricity were not indicental to nor in the course of the carrying on of the assessees business; they were receipts for bringing into existence capital of lasting value. Contributions were not made merely for services rendered and to be rendered but for installation of capital equipment under an agreement for a joint venture. The total receipts being capital receipts the fact that in the installation of capital, only a certain amount was immediately expended, the balance remaining in hand, could not be regarded as profit in the nature of a trading receipt. On that view of the case, in our judgment, the High Court was in error in holding that the excess of the receipts over the amount expended for installation of service lines by the assessee was a trading receipt. | 1 | 1,846 | 643 | ### 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:
is used for supplying electrical energy remains an integral part of the distributing mains of an electrical undertaking. The High Court was exercising advisory jurisdiction, and the question as to who was the owner of the service lines after they were installed could be adjudicated upon only by the Tribunal. It was for the Tribunal to record its conclusion on that question, but the Tribunal has recorded none. In our judgment, the High Court was in error in assuming to itself jurisdiction substantially appellate in character and in proceeding to decide the question as to ownership of the service lines which is a mixed question of law and fact, on which the Tribunal has given no finding.7. The assessee contended that the amount paid by the consumers for new connections is capital receipt and not liable to tax, because the amount is paid by the consumers towards expenditure to be incurred by the assessee in laying new service lines - an asset of a lasting character. This question falls to be determined in the light of the nature of the receipt irrespective of who remained owner of the materials of the service lines installed for granting electrical connections of new customers.8. The assessee only spends a part of the amount received by it from the consumers. It is not clear from the statement of the case whether amongst the 229 new connections given, there were any which were of a length less than 100 ft. Payments received by the assessee must of course be for service lines installed of length more than 100 ft., but it is not clear on the record whether the expenditure of Rs. 5,929 incurred by the assessee is only in respect of service lines which exceeded 100 ft. in length or it is expenditure incurred in respect of all service lines. It is however not disputed that a part of the amount received from the consumers remains with the assessee after meeting the expenses incidental to the construction of service lines. But an electric service line requires constant inspection and occasional repairs and replacement and expenses in this behalf have to be undertaken by the assessee. The amount contributed by the consumer for obtaining a new connection would of necessity cover all those services. The amount contributed by the consumer is in direct recoupment of the expenditure for bringing into existence an asset of a lasting character enabling the assessee to conduct its business of supplying electrical energy. By the installation of the service lines, a capital asset is brought into existence. The contribution made by the consumers is substantially as consideration for a joint adventure; the service line when installed becomes an appanage of the mains of the assessee, and by the provisions of the Electricity Act, the assessee is obliged to maintain it in proper repairs for ensuring efficient supply of energy. The assumption made by the Department that the excess remaining in the hands of the assessee, after defraying the immediate cost of installation of a service line must be regarded as a trading profit of the company is not correct. The assessee is undoubtedly carrying on the business of distributing electrical energy to the consumers. Installation of service lines is not an isolated or casual act; it is an incident of the business of the assessee. But if the amount contributed by the consumers for installation of what is essentially reimbursement of capital expenditure, the excess remaining after expending the costs of installation out of the amount contributed is not converted into a trading receipt. This excess - which is called by the Tribunal "profit element" - was not received in the form of profit of the business; it was part of a capital receipt in the hands of the assessee, and it was not converted into a trading profit because the assessee was engaged in the business of distribution of electrical energy, with which the receipt was connected.9. In Commissioner of Income-tax v. Poona Electric Supply Co. Ltd., 1946-14 ITR 622 : (AIR 1947 Bom 263), it was held by a Division Bench of the Bombay High Court that the amount received from the Government of Bombay by the Poona Electric Company in reimbursement of expenses incurred for constructing new supply lines for supplying energy to new areas not previously served, was a capital receipt and not a trade receipt. The question of the taxability of the "profit element" in the contribution received from the Government was not expressly determined; but the court in that case held that the entire amount received by the Poona Electric Company from the Government as contribution was a capital receipt.10. In Monghyr Electric Supply Co. Ltd. Monghyr v. Commissioner of Income-tax, B. and O., 1954-26 ITR 15 : (AIR 1954 Pat 471 ), it was held that the amount paid by consumers of electricity for meeting the cost of service connections was a capital receipt in the hands of the electricity undertaking and not revenue receipt and the difference between the amount received on account of service connection charges and the amount immediately not expended was not taxable as revenue.11. The receipts though related to the business of the assessee as distributors of electricity were not indicental to nor in the course of the carrying on of the assessees business; they were receipts for bringing into existence capital of lasting value. Contributions were not made merely for services rendered and to be rendered but for installation of capital equipment under an agreement for a joint venture. The total receipts being capital receipts the fact that in the installation of capital, only a certain amount was immediately expended, the balance remaining in hand, could not be regarded as profit in the nature of a trading receipt. On that view of the case, in our judgment, the High Court was in error in holding that the excess of the receipts over the amount expended for installation of service lines by the assessee was a trading receipt.
### Response:
1
### Explanation:
8. The assessee only spends a part of the amount received by it from the consumers. It is not clear from the statement of the case whether amongst the 229 new connections given, there were any which were of a length less than 100 ft. Payments received by the assessee must of course be for service lines installed of length more than 100 ft., but it is not clear on the record whether the expenditure of Rs. 5,929 incurred by the assessee is only in respect of service lines which exceeded 100 ft. in length or it is expenditure incurred in respect of all service lines. It is however not disputed that a part of the amount received from the consumers remains with the assessee after meeting the expenses incidental to the construction of service lines. But an electric service line requires constant inspection and occasional repairs and replacement and expenses in this behalf have to be undertaken by the assessee. The amount contributed by the consumer for obtaining a new connection would of necessity cover all those services. The amount contributed by the consumer is in direct recoupment of the expenditure for bringing into existence an asset of a lasting character enabling the assessee to conduct its business of supplying electrical energy. By the installation of the service lines, a capital asset is brought into existence. The contribution made by the consumers is substantially as consideration for a joint adventure; the service line when installed becomes an appanage of the mains of the assessee, and by the provisions of the Electricity Act, the assessee is obliged to maintain it in proper repairs for ensuring efficient supply of energy. The assumption made by the Department that the excess remaining in the hands of the assessee, after defraying the immediate cost of installation of a service line must be regarded as a trading profit of the company is not correct. The assessee is undoubtedly carrying on the business of distributing electrical energy to the consumers. Installation of service lines is not an isolated or casual act; it is an incident of the business of the assessee. But if the amount contributed by the consumers for installation of what is essentially reimbursement of capital expenditure, the excess remaining after expending the costs of installation out of the amount contributed is not converted into a trading receipt. This excess - which is called by the Tribunal "profit element" - was not received in the form of profit of the business; it was part of a capital receipt in the hands of the assessee, and it was not converted into a trading profit because the assessee was engaged in the business of distribution of electrical energy, with which the receipt was connected.The receipts though related to the business of the assessee as distributors of electricity were not indicental to nor in the course of the carrying on of the assessees business; they were receipts for bringing into existence capital of lasting value. Contributions were not made merely for services rendered and to be rendered but for installation of capital equipment under an agreement for a joint venture. The total receipts being capital receipts the fact that in the installation of capital, only a certain amount was immediately expended, the balance remaining in hand, could not be regarded as profit in the nature of a trading receipt. On that view of the case, in our judgment, the High Court was in error in holding that the excess of the receipts over the amount expended for installation of service lines by the assessee was a trading receipt.
|
M/S. PANTHER SECURITY SERVICE PRIVATE LIMITED Vs. THE EMPLOYEES? PROVIDENT FUND ORGANISATION AND ANOTHER | that the provisions of the EPF Act applied to the appellant. The Assistant Provident Fund Commissioner on 07.03.2006 on basis of the seized documents opined that the appellant had 79 employees as on 03.04.2001 allotting Code No. UP/39076, requiring the appellant to deposit the necessary contributions. The appellant having objected to the same, proceedings were initiated under Section 7A of the EPF Act with due opportunity of defence to the appellant. The appellant failed to submit the attendance register, wage register etc. The Assistant Provident Fund Commissioner on basis of balance sheets seized during raid opined that the appellant had more than twenty employees on its rolls and stood covered by the term expert services such as providing of personnel under the Notification dated 17.05.1971. It also noticed that wages were not paid directly by the clients to the security guards deployed by the appellant but that the payments were made by the clients to the appellant, who in turn disbursed wages to the security guards. The remedy of an appeal before the Tribunal under Section 7-I was bypassed by the appellant instituting the writ petition directly. The High Court declined interference with the conclusion of expert services being rendered by the appellant. A review petition contending that the appellant stood duly registered under the Act of 2005 was also rejected. 8. The Act of 2005 defines a private security agency under Section 2(g) as an organization engaged in the business of providing security services including training to private security guards and providing such guards to any industrial or business undertakings or a company or any other person or property. A licence is mandatory under Section 4 and those security agencies existing since earlier were mandated to obtain such licence within one year of coming into force of the Act. A complete procedure is provided with regard to making of an application for grant of a licence under Section 7, renewal under Section 8 of the Act. The eligibility for appointment as a security guard with such security agency is provided under Section 10 of the Act. Section 11 provides for the condition of the licence and the licence can be cancelled under Section 13. A private security agency under Section 15 is required to maintain a register inter alia with the names, addresses, photographs and salaries of the private security guards and supervisors under its control. The Private Security Agencies Central Model Rules, 2006, framed under the Act of 2005, requires verification by the security agency before employing any person as a security guard or supervisor in the manner prescribed. Proper security training of the person employed is the responsibility of the security agency under Rule 5, and Rule 6 prescribes the standard of physical fitness for security guards. Under Rule 14 the security agency is required to maintain a Register in Form VIII, Part-I of which contains details of the management, Part-II contains the name of guard, his parentage, address, photograph, badge no. and the salary with the date of commencement. Part III contains the name of the customer, address, the number of guards deployed, date of commencement of duty and date of discontinuance. Part IV contains the name of the security guard/supervisor, address of the place of duty, if accompanied by arms, date and time of commencement of duty and date and time of end of duty. 9. We have no doubt in our mind that the appellant is engaged in the specialised and expert services of providing trained and efficient security guards to its clients on payment basis. The contention that the appellant merely facilitated in providing Chowkidars cannot be countenanced. The provisions of the Act of 2005 make it manifest that the appellant is the employer of such security guards and who are its employees and are paid wages by the appellant. Merely because the client pays money under a contract to the appellant and in turn the appellant pays the wages of such security guards from such contractual amount received by it, it does not make the client the employer of the security guard nor do the security guards constitute employees of the client. The appellant therefore is squarely covered by the Notification dated 17.05.1971. 10. The appellant never made available the statutory registers under the Act of 2005 to the authorities under the EPF Act. In fact, we have no hesitation in holding that it actually withheld relevant papers. This coupled with the letter dated 03.04.2001 written by the appellant, the appellants balance sheet seized for the financial years 2003-04, 2004-05, 2005-06 and 2006-07 showing payment of wages running into lacs, necessarily and only leads to the irresistible conclusion that the appellant has more than 20 employees on its roles. The provisions of the Act therefore necessarily apply to it. 11. Krantikari Suraksha Rakshak Sanghatana (supra) has no relevance to the present controversy as it concerned to the provision of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. The applicability of the EPF Act did not fall for consideration there. Saraswath Films (supra) was in the context of the Employees State Insurance Act, 1948 interpreting the term immediate employer, which again has no relevance to the present controversy. 12. That the provisions of the EPF Act are applicable to a private security agency engaged in the expert service of providing personnel to its client, if it meets the requirement of the EPF Act. The question is no more res integra evident from the discussions contained in Group 4 Securitas Guarding Ltd. vs. Employees Provident Fund Appellate Tribunal & Ors., 184 (2011) DLT 591 , G4S Secure Solutions India Pvt. Ltd. vs. The Regional Provident Fund Commissioner-I and Ors., ILR 2018 Karnataka 2527, Orissa State Beverages Corporation Limited vs. Regional Provident Fund Commissioner & Ors., 2016 LLR 413, Roma Henney Security Services Private Limited vs. Central Board of Trustees, EPF Organisation, 2012 SCC OnLine Del 3597, Sarvesh Security Services Private Limited vs. University of Delhi, 2017 SCC OnLine Del 12209. | 0[ds]9. We have no doubt in our mind that the appellant is engaged in the specialised and expert services of providing trained and efficient security guards to its clients on payment basis. The contention that the appellant merely facilitated in providing Chowkidars cannot be countenanced. The provisions of the Act of 2005 make it manifest that the appellant is the employer of such security guards and who are its employees and are paid wages by the appellant. Merely because the client pays money under a contract to the appellant and in turn the appellant pays the wages of such security guards from such contractual amount received by it, it does not make the client the employer of the security guard nor do the security guards constitute employees of the client. The appellant therefore is squarely covered by the Notification dated 17.05.1971.10. The appellant never made available the statutory registers under the Act of 2005 to the authorities under the EPF Act. In fact, we have no hesitation in holding that it actually withheld relevant papers. This coupled with the letter dated 03.04.2001 written by the appellant, the appellants balance sheet seized for the financial years 2003-04, 2004-05, 2005-06 and 2006-07 showing payment of wages running into lacs, necessarily and only leads to the irresistible conclusion that the appellant has more than 20 employees on its roles. The provisions of the Act therefore necessarily apply to it.11. Krantikari Suraksha Rakshak Sanghatana (supra) has no relevance to the present controversy as it concerned to the provision of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. The applicability of the EPF Act did not fall for consideration there. Saraswath Films (supra) was in the context of the Employees State Insurance Act, 1948 interpreting the term immediate employer, which again has no relevance to the present controversy.12. That the provisions of the EPF Act are applicable to a private security agency engaged in the expert service of providing personnel to its client, if it meets the requirement of the EPF Act. The question is no more res integra evident from the discussions contained in Group 4 Securitas Guarding Ltd. vs. Employees Provident Fund Appellate Tribunal & Ors., 184 (2011) DLT 591 , G4S Secure Solutions India Pvt. Ltd. vs. The Regional Provident Fund Commissioner-I and Ors., ILR 2018 Karnataka 2527, Orissa State Beverages Corporation Limited vs. Regional Provident Fund Commissioner & Ors., 2016 LLR 413, Roma Henney Security Services Private Limited vs. Central Board of Trustees, EPF Organisation, 2012 SCC OnLine Del 3597, Sarvesh Security Services Private Limited vs. University of Delhi, 2017 SCC OnLine Del 12209. | 0 | 1,887 | 487 | ### 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:
that the provisions of the EPF Act applied to the appellant. The Assistant Provident Fund Commissioner on 07.03.2006 on basis of the seized documents opined that the appellant had 79 employees as on 03.04.2001 allotting Code No. UP/39076, requiring the appellant to deposit the necessary contributions. The appellant having objected to the same, proceedings were initiated under Section 7A of the EPF Act with due opportunity of defence to the appellant. The appellant failed to submit the attendance register, wage register etc. The Assistant Provident Fund Commissioner on basis of balance sheets seized during raid opined that the appellant had more than twenty employees on its rolls and stood covered by the term expert services such as providing of personnel under the Notification dated 17.05.1971. It also noticed that wages were not paid directly by the clients to the security guards deployed by the appellant but that the payments were made by the clients to the appellant, who in turn disbursed wages to the security guards. The remedy of an appeal before the Tribunal under Section 7-I was bypassed by the appellant instituting the writ petition directly. The High Court declined interference with the conclusion of expert services being rendered by the appellant. A review petition contending that the appellant stood duly registered under the Act of 2005 was also rejected. 8. The Act of 2005 defines a private security agency under Section 2(g) as an organization engaged in the business of providing security services including training to private security guards and providing such guards to any industrial or business undertakings or a company or any other person or property. A licence is mandatory under Section 4 and those security agencies existing since earlier were mandated to obtain such licence within one year of coming into force of the Act. A complete procedure is provided with regard to making of an application for grant of a licence under Section 7, renewal under Section 8 of the Act. The eligibility for appointment as a security guard with such security agency is provided under Section 10 of the Act. Section 11 provides for the condition of the licence and the licence can be cancelled under Section 13. A private security agency under Section 15 is required to maintain a register inter alia with the names, addresses, photographs and salaries of the private security guards and supervisors under its control. The Private Security Agencies Central Model Rules, 2006, framed under the Act of 2005, requires verification by the security agency before employing any person as a security guard or supervisor in the manner prescribed. Proper security training of the person employed is the responsibility of the security agency under Rule 5, and Rule 6 prescribes the standard of physical fitness for security guards. Under Rule 14 the security agency is required to maintain a Register in Form VIII, Part-I of which contains details of the management, Part-II contains the name of guard, his parentage, address, photograph, badge no. and the salary with the date of commencement. Part III contains the name of the customer, address, the number of guards deployed, date of commencement of duty and date of discontinuance. Part IV contains the name of the security guard/supervisor, address of the place of duty, if accompanied by arms, date and time of commencement of duty and date and time of end of duty. 9. We have no doubt in our mind that the appellant is engaged in the specialised and expert services of providing trained and efficient security guards to its clients on payment basis. The contention that the appellant merely facilitated in providing Chowkidars cannot be countenanced. The provisions of the Act of 2005 make it manifest that the appellant is the employer of such security guards and who are its employees and are paid wages by the appellant. Merely because the client pays money under a contract to the appellant and in turn the appellant pays the wages of such security guards from such contractual amount received by it, it does not make the client the employer of the security guard nor do the security guards constitute employees of the client. The appellant therefore is squarely covered by the Notification dated 17.05.1971. 10. The appellant never made available the statutory registers under the Act of 2005 to the authorities under the EPF Act. In fact, we have no hesitation in holding that it actually withheld relevant papers. This coupled with the letter dated 03.04.2001 written by the appellant, the appellants balance sheet seized for the financial years 2003-04, 2004-05, 2005-06 and 2006-07 showing payment of wages running into lacs, necessarily and only leads to the irresistible conclusion that the appellant has more than 20 employees on its roles. The provisions of the Act therefore necessarily apply to it. 11. Krantikari Suraksha Rakshak Sanghatana (supra) has no relevance to the present controversy as it concerned to the provision of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. The applicability of the EPF Act did not fall for consideration there. Saraswath Films (supra) was in the context of the Employees State Insurance Act, 1948 interpreting the term immediate employer, which again has no relevance to the present controversy. 12. That the provisions of the EPF Act are applicable to a private security agency engaged in the expert service of providing personnel to its client, if it meets the requirement of the EPF Act. The question is no more res integra evident from the discussions contained in Group 4 Securitas Guarding Ltd. vs. Employees Provident Fund Appellate Tribunal & Ors., 184 (2011) DLT 591 , G4S Secure Solutions India Pvt. Ltd. vs. The Regional Provident Fund Commissioner-I and Ors., ILR 2018 Karnataka 2527, Orissa State Beverages Corporation Limited vs. Regional Provident Fund Commissioner & Ors., 2016 LLR 413, Roma Henney Security Services Private Limited vs. Central Board of Trustees, EPF Organisation, 2012 SCC OnLine Del 3597, Sarvesh Security Services Private Limited vs. University of Delhi, 2017 SCC OnLine Del 12209.
### Response:
0
### Explanation:
9. We have no doubt in our mind that the appellant is engaged in the specialised and expert services of providing trained and efficient security guards to its clients on payment basis. The contention that the appellant merely facilitated in providing Chowkidars cannot be countenanced. The provisions of the Act of 2005 make it manifest that the appellant is the employer of such security guards and who are its employees and are paid wages by the appellant. Merely because the client pays money under a contract to the appellant and in turn the appellant pays the wages of such security guards from such contractual amount received by it, it does not make the client the employer of the security guard nor do the security guards constitute employees of the client. The appellant therefore is squarely covered by the Notification dated 17.05.1971.10. The appellant never made available the statutory registers under the Act of 2005 to the authorities under the EPF Act. In fact, we have no hesitation in holding that it actually withheld relevant papers. This coupled with the letter dated 03.04.2001 written by the appellant, the appellants balance sheet seized for the financial years 2003-04, 2004-05, 2005-06 and 2006-07 showing payment of wages running into lacs, necessarily and only leads to the irresistible conclusion that the appellant has more than 20 employees on its roles. The provisions of the Act therefore necessarily apply to it.11. Krantikari Suraksha Rakshak Sanghatana (supra) has no relevance to the present controversy as it concerned to the provision of the Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. The applicability of the EPF Act did not fall for consideration there. Saraswath Films (supra) was in the context of the Employees State Insurance Act, 1948 interpreting the term immediate employer, which again has no relevance to the present controversy.12. That the provisions of the EPF Act are applicable to a private security agency engaged in the expert service of providing personnel to its client, if it meets the requirement of the EPF Act. The question is no more res integra evident from the discussions contained in Group 4 Securitas Guarding Ltd. vs. Employees Provident Fund Appellate Tribunal & Ors., 184 (2011) DLT 591 , G4S Secure Solutions India Pvt. Ltd. vs. The Regional Provident Fund Commissioner-I and Ors., ILR 2018 Karnataka 2527, Orissa State Beverages Corporation Limited vs. Regional Provident Fund Commissioner & Ors., 2016 LLR 413, Roma Henney Security Services Private Limited vs. Central Board of Trustees, EPF Organisation, 2012 SCC OnLine Del 3597, Sarvesh Security Services Private Limited vs. University of Delhi, 2017 SCC OnLine Del 12209.
|
Ghanshyam Narayan Behere Vs. Keshav Mahadeo Karandikar | the absence of reliable evidence about what transpired at the time when Exts. 34 and 35 were executed, it is not possible to accept the defendants contention that the accounts had been finally settled on September 16, 1951. This court has also expressed the view that from the findings submitted by the Trial Court on the issues framed by the High Court, it is clear that the settlement of accounts related only to Samvat Year 2007 and not to Samvat Year 2006. After a reference to certain other matters, this court has further held that there was no. substantial difference between the parties with regard to the entries in Schedule B of the plaint and that the main dispute was regarding the entries in Schedule A of the plaint. Inasmuch as neither party relied on Exts. 34 and 35 as representing a final settlement of the accounts, it was felt that to resolve the dispute it is necessary to have an account taken to ascertain what was due at the foot of the two accounts between the plaintiff and the defendant. It was also recorded that there was no. dispute raised by the defendant about his liability to pay the amounts due in the personal account and in the account of K. M. Karandikar and Company. On September 29, 1969, by consent of parties, this court appointed an advocate of the Bombay High Court, Mr. C. R. Dalvi, as Commissioner for determining the amount due at the foot of the accounts and to determine the liability of the defendant to the plaintiff. In this regard, certain directions had also been given.10. The Commissioner has now submitted his findings dated June 17, 1972. He has ultimately held that the plaintiff has failed to prove the transactions and that it is not possible to ascertain the amount due at the foot of the accounts and to determine the liability of the defendant to the plaintiff. He has further found that the liability of the defendant can be determined only on the basis of Exts. 34 and 35.11. Mr. V. S. Desai, learned counsel for the plaintiff-appellant, very strenuously attacked the findings of the Commissioner. In view of the approach made by the Commissioner, the learned counsel for the defendant-respondent, Mr. Navnit A. Shah, found considerable difficulty in supporting the report of the Commissioner. After going through the report, we are constrained to observe that the Commissioner does not appear to have borne in mind the clear directions given by this court. Nor has he come into close grip with the points to which his attention had been focussed by this court. As we are satisfied that the Commissioners report cannot be accepted, we do not propose to deal with the various matters referred to in the said report.12. The only other alternative would be for us either to go into the various items and decide the controversy or send the appeal back to the High Court. The order dated September 29, 1969, of this court appointing Mr. C. R. Dalvi as Commissioner, clearly shows that the decree of the High Court allowing the plaintiff only a sum of Rs. 601/92/- cannot be sustained. As that order contains full reasons for not accepting the judgment and decree of the High Court in First Appeal No. 111 of 1956, we are not reiterating the same and we fully agree with those reasons. We have considered it better, in the circumstances, to set aside the Commissioners report dated June 17, 1972, as also the decree and judgment of the High Court in First Appeal No. 111 of 1956. The said appeal, No. 111 of 1956, is remanded to the High Court for fresh adjudication, having due regard to the various observations and directions contained in the order of this court dated September 29, 1969, as also in the present order.13. Counsel appearing for both the parties have agreed to treat the evidence adduced before the Commissioner, Mr. C. R. Dalvi, as evidence in the appeal subject only to any objections that any of them may have regarding their admissibility or otherwise in law. The report of Mr. Dalvi has not to be taken into account. All points arising for decision and the controversy between the plaintiff and the defendant in First Appeal No. 111 of 1956, except the plaintiffs claim for Rs. 15, 000/- as remuneration, will be adjudicated afresh by the High Court taking into account also the evidence that was let in by the parties before the Commissioner, Mr. Dalvi, and which is not objected to, as aforesaid, by any party. The High Court is at liberty to appoint a fresh Commissioner and give suitable directions, bearing in mind the aim and purpose for which Mr. Dalvi was appointed by this court by its order dated September 29, l969. It is needless to state that the claim of the plaintiff and the defence of the defendant have to be gone into and adjudicated upon item by item. The claim originally made by the plaintiff for recovery from the defendant of Rs. 15, 000/-, as remuneration for helping him and for giving guarantee, need not be considered by the High Court. It has been stated earlier by us that the said claim was not pressed in this court and it has been so recorded in this Courts order dated September 29, 1969. The parties will be at liberty to produce additional evidence both before the High Court, as well as before the Commissioner that may be appointed by the High Court. After a full and fair consideration, the High Court will pass suitable decree. The costs of this appeal, together with the expenses incurred by the parties before the Commissioner, Mr. Dalvi, as also the costs of the hearing of the First Appeal No. 111 of 1956 before the High Court on a former occasion and now, will abide and are to be provided for in the fresh decree that is to be passed. | 1[ds]11. Mr. V. S. Desai, learned counsel for they strenuously attacked the findings of the Commissioner.In view of the approach made by the Commissioner, the learned counsel for the. Navnit A. Shah, found considerable difficulty in supporting the report of the Commissioner.After going through the report, we are constrained to observe that the Commissioner does not appear to have borne in mind the clear directions given by this court. Nor has he come into close grip with the points to which his attention had been focussed by this court. As we are satisfied that the Commissioners report cannot be accepted, we do not propose to deal with the various matters referred to in the said report.12. The only other alternative would be for us either to go into the various items and decide the controversy or send the appeal back to the High Court. The order dated September 29, 1969, of this court appointing Mr. C. R. Dalvi as Commissioner, clearly shows that the decree of the High Court allowing the plaintiff only a sum of Rs. 601/92/cannot be sustained. As that order contains full reasons for not accepting the judgment and decree of the High Court in First Appeal No. 111 of 1956, we are not reiterating the same and we fully agree with those reasons. We have considered it better, in the circumstances, to set aside the Commissioners report dated June 17, 1972, as also the decree and judgment of the High Court in First Appeal No. 111 of 1956. The said appeal, No. 111 of 1956, is remanded to the High Court for fresh adjudication, having due regard to the various observations and directions contained in the order of this court dated September 29, 1969, as also in the present order.13. Counsel appearing for both the parties have agreed to treat the evidence adduced before the Commissioner, Mr. C. R. Dalvi, as evidence in the appeal subject only to any objections that any of them may have regarding their admissibility or otherwise in law. The report of Mr. Dalvi has not to be taken into account. All points arising for decision and the controversy between the plaintiff and the defendant in First Appeal No. 111 of 1956, except the plaintiffs claim for Rs. 15, 000/as remuneration, will be adjudicated afresh by the High Court taking into account also the evidence that was let in by the parties before the Commissioner, Mr. Dalvi, and which is not objected to, as aforesaid, by any party. The High Court is at liberty to appoint a fresh Commissioner and give suitable directions, bearing in mind the aim and purpose for which Mr. Dalvi was appointed by this court by its order dated September 29, l969. It is needless to state that the claim of the plaintiff and the defence of the defendant have to be gone into and adjudicated upon item by item. The claim originally made by the plaintiff for recovery from the defendant of Rs. 15,as remuneration for helping him and for giving guarantee, need not be considered by the High Court. It has been stated earlier by us that the said claim was not pressed in this court and it has been so recorded in this Courts order dated September 29, 1969. The parties will be at liberty to produce additional evidence both before the High Court, as well as before the Commissioner that may be appointed by the High Court. After a full and fair consideration, the High Court will pass suitable decree. The costs of this appeal, together with the expenses incurred by the parties before the Commissioner, Mr. Dalvi, as also the costs of the hearing of the First Appeal No. 111 of 1956 before the High Court on a former occasion and now, will abide and are to be provided for in the fresh decree that is to be passed. | 1 | 2,503 | 720 | ### 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:
the absence of reliable evidence about what transpired at the time when Exts. 34 and 35 were executed, it is not possible to accept the defendants contention that the accounts had been finally settled on September 16, 1951. This court has also expressed the view that from the findings submitted by the Trial Court on the issues framed by the High Court, it is clear that the settlement of accounts related only to Samvat Year 2007 and not to Samvat Year 2006. After a reference to certain other matters, this court has further held that there was no. substantial difference between the parties with regard to the entries in Schedule B of the plaint and that the main dispute was regarding the entries in Schedule A of the plaint. Inasmuch as neither party relied on Exts. 34 and 35 as representing a final settlement of the accounts, it was felt that to resolve the dispute it is necessary to have an account taken to ascertain what was due at the foot of the two accounts between the plaintiff and the defendant. It was also recorded that there was no. dispute raised by the defendant about his liability to pay the amounts due in the personal account and in the account of K. M. Karandikar and Company. On September 29, 1969, by consent of parties, this court appointed an advocate of the Bombay High Court, Mr. C. R. Dalvi, as Commissioner for determining the amount due at the foot of the accounts and to determine the liability of the defendant to the plaintiff. In this regard, certain directions had also been given.10. The Commissioner has now submitted his findings dated June 17, 1972. He has ultimately held that the plaintiff has failed to prove the transactions and that it is not possible to ascertain the amount due at the foot of the accounts and to determine the liability of the defendant to the plaintiff. He has further found that the liability of the defendant can be determined only on the basis of Exts. 34 and 35.11. Mr. V. S. Desai, learned counsel for the plaintiff-appellant, very strenuously attacked the findings of the Commissioner. In view of the approach made by the Commissioner, the learned counsel for the defendant-respondent, Mr. Navnit A. Shah, found considerable difficulty in supporting the report of the Commissioner. After going through the report, we are constrained to observe that the Commissioner does not appear to have borne in mind the clear directions given by this court. Nor has he come into close grip with the points to which his attention had been focussed by this court. As we are satisfied that the Commissioners report cannot be accepted, we do not propose to deal with the various matters referred to in the said report.12. The only other alternative would be for us either to go into the various items and decide the controversy or send the appeal back to the High Court. The order dated September 29, 1969, of this court appointing Mr. C. R. Dalvi as Commissioner, clearly shows that the decree of the High Court allowing the plaintiff only a sum of Rs. 601/92/- cannot be sustained. As that order contains full reasons for not accepting the judgment and decree of the High Court in First Appeal No. 111 of 1956, we are not reiterating the same and we fully agree with those reasons. We have considered it better, in the circumstances, to set aside the Commissioners report dated June 17, 1972, as also the decree and judgment of the High Court in First Appeal No. 111 of 1956. The said appeal, No. 111 of 1956, is remanded to the High Court for fresh adjudication, having due regard to the various observations and directions contained in the order of this court dated September 29, 1969, as also in the present order.13. Counsel appearing for both the parties have agreed to treat the evidence adduced before the Commissioner, Mr. C. R. Dalvi, as evidence in the appeal subject only to any objections that any of them may have regarding their admissibility or otherwise in law. The report of Mr. Dalvi has not to be taken into account. All points arising for decision and the controversy between the plaintiff and the defendant in First Appeal No. 111 of 1956, except the plaintiffs claim for Rs. 15, 000/- as remuneration, will be adjudicated afresh by the High Court taking into account also the evidence that was let in by the parties before the Commissioner, Mr. Dalvi, and which is not objected to, as aforesaid, by any party. The High Court is at liberty to appoint a fresh Commissioner and give suitable directions, bearing in mind the aim and purpose for which Mr. Dalvi was appointed by this court by its order dated September 29, l969. It is needless to state that the claim of the plaintiff and the defence of the defendant have to be gone into and adjudicated upon item by item. The claim originally made by the plaintiff for recovery from the defendant of Rs. 15, 000/-, as remuneration for helping him and for giving guarantee, need not be considered by the High Court. It has been stated earlier by us that the said claim was not pressed in this court and it has been so recorded in this Courts order dated September 29, 1969. The parties will be at liberty to produce additional evidence both before the High Court, as well as before the Commissioner that may be appointed by the High Court. After a full and fair consideration, the High Court will pass suitable decree. The costs of this appeal, together with the expenses incurred by the parties before the Commissioner, Mr. Dalvi, as also the costs of the hearing of the First Appeal No. 111 of 1956 before the High Court on a former occasion and now, will abide and are to be provided for in the fresh decree that is to be passed.
### Response:
1
### Explanation:
11. Mr. V. S. Desai, learned counsel for they strenuously attacked the findings of the Commissioner.In view of the approach made by the Commissioner, the learned counsel for the. Navnit A. Shah, found considerable difficulty in supporting the report of the Commissioner.After going through the report, we are constrained to observe that the Commissioner does not appear to have borne in mind the clear directions given by this court. Nor has he come into close grip with the points to which his attention had been focussed by this court. As we are satisfied that the Commissioners report cannot be accepted, we do not propose to deal with the various matters referred to in the said report.12. The only other alternative would be for us either to go into the various items and decide the controversy or send the appeal back to the High Court. The order dated September 29, 1969, of this court appointing Mr. C. R. Dalvi as Commissioner, clearly shows that the decree of the High Court allowing the plaintiff only a sum of Rs. 601/92/cannot be sustained. As that order contains full reasons for not accepting the judgment and decree of the High Court in First Appeal No. 111 of 1956, we are not reiterating the same and we fully agree with those reasons. We have considered it better, in the circumstances, to set aside the Commissioners report dated June 17, 1972, as also the decree and judgment of the High Court in First Appeal No. 111 of 1956. The said appeal, No. 111 of 1956, is remanded to the High Court for fresh adjudication, having due regard to the various observations and directions contained in the order of this court dated September 29, 1969, as also in the present order.13. Counsel appearing for both the parties have agreed to treat the evidence adduced before the Commissioner, Mr. C. R. Dalvi, as evidence in the appeal subject only to any objections that any of them may have regarding their admissibility or otherwise in law. The report of Mr. Dalvi has not to be taken into account. All points arising for decision and the controversy between the plaintiff and the defendant in First Appeal No. 111 of 1956, except the plaintiffs claim for Rs. 15, 000/as remuneration, will be adjudicated afresh by the High Court taking into account also the evidence that was let in by the parties before the Commissioner, Mr. Dalvi, and which is not objected to, as aforesaid, by any party. The High Court is at liberty to appoint a fresh Commissioner and give suitable directions, bearing in mind the aim and purpose for which Mr. Dalvi was appointed by this court by its order dated September 29, l969. It is needless to state that the claim of the plaintiff and the defence of the defendant have to be gone into and adjudicated upon item by item. The claim originally made by the plaintiff for recovery from the defendant of Rs. 15,as remuneration for helping him and for giving guarantee, need not be considered by the High Court. It has been stated earlier by us that the said claim was not pressed in this court and it has been so recorded in this Courts order dated September 29, 1969. The parties will be at liberty to produce additional evidence both before the High Court, as well as before the Commissioner that may be appointed by the High Court. After a full and fair consideration, the High Court will pass suitable decree. The costs of this appeal, together with the expenses incurred by the parties before the Commissioner, Mr. Dalvi, as also the costs of the hearing of the First Appeal No. 111 of 1956 before the High Court on a former occasion and now, will abide and are to be provided for in the fresh decree that is to be passed.
|
THE MAYOR MUNICIPAL CORPORATION Vs. GOVIND BAJIRAO NAVPUTE AND ORS | view that it is not a fit case to interfere with the impugned order under Article 136 of the Constitution of India. 10. The High Court, mainly on the ground that the Planning Authority has not prepared a draft development plan within the time prescribed under Section 26 of the MRTP Act, has allowed the writ petition with a further direction that the competent authority shall undertake the remaining work relating to preparation of draft development plan and submit to the State Government for sanction. Though, elaborate arguments were advanced, stating that the time frame fixed under Section 26 of the MRTP Act is only directory and not mandatory and further prescribed period can be extended as per the proviso, by entertaining an application even after expiry of time etc., however, we are of the view that the said aspects need not be gone into at this stage by this Court. Chapter III of the MRTP Act deals with the preparation of development plan and as per Section 38 of the MRTP Act development plan is to be revised at least once in twenty years. For the preparation of development plan, or the revised development plan, proceedings have to be initiated three years earlier to its sanction by the Government. If the draft development plan is not prepared and published in the Official Gazette, by the planning authority, within the time frame, the competent authority as prescribed under Section 21(4A) shall exercise all the powers and perform all the duties of a planning authority which may be necessary for the purpose of preparing a development plan and submitting it to the State Government for sanction. Section 21(4A) of the Maharashtra Regional and Town Planing Act, 1966 reads as under:- Sec.21(4A) If at any stage of preparation of the draft Development plan, the time fixed under sections 25,26 and 30 for doing anything specified in the said sections lapses, the Planning Authority shall be deemed to have failed to perform its duty imposed upon it by or under the provisions of this Act and any work remaining to be done upto the stage of submission of the draft Development plan under section 30 shall be completed by the concerned Divisional Joint Director or Deputy Director of Town Planning and Valuation Department or an officer nominated by him not below the rank of an Assistant Director of Town Planning, as the case may be. The said officer shall exercise all the powers and perform all the duties of a Planning Authority which may be necessary for the purpose of preparing a Development plan and submitting it to the State Government for sanction and may, notwithstanding anything contained in any other law relating to the funds of the Planning Authority, recover the cost thereof from such funds: Provided that, the said Officer shall exercise all the power and perform all the duties of the planning authority within such period as may be specified by an order by the Director of Town Planning, having regard to the stage of preparation of Development plan: Provided further that, the said period specified under the first proviso shall not exceed the original period stipulated under the relevant section. 11. Further during the course of hearing, learned counsel appearing for the Aurangabad Municipal Corporation and State of Maharashtra brought to our notice letters dated 15.10.2018 and 15.01.2020 issued by the Government of Maharashtra. In proceedings dated 15.10.2018, Government of Maharashtra in exercise of power under Section 154 of the MRTP Act has issued directions for preparing combined development plan, for original area and for newly added area. The direction issued in the said proceedings reads as under:- If development plan of original area and increased area of any Municipal Corporation/Nagar Parishads/Nagar Panchayat/Special Planning Authority or any other authority is due by the reason of completion of 20 years, in that case before initiating revised development plan 3 years before completion of said period, if revised development plan is prepared for entire area which comes within the purview of planning authority then, proper planning could be made and process of preparation of future revised development plan will occur at same time. Therefore, preparation of revised development plan for entire area falling under the jurisdiction of planning authority shall be made, though the date for part of the revised development plan is different, and combined development plan shall be prepared for entire area. In the name and by the order of Governor of Maharashtra. 12. Government of Maharashtra, by referring to the earlier proceedings dated 15.10.2018, has addressed a letter dated 15.01.2020 to the Commissioner of Aurangabad Municipal Corporation. In the aforesaid letter, the Government has issued instructions to the Commissioner, to prepare a new combined development plan for original and extended limits of Aurangabad city. The relevant portion of the said letter reads as under:- However, considering complete area of Planning Authority with a view to make better planning of development scheme proposals while revising the Development Plan, the Government has issued directions on 15.10.2018 as per Section 154 of Maharashtra Regional and Town Planning Act 1966 to prepare combined Development Plan for original and extended limit. Considering the period of Development Plan period of original limits of Aurangabad city and the directions issued by the Government as above,further action may be taken by the Aurangabad Municipal Corporation in regard to prepare new combined Development Plan for original and extended limits of Aurangabad city. 13. In this case, it is to be noted that proceedings were initiated in the year 2013 for revising the draft development plan and for one reason or the other, the proceedings remained at the stage of preparation of draft development plan. In view of the directions of the High Court, the said plan is yet to be prepared and is to be submitted to the Government for sanction. In any event having regard to communication/letter dated 15.01.2020 a fresh combined development plan for original and extended limits is to be prepared for Aurangabad city. | 0[ds]9. Having heard learned counsels on both sides and on perusal of the impugned judgment and other material placed on record, we are of the view that it is not a fit case to interfere with the impugned order under Article 136 of the Constitution of India10. The High Court, mainly on the ground that the Planning Authority has not prepared a draft development plan within the time prescribed under Section 26 of the MRTP Act, has allowed the writ petition with a further direction that the competent authority shall undertake the remaining work relating to preparation of draft development plan and submit to the State Government for sanction. Though, elaborate arguments were advanced, stating that the time frame fixed under Section 26 of the MRTP Act is only directory and not mandatory and further prescribed period can be extended as per the proviso, by entertaining an application even after expiry of time etc., however, we are of the view that the said aspects need not be gone into at this stage by this Court13. In this case, it is to be noted that proceedings were initiated in the year 2013 for revising the draft development plan and for one reason or the other, the proceedings remained at the stage of preparation of draft development plan. In view of the directions of the High Court, the said plan is yet to be prepared and is to be submitted to the Government for sanction. In any event having regard to communication/letter dated 15.01.2020 a fresh combined development plan for original and extended limits is to be prepared for Aurangabad city10. The High Court, mainly on the ground that the Planning Authority has not prepared a draft development plan within the time prescribed under Section 26 of the MRTP Act, has allowed the writ petition with a further direction that the competent authority shall undertake the remaining work relating to preparation of draft development plan and submit to the State Government for sanction. Though, elaborate arguments were advanced, stating that the time frame fixed under Section 26 of the MRTP Act is only directory and not mandatory and further prescribed period can be extended as per the proviso, by entertaining an application even after expiry of time etc., however, we are of the view that the said aspects need not be gone into at this stage by this. Chapter III of the MRTP Act deals with the preparation of development plan and as per Section 38 of the MRTP Act development plan is to be revised at least once in twenty years. For the preparation of development plan, or the revised development plan, proceedings have to be initiated three years earlier to its sanction by the Government. If the draft development plan is not prepared and published in the Official Gazette, by the planning authority, within the time frame, the competent authority as prescribed under Section 21(4A) shall exercise all the powers and perform all the duties of a planning authority which may be necessary for the purpose of preparing a development plan and submitting it to the State Government for sanction. | 0 | 2,296 | 562 | ### 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:
view that it is not a fit case to interfere with the impugned order under Article 136 of the Constitution of India. 10. The High Court, mainly on the ground that the Planning Authority has not prepared a draft development plan within the time prescribed under Section 26 of the MRTP Act, has allowed the writ petition with a further direction that the competent authority shall undertake the remaining work relating to preparation of draft development plan and submit to the State Government for sanction. Though, elaborate arguments were advanced, stating that the time frame fixed under Section 26 of the MRTP Act is only directory and not mandatory and further prescribed period can be extended as per the proviso, by entertaining an application even after expiry of time etc., however, we are of the view that the said aspects need not be gone into at this stage by this Court. Chapter III of the MRTP Act deals with the preparation of development plan and as per Section 38 of the MRTP Act development plan is to be revised at least once in twenty years. For the preparation of development plan, or the revised development plan, proceedings have to be initiated three years earlier to its sanction by the Government. If the draft development plan is not prepared and published in the Official Gazette, by the planning authority, within the time frame, the competent authority as prescribed under Section 21(4A) shall exercise all the powers and perform all the duties of a planning authority which may be necessary for the purpose of preparing a development plan and submitting it to the State Government for sanction. Section 21(4A) of the Maharashtra Regional and Town Planing Act, 1966 reads as under:- Sec.21(4A) If at any stage of preparation of the draft Development plan, the time fixed under sections 25,26 and 30 for doing anything specified in the said sections lapses, the Planning Authority shall be deemed to have failed to perform its duty imposed upon it by or under the provisions of this Act and any work remaining to be done upto the stage of submission of the draft Development plan under section 30 shall be completed by the concerned Divisional Joint Director or Deputy Director of Town Planning and Valuation Department or an officer nominated by him not below the rank of an Assistant Director of Town Planning, as the case may be. The said officer shall exercise all the powers and perform all the duties of a Planning Authority which may be necessary for the purpose of preparing a Development plan and submitting it to the State Government for sanction and may, notwithstanding anything contained in any other law relating to the funds of the Planning Authority, recover the cost thereof from such funds: Provided that, the said Officer shall exercise all the power and perform all the duties of the planning authority within such period as may be specified by an order by the Director of Town Planning, having regard to the stage of preparation of Development plan: Provided further that, the said period specified under the first proviso shall not exceed the original period stipulated under the relevant section. 11. Further during the course of hearing, learned counsel appearing for the Aurangabad Municipal Corporation and State of Maharashtra brought to our notice letters dated 15.10.2018 and 15.01.2020 issued by the Government of Maharashtra. In proceedings dated 15.10.2018, Government of Maharashtra in exercise of power under Section 154 of the MRTP Act has issued directions for preparing combined development plan, for original area and for newly added area. The direction issued in the said proceedings reads as under:- If development plan of original area and increased area of any Municipal Corporation/Nagar Parishads/Nagar Panchayat/Special Planning Authority or any other authority is due by the reason of completion of 20 years, in that case before initiating revised development plan 3 years before completion of said period, if revised development plan is prepared for entire area which comes within the purview of planning authority then, proper planning could be made and process of preparation of future revised development plan will occur at same time. Therefore, preparation of revised development plan for entire area falling under the jurisdiction of planning authority shall be made, though the date for part of the revised development plan is different, and combined development plan shall be prepared for entire area. In the name and by the order of Governor of Maharashtra. 12. Government of Maharashtra, by referring to the earlier proceedings dated 15.10.2018, has addressed a letter dated 15.01.2020 to the Commissioner of Aurangabad Municipal Corporation. In the aforesaid letter, the Government has issued instructions to the Commissioner, to prepare a new combined development plan for original and extended limits of Aurangabad city. The relevant portion of the said letter reads as under:- However, considering complete area of Planning Authority with a view to make better planning of development scheme proposals while revising the Development Plan, the Government has issued directions on 15.10.2018 as per Section 154 of Maharashtra Regional and Town Planning Act 1966 to prepare combined Development Plan for original and extended limit. Considering the period of Development Plan period of original limits of Aurangabad city and the directions issued by the Government as above,further action may be taken by the Aurangabad Municipal Corporation in regard to prepare new combined Development Plan for original and extended limits of Aurangabad city. 13. In this case, it is to be noted that proceedings were initiated in the year 2013 for revising the draft development plan and for one reason or the other, the proceedings remained at the stage of preparation of draft development plan. In view of the directions of the High Court, the said plan is yet to be prepared and is to be submitted to the Government for sanction. In any event having regard to communication/letter dated 15.01.2020 a fresh combined development plan for original and extended limits is to be prepared for Aurangabad city.
### Response:
0
### Explanation:
9. Having heard learned counsels on both sides and on perusal of the impugned judgment and other material placed on record, we are of the view that it is not a fit case to interfere with the impugned order under Article 136 of the Constitution of India10. The High Court, mainly on the ground that the Planning Authority has not prepared a draft development plan within the time prescribed under Section 26 of the MRTP Act, has allowed the writ petition with a further direction that the competent authority shall undertake the remaining work relating to preparation of draft development plan and submit to the State Government for sanction. Though, elaborate arguments were advanced, stating that the time frame fixed under Section 26 of the MRTP Act is only directory and not mandatory and further prescribed period can be extended as per the proviso, by entertaining an application even after expiry of time etc., however, we are of the view that the said aspects need not be gone into at this stage by this Court13. In this case, it is to be noted that proceedings were initiated in the year 2013 for revising the draft development plan and for one reason or the other, the proceedings remained at the stage of preparation of draft development plan. In view of the directions of the High Court, the said plan is yet to be prepared and is to be submitted to the Government for sanction. In any event having regard to communication/letter dated 15.01.2020 a fresh combined development plan for original and extended limits is to be prepared for Aurangabad city10. The High Court, mainly on the ground that the Planning Authority has not prepared a draft development plan within the time prescribed under Section 26 of the MRTP Act, has allowed the writ petition with a further direction that the competent authority shall undertake the remaining work relating to preparation of draft development plan and submit to the State Government for sanction. Though, elaborate arguments were advanced, stating that the time frame fixed under Section 26 of the MRTP Act is only directory and not mandatory and further prescribed period can be extended as per the proviso, by entertaining an application even after expiry of time etc., however, we are of the view that the said aspects need not be gone into at this stage by this. Chapter III of the MRTP Act deals with the preparation of development plan and as per Section 38 of the MRTP Act development plan is to be revised at least once in twenty years. For the preparation of development plan, or the revised development plan, proceedings have to be initiated three years earlier to its sanction by the Government. If the draft development plan is not prepared and published in the Official Gazette, by the planning authority, within the time frame, the competent authority as prescribed under Section 21(4A) shall exercise all the powers and perform all the duties of a planning authority which may be necessary for the purpose of preparing a development plan and submitting it to the State Government for sanction.
|
Sassoon J. David & Co. (P) Ltd., Bombay Vs. C.I.T., Bombay | to facilitate the carrying on of the business. We are of the view that the three tests laid down by this court in the above case, viz., (i) that the payment should have been made as a matter of practice which affected the quantum of salary ; (ii) that there was an expectation by the employee of getting a gratuity, and (iii) that the sum of money was expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business of the assessee have to be read disjunctively and if they are so read, the present case which satisfies the third test should be held as falling under s. 10(2)(xv) of the Act. The High Court of Gujarat in CIT v. Laxmi Cement Distributors P. Ltd. [1976] 104 ITR 711 and the High Court of Bombay in CIT v. Fairdeal Corporation P. Ltd. [1977] 108 ITR 280 and in CIT v. Patel Cotton Co. P. Ltd. [1977] 108 ITR 846 (Bom) have also understood the principle underlying the decision of this court in Gordon Woodroffe Leather Manufacturing Co. v. CIT [1962] 44 ITR 551 (SC) in the same way. The High Court was, therefore, in error in holding that the amount involved in the case did not satisfy the test applicable to the expenditure allowable under s. 10(2)(xv) of the ActThe next contention urged on behalf of the department was that since Davids and Tatas were indirectly benefited by the retrenchment of the services of the employees of the company and payment of compensation to them and since there was no necessity to retrench the services of all the employees, the expenditure in question could not be treated as an expenditure laid out wholly and exclusively for business purposes of the company. It has to be observed here that the expression " wholly and exclusively " used in s. 10(2)(xv) of the Act does not mean " necessarily ". Ordinarily, it is for the assessee to decide whether any expenditure should be incurred in the course of his or its business. Such expenditure may be incurred voluntarily and without any necessity and if it is incurred for promoting the business and to earn profits, the assessee can claim deduction under s. 10(2)(xv) of the Act even though there was no compelling necessity to incur such expenditure. It is relevant to refer at this stage to the legislative history of s. 37 of the I.T. Act, 1961, which corresponds to s. 10(2)(xv) of the Act. An attempt was made in the I.T. Bill of 1961 to lay down the " necessity " of the expenditure as a condition for claiming deduction under s. 37. Section 37(1) in the Bill read " any expenditure ...... laid out or expended wholly, necessarily and exclusively for the purposes of the business or profession shall be allowed ..........." The introduction of the word " necessarily " in the above section resulted in public protest. Consequently, when s. 37 was finally enacted into law, the word " necessarily " came to be dropped. The fact that somebody other than the assessee is also benefited by the expenditure should not come in the way of an expenditure being allowed by way of deduction under s.10(2)(xv) of the Act if it satisfies otherwise the tests laid down by law. This view is in accord with the following observations made by this court in CIT v. Chandulal Keshavlal & Co. [1960] 3 SCR 38 at page 48 ; 38 ITR 601, 610 (SC)" Another fact that emerges from these cases is that if the expense is incurred for fostering the business of another only or was made by way of distribution of profits or was wholly gratuitous or for some improper or oblique purpose outside the course of business then the expense is not deductible. In deciding whether a payment of money is a deductible expenditure one has to take into consideration questions of commercial expediency and the principles of ordinary commercial trading. If the payment of expenditure is incurred for the purpose of the trade of the assessee it does not matter that the payment may inure to the benefit of a third party (Ushers Wiltshire Brewery Ltd. v. Bruce [1914) 6 TC 399 (HL). Another test is whether the transaction is properly entered into as a part of the assessees legitimate commercial undertaking in order to facilitate the carrying on of its business ; and it is immaterial that a third party also benefits thereby (Eastern Investment Ltd. v. CIT [1951] SCR 594 ; 20 ITR 1 (SC). But in every case it is a question of fact whether the expenditure was expended wholly and exclusively for the purpose of trade or business of the assessee. " 10. In the instant case, it was the case of the company that many of the employees were old and superfluous and the business could be carried on with a smaller number and the only way in which they could reduce the number was to terminate the services of all the employees by paying them compensation and thereafter re-employing some of them only. If the company felt that that was a method which would inure to its benefit, it cannot be said that the payment of compensation was made with an oblique motive and without regard to commercial considerations or expediency. The High Court, therefore, erred on the facts and in the circumstances of the case in holding that the sum of Rs. 1, 27, 511 was not deductible under s. 10(2)(xv) of the Act and in answering questions Nos. (1) and (2) referred to it in Income-tax Reference No. 58 of 1963 arising out of the assessment order for the year 1957-58, against the assessee and in favour of the department to the extent of Rs. 1, 27, 511. Similarly, it erred in disallowing the claim made in respect of Rs. 16, 885 for each of the three succeeding assessment years. 11. | 1[ds]In the instant case, it is necessary to bear in mind that the company was neither dissolved nor was its business undertaking sold. It continued to exist as a juristic entity even after the transfer of its shares by Davids to Tatas. On account of such transfer of shares, the transferees no doubt gained control of the company. But one important fact of the case which was lost sight of by the High Court and the Tribunal was that neither Davids nor Tatas derived any direct benefit out of the payment of retrenchment compensation to the employees even though such retrenchment might have facilitated the transfer of shares. It is also not the case of the department that the payment was excessive. That there was a substantial reduction in the wage bill in the future years as a consequence of retrenchment was also not disputed. It is too late in the day now, whatever may have been the position about two decades ago, to treat the expenditure incurred by a management in paying reasonable sums by way of gratuity, bonus, retrenchment compensation or compensation for termination of service as not business expenditure. Such expenditure would ordinarily fall within the scope of s. 10(2)(xv) of the Act which authorised the deduction of any expenditure not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of business or profession or vocationIn our opinion the proper test to apply in this case is, was the payment made as a matter of practice which affected the quantum of salary or was there an expectation by the employee of getting a gratuity or was the sum of money expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business. But this has not been shown and therefore the amount claimed is not a deductible item under section 10(2)(xv). "From the perusal of the judgment of the High Court, it becomes clear that the High Court placed more emphasis on the motive with which the amount was expended than the fact that the expenditure had been incurred in connection with the business of the company and that such expenditure resulted in the reduction of the annual wage bill of the company in the future yearsIn, order to claim deduction under s. 10(2)(xv) of the Act, an assessee has to show that the expenditure in question, (i) was not an allowance of the nature described in any of the cls. (i) to (xiv) of s. 10(2), (ii) was not in the nature of a capital expenditure or personal expenses of the assessee, and (iii) had been laid out or expended wholly and exclusively for the purposes of his business, profession or vocation. Even assuming that the motive behind the payment of retrenchment compensation was that the terms of the agreement of the sale of shares should be satisfied, as long as the amount had been laid out or expended wholly and exclusively for the purpose of the business of the assessee, there appears to be no good reason for denying, the benefit of s. 10(2)(xv) of the Act to the company if there is no other impediment to do soThe facts of these cases are very close to the facts found in (i)IRC v.Patrick Thomson Ltd. ( In liquidation) :IRC v.J. & R. Allan Ltd. (In liquidation) :IRC v.In the present case also, it is seen that the company continued to function even after its control passed on to the hands of the Tatas and the expenditure in question was laid out for the purpose of the companys own trade and not for the trade of Tatas who were only the shareholders of the company. We cannot overlook the distinction between the company and its shareholders. As a result of the expenditure in question, the company was in fact benefited and it was possible for it to earn more profits as a consequence of the reduction in the wage bill. It was suggested in the course of the arguments before us that Tatas were actually benefited by the payment in question because the price payable by them for the shares was reduced by the amount spent by the company. We do not find any substance in this contention. Admittedly, the assets of the company had been valued as on December 31, 1955, at Rs. 155 lakhs. Naturally the total value of the shares of the company would be Rs. 155 lakhs which Tatas had agreed to pay. Subsequent to December 31, 1955, the company had by passing the resolution incurred liability to payretrenchment compensation and compensationfor termination of service as stated above. On account of the said resolution, the total value of the assets of the company was reduced by the amount payable to the employees by way of compensation. It is natural that the purchaser of the shares would ordinarily claim reduction in the consideration payable for the shares by the amount which the company had undertaken to pay as assets of the company became reduced to that extent. It cannot, therefore, be said that the Tatas were in any way benefited financially by reason of the reduction in the consideration payable by them for the shares. We feel that the expenditure in respect of which deduction is claimed by the company in this case falls within the third test laid down by this court in the case of Gordon Woodroffe Leather Manufacturing Co. v. CIT [1962] 44 ITR 551 (SC), viz., that the sum of money had been expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business. We are of the view that the three tests laid down by this court in the above case, viz., (i) that the payment should have been made as a matter of practice which affected the quantum of salary ; (ii) that there was an expectation by the employee of getting a gratuity, and (iii) that the sum of money was expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business of the assessee have to be read disjunctively and if they are so read, the present case which satisfies the third test should be held as falling under s. 10(2)(xv) of the ActThe High Court of Gujarat in CIT v. Laxmi Cement Distributors P. Ltd. [1976] 104 ITR 711 and the High Court of Bombay in CIT v. Fairdeal Corporation P. Ltd. [1977] 108 ITR0 andin CIT v. Patel Cotton Co. P. Ltd. [1977] 108 ITR 846 (Bom) have also understood the principle underlying the decision of this court in Gordon Woodroffe Leather Manufacturing Co. v. CIT [1962] 44 ITR 551 (SC) in the same way. The High Court was, therefore, in error in holding that the amount involved in the case did not satisfy the test applicable to the expenditure allowable under s. 10(2)(xv) of the ActIn the instant case, it was the case of the company that many of the employees were old and superfluous and the business could be carried on with a smaller number and the only way in which they could reduce the number was to terminate the services of all the employees by paying them compensation and thereafter re-employing some of them only. If the company felt that that was a method which would inure to its benefit, it cannot be said that the payment of compensation was made with an oblique motive and without regard to commercial considerations or expediency. The High Court, therefore, erred on the facts and in the circumstances of the case in holding that the sum of Rs. 1, 27, 511 was not deductible under s. 10(2)(xv) of the Act and in answering questions Nos. (1) and (2) referred to it in Income-tax Reference No. 58 of 1963 arising out of the assessment order for the year 1957-58, against the assessee and in favour of the department to the extent of Rs. 1, 27, 511. Similarly, it erred in disallowing the claim made in respect of Rs. 16, 885 for each of the three succeeding assessment years | 1 | 7,429 | 1,549 | ### 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 facilitate the carrying on of the business. We are of the view that the three tests laid down by this court in the above case, viz., (i) that the payment should have been made as a matter of practice which affected the quantum of salary ; (ii) that there was an expectation by the employee of getting a gratuity, and (iii) that the sum of money was expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business of the assessee have to be read disjunctively and if they are so read, the present case which satisfies the third test should be held as falling under s. 10(2)(xv) of the Act. The High Court of Gujarat in CIT v. Laxmi Cement Distributors P. Ltd. [1976] 104 ITR 711 and the High Court of Bombay in CIT v. Fairdeal Corporation P. Ltd. [1977] 108 ITR 280 and in CIT v. Patel Cotton Co. P. Ltd. [1977] 108 ITR 846 (Bom) have also understood the principle underlying the decision of this court in Gordon Woodroffe Leather Manufacturing Co. v. CIT [1962] 44 ITR 551 (SC) in the same way. The High Court was, therefore, in error in holding that the amount involved in the case did not satisfy the test applicable to the expenditure allowable under s. 10(2)(xv) of the ActThe next contention urged on behalf of the department was that since Davids and Tatas were indirectly benefited by the retrenchment of the services of the employees of the company and payment of compensation to them and since there was no necessity to retrench the services of all the employees, the expenditure in question could not be treated as an expenditure laid out wholly and exclusively for business purposes of the company. It has to be observed here that the expression " wholly and exclusively " used in s. 10(2)(xv) of the Act does not mean " necessarily ". Ordinarily, it is for the assessee to decide whether any expenditure should be incurred in the course of his or its business. Such expenditure may be incurred voluntarily and without any necessity and if it is incurred for promoting the business and to earn profits, the assessee can claim deduction under s. 10(2)(xv) of the Act even though there was no compelling necessity to incur such expenditure. It is relevant to refer at this stage to the legislative history of s. 37 of the I.T. Act, 1961, which corresponds to s. 10(2)(xv) of the Act. An attempt was made in the I.T. Bill of 1961 to lay down the " necessity " of the expenditure as a condition for claiming deduction under s. 37. Section 37(1) in the Bill read " any expenditure ...... laid out or expended wholly, necessarily and exclusively for the purposes of the business or profession shall be allowed ..........." The introduction of the word " necessarily " in the above section resulted in public protest. Consequently, when s. 37 was finally enacted into law, the word " necessarily " came to be dropped. The fact that somebody other than the assessee is also benefited by the expenditure should not come in the way of an expenditure being allowed by way of deduction under s.10(2)(xv) of the Act if it satisfies otherwise the tests laid down by law. This view is in accord with the following observations made by this court in CIT v. Chandulal Keshavlal & Co. [1960] 3 SCR 38 at page 48 ; 38 ITR 601, 610 (SC)" Another fact that emerges from these cases is that if the expense is incurred for fostering the business of another only or was made by way of distribution of profits or was wholly gratuitous or for some improper or oblique purpose outside the course of business then the expense is not deductible. In deciding whether a payment of money is a deductible expenditure one has to take into consideration questions of commercial expediency and the principles of ordinary commercial trading. If the payment of expenditure is incurred for the purpose of the trade of the assessee it does not matter that the payment may inure to the benefit of a third party (Ushers Wiltshire Brewery Ltd. v. Bruce [1914) 6 TC 399 (HL). Another test is whether the transaction is properly entered into as a part of the assessees legitimate commercial undertaking in order to facilitate the carrying on of its business ; and it is immaterial that a third party also benefits thereby (Eastern Investment Ltd. v. CIT [1951] SCR 594 ; 20 ITR 1 (SC). But in every case it is a question of fact whether the expenditure was expended wholly and exclusively for the purpose of trade or business of the assessee. " 10. In the instant case, it was the case of the company that many of the employees were old and superfluous and the business could be carried on with a smaller number and the only way in which they could reduce the number was to terminate the services of all the employees by paying them compensation and thereafter re-employing some of them only. If the company felt that that was a method which would inure to its benefit, it cannot be said that the payment of compensation was made with an oblique motive and without regard to commercial considerations or expediency. The High Court, therefore, erred on the facts and in the circumstances of the case in holding that the sum of Rs. 1, 27, 511 was not deductible under s. 10(2)(xv) of the Act and in answering questions Nos. (1) and (2) referred to it in Income-tax Reference No. 58 of 1963 arising out of the assessment order for the year 1957-58, against the assessee and in favour of the department to the extent of Rs. 1, 27, 511. Similarly, it erred in disallowing the claim made in respect of Rs. 16, 885 for each of the three succeeding assessment years. 11.
### Response:
1
### Explanation:
the reduction of the annual wage bill of the company in the future yearsIn, order to claim deduction under s. 10(2)(xv) of the Act, an assessee has to show that the expenditure in question, (i) was not an allowance of the nature described in any of the cls. (i) to (xiv) of s. 10(2), (ii) was not in the nature of a capital expenditure or personal expenses of the assessee, and (iii) had been laid out or expended wholly and exclusively for the purposes of his business, profession or vocation. Even assuming that the motive behind the payment of retrenchment compensation was that the terms of the agreement of the sale of shares should be satisfied, as long as the amount had been laid out or expended wholly and exclusively for the purpose of the business of the assessee, there appears to be no good reason for denying, the benefit of s. 10(2)(xv) of the Act to the company if there is no other impediment to do soThe facts of these cases are very close to the facts found in (i)IRC v.Patrick Thomson Ltd. ( In liquidation) :IRC v.J. & R. Allan Ltd. (In liquidation) :IRC v.In the present case also, it is seen that the company continued to function even after its control passed on to the hands of the Tatas and the expenditure in question was laid out for the purpose of the companys own trade and not for the trade of Tatas who were only the shareholders of the company. We cannot overlook the distinction between the company and its shareholders. As a result of the expenditure in question, the company was in fact benefited and it was possible for it to earn more profits as a consequence of the reduction in the wage bill. It was suggested in the course of the arguments before us that Tatas were actually benefited by the payment in question because the price payable by them for the shares was reduced by the amount spent by the company. We do not find any substance in this contention. Admittedly, the assets of the company had been valued as on December 31, 1955, at Rs. 155 lakhs. Naturally the total value of the shares of the company would be Rs. 155 lakhs which Tatas had agreed to pay. Subsequent to December 31, 1955, the company had by passing the resolution incurred liability to payretrenchment compensation and compensationfor termination of service as stated above. On account of the said resolution, the total value of the assets of the company was reduced by the amount payable to the employees by way of compensation. It is natural that the purchaser of the shares would ordinarily claim reduction in the consideration payable for the shares by the amount which the company had undertaken to pay as assets of the company became reduced to that extent. It cannot, therefore, be said that the Tatas were in any way benefited financially by reason of the reduction in the consideration payable by them for the shares. We feel that the expenditure in respect of which deduction is claimed by the company in this case falls within the third test laid down by this court in the case of Gordon Woodroffe Leather Manufacturing Co. v. CIT [1962] 44 ITR 551 (SC), viz., that the sum of money had been expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business. We are of the view that the three tests laid down by this court in the above case, viz., (i) that the payment should have been made as a matter of practice which affected the quantum of salary ; (ii) that there was an expectation by the employee of getting a gratuity, and (iii) that the sum of money was expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business of the assessee have to be read disjunctively and if they are so read, the present case which satisfies the third test should be held as falling under s. 10(2)(xv) of the ActThe High Court of Gujarat in CIT v. Laxmi Cement Distributors P. Ltd. [1976] 104 ITR 711 and the High Court of Bombay in CIT v. Fairdeal Corporation P. Ltd. [1977] 108 ITR0 andin CIT v. Patel Cotton Co. P. Ltd. [1977] 108 ITR 846 (Bom) have also understood the principle underlying the decision of this court in Gordon Woodroffe Leather Manufacturing Co. v. CIT [1962] 44 ITR 551 (SC) in the same way. The High Court was, therefore, in error in holding that the amount involved in the case did not satisfy the test applicable to the expenditure allowable under s. 10(2)(xv) of the ActIn the instant case, it was the case of the company that many of the employees were old and superfluous and the business could be carried on with a smaller number and the only way in which they could reduce the number was to terminate the services of all the employees by paying them compensation and thereafter re-employing some of them only. If the company felt that that was a method which would inure to its benefit, it cannot be said that the payment of compensation was made with an oblique motive and without regard to commercial considerations or expediency. The High Court, therefore, erred on the facts and in the circumstances of the case in holding that the sum of Rs. 1, 27, 511 was not deductible under s. 10(2)(xv) of the Act and in answering questions Nos. (1) and (2) referred to it in Income-tax Reference No. 58 of 1963 arising out of the assessment order for the year 1957-58, against the assessee and in favour of the department to the extent of Rs. 1, 27, 511. Similarly, it erred in disallowing the claim made in respect of Rs. 16, 885 for each of the three succeeding assessment years
|
Board of High School & Intermediate Education, U.P. & Others Vs. Kumari Chittra Srivastava & Others | from appearing at the examination on account of her absence from lectures in a subject in which the required lectures were not held.I got the student admitted to the examination as I was confident that the officers of the Board will agree with my view."4. The substance of the letter was that the shortage in lectures wad due to the lecturer taking leave.5. The Board was, however, impatient. It is not clear whether this letter was received by the Board because no reference to it is made in the letter dated July 6, 1961. The Board wrote :"In continuation of this office letter No. E. I./617, dated 24th May, 1961 and telegram dated 24th May, 1961 I have the honour to inform that you have not furnished the desired information about the student Km. Chitra Srivastava, Roll No. 50452. From your previous letter No. 143/E dated 6th May, 1961, it is learnt that the admission of the student by you to the examination by condoning her absence from seven lectures on the subject of Home Science was contrary to rules. Hence the students Inter Examination of 1961 is cancelled. Kindly communicate this to the student under intimation to this office."6. The Principal replied on July 11, 1961, giving details of the lectures attended and requested that the order be cancelled and the severe punishment be not awarded to the petitioner.7. On October 6, 1961, the petitioner filed a petition under Article 226 of the Constitution challenging the impugned order dated July 6, 1961, Mathur, J. dismissed it summarily. On appeal, Srivastava and Katju, JJ., allowed the petition as mentioned earlier. They were of the view that the Board, while cancelling the examination, acted in a quasi-judicial capacity. The Board was "by cancelling the examination inflicting a penalty" and if opportunity had been given to the petitioner to present her case she might have persuaded the Board not to cancel the examination.8. The learned counsel for the appellant, Mr. C. B. Aggarwal, contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show cause notice. We are unable to accept this contention. Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authoritys satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed.9. We agree with the High Court that the impugned order imposed a penalty. The petitioner had appeared in the examination and answered all the question papers. According to her she had passed. To deny her the fruits of her labour cannot but be called a penalty. We are unable to appreciate the contention that the Board in "cancelling her examination" was not exercising quasi-judicial functions. The learned counsel urges that this would be casting a heavy burden on the Board. Principles of natural justice are to some minds burdensome but this price a small price indeed - has to be paid if we desire a society governed by the rule of law. We should not be taken to have decided that this rule will also apply when a candidate is refused admission to an examination. We are not concerned, with this question and say nothing about it.10. The learned counsel invites us to hold that the decision of the Board was on the facts correct and that the Board had no power to condone the shortage of 2 lectures. But we decline to go into these questions. We are not sitting as a court of appeal and it is for the Board to decide after giving an opportunity to the petitioner and pass such orders as it thinks fit. Whether it has the power to condone the shortage of lectures is for it, at least in the first instance, to decide.11. The learned counsel further invites us to say that the possible courses which the petitioners counsel had outlined before the High Court will not be legal or justified. The petitioners counsel had pointed out that the Board could have been persuaded to adopt some of the following courses :"(1) To accept the explanation of the principal as valid.(2) To condone the shortage of two lectures which the Principal could not condone. The question whether the Board had power to condone shortage was raised in the Board of High School and Intermediate Education Uttar Pradesh Allahabad and others v. G. Vishwanath Nayar but was not decided and was left open. It is urged on behalf of the appellant that the power to admit a candidate to an examination vests in the Board. The Regulations only provide the extent to which shortage in attendance can be condoned by the heads of institutions. There is nothing in the Regulations to limit the power of the Board itself to admit a candidate to an examination after condoning shortage which could not be condoned by the head of the institution.(3) After noting that a technical breach of rules had been committed the Board of the Chairman may have decided not to take any action.(4) The Board may have framed a new regulation with retrospective effect either permitting the head of the institution to condone a shortage in a case like that of the appellant or permitting the Board itself to make the necessary condonation in such cases.(5) The Board could have given an authoritative interpretation of the words "lectures given" in Clause (iii) of regulation 5 of chapter XII and decided whether "the words covered such cases where the students were present to attend the lecture but it could not be arranged because of some unavoidable reason."But, like the High Court, we are not called upon to pronounce on their legality or appropriateness at this stage. | 0[ds]We are unable to accept this contention. Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authoritys satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed.We agree with the High Court that the impugned order imposed a penalty. The petitioner had appeared in the examination and answered all the question papers. According to her she had passed. To deny her the fruits of her labour cannot but be called a penalty. We are unable to appreciate the contention that the Board in "cancelling her examination" was not exercising quasi-judicial functions. The learned counsel urges that this would be casting a heavy burden on the Board. Principles of natural justice are to some minds burdensome but this price a small price indeed - has to be paid if we desire a society governed by the rule of law. We should not be taken to have decided that this rule will also apply when a candidate is refused admission to an examination. We are not concerned, with this question and say nothing aboutwe decline to go into these questions. We are not sitting as a court of appeal and it is for the Board to decide after giving an opportunity to the petitioner and pass such orders as it thinks fit. Whether it has the power to condone the shortage of lectures is for it, at least in the first instance, to decide. | 0 | 1,715 | 279 | ### 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:
from appearing at the examination on account of her absence from lectures in a subject in which the required lectures were not held.I got the student admitted to the examination as I was confident that the officers of the Board will agree with my view."4. The substance of the letter was that the shortage in lectures wad due to the lecturer taking leave.5. The Board was, however, impatient. It is not clear whether this letter was received by the Board because no reference to it is made in the letter dated July 6, 1961. The Board wrote :"In continuation of this office letter No. E. I./617, dated 24th May, 1961 and telegram dated 24th May, 1961 I have the honour to inform that you have not furnished the desired information about the student Km. Chitra Srivastava, Roll No. 50452. From your previous letter No. 143/E dated 6th May, 1961, it is learnt that the admission of the student by you to the examination by condoning her absence from seven lectures on the subject of Home Science was contrary to rules. Hence the students Inter Examination of 1961 is cancelled. Kindly communicate this to the student under intimation to this office."6. The Principal replied on July 11, 1961, giving details of the lectures attended and requested that the order be cancelled and the severe punishment be not awarded to the petitioner.7. On October 6, 1961, the petitioner filed a petition under Article 226 of the Constitution challenging the impugned order dated July 6, 1961, Mathur, J. dismissed it summarily. On appeal, Srivastava and Katju, JJ., allowed the petition as mentioned earlier. They were of the view that the Board, while cancelling the examination, acted in a quasi-judicial capacity. The Board was "by cancelling the examination inflicting a penalty" and if opportunity had been given to the petitioner to present her case she might have persuaded the Board not to cancel the examination.8. The learned counsel for the appellant, Mr. C. B. Aggarwal, contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show cause notice. We are unable to accept this contention. Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authoritys satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed.9. We agree with the High Court that the impugned order imposed a penalty. The petitioner had appeared in the examination and answered all the question papers. According to her she had passed. To deny her the fruits of her labour cannot but be called a penalty. We are unable to appreciate the contention that the Board in "cancelling her examination" was not exercising quasi-judicial functions. The learned counsel urges that this would be casting a heavy burden on the Board. Principles of natural justice are to some minds burdensome but this price a small price indeed - has to be paid if we desire a society governed by the rule of law. We should not be taken to have decided that this rule will also apply when a candidate is refused admission to an examination. We are not concerned, with this question and say nothing about it.10. The learned counsel invites us to hold that the decision of the Board was on the facts correct and that the Board had no power to condone the shortage of 2 lectures. But we decline to go into these questions. We are not sitting as a court of appeal and it is for the Board to decide after giving an opportunity to the petitioner and pass such orders as it thinks fit. Whether it has the power to condone the shortage of lectures is for it, at least in the first instance, to decide.11. The learned counsel further invites us to say that the possible courses which the petitioners counsel had outlined before the High Court will not be legal or justified. The petitioners counsel had pointed out that the Board could have been persuaded to adopt some of the following courses :"(1) To accept the explanation of the principal as valid.(2) To condone the shortage of two lectures which the Principal could not condone. The question whether the Board had power to condone shortage was raised in the Board of High School and Intermediate Education Uttar Pradesh Allahabad and others v. G. Vishwanath Nayar but was not decided and was left open. It is urged on behalf of the appellant that the power to admit a candidate to an examination vests in the Board. The Regulations only provide the extent to which shortage in attendance can be condoned by the heads of institutions. There is nothing in the Regulations to limit the power of the Board itself to admit a candidate to an examination after condoning shortage which could not be condoned by the head of the institution.(3) After noting that a technical breach of rules had been committed the Board of the Chairman may have decided not to take any action.(4) The Board may have framed a new regulation with retrospective effect either permitting the head of the institution to condone a shortage in a case like that of the appellant or permitting the Board itself to make the necessary condonation in such cases.(5) The Board could have given an authoritative interpretation of the words "lectures given" in Clause (iii) of regulation 5 of chapter XII and decided whether "the words covered such cases where the students were present to attend the lecture but it could not be arranged because of some unavoidable reason."But, like the High Court, we are not called upon to pronounce on their legality or appropriateness at this stage.
### Response:
0
### Explanation:
We are unable to accept this contention. Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authoritys satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed.We agree with the High Court that the impugned order imposed a penalty. The petitioner had appeared in the examination and answered all the question papers. According to her she had passed. To deny her the fruits of her labour cannot but be called a penalty. We are unable to appreciate the contention that the Board in "cancelling her examination" was not exercising quasi-judicial functions. The learned counsel urges that this would be casting a heavy burden on the Board. Principles of natural justice are to some minds burdensome but this price a small price indeed - has to be paid if we desire a society governed by the rule of law. We should not be taken to have decided that this rule will also apply when a candidate is refused admission to an examination. We are not concerned, with this question and say nothing aboutwe decline to go into these questions. We are not sitting as a court of appeal and it is for the Board to decide after giving an opportunity to the petitioner and pass such orders as it thinks fit. Whether it has the power to condone the shortage of lectures is for it, at least in the first instance, to decide.
|
V. R. Sejbramanyam Vs. B. Thayappa And Others | Commissioner to determine the amounts payable to the respondent for work done in addition to the work agreed to be done under the written contract. The High Court ordered that the same be determined "in accordance with the directions given in the judgment. The appellant has appealed to this court against the decrees in suits Nos. 55 of 1946-47 and 117 of 1945-46 with special leave under Art. 136 of the Constitution and he challenges the directions given in the order of remand. 4. The dispute between the parties related to the construction. of the out-house, garage, puja room, the room on the first floor, the stair case leading to the upper floor room and the compound wall. In respect of these constructions (except for the compound wall) the District Judge awarded compensation to the respondents at the rate of Rs. 4-2-0 per square foot and in respect of the compound wall he awarded compensation at the rate of Rs. 5 per running foot, and certain additional charges. The High Court held that the respondent was entitled to received compensation at the prevailing market rate for constructions which were not covered by the agreements dated October 1, 1942 and October 6, 1942. The High Court negatived the plea of the respondent that the appellant had agreed to pay him at "extra rates for deviations and additions not specifically contained in the original agreement. The High Court then held that for -the construction of the out-house, puja room and the upper floor room, the respondent was entitled to receive compensation at the rate of Rs. 4-2-0 and for the out-house he was entitled to receive "some extra amount for the additional constructions. In these items, according to the High Court, there was no material deviation from the original plan. The High Court further directed that for the flight of stairs compensation be paid either "by way of a lump sum or on cubical content whichever was more practicable or common according to the rates which they proposed to indicate for such additional work. The High Court however held that there was substantial variation from the original contract in the construction of the garage, and therefore, the garage could "not be covered by the contracted rate and must be paid for at the rates current at the end of the year 1943. The High Court also directed that "if the extra items not covered by Exs. VII and VII (a) have been constructed or supplied by the defendants as claimed in his bills Exs. XXI, XXII and XIII are to be paid for in addition to the flat rate, the basis on which they should be paid for may....be fixed in accordance with the rates contained in Ex. II. 5. Counsel for the appellant submitted that as in the view of the High Court the respondent failed to prove the oral agreement pleaded by him, the suit should have been dismissed, and they should not have awarded compensation quantum meruit which was not claimed. It was urged that the respondent must succeed or fail on the case pleaded by him, and not on a cause of action not pleaded. In our view, there is no substance in this contention. As we have already observed, in respect of the additional work done by the respondent, both the parties set up conflicting oral agreements. These were not accepted by the High Court. If a party to a contract has rendered service to the other not intending to do so gratuitously and the other person has obtained some benefit, the former is entitled to compensation for the value of the services rendered by him. Evidently, the respondent made additional constructions to the building and they were not done gratuitously. He was therefore entitled to receive compensation for the work done which was not covered by the agreement. The respondent claimed under an oral agreement compensation at prevailing market rates for work done by him: even if he failed to prove an express agreement in that behalf, the court may still award him compensation under S. 70 of the Contract Act.By awarding a decree for compensation under the Statute and not under the oral contract pleaded, there was in the circumstances of this case no substantial departure from the claim made by the respondent. 6. It was then urged that the High Court was in error in directing assessment of compensation for the additional work "in accordance with the rates mentioned "in Ex. II. The plaintiffs witness T. S. Narayana Rao had admitted that the rates in Ex. II were the current market rates for building construction work similar to the appellants building. In the view of the High Court, the rates set out in that bill were not excessive. If with a view to restrict the scope of the enquiry, the learned Judges of the High Court gave a direction to the Commissioner for assessing compensation on the basis of rates which were approved by the plaintiffs witness, it cannot be said that any serious error was committed in incorporating that direction which would justify our interference. 7. Finally it was urged that the appellant was entitled to claim the loss suffered by him on account of defective work by way of an equitable set off in the claim made by the respondent in suits Nos. 55 of 1946-47 and 117 of 1945-46. But the appellant made a claim in a substantive suit for compensation for loss suffered by him because of the alleged defective work done by the respondent. That suit was dismissed by the High Court and it is not open to the appellant thereafter to seek to reagitate the same question in the companion suits when no appeal has been preferred against the decree in suit No. 54 of 1946-47, and no plea of equitable set off has been raised in the written statements in the companion suits. 8. In our view, there is no substance in any of the contentions raised. | 0[ds]In our view, there is no substance in this contention. As we have already observed, in respect of the additional work done by the respondent, both the parties set up conflicting oral agreements. These were not accepted by the High Court. If a party to a contract has rendered service to the other not intending to do so gratuitously and the other person has obtained some benefit, the former is entitled to compensation for the value of the services rendered by him. Evidently, the respondent made additional constructions to the building and they were not done gratuitously. He was therefore entitled to receive compensation for the work done which was not covered by the agreement. The respondent claimed under an oral agreement compensation at prevailing market rates for work done by him: even if he failed to prove an express agreement in that behalf, the court may still award him compensation under S. 70 of the Contract Act.By awarding a decree for compensation under the Statute and not under the oral contract pleaded, there was in the circumstances of this case no substantial departure from the claim made by the respondentIn the view of the High Court, the rates set out in that bill were not excessive. If with a view to restrict the scope of the enquiry, the learned Judges of the High Court gave a direction to the Commissioner for assessing compensation on the basis of rates which were approved by the plaintiffs witness, it cannot be said that any serious error was committed in incorporating that direction which would justify our interferenceThat suit was dismissed by the High Court and it is not open to the appellant thereafter to seek to reagitate the same question in the companion suits when no appeal has been preferred against the decree in suit No. 54 of 1946-47, and no plea of equitable set off has been raised in the written statements in the companion suits8. In our view, there is no substance in any of the contentions raised. | 0 | 1,855 | 366 | ### 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:
Commissioner to determine the amounts payable to the respondent for work done in addition to the work agreed to be done under the written contract. The High Court ordered that the same be determined "in accordance with the directions given in the judgment. The appellant has appealed to this court against the decrees in suits Nos. 55 of 1946-47 and 117 of 1945-46 with special leave under Art. 136 of the Constitution and he challenges the directions given in the order of remand. 4. The dispute between the parties related to the construction. of the out-house, garage, puja room, the room on the first floor, the stair case leading to the upper floor room and the compound wall. In respect of these constructions (except for the compound wall) the District Judge awarded compensation to the respondents at the rate of Rs. 4-2-0 per square foot and in respect of the compound wall he awarded compensation at the rate of Rs. 5 per running foot, and certain additional charges. The High Court held that the respondent was entitled to received compensation at the prevailing market rate for constructions which were not covered by the agreements dated October 1, 1942 and October 6, 1942. The High Court negatived the plea of the respondent that the appellant had agreed to pay him at "extra rates for deviations and additions not specifically contained in the original agreement. The High Court then held that for -the construction of the out-house, puja room and the upper floor room, the respondent was entitled to receive compensation at the rate of Rs. 4-2-0 and for the out-house he was entitled to receive "some extra amount for the additional constructions. In these items, according to the High Court, there was no material deviation from the original plan. The High Court further directed that for the flight of stairs compensation be paid either "by way of a lump sum or on cubical content whichever was more practicable or common according to the rates which they proposed to indicate for such additional work. The High Court however held that there was substantial variation from the original contract in the construction of the garage, and therefore, the garage could "not be covered by the contracted rate and must be paid for at the rates current at the end of the year 1943. The High Court also directed that "if the extra items not covered by Exs. VII and VII (a) have been constructed or supplied by the defendants as claimed in his bills Exs. XXI, XXII and XIII are to be paid for in addition to the flat rate, the basis on which they should be paid for may....be fixed in accordance with the rates contained in Ex. II. 5. Counsel for the appellant submitted that as in the view of the High Court the respondent failed to prove the oral agreement pleaded by him, the suit should have been dismissed, and they should not have awarded compensation quantum meruit which was not claimed. It was urged that the respondent must succeed or fail on the case pleaded by him, and not on a cause of action not pleaded. In our view, there is no substance in this contention. As we have already observed, in respect of the additional work done by the respondent, both the parties set up conflicting oral agreements. These were not accepted by the High Court. If a party to a contract has rendered service to the other not intending to do so gratuitously and the other person has obtained some benefit, the former is entitled to compensation for the value of the services rendered by him. Evidently, the respondent made additional constructions to the building and they were not done gratuitously. He was therefore entitled to receive compensation for the work done which was not covered by the agreement. The respondent claimed under an oral agreement compensation at prevailing market rates for work done by him: even if he failed to prove an express agreement in that behalf, the court may still award him compensation under S. 70 of the Contract Act.By awarding a decree for compensation under the Statute and not under the oral contract pleaded, there was in the circumstances of this case no substantial departure from the claim made by the respondent. 6. It was then urged that the High Court was in error in directing assessment of compensation for the additional work "in accordance with the rates mentioned "in Ex. II. The plaintiffs witness T. S. Narayana Rao had admitted that the rates in Ex. II were the current market rates for building construction work similar to the appellants building. In the view of the High Court, the rates set out in that bill were not excessive. If with a view to restrict the scope of the enquiry, the learned Judges of the High Court gave a direction to the Commissioner for assessing compensation on the basis of rates which were approved by the plaintiffs witness, it cannot be said that any serious error was committed in incorporating that direction which would justify our interference. 7. Finally it was urged that the appellant was entitled to claim the loss suffered by him on account of defective work by way of an equitable set off in the claim made by the respondent in suits Nos. 55 of 1946-47 and 117 of 1945-46. But the appellant made a claim in a substantive suit for compensation for loss suffered by him because of the alleged defective work done by the respondent. That suit was dismissed by the High Court and it is not open to the appellant thereafter to seek to reagitate the same question in the companion suits when no appeal has been preferred against the decree in suit No. 54 of 1946-47, and no plea of equitable set off has been raised in the written statements in the companion suits. 8. In our view, there is no substance in any of the contentions raised.
### Response:
0
### Explanation:
In our view, there is no substance in this contention. As we have already observed, in respect of the additional work done by the respondent, both the parties set up conflicting oral agreements. These were not accepted by the High Court. If a party to a contract has rendered service to the other not intending to do so gratuitously and the other person has obtained some benefit, the former is entitled to compensation for the value of the services rendered by him. Evidently, the respondent made additional constructions to the building and they were not done gratuitously. He was therefore entitled to receive compensation for the work done which was not covered by the agreement. The respondent claimed under an oral agreement compensation at prevailing market rates for work done by him: even if he failed to prove an express agreement in that behalf, the court may still award him compensation under S. 70 of the Contract Act.By awarding a decree for compensation under the Statute and not under the oral contract pleaded, there was in the circumstances of this case no substantial departure from the claim made by the respondentIn the view of the High Court, the rates set out in that bill were not excessive. If with a view to restrict the scope of the enquiry, the learned Judges of the High Court gave a direction to the Commissioner for assessing compensation on the basis of rates which were approved by the plaintiffs witness, it cannot be said that any serious error was committed in incorporating that direction which would justify our interferenceThat suit was dismissed by the High Court and it is not open to the appellant thereafter to seek to reagitate the same question in the companion suits when no appeal has been preferred against the decree in suit No. 54 of 1946-47, and no plea of equitable set off has been raised in the written statements in the companion suits8. In our view, there is no substance in any of the contentions raised.
|
Nagar Palika, Raisinghnagar Vs. Rameshwar Lal | plaint, was that the appellant - Nagar Palika had originally allotted the suit land to the respondents grandfather - Pokhar Ram as back as in 1957 against the payment of consideration which had duly paid by Pokhar Ram to the appellant vide receipt No.51 dated 18.03.1957.7. It was alleged that Pokhar Ram then constructed his hut on the suit land and continued to live therein during his lifetime. On his death, the respondents father continued to live therein during his lifetime and then on his death, the respondent inherited the suit land/hut and continued to remain in its occupation till the date of filing of the suit.8. According to the respondent, the need to file the suit arose because he had some apprehension that the appellant-Nagar Palika which had taken out a drive to oust some encroachers from the land belonging to Nagar Palika in the Municipal area may dispossess the respondent also from the suit land treating him as an encroacher on the suit land. It was for this reason, the respondent filed the civil suit to seek permanent injunction against the appellant in relation to the suit land on the strength of Patta already granted in favour of his predecessor-in-title by the appellant.9. The appellant filed its written statement. While denying the respondents claim, the appellant inter alia alleged that the respondents grandfather was given some other land, that the grant so made in relation to the said land was cancelled and the money received was also refunded to him, that the suit land is a Nagar Palika land and the respondent with the help of some employees of the Nagar Palika got the suit land un-authorizedly allotted to him, and lastly, the suit land is needed for public purpose.10. Issues were framed. Parties adduced evidence. The Trial Court, vide judgment dated 06.09.1988, dismissed the suit. The respondent (plaintiff), felt aggrieved, filed first appeal before the First Appellate Court. The First Appellate Court, vide judgment/decree dated 17.04.1989, allowed the appeal and while setting aside of the judgment/decree of the Trial Court decreed the respondents suit and accordingly granted permanent injunction, as prayed by the respondent, against the appellant in relation to the suit land.11. The First Appellate Court held that the respondents grandfather was granted Patta in relation to the suit land by the appellant; that the appellant failed to prove that it was cancelled and pursuant thereto the respondents predecessor refunded the amount, that the Patta granted was in relation to the suit land, that the respondent was in possession of the suit land.12. The appellant filed second appeal before the High Court. The High Court, by impugned judgment, dismissed the appeal and upheld the judgment/decree of the First Appellate Court giving rise to filing of the present appeal by way of special leave before this Court by the defendant, i.e., Nagar Palika.13. Heard Mr. Puneet Jain, learned counsel for the appellant and Mr. Dushyant Parashar, learned counsel for the respondent.14. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.15. This is a case, which does not involve any question of law much less substantial question of law what to say any question relating to public importance.16. When two Courts, namely, First Appellate Court and the High Court found no merit in the appeal and confirmed the findings of fact then, in our opinion, such concurrent findings are binding on this Court.17. It is more so when such findings are neither found to be against the pleadings nor the evidence nor any provisions of law and nor so found perverse to the extent that no judicial person can ever so record.18. It is not in dispute as now one can say that the respondents predecessor-in-title was granted Patta in relation to the suit land on payment. It is also not in dispute that the respondent is the grandson of original allottee. It is also not in dispute that the appellant (defendant) though took a stand that the Patta in question was cancelled and money returned but the appellant could not prove it with the aid of any evidence. It is also not in dispute that though the appellant took a stand that the Patta granted to the respondents predecessor-in-title did not relate to the suit land but of some other land, the appellant also failed to prove even this fact with the aid of any evidence.19. The aforementioned stand taken by the appellant, in our view, was required to be proved by the appellant because the burden to prove these facts was on them but they failed to prove any of the issues though raised.20. In our opinion, the respondent (plaintiff) was able to make out all the three necessary ingredients for grant of permanent injunction with the aid of evidence, namely, the prima facie case, the balance of convenience and the irreparable loss and injury, if the injunction is not granted to him. Since the respondent held a Patta of the suit land, there was a prima facie case in his favour. Secondly, he was also held to be in possession of the suit land and hence the other two ingredients, namely, the balance of convenience and irreparable loss and injury, were also in his favour. It is for these reasons, in our view, the plaintiff was rightly held entitled to claim permanent injunction against the appellant (defendant) in relation to the suit land.21. We, therefore, find no ground to interfere in any of the factual findings recorded by the two Courts below nor we find any merit in any of the arguments of the learned counsel for the appellant, which were only based on facts and evidence.22. This Court cannot appreciate the evidence again de novo while hearing this appeal. Though it is not permissible, yet we probe the evidence with a view to find out any error in the impugned judgment calling our interference. We, however, find it none. | 0[ds]14. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.15. This is a case, which does not involve any question of law much less substantial question of law what to say any question relating to public importance.16. When two Courts, namely, First Appellate Court and the High Court found no merit in the appeal and confirmed the findings of fact then, in our opinion, such concurrent findings are binding on this Court.17. It is more so when such findings are neither found to be against the pleadings nor the evidence nor any provisions of law and nor so found perverse to the extent that no judicial person can ever so record.18. It is not in dispute as now one can say that the respondentswas granted Patta in relation to the suit land on payment. It is also not in dispute that the respondent is the grandson of original allottee. It is also not in dispute that the appellant (defendant) though took a stand that the Patta in question was cancelled and money returned but the appellant could not prove it with the aid of any evidence. It is also not in dispute that though the appellant took a stand that the Patta granted to the respondentsdid not relate to the suit land but of some other land, the appellant also failed to prove even this fact with the aid of any evidence.19. The aforementioned stand taken by the appellant, in our view, was required to be proved by the appellant because the burden to prove these facts was on them but they failed to prove any of the issues though raised.20. In our opinion, the respondent (plaintiff) was able to make out all the three necessary ingredients for grant of permanent injunction with the aid of evidence, namely, the prima facie case, the balance of convenience and the irreparable loss and injury, if the injunction is not granted to him. Since the respondent held a Patta of the suit land, there was a prima facie case in his favour. Secondly, he was also held to be in possession of the suit land and hence the other two ingredients, namely, the balance of convenience and irreparable loss and injury, were also in his favour. It is for these reasons, in our view, the plaintiff was rightly held entitled to claim permanent injunction against the appellant (defendant) in relation to the suit land.21. We, therefore, find no ground to interfere in any of the factual findings recorded by the two Courts below nor we find any merit in any of the arguments of the learned counsel for the appellant, which were only based on facts and evidence.22. This Court cannot appreciate the evidence again de novo while hearing this appeal. Though it is not permissible, yet we probe the evidence with a view to find out any error in the impugned judgment calling our interference. We, however, find it none. | 0 | 1,381 | 559 | ### 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:
plaint, was that the appellant - Nagar Palika had originally allotted the suit land to the respondents grandfather - Pokhar Ram as back as in 1957 against the payment of consideration which had duly paid by Pokhar Ram to the appellant vide receipt No.51 dated 18.03.1957.7. It was alleged that Pokhar Ram then constructed his hut on the suit land and continued to live therein during his lifetime. On his death, the respondents father continued to live therein during his lifetime and then on his death, the respondent inherited the suit land/hut and continued to remain in its occupation till the date of filing of the suit.8. According to the respondent, the need to file the suit arose because he had some apprehension that the appellant-Nagar Palika which had taken out a drive to oust some encroachers from the land belonging to Nagar Palika in the Municipal area may dispossess the respondent also from the suit land treating him as an encroacher on the suit land. It was for this reason, the respondent filed the civil suit to seek permanent injunction against the appellant in relation to the suit land on the strength of Patta already granted in favour of his predecessor-in-title by the appellant.9. The appellant filed its written statement. While denying the respondents claim, the appellant inter alia alleged that the respondents grandfather was given some other land, that the grant so made in relation to the said land was cancelled and the money received was also refunded to him, that the suit land is a Nagar Palika land and the respondent with the help of some employees of the Nagar Palika got the suit land un-authorizedly allotted to him, and lastly, the suit land is needed for public purpose.10. Issues were framed. Parties adduced evidence. The Trial Court, vide judgment dated 06.09.1988, dismissed the suit. The respondent (plaintiff), felt aggrieved, filed first appeal before the First Appellate Court. The First Appellate Court, vide judgment/decree dated 17.04.1989, allowed the appeal and while setting aside of the judgment/decree of the Trial Court decreed the respondents suit and accordingly granted permanent injunction, as prayed by the respondent, against the appellant in relation to the suit land.11. The First Appellate Court held that the respondents grandfather was granted Patta in relation to the suit land by the appellant; that the appellant failed to prove that it was cancelled and pursuant thereto the respondents predecessor refunded the amount, that the Patta granted was in relation to the suit land, that the respondent was in possession of the suit land.12. The appellant filed second appeal before the High Court. The High Court, by impugned judgment, dismissed the appeal and upheld the judgment/decree of the First Appellate Court giving rise to filing of the present appeal by way of special leave before this Court by the defendant, i.e., Nagar Palika.13. Heard Mr. Puneet Jain, learned counsel for the appellant and Mr. Dushyant Parashar, learned counsel for the respondent.14. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.15. This is a case, which does not involve any question of law much less substantial question of law what to say any question relating to public importance.16. When two Courts, namely, First Appellate Court and the High Court found no merit in the appeal and confirmed the findings of fact then, in our opinion, such concurrent findings are binding on this Court.17. It is more so when such findings are neither found to be against the pleadings nor the evidence nor any provisions of law and nor so found perverse to the extent that no judicial person can ever so record.18. It is not in dispute as now one can say that the respondents predecessor-in-title was granted Patta in relation to the suit land on payment. It is also not in dispute that the respondent is the grandson of original allottee. It is also not in dispute that the appellant (defendant) though took a stand that the Patta in question was cancelled and money returned but the appellant could not prove it with the aid of any evidence. It is also not in dispute that though the appellant took a stand that the Patta granted to the respondents predecessor-in-title did not relate to the suit land but of some other land, the appellant also failed to prove even this fact with the aid of any evidence.19. The aforementioned stand taken by the appellant, in our view, was required to be proved by the appellant because the burden to prove these facts was on them but they failed to prove any of the issues though raised.20. In our opinion, the respondent (plaintiff) was able to make out all the three necessary ingredients for grant of permanent injunction with the aid of evidence, namely, the prima facie case, the balance of convenience and the irreparable loss and injury, if the injunction is not granted to him. Since the respondent held a Patta of the suit land, there was a prima facie case in his favour. Secondly, he was also held to be in possession of the suit land and hence the other two ingredients, namely, the balance of convenience and irreparable loss and injury, were also in his favour. It is for these reasons, in our view, the plaintiff was rightly held entitled to claim permanent injunction against the appellant (defendant) in relation to the suit land.21. We, therefore, find no ground to interfere in any of the factual findings recorded by the two Courts below nor we find any merit in any of the arguments of the learned counsel for the appellant, which were only based on facts and evidence.22. This Court cannot appreciate the evidence again de novo while hearing this appeal. Though it is not permissible, yet we probe the evidence with a view to find out any error in the impugned judgment calling our interference. We, however, find it none.
### Response:
0
### Explanation:
14. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.15. This is a case, which does not involve any question of law much less substantial question of law what to say any question relating to public importance.16. When two Courts, namely, First Appellate Court and the High Court found no merit in the appeal and confirmed the findings of fact then, in our opinion, such concurrent findings are binding on this Court.17. It is more so when such findings are neither found to be against the pleadings nor the evidence nor any provisions of law and nor so found perverse to the extent that no judicial person can ever so record.18. It is not in dispute as now one can say that the respondentswas granted Patta in relation to the suit land on payment. It is also not in dispute that the respondent is the grandson of original allottee. It is also not in dispute that the appellant (defendant) though took a stand that the Patta in question was cancelled and money returned but the appellant could not prove it with the aid of any evidence. It is also not in dispute that though the appellant took a stand that the Patta granted to the respondentsdid not relate to the suit land but of some other land, the appellant also failed to prove even this fact with the aid of any evidence.19. The aforementioned stand taken by the appellant, in our view, was required to be proved by the appellant because the burden to prove these facts was on them but they failed to prove any of the issues though raised.20. In our opinion, the respondent (plaintiff) was able to make out all the three necessary ingredients for grant of permanent injunction with the aid of evidence, namely, the prima facie case, the balance of convenience and the irreparable loss and injury, if the injunction is not granted to him. Since the respondent held a Patta of the suit land, there was a prima facie case in his favour. Secondly, he was also held to be in possession of the suit land and hence the other two ingredients, namely, the balance of convenience and irreparable loss and injury, were also in his favour. It is for these reasons, in our view, the plaintiff was rightly held entitled to claim permanent injunction against the appellant (defendant) in relation to the suit land.21. We, therefore, find no ground to interfere in any of the factual findings recorded by the two Courts below nor we find any merit in any of the arguments of the learned counsel for the appellant, which were only based on facts and evidence.22. This Court cannot appreciate the evidence again de novo while hearing this appeal. Though it is not permissible, yet we probe the evidence with a view to find out any error in the impugned judgment calling our interference. We, however, find it none.
|
M/S. Bajaj Alliance General Insurance Company Limited Vs. Prabhavati Hiraman Babar & Another | case also, the learned Member of the Tribunal has fixed a correct multiplier 9. The objection of the learned counsel for the appellant/ insurance company in fact is not about the multiplier, but it pertains to multiplicand in view of the age of the deceased and the nature of his service. The deceased was working as a Peon in the Office of Tahasildar hence government employee. At the time of accident, he was drawing salary of Rs. 11,500/- p.m. and the tenure of his service was fixed upto 58 years as per the government service Rules. The insurance company has no grievance in giving the compensation by adopting multiplicand in accordance with his monthly salary i.e., Rs.11,500/- p.m. only for two years till his age of 58, however, the objection is raised in respect of further seven years. After two years i.e., after superannuation the deceased would not have earned the same salary, but his earning was bound to reduce. The deceased was supposed to get pension, which is bound to be lesser than his salary. Hence, it was argued that for a period of seven years the multiplicand is to be fixed not on the basis of his salary, but on the basis of his pension.7. These arguments may appear correct, but after close scrutiny of the facts and on applying the principles of law under the Motor Vehicles Act and calculating the amount of compensation, the arguments are found fallacious and hence, not acceptable. While calculating the pecuniary damages, it cannot be restricted to the salary and pension of the deceased. The date of superannuation of the government employee is always fixed. However, two factors cannot be ignored. Firstly, there is always rise in the salary consequently pension also increases after every ten years i.e., on implementation, directions and recommendation of the pay commission. After retirement, a person may survive minimum 10 to 15 years i.e., upto 65 to 75 years. Secondly, after superannuation at the age of 58, considering the longevity of the life of the individuals due to advanced medical science, the person may get benefit of such pension for more years. Therefore, it is not desirable to restrict the multiplicand for a period of two years upto the amount of salary of the deceased and thereafter, by splitting it cannot be fixed at a lesser amount i.e., pension amount. The principle of split multiplier can be applied in appropriate case, but I am of the view that it is not a fit case to take recourse of split multiplier.8. The second point was whether the amount of pension receivable by the original claimant i.e., widow of the deceased is subjected to deduction while calculating the amount of compensation. The government employee is entitled to get pension for the services rendered by him/her during his/her service. The pension is a financial security to the employee if job is pensionable. After the death of the employee, the spouse is also entitled to receive family pension as per the rules. The pension is the statutory financial benefit for which the spouse is entitled to. The cause of death of the employee may be sickness or any other disease or natural or unnatural death. The accident may be one of the causes. After the death of the employee due to any reason, the pension is receivable by the spouse. However, the compensation is payable to only for a particular class of death where the cause is an accident. The amount of compensation is related to the accidental death, but the amount of pension is related to only death. The payment of compensation is based on contractual liability between the insured and insurer and the payment of pension is a statutory obligation of the Government/State or employer under the Act/ Rules. Thus, these two liabilities/ obligations are different, cannot be merged, as the amount of compensation is not a substitute in any manner for the amount of pension. This contractual liability of the insurance company is recognized under the statute hence the insurance company has to pay compensation. In the case of Smt. Sushma Sudhakar Kadam (supra), this was not the issue before the Single Judge of this Court. There is a passing reference where pension is deducted from the amount of compensation. I rely on the ratio laid down in the case of Vimal Kanwar and others (supra) wherein the Supreme Court has considered the issue whether the salary receivable by claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as Pecuniary Advantage liable for deduction. The Supreme Court has held as under:-Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as pecuniary advantage that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.Thus, income gained out of pension is not a pecuniary advantage purported in the Motor Vehicles Act and hence, not liable for deduction. If a person dies due to the dash given by the vehicle validly insured with the insurance company, and the claimant proves the cause of death and income, then the insurance company is liable to pay compensation as per standardized formula laid down in the case of Sarla Varma (supra) and also in the case of National Insurance Company Limited Versus Pranay Sheti and Ors. reported in AIR 2017 SC 5157 . Therefore, I am of the view that the learned Member of the Tribunal has taken correct approach in not deducting the amount of pension receivable by the original claimant from the amount of compensation. Hence, First Appeal is dismissed. | 0[ds]6. The first point involves the age of the deceased, who was 56 years old at the time of the accident. As per the schedule given in the case of Smt. Sarla Varma and Others V/s. Delhi Transport Corporation and Another reported in (2009) 6 Supreme Court Cases 121, if the deceased is between the age group ofp.m. only for two years till his age of 58, however, the objection is raised in respect of further seven years. After two years i.e., after superannuation the deceased would not have earned the same salary, but his earning was bound to reduce. The deceased was supposed to get pension, which is bound to be lesser than his salary. Hence, it was argued that for a period of seven years the multiplicand is to be fixed not on the basis of his salary, but on the basis of his pension.7. These arguments may appear correct, but after close scrutiny of the facts and on applying the principles of law under the Motor Vehicles Act and calculating the amount of compensation, the arguments are found fallacious and hence, not acceptable. While calculating the pecuniary damages, it cannot be restricted to the salary and pension of the deceased. The date of superannuation of the government employee is always fixed. However, two factors cannot be ignored. Firstly, there is always rise in the salary consequently pension also increases after every ten years i.e., on implementation, directions and recommendation of the pay commission. After retirement, a person may survive minimum 10 to 15 years i.e., upto 65 to 75 years. Secondly, after superannuation at the age of 58, considering the longevity of the life of the individuals due to advanced medical science, the person may get benefit of such pension for more years. Therefore, it is not desirable to restrict the multiplicand for a period of two years upto the amount of salary of the deceased and thereafter, by splitting it cannot be fixed at a lesser amount i.e., pension amount. The principle of split multiplier can be applied in appropriate case, but I am of the view that it is not a fit case to take recourse of split multiplier.8. The second point was whether the amount of pension receivable by the original claimant i.e., widow of the deceased is subjected to deduction while calculating the amount of compensation. The government employee is entitled to get pension for the services rendered by him/her during his/her service. The pension is a financial security to the employee if job is pensionable. After the death of the employee, the spouse is also entitled to receive family pension as per the rules. The pension is the statutory financial benefit for which the spouse is entitled to. The cause of death of the employee may be sickness or any other disease or natural or unnatural death. The accident may be one of the causes. After the death of the employee due to any reason, the pension is receivable by the spouse. However, the compensation is payable to only for a particular class of death where the cause is an accident. The amount of compensation is related to the accidental death, but the amount of pension is related to only death. The payment of compensation is based on contractual liability between the insured and insurer and the payment of pension is a statutory obligation of the Government/State or employer under the Act/ Rules. Thus, these two liabilities/ obligations are different, cannot be merged, as the amount of compensation is not a substitute in any manner for the amount of pension. This contractual liability of the insurance company is recognized under the statute hence the insurance company has to pay compensation. In the case of Smt. Sushma Sudhakar Kadam (supra), this was not the issue before the Single Judge of this Court. There is a passing reference where pension is deducted from the amount of compensation. I rely on the ratio laid down in the case of Vimal Kanwar and others (supra) wherein the Supreme Court has considered the issue whether the salary receivable by claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as Pecuniary Advantage liable for deduction. The Supreme Court has held asappointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as pecuniary advantage that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.Thus, income gained out of pension is not a pecuniary advantage purported in the Motor Vehicles Act and hence, not liable for deduction. If a person dies due to the dash given by the vehicle validly insured with the insurance company, and the claimant proves the cause of death and income, then the insurance company is liable to pay compensation as per standardized formula laid down in the case of Sarla Varma (supra) and also in the case of National Insurance Company Limited Versus Pranay Sheti and Ors. reported in AIR 2017 SC 5157 . Therefore, I am of the view that the learned Member of the Tribunal has taken correct approach in not deducting the amount of pension receivable by the original claimant from the amount of compensation. Hence, First Appeal is dismissed. | 0 | 2,058 | 1,037 | ### 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:
case also, the learned Member of the Tribunal has fixed a correct multiplier 9. The objection of the learned counsel for the appellant/ insurance company in fact is not about the multiplier, but it pertains to multiplicand in view of the age of the deceased and the nature of his service. The deceased was working as a Peon in the Office of Tahasildar hence government employee. At the time of accident, he was drawing salary of Rs. 11,500/- p.m. and the tenure of his service was fixed upto 58 years as per the government service Rules. The insurance company has no grievance in giving the compensation by adopting multiplicand in accordance with his monthly salary i.e., Rs.11,500/- p.m. only for two years till his age of 58, however, the objection is raised in respect of further seven years. After two years i.e., after superannuation the deceased would not have earned the same salary, but his earning was bound to reduce. The deceased was supposed to get pension, which is bound to be lesser than his salary. Hence, it was argued that for a period of seven years the multiplicand is to be fixed not on the basis of his salary, but on the basis of his pension.7. These arguments may appear correct, but after close scrutiny of the facts and on applying the principles of law under the Motor Vehicles Act and calculating the amount of compensation, the arguments are found fallacious and hence, not acceptable. While calculating the pecuniary damages, it cannot be restricted to the salary and pension of the deceased. The date of superannuation of the government employee is always fixed. However, two factors cannot be ignored. Firstly, there is always rise in the salary consequently pension also increases after every ten years i.e., on implementation, directions and recommendation of the pay commission. After retirement, a person may survive minimum 10 to 15 years i.e., upto 65 to 75 years. Secondly, after superannuation at the age of 58, considering the longevity of the life of the individuals due to advanced medical science, the person may get benefit of such pension for more years. Therefore, it is not desirable to restrict the multiplicand for a period of two years upto the amount of salary of the deceased and thereafter, by splitting it cannot be fixed at a lesser amount i.e., pension amount. The principle of split multiplier can be applied in appropriate case, but I am of the view that it is not a fit case to take recourse of split multiplier.8. The second point was whether the amount of pension receivable by the original claimant i.e., widow of the deceased is subjected to deduction while calculating the amount of compensation. The government employee is entitled to get pension for the services rendered by him/her during his/her service. The pension is a financial security to the employee if job is pensionable. After the death of the employee, the spouse is also entitled to receive family pension as per the rules. The pension is the statutory financial benefit for which the spouse is entitled to. The cause of death of the employee may be sickness or any other disease or natural or unnatural death. The accident may be one of the causes. After the death of the employee due to any reason, the pension is receivable by the spouse. However, the compensation is payable to only for a particular class of death where the cause is an accident. The amount of compensation is related to the accidental death, but the amount of pension is related to only death. The payment of compensation is based on contractual liability between the insured and insurer and the payment of pension is a statutory obligation of the Government/State or employer under the Act/ Rules. Thus, these two liabilities/ obligations are different, cannot be merged, as the amount of compensation is not a substitute in any manner for the amount of pension. This contractual liability of the insurance company is recognized under the statute hence the insurance company has to pay compensation. In the case of Smt. Sushma Sudhakar Kadam (supra), this was not the issue before the Single Judge of this Court. There is a passing reference where pension is deducted from the amount of compensation. I rely on the ratio laid down in the case of Vimal Kanwar and others (supra) wherein the Supreme Court has considered the issue whether the salary receivable by claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as Pecuniary Advantage liable for deduction. The Supreme Court has held as under:-Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as pecuniary advantage that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.Thus, income gained out of pension is not a pecuniary advantage purported in the Motor Vehicles Act and hence, not liable for deduction. If a person dies due to the dash given by the vehicle validly insured with the insurance company, and the claimant proves the cause of death and income, then the insurance company is liable to pay compensation as per standardized formula laid down in the case of Sarla Varma (supra) and also in the case of National Insurance Company Limited Versus Pranay Sheti and Ors. reported in AIR 2017 SC 5157 . Therefore, I am of the view that the learned Member of the Tribunal has taken correct approach in not deducting the amount of pension receivable by the original claimant from the amount of compensation. Hence, First Appeal is dismissed.
### Response:
0
### Explanation:
6. The first point involves the age of the deceased, who was 56 years old at the time of the accident. As per the schedule given in the case of Smt. Sarla Varma and Others V/s. Delhi Transport Corporation and Another reported in (2009) 6 Supreme Court Cases 121, if the deceased is between the age group ofp.m. only for two years till his age of 58, however, the objection is raised in respect of further seven years. After two years i.e., after superannuation the deceased would not have earned the same salary, but his earning was bound to reduce. The deceased was supposed to get pension, which is bound to be lesser than his salary. Hence, it was argued that for a period of seven years the multiplicand is to be fixed not on the basis of his salary, but on the basis of his pension.7. These arguments may appear correct, but after close scrutiny of the facts and on applying the principles of law under the Motor Vehicles Act and calculating the amount of compensation, the arguments are found fallacious and hence, not acceptable. While calculating the pecuniary damages, it cannot be restricted to the salary and pension of the deceased. The date of superannuation of the government employee is always fixed. However, two factors cannot be ignored. Firstly, there is always rise in the salary consequently pension also increases after every ten years i.e., on implementation, directions and recommendation of the pay commission. After retirement, a person may survive minimum 10 to 15 years i.e., upto 65 to 75 years. Secondly, after superannuation at the age of 58, considering the longevity of the life of the individuals due to advanced medical science, the person may get benefit of such pension for more years. Therefore, it is not desirable to restrict the multiplicand for a period of two years upto the amount of salary of the deceased and thereafter, by splitting it cannot be fixed at a lesser amount i.e., pension amount. The principle of split multiplier can be applied in appropriate case, but I am of the view that it is not a fit case to take recourse of split multiplier.8. The second point was whether the amount of pension receivable by the original claimant i.e., widow of the deceased is subjected to deduction while calculating the amount of compensation. The government employee is entitled to get pension for the services rendered by him/her during his/her service. The pension is a financial security to the employee if job is pensionable. After the death of the employee, the spouse is also entitled to receive family pension as per the rules. The pension is the statutory financial benefit for which the spouse is entitled to. The cause of death of the employee may be sickness or any other disease or natural or unnatural death. The accident may be one of the causes. After the death of the employee due to any reason, the pension is receivable by the spouse. However, the compensation is payable to only for a particular class of death where the cause is an accident. The amount of compensation is related to the accidental death, but the amount of pension is related to only death. The payment of compensation is based on contractual liability between the insured and insurer and the payment of pension is a statutory obligation of the Government/State or employer under the Act/ Rules. Thus, these two liabilities/ obligations are different, cannot be merged, as the amount of compensation is not a substitute in any manner for the amount of pension. This contractual liability of the insurance company is recognized under the statute hence the insurance company has to pay compensation. In the case of Smt. Sushma Sudhakar Kadam (supra), this was not the issue before the Single Judge of this Court. There is a passing reference where pension is deducted from the amount of compensation. I rely on the ratio laid down in the case of Vimal Kanwar and others (supra) wherein the Supreme Court has considered the issue whether the salary receivable by claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as Pecuniary Advantage liable for deduction. The Supreme Court has held asappointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as pecuniary advantage that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.Thus, income gained out of pension is not a pecuniary advantage purported in the Motor Vehicles Act and hence, not liable for deduction. If a person dies due to the dash given by the vehicle validly insured with the insurance company, and the claimant proves the cause of death and income, then the insurance company is liable to pay compensation as per standardized formula laid down in the case of Sarla Varma (supra) and also in the case of National Insurance Company Limited Versus Pranay Sheti and Ors. reported in AIR 2017 SC 5157 . Therefore, I am of the view that the learned Member of the Tribunal has taken correct approach in not deducting the amount of pension receivable by the original claimant from the amount of compensation. Hence, First Appeal is dismissed.
|
M/S DYNA TECHNOLOGIES PVT.LTD Vs. M/S CROMPTON GREAVES LTD | Coming to the last aspect concerning the challenge on adequacy of reasons, the Court while exercising jurisdiction under Section 34 has to adjudicate the validity of such an award based on the degree of particularity of reasoning required having regard to the nature of issues falling for consideration. The degree of particularity cannot be stated in a precise manner as the same would depend on the complexity of the issue. Even if the Court comes to a conclusion that there were gaps in the reasoning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards. 37. At this juncture it must be noted that the legislative intention of providing Section 34 (4) in the Arbitration Act was to make the award enforceable, after giving an opportunity to the Tribunal to undo the curable defects. This provision cannot be brushed aside and the High Court could not have proceeded further to determine the issue on merits. 38. In case of absence of reasoning the utility has been provided under of Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34 (4) of the Arbitration Act to cure defects can be utilized in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced. 39. It may be noted that when the High Court concluded that there was no reasoned award, then the award ceased to exist and the Court was functus officio under Section 34 of the Arbitration Act for hearing the challenge to the award under the provisions of Section 34 and come to a conclusion that the arbitration award was not in terms of the agreement. In such case, the High Court ought to have considered remanding the matter to the Tribunal in the usual course. However, the High Court analyzed the case on merits, but, for different reasons and we need not go into the validity of High Courts interference. 40. Coming back to the award, we need to see whether the award of the Arbitral Tribunal can be sustained in the instant case. Although the Arbitral Tribunal has dealt with the claims separately under different sub-headings, the award is confusing and has jumbled the contentions, facts and reasoning, without appropriate distinction. The Tribunal rendered the award with narration of facts with references to the annexures wherever it relied upon by it. The Tribunal abruptly concluded at the end of the factual narration, without providing any reasons, in the following manner: (3) Claim for unproductive usage of machineries …. (g) All the above facts clearly establish that the machineries deployed by the Claimant had to do unproductive work by shifting from one place to another to suit the availability of work.The contract contemplates only payment for actual turnover of earthwork and for this they had received amount totaling to Rs. 1709782.88. The Claimant claims that the hire charges paid to the machineries, men and engineers should be reimbursed to him. He has given the actual expenses in his claim statement. (emphasis supplied) 41. Interestingly, the factual narration is coupled with the claimants argument, which is bundled together. A close reading of the same is required to separate the same wherein the Arbitral Tribunal has mixed the arguments with the premise it intended to rely upon for the claimants claim. Further, it has reduced the reasons for respondents defense. In spite of our independent application of mind based on the documents relied upon, but cannot sustain the award in its existing form as there is a requirement of legal reasoning to supplement such conclusion. In this context, the complexity of the subject matter stops us from supplementing such legal reasoning and we cannot sustain the aforesaid award as being reasoned. 42. It may be beneficial to reduce the concluding paragraph of the award, which reads as under: 3.4. The above arguments and various authorities quoted by them have been studied by the Tribunal and we are convinced that the compensation is payable on the hire charges and expenses incurred by the claimant based on the claims made by him in June 95 and now submitted by the claimant in his revised claim petition on 05.07.1997. We are convinced that the machineries have been actually mobilized from the letter R¬3, R¬8 and R-10 issued by DCM reporting on the number of machineries deployed by Claimant. The Claimants have produced the log books and bills for the various machineries and modified their claims. The tribunal had perused the log books and idle wages approved in C¬7 by Respondent and the claims made in R¬17. (emphasis supplied) 43. From the facts, we can only state that from a perusal of the award, in the facts and circumstances of the case, it has been rendered without reasons. However, the muddled and confused form of the award has invited the High Court to state that the arbitrator has merely restated the contentions of both parties. | 0[ds]36. When we consider the requirement of a reasoned order three characteristics of a reasoned order can be fathomed. They are: proper, intelligible and adequate. If the reasoning in the order are improper, they reveal a flaw in the decision¬making process. If the challenge to an award is based on impropriety or perversity in the reasoning, then it can be challenged strictly on the grounds provided under Section 34 of the Arbitration Act. If the challenge to an award is based on the ground that the same is unintelligible, the same would be equivalent of providing no reasons at all. Coming to the last aspect concerning the challenge on adequacy of reasons, the Court while exercising jurisdiction under Section 34 has to adjudicate the validity of such an award based on the degree of particularity of reasoning required having regard to the nature of issues falling for consideration. The degree of particularity cannot be stated in a precise manner as the same would depend on the complexity of the issue. Even if the Court comes to a conclusion that there were gaps in the reasoning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards37. At this juncture it must be noted that the legislative intention of providing Section 34 (4) in the Arbitration Act was to make the award enforceable, after giving an opportunity to the Tribunal to undo the curable defects. This provision cannot be brushed aside and the High Court could not have proceeded further to determine the issue on merits38. In case of absence of reasoning the utility has been provided under of Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34 (4) of the Arbitration Act to cure defects can be utilized in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced39. It may be noted that when the High Court concluded that there was no reasoned award, then the award ceased to exist and the Court was functus officio under Section 34 of the Arbitration Act for hearing the challenge to the award under the provisions of Section 34 and come to a conclusion that the arbitration award was not in terms of the agreement. In such case, the High Court ought to have considered remanding the matter to the Tribunal in the usual course. However, the High Court analyzed the case on merits, but, for different reasons and we need not go into the validity of High Courts interference40. Coming back to the award, we need to see whether the award of the Arbitral Tribunal can be sustained in the instant case. Although the Arbitral Tribunal has dealt with the claims separately under different sub-headings, the award is confusing and has jumbled the contentions, facts and reasoning, without appropriate distinction. The Tribunal rendered the award with narration of facts with references to the annexures wherever it relied upon by it. The Tribunal abruptly concluded at the end of the factual narration, without providing any reasons43. From the facts, we can only state that from a perusal of the award, in the facts and circumstances of the case, it has been rendered without reasons. However, the muddled and confused form of the award has invited the High Court to state that the arbitrator has merely restated the contentions of both parties41. Interestingly, the factual narration is coupled with the claimants argument, which is bundled together. A close reading of the same is required to separate the same wherein the Arbitral Tribunal has mixed the arguments with the premise it intended to rely upon for the claimants claim. Further, it has reduced the reasons for respondents defense. In spite of our independent application of mind based on the documents relied upon, but cannot sustain the award in its existing form as there is a requirement of legal reasoning to supplement such conclusion. In this context, the complexity of the subject matter stops us from supplementing such legal reasoning and we cannot sustain the aforesaid award as being reasoned26. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated27. Moreover, umpteen number of judgments of this Court have categorically held that the Courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act35. The mandate under Section 31(3) of the Arbitration Act is to have reasoning which is intelligible and adequate and, which can in appropriate cases be even implied by the Courts from a fair reading of the award and documents referred to thereunder, if the need be. The aforesaid provision does not require an elaborate judgment to be passed by the arbitrators having regards to the speedy resolution of dispute. | 0 | 6,247 | 1,255 | ### 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:
Coming to the last aspect concerning the challenge on adequacy of reasons, the Court while exercising jurisdiction under Section 34 has to adjudicate the validity of such an award based on the degree of particularity of reasoning required having regard to the nature of issues falling for consideration. The degree of particularity cannot be stated in a precise manner as the same would depend on the complexity of the issue. Even if the Court comes to a conclusion that there were gaps in the reasoning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards. 37. At this juncture it must be noted that the legislative intention of providing Section 34 (4) in the Arbitration Act was to make the award enforceable, after giving an opportunity to the Tribunal to undo the curable defects. This provision cannot be brushed aside and the High Court could not have proceeded further to determine the issue on merits. 38. In case of absence of reasoning the utility has been provided under of Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34 (4) of the Arbitration Act to cure defects can be utilized in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced. 39. It may be noted that when the High Court concluded that there was no reasoned award, then the award ceased to exist and the Court was functus officio under Section 34 of the Arbitration Act for hearing the challenge to the award under the provisions of Section 34 and come to a conclusion that the arbitration award was not in terms of the agreement. In such case, the High Court ought to have considered remanding the matter to the Tribunal in the usual course. However, the High Court analyzed the case on merits, but, for different reasons and we need not go into the validity of High Courts interference. 40. Coming back to the award, we need to see whether the award of the Arbitral Tribunal can be sustained in the instant case. Although the Arbitral Tribunal has dealt with the claims separately under different sub-headings, the award is confusing and has jumbled the contentions, facts and reasoning, without appropriate distinction. The Tribunal rendered the award with narration of facts with references to the annexures wherever it relied upon by it. The Tribunal abruptly concluded at the end of the factual narration, without providing any reasons, in the following manner: (3) Claim for unproductive usage of machineries …. (g) All the above facts clearly establish that the machineries deployed by the Claimant had to do unproductive work by shifting from one place to another to suit the availability of work.The contract contemplates only payment for actual turnover of earthwork and for this they had received amount totaling to Rs. 1709782.88. The Claimant claims that the hire charges paid to the machineries, men and engineers should be reimbursed to him. He has given the actual expenses in his claim statement. (emphasis supplied) 41. Interestingly, the factual narration is coupled with the claimants argument, which is bundled together. A close reading of the same is required to separate the same wherein the Arbitral Tribunal has mixed the arguments with the premise it intended to rely upon for the claimants claim. Further, it has reduced the reasons for respondents defense. In spite of our independent application of mind based on the documents relied upon, but cannot sustain the award in its existing form as there is a requirement of legal reasoning to supplement such conclusion. In this context, the complexity of the subject matter stops us from supplementing such legal reasoning and we cannot sustain the aforesaid award as being reasoned. 42. It may be beneficial to reduce the concluding paragraph of the award, which reads as under: 3.4. The above arguments and various authorities quoted by them have been studied by the Tribunal and we are convinced that the compensation is payable on the hire charges and expenses incurred by the claimant based on the claims made by him in June 95 and now submitted by the claimant in his revised claim petition on 05.07.1997. We are convinced that the machineries have been actually mobilized from the letter R¬3, R¬8 and R-10 issued by DCM reporting on the number of machineries deployed by Claimant. The Claimants have produced the log books and bills for the various machineries and modified their claims. The tribunal had perused the log books and idle wages approved in C¬7 by Respondent and the claims made in R¬17. (emphasis supplied) 43. From the facts, we can only state that from a perusal of the award, in the facts and circumstances of the case, it has been rendered without reasons. However, the muddled and confused form of the award has invited the High Court to state that the arbitrator has merely restated the contentions of both parties.
### Response:
0
### Explanation:
as the same would depend on the complexity of the issue. Even if the Court comes to a conclusion that there were gaps in the reasoning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards37. At this juncture it must be noted that the legislative intention of providing Section 34 (4) in the Arbitration Act was to make the award enforceable, after giving an opportunity to the Tribunal to undo the curable defects. This provision cannot be brushed aside and the High Court could not have proceeded further to determine the issue on merits38. In case of absence of reasoning the utility has been provided under of Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34 (4) of the Arbitration Act to cure defects can be utilized in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced39. It may be noted that when the High Court concluded that there was no reasoned award, then the award ceased to exist and the Court was functus officio under Section 34 of the Arbitration Act for hearing the challenge to the award under the provisions of Section 34 and come to a conclusion that the arbitration award was not in terms of the agreement. In such case, the High Court ought to have considered remanding the matter to the Tribunal in the usual course. However, the High Court analyzed the case on merits, but, for different reasons and we need not go into the validity of High Courts interference40. Coming back to the award, we need to see whether the award of the Arbitral Tribunal can be sustained in the instant case. Although the Arbitral Tribunal has dealt with the claims separately under different sub-headings, the award is confusing and has jumbled the contentions, facts and reasoning, without appropriate distinction. The Tribunal rendered the award with narration of facts with references to the annexures wherever it relied upon by it. The Tribunal abruptly concluded at the end of the factual narration, without providing any reasons43. From the facts, we can only state that from a perusal of the award, in the facts and circumstances of the case, it has been rendered without reasons. However, the muddled and confused form of the award has invited the High Court to state that the arbitrator has merely restated the contentions of both parties41. Interestingly, the factual narration is coupled with the claimants argument, which is bundled together. A close reading of the same is required to separate the same wherein the Arbitral Tribunal has mixed the arguments with the premise it intended to rely upon for the claimants claim. Further, it has reduced the reasons for respondents defense. In spite of our independent application of mind based on the documents relied upon, but cannot sustain the award in its existing form as there is a requirement of legal reasoning to supplement such conclusion. In this context, the complexity of the subject matter stops us from supplementing such legal reasoning and we cannot sustain the aforesaid award as being reasoned26. There is no dispute that Section 34 of the Arbitration Act limits a challenge to an award only on the grounds provided therein or as interpreted by various Courts. We need to be cognizant of the fact that arbitral awards should not be interfered with in a casual and cavalier manner, unless the Court comes to a conclusion that the perversity of the award goes to the root of the matter without there being a possibility of alternative interpretation which may sustain the arbitral award. Section 34 is different in its approach and cannot be equated with a normal appellate jurisdiction. The mandate under Section 34 is to respect the finality of the arbitral award and the party autonomy to get their dispute adjudicated by an alternative forum as provided under the law. If the Courts were to interfere with the arbitral award in the usual course on factual aspects, then the commercial wisdom behind opting for alternate dispute resolution would stand frustrated27. Moreover, umpteen number of judgments of this Court have categorically held that the Courts should not interfere with an award merely because an alternative view on facts and interpretation of contract exists. The Courts need to be cautious and should defer to the view taken by the Arbitral Tribunal even if the reasoning provided in the award is implied unless such award portrays perversity unpardonable under Section 34 of the Arbitration Act35. The mandate under Section 31(3) of the Arbitration Act is to have reasoning which is intelligible and adequate and, which can in appropriate cases be even implied by the Courts from a fair reading of the award and documents referred to thereunder, if the need be. The aforesaid provision does not require an elaborate judgment to be passed by the arbitrators having regards to the speedy resolution of dispute.
|
Alok Kumar Subhedar Singh Vs. State of Maharashtra | blood stained clothes of the accused were seized at the time of his arrest. The evidence of the chemical analyser about the clothes has not been produced in the court. No explanation is offered therefor. If the blood stained clothes which seized soon after the alleged offence and were sent to the chemical analyser, the report of the chemical analyser was important to connect the accused with the crime. Absence of the report of the chemical analyser regarding the presence of human blood and the blood group of the blood stains on the clothes of the accused is a circumstance which ought to have been explained by the prosecution. This is one of the missing link in the chain of circumstantial evidence.7.The accused himself was injured and the police got him examined by a doctor. An injury certificate was obtained. It shows as many as eight injuries on the body of the accused. No explanation was offered by the prosecution about the presence of the injuries on the body of the accused.8.It is alleged that the accused had killed the deceased in the room in plot No.A-32, adjoining the property of the Company. No evidence was adduced as to who was the owner of the room and how the accused had access to the room. There were six watchmen in the compound of the Company. No watchman saw the accused entering the room nor heard any noise or scream. If there was a fight between the accused and the deceased, in which the accused himself had received eight injuries, then there would be at least some noise which could be heard by the watchmen. No watchmen ever said that he heard any noise or scream.9.The only circumstantial evidence in the case is that the accused was present near the burning body of the deceased and he tried to run away seeing the watchmen approaching the spot. In our view, this evidence is insufficient to conclusively connect the accused with the crime.10.Mr. More, the learned A.P.P. submitted that the accused can be convicted on the basis of the extra judicial confession alleged to have been made by him to the three watchmen. He relied upon the decision of the Supreme Court in Kavita v State of Tamil Nadu reported in 1998 Cri.L.J. 3624, wherein the Supreme Court has observed :"There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses."11.It is true that a conviction can be based on extra judicial confession but it is a weak piece of evidence. Extra judicial confession can be proved like any other fact and the value thereof would depend upon the veracity of the witnesses to whom it is made. In the FIR, PW-1 Yuvraj has stated that the accused confessed before him and his two colleagues: "mai jisko marna tha mar diya" "jo kam karna tha woh kar diya". PW-2 Ramdas in his deposition after repeating these words of confession has stated that the accused stated further "apko jo karna hai kar dijiye." (whatever you want to do, do it"). PW-3 Kamal also repeats in his deposition repeats these words. There is, therefore, not full consistency between the evidence of PW-1 Yuvraj on the one hand and the evidence of PW-2 Ramdas and PW-3 Kamal on the other hand.Even otherwise, the evidence of PW-1 Yuvraj, PW-2 Ramdas and PW-3 Kamal on this aspect of extra judicial confession does not inspire any confidence in us. We have gone through their depositions and we are not inclined to accept that the accused made the extra judicial confession to them. There are contradictions in their evidence regarding how they noticed the incidence of burning. In the examination-in-chief, PW-1 Yuvraj has stated that they were moving around in the campus of the Company when they first received the smell of burning. He has further stated that PW-2 Ramdas was with him when they were taking the rounds. PW-2 Ramdas in his examination-in-chief has stated that at about 12.15 midnight he felt some abnormal smell of something burning and, therefore, he and PW-1 Yuvraj came out of the cabin. There is a contradiction between PW-1 Yuvraj and PW-2 Ramdas as to when they smelt the burning smell. According to PW-1 Yuvraj, he smelt it when they were taking a round while according to PW-2, they got the burning smell while they were sitting at the cabin. PW-3 Kamal has stated that he was called by PW-1 Yuvraj on phone. In the FIR as well as in the examination-in-chief, the story that PW-1 Yuvraj calling PW-3 Kamal on telephone is absent. It is nowhere stated as to where from the phone call was made and why a phone call was necessary instead of calling PW-3 Kamal by shouting. Reading the evidence of PW-1 Yuvraj, PW-2 Ramdas and PW-3 Kamal as a whole we are not satisfied that their evidence is fully consistent. We are, therefore, not inclined to convict the accused on the alleged extra judicial confession made to them.12.Mr. Jamdar the learned counsel for the appellant stated before us that the accused was a passer-by who saw a body burning and, therefore, was standing near the spot when the watchmen came there and mistakenly thought the accused was the offender. The submission that the accused was a passer-by and had gone near the fire out of curiosity to know the cause of the fire, cannot be ruled out. In the circumstances, the accused is entitled to the benefit of reasonable doubt. | 1[ds]5.In our opinion, the learned judge has correctly culled out the principles laid down by the Supreme Court in the aforesaid case. It is, however, necessary to examine whether the circumstances established in the present case are such that they lead to the only conclusion that the accused is guilty and the chain of evidence is so complete as not to leave any reasonable doubt in reaching the conclusion of the guilt of the accused and the circumstances are inconsistent with the innocence of the accused.6.The arrest panchnama states that the clothes of the accused were blood stained. The blood stained clothes of the accused were seized at the time of his arrest. The evidence of the chemical analyser about the clothes has not been produced in the court. No explanation is offered therefor. If the blood stained clothes which seized soon after the alleged offence and were sent to the chemical analyser, the report of the chemical analyser was important to connect the accused with the crime. Absence of the report of the chemical analyser regarding the presence of human blood and the blood group of the blood stains on the clothes of the accused is a circumstance which ought to have been explained by the prosecution. This is one of the missing link in the chain of circumstantialonly circumstantial evidence in the case is that the accused was present near the burning body of the deceased and he tried to run away seeing the watchmen approaching the spot. In our view, this evidence is insufficient to conclusively connect the accused with theis true that a conviction can be based on extra judicial confession but it is a weak piece of evidence. Extra judicial confession can be proved like any other fact and the value thereof would depend upon the veracity of the witnesses to whom it is made. In the FIR,Yuvraj has stated that the accused confessed before him and his two colleagues: "mai jisko marna tha mar diya" "jo kam karna tha woh kar diya".Ramdas in his deposition after repeating these words of confession has stated that the accused stated further "apko jo karna hai kar dijiye." (whatever you want to do, do it").Kamal also repeats in his deposition repeats these words. There is, therefore, not full consistency between the evidence ofYuvraj on the one hand and the evidence ofKamal on the other hand.Even otherwise, the evidence ofRamdas andKamal on this aspect of extra judicial confession does not inspire any confidence in us. We have gone through their depositions and we are not inclined to accept that the accused made the extra judicial confession to them. There are contradictions in their evidence regarding how they noticed the incidence of burning. In the1 Yuvraj has stated that they were moving around in the campus of the Company when they first received the smell of burning. He has further stated thatRamdas was with him when they were taking the rounds.Ramdas in hishas stated that at about 12.15 midnight he felt some abnormal smell of something burning and, therefore, he andYuvraj came out of the cabin. There is a contradiction betweenRamdas as to when they smelt the burning smell. According toYuvraj, he smelt it when they were taking a round while according tothey got the burning smell while they were sitting at the cabin.Kamal has stated that he was called byYuvraj on phone. In the FIR as well as in thethe story thatKamal on telephone is absent. It is nowhere stated as to where from the phone call was made and why a phone call was necessary instead of callingKamal by shouting. Reading the evidence ofRamdas andKamal as a whole we are not satisfied that their evidence is fully consistent. We are, therefore, not inclined to convict the accused on the alleged extra judicial confession made tosubmission that the accused was aand had gone near the fire out of curiosity to know the cause of the fire, cannot be ruled out. In the circumstances, the accused is entitled to the benefit of reasonable doubt. | 1 | 2,148 | 733 | ### 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:
blood stained clothes of the accused were seized at the time of his arrest. The evidence of the chemical analyser about the clothes has not been produced in the court. No explanation is offered therefor. If the blood stained clothes which seized soon after the alleged offence and were sent to the chemical analyser, the report of the chemical analyser was important to connect the accused with the crime. Absence of the report of the chemical analyser regarding the presence of human blood and the blood group of the blood stains on the clothes of the accused is a circumstance which ought to have been explained by the prosecution. This is one of the missing link in the chain of circumstantial evidence.7.The accused himself was injured and the police got him examined by a doctor. An injury certificate was obtained. It shows as many as eight injuries on the body of the accused. No explanation was offered by the prosecution about the presence of the injuries on the body of the accused.8.It is alleged that the accused had killed the deceased in the room in plot No.A-32, adjoining the property of the Company. No evidence was adduced as to who was the owner of the room and how the accused had access to the room. There were six watchmen in the compound of the Company. No watchman saw the accused entering the room nor heard any noise or scream. If there was a fight between the accused and the deceased, in which the accused himself had received eight injuries, then there would be at least some noise which could be heard by the watchmen. No watchmen ever said that he heard any noise or scream.9.The only circumstantial evidence in the case is that the accused was present near the burning body of the deceased and he tried to run away seeing the watchmen approaching the spot. In our view, this evidence is insufficient to conclusively connect the accused with the crime.10.Mr. More, the learned A.P.P. submitted that the accused can be convicted on the basis of the extra judicial confession alleged to have been made by him to the three watchmen. He relied upon the decision of the Supreme Court in Kavita v State of Tamil Nadu reported in 1998 Cri.L.J. 3624, wherein the Supreme Court has observed :"There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses."11.It is true that a conviction can be based on extra judicial confession but it is a weak piece of evidence. Extra judicial confession can be proved like any other fact and the value thereof would depend upon the veracity of the witnesses to whom it is made. In the FIR, PW-1 Yuvraj has stated that the accused confessed before him and his two colleagues: "mai jisko marna tha mar diya" "jo kam karna tha woh kar diya". PW-2 Ramdas in his deposition after repeating these words of confession has stated that the accused stated further "apko jo karna hai kar dijiye." (whatever you want to do, do it"). PW-3 Kamal also repeats in his deposition repeats these words. There is, therefore, not full consistency between the evidence of PW-1 Yuvraj on the one hand and the evidence of PW-2 Ramdas and PW-3 Kamal on the other hand.Even otherwise, the evidence of PW-1 Yuvraj, PW-2 Ramdas and PW-3 Kamal on this aspect of extra judicial confession does not inspire any confidence in us. We have gone through their depositions and we are not inclined to accept that the accused made the extra judicial confession to them. There are contradictions in their evidence regarding how they noticed the incidence of burning. In the examination-in-chief, PW-1 Yuvraj has stated that they were moving around in the campus of the Company when they first received the smell of burning. He has further stated that PW-2 Ramdas was with him when they were taking the rounds. PW-2 Ramdas in his examination-in-chief has stated that at about 12.15 midnight he felt some abnormal smell of something burning and, therefore, he and PW-1 Yuvraj came out of the cabin. There is a contradiction between PW-1 Yuvraj and PW-2 Ramdas as to when they smelt the burning smell. According to PW-1 Yuvraj, he smelt it when they were taking a round while according to PW-2, they got the burning smell while they were sitting at the cabin. PW-3 Kamal has stated that he was called by PW-1 Yuvraj on phone. In the FIR as well as in the examination-in-chief, the story that PW-1 Yuvraj calling PW-3 Kamal on telephone is absent. It is nowhere stated as to where from the phone call was made and why a phone call was necessary instead of calling PW-3 Kamal by shouting. Reading the evidence of PW-1 Yuvraj, PW-2 Ramdas and PW-3 Kamal as a whole we are not satisfied that their evidence is fully consistent. We are, therefore, not inclined to convict the accused on the alleged extra judicial confession made to them.12.Mr. Jamdar the learned counsel for the appellant stated before us that the accused was a passer-by who saw a body burning and, therefore, was standing near the spot when the watchmen came there and mistakenly thought the accused was the offender. The submission that the accused was a passer-by and had gone near the fire out of curiosity to know the cause of the fire, cannot be ruled out. In the circumstances, the accused is entitled to the benefit of reasonable doubt.
### Response:
1
### Explanation:
5.In our opinion, the learned judge has correctly culled out the principles laid down by the Supreme Court in the aforesaid case. It is, however, necessary to examine whether the circumstances established in the present case are such that they lead to the only conclusion that the accused is guilty and the chain of evidence is so complete as not to leave any reasonable doubt in reaching the conclusion of the guilt of the accused and the circumstances are inconsistent with the innocence of the accused.6.The arrest panchnama states that the clothes of the accused were blood stained. The blood stained clothes of the accused were seized at the time of his arrest. The evidence of the chemical analyser about the clothes has not been produced in the court. No explanation is offered therefor. If the blood stained clothes which seized soon after the alleged offence and were sent to the chemical analyser, the report of the chemical analyser was important to connect the accused with the crime. Absence of the report of the chemical analyser regarding the presence of human blood and the blood group of the blood stains on the clothes of the accused is a circumstance which ought to have been explained by the prosecution. This is one of the missing link in the chain of circumstantialonly circumstantial evidence in the case is that the accused was present near the burning body of the deceased and he tried to run away seeing the watchmen approaching the spot. In our view, this evidence is insufficient to conclusively connect the accused with theis true that a conviction can be based on extra judicial confession but it is a weak piece of evidence. Extra judicial confession can be proved like any other fact and the value thereof would depend upon the veracity of the witnesses to whom it is made. In the FIR,Yuvraj has stated that the accused confessed before him and his two colleagues: "mai jisko marna tha mar diya" "jo kam karna tha woh kar diya".Ramdas in his deposition after repeating these words of confession has stated that the accused stated further "apko jo karna hai kar dijiye." (whatever you want to do, do it").Kamal also repeats in his deposition repeats these words. There is, therefore, not full consistency between the evidence ofYuvraj on the one hand and the evidence ofKamal on the other hand.Even otherwise, the evidence ofRamdas andKamal on this aspect of extra judicial confession does not inspire any confidence in us. We have gone through their depositions and we are not inclined to accept that the accused made the extra judicial confession to them. There are contradictions in their evidence regarding how they noticed the incidence of burning. In the1 Yuvraj has stated that they were moving around in the campus of the Company when they first received the smell of burning. He has further stated thatRamdas was with him when they were taking the rounds.Ramdas in hishas stated that at about 12.15 midnight he felt some abnormal smell of something burning and, therefore, he andYuvraj came out of the cabin. There is a contradiction betweenRamdas as to when they smelt the burning smell. According toYuvraj, he smelt it when they were taking a round while according tothey got the burning smell while they were sitting at the cabin.Kamal has stated that he was called byYuvraj on phone. In the FIR as well as in thethe story thatKamal on telephone is absent. It is nowhere stated as to where from the phone call was made and why a phone call was necessary instead of callingKamal by shouting. Reading the evidence ofRamdas andKamal as a whole we are not satisfied that their evidence is fully consistent. We are, therefore, not inclined to convict the accused on the alleged extra judicial confession made tosubmission that the accused was aand had gone near the fire out of curiosity to know the cause of the fire, cannot be ruled out. In the circumstances, the accused is entitled to the benefit of reasonable doubt.
|
ANIL KUMAR ANAND Vs. COMMISSIONER OF CUSTOMS (PREVENTIVE) | China, the brand Diyas had been clearly mentioned. The consignments had been cleared after physical verification. In effect, the plea was that the two brands really do not attract any intrinsic market value. 14. It is a submission that the sequential application of Rules, thus, required the valuation to be done in accordance with Rules 3 to 5, before proceeding to the subsequent Rules, and it is not a case where valuation was not possible under Rules 3 to 5. 15. As an alternative submission, it was also pleaded that even where identical or similar goods are not available, data is available, of the value of the goods in the National Import Database (NIDB) or the Department of Valuation database (DOV). 16. In a nutshell, the submission really is that the valuation was possible on the basis of import from the other two countries if the brand was to be given some significance, and in the alternative, if the plea was accepted that the brand was not of any significance, then the other imports from the U.K. of the same kind of lights could be taken into consideration. It was clarified that the endeavour was not to compare oranges and apples, but to compare apples of a particular variety with the apples of the same variety, i.e., if it was one lamp light, it was to be compared with one lamp light. In this behalf data was available. 17. We may notice there were certain other pleas advanced, including the plea of limitation, but that is not of much significance for re- determination, on account of the conclusion we are reaching hereinafter. 18. We must first take note of the fact that electrical decorative lightings, normally, are not highly branded products, exceptions apart. It does appear that even though the imports were under the brand names Diyas and mAntra, they were not trademarks of such nature as would make them an exclusive product. It also appears that there has been some mix up in the understanding of a trademark protection, as the same has been compared with patented goods. Thus, data was certainly available, which could have been utilised to obtain the pricing for imports from the U.K., of identical goods or similar goods. 19. The irony is that if the competent authority thought that these were goods where trademark was of significance, it could not simultaneously have ignored the imports under the same trademark, from different countries, where there were no related parties. Naturally, there would have to be made adjustments for the distance from which the import was made, or the size of the consignment, if applicable, as set out in Rules 3 to 5. There was really no occasion to straightaway proceed to determine the transactional value by relying on Rules 7 to 9. We have no doubt this principle of sequential application would apply, especially in view of sub-Rule (4) of Rule 3, which provides that there has to be a sequential implementation of the Rules, i.e., that Rules 3 to 5 would have to be exhausted first, and only in the eventuality of an inability to apply the Rules would the assessing authority proceed to impose Rules 7 to 9. 20. Learned counsel for the respondent did endeavour to persuade us that since there were concurrent findings, this Court ought not to interfere, given the scope of appeal before this Court under Section 130E(b) of the said Act, and referred to the judgment in Collector of Customs, Bombay v. Swastic Woollens (P) Ltd. & Others 1988 Suppl. SCC 796 , where it was observed as under: 9. ...... The decision of such a question of fact must be arrived at without ignoring the material and relevant facts and bearing in mind the correct legal principles. Judged by these yardsticks the finding of the Tribunal in this case is unassailable. We are, however, of the view that if a fact finding authority comes to a conclusion within the above parameters honestly and bona fide, the fact that another authority be it the Supreme Court or the High Court may have a different perspective of that question, in our opinion, is no ground to interfere with that finding in an appeal from such a finding. In the new scheme of things, the Tribunals have been entrusted with the authority and the jurisdiction to decide the questions involving determination of the rate of duty of excise or to the value of goods for purposes of assessment. An appeal has been provided to this Court to oversee that the subordinate tribunals act within the law. Merely because another view might be possible by a competent court of law is no ground for interference under Section 130-E of the Act though in relation to the rate of duty of customs or to the value of goods for purposes of assessment, the amplitude of appeal is unlimited. But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals. The Tribunal has not deviated from the path of correct principle and has considered all the relevant factors. If the Tribunal has acted bona fide with the natural justice by a speaking order, in our opinion, even if superior court feels that another view is possible, that is no ground for substitution of that view in exercise of power under clause (b) of Section 130-E of the Act. 21. We are, however, not persuaded by this argument because there appears to be a fundamental mistake committed in the manner of implementation of the statutory Rules. Once the statutory Rules exist and provide for sequential implementation, the assessing authority has no option but to proceed in accordance with those Rules, in that manner. We did put this squarely to learned senior counsel for the respondent, who really could not persuade us, or give a satisfactory answer as to why the concerned authority chose to ignore, in the given facts of the case, Rules 3 to 5, and did not proceed sequentially. | 1[ds]17. We may notice there were certain other pleas advanced, including the plea of limitation, but that is not of much significance for re- determination, on account of the conclusion we are reaching hereinafter18. We must first take note of the fact that electrical decorative lightings, normally, are not highly branded products, exceptions apart. It does appear that even though the imports were under the brand names Diyas and mAntra, they were not trademarks of such nature as would make them an exclusive product. It also appears that there has been some mix up in the understanding of a trademark protection, as the same has been compared with patented goods. Thus, data was certainly available, which could have been utilised to obtain the pricing for imports from the U.K., of identical goods or similar goods19. The irony is that if the competent authority thought that these were goods where trademark was of significance, it could not simultaneously have ignored the imports under the same trademark, from different countries, where there were no related parties. Naturally, there would have to be made adjustments for the distance from which the import was made, or the size of the consignment, if applicable, as set out in Rules 3 to 5. There was really no occasion to straightaway proceed to determine the transactional value by relying on Rules 7 to 9. We have no doubt this principle of sequential application would apply, especially in view of sub-Rule (4) of Rule 3, which provides that there has to be a sequential implementation of the Rules, i.e., that Rules 3 to 5 would have to be exhausted first, and only in the eventuality of an inability to apply the Rules would the assessing authority proceed to impose Rules 7 to 921. We are, however, not persuaded by this argument because there appears to be a fundamental mistake committed in the manner ofimplementation of the statutory Rules. Once the statutory Rules exist and provide for sequential implementation, the assessing authority has no option but to proceed in accordance with those Rules, in that manner. We did put this squarely to learned senior counsel for the respondent, who really could not persuade us, or give a satisfactory answer as to why the concerned authority chose to ignore, in the given facts of the case, Rules 3 to 5, and did not proceed sequentially. | 1 | 4,109 | 446 | ### 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:
China, the brand Diyas had been clearly mentioned. The consignments had been cleared after physical verification. In effect, the plea was that the two brands really do not attract any intrinsic market value. 14. It is a submission that the sequential application of Rules, thus, required the valuation to be done in accordance with Rules 3 to 5, before proceeding to the subsequent Rules, and it is not a case where valuation was not possible under Rules 3 to 5. 15. As an alternative submission, it was also pleaded that even where identical or similar goods are not available, data is available, of the value of the goods in the National Import Database (NIDB) or the Department of Valuation database (DOV). 16. In a nutshell, the submission really is that the valuation was possible on the basis of import from the other two countries if the brand was to be given some significance, and in the alternative, if the plea was accepted that the brand was not of any significance, then the other imports from the U.K. of the same kind of lights could be taken into consideration. It was clarified that the endeavour was not to compare oranges and apples, but to compare apples of a particular variety with the apples of the same variety, i.e., if it was one lamp light, it was to be compared with one lamp light. In this behalf data was available. 17. We may notice there were certain other pleas advanced, including the plea of limitation, but that is not of much significance for re- determination, on account of the conclusion we are reaching hereinafter. 18. We must first take note of the fact that electrical decorative lightings, normally, are not highly branded products, exceptions apart. It does appear that even though the imports were under the brand names Diyas and mAntra, they were not trademarks of such nature as would make them an exclusive product. It also appears that there has been some mix up in the understanding of a trademark protection, as the same has been compared with patented goods. Thus, data was certainly available, which could have been utilised to obtain the pricing for imports from the U.K., of identical goods or similar goods. 19. The irony is that if the competent authority thought that these were goods where trademark was of significance, it could not simultaneously have ignored the imports under the same trademark, from different countries, where there were no related parties. Naturally, there would have to be made adjustments for the distance from which the import was made, or the size of the consignment, if applicable, as set out in Rules 3 to 5. There was really no occasion to straightaway proceed to determine the transactional value by relying on Rules 7 to 9. We have no doubt this principle of sequential application would apply, especially in view of sub-Rule (4) of Rule 3, which provides that there has to be a sequential implementation of the Rules, i.e., that Rules 3 to 5 would have to be exhausted first, and only in the eventuality of an inability to apply the Rules would the assessing authority proceed to impose Rules 7 to 9. 20. Learned counsel for the respondent did endeavour to persuade us that since there were concurrent findings, this Court ought not to interfere, given the scope of appeal before this Court under Section 130E(b) of the said Act, and referred to the judgment in Collector of Customs, Bombay v. Swastic Woollens (P) Ltd. & Others 1988 Suppl. SCC 796 , where it was observed as under: 9. ...... The decision of such a question of fact must be arrived at without ignoring the material and relevant facts and bearing in mind the correct legal principles. Judged by these yardsticks the finding of the Tribunal in this case is unassailable. We are, however, of the view that if a fact finding authority comes to a conclusion within the above parameters honestly and bona fide, the fact that another authority be it the Supreme Court or the High Court may have a different perspective of that question, in our opinion, is no ground to interfere with that finding in an appeal from such a finding. In the new scheme of things, the Tribunals have been entrusted with the authority and the jurisdiction to decide the questions involving determination of the rate of duty of excise or to the value of goods for purposes of assessment. An appeal has been provided to this Court to oversee that the subordinate tribunals act within the law. Merely because another view might be possible by a competent court of law is no ground for interference under Section 130-E of the Act though in relation to the rate of duty of customs or to the value of goods for purposes of assessment, the amplitude of appeal is unlimited. But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals. The Tribunal has not deviated from the path of correct principle and has considered all the relevant factors. If the Tribunal has acted bona fide with the natural justice by a speaking order, in our opinion, even if superior court feels that another view is possible, that is no ground for substitution of that view in exercise of power under clause (b) of Section 130-E of the Act. 21. We are, however, not persuaded by this argument because there appears to be a fundamental mistake committed in the manner of implementation of the statutory Rules. Once the statutory Rules exist and provide for sequential implementation, the assessing authority has no option but to proceed in accordance with those Rules, in that manner. We did put this squarely to learned senior counsel for the respondent, who really could not persuade us, or give a satisfactory answer as to why the concerned authority chose to ignore, in the given facts of the case, Rules 3 to 5, and did not proceed sequentially.
### Response:
1
### Explanation:
17. We may notice there were certain other pleas advanced, including the plea of limitation, but that is not of much significance for re- determination, on account of the conclusion we are reaching hereinafter18. We must first take note of the fact that electrical decorative lightings, normally, are not highly branded products, exceptions apart. It does appear that even though the imports were under the brand names Diyas and mAntra, they were not trademarks of such nature as would make them an exclusive product. It also appears that there has been some mix up in the understanding of a trademark protection, as the same has been compared with patented goods. Thus, data was certainly available, which could have been utilised to obtain the pricing for imports from the U.K., of identical goods or similar goods19. The irony is that if the competent authority thought that these were goods where trademark was of significance, it could not simultaneously have ignored the imports under the same trademark, from different countries, where there were no related parties. Naturally, there would have to be made adjustments for the distance from which the import was made, or the size of the consignment, if applicable, as set out in Rules 3 to 5. There was really no occasion to straightaway proceed to determine the transactional value by relying on Rules 7 to 9. We have no doubt this principle of sequential application would apply, especially in view of sub-Rule (4) of Rule 3, which provides that there has to be a sequential implementation of the Rules, i.e., that Rules 3 to 5 would have to be exhausted first, and only in the eventuality of an inability to apply the Rules would the assessing authority proceed to impose Rules 7 to 921. We are, however, not persuaded by this argument because there appears to be a fundamental mistake committed in the manner ofimplementation of the statutory Rules. Once the statutory Rules exist and provide for sequential implementation, the assessing authority has no option but to proceed in accordance with those Rules, in that manner. We did put this squarely to learned senior counsel for the respondent, who really could not persuade us, or give a satisfactory answer as to why the concerned authority chose to ignore, in the given facts of the case, Rules 3 to 5, and did not proceed sequentially.
|
Director of Income-Tax (It) ??Ii Vs. B4U International Holdings Limited | a complete reading of the agreement. Thereafter Indo-Mauritius DTAA has been referred to and particularly paragraphs 5.4 and 5.5. and the Tribunal concludes that the requirement that the first enterprise in the first mentioned State has and habitually exercised in that State an authority to conclude contracts in the name of the enterprise unless his activities are limited to the purchase of goods or merchandise for the enterprise is a condition which is not satisfied. Therefore, this is not a case of B4U India being an agent with an independent status. This finding is rendered in paragraph 29 and 30 of the order under challenge. We do not find that the Tribunals order and which also refers to the Honble Supreme Court decision in Morgan Stanley & Co. (supra) can raise any substantial questions of law.11. We are not agreement with Mr. Tejveer Singh when he submits that the Supreme Court judgment in the case of Morgan Stanley & Co. will not apply. In that regard he relies upon the conclusion rendered by the Honble Supreme Court. That conclusion is that there being no need for attribution of further profits to the permanent establishment of the foreign company where the transaction between the two was held to be at arms length but this was only provided that the associate enterprise was remunerated at arms length basis taking into account all the risk taking functions of the multinational enterprise. Thus, Mr. Tejveer Singhs reliance on these observations in the Supreme Court judgment are strictly on the alternate argument canvassed by the assessee. That alternate argument was that assuming that B4U India is a dependent agent of the assessee in India it has been remunerated at arms length price and, therefore, no profits can be attributed to the assessee. Mr. Tejveer Singh would submit that the Tribunal failed to note that the situation would be different if the transfer price analysis did not adequately reflect the functions performed and the risks assumed by the enterprise. In such a case, there would be need to attribute profits to the permanent establishment for those functions / risks that had not been considered. Mr. Tejveer Singhs argument is that the assessee had not subjected itself to the transfer price regime. Therefore, no assistance can be derived by it from this judgment.12. In this regard, Mr. Mistri has rightly pointed out that the requirement and in relation to computation of income from international transactions having regard to arms length price has been put in place in Chapter-X listing special provisions relating to avoidance of tax by substituting section 92 to 92F by the Finance Act of 2001 with effect from 1st April, 2002. Therefore, such compliance has to be made with effect from assessment years 2002-03 relevant to which is the previous year commencing from 1st April, 2002. In any event, we find that the Tribunal has rightly dealt with the alternate argument by referring to the Revenue Circular 742. There, 15% is taken to be the basis for the arms length price. Nothing contrary to the same having been brought on record by the Revenue before the Commissioner as also the Tribunal, it rightly concluded that the judgment of the Honble Supreme Court in Morgan Stanley & Co. and the principle therein would apply. Similarly, the Division Bench judgment of this Court in the case of Set Satellite (Singapore) Pte. Ltd. v. Deputy Director of Income Tax (IT) & Anr. [2008] 307 ITR 265would conclude this aspect. Therefore, we are of the opinion that the Tribunals conclusions and which are consistent with the factual materials and the principles of law laid down above are neither perverse nor vitiated by any error of law apparent on the face of the record.13. Strictly speaking the answers on questions (1) and (2) and which are common for all the appeals disposes of all the appeals against the Revenue and in favour of the assessee. However, the argument of Mr. Tejveer Singh is that the Tribunal and equally the Commissioner has dealt with other two questions. They are being projected before us and in relation to the assessment years 2004-05. It is submitted that the assessee was obliged to deduct tax at source under section 195 and having not deducted the same, there has to be a disallowance under section 40(a)(i) of the IT Act. That is because the transponder charges being a consideration and process as clarified in terms of Explanation (6) to section 9 of the IT Act. We have found from the detailed reasoning in the Tribunals order and assuming that such questions were indeed raised that in the light of the findings on the main issue, namely, on permanent establishment / dependent agent these grounds or questions were not required to be answered. They are not required to be answered separately but consistent with findings on Question Nos. (1) and (2). It is precisely applying that the Tribunal has concluded that even this ground would have to be answered against the Revenue. It was also doubtful and in the given facts and circumstances as to whether any payment which is stated to be made to a US based company by the assessee which is a Mauritius based company, can be brought to tax in terms of Indian tax laws. We are of the opinion that any wider question or controversy need not be addressed. Once consistent with the findings on the main issue even these questions have to be answered in the peculiar factual backdrop against the Revenue then, we can dispose of these appeals on these questions. We also clarify that the arguments of Mr. Tejveer Singh and based on whether the payments made could be brought within the meaning of the word "process" and within the explanation can be raised and are kept open for being considered in an appropriate case. Keeping them open and in such manner, we hold that none of the questions projected and proposed are substantial questions of law. | 0[ds]8. After hearing both sides and perusing with their assistance all the appealwe are inclined to agree with Mr.in the light of the Central Board of Direct Taxes Circular No.23 of 1969, the income of the assessee is not taxable in India. The conditions of Circular 23 are fulfilled. Therefore, Explanation (a) to section 9(1)(i) of the IT Act will have noonly activity which is carried out in India is incidental or auxiliary / preparatory in nature which is carried out in a routine manner as per the direction of the principal without application of mind and hence B4U is not an dependent agent. Nearly 4.69% of the total income of B4U India is commission / service income received from the assessee company and, therefore, also it cannot be termed as an dependent agent. As far as the alternate contentions are concerned, the First Appellate Authority held that the assessee and B4U India were dealing with each other on arms length basis. 15% fee is supported by Circular No.742. Thus it was held that no further profits should be taxed in the hands of thedo not find that the Tribunals order and which also refers to the Honble Supreme Court decision in Morgan Stanley & Co. (supra) can raise any substantial questions of law.11. We are not agreement with Mr. Tejveer Singh when he submits that the Supreme Court judgment in the case of Morgan Stanley & Co. will not apply. In that regard he relies upon the conclusion rendered by the Honble Supreme Court. That conclusion is that there being no need for attribution of further profits to the permanent establishment of the foreign company where the transaction between the two was held to be at arms length but this was only provided that the associate enterprise was remunerated at arms length basis taking into account all the risk taking functions of the multinational enterprise. Thus, Mr. Tejveer Singhs reliance on these observations in the Supreme Court judgment are strictly on the alternate argument canvassed by the assessee. That alternate argument was that assuming that B4U India is a dependent agent of the assessee in India it has been remunerated at arms length price and, therefore, no profits can be attributed to the assessee. Mr. Tejveer Singh would submit that the Tribunal failed to note that the situation would be different if the transfer price analysis did not adequately reflect the functions performed and the risks assumed by the enterprise. In such a case, there would be need to attribute profits to the permanent establishment for those functions / risks that had not been considered. Mr. Tejveer Singhs argument is that the assessee had not subjected itself to the transfer price regime. Therefore, no assistance can be derived by it from this judgment.12. In this regard, Mr. Mistri has rightly pointed out that the requirement and in relation to computation of income from international transactions having regard to arms length price has been put in place inlisting special provisions relating to avoidance of tax by substituting section 92 to 92F by the Finance Act of 2001 with effect from 1st April, 2002. Therefore, such compliance has to be made with effect from assessment yearsrelevant to which is the previous year commencing from 1st April,we are of the opinion that the Tribunals conclusions and which are consistent with the factual materials and the principles of law laid down above are neither perverse nor vitiated by any error of law apparent on the face of the record.13. Strictly speaking the answers on questions (1) and (2) and which are common for all the appeals disposes of all the appeals against the Revenue and in favour of the assessee. However, the argument of Mr. Tejveer Singh is that the Tribunal and equally the Commissioner has dealt with other two questions. They are being projected before us and in relation to the assessment yearsIt is submitted that the assessee was obliged to deduct tax at source under section 195 and having not deducted the same, there has to be a disallowance under section 40(a)(i) of the IT Act. That is because the transponder charges being a consideration and process as clarified in terms of Explanation (6) to section 9 of the IT Act. We have found from the detailed reasoning in the Tribunals order and assuming that such questions were indeed raised that in the light of the findings on the main issue, namely, on permanent establishment / dependent agent these grounds or questions were not required to be answered. They are not required to be answered separately but consistent with findings on Question Nos. (1) and (2). It is precisely applying that the Tribunal has concluded that even this ground would have to be answered against the Revenue. It was also doubtful and in the given facts and circumstances as to whether any payment which is stated to be made to a US based company by the assessee which is a Mauritius based company, can be brought to tax in terms of Indian tax laws. We are of the opinion that any wider question or controversy need not be addressed. Once consistent with the findings on the main issue even these questions have to be answered in the peculiar factual backdrop against the Revenue then, we can dispose of these appeals on these questions. We also clarify that the arguments of Mr. Tejveer Singh and based on whether the payments made could be brought within the meaning of the word "process" and within the explanation can be raised and are kept open for being considered in an appropriate case. Keeping them open and in such manner, we hold that none of the questions projected and proposed are substantial questions of law. | 0 | 3,448 | 1,048 | ### 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:
a complete reading of the agreement. Thereafter Indo-Mauritius DTAA has been referred to and particularly paragraphs 5.4 and 5.5. and the Tribunal concludes that the requirement that the first enterprise in the first mentioned State has and habitually exercised in that State an authority to conclude contracts in the name of the enterprise unless his activities are limited to the purchase of goods or merchandise for the enterprise is a condition which is not satisfied. Therefore, this is not a case of B4U India being an agent with an independent status. This finding is rendered in paragraph 29 and 30 of the order under challenge. We do not find that the Tribunals order and which also refers to the Honble Supreme Court decision in Morgan Stanley & Co. (supra) can raise any substantial questions of law.11. We are not agreement with Mr. Tejveer Singh when he submits that the Supreme Court judgment in the case of Morgan Stanley & Co. will not apply. In that regard he relies upon the conclusion rendered by the Honble Supreme Court. That conclusion is that there being no need for attribution of further profits to the permanent establishment of the foreign company where the transaction between the two was held to be at arms length but this was only provided that the associate enterprise was remunerated at arms length basis taking into account all the risk taking functions of the multinational enterprise. Thus, Mr. Tejveer Singhs reliance on these observations in the Supreme Court judgment are strictly on the alternate argument canvassed by the assessee. That alternate argument was that assuming that B4U India is a dependent agent of the assessee in India it has been remunerated at arms length price and, therefore, no profits can be attributed to the assessee. Mr. Tejveer Singh would submit that the Tribunal failed to note that the situation would be different if the transfer price analysis did not adequately reflect the functions performed and the risks assumed by the enterprise. In such a case, there would be need to attribute profits to the permanent establishment for those functions / risks that had not been considered. Mr. Tejveer Singhs argument is that the assessee had not subjected itself to the transfer price regime. Therefore, no assistance can be derived by it from this judgment.12. In this regard, Mr. Mistri has rightly pointed out that the requirement and in relation to computation of income from international transactions having regard to arms length price has been put in place in Chapter-X listing special provisions relating to avoidance of tax by substituting section 92 to 92F by the Finance Act of 2001 with effect from 1st April, 2002. Therefore, such compliance has to be made with effect from assessment years 2002-03 relevant to which is the previous year commencing from 1st April, 2002. In any event, we find that the Tribunal has rightly dealt with the alternate argument by referring to the Revenue Circular 742. There, 15% is taken to be the basis for the arms length price. Nothing contrary to the same having been brought on record by the Revenue before the Commissioner as also the Tribunal, it rightly concluded that the judgment of the Honble Supreme Court in Morgan Stanley & Co. and the principle therein would apply. Similarly, the Division Bench judgment of this Court in the case of Set Satellite (Singapore) Pte. Ltd. v. Deputy Director of Income Tax (IT) & Anr. [2008] 307 ITR 265would conclude this aspect. Therefore, we are of the opinion that the Tribunals conclusions and which are consistent with the factual materials and the principles of law laid down above are neither perverse nor vitiated by any error of law apparent on the face of the record.13. Strictly speaking the answers on questions (1) and (2) and which are common for all the appeals disposes of all the appeals against the Revenue and in favour of the assessee. However, the argument of Mr. Tejveer Singh is that the Tribunal and equally the Commissioner has dealt with other two questions. They are being projected before us and in relation to the assessment years 2004-05. It is submitted that the assessee was obliged to deduct tax at source under section 195 and having not deducted the same, there has to be a disallowance under section 40(a)(i) of the IT Act. That is because the transponder charges being a consideration and process as clarified in terms of Explanation (6) to section 9 of the IT Act. We have found from the detailed reasoning in the Tribunals order and assuming that such questions were indeed raised that in the light of the findings on the main issue, namely, on permanent establishment / dependent agent these grounds or questions were not required to be answered. They are not required to be answered separately but consistent with findings on Question Nos. (1) and (2). It is precisely applying that the Tribunal has concluded that even this ground would have to be answered against the Revenue. It was also doubtful and in the given facts and circumstances as to whether any payment which is stated to be made to a US based company by the assessee which is a Mauritius based company, can be brought to tax in terms of Indian tax laws. We are of the opinion that any wider question or controversy need not be addressed. Once consistent with the findings on the main issue even these questions have to be answered in the peculiar factual backdrop against the Revenue then, we can dispose of these appeals on these questions. We also clarify that the arguments of Mr. Tejveer Singh and based on whether the payments made could be brought within the meaning of the word "process" and within the explanation can be raised and are kept open for being considered in an appropriate case. Keeping them open and in such manner, we hold that none of the questions projected and proposed are substantial questions of law.
### Response:
0
### Explanation:
8. After hearing both sides and perusing with their assistance all the appealwe are inclined to agree with Mr.in the light of the Central Board of Direct Taxes Circular No.23 of 1969, the income of the assessee is not taxable in India. The conditions of Circular 23 are fulfilled. Therefore, Explanation (a) to section 9(1)(i) of the IT Act will have noonly activity which is carried out in India is incidental or auxiliary / preparatory in nature which is carried out in a routine manner as per the direction of the principal without application of mind and hence B4U is not an dependent agent. Nearly 4.69% of the total income of B4U India is commission / service income received from the assessee company and, therefore, also it cannot be termed as an dependent agent. As far as the alternate contentions are concerned, the First Appellate Authority held that the assessee and B4U India were dealing with each other on arms length basis. 15% fee is supported by Circular No.742. Thus it was held that no further profits should be taxed in the hands of thedo not find that the Tribunals order and which also refers to the Honble Supreme Court decision in Morgan Stanley & Co. (supra) can raise any substantial questions of law.11. We are not agreement with Mr. Tejveer Singh when he submits that the Supreme Court judgment in the case of Morgan Stanley & Co. will not apply. In that regard he relies upon the conclusion rendered by the Honble Supreme Court. That conclusion is that there being no need for attribution of further profits to the permanent establishment of the foreign company where the transaction between the two was held to be at arms length but this was only provided that the associate enterprise was remunerated at arms length basis taking into account all the risk taking functions of the multinational enterprise. Thus, Mr. Tejveer Singhs reliance on these observations in the Supreme Court judgment are strictly on the alternate argument canvassed by the assessee. That alternate argument was that assuming that B4U India is a dependent agent of the assessee in India it has been remunerated at arms length price and, therefore, no profits can be attributed to the assessee. Mr. Tejveer Singh would submit that the Tribunal failed to note that the situation would be different if the transfer price analysis did not adequately reflect the functions performed and the risks assumed by the enterprise. In such a case, there would be need to attribute profits to the permanent establishment for those functions / risks that had not been considered. Mr. Tejveer Singhs argument is that the assessee had not subjected itself to the transfer price regime. Therefore, no assistance can be derived by it from this judgment.12. In this regard, Mr. Mistri has rightly pointed out that the requirement and in relation to computation of income from international transactions having regard to arms length price has been put in place inlisting special provisions relating to avoidance of tax by substituting section 92 to 92F by the Finance Act of 2001 with effect from 1st April, 2002. Therefore, such compliance has to be made with effect from assessment yearsrelevant to which is the previous year commencing from 1st April,we are of the opinion that the Tribunals conclusions and which are consistent with the factual materials and the principles of law laid down above are neither perverse nor vitiated by any error of law apparent on the face of the record.13. Strictly speaking the answers on questions (1) and (2) and which are common for all the appeals disposes of all the appeals against the Revenue and in favour of the assessee. However, the argument of Mr. Tejveer Singh is that the Tribunal and equally the Commissioner has dealt with other two questions. They are being projected before us and in relation to the assessment yearsIt is submitted that the assessee was obliged to deduct tax at source under section 195 and having not deducted the same, there has to be a disallowance under section 40(a)(i) of the IT Act. That is because the transponder charges being a consideration and process as clarified in terms of Explanation (6) to section 9 of the IT Act. We have found from the detailed reasoning in the Tribunals order and assuming that such questions were indeed raised that in the light of the findings on the main issue, namely, on permanent establishment / dependent agent these grounds or questions were not required to be answered. They are not required to be answered separately but consistent with findings on Question Nos. (1) and (2). It is precisely applying that the Tribunal has concluded that even this ground would have to be answered against the Revenue. It was also doubtful and in the given facts and circumstances as to whether any payment which is stated to be made to a US based company by the assessee which is a Mauritius based company, can be brought to tax in terms of Indian tax laws. We are of the opinion that any wider question or controversy need not be addressed. Once consistent with the findings on the main issue even these questions have to be answered in the peculiar factual backdrop against the Revenue then, we can dispose of these appeals on these questions. We also clarify that the arguments of Mr. Tejveer Singh and based on whether the payments made could be brought within the meaning of the word "process" and within the explanation can be raised and are kept open for being considered in an appropriate case. Keeping them open and in such manner, we hold that none of the questions projected and proposed are substantial questions of law.
|
M/S KALEDONIA JUTE AND FIBRES PVT. LTD. Vs. M/S AXIS NIRMAN AND INDUSTRIES LTD. & ORS. | expression party. The Companies Act 2013 does not define the expression party. The Companies (Transfer of pending proceedings) Rules, 2016 also does not define the expression party. Even the IBC, 2016 does not define the expression party. 42. But there are certain clues inherently available in the Companies Act, 1956, to indicate the persons who may come within the meaning of the expression party to the proceedings. The provisions which contain such clues are as follows: (i) Section 447 of the Companies Act, 1956, which is equivalent to Section 278 of the Companies Act, 2013 states that an order for winding up shall operate in favour of all the creditors and of all the contributories of the company as if it has been made on the joint petition of a creditor and of a contributory. There is a small change between the wording of Section 278 of the 2013 Act and the wording of Section 447 of the 1956 Act. This change may be appreciated, if both these provisions are presented simultaneously in a tabular column: Table Section 278 of the 2013 Act shows that any petition by a single creditor or contributory is actually treated as a joint petition of creditors and contributories, so that the order of winding up operates in favour of all the creditors and all the contributories. (ii) Under Section 454 (6) of the 1956 Act, any person stating himself in writing to be a creditor shall be entitled to inspect the statement of affairs submitted to the official liquidator. If the claim of such a person to be a creditor turns out to be untrue, such a person is liable to be punished under Section 454(7) of the 1956 Act. (iii) The powers of the liquidator are enumerated in Section 457 of the 1956 Act. Section 457 actually divides the powers of a liquidator into two categories namely (i) those available with the sanction of the Tribunal and (ii) those generally available to the liquidator. But Section 290 of the 2013 Act has done away with such a distinction. However, the 1956 Act, as well as 2013 Act make the exercise of the powers by the liquidator, subject to the overall control of the Tribunal. This is made clear by Section 457(3) of the 1956 Act and Section 290(2) of the 2013 Act. Additionally, Section 457(3) of the 1956 Act enables any creditor or contributory to apply to the Court with respect to the exercise by the Liquidator, of any of the powers conferred by Section 457. (iv) Section 460 of the 1956 Act and Section 292 of the 2013 Act make it clear that in the administration of the assets of the Company and the distribution thereof among its creditors, the liquidator should have regard to any directions given by resolution of creditors at any general meeting. If the liquidator does something, in exercise of his powers, any person aggrieved by such Act or decision of the liquidator, is entitled to apply to the Company Court, under Section 460(6) of the 1956 Act and Section 292(4) of the 2013 Act. (v) Section 466(1) of the 1956 Act enables any creditor to apply for stay of all proceedings in relation to the winding up. This right can be exercised by any creditor at any time after the making of a winding up order. 43. Thus, the proceedings for winding up of a company are actually proceedings in rem to which the entire body of creditors is a party. The proceeding might have been initiated by one or more creditors, but by a deeming fiction the petition is treated as a joint petition. The official liquidator acts for and on behalf of the entire body of creditors. Therefore, the word party appearing in the 5th proviso to Clause (c) of Sub-section (1) of section 434 cannot be construed to mean only the single petitioning creditor or the company or the official liquidator. The words party or parties appearing in the 5th proviso to Clause (c) of Sub-section (1) of Section 434 would take within its fold any creditor of the company in liquidation. 44. The above conclusion can be reached through another method of deductive logic also. If any creditor is aggrieved by any decision of the official liquidator, he is entitled under the 1956 Act to challenge the same before the Company Court. Once he does that, he becomes a party to the proceeding, even by the plain language of the section. Instead of asking a party to adopt such a circuitous route and then take recourse to the 5th proviso to section 434(1)(c), it would be better to recognise the right of such a party to seek transfer directly. 45. As observed by this Court in Forech India Limited (supra), the object of IBC will be stultified if parallel proceedings are allowed to go on in different fora. If the Allahabad High Court is allowed to proceed with the winding up and NCLT is allowed to proceed with an enquiry into the application under Section 7 IBC, the entire object of IBC will be thrown to the winds. 46. Therefore, we are of the considered view that the petitionerherein will come within the definition of the expression party appearing in the 5th proviso to Clause (c) of Sub-section (1) of Section 434 of the Companies Act, 2013 and that the petitioner is entitled to seek a transfer of the pending winding up proceedings against the first respondent, to the NCLT. It is important to note that the restriction under Rules 5 and 6 of the Companies (Transfer of Pending Proceedings) Rules, 2016 relating to the stage at which a transfer could be ordered, has no application to the case of a transfer covered by the 5th proviso to clause (c) of sub-section (1) of Section 434. Therefore, the impugned order of the High court rejecting the petition for transfer on the basis of Rule 26 of the Companies (Court) Rules, 1959 is flawed. | 1[ds]19. A careful look at Section 434 as it stands today would show that Clause (b) of Sub-section(1) of Section 434 has nothing to do with what Section 434 in entirety purports to deal with. Section 434 in entirety purports to deal with the transfer of proceedings pending either before the Board of Company Law Administration or before the Company Court (the High Court or the District Court). Clause (b) of Sub-section (1) deals with the right of appeal to the High Court against any decision of the Company Law Board and hence Clause (b) is actually a misfit in the scheme of Section 434.20. Be that as it may, clause (c) of Sub-section (1) is the provision that actually provides for the transfer of all the proceedings under the Companies Act, 1956 pending before any District Court or High Court, to the Tribunal. Broadly Clause (c) makes a mention about proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up. But Clause (c) is not limited in its application to proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up. This is due to the usage of the words All proceedings......including in Clause (c).21. However, the first proviso to Clause (c) which was not there in the original Section 434, but which was inserted only under IBC Act of 2016 when Section 434 was substituted, circumscribes what is contained in the main part of Clause (c). The first proviso to Clause (c) restricts the transferability of proceedings for winding up from the High Court to the tribunal, by stipulating that only such proceedings for winding up which are at a stage as may be prescribed by the Central Government, be transferred to the Tribunal.22. Sub-section (2) of Section 434 empowers the Central Government to make Rules consistent with the provisions of the Act, to ensure timely transfer of all matters pending before the Company Law Board or the Courts, to the Tribunal. Therefore, in exercise of the power conferred by Sub-section (2) of Section 434 of the Companies Act, 2013 read with Sub-section (1) of Section 239 of the IBC, 2016, the Central Government issued a set of Rules known as The Companies (Transfer of Pending Proceedings) Rules, 2016.32. The transferability of a winding up proceeding, both under Rule 5 as well as under Rule 6, is directly linked to the service of the winding up petition on the respondent under Rule 26 of the Companies (Court) Rules, 1959. If the winding up petition has already been served on the respondent in terms of Rule 26 of the 1959 Rules, the proceedings are not liable to be transferred. But if service of the winding up petition on the respondent in terms of Rule 26 had not been completed, such winding up proceedings, whether they are under Clause (c) of Section 433 or under Clauses (a) and (f) of Section 433, shall peremptorily be transferred to the NCLT.33. In other words, Rules 5 and 6 of the Companies (Transfer of Pending Proceedings) Rules 2016, fix the stage of service of notice under Rule 26 of the Companies (Court) Rules, 1959, as the stage at which a winding up proceeding can be transferred. This is because the first proviso under Clause (c) of Sub-section (1) of Section 434 enables the Central Government to prescribe the stage at which proceedings for winding up can be transferred and subsection (2) of section 434 confers rule making power on the Central Government.35. The normal requirement of Rule 26, as seen from its last limb is that the copy of the petition under the Act shall be served on the respondent along with the notice of the petition, unless otherwise ordered. The notice of the petition, required under Rule 26 to be served along with the copy of the petition, should be in Form No.6, due to the mandate of Rule 27.36. Due to the usage of the words was admitted in Form No.6, there was a confusion as to whether the service referred to in Rule 26, is of a pre-admission notice or post-admission notice, in a winding up proceeding. Different High Courts took different views. Eventually, this Court settled the position in Forech India Ltd. vs. Edelweiss Assets Reconstruction Co. Ltd. 2019 (2) SCR 477 by holding that Rules 26 and 27 clearly refer to a pre-admission scenario.37. After so interpreting Rules 26 and 27 of the Companies (Court) Rules, 1959, this Court pointed out in Forech India Ltd. (supra) that when the Code was enacted, only winding up petitions where no notice under Rule 26 was served, were to be transferred to NCLT and treated as petitions under the Code. However, after Section 434 was substituted by a new provision under Act 31 of 2016 and the 5 th proviso was inserted by Act 26 of 2018, the transfer of the winding up proceedings, even at the instance of the party or parties to the proceedings became permissible. This change of position was also noted by this Court in Forech India Limited(supra).38. But while noting the change of position after the insertion of the 5th proviso through Act 26 of 2018, this Court indicated in para 17 of the Judgment as though any person could apply for transfer of such petitions to the NCLT under the Code.39. But we do not think that the decision in Forech India Limited (supra) is an authority for the proposition that the 5th proviso to Clause (c) of Sub-section (1) of Section 434 could be invoked by any person who is not a party to the proceeding for winding up. The 5th proviso which we have already extracted uses the words any party or parties to any proceedings relating to the winding up of companies pending before any Court.40. In other words, the right to invoke the 5th proviso is specifically conferred only upon the parties to the proceedings. Therefore, on a literal interpretation, such a right should be held to be confined only tothe parties to the proceedings.The Companies Act, 1956 does not define the expression party. The Companies (Court) Rules, 1959 also does not define the expression party. The Companies Act 2013 does not define the expression party. The Companies (Transfer of pending proceedings) Rules, 2016 also does not define the expression party. Even the IBC, 2016 does not define the expression party.43. Thus, the proceedings for winding up of a company are actually proceedings in rem to which the entire body of creditors is a party. The proceeding might have been initiated by one or more creditors, but by a deeming fiction the petition is treated as a joint petition. The official liquidator acts for and on behalf of the entire body of creditors. Therefore, the word party appearing in the 5th proviso to Clause (c) of Sub-section (1) of section 434 cannot be construed to mean only the single petitioning creditor or the company or the official liquidator. The words party or parties appearing in the 5th proviso to Clause (c) of Sub-section (1) of Section 434 would take within its fold any creditor of the company in liquidation.44. The above conclusion can be reached through another method of deductive logic also. If any creditor is aggrieved by any decision of the official liquidator, he is entitled under the 1956 Act to challenge the same before the Company Court. Once he does that, he becomes a party to the proceeding, even by the plain language of the section. Instead of asking a party to adopt such a circuitous route and then take recourse to the 5th proviso to section 434(1)(c), it would be better to recognise the right of such a party to seek transfer directly.45. As observed by this Court in Forech India Limited (supra), the object of IBC will be stultified if parallel proceedings are allowed to go on in different fora. If the Allahabad High Court is allowed to proceed with the winding up and NCLT is allowed to proceed with an enquiry into the application under Section 7 IBC, the entire object of IBC will be thrown to the winds.46. Therefore, we are of the considered view that the petitionerherein will come within the definition of the expression party appearing in the 5th proviso to Clause (c) of Sub-section (1) of Section 434 of the Companies Act, 2013 and that the petitioner is entitled to seek a transfer of the pending winding up proceedings against the first respondent, to the NCLT. It is important to note that the restriction under Rules 5 and 6 of the Companies (Transfer of Pending Proceedings) Rules, 2016 relating to the stage at which a transfer could be ordered, has no application to the case of a transfer covered by the 5th proviso to clause (c) of sub-section (1) of Section 434. Therefore, the impugned order of the High court rejecting the petition for transfer on the basis of Rule 26 of the Companies (Court) Rules, 1959 is flawed. | 1 | 4,834 | 1,727 | ### 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:
expression party. The Companies Act 2013 does not define the expression party. The Companies (Transfer of pending proceedings) Rules, 2016 also does not define the expression party. Even the IBC, 2016 does not define the expression party. 42. But there are certain clues inherently available in the Companies Act, 1956, to indicate the persons who may come within the meaning of the expression party to the proceedings. The provisions which contain such clues are as follows: (i) Section 447 of the Companies Act, 1956, which is equivalent to Section 278 of the Companies Act, 2013 states that an order for winding up shall operate in favour of all the creditors and of all the contributories of the company as if it has been made on the joint petition of a creditor and of a contributory. There is a small change between the wording of Section 278 of the 2013 Act and the wording of Section 447 of the 1956 Act. This change may be appreciated, if both these provisions are presented simultaneously in a tabular column: Table Section 278 of the 2013 Act shows that any petition by a single creditor or contributory is actually treated as a joint petition of creditors and contributories, so that the order of winding up operates in favour of all the creditors and all the contributories. (ii) Under Section 454 (6) of the 1956 Act, any person stating himself in writing to be a creditor shall be entitled to inspect the statement of affairs submitted to the official liquidator. If the claim of such a person to be a creditor turns out to be untrue, such a person is liable to be punished under Section 454(7) of the 1956 Act. (iii) The powers of the liquidator are enumerated in Section 457 of the 1956 Act. Section 457 actually divides the powers of a liquidator into two categories namely (i) those available with the sanction of the Tribunal and (ii) those generally available to the liquidator. But Section 290 of the 2013 Act has done away with such a distinction. However, the 1956 Act, as well as 2013 Act make the exercise of the powers by the liquidator, subject to the overall control of the Tribunal. This is made clear by Section 457(3) of the 1956 Act and Section 290(2) of the 2013 Act. Additionally, Section 457(3) of the 1956 Act enables any creditor or contributory to apply to the Court with respect to the exercise by the Liquidator, of any of the powers conferred by Section 457. (iv) Section 460 of the 1956 Act and Section 292 of the 2013 Act make it clear that in the administration of the assets of the Company and the distribution thereof among its creditors, the liquidator should have regard to any directions given by resolution of creditors at any general meeting. If the liquidator does something, in exercise of his powers, any person aggrieved by such Act or decision of the liquidator, is entitled to apply to the Company Court, under Section 460(6) of the 1956 Act and Section 292(4) of the 2013 Act. (v) Section 466(1) of the 1956 Act enables any creditor to apply for stay of all proceedings in relation to the winding up. This right can be exercised by any creditor at any time after the making of a winding up order. 43. Thus, the proceedings for winding up of a company are actually proceedings in rem to which the entire body of creditors is a party. The proceeding might have been initiated by one or more creditors, but by a deeming fiction the petition is treated as a joint petition. The official liquidator acts for and on behalf of the entire body of creditors. Therefore, the word party appearing in the 5th proviso to Clause (c) of Sub-section (1) of section 434 cannot be construed to mean only the single petitioning creditor or the company or the official liquidator. The words party or parties appearing in the 5th proviso to Clause (c) of Sub-section (1) of Section 434 would take within its fold any creditor of the company in liquidation. 44. The above conclusion can be reached through another method of deductive logic also. If any creditor is aggrieved by any decision of the official liquidator, he is entitled under the 1956 Act to challenge the same before the Company Court. Once he does that, he becomes a party to the proceeding, even by the plain language of the section. Instead of asking a party to adopt such a circuitous route and then take recourse to the 5th proviso to section 434(1)(c), it would be better to recognise the right of such a party to seek transfer directly. 45. As observed by this Court in Forech India Limited (supra), the object of IBC will be stultified if parallel proceedings are allowed to go on in different fora. If the Allahabad High Court is allowed to proceed with the winding up and NCLT is allowed to proceed with an enquiry into the application under Section 7 IBC, the entire object of IBC will be thrown to the winds. 46. Therefore, we are of the considered view that the petitionerherein will come within the definition of the expression party appearing in the 5th proviso to Clause (c) of Sub-section (1) of Section 434 of the Companies Act, 2013 and that the petitioner is entitled to seek a transfer of the pending winding up proceedings against the first respondent, to the NCLT. It is important to note that the restriction under Rules 5 and 6 of the Companies (Transfer of Pending Proceedings) Rules, 2016 relating to the stage at which a transfer could be ordered, has no application to the case of a transfer covered by the 5th proviso to clause (c) of sub-section (1) of Section 434. Therefore, the impugned order of the High court rejecting the petition for transfer on the basis of Rule 26 of the Companies (Court) Rules, 1959 is flawed.
### Response:
1
### Explanation:
the Companies (Transfer of Pending Proceedings) Rules 2016, fix the stage of service of notice under Rule 26 of the Companies (Court) Rules, 1959, as the stage at which a winding up proceeding can be transferred. This is because the first proviso under Clause (c) of Sub-section (1) of Section 434 enables the Central Government to prescribe the stage at which proceedings for winding up can be transferred and subsection (2) of section 434 confers rule making power on the Central Government.35. The normal requirement of Rule 26, as seen from its last limb is that the copy of the petition under the Act shall be served on the respondent along with the notice of the petition, unless otherwise ordered. The notice of the petition, required under Rule 26 to be served along with the copy of the petition, should be in Form No.6, due to the mandate of Rule 27.36. Due to the usage of the words was admitted in Form No.6, there was a confusion as to whether the service referred to in Rule 26, is of a pre-admission notice or post-admission notice, in a winding up proceeding. Different High Courts took different views. Eventually, this Court settled the position in Forech India Ltd. vs. Edelweiss Assets Reconstruction Co. Ltd. 2019 (2) SCR 477 by holding that Rules 26 and 27 clearly refer to a pre-admission scenario.37. After so interpreting Rules 26 and 27 of the Companies (Court) Rules, 1959, this Court pointed out in Forech India Ltd. (supra) that when the Code was enacted, only winding up petitions where no notice under Rule 26 was served, were to be transferred to NCLT and treated as petitions under the Code. However, after Section 434 was substituted by a new provision under Act 31 of 2016 and the 5 th proviso was inserted by Act 26 of 2018, the transfer of the winding up proceedings, even at the instance of the party or parties to the proceedings became permissible. This change of position was also noted by this Court in Forech India Limited(supra).38. But while noting the change of position after the insertion of the 5th proviso through Act 26 of 2018, this Court indicated in para 17 of the Judgment as though any person could apply for transfer of such petitions to the NCLT under the Code.39. But we do not think that the decision in Forech India Limited (supra) is an authority for the proposition that the 5th proviso to Clause (c) of Sub-section (1) of Section 434 could be invoked by any person who is not a party to the proceeding for winding up. The 5th proviso which we have already extracted uses the words any party or parties to any proceedings relating to the winding up of companies pending before any Court.40. In other words, the right to invoke the 5th proviso is specifically conferred only upon the parties to the proceedings. Therefore, on a literal interpretation, such a right should be held to be confined only tothe parties to the proceedings.The Companies Act, 1956 does not define the expression party. The Companies (Court) Rules, 1959 also does not define the expression party. The Companies Act 2013 does not define the expression party. The Companies (Transfer of pending proceedings) Rules, 2016 also does not define the expression party. Even the IBC, 2016 does not define the expression party.43. Thus, the proceedings for winding up of a company are actually proceedings in rem to which the entire body of creditors is a party. The proceeding might have been initiated by one or more creditors, but by a deeming fiction the petition is treated as a joint petition. The official liquidator acts for and on behalf of the entire body of creditors. Therefore, the word party appearing in the 5th proviso to Clause (c) of Sub-section (1) of section 434 cannot be construed to mean only the single petitioning creditor or the company or the official liquidator. The words party or parties appearing in the 5th proviso to Clause (c) of Sub-section (1) of Section 434 would take within its fold any creditor of the company in liquidation.44. The above conclusion can be reached through another method of deductive logic also. If any creditor is aggrieved by any decision of the official liquidator, he is entitled under the 1956 Act to challenge the same before the Company Court. Once he does that, he becomes a party to the proceeding, even by the plain language of the section. Instead of asking a party to adopt such a circuitous route and then take recourse to the 5th proviso to section 434(1)(c), it would be better to recognise the right of such a party to seek transfer directly.45. As observed by this Court in Forech India Limited (supra), the object of IBC will be stultified if parallel proceedings are allowed to go on in different fora. If the Allahabad High Court is allowed to proceed with the winding up and NCLT is allowed to proceed with an enquiry into the application under Section 7 IBC, the entire object of IBC will be thrown to the winds.46. Therefore, we are of the considered view that the petitionerherein will come within the definition of the expression party appearing in the 5th proviso to Clause (c) of Sub-section (1) of Section 434 of the Companies Act, 2013 and that the petitioner is entitled to seek a transfer of the pending winding up proceedings against the first respondent, to the NCLT. It is important to note that the restriction under Rules 5 and 6 of the Companies (Transfer of Pending Proceedings) Rules, 2016 relating to the stage at which a transfer could be ordered, has no application to the case of a transfer covered by the 5th proviso to clause (c) of sub-section (1) of Section 434. Therefore, the impugned order of the High court rejecting the petition for transfer on the basis of Rule 26 of the Companies (Court) Rules, 1959 is flawed.
|
The Central Bank Of India Ltd Vs. P.S. Rajagopalan Etc | of adding machine operators for its Comptists and that may presumably be for the reason. that at the relevant time, its Comptists were doing the work of adding machine operators and Ad- dressographers; so that it made no difference whether the bank called them Comptists or adding machine operators or Addressographers, all the three types of work being entrusted to one category of employees; but however that may be, the nomenclature adopted by the Imperial Bank of India cannot be said to be binding on the other banks which did not adopt it, and so, it is obviously erroneous to hold that the equivalent adopted by the Imperial Bank of India must be taken to have been adopted by all the other banks. Indeed, the Award recently made by Mr. Justice Desai who was appointed the National Industrial Tribunal in the Bank Disputes clearly brings out the distinction between Comptists on the one hand, and adding machine operators, addressographers and photostat machine operators on the other in paragraphs 5. 242 and 5. 265.In the present appeals, no evidence was led on behalf of the respondents. The appellant, however, examined its officer Mr. Shivodkar. This witness stated that an adding machine can be operated by a clerk with half an hours practice. It only does additions mechanically. Operating a comptometer, however, involves complicated calculations and in order to handle it efficiently, the employee has to take three months training and practising. He added that about two hours work is put on the adding machine by the several respondents, but it is included in their normal working hours. There has been some discussion at the Bar in the present appeals as to the nature of the work which is done on the comptometer and on the adding machine, but there can be no doubt that compared to the comptometer, the adding machine is a simple mechanism and for operating on it, not much experience or technical training is required; in fact, it may not even require that amount of skill and efficiency which is expected of a typist and it is significant that a claim made by the typists for special allowance was rejected by the Sastry Tribunal. That shows how the respondents claim for special allowance as Comptists solely on the ground that they can be described as adding machine operators, cannot be sustained. Therefore, -the sole basis on which the respondents claim has been allowed by the Labour Court is unsound, and so the order passed by it cannot be affirmed.16. It has, however, been urged before us by the respondents that they should be given an opportunity to substantiate their claims on the merits. It is argued that they were advised that the equivalent supplied by the Imperial Bank of India by itself furnished a firm basis for their claims, and so, no other allegations were made by them in the present proceedings and no evidence was led by them to prove the nature of the work done by them and the e for which they do the special kind of work to justify the claim for special allowance. On the other hand, the appellant has strenuously contended that the delay made by the respondents in making the present applications speaks for itself, and so, no indulgence should be shown to the respondents for remanding the present cases to the Labour Court once it is found that the basis on which the claim has been allowed is not justified in law. It is true that though the Sastry ward was passed in 1953 and the Labour Appellate Tribunals decision was pronounced in 1954 and it became final on October 21, 1955, the respondents did not make their claims until 1962. We have had occasion in the past to emphasise the fact that industrial adjudication should not encourage unduly belated claims; but on the other hand, no limitation is prescribed for an application under s. 33C(2) and it would, on the whole, not be right for us to refuse an opportunity to the respondents to prove their case only on the ground that they moved the Labour Court after considerable delay. We would, therefore, set aside the order passed by the Labour Court and remand the proceedings to that Court with a direction that it should allow the parties to amend their pleadings if they so desire and to lead evidence in support of their respective cases. It may be open to the respondents to prove that they are doing the work which may be properly described as the work of Comptists. In that connection, it may also be open to them incidentally to show that the work which was being done in the Imperial Bank of India by the adding machine operators who were shown as equivalents of the Comptists at the relevant time is being done by them in the appellants branches. If the Labour Court is satisfied that the work done by the respondents can be reasonably treated as the work of Comptists as properly understood in the banking industry, then it should proceed to determine the respondents claim on that basis. We have already referred to the fact that the Labour Appellate Tribunal made it perfectly clear that the particular nomenclature was not decisive and that what mattered in these cases was the nature of the duties and responsibilities of a post. If the nature of the duties and responsibilities of the posts held by the respondents legitimately Justify the conclusion that they are comptists, then the special allowance can be claimed by them. It is in the light of these observations that the Labour Court should proceed to deal with these cases after remand. If the parties want to amend their pleadings, they should move the Labour Court in that behalf within a fortnight after the receipt of the record in that Court. Then the Labour Court should fix an early date for taking evidence and should deal with these matters as expeditiously as possible.The | 1[ds]In other words, the provisions of s.20 (2) roughly correspond to the provisions of s.33C(2) of the Act. There are, however, two points of distinction. Section 20(2) was confined to the benefits claimable by workmen under an award or decision of an Industrial tribunal; and the application to be made in that behalf had to be filed before the industrial tribunal which made the said award or decision. These two limitations have not been introduced in s. 33C(2). Section 20(3) corresponds to s.33C:(3). It would thus be noticed that s.. 20 of this Act provides a speedy remedy to individual workmen to execute their rights under awards or decisions of industrialin construing s. 33-C we have to bear in mind two relevant considerations. The construction should not be so broad as to bring within the scope of s. 33-C cases which would fall under s. 10(1). Where industrial disputes arise between employees acting collectively and their employers, they must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference under s, 10(1). These disputes cannot be brought within the purview of s. 33C. Similarly, having regard to the fact that the policy of the Legislature in enacting s. 33C is to provide a speedy remedy to the individual workmen to enforce or execute their existing rights, it would not be reasonable to exclude from the scope of this section cases of existing rights which are sought to be implemented by individual workmen. In other words, though in determining the scope of s. 33C we must take care not to exclude cases which legitimately fall within its purview, we must also bear in mind that cases which, fall under s. 10(1) of the Act for instance cannot be brought within the scope of s.must accordingly hold that s. 33C (2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers incidentally, it may be relevant to add that it would be somewhat odd that under sub-s. (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-s. (2). On the other hand, sub-s. 3 becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub- s. (2).It is, however, urged that in dealing with the question about the existence of a right set up by the workman, the Labour Court would necessarily have to interpret the award or settlement on which the right is based, and that cannot be within its jurisdiction under s. 33C (2), because interpretation of awards or settlements has been specifically and expressly provided for by s. 36A. We have already noticed that s. 36A has also been added by the Amending Act No. 36 of 1956 along with section 33C, and the appellants argument is that the legislature introduced the two sections together and thereby indicated that questions of interpretation fall within s. 36A and, therefore, outside s. 33C (2). There is no force in. this contention. Section 36A. merely provides for the interpretation of any provision of an award or settlement where any difficulty or doubt arises as to the said interpretation. Generally, this power is invoked when the employer and his employees are not agreed as to the interpretation of any award or settlement, and the appropriate Government is satisfied that a defect or doubt has arisen in regard to any provision in the award or settlement. Sometimes, cases may arise where the awards or settlements are obscure, ambiguous or otherwise present difficulty in construction. It is in such cases that s. 3CA can be invoked by the parties by moving the appropriate Government to make the necessary reference under it. Experience showed that where awards or settlements were defective in the manner just indicated, there was no remedy available to the parties to have their doubts or difficulties resolved and that remedy is now provided by s. 36A. But the scope-of s. 36A .is different from the scope of s. 33C (2), because s. 36A is not concerned with the implemention or execution of the award at all, whereas that is the sole purpose of s. 33C (2). Whereas s. 33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, s. 36A deals merely with a question of interpretation of the award where a .dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under s. 36A.Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his` existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under s. 33C (2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under s. 33C (2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workmans rightis true that the Imperial Bank of India adopted the nomenclature of adding machine operators for its Comptists and that may presumably be for the reason. that at the relevant time, its Comptists were doing the work of adding machine operators and Ad- dressographers; so that it made no difference whether the bank called them Comptists or adding machine operators or Addressographers, all the three types of work being entrusted to one category of employees; but however that may be, the nomenclature adopted by the Imperial Bank of India cannot be said to be binding on the other banks which did not adopt it, and so, it is obviously erroneous to hold that the equivalent adopted by the Imperial Bank of India must be taken to have been adopted by all the other banks. Indeed, the Award recently made by Mr. Justice Desai who was appointed the National Industrial Tribunal in the Bank Disputes clearly brings out the distinction between Comptists on the one hand, and adding machine operators, addressographers and photostat machine operators on the other in paragraphs 5. 242 and 5. 265.In the present appeals, no evidence was led on behalf of the respondents. The appellant, however, examined its officer Mr. Shivodkar. This witness stated that an adding machine can be operated by a clerk with half an hours practice. It only does additions mechanically. Operating a comptometer, however, involves complicated calculations and in order to handle it efficiently, the employee has to take three months training and practising. He added that about two hours work is put on the adding machine by the several respondents, but it is included in their normal working hours. There has been some discussion at the Bar in the present appeals as to the nature of the work which is done on the comptometer and on the adding machine, but there can be no doubt that compared to the comptometer, the adding machine is a simple mechanism and for operating on it, not much experience or technical training is required; in fact, it may not even require that amount of skill and efficiency which is expected of a typist and it is significant that a claim made by the typists for special allowance was rejected by the Sastry Tribunal. That shows how the respondents claim for special allowance as Comptists solely on the ground that they can be described as adding machine operators, cannot be sustained. Therefore, -the sole basis on which the respondents claim has been allowed by the Labour Court is unsound, and so the order passed by it cannot be affirmed.We would, therefore, set aside the order passed by the Labour Court and remand the proceedings to that Court with a direction that it should allow the parties to amend their pleadings if they so desire and to lead evidence in support of their respective cases. It may be open to the respondents to prove that they are doing the work which may be properly described as the work of Comptists. In that connection, it may also be open to them incidentally to show that the work which was being done in the Imperial Bank of India by the adding machine operators who were shown as equivalents of the Comptists at the relevant time is being done by them in the appellants branches. If the Labour Court is satisfied that the work done by the respondents can be reasonably treated as the work of Comptists as properly understood in the banking industry, then it should proceed to determine the respondents claim on that basis. We have already referred to the fact that the Labour Appellate Tribunal made it perfectly clear that the particular nomenclature was not decisive and that what mattered in these cases was the nature of the duties and responsibilities of a post. If the nature of the duties and responsibilities of the posts held by the respondents legitimately Justify the conclusion that they are comptists, then the special allowance can be claimed by them. It is in the light of these observations that the Labour Court should proceed to deal with these cases after remand. If the parties want to amend their pleadings, they should move the Labour Court in that behalf within a fortnight after the receipt of the record in that Court. Then the Labour Court should fix an early date for taking evidence and should deal with these matters as expeditiously as possible. | 1 | 7,988 | 1,908 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
of adding machine operators for its Comptists and that may presumably be for the reason. that at the relevant time, its Comptists were doing the work of adding machine operators and Ad- dressographers; so that it made no difference whether the bank called them Comptists or adding machine operators or Addressographers, all the three types of work being entrusted to one category of employees; but however that may be, the nomenclature adopted by the Imperial Bank of India cannot be said to be binding on the other banks which did not adopt it, and so, it is obviously erroneous to hold that the equivalent adopted by the Imperial Bank of India must be taken to have been adopted by all the other banks. Indeed, the Award recently made by Mr. Justice Desai who was appointed the National Industrial Tribunal in the Bank Disputes clearly brings out the distinction between Comptists on the one hand, and adding machine operators, addressographers and photostat machine operators on the other in paragraphs 5. 242 and 5. 265.In the present appeals, no evidence was led on behalf of the respondents. The appellant, however, examined its officer Mr. Shivodkar. This witness stated that an adding machine can be operated by a clerk with half an hours practice. It only does additions mechanically. Operating a comptometer, however, involves complicated calculations and in order to handle it efficiently, the employee has to take three months training and practising. He added that about two hours work is put on the adding machine by the several respondents, but it is included in their normal working hours. There has been some discussion at the Bar in the present appeals as to the nature of the work which is done on the comptometer and on the adding machine, but there can be no doubt that compared to the comptometer, the adding machine is a simple mechanism and for operating on it, not much experience or technical training is required; in fact, it may not even require that amount of skill and efficiency which is expected of a typist and it is significant that a claim made by the typists for special allowance was rejected by the Sastry Tribunal. That shows how the respondents claim for special allowance as Comptists solely on the ground that they can be described as adding machine operators, cannot be sustained. Therefore, -the sole basis on which the respondents claim has been allowed by the Labour Court is unsound, and so the order passed by it cannot be affirmed.16. It has, however, been urged before us by the respondents that they should be given an opportunity to substantiate their claims on the merits. It is argued that they were advised that the equivalent supplied by the Imperial Bank of India by itself furnished a firm basis for their claims, and so, no other allegations were made by them in the present proceedings and no evidence was led by them to prove the nature of the work done by them and the e for which they do the special kind of work to justify the claim for special allowance. On the other hand, the appellant has strenuously contended that the delay made by the respondents in making the present applications speaks for itself, and so, no indulgence should be shown to the respondents for remanding the present cases to the Labour Court once it is found that the basis on which the claim has been allowed is not justified in law. It is true that though the Sastry ward was passed in 1953 and the Labour Appellate Tribunals decision was pronounced in 1954 and it became final on October 21, 1955, the respondents did not make their claims until 1962. We have had occasion in the past to emphasise the fact that industrial adjudication should not encourage unduly belated claims; but on the other hand, no limitation is prescribed for an application under s. 33C(2) and it would, on the whole, not be right for us to refuse an opportunity to the respondents to prove their case only on the ground that they moved the Labour Court after considerable delay. We would, therefore, set aside the order passed by the Labour Court and remand the proceedings to that Court with a direction that it should allow the parties to amend their pleadings if they so desire and to lead evidence in support of their respective cases. It may be open to the respondents to prove that they are doing the work which may be properly described as the work of Comptists. In that connection, it may also be open to them incidentally to show that the work which was being done in the Imperial Bank of India by the adding machine operators who were shown as equivalents of the Comptists at the relevant time is being done by them in the appellants branches. If the Labour Court is satisfied that the work done by the respondents can be reasonably treated as the work of Comptists as properly understood in the banking industry, then it should proceed to determine the respondents claim on that basis. We have already referred to the fact that the Labour Appellate Tribunal made it perfectly clear that the particular nomenclature was not decisive and that what mattered in these cases was the nature of the duties and responsibilities of a post. If the nature of the duties and responsibilities of the posts held by the respondents legitimately Justify the conclusion that they are comptists, then the special allowance can be claimed by them. It is in the light of these observations that the Labour Court should proceed to deal with these cases after remand. If the parties want to amend their pleadings, they should move the Labour Court in that behalf within a fortnight after the receipt of the record in that Court. Then the Labour Court should fix an early date for taking evidence and should deal with these matters as expeditiously as possible.The
### Response:
1
### Explanation:
s. 36A .is different from the scope of s. 33C (2), because s. 36A is not concerned with the implemention or execution of the award at all, whereas that is the sole purpose of s. 33C (2). Whereas s. 33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, s. 36A deals merely with a question of interpretation of the award where a .dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under s. 36A.Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his` existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go behind the decree, nor can it add to or subtract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman bases his claim under s. 33C (2). Therefore, we feel no difficulty in holding that for the purpose of making the necessary determination under s. 33C (2), it would, in appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workmans rightis true that the Imperial Bank of India adopted the nomenclature of adding machine operators for its Comptists and that may presumably be for the reason. that at the relevant time, its Comptists were doing the work of adding machine operators and Ad- dressographers; so that it made no difference whether the bank called them Comptists or adding machine operators or Addressographers, all the three types of work being entrusted to one category of employees; but however that may be, the nomenclature adopted by the Imperial Bank of India cannot be said to be binding on the other banks which did not adopt it, and so, it is obviously erroneous to hold that the equivalent adopted by the Imperial Bank of India must be taken to have been adopted by all the other banks. Indeed, the Award recently made by Mr. Justice Desai who was appointed the National Industrial Tribunal in the Bank Disputes clearly brings out the distinction between Comptists on the one hand, and adding machine operators, addressographers and photostat machine operators on the other in paragraphs 5. 242 and 5. 265.In the present appeals, no evidence was led on behalf of the respondents. The appellant, however, examined its officer Mr. Shivodkar. This witness stated that an adding machine can be operated by a clerk with half an hours practice. It only does additions mechanically. Operating a comptometer, however, involves complicated calculations and in order to handle it efficiently, the employee has to take three months training and practising. He added that about two hours work is put on the adding machine by the several respondents, but it is included in their normal working hours. There has been some discussion at the Bar in the present appeals as to the nature of the work which is done on the comptometer and on the adding machine, but there can be no doubt that compared to the comptometer, the adding machine is a simple mechanism and for operating on it, not much experience or technical training is required; in fact, it may not even require that amount of skill and efficiency which is expected of a typist and it is significant that a claim made by the typists for special allowance was rejected by the Sastry Tribunal. That shows how the respondents claim for special allowance as Comptists solely on the ground that they can be described as adding machine operators, cannot be sustained. Therefore, -the sole basis on which the respondents claim has been allowed by the Labour Court is unsound, and so the order passed by it cannot be affirmed.We would, therefore, set aside the order passed by the Labour Court and remand the proceedings to that Court with a direction that it should allow the parties to amend their pleadings if they so desire and to lead evidence in support of their respective cases. It may be open to the respondents to prove that they are doing the work which may be properly described as the work of Comptists. In that connection, it may also be open to them incidentally to show that the work which was being done in the Imperial Bank of India by the adding machine operators who were shown as equivalents of the Comptists at the relevant time is being done by them in the appellants branches. If the Labour Court is satisfied that the work done by the respondents can be reasonably treated as the work of Comptists as properly understood in the banking industry, then it should proceed to determine the respondents claim on that basis. We have already referred to the fact that the Labour Appellate Tribunal made it perfectly clear that the particular nomenclature was not decisive and that what mattered in these cases was the nature of the duties and responsibilities of a post. If the nature of the duties and responsibilities of the posts held by the respondents legitimately Justify the conclusion that they are comptists, then the special allowance can be claimed by them. It is in the light of these observations that the Labour Court should proceed to deal with these cases after remand. If the parties want to amend their pleadings, they should move the Labour Court in that behalf within a fortnight after the receipt of the record in that Court. Then the Labour Court should fix an early date for taking evidence and should deal with these matters as expeditiously as possible.
|
Manohar Lal Vs. The State Of Punjab | and that it was unduly and unnecessarily restrictive of his freedom to carry on a lawful trade or business, otherwise in accordance with law, as he thought best and in a manner or mode most convenient or profitable. 4. We are clearly of the opinion that the submissions of the learned Counsel should be repelled. The long title of the Act extracted earlier and on which learned Counsel placed considerable reliance as a guide for the determination of the scope of the Act and the policy underlying the legislation, no doubt, indicates the main purposes of the enactment but cannot, obviously, control the express operative provisions of the Act such as for example the terms of S. 7(1).Nor is the learned Counsel right in his argument that the terms of S. 7(1) are irrelevant to secure the purposes or to subserve the underlying policy of the Act. The ratio of the legislation is social interest in the health of the worker who forms an essential part of the community and in whose welfare, therefore, the community is vitally interested. It is in the light of this purpose that the provisions of the Act have to be scrutinized. Thus, S. 3 which lays down the restrictions subject to which alone young persons, defined as those under the age of 14, could be employed in any shop or commercial establishment, is obviously with a view to ensuring the health of the rising generation of citizens. Section 4 is concerned with imposing restrictions regarding the hours of work which might be extracted from workers other than young persons. Section 4(1) enacts : Subject to the provisions of this Act, no person shall be employed about the business of a shop or commercial establishment for more than the normal maximum working hours, that is to say, fifty-four hours in any one week and ten hours in any one day. bringing the law in India as respects maximum working hours in line with the norms suggested by the International Labour Convention. Sub-cls. (4) and (5) of this section are of some relevance to the matter now under consideration : (4) No person who has to the knowledge of the occupier of a shop or commercial establishment been previously employed on any day in a factory shall be employed on that day about the business of the shop or commercial establishment for a longer period than will, together with the time during which he has been previously employed on that day in the factory, complete the number of hours permitted by this Act. (5) No person shall work about the business of a shop or commercial establishment or two or more shops or commercial establishments or a shop or commercial establishment and a factory in excess of the period during which he may be lawfully employed under this Act. 5. It will be seen that while under sub-cl. (4) employers are injuncted from employing persons who had already worked for the maximum number of permitted hours in another establishment, sub-cl. (5) lays an embargo on the worker himself from injuring his health by overwork in an endeavour to earn more. From this it would be apparent that the Act is concerned-and properly concerned-with the welfare of the worker and seeks to prevent injury to it, not merely from the action of the employer but from his own. In other words, the worker is prevented from attempting to earn more wages by working longer hours than is good for him. If such a condition is necessary or proper in the case of a worker, there does not seem to be anything unreasonable in applying the same or similar principles to the employer who works on his own business. The learned Judges of the High Court have rested their decision on this part of the case on the reasoning that the terms of the impugned section might be justified on the ground that it is designed in the interest of the owner of the shop or establishment himself and that his health and welfare is a matter of interest not only to himself but to the general public. The legislation is in effect the exercise of social control over the manner in which business should be carried on-regulated in the interests of the health and welfare not merely of those employed in it but of all those engaged in it. A restriction imposed with a view to secure this purpose would, in our opinion, be clearly saved by Art. 19(6). 6. Apart from this, the constitutionality of the impugned provision might be sustained on another ground also, viz., with a view to avoid evasion of provisions specifically designed for the protection of workmen employed. It may be pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will not stamp a law otherwise valid as within legislative competence with the character of unconstitutionality as being unreasonable. The provisions could, therefore, be justified as for securing administrative convenience and for the proper enforcement of it without evasion. As pointed out by this Court in Manohar Lal v. The State, 1951 SCR 671 at p. 675 : (AIR 1951 SC 315 at p. 316) (when the appellant challenged the validity of this identical provision but on other grounds) : The legislature may have felt it necessary, in order to reduce the possibilities of evasion to a minimum, to encroach upon the liberties of those who would not otherwise have been affected..........To require a shopkeeper, who employs one or two men, to close and permit his rival, who employs perhaps a dozen member of his family, to remain open, clearly places the former at a grave commercial disadvantage. To permit such a distinction might well engender discontent and in the end react upon the relations between employer and employed. | 0[ds]6. Apart from this, the constitutionality of the impugned provision might be sustained on another ground also, viz., with a view to avoid evasion of provisions specifically designed for the protection of workmen employed. It may be pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will not stamp a law otherwise valid as within legislative competence with the character of unconstitutionality as being unreasonable. The provisions could, therefore, be justified as for securing administrative convenience and for the proper enforcement of it without evasion. | 0 | 1,847 | 133 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
and that it was unduly and unnecessarily restrictive of his freedom to carry on a lawful trade or business, otherwise in accordance with law, as he thought best and in a manner or mode most convenient or profitable. 4. We are clearly of the opinion that the submissions of the learned Counsel should be repelled. The long title of the Act extracted earlier and on which learned Counsel placed considerable reliance as a guide for the determination of the scope of the Act and the policy underlying the legislation, no doubt, indicates the main purposes of the enactment but cannot, obviously, control the express operative provisions of the Act such as for example the terms of S. 7(1).Nor is the learned Counsel right in his argument that the terms of S. 7(1) are irrelevant to secure the purposes or to subserve the underlying policy of the Act. The ratio of the legislation is social interest in the health of the worker who forms an essential part of the community and in whose welfare, therefore, the community is vitally interested. It is in the light of this purpose that the provisions of the Act have to be scrutinized. Thus, S. 3 which lays down the restrictions subject to which alone young persons, defined as those under the age of 14, could be employed in any shop or commercial establishment, is obviously with a view to ensuring the health of the rising generation of citizens. Section 4 is concerned with imposing restrictions regarding the hours of work which might be extracted from workers other than young persons. Section 4(1) enacts : Subject to the provisions of this Act, no person shall be employed about the business of a shop or commercial establishment for more than the normal maximum working hours, that is to say, fifty-four hours in any one week and ten hours in any one day. bringing the law in India as respects maximum working hours in line with the norms suggested by the International Labour Convention. Sub-cls. (4) and (5) of this section are of some relevance to the matter now under consideration : (4) No person who has to the knowledge of the occupier of a shop or commercial establishment been previously employed on any day in a factory shall be employed on that day about the business of the shop or commercial establishment for a longer period than will, together with the time during which he has been previously employed on that day in the factory, complete the number of hours permitted by this Act. (5) No person shall work about the business of a shop or commercial establishment or two or more shops or commercial establishments or a shop or commercial establishment and a factory in excess of the period during which he may be lawfully employed under this Act. 5. It will be seen that while under sub-cl. (4) employers are injuncted from employing persons who had already worked for the maximum number of permitted hours in another establishment, sub-cl. (5) lays an embargo on the worker himself from injuring his health by overwork in an endeavour to earn more. From this it would be apparent that the Act is concerned-and properly concerned-with the welfare of the worker and seeks to prevent injury to it, not merely from the action of the employer but from his own. In other words, the worker is prevented from attempting to earn more wages by working longer hours than is good for him. If such a condition is necessary or proper in the case of a worker, there does not seem to be anything unreasonable in applying the same or similar principles to the employer who works on his own business. The learned Judges of the High Court have rested their decision on this part of the case on the reasoning that the terms of the impugned section might be justified on the ground that it is designed in the interest of the owner of the shop or establishment himself and that his health and welfare is a matter of interest not only to himself but to the general public. The legislation is in effect the exercise of social control over the manner in which business should be carried on-regulated in the interests of the health and welfare not merely of those employed in it but of all those engaged in it. A restriction imposed with a view to secure this purpose would, in our opinion, be clearly saved by Art. 19(6). 6. Apart from this, the constitutionality of the impugned provision might be sustained on another ground also, viz., with a view to avoid evasion of provisions specifically designed for the protection of workmen employed. It may be pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will not stamp a law otherwise valid as within legislative competence with the character of unconstitutionality as being unreasonable. The provisions could, therefore, be justified as for securing administrative convenience and for the proper enforcement of it without evasion. As pointed out by this Court in Manohar Lal v. The State, 1951 SCR 671 at p. 675 : (AIR 1951 SC 315 at p. 316) (when the appellant challenged the validity of this identical provision but on other grounds) : The legislature may have felt it necessary, in order to reduce the possibilities of evasion to a minimum, to encroach upon the liberties of those who would not otherwise have been affected..........To require a shopkeeper, who employs one or two men, to close and permit his rival, who employs perhaps a dozen member of his family, to remain open, clearly places the former at a grave commercial disadvantage. To permit such a distinction might well engender discontent and in the end react upon the relations between employer and employed.
### Response:
0
### Explanation:
6. Apart from this, the constitutionality of the impugned provision might be sustained on another ground also, viz., with a view to avoid evasion of provisions specifically designed for the protection of workmen employed. It may be pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will not stamp a law otherwise valid as within legislative competence with the character of unconstitutionality as being unreasonable. The provisions could, therefore, be justified as for securing administrative convenience and for the proper enforcement of it without evasion.
|
Accra Investments Private Limited Vs. The Income Tax Officer, Range-3(1)(1) | book value cannot be itself lead to the conclusion that the purchase was not in the nature of investment. It is a well known global phenomena that investors purchase shares of loss making companies because in their perception the company has inherent potential to do well either on account of its business model or on account of the management of the company. The potential perception is unique to each investor and there cannot be any universal yard stick to determine whether such perception was justified or not. In any case the other two subscribers in the shares of M/s. MABL had subscribed at the price of Rs.87.95 per share (S&N) and Rs.35.83 per share (UB) itself evidences the fact that others had also perceived great investment opportunity in the business of M/s. MABL The submission on behalf of the revenue that this particular argument with regard to investment being made by other two subscribers at a higher price was not brought to the notice of the Tribunal during the hearing, though not disputing that the same was part of the record and proceeding before the Tribunal. The analogy drawn on the basis of the explanation under Section 147 of the Act may not be a proper analogy. In any view of the matter, it is not necessary to resolve the above issue as the respondent revenue do not deny/dispute before us that the shares were subscribed to by S&N at Rs.87.95 per share and by UB at Rs.35.83 per share. Therefore, the fact that other share holders have subscribed at higher price is an undisputed position. This would also establish that perception of the potential of the M/s. MABL on the part of the appellant was not solitary and unique. To our mind even if the perception of the appellant was solitary and unique, it would make no difference.17) Be that as it may, even if the price at which the shares were subscribed to were higher than its book value that again by itself would not lead to the conclusion that in such cases purchase has been done not by investor in share but by trader in shares. On the contrary the investor in shares would in the normal course hold shares for a longer period of time even in liquor business (though not affected by business cycle prevailing in most of the industries) as time would be taken to establish a place in the market. Therefore, the scrip may become profitable over a period of time. In contrast a trader in shares normally holds shares for a shorter period of time and looks for quick returns. In such circumstances, he is less likely to purchase share at price higher than the market value and in case of unquoted shares at a price higher than its book value. Therefore, test applied by the Tribunal in the impugned order to hold that subscription of 20% shares in M/s. MABL at a higher price then the book value of the equity shares to conclude that the appellant is a trader, is perverse.18) Similarly the finding in the impugned order that because the shares were subscribed to by the appellant from borrowed funds the subscription/ purchase of shares cannot be said to be an investment, is perverse. In the facts of this case, the appellant had borrowed funds from an outside source ( that is not from group companies) only for a period of 12 days without interest. Thereafter, the appellant had sourced its funds by subscription of its shares by its group company one Feedback Computers Ltd. in which substantial share holder to the extent of 83.93% was one Mr. R.K. Jain who holds 99.99% shares in the appellant company. Moreover, whether or not a particular purchase/subscription to shares was for the purpose of doing business or for purpose of investment cannot be determined on the basis of whether the amount required for the purchase of the same was borrowed or self generated funds. It is well known that capital assets, at times are acquired out of borrowed funds and the distinction between capital assets and stock in trade is not on the basis of source of funds i.e. borrowed funds or self generated funds but on the basis of assets itself and for the period for which it is held before the same is traded/sold. Thus, the finding of the Tribunal that the subscription to the extent to 20% in the equity shares of M/s. MABL was for trading in shares because the payment was not out of its own funds, is perverse.19) Similarly, the impugned order holds that though the appellant had right to appoint its nominee as a Manager of M/s. MABL yet the nominee could not exercise authority as a Manager on his own but had to do so in consultation with others and therefore was not the Manager. Consequently, the conclusion by the Tribunal that no amount was paid while subscribing for the shares to enjoy the rights of Manager of M/s. MABL. Merely because the appellants nominee acts as Managing Director of M/s. MABL and such function of Managing Director as a Manager has to be discharged in consultation with others does not denude the Manager of its authority and function as a Manager. It is axiomatic that no Manager in any field of business activity enjoys on absolute and unfettered rights to manage his business without having to consult others. Therefore, the finding in the impugned order that because the appellant nominee has no absolute right to manage M/s. MABL as it desires, it must follow that the appellant has no right as a Manager of M/s. MABL, is perverse.20) We shall now answer the two substantial questions of law which were admitted for our consideration as under:-Question No.1 – In the negative i. e. in favor of the appellant – assesses and against the revenue.Question No.2 – In the affirmative i. e. in favor of the appellant – assessee and against the revenue. | 1[ds]15) Therefore, taking all the cumulative factors including the decision of the Supreme Court in Ramnarain Sons (P) Ltd. (supra) the impugned order was incorrect in holding that 20% shares of M/s. MABL subscribed to by the appellant was stock in trade of the appellant and not its capital asset, as contended by the revenue.16) So far as question No.2 is concerned, the impugned order proceeds on the basis that 20% of the equity shares, which were subscribed to by the appellant in M/s. MABL at a price much higher than its book value which was Nil and out of borrowed funds would by itself indicate that the subscription made by the appellant was not as an investment but as a trader in shares. This finding of the Tribunal is perverse for the reason that purchase of shares at a price higher than book value cannot be itself lead to the conclusion that the purchase was not in the nature of investment. It is a well known global phenomena that investors purchase shares of loss making companies because in their perception the company has inherent potential to do well either on account of its business model or on account of the management of the company. The potential perception is unique to each investor and there cannot be any universal yard stick to determine whether such perception was justified or not. In any case the other two subscribers in the shares of M/s. MABL had subscribed at the price of Rs.87.95 per share (S&N) and Rs.35.83 per share (UB) itself evidences the fact that others had also perceived great investment opportunity in the business of M/s. MABL The submission on behalf of the revenue that this particular argument with regard to investment being made by other two subscribers at a higher price was not brought to the notice of the Tribunal during the hearing, though not disputing that the same was part of the record and proceeding before the Tribunal. The analogy drawn on the basis of the explanation under Section 147 of the Act may not be a proper analogy. In any view of the matter, it is not necessary to resolve the above issue as the respondent revenue do not deny/dispute before us that the shares were subscribed to by S&N at Rs.87.95 per share and by UB at Rs.35.83 per share. Therefore, the fact that other share holders have subscribed at higher price is an undisputed position. This would also establish that perception of the potential of the M/s. MABL on the part of the appellant was not solitary and unique. To our mind even if the perception of the appellant was solitary and unique, it would make no difference.17) Be that as it may, even if the price at which the shares were subscribed to were higher than its book value that again by itself would not lead to the conclusion that in such cases purchase has been done not by investor in share but by trader in shares. On the contrary the investor in shares would in the normal course hold shares for a longer period of time even in liquor business (though not affected by business cycle prevailing in most of the industries) as time would be taken to establish a place in the market. Therefore, the scrip may become profitable over a period of time. In contrast a trader in shares normally holds shares for a shorter period of time and looks for quick returns. In such circumstances, he is less likely to purchase share at price higher than the market value and in case of unquoted shares at a price higher than its book value. Therefore, test applied by the Tribunal in the impugned order to hold that subscription of 20% shares in M/s. MABL at a higher price then the book value of the equity shares to conclude that the appellant is a trader, is perverse.18) Similarly the finding in the impugned order that because the shares were subscribed to by the appellant from borrowed funds the subscription/ purchase of shares cannot be said to be an investment, is perverse. In the facts of this case, the appellant had borrowed funds from an outside source ( that is not from group companies) only for a period of 12 days without interest. Thereafter, the appellant had sourced its funds by subscription of its shares by its group company one Feedback Computers Ltd. in which substantial share holder to the extent of 83.93% was one Mr. R.K. Jain who holds 99.99% shares in the appellant company. Moreover, whether or not a particular purchase/subscription to shares was for the purpose of doing business or for purpose of investment cannot be determined on the basis of whether the amount required for the purchase of the same was borrowed or self generated funds. It is well known that capital assets, at times are acquired out of borrowed funds and the distinction between capital assets and stock in trade is not on the basis of source of funds i.e. borrowed funds or self generated funds but on the basis of assets itself and for the period for which it is held before the same is traded/sold. Thus, the finding of the Tribunal that the subscription to the extent to 20% in the equity shares of M/s. MABL was for trading in shares because the payment was not out of its own funds, is perverse.19) Similarly, the impugned order holds that though the appellant had right to appoint its nominee as a Manager of M/s. MABL yet the nominee could not exercise authority as a Manager on his own but had to do so in consultation with others and therefore was not the Manager. Consequently, the conclusion by the Tribunal that no amount was paid while subscribing for the shares to enjoy the rights of Manager of M/s. MABL. Merely because the appellants nominee acts as Managing Director of M/s. MABL and such function of Managing Director as a Manager has to be discharged in consultation with others does not denude the Manager of its authority and function as a Manager. It is axiomatic that no Manager in any field of business activity enjoys on absolute and unfettered rights to manage his business without having to consult others. Therefore, the finding in the impugned order that because the appellant nominee has no absolute right to manage M/s. MABL as it desires, it must follow that the appellant has no right as a Manager of M/s. MABL, is perverse.20) We shall now answer the two substantial questions of law which were admitted for our consideration asNo.1 – In the negative i. e. in favor of the appellant – assesses and against the revenue.Question No.2 – In the affirmative i. e. in favor of the appellant – assessee and against the revenue. | 1 | 5,789 | 1,238 | ### 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:
book value cannot be itself lead to the conclusion that the purchase was not in the nature of investment. It is a well known global phenomena that investors purchase shares of loss making companies because in their perception the company has inherent potential to do well either on account of its business model or on account of the management of the company. The potential perception is unique to each investor and there cannot be any universal yard stick to determine whether such perception was justified or not. In any case the other two subscribers in the shares of M/s. MABL had subscribed at the price of Rs.87.95 per share (S&N) and Rs.35.83 per share (UB) itself evidences the fact that others had also perceived great investment opportunity in the business of M/s. MABL The submission on behalf of the revenue that this particular argument with regard to investment being made by other two subscribers at a higher price was not brought to the notice of the Tribunal during the hearing, though not disputing that the same was part of the record and proceeding before the Tribunal. The analogy drawn on the basis of the explanation under Section 147 of the Act may not be a proper analogy. In any view of the matter, it is not necessary to resolve the above issue as the respondent revenue do not deny/dispute before us that the shares were subscribed to by S&N at Rs.87.95 per share and by UB at Rs.35.83 per share. Therefore, the fact that other share holders have subscribed at higher price is an undisputed position. This would also establish that perception of the potential of the M/s. MABL on the part of the appellant was not solitary and unique. To our mind even if the perception of the appellant was solitary and unique, it would make no difference.17) Be that as it may, even if the price at which the shares were subscribed to were higher than its book value that again by itself would not lead to the conclusion that in such cases purchase has been done not by investor in share but by trader in shares. On the contrary the investor in shares would in the normal course hold shares for a longer period of time even in liquor business (though not affected by business cycle prevailing in most of the industries) as time would be taken to establish a place in the market. Therefore, the scrip may become profitable over a period of time. In contrast a trader in shares normally holds shares for a shorter period of time and looks for quick returns. In such circumstances, he is less likely to purchase share at price higher than the market value and in case of unquoted shares at a price higher than its book value. Therefore, test applied by the Tribunal in the impugned order to hold that subscription of 20% shares in M/s. MABL at a higher price then the book value of the equity shares to conclude that the appellant is a trader, is perverse.18) Similarly the finding in the impugned order that because the shares were subscribed to by the appellant from borrowed funds the subscription/ purchase of shares cannot be said to be an investment, is perverse. In the facts of this case, the appellant had borrowed funds from an outside source ( that is not from group companies) only for a period of 12 days without interest. Thereafter, the appellant had sourced its funds by subscription of its shares by its group company one Feedback Computers Ltd. in which substantial share holder to the extent of 83.93% was one Mr. R.K. Jain who holds 99.99% shares in the appellant company. Moreover, whether or not a particular purchase/subscription to shares was for the purpose of doing business or for purpose of investment cannot be determined on the basis of whether the amount required for the purchase of the same was borrowed or self generated funds. It is well known that capital assets, at times are acquired out of borrowed funds and the distinction between capital assets and stock in trade is not on the basis of source of funds i.e. borrowed funds or self generated funds but on the basis of assets itself and for the period for which it is held before the same is traded/sold. Thus, the finding of the Tribunal that the subscription to the extent to 20% in the equity shares of M/s. MABL was for trading in shares because the payment was not out of its own funds, is perverse.19) Similarly, the impugned order holds that though the appellant had right to appoint its nominee as a Manager of M/s. MABL yet the nominee could not exercise authority as a Manager on his own but had to do so in consultation with others and therefore was not the Manager. Consequently, the conclusion by the Tribunal that no amount was paid while subscribing for the shares to enjoy the rights of Manager of M/s. MABL. Merely because the appellants nominee acts as Managing Director of M/s. MABL and such function of Managing Director as a Manager has to be discharged in consultation with others does not denude the Manager of its authority and function as a Manager. It is axiomatic that no Manager in any field of business activity enjoys on absolute and unfettered rights to manage his business without having to consult others. Therefore, the finding in the impugned order that because the appellant nominee has no absolute right to manage M/s. MABL as it desires, it must follow that the appellant has no right as a Manager of M/s. MABL, is perverse.20) We shall now answer the two substantial questions of law which were admitted for our consideration as under:-Question No.1 – In the negative i. e. in favor of the appellant – assesses and against the revenue.Question No.2 – In the affirmative i. e. in favor of the appellant – assessee and against the revenue.
### Response:
1
### Explanation:
higher than book value cannot be itself lead to the conclusion that the purchase was not in the nature of investment. It is a well known global phenomena that investors purchase shares of loss making companies because in their perception the company has inherent potential to do well either on account of its business model or on account of the management of the company. The potential perception is unique to each investor and there cannot be any universal yard stick to determine whether such perception was justified or not. In any case the other two subscribers in the shares of M/s. MABL had subscribed at the price of Rs.87.95 per share (S&N) and Rs.35.83 per share (UB) itself evidences the fact that others had also perceived great investment opportunity in the business of M/s. MABL The submission on behalf of the revenue that this particular argument with regard to investment being made by other two subscribers at a higher price was not brought to the notice of the Tribunal during the hearing, though not disputing that the same was part of the record and proceeding before the Tribunal. The analogy drawn on the basis of the explanation under Section 147 of the Act may not be a proper analogy. In any view of the matter, it is not necessary to resolve the above issue as the respondent revenue do not deny/dispute before us that the shares were subscribed to by S&N at Rs.87.95 per share and by UB at Rs.35.83 per share. Therefore, the fact that other share holders have subscribed at higher price is an undisputed position. This would also establish that perception of the potential of the M/s. MABL on the part of the appellant was not solitary and unique. To our mind even if the perception of the appellant was solitary and unique, it would make no difference.17) Be that as it may, even if the price at which the shares were subscribed to were higher than its book value that again by itself would not lead to the conclusion that in such cases purchase has been done not by investor in share but by trader in shares. On the contrary the investor in shares would in the normal course hold shares for a longer period of time even in liquor business (though not affected by business cycle prevailing in most of the industries) as time would be taken to establish a place in the market. Therefore, the scrip may become profitable over a period of time. In contrast a trader in shares normally holds shares for a shorter period of time and looks for quick returns. In such circumstances, he is less likely to purchase share at price higher than the market value and in case of unquoted shares at a price higher than its book value. Therefore, test applied by the Tribunal in the impugned order to hold that subscription of 20% shares in M/s. MABL at a higher price then the book value of the equity shares to conclude that the appellant is a trader, is perverse.18) Similarly the finding in the impugned order that because the shares were subscribed to by the appellant from borrowed funds the subscription/ purchase of shares cannot be said to be an investment, is perverse. In the facts of this case, the appellant had borrowed funds from an outside source ( that is not from group companies) only for a period of 12 days without interest. Thereafter, the appellant had sourced its funds by subscription of its shares by its group company one Feedback Computers Ltd. in which substantial share holder to the extent of 83.93% was one Mr. R.K. Jain who holds 99.99% shares in the appellant company. Moreover, whether or not a particular purchase/subscription to shares was for the purpose of doing business or for purpose of investment cannot be determined on the basis of whether the amount required for the purchase of the same was borrowed or self generated funds. It is well known that capital assets, at times are acquired out of borrowed funds and the distinction between capital assets and stock in trade is not on the basis of source of funds i.e. borrowed funds or self generated funds but on the basis of assets itself and for the period for which it is held before the same is traded/sold. Thus, the finding of the Tribunal that the subscription to the extent to 20% in the equity shares of M/s. MABL was for trading in shares because the payment was not out of its own funds, is perverse.19) Similarly, the impugned order holds that though the appellant had right to appoint its nominee as a Manager of M/s. MABL yet the nominee could not exercise authority as a Manager on his own but had to do so in consultation with others and therefore was not the Manager. Consequently, the conclusion by the Tribunal that no amount was paid while subscribing for the shares to enjoy the rights of Manager of M/s. MABL. Merely because the appellants nominee acts as Managing Director of M/s. MABL and such function of Managing Director as a Manager has to be discharged in consultation with others does not denude the Manager of its authority and function as a Manager. It is axiomatic that no Manager in any field of business activity enjoys on absolute and unfettered rights to manage his business without having to consult others. Therefore, the finding in the impugned order that because the appellant nominee has no absolute right to manage M/s. MABL as it desires, it must follow that the appellant has no right as a Manager of M/s. MABL, is perverse.20) We shall now answer the two substantial questions of law which were admitted for our consideration asNo.1 – In the negative i. e. in favor of the appellant – assesses and against the revenue.Question No.2 – In the affirmative i. e. in favor of the appellant – assessee and against the revenue.
|
Pema Chibar Alias Preamabhai Chhibabhaitangal Vs. Union Of India And Others | continued that there was recognition of liabilities arising therefrom by the new sovereign. That is one aspect of the matter which in our opinion conclusively shows that the new sovereign did not recognise the rights arising from licences of the kind with which we are dealing in the present petition, and, therefore the petitioner would have no right under these licences for they were never recognised by the new sovereign. In this view of the matter, the petition must fail. 8. But this is not all. The Ordinance and the Act of 1962 on which the petitioner relies came into force from March 5, 1962. It is true that they provided for the continuance of old laws but that could only be from the date from which they came into force, i.e., from March 5, 1962. There was a period between December 20, 1961 and March 5, 1962 during which it cannot be said that the old laws necessarily continued so far as the rights and liabilities between the new subjects and the new sovereign were concerned. So far as such rights and liabilities are concerned, (we say nothing here as to the rights and liabilities between subjects and subjects under the old laws), the old laws were apparently not in force during this interregnum. That is why we find in S. 7 (1) of the Ordinance, a provision to the effect that all things done and all action taken (including any acts of executive authority, proceedings, decrees and sentences) in or with respect to Goa, Daman and Diu on or after the appointed day and before the commencement of this Ordinance, by the Administrator or any other officer of Government, whether civil or military or by any other person acting under the orders of the Administrator or such officer, which have been done or taken in good faith and in a reasonable belief that they were necessary for the peace and good Government of Goa, Daman and Diu, shall be as valid and operative as if they had been done or taken in accordance with law. Similarly we have a provision in S. 9(1) of the Act, which is in exactly the same terms.These provisions in our opinion show that as between the subjects and the new sovereign, the old laws did not continue during this interregnum and that is why things done and action taken by various authorities during this period were validated as if they had been done or taken in accordance with law. A doubt was raised as to the power of the Military Governor to issue a proclamation like the one he did on December 30, 1961, to which we have already referred. That doubt in our opinion is cleared by these provisions which make all such orders as if they had been made in accordance with law. The proclamation of December 30, 1961 which clearly showed what kind of import licences would be recognised must be held to be in accordance with law and that means that no imports were recognised except those covered by the proclamation. 9. Our attention is also drawn to certain other orders passed after March 5, 1962 in connection with imports. One such order was passed on April 2, 1962 which stated that imports into Goa. Daman and Diu from abroad will be governed by the following principles :- (1) in cases where letters of credit were opened with the Banco Nacional Ultramarino on or before 18th December 1961, or goods were shipped prior to 20th December 1961, imports will be allowed and the necessary foreign exchange provided. (2) * * * * (3) * * * * (4) * * * * It is, however, admitted on behalf of the petitioner that his case is not covered by even this order of April 2, 1962 and he cannot, therefore, use it as recognition of his right to import under these licences. 10. Then on April 11, 1962, another order was issued in the following terms :-"Notwithstanding anything contained in any decree notification, rule, etc., it is hereby directed that all goods imported into Goa, Daman and Diu from abroad by freight or post shall require a valid import licence." These orders, therefore, after Mach 5, 1962, also clearly show that there was no recognition at any stage of the kind of licences which the petitioner held from the former Portuguese Government. The petitioner, therefore, in view of all these facts and circumstances cannot rely on the fact that old laws were continued as from March 5, 1962; nor can he rely on the orders of April 2 and 11, 1962, for his case is not covered by them, even though these orders show some relation of the conditions as compared to the proclamation of December 30, 1961.Thus there was never any recognition of the right of the petitioner under the licences, which he held by the new sovereign. He is, therefore, not entitled to ask this Court to compel the Government of India to honour the licences in dispute in the present petition. 11. As for Regulation No. XII of 1962, that is also of no help to the petitioner. The laws repealed thereby (as between the sovereign and the subjects) were in force only from March 5, 1962. Section 4 (2) on which reliance is placed would have helped the petitioner if his licences had been granted on March 5, 1962 or thereafter. But as his licences are of a date even anterior to the acquisition of the Portuguese territories, S. 4 (2) of the Regulation cannot help him. The contention under this head must also be-rejected. 12. As to Art. 14, it is enough to say that it was for the petitioner to establish that there was discrimination in his case. He has completely failed to do so, for besides certain vague assertions in the petition, there is nothing to prove that other licenes were recognised in similar circumstances. The contention under Art. 14 must fail. | 0[ds]In the absence of such a provision it would not in our opinion be right to say that merely because the old laws were continued there was recognition of the liabilities of the old State by the new State. We have therefore come to the conclusion that merely because the old laws were continued, it cannot necessarily be inferred that the new State recognised and assumed all liabilities of the former State. On the other hand if we refer to the proclamation of the Military Governor of December 30, 1961, we immediately see that only certain types of imports to which we have already referred were recognised by the new State and not others.In the face of that proclamation of December 30, 1961, it would in our opinion be impossible to infer from the mere fact that the old laws were continued that there was recognition of liabilities arising therefrom by the new sovereign. That is one aspect of the matter which in our opinion conclusively shows that the new sovereign did not recognise the rights arising from licences of the kind with which we are dealing in the present petition, and, therefore the petitioner would have no right under these licences for they were never recognised by the new sovereign. In this view of the matter, the petition must failThese provisions in our opinion show that as between the subjects and the new sovereign, the old laws did not continue during this interregnum and that is why things done and action taken by various authorities during this period were validated as if they had been done or taken in accordance with law. A doubt was raised as to the power of the Military Governor to issue a proclamation like the one he did on December 30, 1961, to which we have already referred. That doubt in our opinion is cleared by these provisions which make all such orders as if they had been made in accordance with law. The proclamation of December 30, 1961 which clearly showed what kind of import licences would be recognised must be held to be in accordance with law and that means that no imports were recognised except those covered by the proclamationThe petitioner, therefore, in view of all these facts and circumstances cannot rely on the fact that old laws were continued as from March 5, 1962; nor can he rely on the orders of April 2 and 11, 1962, for his case is not covered by them, even though these orders show some relation of the conditions as compared to the proclamation of December 30, 1961.Thus there was never any recognition of the right of the petitioner under the licences, which he held by the new sovereign. He is, therefore, not entitled to ask this Court to compel the Government of India to honour the licences in dispute in the present petition11. As for Regulation No. XII of 1962, that is also of no help to the petitioner. The laws repealed thereby (as between the sovereign and the subjects) were in force only from March 5, 1962. Section 4 (2) on which reliance is placed would have helped the petitioner if his licences had been granted on March 5, 1962 or thereafter. But as his licences are of a date even anterior to the acquisition of the Portuguese territories, S. 4 (2) of the Regulation cannot help him. The contention under this head must also be-rejected12. As to Art. 14, it is enough to say that it was for the petitioner to establish that there was discrimination in his case. He has completely failed to do so, for besides certain vague assertions in the petition, there is nothing to prove that other licenes were recognised in similar circumstances. The contention under Art. 14 must fail. | 0 | 4,115 | 696 | ### 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:
continued that there was recognition of liabilities arising therefrom by the new sovereign. That is one aspect of the matter which in our opinion conclusively shows that the new sovereign did not recognise the rights arising from licences of the kind with which we are dealing in the present petition, and, therefore the petitioner would have no right under these licences for they were never recognised by the new sovereign. In this view of the matter, the petition must fail. 8. But this is not all. The Ordinance and the Act of 1962 on which the petitioner relies came into force from March 5, 1962. It is true that they provided for the continuance of old laws but that could only be from the date from which they came into force, i.e., from March 5, 1962. There was a period between December 20, 1961 and March 5, 1962 during which it cannot be said that the old laws necessarily continued so far as the rights and liabilities between the new subjects and the new sovereign were concerned. So far as such rights and liabilities are concerned, (we say nothing here as to the rights and liabilities between subjects and subjects under the old laws), the old laws were apparently not in force during this interregnum. That is why we find in S. 7 (1) of the Ordinance, a provision to the effect that all things done and all action taken (including any acts of executive authority, proceedings, decrees and sentences) in or with respect to Goa, Daman and Diu on or after the appointed day and before the commencement of this Ordinance, by the Administrator or any other officer of Government, whether civil or military or by any other person acting under the orders of the Administrator or such officer, which have been done or taken in good faith and in a reasonable belief that they were necessary for the peace and good Government of Goa, Daman and Diu, shall be as valid and operative as if they had been done or taken in accordance with law. Similarly we have a provision in S. 9(1) of the Act, which is in exactly the same terms.These provisions in our opinion show that as between the subjects and the new sovereign, the old laws did not continue during this interregnum and that is why things done and action taken by various authorities during this period were validated as if they had been done or taken in accordance with law. A doubt was raised as to the power of the Military Governor to issue a proclamation like the one he did on December 30, 1961, to which we have already referred. That doubt in our opinion is cleared by these provisions which make all such orders as if they had been made in accordance with law. The proclamation of December 30, 1961 which clearly showed what kind of import licences would be recognised must be held to be in accordance with law and that means that no imports were recognised except those covered by the proclamation. 9. Our attention is also drawn to certain other orders passed after March 5, 1962 in connection with imports. One such order was passed on April 2, 1962 which stated that imports into Goa. Daman and Diu from abroad will be governed by the following principles :- (1) in cases where letters of credit were opened with the Banco Nacional Ultramarino on or before 18th December 1961, or goods were shipped prior to 20th December 1961, imports will be allowed and the necessary foreign exchange provided. (2) * * * * (3) * * * * (4) * * * * It is, however, admitted on behalf of the petitioner that his case is not covered by even this order of April 2, 1962 and he cannot, therefore, use it as recognition of his right to import under these licences. 10. Then on April 11, 1962, another order was issued in the following terms :-"Notwithstanding anything contained in any decree notification, rule, etc., it is hereby directed that all goods imported into Goa, Daman and Diu from abroad by freight or post shall require a valid import licence." These orders, therefore, after Mach 5, 1962, also clearly show that there was no recognition at any stage of the kind of licences which the petitioner held from the former Portuguese Government. The petitioner, therefore, in view of all these facts and circumstances cannot rely on the fact that old laws were continued as from March 5, 1962; nor can he rely on the orders of April 2 and 11, 1962, for his case is not covered by them, even though these orders show some relation of the conditions as compared to the proclamation of December 30, 1961.Thus there was never any recognition of the right of the petitioner under the licences, which he held by the new sovereign. He is, therefore, not entitled to ask this Court to compel the Government of India to honour the licences in dispute in the present petition. 11. As for Regulation No. XII of 1962, that is also of no help to the petitioner. The laws repealed thereby (as between the sovereign and the subjects) were in force only from March 5, 1962. Section 4 (2) on which reliance is placed would have helped the petitioner if his licences had been granted on March 5, 1962 or thereafter. But as his licences are of a date even anterior to the acquisition of the Portuguese territories, S. 4 (2) of the Regulation cannot help him. The contention under this head must also be-rejected. 12. As to Art. 14, it is enough to say that it was for the petitioner to establish that there was discrimination in his case. He has completely failed to do so, for besides certain vague assertions in the petition, there is nothing to prove that other licenes were recognised in similar circumstances. The contention under Art. 14 must fail.
### Response:
0
### Explanation:
In the absence of such a provision it would not in our opinion be right to say that merely because the old laws were continued there was recognition of the liabilities of the old State by the new State. We have therefore come to the conclusion that merely because the old laws were continued, it cannot necessarily be inferred that the new State recognised and assumed all liabilities of the former State. On the other hand if we refer to the proclamation of the Military Governor of December 30, 1961, we immediately see that only certain types of imports to which we have already referred were recognised by the new State and not others.In the face of that proclamation of December 30, 1961, it would in our opinion be impossible to infer from the mere fact that the old laws were continued that there was recognition of liabilities arising therefrom by the new sovereign. That is one aspect of the matter which in our opinion conclusively shows that the new sovereign did not recognise the rights arising from licences of the kind with which we are dealing in the present petition, and, therefore the petitioner would have no right under these licences for they were never recognised by the new sovereign. In this view of the matter, the petition must failThese provisions in our opinion show that as between the subjects and the new sovereign, the old laws did not continue during this interregnum and that is why things done and action taken by various authorities during this period were validated as if they had been done or taken in accordance with law. A doubt was raised as to the power of the Military Governor to issue a proclamation like the one he did on December 30, 1961, to which we have already referred. That doubt in our opinion is cleared by these provisions which make all such orders as if they had been made in accordance with law. The proclamation of December 30, 1961 which clearly showed what kind of import licences would be recognised must be held to be in accordance with law and that means that no imports were recognised except those covered by the proclamationThe petitioner, therefore, in view of all these facts and circumstances cannot rely on the fact that old laws were continued as from March 5, 1962; nor can he rely on the orders of April 2 and 11, 1962, for his case is not covered by them, even though these orders show some relation of the conditions as compared to the proclamation of December 30, 1961.Thus there was never any recognition of the right of the petitioner under the licences, which he held by the new sovereign. He is, therefore, not entitled to ask this Court to compel the Government of India to honour the licences in dispute in the present petition11. As for Regulation No. XII of 1962, that is also of no help to the petitioner. The laws repealed thereby (as between the sovereign and the subjects) were in force only from March 5, 1962. Section 4 (2) on which reliance is placed would have helped the petitioner if his licences had been granted on March 5, 1962 or thereafter. But as his licences are of a date even anterior to the acquisition of the Portuguese territories, S. 4 (2) of the Regulation cannot help him. The contention under this head must also be-rejected12. As to Art. 14, it is enough to say that it was for the petitioner to establish that there was discrimination in his case. He has completely failed to do so, for besides certain vague assertions in the petition, there is nothing to prove that other licenes were recognised in similar circumstances. The contention under Art. 14 must fail.
|
R. M. D. Chamarbaugwalla Vs. The Union Of India(With Connected Petitions) | could not be enforced without re-writing it. The observation aforesaid must be read in the context of the particular provision which was under consideration. This really is nothing more than a decision on the severability of the particular provision which was impugned therein, and it is open to the same comment as the derision in 1950 S C R 594: (A I R 1950 S C 124) (I). That was also one of the decisions distinguished in 1951 SCR 682 : (A I R 1951 S C 318)(F). The resulting position may thus be stated:When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of the legislature or by reason of its provision contravening constitutional prohibitions. 24. That being the position in law, it is now necessary to consider whether the impugned provisions are severable in their application to competitions of a gambling character, assuming of course that the definition of prize competition in S. 2 (d) is wide enough to include also competitions involving skill to a substantial degree.It will be useful for the determination of this question to refer to certain rules of construction laid down by the American Courts, where the question of severability has been the subject of consideration in numerous authorities. They may be summarised as follows: 1.In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, vol. 82, p. 156; Sutherland on Statutory Construction, vol. 2 pp. 176 -177. 2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooleys Constitutional Limitations, vo1. at pp. 360-361; Crawford on Statutory Construction, pp. 217 - 218. 3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on statutory Construction, pp. 218 -219. 4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety. 5. The separability of the valid and invalid provisions of a statute does not depend on whether the law as enacted in the same section or different section; (Vide Cooleys Constitutional Limitations, vol. 1, pp. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein. 6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, vol. 2, p. 194. 7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, vol. 2, pp. 177-178. 25. Applying these principles to the present Act, it will not be questioned that competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend, form two distinct and separate categories. The difference between the two classes of competitions is as clear-cut as that between commercial and wagering contracts. On the facts there might be difficulty in deciding whether a given competitions falls within one category or not; but when its true character is determined, it must fail either under the one or the other. The distinction between the two classes of competitions has long been recognised in the legislative practice of both the United Kingdom and this country, and the Courts have, time and again, pointed out the characteristic features which differentiate them. And if we are now to ask ourselves the question would Parliament have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what our answer would be. Nor does the restriction of the impugned provisions to competitions of a gambling character affect either the texture or the colour of the Act; nor do the provisions require to be touched and re-written before they could be applied to them. They will squarely apply to them on their own terms and in their true spirit, and form a code complete in themselves with reference to the subject.The conclusion is therefore inescapable that the impugned provisions, assuming that they apply by virtue of the definition in S. 2 (d) to all kinds of competitions, are severable in their application to competitions in which success does not depend to any substantial extent on skill. 26. | 0[ds].In our judgment in that appeal, we have held that trade and commerce protected by Art.19 (1) (g) and Art.301 are only those activities which could be regarded as lawful trading activities, that gambling is not trade but res extra commercium, and that it does not fall within the purview of those Articles. Following that decision, we must hold that as regards gambling competitions, the petitioners before us cannot seek the protection of Art. 19 (1) (g), and that the question whether the restrictions enacted in SS. 4 and 5 and Rr. 11 and 12 are reasonable and in the interests of the public within Art. 19 (6) does not therefore arise for considerationTo decide the true scope of the present Act, therefore we must have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the legislature, such as the history of the legislation and the purposes thereof, the mischief which it intended to suppress and the other provisions of the statute, and construe the language of S. 2 (d) in the light of the indications furnished by them9.Having regard to the circumstances under which the resolutions came to be passed, there cannot be any reasonable doubt that the law which the State legislatures moved Parliament to enact under Art. 252 (1) was one to control and regulate prize competitions of a gambling character. Competitions in which success depended substantially on skill could not have been in the minds of the legislatures which passed those resolutions.Those competitions had not been the subject of any controversy in Court. They had done no harm to the public and had presented no problems to the States, and at no time had there been any legislation directed to regulating them. And if the State legislatures felt that there was any need to regulate even those competitions, they could have themselves effectively done so without resort to the special jurisdiction under Art. 252 (1). It should further be observed that the language of the resolutions is that it is desirable to control competitions. If it was intended that Parliament should legislate also on competitions involving skill, the word control would seem to be not appropriate. While control and regulation would be requisite in the case of gambling, mere regulation would have been sufficient as regards competitions involving skill. The use of the word control which is to be found not only in the resolution but also in the short title and the preamble to the Act appears to us to clearly indicate that it was only competitions of the character dealt with in the Bombay judgment, that were within the contemplation of the legislatureWe must accordingly exclude it from our consideration. But even apart from it, having regard to the history of the legislation, the declared object thereof and the wording of the statute, we are of opinion that the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend to any substantial degree on skillThere is nothing in these observations to support the contention of the petitioners that the doctrine of severability applies only when the legislation is in excess of the competence of the legislature quoad its subject-matter, and not when it infringes some constitutional prohibitionsthe principle of severability is applicable even when the partial invalidity of the Act arises by reason of its contravention of constitutional limitations. It is argued for the petitioners that in that case the legislature had through the rules framed under the statute classified medicinal and toilet preparations as a separate category, and had thus evinced an intention to treat them as severable, that no similar classification had been made in the present Act, and that therefore the decision in question does not help the respondent. But this is to take too narrow a view of the decision. The doctrine of severability rests, as will presently be shown, on a presumed intention of the legislature that if a part of a statute turns out to be void, that should not affect the validity of the rest of it, and that that intention is to be ascertained from the terms of the statute. It is the true nature of the subject-matter of the legislation that is the determining factor, and while a classification made in the statute might go far to support a conclusion in favour of severability, the absence of it does not necessarily preclude itThe weight to be attached to a classification of subjects made in the statute itself cannot, in our opinion, be greater than that of a severability clause. If the decision in 1951 S. C. R. 682: (A. I. R. 1951 5. C. 318) (F), is examined in the light of the above discussion, it will be seen that while there is a reference in the judgment to the fact that medicinal and toilet preparations are treated separately by the legislature, that is followed by an independent finding that they are severable. In other words, the decision as to severability was reached on the separability in fact of the subjects dealt with by the legislation and the classification made in the rules merely furnished support to itwill be useful for the determination of this question to refer to certain rules of construction laid down by the American Courts, where the question of severability has been the subject of consideration in numerous authorities. They may be summarised as follows:4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety5. The separability of the valid and invalid provisions of a statute does not depend on whether the law as enacted in the same section or different section; (Vide Cooleys Constitutional Limitations, vol. 1, pp. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, vol. 2, p. 1947. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, vol. 2, pp. 177-178Applying these principles to the present Act, it will not be questioned that competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend, form two distinct and separate categories. The difference between the two classes of competitions is as clear-cut as that between commercial and wagering contracts. On the facts there might be difficulty in deciding whether a given competitions falls within one category or not; but when its true character is determined, it must fail either under the one or the other. The distinction between the two classes of competitions has long been recognised in the legislative practice of both the United Kingdom and this country, and the Courts have, time and again, pointed out the characteristic features which differentiate them. And if we are now to ask ourselves the question would Parliament have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what our answer would be. Nor does the restriction of the impugned provisions to competitions of a gambling character affect either the texture or the colour of the Act; nor do the provisions require to be touched and re-written before they could be applied to them. They will squarely apply to them on their own terms and in their true spirit, and form a code complete in themselves with reference to the subject.The conclusion is therefore inescapable that the impugned provisions, assuming that they apply by virtue of the definition in S. 2 (d) to all kinds of competitions, are severable in their application to competitions in which success does not depend to any substantial extent on skill. | 0 | 8,986 | 1,573 | ### 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:
could not be enforced without re-writing it. The observation aforesaid must be read in the context of the particular provision which was under consideration. This really is nothing more than a decision on the severability of the particular provision which was impugned therein, and it is open to the same comment as the derision in 1950 S C R 594: (A I R 1950 S C 124) (I). That was also one of the decisions distinguished in 1951 SCR 682 : (A I R 1951 S C 318)(F). The resulting position may thus be stated:When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of the legislature or by reason of its provision contravening constitutional prohibitions. 24. That being the position in law, it is now necessary to consider whether the impugned provisions are severable in their application to competitions of a gambling character, assuming of course that the definition of prize competition in S. 2 (d) is wide enough to include also competitions involving skill to a substantial degree.It will be useful for the determination of this question to refer to certain rules of construction laid down by the American Courts, where the question of severability has been the subject of consideration in numerous authorities. They may be summarised as follows: 1.In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, vol. 82, p. 156; Sutherland on Statutory Construction, vol. 2 pp. 176 -177. 2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooleys Constitutional Limitations, vo1. at pp. 360-361; Crawford on Statutory Construction, pp. 217 - 218. 3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on statutory Construction, pp. 218 -219. 4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety. 5. The separability of the valid and invalid provisions of a statute does not depend on whether the law as enacted in the same section or different section; (Vide Cooleys Constitutional Limitations, vol. 1, pp. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein. 6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, vol. 2, p. 194. 7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, vol. 2, pp. 177-178. 25. Applying these principles to the present Act, it will not be questioned that competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend, form two distinct and separate categories. The difference between the two classes of competitions is as clear-cut as that between commercial and wagering contracts. On the facts there might be difficulty in deciding whether a given competitions falls within one category or not; but when its true character is determined, it must fail either under the one or the other. The distinction between the two classes of competitions has long been recognised in the legislative practice of both the United Kingdom and this country, and the Courts have, time and again, pointed out the characteristic features which differentiate them. And if we are now to ask ourselves the question would Parliament have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what our answer would be. Nor does the restriction of the impugned provisions to competitions of a gambling character affect either the texture or the colour of the Act; nor do the provisions require to be touched and re-written before they could be applied to them. They will squarely apply to them on their own terms and in their true spirit, and form a code complete in themselves with reference to the subject.The conclusion is therefore inescapable that the impugned provisions, assuming that they apply by virtue of the definition in S. 2 (d) to all kinds of competitions, are severable in their application to competitions in which success does not depend to any substantial extent on skill. 26.
### Response:
0
### Explanation:
character dealt with in the Bombay judgment, that were within the contemplation of the legislatureWe must accordingly exclude it from our consideration. But even apart from it, having regard to the history of the legislation, the declared object thereof and the wording of the statute, we are of opinion that the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend to any substantial degree on skillThere is nothing in these observations to support the contention of the petitioners that the doctrine of severability applies only when the legislation is in excess of the competence of the legislature quoad its subject-matter, and not when it infringes some constitutional prohibitionsthe principle of severability is applicable even when the partial invalidity of the Act arises by reason of its contravention of constitutional limitations. It is argued for the petitioners that in that case the legislature had through the rules framed under the statute classified medicinal and toilet preparations as a separate category, and had thus evinced an intention to treat them as severable, that no similar classification had been made in the present Act, and that therefore the decision in question does not help the respondent. But this is to take too narrow a view of the decision. The doctrine of severability rests, as will presently be shown, on a presumed intention of the legislature that if a part of a statute turns out to be void, that should not affect the validity of the rest of it, and that that intention is to be ascertained from the terms of the statute. It is the true nature of the subject-matter of the legislation that is the determining factor, and while a classification made in the statute might go far to support a conclusion in favour of severability, the absence of it does not necessarily preclude itThe weight to be attached to a classification of subjects made in the statute itself cannot, in our opinion, be greater than that of a severability clause. If the decision in 1951 S. C. R. 682: (A. I. R. 1951 5. C. 318) (F), is examined in the light of the above discussion, it will be seen that while there is a reference in the judgment to the fact that medicinal and toilet preparations are treated separately by the legislature, that is followed by an independent finding that they are severable. In other words, the decision as to severability was reached on the separability in fact of the subjects dealt with by the legislation and the classification made in the rules merely furnished support to itwill be useful for the determination of this question to refer to certain rules of construction laid down by the American Courts, where the question of severability has been the subject of consideration in numerous authorities. They may be summarised as follows:4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety5. The separability of the valid and invalid provisions of a statute does not depend on whether the law as enacted in the same section or different section; (Vide Cooleys Constitutional Limitations, vol. 1, pp. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, vol. 2, p. 1947. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, vol. 2, pp. 177-178Applying these principles to the present Act, it will not be questioned that competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend, form two distinct and separate categories. The difference between the two classes of competitions is as clear-cut as that between commercial and wagering contracts. On the facts there might be difficulty in deciding whether a given competitions falls within one category or not; but when its true character is determined, it must fail either under the one or the other. The distinction between the two classes of competitions has long been recognised in the legislative practice of both the United Kingdom and this country, and the Courts have, time and again, pointed out the characteristic features which differentiate them. And if we are now to ask ourselves the question would Parliament have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what our answer would be. Nor does the restriction of the impugned provisions to competitions of a gambling character affect either the texture or the colour of the Act; nor do the provisions require to be touched and re-written before they could be applied to them. They will squarely apply to them on their own terms and in their true spirit, and form a code complete in themselves with reference to the subject.The conclusion is therefore inescapable that the impugned provisions, assuming that they apply by virtue of the definition in S. 2 (d) to all kinds of competitions, are severable in their application to competitions in which success does not depend to any substantial extent on skill.
|
Jagroop Singh Vs. State Of Punjab | force. It is borne out from that record that Bikkar Singh, another accused, had absconded and the present appellant along with Jagsir Singh came to Natha Singh and confessed and Bikkar Singh confessed before Gurdev Singh, PW-10. In the confessional statement, he has stated about the place where the spade was hidden and led to the recovery to which Natha Singh is a witness. Appreciated from these angles, we are of the considered opinion that the said confessional statement inspires confidence as the same is totally voluntary and by no means tainted. 27. The next circumstance is leading to recovery of the weapon as is seen from the evidence. The accused led to recovery of the spade from the wheat field near the heap of sticks. The disclosure statement has been signed by Natha Singh and another witness, namely, Lal Chand. The procedure followed for discovery is absolutely in accord with law and has not been challenged. The learned counsel for the appellant has submitted that the recovery of the weapon does not aid and assist the prosecution version. It is urged that though human blood is found on the spade, yet the blood group was not matched. In support of the said stand, he has commended us to the decision in Sattatiya Alias Satish Rajanna Kartalla v. State of Maharashtra [2008) 3 SCC 210 ]. In the said case, the occurrence had taken place on 1.10.1994 and the accused was arrested on 3.10.1994. He had led to recovery of his blood stained clothes and that of the deceased and the weapon used in the crime and all the articles were sent for chemical examination. The clothes of the deceased were found having human blood of ‘O’ group. It was contended that the blood group was not matched. This Court did not believe the recovery of the weapon due to various reasons. Further, it opined that though blood stains were found on the clothes and the weapon used, yet the same could not be linked with the blood of the deceased, and, therefore, there was serious lacuna that the human blood stains present on the clothes of the accused and the weapon were sufficient to link the accused with the murder. 28. In the case at hand, the accused persons were arrested after 18 days and recovery was made at that time. The blood stain found on the weapon has been found in the serological report as human blood. In the case of Sattatiya (supra), the recovery was doubted and additionally, non-matching of blood group was treated to be a lacuna. It is worth noting that the clothes and the weapon were sent immediately for chemical examination. Here the weapon was sent after 18 days as the recovery was made after that period. The accused have not given explanation how human blood could be found on the spade used for agriculture which was recovered at their instance. In this context, we may profitably reproduce a passage from John Pandian v. State Represented by Inspector of Police, Tamil Nadu [2010) 14 SCC 129 ] :- “The discovery appears to be credible. It has been accepted by both the courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the forensic science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case.” 29. Thus viewed, we do not find any substantial reason to disbelieve the disclosure statement and the recovery of the weapon used. It is apt to mention here that the doctor, who has conducted the post mortem, has clearly opined that the injuries on the person of the deceased could be caused by the weapon (blade of such spade) and the said opinion has gone unrebutted. 30. Another aspect is to be taken note of. Though the incriminating circumstances which point to the guilt of the accused had been put to the accused, yet he could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial. In State of Maharashtra v. Suresh [2000) 1 SCC 471 ], it has been held that when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the said decision only to highlight that the accused has not given any explanation whatsoever as regards the circumstances put to him under Section 313 of the Code of Criminal Procedure. 31. From the aforesaid analysis, we are of the convinced opinion that all the three circumstances which have been established by the prosecution complete the chain. There can be no trace of doubt that the circumstances have been proven beyond reasonable doubt. It is worthy to remember that in Sucha Singh and another v. State of Punjab [2003) 7 SCC 643 ], it has been stated that the prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. The present case is one where there is no trace of doubt that all circumstances complete the chain and singularly lead to the guilt of the accused persons. | 0[ds]are of the convinced opinion that all the three circumstances which have been established by the prosecution complete the chain. There can be no trace of doubt that the circumstances have been proven beyond reasonable doubt. It is worthy to remember that in Sucha Singh and another v. State of Punjab [2003) 7 SCC 643 ], it has been stated that the prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. The present case is one where there is no trace of doubt that all circumstances complete the chain and singularly lead to the guilt of the accused persons. | 0 | 5,959 | 191 | ### 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:
force. It is borne out from that record that Bikkar Singh, another accused, had absconded and the present appellant along with Jagsir Singh came to Natha Singh and confessed and Bikkar Singh confessed before Gurdev Singh, PW-10. In the confessional statement, he has stated about the place where the spade was hidden and led to the recovery to which Natha Singh is a witness. Appreciated from these angles, we are of the considered opinion that the said confessional statement inspires confidence as the same is totally voluntary and by no means tainted. 27. The next circumstance is leading to recovery of the weapon as is seen from the evidence. The accused led to recovery of the spade from the wheat field near the heap of sticks. The disclosure statement has been signed by Natha Singh and another witness, namely, Lal Chand. The procedure followed for discovery is absolutely in accord with law and has not been challenged. The learned counsel for the appellant has submitted that the recovery of the weapon does not aid and assist the prosecution version. It is urged that though human blood is found on the spade, yet the blood group was not matched. In support of the said stand, he has commended us to the decision in Sattatiya Alias Satish Rajanna Kartalla v. State of Maharashtra [2008) 3 SCC 210 ]. In the said case, the occurrence had taken place on 1.10.1994 and the accused was arrested on 3.10.1994. He had led to recovery of his blood stained clothes and that of the deceased and the weapon used in the crime and all the articles were sent for chemical examination. The clothes of the deceased were found having human blood of ‘O’ group. It was contended that the blood group was not matched. This Court did not believe the recovery of the weapon due to various reasons. Further, it opined that though blood stains were found on the clothes and the weapon used, yet the same could not be linked with the blood of the deceased, and, therefore, there was serious lacuna that the human blood stains present on the clothes of the accused and the weapon were sufficient to link the accused with the murder. 28. In the case at hand, the accused persons were arrested after 18 days and recovery was made at that time. The blood stain found on the weapon has been found in the serological report as human blood. In the case of Sattatiya (supra), the recovery was doubted and additionally, non-matching of blood group was treated to be a lacuna. It is worth noting that the clothes and the weapon were sent immediately for chemical examination. Here the weapon was sent after 18 days as the recovery was made after that period. The accused have not given explanation how human blood could be found on the spade used for agriculture which was recovered at their instance. In this context, we may profitably reproduce a passage from John Pandian v. State Represented by Inspector of Police, Tamil Nadu [2010) 14 SCC 129 ] :- “The discovery appears to be credible. It has been accepted by both the courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the forensic science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case.” 29. Thus viewed, we do not find any substantial reason to disbelieve the disclosure statement and the recovery of the weapon used. It is apt to mention here that the doctor, who has conducted the post mortem, has clearly opined that the injuries on the person of the deceased could be caused by the weapon (blade of such spade) and the said opinion has gone unrebutted. 30. Another aspect is to be taken note of. Though the incriminating circumstances which point to the guilt of the accused had been put to the accused, yet he could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial. In State of Maharashtra v. Suresh [2000) 1 SCC 471 ], it has been held that when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the said decision only to highlight that the accused has not given any explanation whatsoever as regards the circumstances put to him under Section 313 of the Code of Criminal Procedure. 31. From the aforesaid analysis, we are of the convinced opinion that all the three circumstances which have been established by the prosecution complete the chain. There can be no trace of doubt that the circumstances have been proven beyond reasonable doubt. It is worthy to remember that in Sucha Singh and another v. State of Punjab [2003) 7 SCC 643 ], it has been stated that the prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. The present case is one where there is no trace of doubt that all circumstances complete the chain and singularly lead to the guilt of the accused persons.
### Response:
0
### Explanation:
are of the convinced opinion that all the three circumstances which have been established by the prosecution complete the chain. There can be no trace of doubt that the circumstances have been proven beyond reasonable doubt. It is worthy to remember that in Sucha Singh and another v. State of Punjab [2003) 7 SCC 643 ], it has been stated that the prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some inevitable flaws because human beings are prone to err, it is argued that it is too imperfect. The present case is one where there is no trace of doubt that all circumstances complete the chain and singularly lead to the guilt of the accused persons.
|
Shyam Lal @ Kuldeep Vs. Sanjeev Kumar | held that in view of section 30 read with section 4 of the Hindu Succession Act, 1956 a male Hindu governed by Mitakshara system is not debarred from making a Will in respect of coparcenary/ancestral property. 31. The above view of the learned Single Judge was upheld and approved by a Division Bench of this court in Tek Chand and Another v. Mool Raj and Others [1997 (2) Hindu L.R. 306]. 32. In view of the above ratio, the learned District Judge has erred in upholding the validity of the Will Ex. DW 1/A only to the extent of the interest of the deceased in the property. Such findings are wrong and liable to be set aside. 33. There is yet another significant aspect of the case. The present suit was filed by the plaintiff for a declaration that the mutation of inheritance bearing No.1313 sanctioned on 20.2.1988 was wrong, illegal, null and void and not binding on his rights and that the land property in dispute was jointly owned and possessed by him and defendant nos.3 to 6 in equal shares. Further that the Will dated 4.12.1978 was null and void and inoperative beyond the competency of the deceased and also being the result of fraud, misrepresentation etc. Such suit was filed on 21.5.1991. 34. Regarding question no.4 pertaining to the Will, the High Court has observed that the concurrent findings being purely on the question of fact, i.e. with regard to the execution of the Will cannot be interfered with in the Second Appeal. The High Court also observed that the property in the hands of the deceased Balak Ram was ancestral in character. The High Court also observed that a Will could not be executed as far as ancestral property was concerned and in view of the clear legal position this matter was no longer res integra. Limitation (Issue No.8) 35. Regarding the limitation, the High Court observed as under:- "Undisputedly, the period of limitation prescribed under the law for such a suit is three years from the date the cause of action accrued to the plaintiff. It has been averred by the plaintiff in para 9 of his plaint, as to cause of action, as under:- "that the cause of action has arisen on 31.10.87 from death on 20.2.88 from mutation and on various other dates from the knowledge of the illegalities and wrongful actions of Village Jabal Jamrot Pargana Haripur Teh. and Distt. Solan within the jurisdiction of this Court, hence this matter has jurisdiction in the matter." 36. The learned Trial Court, while recording the findings under issue no.8 has held the suit to be not within time. No findings have been recorded by the learned District Judge on the question of limitation. Considering the pleadings as a whole as set out in the plaint, the suit of the plaintiff as laid, on the face of it, was not within time. There were neither pleadings nor evidence as to the date on which the plaintiff had derived the knowledge about the mutation and/or the Will.37. In the impugned judgment the High Court set aside the decree dated 11.9.1997 of the District Judge and that of the learned Trial Court dismissing the suit of the plaintiff restored. In the impugned judgment, the High Court also dealt with the question of limitation. The High Court observed that learned Trial Court while recording the findings under issue no.8 has held the suit to be not within time. No findings have been recorded by the learned District Judge on the question of limitation. Considering the pleadings as a whole as set out in the plaint, the suit of the plaintiff as laid, on the face of it, was not within time. There were neither pleadings nor evidence as to the date on which the plaintiff had derived the knowledge about the mutation and/or the Will.38. Both the Trial Court and the District Court did not deal with this aspect of limitation in a proper perspective. The High Court, in our considered view has given correct findings regarding limitation. We have carefully and critically examined the findings of the High Court on the issues of Will and consequent mutation. The findings of the High Court are based on correct evaluation of evidence and record of the case.39. The findings of the High Court on the interpretation of Section 112 of the Evidence Act are based on correct analysis of Indian and English cases for the last more than a century. According to the legislative intention and spirit behind Section 112 of Evidence Act it is abundantly clear that once the validity of marriage is proved then there is strong presumption about the legitimacy of children born out of that wedlock. The presumption can only be rebutted by a strong, clear satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt.40. In the instant case, admittedly the plaintiff and defendant no.4 were born to Smt. Durgi during the continuance of her valid marriage with the deceased Balak Ram. Their marriage was infact never dissolved. There is no evidence on record that the deceased Balak Ram at any point of time did not have access to Smt. Durgi. According to the clear interpretation of section 112 of the Evidence Act, there is strong presumption about the legitimacy of children born out of continuation of the valid marriage.41. It is well settled principle of law that Odiosa et inkonesta non sunt in lege prae sumenda (nothing odious or dishonourable will be presumed by the law). The law presumes against vice and immorality. In a civilized society it is imperative to presume legitimacy of a child born during continuation of a valid marriage and whose parents had "access" to each other.42. It is undesirable to enquire into paternity of a child whose parents "have access" to each other. Section 112 of the Evidence Act is based on presumption of public morality and public policy. | 0[ds]37. In the impugned judgment the High Court set aside the decree dated 11.9.1997 of the District Judge and that of the learned Trial Court dismissing the suit of the plaintiff restored. In the impugned judgment, the High Court also dealt with the question of limitation. The High Court observed that learned Trial Court while recording the findings under issue no.8 has held the suit to be not within time. No findings have been recorded by the learned District Judge on the question of limitation. Considering the pleadings as a whole as set out in the plaint, the suit of the plaintiff as laid, on the face of it, was not within time. There were neither pleadings nor evidence as to the date on which the plaintiff had derived the knowledge about the mutation and/or the Will.38. Both the Trial Court and the District Court did not deal with this aspect of limitation in a proper perspective. The High Court, in our considered view has given correct findings regarding limitation. We have carefully and critically examined the findings of the High Court on the issues of Will and consequent mutation. The findings of the High Court are based on correct evaluation of evidence and record of the case.39. The findings of the High Court on the interpretation of Section 112 of the Evidence Act are based on correct analysis of Indian and English cases for the last more than a century. According to the legislative intention and spirit behind Section 112 of Evidence Act it is abundantly clear that once the validity of marriage is proved then there is strong presumption about the legitimacy of children born out of that wedlock. The presumption can only be rebutted by a strong, clear satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt.40. In the instant case, admittedly the plaintiff and defendant no.4 were born to Smt. Durgi during the continuance of her valid marriage with the deceased Balak Ram. Their marriage was infact never dissolved. There is no evidence on record that the deceased Balak Ram at any point of time did not have access to Smt. Durgi. According to the clear interpretation of section 112 of the Evidence Act, there is strong presumption about the legitimacy of children born out of continuation of the valid marriage.41. It is well settled principle of law that Odiosa et inkonesta non sunt in lege prae sumenda (nothing odious or dishonourable will be presumed by the law). The law presumes against vice and immorality. In a civilized society it is imperative to presume legitimacy of a child born during continuation of a valid marriage and whose parents had "access" to each other.42. It is undesirable to enquire into paternity of a child whose parents "have access" to each other. Section 112 of the Evidence Act is based on presumption of public morality and public policy. | 0 | 4,571 | 535 | ### 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:
held that in view of section 30 read with section 4 of the Hindu Succession Act, 1956 a male Hindu governed by Mitakshara system is not debarred from making a Will in respect of coparcenary/ancestral property. 31. The above view of the learned Single Judge was upheld and approved by a Division Bench of this court in Tek Chand and Another v. Mool Raj and Others [1997 (2) Hindu L.R. 306]. 32. In view of the above ratio, the learned District Judge has erred in upholding the validity of the Will Ex. DW 1/A only to the extent of the interest of the deceased in the property. Such findings are wrong and liable to be set aside. 33. There is yet another significant aspect of the case. The present suit was filed by the plaintiff for a declaration that the mutation of inheritance bearing No.1313 sanctioned on 20.2.1988 was wrong, illegal, null and void and not binding on his rights and that the land property in dispute was jointly owned and possessed by him and defendant nos.3 to 6 in equal shares. Further that the Will dated 4.12.1978 was null and void and inoperative beyond the competency of the deceased and also being the result of fraud, misrepresentation etc. Such suit was filed on 21.5.1991. 34. Regarding question no.4 pertaining to the Will, the High Court has observed that the concurrent findings being purely on the question of fact, i.e. with regard to the execution of the Will cannot be interfered with in the Second Appeal. The High Court also observed that the property in the hands of the deceased Balak Ram was ancestral in character. The High Court also observed that a Will could not be executed as far as ancestral property was concerned and in view of the clear legal position this matter was no longer res integra. Limitation (Issue No.8) 35. Regarding the limitation, the High Court observed as under:- "Undisputedly, the period of limitation prescribed under the law for such a suit is three years from the date the cause of action accrued to the plaintiff. It has been averred by the plaintiff in para 9 of his plaint, as to cause of action, as under:- "that the cause of action has arisen on 31.10.87 from death on 20.2.88 from mutation and on various other dates from the knowledge of the illegalities and wrongful actions of Village Jabal Jamrot Pargana Haripur Teh. and Distt. Solan within the jurisdiction of this Court, hence this matter has jurisdiction in the matter." 36. The learned Trial Court, while recording the findings under issue no.8 has held the suit to be not within time. No findings have been recorded by the learned District Judge on the question of limitation. Considering the pleadings as a whole as set out in the plaint, the suit of the plaintiff as laid, on the face of it, was not within time. There were neither pleadings nor evidence as to the date on which the plaintiff had derived the knowledge about the mutation and/or the Will.37. In the impugned judgment the High Court set aside the decree dated 11.9.1997 of the District Judge and that of the learned Trial Court dismissing the suit of the plaintiff restored. In the impugned judgment, the High Court also dealt with the question of limitation. The High Court observed that learned Trial Court while recording the findings under issue no.8 has held the suit to be not within time. No findings have been recorded by the learned District Judge on the question of limitation. Considering the pleadings as a whole as set out in the plaint, the suit of the plaintiff as laid, on the face of it, was not within time. There were neither pleadings nor evidence as to the date on which the plaintiff had derived the knowledge about the mutation and/or the Will.38. Both the Trial Court and the District Court did not deal with this aspect of limitation in a proper perspective. The High Court, in our considered view has given correct findings regarding limitation. We have carefully and critically examined the findings of the High Court on the issues of Will and consequent mutation. The findings of the High Court are based on correct evaluation of evidence and record of the case.39. The findings of the High Court on the interpretation of Section 112 of the Evidence Act are based on correct analysis of Indian and English cases for the last more than a century. According to the legislative intention and spirit behind Section 112 of Evidence Act it is abundantly clear that once the validity of marriage is proved then there is strong presumption about the legitimacy of children born out of that wedlock. The presumption can only be rebutted by a strong, clear satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt.40. In the instant case, admittedly the plaintiff and defendant no.4 were born to Smt. Durgi during the continuance of her valid marriage with the deceased Balak Ram. Their marriage was infact never dissolved. There is no evidence on record that the deceased Balak Ram at any point of time did not have access to Smt. Durgi. According to the clear interpretation of section 112 of the Evidence Act, there is strong presumption about the legitimacy of children born out of continuation of the valid marriage.41. It is well settled principle of law that Odiosa et inkonesta non sunt in lege prae sumenda (nothing odious or dishonourable will be presumed by the law). The law presumes against vice and immorality. In a civilized society it is imperative to presume legitimacy of a child born during continuation of a valid marriage and whose parents had "access" to each other.42. It is undesirable to enquire into paternity of a child whose parents "have access" to each other. Section 112 of the Evidence Act is based on presumption of public morality and public policy.
### Response:
0
### Explanation:
37. In the impugned judgment the High Court set aside the decree dated 11.9.1997 of the District Judge and that of the learned Trial Court dismissing the suit of the plaintiff restored. In the impugned judgment, the High Court also dealt with the question of limitation. The High Court observed that learned Trial Court while recording the findings under issue no.8 has held the suit to be not within time. No findings have been recorded by the learned District Judge on the question of limitation. Considering the pleadings as a whole as set out in the plaint, the suit of the plaintiff as laid, on the face of it, was not within time. There were neither pleadings nor evidence as to the date on which the plaintiff had derived the knowledge about the mutation and/or the Will.38. Both the Trial Court and the District Court did not deal with this aspect of limitation in a proper perspective. The High Court, in our considered view has given correct findings regarding limitation. We have carefully and critically examined the findings of the High Court on the issues of Will and consequent mutation. The findings of the High Court are based on correct evaluation of evidence and record of the case.39. The findings of the High Court on the interpretation of Section 112 of the Evidence Act are based on correct analysis of Indian and English cases for the last more than a century. According to the legislative intention and spirit behind Section 112 of Evidence Act it is abundantly clear that once the validity of marriage is proved then there is strong presumption about the legitimacy of children born out of that wedlock. The presumption can only be rebutted by a strong, clear satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt.40. In the instant case, admittedly the plaintiff and defendant no.4 were born to Smt. Durgi during the continuance of her valid marriage with the deceased Balak Ram. Their marriage was infact never dissolved. There is no evidence on record that the deceased Balak Ram at any point of time did not have access to Smt. Durgi. According to the clear interpretation of section 112 of the Evidence Act, there is strong presumption about the legitimacy of children born out of continuation of the valid marriage.41. It is well settled principle of law that Odiosa et inkonesta non sunt in lege prae sumenda (nothing odious or dishonourable will be presumed by the law). The law presumes against vice and immorality. In a civilized society it is imperative to presume legitimacy of a child born during continuation of a valid marriage and whose parents had "access" to each other.42. It is undesirable to enquire into paternity of a child whose parents "have access" to each other. Section 112 of the Evidence Act is based on presumption of public morality and public policy.
|
Commissioner of Income Tax, Bombay Vs. Imperial Surgical Company Private Limited | 1. This is an appeal from an order of the High Court of Bombay declining to direct the Tribunal to state a case for its decision under the Income Tax Act 2. The respondent-assessee Company paid seven of its employees, in addition to what was described as their salary, certain amounts of bonus, commission and house rent allowance. Treating these items as perquisites within the meaning of Section 40(a)(v), the Income Tax Officer disallowed a sum of Rs. 47, 440. This was held to be the amount in excess of 20 per cent. of their salary3. The Appellate Assistant Commissioner, however, allowed the appeal and on further appeal by the department the Tribunal confirmed the order of the Assistant Commissioner. Though the Tribunal observed in general that these items could not be treated as benefits or perquisites because they represented cash payments made by the company, it also found as a fact that the payments had been made in pursuance of resolutions of the Company and in accordance with the terms of employment of the employees in question4. The appellant applied to the Tribunal for referring a question of law to the High Court but the Tribunal dismissed the same observing that its conclusion had rested on the findings of fact in the case. The High Court also declined to direct a reference on the very short ground that the question was covered by a circular of the Central Board dated March 4, 1972. Hence this appeal 5. The question before us is whether there is a question of law arising out of the Tribunals order which should have been referred to the High Court on not. At the outset, we should like to point out that the appeal relates to the assessment year 1971-72 and about 20 years have elapsed since then. Section 40(a)(v) has since been replaced by another Section 40-A(5) which has also been substituted in 1989. The amount of tax involved will only be around Rs. 20, 000. Even, if we allow this appeal, our order will only result in a question of law being referred to the High Court and it will take several more years before the question can be decided on the merits finally. These considerations apart, the High Court has disposed of the application under Section 256(2) on the ground that the matter is covered by a circular of the Board. Apparently, both the Appellate Assistant Commissioner and the Tribunal had also gone by the purport of the circular though they have not explicitly referred to it in their orders. In these circumstances, we do not think any useful purpose be served by directing a reference in this case | 0[ds]At the outset, we should like to point out that the appeal relates to the assessment yearand about 20 years have elapsed since then. Section 40(a)(v) has since been replaced by another Sectionwhich has also been substituted in 1989. The amount of tax involved will only be around Rs. 20, 000. Even, if we allow this appeal, our order will only result in a question of law being referred to the High Court and it will take several more years before the question can be decided on the merits finally. These considerations apart, the High Court has disposed of the application under Section 256(2) on the ground that the matter is covered by a circular of the Board. Apparently, both the Appellate Assistant Commissioner and the Tribunal had also gone by the purport of the circular though they have not explicitly referred to it in their orders. In these circumstances, we do not think any useful purpose be served by directing a reference in this case | 0 | 501 | 193 | ### 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:
1. This is an appeal from an order of the High Court of Bombay declining to direct the Tribunal to state a case for its decision under the Income Tax Act 2. The respondent-assessee Company paid seven of its employees, in addition to what was described as their salary, certain amounts of bonus, commission and house rent allowance. Treating these items as perquisites within the meaning of Section 40(a)(v), the Income Tax Officer disallowed a sum of Rs. 47, 440. This was held to be the amount in excess of 20 per cent. of their salary3. The Appellate Assistant Commissioner, however, allowed the appeal and on further appeal by the department the Tribunal confirmed the order of the Assistant Commissioner. Though the Tribunal observed in general that these items could not be treated as benefits or perquisites because they represented cash payments made by the company, it also found as a fact that the payments had been made in pursuance of resolutions of the Company and in accordance with the terms of employment of the employees in question4. The appellant applied to the Tribunal for referring a question of law to the High Court but the Tribunal dismissed the same observing that its conclusion had rested on the findings of fact in the case. The High Court also declined to direct a reference on the very short ground that the question was covered by a circular of the Central Board dated March 4, 1972. Hence this appeal 5. The question before us is whether there is a question of law arising out of the Tribunals order which should have been referred to the High Court on not. At the outset, we should like to point out that the appeal relates to the assessment year 1971-72 and about 20 years have elapsed since then. Section 40(a)(v) has since been replaced by another Section 40-A(5) which has also been substituted in 1989. The amount of tax involved will only be around Rs. 20, 000. Even, if we allow this appeal, our order will only result in a question of law being referred to the High Court and it will take several more years before the question can be decided on the merits finally. These considerations apart, the High Court has disposed of the application under Section 256(2) on the ground that the matter is covered by a circular of the Board. Apparently, both the Appellate Assistant Commissioner and the Tribunal had also gone by the purport of the circular though they have not explicitly referred to it in their orders. In these circumstances, we do not think any useful purpose be served by directing a reference in this case
### Response:
0
### Explanation:
At the outset, we should like to point out that the appeal relates to the assessment yearand about 20 years have elapsed since then. Section 40(a)(v) has since been replaced by another Sectionwhich has also been substituted in 1989. The amount of tax involved will only be around Rs. 20, 000. Even, if we allow this appeal, our order will only result in a question of law being referred to the High Court and it will take several more years before the question can be decided on the merits finally. These considerations apart, the High Court has disposed of the application under Section 256(2) on the ground that the matter is covered by a circular of the Board. Apparently, both the Appellate Assistant Commissioner and the Tribunal had also gone by the purport of the circular though they have not explicitly referred to it in their orders. In these circumstances, we do not think any useful purpose be served by directing a reference in this case
|
Jammu & Kashmir Bank Ltd Vs. Attar-Ul-Nissa & Others | the money paid by mistake and reliance in this connection is placed on S. 72 of the Contract Act. There is no doubt that S. 72 of the Contract Act provides that a person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it. That Section in our opinion will only apply when we are dealing with a case of two persons one paying the money and the other receiving the money on behalf of the person paying it. In such a case if the payment is made by mistake the person receiving the money must return it. But Section 72 in our opinion has no application to a case where money is paid by a person to a bank with instructions that it should be deposited in the account of a third person who is a constituent of the bank. As soon as the money is so deposited in the account of the third person, who is a constituent of the bank, the money becomes the money of the constituent, and it is not open to the bank in such circumstances to reverse the entry of credit made in the account of the constituent and in effect pay back the money to the person who had deposited it, even though it might have been deposited by mistake. 8. As soon as the money is credited into the account of the constituent, even though the person paying in may have paid it by mistake, it becomes the money of the constituent, and the bank cannot pay it back to the person who paid it to the account of the constituent on his representation that it was paid by mistake, without obtaining the consent of the constituent. As we have already said the legal position is that for the purpose of payment, Government was the agent of Sultan Mohd. and whatever money was paid to be credited to the account of Sultan Mohd., even though it was paid through Government, became his money and it could not be paid out of his account which is in substance the effect of reversing the entries without his consent. Section 72 could certainly have been availed of by Government against Sultan Mohd. and the Government could have sued Sultan Mohd. for return of the money which had been paid by mistake into his account. But the Government could not ask the bank to reverse the entries and thus in effect ask it to pay out the money from the account of Sultan Mohd. into which it had been deposited and the bank could not do so without taking the consent of Sultan Mohd. Further though Government was the agent of Sultan Mohd. for the purpose of payment of the money for liquidating the debt, the Government had no further authority on his behalf to ask the bank to pay back any sum once it had been credited into his account by Government. That could only be done on the authority of Sultan Mohd. and there was no authority in this case for paying back the sum paid in by mistake to Government, for the reversal of the entries in substance amounted to this. 9. It has been urged that on this view the bank would not be able to correct any mistake in the account of any constituent. That is not so. If, for example, a bank credits a cheque in favour of A by mistake into the account of B. the bank can always correct that mistake, for it had received the money on behalf of A. Similarly if the bank receives say Rs. 5,000/- on behalf of A from some person, but by mistake enters Rs. 50,000/- in As account, the bank can always correct that entry and mention the correct sum received. But the present case is very different from corrections of such mistakes. Here the bank had received certain moneys on behalf of Sultan Mohd. through treasury bills or hundis. There is no dispute that money was received for credit to the account of Sultan Mohd. and was correctly credited to that account. There was therefore nothing which the bank could correct, for the bank had made no mistake in making the entries. The bank in our opinion is not concerned with any mistake made by the Accountant General or the treasury in sending the amounts to the bank for the credit of the same to the account of Sultan Mohd. If the Accountant General or the treasury had made any such mistake it was open to them to recover the amount paid in by mistake from Sultan Mohd. But the bank could not reverse the entries and thus pay out money from the account of Sultan Mohd. without his authority. It is obvious that the bank hesitated to reverse the entries and only did it on the threat that the amount would be deducted from the subsidy paid to the bank by the Government. We have no doubt that the High Court was right that in such circumstances where the amount had been paid even though by mistake into the account of a constituent of the bank it was not open to the bank to reverse the entries at the instance of the person paying-in the money into the constituents account on the ground that the payer had made a mistake. We agree with the High Court that S. 72 has no application to the facts of this case. Learned counsel for the appellant has referred us to Imperial Bank of Canada v. Bank of Hamilton, 1903 AC 49 in this connection. We are of opinion that that case has no application to the present cases, for the facts therein were different The payment had been made by one bank to another bank by mistake, there is nothing to show that the money had been paid into a constituents account and thereafter any entry had been reversed in that case. | 0[ds]7. We are of opinion that this contention of the respondents is correct, and the High Court was right in the view it took of the legal position. It is true that on the facts shown there was double payment for a certain period due to mistake on the part of Government. The question however is whether it was open to the bank to reverse the entries in the manner it did without reference to Sultan Mohd. It has not been and cannot be disputed that it is not open to the bank to debit the account of a constituent like Sultan Mohd. with any sum without the authority of the constituent. What is however contended on behalf of the appellant is that Government paid the sum twice over by mistake and it was entitled to ask the bank to return the money paid by mistake and reliance in this connection is placed on S. 72 of the Contract Act. There is no doubt that S. 72 of the Contract Act provides that a person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it. That Section in our opinion will only apply when we are dealing with a case of two persons one paying the money and the other receiving the money on behalf of the person paying it. In such a case if the payment is made by mistake the person receiving the money must return it. But Section 72 in our opinion has no application to a case where money is paid by a person to a bank with instructions that it should be deposited in the account of a third person who is a constituent of the bank. As soon as the money is so deposited in the account of the third person, who is a constituent of the bank, the money becomes the money of the constituent, and it is not open to the bank in such circumstances to reverse the entry of credit made in the account of the constituent and in effect pay back the money to the person who had deposited it, even though it might have been deposited by mistake8. As soon as the money is credited into the account of the constituent, even though the person paying in may have paid it by mistake, it becomes the money of the constituent, and the bank cannot pay it back to the person who paid it to the account of the constituent on his representation that it was paid by mistake, without obtaining the consent of the constituent. As we have already said the legal position is that for the purpose of payment, Government was the agent of Sultan Mohd. and whatever money was paid to be credited to the account of Sultan Mohd., even though it was paid through Government, became his money and it could not be paid out of his account which is in substance the effect of reversing the entries without his consent. Section 72 could certainly have been availed of by Government against Sultan Mohd. and the Government could have sued Sultan Mohd. for return of the money which had been paid by mistake into his account. But the Government could not ask the bank to reverse the entries and thus in effect ask it to pay out the money from the account of Sultan Mohd. into which it had been deposited and the bank could not do so without taking the consent of Sultan Mohd. Further though Government was the agent of Sultan Mohd. for the purpose of payment of the money for liquidating the debt, the Government had no further authority on his behalf to ask the bank to pay back any sum once it had been credited into his account by Government. That could only be done on the authority of Sultan Mohd. and there was no authority in this case for paying back the sum paid in by mistake to Government, for the reversal of the entries in substance amounted to this9. It has been urged that on this view the bank would not be able to correct any mistake in the account of any constituent. That is not so. If, for example, a bank credits a cheque in favour of A by mistake into the account of B. the bank can always correct that mistake, for it had received the money on behalf of A. Similarly if the bank receives say Rs. 5,000/- on behalf of A from some person, but by mistake enters Rs. 50,000/- in As account, the bank can always correct that entry and mention the correct sum received. But the present case is very different from corrections of such mistakes. Here the bank had received certain moneys on behalf of Sultan Mohd. through treasury bills or hundis. There is no dispute that money was received for credit to the account of Sultan Mohd. and was correctly credited to that account. There was therefore nothing which the bank could correct, for the bank had made no mistake in making the entries. The bank in our opinion is not concerned with any mistake made by the Accountant General or the treasury in sending the amounts to the bank for the credit of the same to the account of Sultan Mohd. If the Accountant General or the treasury had made any such mistake it was open to them to recover the amount paid in by mistake from Sultan Mohd. But the bank could not reverse the entries and thus pay out money from the account of Sultan Mohd. without his authority. It is obvious that the bank hesitated to reverse the entries and only did it on the threat that the amount would be deducted from the subsidy paid to the bank by the Government. We have no doubt that the High Court was right that in such circumstances where the amount had been paid even though by mistake into the account of a constituent of the bank it was not open to the bank to reverse the entries at the instance of the person paying-in the money into the constituents account on the ground that the payer had made a mistake. We agree with the High Court that S. 72 has no application to the facts of this case. Learned counsel for the appellant has referred us to Imperial Bank of Canada v. Bank of Hamilton, 1903 AC 49 in this connection. We are of opinion that that case has no application to the present cases, for the facts therein were different The payment had been made by one bank to another bank by mistake, there is nothing to show that the money had been paid into a constituents account and thereafter any entry had been reversed in that case. | 0 | 2,585 | 1,213 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the money paid by mistake and reliance in this connection is placed on S. 72 of the Contract Act. There is no doubt that S. 72 of the Contract Act provides that a person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it. That Section in our opinion will only apply when we are dealing with a case of two persons one paying the money and the other receiving the money on behalf of the person paying it. In such a case if the payment is made by mistake the person receiving the money must return it. But Section 72 in our opinion has no application to a case where money is paid by a person to a bank with instructions that it should be deposited in the account of a third person who is a constituent of the bank. As soon as the money is so deposited in the account of the third person, who is a constituent of the bank, the money becomes the money of the constituent, and it is not open to the bank in such circumstances to reverse the entry of credit made in the account of the constituent and in effect pay back the money to the person who had deposited it, even though it might have been deposited by mistake. 8. As soon as the money is credited into the account of the constituent, even though the person paying in may have paid it by mistake, it becomes the money of the constituent, and the bank cannot pay it back to the person who paid it to the account of the constituent on his representation that it was paid by mistake, without obtaining the consent of the constituent. As we have already said the legal position is that for the purpose of payment, Government was the agent of Sultan Mohd. and whatever money was paid to be credited to the account of Sultan Mohd., even though it was paid through Government, became his money and it could not be paid out of his account which is in substance the effect of reversing the entries without his consent. Section 72 could certainly have been availed of by Government against Sultan Mohd. and the Government could have sued Sultan Mohd. for return of the money which had been paid by mistake into his account. But the Government could not ask the bank to reverse the entries and thus in effect ask it to pay out the money from the account of Sultan Mohd. into which it had been deposited and the bank could not do so without taking the consent of Sultan Mohd. Further though Government was the agent of Sultan Mohd. for the purpose of payment of the money for liquidating the debt, the Government had no further authority on his behalf to ask the bank to pay back any sum once it had been credited into his account by Government. That could only be done on the authority of Sultan Mohd. and there was no authority in this case for paying back the sum paid in by mistake to Government, for the reversal of the entries in substance amounted to this. 9. It has been urged that on this view the bank would not be able to correct any mistake in the account of any constituent. That is not so. If, for example, a bank credits a cheque in favour of A by mistake into the account of B. the bank can always correct that mistake, for it had received the money on behalf of A. Similarly if the bank receives say Rs. 5,000/- on behalf of A from some person, but by mistake enters Rs. 50,000/- in As account, the bank can always correct that entry and mention the correct sum received. But the present case is very different from corrections of such mistakes. Here the bank had received certain moneys on behalf of Sultan Mohd. through treasury bills or hundis. There is no dispute that money was received for credit to the account of Sultan Mohd. and was correctly credited to that account. There was therefore nothing which the bank could correct, for the bank had made no mistake in making the entries. The bank in our opinion is not concerned with any mistake made by the Accountant General or the treasury in sending the amounts to the bank for the credit of the same to the account of Sultan Mohd. If the Accountant General or the treasury had made any such mistake it was open to them to recover the amount paid in by mistake from Sultan Mohd. But the bank could not reverse the entries and thus pay out money from the account of Sultan Mohd. without his authority. It is obvious that the bank hesitated to reverse the entries and only did it on the threat that the amount would be deducted from the subsidy paid to the bank by the Government. We have no doubt that the High Court was right that in such circumstances where the amount had been paid even though by mistake into the account of a constituent of the bank it was not open to the bank to reverse the entries at the instance of the person paying-in the money into the constituents account on the ground that the payer had made a mistake. We agree with the High Court that S. 72 has no application to the facts of this case. Learned counsel for the appellant has referred us to Imperial Bank of Canada v. Bank of Hamilton, 1903 AC 49 in this connection. We are of opinion that that case has no application to the present cases, for the facts therein were different The payment had been made by one bank to another bank by mistake, there is nothing to show that the money had been paid into a constituents account and thereafter any entry had been reversed in that case.
### Response:
0
### Explanation:
the money paid by mistake and reliance in this connection is placed on S. 72 of the Contract Act. There is no doubt that S. 72 of the Contract Act provides that a person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it. That Section in our opinion will only apply when we are dealing with a case of two persons one paying the money and the other receiving the money on behalf of the person paying it. In such a case if the payment is made by mistake the person receiving the money must return it. But Section 72 in our opinion has no application to a case where money is paid by a person to a bank with instructions that it should be deposited in the account of a third person who is a constituent of the bank. As soon as the money is so deposited in the account of the third person, who is a constituent of the bank, the money becomes the money of the constituent, and it is not open to the bank in such circumstances to reverse the entry of credit made in the account of the constituent and in effect pay back the money to the person who had deposited it, even though it might have been deposited by mistake8. As soon as the money is credited into the account of the constituent, even though the person paying in may have paid it by mistake, it becomes the money of the constituent, and the bank cannot pay it back to the person who paid it to the account of the constituent on his representation that it was paid by mistake, without obtaining the consent of the constituent. As we have already said the legal position is that for the purpose of payment, Government was the agent of Sultan Mohd. and whatever money was paid to be credited to the account of Sultan Mohd., even though it was paid through Government, became his money and it could not be paid out of his account which is in substance the effect of reversing the entries without his consent. Section 72 could certainly have been availed of by Government against Sultan Mohd. and the Government could have sued Sultan Mohd. for return of the money which had been paid by mistake into his account. But the Government could not ask the bank to reverse the entries and thus in effect ask it to pay out the money from the account of Sultan Mohd. into which it had been deposited and the bank could not do so without taking the consent of Sultan Mohd. Further though Government was the agent of Sultan Mohd. for the purpose of payment of the money for liquidating the debt, the Government had no further authority on his behalf to ask the bank to pay back any sum once it had been credited into his account by Government. That could only be done on the authority of Sultan Mohd. and there was no authority in this case for paying back the sum paid in by mistake to Government, for the reversal of the entries in substance amounted to this9. It has been urged that on this view the bank would not be able to correct any mistake in the account of any constituent. That is not so. If, for example, a bank credits a cheque in favour of A by mistake into the account of B. the bank can always correct that mistake, for it had received the money on behalf of A. Similarly if the bank receives say Rs. 5,000/- on behalf of A from some person, but by mistake enters Rs. 50,000/- in As account, the bank can always correct that entry and mention the correct sum received. But the present case is very different from corrections of such mistakes. Here the bank had received certain moneys on behalf of Sultan Mohd. through treasury bills or hundis. There is no dispute that money was received for credit to the account of Sultan Mohd. and was correctly credited to that account. There was therefore nothing which the bank could correct, for the bank had made no mistake in making the entries. The bank in our opinion is not concerned with any mistake made by the Accountant General or the treasury in sending the amounts to the bank for the credit of the same to the account of Sultan Mohd. If the Accountant General or the treasury had made any such mistake it was open to them to recover the amount paid in by mistake from Sultan Mohd. But the bank could not reverse the entries and thus pay out money from the account of Sultan Mohd. without his authority. It is obvious that the bank hesitated to reverse the entries and only did it on the threat that the amount would be deducted from the subsidy paid to the bank by the Government. We have no doubt that the High Court was right that in such circumstances where the amount had been paid even though by mistake into the account of a constituent of the bank it was not open to the bank to reverse the entries at the instance of the person paying-in the money into the constituents account on the ground that the payer had made a mistake. We agree with the High Court that S. 72 has no application to the facts of this case. Learned counsel for the appellant has referred us to Imperial Bank of Canada v. Bank of Hamilton, 1903 AC 49 in this connection. We are of opinion that that case has no application to the present cases, for the facts therein were different The payment had been made by one bank to another bank by mistake, there is nothing to show that the money had been paid into a constituents account and thereafter any entry had been reversed in that case.
|
Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal | economic and political, freedom from prejudices acquired and nurtured by the class to which the judges belong and the like. This wider concept of independence of judiciary finds mention in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and Others (1995) 5 SCC 457 , High Court of Judicature at Bombay v. Shashikant S. Patil (1997) 6 SCC 339 and Jasbir Singh v. State of Punjab (2006) 8 SCC 294. 87. In Supreme Court Advocates on Record Association (2016) (supra) on the aspect of the independence of the judiciary, it has been observed: 713. What are the attributes of an independent judiciaryIt is impossible to define them, except illustratively. At this stage, it is worth recalling the words of Sir Ninian Stephen, a former Judge of the High Court of Australia who memorably said: [An] independent judiciary, although a formidable protector of individual liberty, is at the same time a very vulnerable institution, a fragile bastion indeed. It is this fragile bastion that needs protection to maintain its independence and if this fragile bastion is subject to a challenge, constitutional protection is necessary. 714. The independence of the judiciary takes within its fold two broad concepts: (1) Independence of an individual Judge, that is, decisional independence; and (2) Independence of the judiciary as an institution or an organ of the State, that is, functional independence. In a lecture on Judicial Independence, Lord Phillips said: In order to be impartial a Judge must be independent; personally independent, that is free of personal pressures and institutionally independent, that is free of pressure from the State. xx xx xx 726. Generally speaking, therefore, the independence of the judiciary is manifested in the ability of a Judge to take a decision independent of any external (or internal) pressure or fear of any external (or internal) pressure and that is decisional independence. It is also manifested in the ability of the institution to have functional independence. A comprehensive and composite definition of independence of the judiciary is elusive but it is easy to perceive. It is clear from the aforesaid quoted passages that the independence of the judiciary refers to both decisional and functional independence. There is reference to a report titled Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights (Contributors: Professor Dr. Jutta Limbach, Professor Dr. Pedro Villalon, Roger Errera, The Rt Hon Lord Lester of Herne Hill QC, Professor Dr. Tamara Morschakova, The Rt Hon Lord Justice Sedley, Professor Dr. Andrzej Zoll.) which had observed that judges are not elected by the people (relevant in the context of India and the United Kingdom) and, therefore, derive their authority and legitimacy from their independence from political or other interference. 88. We have referred to the decisions and viewpoints to highlight the contentious nature of the issue of transparency, accountability and judicial independence with various arguments and counter- arguments on both sides, each of which commands merit and cannot be ignored. Therefore, it is necessary that the question of judicial independence is accounted for in the balancing exercise. It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information. Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. Further, while applying the proportionality test, the type and nature of the information is a relevant factor. Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision. In the former, public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the information provider, resulting from the furnishing of such details and particulars. The position represents a principled conflict between various factors in favour of disclosure and those in favour of withholding of information. Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future. Questions referred to the Constitution Bench are accordingly answered, observing that it is not possible to answer these questions in absolute terms, and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest. CONCLUSIONS | 0[ds]14. The Supreme Court of India, which is a public authority, would necessarily include the office of the Chief Justice of India and the judges in view of Article 124 of the Constitution. The office of the Chief Justice or for that matter the judges is not separate from the Supreme Court, and is part and parcel of the Supreme Court as a body, authority and institution. The Chief Justice and the Supreme Court are not two distinct and separate public authorities, albeit the latter is a public authority and the Chief Justice and the judges together form and constitute the public authority, that is, the Supreme Court of India. The interpretation to Section 2(h) cannot be made in derogation of the Constitution. To hold to the contrary would imply that the Chief Justice of India and the Supreme Court of India are two distinct and separate public authorities, and each would have their CPIOs and in terms of sub- section (3) to Section 6 of the RTI Act an application made to the CPIO of the Supreme Court or the Chief Justice would have to be transferred to the other when information is held or the subject matter is more closely connected with the functions of the other. This would lead to anomalies and difficulties as the institution, authority or body is one. The Chief Justice of India is the head of the institution and neither he nor his office is a separate public authority15. This is equally true and would apply to the High Courts in the country as Article 214 states that there shall be a High Court for each State and Article 216 states that every High Court shall consist of a Chief Justice and such other judges as the President of India may from time to time deem it appropriate to appoint19. When information is accessible by a public authority, that is, held or under its control, then the information must be furnished to the information seeker under the RTI Act even if there are conditions or prohibitions under another statute already in force or under the Official Secrets Act, 1923, that restricts or prohibits access to information by the public. In view of the non-obstante clause in Section 22 (Section 22 of the RTI Act reads: 22. Act to have overriding effect. -The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.) of the RTI Act, any prohibition or condition which prevents a citizen from having access to information would not apply. Restriction on the right of citizens is erased. However, when access to information by a public authority itself is prohibited or is accessible subject to conditions, then the prohibition is not obliterated and the pre-conditions are not erased. Section 2(f) read with Section 22 of the RTI Act does not bring any modification or amendment in any other enactment, which bars or prohibits or imposes pre-condition for accessing information of the private bodies. Rather, clause (f) to Section 2 upholds and accepts the said position when it uses the expression – which can be accessed, that is the public authority should be in a position and be entitled to ask for the said information. Section 22 of the RTI Act, an overriding provision, does not militate against the interpretation as there is no contradiction or conflict between the provisions of Section 2(f) of the RTI Act and other statutory enactments/law. Section 22 of the RTI Act is a key that unlocks prohibitions/limitations in any prior enactment on the right of a citizen to access information which is accessible by a public authority. It is not a key with the public authority that can be used to undo and erase prohibitions/limitations on the right of the public authority to access information. In other words, a private body will be entitled to the same protection as is available to them under the laws of this country20. Full Bench of the Delhi High Court in its judgment dated 12 th January 2010 in LPA No. 501 of 2009 had rightly on the interpretation of word held, referred to Philip Coppels work Information Rights (2 nd Edition, Thomson, Sweet & Maxwell 2007) (Also, see Philip Coppel, Information Rights (4 th Edition, Hart Publishing 2014) P. 361-62) interpreting the provisions of the Freedom of Information Act, 2000 (United Kingdom) in which it has been observed:When information is held by a public authoritythat is, without request or arrangement, sent to or deposited with a public authority which does not hold itself out as willing to receive it and which does not subsequently use it;that is accidentally left with a public authority;that just passes through a public authority; orthat belongs to an employee or officer of a public authority but which is brought by that employee or officer onto the public authoritys premises, will, it is suggested, lack the requisite assumption by the public authority of responsibility for or dominion over the information that is necessary before it can be said that the public authority can be said to hold the information. …Thereafter, the Full Bench had observed:59. Therefore, according to Coppel the word held suggests a relationship between a public authority and the information akin to that of an ownership or bailment of goods. In the law of bailment, a slight assumption of control of the chattel so deposited will render the recipient a depository (see Newman v. Bourne and Hollingsworth (1915) 31 T.L.R. 209). Where, therefore, information has been created, sought, used or consciously retained by a public authority will be information held within the meaning of the Act. However, if the information is sent to or deposited with the public authority which does not hold itself out as willing to receive it and which does not subsequently use it or where it is accidentally left with a public authority or just passes through a public authority or where it belongs to an employee or officer of a public authority but which is brought by that employee or officer unto the public authoritys premises it will not be information held by the public authority for the lack of the requisite assumption by the public authority of responsibility for or dominion over the information that is necessary before the public authority can be said to hold the information…Therefore, the word hold is not purely a physical concept but refers to the appropriate connection between the information and the authority so that it can properly be said that the information is held by the public authority.(New Castle upon Tyne v. Information Commissioner and British Union for Abolition of Vivisection, [2011] UKUT 185 AAC)21. In Khanapuram Gandaiah v. Administrative Officer and Others (2010) 2 SCC 1 , this Court on examining the definition clause 2(f) of the RTI Act had held as under:10. […] This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law.12. […] the Public Information Officer is not supposed to have any material which is not before him; or any information he could (sic not) have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the public authority under any other law for the time being in force. …The aforesaid observation emphasises on the mandatory requirement of accessibility of information by the public authority under any other law for the time being in force. This aspect was again highlighted by another Division Bench in Aditya Bandopadhyay (supra), wherein information was divided into three categories in the following words:59. The effect of the provisions and scheme of the RTI Act is to divide information into three categories. They are:(i) Information which promotes transparency and accountability in the working of every public authority, disclosure of which may also help in containing or discouraging corruption [enumerated in clauses (b) and (c) of Section 4(1) of the RTI Act](ii) Other information held by public authority [that is, all information other than those falling under clauses (b) and (c) of Section 4(1) of the RTI Act](iii) Information which is not held by or under the control of any public authority and which cannot be accessed by a public authority under any law for the time being in force.Information under the third category does not fall within the scope of the RTI Act. Section 3 of the RTI Act gives every citizen, the right to information held by or under the control of a public authority, which falls either under the first or second category. In regard to the information falling under the first category, there is also a special responsibility upon the public authorities to suo motu publish and disseminate such information so that they will be easily and readily accessible to the public without any need to access them by having recourse to Section 6 of the RTI Act. There is no such obligation to publish and disseminate the other information which falls under the second categoryThe first category refers to the information specified in clause (b) to sub-section (1) to Section 4 which consists of as many as seventeen sub-clauses on diverse subjects stated therein. It also refers to clause (c) to sub-section (1) to Section 4 by which public authority is required to publish all relevant facts while formulating important public policies or pronouncing its decision which affects the public. The rationale behind these clauses is to disseminate most of the information which is in the public interest and promote openness and transparency in government22. The expressions held by or under the control of any public authority and information accessible under this Act are restrictive (See Central Board of Secondary Education v. Aditya Bandopadhyay (2011) 8 SCC 497 ) and reflect the limits to the right to information conferred vide Section 3 of the RTI Act, which states that subject to the provisions of the RTI Act, all citizens shall have the right to information. The right to information is not absolute and is subject to the conditions and exemptions under the RTI Act23. This aspect was again highlighted when the terms information and right to information were interpreted in Thalappalam Service Cooperative Bank Limited (supra) with the following elucidation:63. Section 8 begins with a non obstante clause, which gives that section an overriding effect, in case of conflict, over the other provisions of the Act. Even if, there is any indication to the contrary, still there is no obligation on the public authority to give information to any citizen of what has been mentioned in clauses (a) to (j). The public authority, as already indicated, cannot access all the information from a private individual, but only those information which he is legally obliged to pass on to a public authority by law, and also only those information to which the public authority can have access in accordance with law. Even those information, if personal in nature, can be made available only subject to the limitations provided in Section 8(j) of the RTI Act. Right to be left alone, as propounded in Olmstead v. United States is the most comprehensive of the rights and most valued by civilised man67. The Registrar of Cooperative Societies functioning under the Cooperative Societies Act is a public authority within the meaning of Section 2(h) of the Act. As a public authority, the Registrar of Cooperative Societies has been conferred with lot of statutory powers under the respective Act under which he is functioning. He is also duty-bound to comply with the obligations under the RTI Act and furnish information to a citizen under the RTI Act. Information which he is expected to provide is the information enumerated in Section 2(f) of the RTI Act subject to the limitations provided under Section 8 of the Act. The Registrar can also, to the extent law permits, gather information from a Society, on which he has supervisory or administrative control under the Cooperative Societies Act. Consequently, apart from the information as is available to him, under Section 2(f), he can also gather those information from the society, to the extent permitted by law. The Registrar is also not obliged to disclose those information if those information fall under Section 8(1)(j) of the Act. No provision has been brought to our knowledge indicating that, under the Cooperative Societies Act, a Registrar can call for the details of the bank accounts maintained by the citizens or members in a cooperative bank. Only those information which a Registrar of Cooperative Societies can have access under the Cooperative Societies Act from a society could be said to be the information which is held or under the control of public authority. Even those information, the Registrar, as already indicated, is not legally obliged to provide if those information falls under the exempted category mentioned in Section 8(j) of the Act. Apart from the Registrar of Co-operative Societies, there may be other public authorities who can access information from a co-operative bank of a private account maintained by a member of society under law, in the event of which, in a given situation, the society will have to part with that information. But the demand should have statutory backing68. Consequently, if an information which has been sought for relates to personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the privacy of the individual, the Registrar of Cooperative Societies, even if he has got that information, is not bound to furnish the same to an applicant, unless he is satisfied that the larger public interest justifies the disclosure of such information, that too, for reasons to be recorded in writingThus, the scope of the expressions information and right to information which can be accessed by a citizen under the RTI Act have to be understood in light of the above discussion31. At the present stage, we would like to quote from Aditya Bandopadhyay (supra) wherein this Court, on the aspect of general principles of interpretation while deciding the conflict between the right to information and exclusions under Section 8 to 11 of the RTI Act, had observed:61. Some High Courts have held that Section 8 of the RTI Act is in the nature of an exception to Section 3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that, therefore, Section 8 should be construed strictly, literally and narrowly. This may not be the correct approach. The Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy. One is to bring about transparency and accountability by providing access to information under the control of public authorities. The other is to ensure that the revelation of information, in actual practice, does not conflict with other public interests which include efficient operation of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. The Preamble to the Act specifically states that the object of the Act is to harmonise these two conflicting interests. While Sections 3 and 4 seek to achieve the first objective, Sections 8, 9, 10 and 11 seek to achieve the second objective. Therefore, when Section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals62. When trying to ensure that the right to information does not conflict with several other public interests (which includes efficient operations of the Governments, preservation of confidentiality of sensitive information, optimum use of limited fiscal resources, etc.), it is difficult to visualise and enumerate all types of information which require to be exempted from disclosure in public interest. The legislature has however made an attempt to do so. The enumeration of exemptions is more exhaustive than the enumeration of exemptions attempted in the earlier Act, that is, Section 8 of the Freedom to Information Act, 2002. The courts and Information Commissions enforcing the provisions of the RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonises the two objects of the Act, while interpreting Section 8 and the other provisions of the Act63. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of Section 3 and the definitions of information and right to information under clauses (f) and (j) of Section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide advice or opinion to an applicant, nor required to obtain and furnish any opinion or advice to an applicant. The reference to opinion or advice in the definition of information in Section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI ActParagraph 63 quoted above has to be read with our observations on the last portion of clause (f) to Section 2 defining the word information, albeit, on the observations and findings recorded, we respectfully concur. For the present decision, we are required to primarily examine clauses (e) and (j) of sub-section (1) to Section 8 and Section 11 of the RTI Act32. Clause (e) to Section 8(1) of the RTI Act states that information made available to a person in his fiduciary relationship shall not be disclosed unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. The expression fiduciary relationship was examined and explained in Aditya Bandopadhyay (supra)This Court held that the exemption under section 8(1)(e) of the RTI Act does not apply to beneficiaries regarding whom the fiduciary holds information. In other words, information available with the public authority relating to beneficiaries cannot be withheld from or denied to the beneficiaries themselves. A fiduciary would, ergo, be duty-bound to make thorough disclosure of all relevant facts of all transactions between them in a fiduciary relationship to the beneficiary. In the facts of the said case, this Court had to consider whether an examining body, the Central Board of Secondary Education, held information in the form of evaluated answer-books of the examinees in fiduciary capacity. Answering in the negative, it was nevertheless observed that even if the examining body is in a fiduciary relationship with an examinee, it will be duty-bound to disclose the evaluated answer- books to the examinee and at the same time, they owe a duty to the examinee not to disclose the answer-books to anyone else, that is, any third party. This observation is of significant importance as it recognises that Section 8(1)(j), and as noticed below - Section 11, encapsulates another right, that is the right to protect privacy and confidentiality by barring the furnishing of information to third parties except when the public interest as prescribed so requires. In this way, the RTI Act complements both the right to information and the right to privacy and confidentiality. Further, it moderates and regulates the conflict between the two rights by applying the test of larger public interest or comparative examination of public interest in disclosure of information with possible harm and injury to the protected interests34. Fiduciary relationships, regardless of whether they are formal, informal, voluntary or involuntary, must satisfy the four conditions for a relationship to classify as a fiduciary relationship. In each of the four principles, the emphasis is on trust, reliance, the fiduciarys superior power or dominant position and corresponding dependence of the beneficiary on the fiduciary which imposes responsibility on the fiduciary to act in good faith and for the benefit of and to protect the beneficiary and not oneself. Section 8(1)(e) is a legal acceptance that there are ethical or moral relationships or duties in relationships that create rights and obligations, beyond contractual, routine or even special relationships with standard and typical rights and obligations. Contractual or non-fiduciary relationships could require that the party should protect and promote the interest of the other and not cause harm or damage, but the fiduciary relationship casts a positive obligation and demands that the fiduciary should protect the beneficiary and not promote personal self-interest. A fiduciarys loyalty, duties and obligations are stricter than the morals of the market place and it is not honesty alone, but the punctilio of an honour which is the most sensitive standard of behaviour which is applied See – Opinion of Cardozo, J. in Meinhard v. Salmon (1928) 164 N.E. 545, 546. Thus, the level of judicial scrutiny in cases of fiduciary relationship is intense as the level of commitment and loyalty expected is higher than non-fiduciary relationships. Fiduciary relationship may arise because of the statute which requires a fiduciary to act selflessly with integrity and fidelity and the other party, that is the beneficiary, depends upon the wisdom and confidence reposed in the fiduciary. A contractual, statutory and possibly all relationships cover a broad field, but a fiduciary relationship could exist, confined to a limited area or an act, as relationships can have several facets. Thus, relationships can be partly fiduciary and partly non-fiduciary with the former being confined to a particular act or action which need not manifest itself in entirety in the interaction and relationship between two parties. What would distinguish non-fiduciary relationship from fiduciary relationship or an act is the requirement of trust reposed, higher standard of good faith and honesty required on the part of the fiduciary with reference to a particular transaction(s) due to moral, personal or statutory responsibility of the fiduciary as compared to the beneficiary, resulting in dependence of the beneficiary. This may arise due to superior knowledge and training of the fiduciary or the position he occupies35. Ordinarily the relationship between the Chief Justice and judges would not be that of a fiduciary and a beneficiary. However, it is not an absolute rule/code for in certain situations and acts, fiduciary relationship may arise. Whether or not such a relationship arises in a particular situation would have to be dealt with on the tests and parameters enunciated above38. While previously information that could be considered personal would have been protected only if it were exchanged in a confidential relationship or considered confidential by nature, significant developments in jurisprudence since the 1990s have posited the acceptance of privacy as a separate right and something worthy of protection on its own as opposed to being protected under an actionable claim for breach of confidentiality. A claim to protect privacy is, in a sense, a claim for the preservation of confidentiality of personal information. With progression of the right to privacy, the underlying values of the law that protects personal information came to be seen differently as the courts recognised that unlike law of confidentiality that is based upon duty of good faith, right to privacy focuses on the protection of human autonomy and dignity by granting the right to control the dissemination of information about ones private life and the right to the esteem and respect of other people (See - Sedley LJ in Douglas v. Hello! Ltd (2001) QB 967). In PJS v. News Group Newspapers Ltd. (2016) UKSC 26, the Supreme Court of the United Kingdom had drawn a distinction between the right to respect private and family life or privacy and claims based upon confidentiality by observing that the law extends greater protection to privacy rights than rights in relation to confidential matters. In the former case, the claim for misuse of private information can survive even when information is in the public domain as its repetitive use itself leads to violation of the said right. The right to privacy gets the benefit of both the quantitative and the qualitative protection. The former refers to the disclosure already made and what is yet undisclosed, whereas the latter refers to the privateness of the material, invasion of which is an illegal intrusion into the right to privacy. Claim for confidentiality would generally fail when the information is in public domain. The law of privacy is, therefore, not solely concerned with the information, but more concerned with the intrusion and violation of private rights. Citing an instance of how publishing of defamatory material can be remedied by a trial establishing the falsity of such material and award of damages, whereas invasion of privacy cannot be similarly redressed, the Court had highlighted the reason why truth or falsity of an allegation or information may be irrelevant when it comes to invasion of privacy. Therefore, claims for protection against invasion of private and family life do not depend upon confidentiality alone. This distinction is important to understand the protection given to two different rights vide Section 8(1)(j) and 11 of the RTI Act42. Privacy, it is uniformly observed in K.S. Puttaswamy (supra), is essential for liberty and dignity. Therefore, individuals have the need to preserve an intrusion-free zone for their personality and family. This facilitates individual freedom. On the question of invasion of personal liberty, the main judgment has referred to a three-fold requirement in the form of – (i) legality, which postulates the existence of law (RTI Act in the present case); (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality, which ensures a rational nexus between the objects and the means to be adopted to achieve them. The third requirement, we would observe, is achieved in the present case by Sections 8(1)(j) and 11 of the RTI Act and the RTI Act cannot be faulted on this ground. The RTI Act also defines the legitimate aim, that is a public interest in the dissemination of information which can be confidential or private (or held in a fiduciary relationship) when larger public interest or public interest in disclosure outweighs the protection or any possible harm or injury to the interest of the third party46. For the purpose of the present case, we are not concerned with the specific connotations of the right to anonymity and the restrictions/limitations appended to it. In the context of the RTI Act, suffice would be to say that the right to protect identity and anonymity would be identically subjected to the public interest test47. Clause (j) to sub-section (1) of Section 8 of the RTI Act specifically refers to invasion of the right to privacy of an individual and excludes from disclosure information that would cause unwarranted invasion of privacy of such individual, unless the disclosure would satisfy the larger public interest test. This clause also draws a distinction in its treatment of personal information, whereby disclosure of such information is exempted if such information has no relation to public activity or interest. We would like to, however, clarify that in their treatment of this exemption, this Court has treated the word information which if disclosed would lead to invasion of privacy to mean personal information, as distinct from public information. This aspect has been dealt with in the succeeding paragraphs53. While clause (j) exempts disclosure of two kinds of information, as noted in paragraph 47 above, that is personal information with no relation to public activity or interest and information that is exempt from disclosure to prevent unwarranted invasion of privacy, this Court has not underscored, as will be seen below, such distinctiveness and treated personal information to be exempt from disclosure if such disclosure invades on balance the privacy rights, thereby linking the former kind of information with the latter kind. This means that information, which if disclosed could lead to an unwarranted invasion of privacy rights, would mean personal information, that is, which is not having co-relation with public information59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive61. We would clarify that Section 11 is not merely procedural but also a substantive provision which applies when the PIO intends to disclose information that relates to or has been supplied by a third party and has been treated as confidential by that third party. It requires the PIO to issue notice to the third party who may make submission in writing or orally, which submission has to be kept in view while taking a decision. Proviso to Section 11(1) applies in all cases except trade or commercial secrets protected by law. Pertinently, information including trade secrets, intellectual property rights, etc. are governed by clause (d) to sub-section (1) of Section 8 and Section 9 of the RTI Act. In all other cases where the information relates to or has been supplied by the third party and treated as confidential by that third party, disclosure in terms of the proviso may be allowed where the public interest in disclosure outweighs in importance any possible harm or injury to the interest of the third party. Confidentiality is protected and preserved in law because the public interest requires such protection. It helps and promotes free communication without fear of retaliation. However, public interest in protecting confidentiality is subject to three well-known exceptions. The first exception being a public interest in the disclosure of iniquity for there cannot be any loss of confidentiality involving a wrongdoing. Secondly, there cannot be any public interest when the public has been misled. Thirdly, the principle of confidentiality does not apply when the disclosure relates to matters of public concern, which expression is vastly different from news value or news to satiate public curiosity. Public concern relates to matters which are an integral part of free speech and expression and entitlement of everyone to truth and fair comment about it. There are certain circumstances where the public interest in maintaining confidentiality may be outweighed by the public interest in disclosure and, thus, in common law, it may not be treated by the courts as confidential information. These aspects would be relevant under the proviso to Section 11(1) of the RTI Act62. Proviso to Section 11(1) of the RTI Act is a statutory recognition of three exceptions and more when it incorporates public interest test. It states that information, otherwise treated confidential, can be disclosed if the public interest in disclosure outweighs the possible harm and injury to the interest of such a third party. The expression third party has been defined in clause (n) to Section 2 to mean a person other than the citizen making a request for information and includes a public authority. Thus, the scope of information under Section 11 is much broader than that of clause (j) to Section 8 (1), as it could include information that is personal as well as information that concerns the government and its working, among others, which relates to or is supplied by a third party and treated as confidential. Third-party could include any individual, natural or juristic entity including the public authority69. The aforesaid passages highlight the relevance of confidentiality in the government and its functioning. However, this is not to state that plea of confidentiality is an absolute bar, for in terms of proviso to Section 11(1) of the RTI Act, the PIO has to undertake the balancing exercise and weigh the advantages and benefits of disclosing the information with the possible harm or injury to the third party on the information being disclosed. We have already referred to the general approach on the right of access to government records under the heading Section 8(1)(j) and Section 11 of the RTI Act with reference to the decisions of the High Court of Australia in Heinemann Publishers Pty Ltd. (supra) and John Fairfax and Sons Ltd. (supra)70. Most jurists would accept that absolute transparency in all facets of government is neither feasible nor desirable, (Michael Schudson, The Right to Know vs the Need for Secrecy: The US Experience The Conversation (May 2015); Eric R. Boot, The Feasibility of a Public Interest Defense for Whistleblowing, Law and Philosophy (2019). See generally Michael Schudson, The Rise of the Right to Know: Politics and the Culture of Transparency, 1945–1975 (Cambridge (MA): Harvard University Press 2015).) for there are several limitations on complete disclosure of governmental information, especially in matters relating to national security, diplomatic relations, internal security or sensitive diplomatic correspondence. There is also a need to accept and trust the governments decision-makers, which they have to also earn, when they plead that confidentiality in their meetings andexchange of views is needed to have a free flow of views on sensitive, vexatious and pestilent issues in which there can be divergent views. This is, however, not to state that there are no dangers in maintaining secrecy even on aspects that relate to national security, diplomatic relations, internal security or sensitive diplomatic correspondence. Confidentiality may have some bearing and importance in ensuring honest and fair appraisals, though it could work the other way around also and, therefore, what should be disclosed would depend on authentic enquiry relating to the public interest, that is, whether the right to access and the right to know outweighs the possible public interest in protecting privacy or outweighs the harm and injury to third parties when the information relates to such third parties or the information is confidential in natureThe RTI Act is no exception. Section 8(1)(j) of the RTI Act prescribes the requirement of satisfaction of larger public interest for access to information when the information relates to personal information having no relationship with any public activity or interest, or would cause unwarranted invasion of privacy of the individual. Proviso to Section 11(1) states that except in case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interest of the third party. The words possible harm or injury to the interest of the third party is preceded by the word importance for the purpose of comparison. Possible in the context of the proviso does not mean something remote, far-fetched or hypothetical, but a calculable, foreseeable and substantial possibility of harm and injury to the third party73. Comparison or balancing exercise of competing public interests has to be undertaken in both sections, albeit under Section 8(1)(j) the comparison is between public interest behind the exemption, that is personal information or invasion of privacy of the individual and public interest behind access to information, whereas the test prescribed by the proviso to Section 11(1) is somewhat broader and wider as it requires comparison between disclosure of information relating to a third person or information supplied and treated as confidential by the third party and possible harm or injury to the third party on disclosure, which would include all kinds of possible harm and injury to the third party on disclosureThe RTI Act is no exception. Section 8(1)(j) of the RTI Act prescribes the requirement of satisfaction of larger public interest for access to information when the information relates to personal information having no relationship with any public activity or interest, or would cause unwarranted invasion of privacy of the individual. Proviso to Section 11(1) states that except in case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interest of the third party. The words possible harm or injury to the interest of the third party is preceded by the word importance for the purpose of comparison. Possible in the context of the proviso does not mean something remote, far-fetched or hypothetical, but a calculable, foreseeable and substantial possibility of harm and injury to the third party73. Comparison or balancing exercise of competing public interests has to be undertaken in both sections, albeit under Section 8(1)(j) the comparison is between public interest behind the exemption, that is personal information or invasion of privacy of the individual and public interest behind access to information, whereas the test prescribed by the proviso to Section 11(1) is somewhat broader and wider as it requires comparison between disclosure of information relating to a third person or information supplied and treated as confidential by the third party and possible harm or injury to the third party on disclosure, which would include all kinds of possible harm and injury to the third party on disclosure76. The public interest test in the context of the RTI Act would mean reflecting upon the object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to a particular information and the person75. Public interest in access to information refers to something that is in the interest of the public welfare to know. Public welfare is widely different from what is of interest to the public. Something which is of interest to the public and something which is in the public interest are two separate and different parameters. For example, the public may be interested in private matters with which the public may have no concern and pressing need to know. However, such interest of the public in private matters would repudiate and directly traverse the protection of privacy. The object and purpose behind the specific exemption vide clause (j) to Section 8(1) is to protect and shield oneself from unwarranted access to personal information and to protect facets like reputation, honour, etc. associated with the right to privacy. Similarly, there is a public interest in the maintenance of confidentiality in the case of private individuals and even government, an aspect we have already discussed78. Public interest has no relationship and is not connected with the number of individuals adversely affected by the disclosure which may be small and insignificant in comparison to the substantial number of individuals wanting disclosure. It will vary according to the information sought and all circumstances of the case that bear upon the public interest in maintaining the exemptions and those in disclosing the information must be accounted for to judge the right balance. Public interest is not immutable and even time-gap may make a significant difference. The type and likelihood of harm to the public interest behind the exemption and public interest in disclosure would matter. The delicate balance requires identification of public interest behind each exemption and then cumulatively weighing the public interest in accepting or maintaining the exemption(s) to deny information in a particular case against the public interest in disclosure in that particular case. Further, under Section 11(1), reference is made to the possible harm and injury to the third party which will also have to be factored in when determining disclosure of confidential information relating to the third parties79. The last aspect in the context of public interest test would be in the form of clarification as to the effect of sub-section (2) to Section 6 of the RTI Act which does not require the information seeker to give any reason for making a request for the information. Clearly, motive and purpose for making the request for information is irrelevant, and being extraneous cannot be a ground for refusing the information. However, this is not to state that motive and purpose may not be relevant factor while applying the public interest test in case of qualified exemptions governed by the public interest test. It is in this context that this Court in Aditya Bandopadhyay (supra) has held that beneficiary cannot be denied personal information relating to him. Similarly, in other cases, public interest may weigh in favour of the disclosure when the information sought may be of special interest or special significance to the applicant. It could equally be a negative factor when the motive and purpose is vexatious or it is a case of clear abuse of law80. In the RTI Act, in the absence of any positive indication as to the considerations which the PIO has to bear in mind while making a decision, the legislature had intended to vest a general discretion in the PIO to weigh the competing interests, which is to be limited only by the object, scope and purpose of the protection and the right to access information and in Section 11(1), the possible harm and injury to the third party. It imports a discretionary value judgment on the part of the PIO and the appellate forums as it mandates that any conclusion arrived at must be fair and just by protecting each right which is required to be upheld in public interest. There is no requirement to take a fortiori view that one trumps the otherIt is clear from the aforesaid quoted passages that the independence of the judiciary refers to both decisional and functional independence. There is reference to a report titled Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights (Contributors: Professor Dr. Jutta Limbach, Professor Dr. Pedro Villalon, Roger Errera, The Rt Hon Lord Lester of Herne Hill QC, Professor Dr. Tamara Morschakova, The Rt Hon Lord Justice Sedley, Professor Dr. Andrzej Zoll.) which had observed that judges are not elected by the people (relevant in the context of India and the United Kingdom) and, therefore, derive their authority and legitimacy from their independence from political or other interference88. We have referred to the decisions and viewpoints to highlight the contentious nature of the issue of transparency, accountability and judicial independence with various arguments and counter- arguments on both sides, each of which commands merit and cannot be ignored. Therefore, it is necessary that the question of judicial independence is accounted for in the balancing exercise. It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to betaken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information. Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. Further, while applying the proportionality test, the type and nature of the information is a relevant factor. Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision. In the former, public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the information provider, resulting from the furnishing of such details and particulars. The position represents a principled conflict between various factors in favour of disclosure and those in favour of withholding of information. Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the futureQuestions referred to the Constitution Bench are accordingly answered, observing that it is not possible to answer these questions in absolute terms, and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would beexempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interestThe aforesaid exemption originates from a long time of judge made law concerning breach of confidence (which are recently termed as misuse of private information)31. Section 8(1)(d) of the RTI Act has limited the action of defence of confidentiality to only commercial information, intellectual property rights and those which are concerned with maintaining the competitive superiority. Therefore, aforesaid section is only relatable to breach of confidence of commercial information as classically developed. Although there are examples wherein commercial confidentiality are also expanded to other types of breach of confidential information, however, under Section 8(1)(d) does not take into its fold such breach of confidential information actions32. Coming to other types of confidentiality, we need to note that the confidentiality cannot be only restricted to commercial confidentiality, rather needs to extend to other types of confidentialities as well. [Duchess of Argyll v. Duke of Argyll, 1967 Ch 302] Under the RTI Scheme such other confidential information are taken care under Section 11 of the RTI Act. The language and purport under Section 11 extends to all types of confidentialities, inclusive of both commercial and other types of confidentialities. The purport of this Section is that an opportunity should be provided to third party, who treats the information as confidential. The test of balancing public interest needs to be applied in cases of confidential information other than commercial information as well, under Section 11 of the RTI Act, as discussed. In this light, the concerned third parties need to be heard and thereafter the authorities are required to pass order as indicated herein. | 0 | 30,154 | 8,960 | ### 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:
economic and political, freedom from prejudices acquired and nurtured by the class to which the judges belong and the like. This wider concept of independence of judiciary finds mention in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and Others (1995) 5 SCC 457 , High Court of Judicature at Bombay v. Shashikant S. Patil (1997) 6 SCC 339 and Jasbir Singh v. State of Punjab (2006) 8 SCC 294. 87. In Supreme Court Advocates on Record Association (2016) (supra) on the aspect of the independence of the judiciary, it has been observed: 713. What are the attributes of an independent judiciaryIt is impossible to define them, except illustratively. At this stage, it is worth recalling the words of Sir Ninian Stephen, a former Judge of the High Court of Australia who memorably said: [An] independent judiciary, although a formidable protector of individual liberty, is at the same time a very vulnerable institution, a fragile bastion indeed. It is this fragile bastion that needs protection to maintain its independence and if this fragile bastion is subject to a challenge, constitutional protection is necessary. 714. The independence of the judiciary takes within its fold two broad concepts: (1) Independence of an individual Judge, that is, decisional independence; and (2) Independence of the judiciary as an institution or an organ of the State, that is, functional independence. In a lecture on Judicial Independence, Lord Phillips said: In order to be impartial a Judge must be independent; personally independent, that is free of personal pressures and institutionally independent, that is free of pressure from the State. xx xx xx 726. Generally speaking, therefore, the independence of the judiciary is manifested in the ability of a Judge to take a decision independent of any external (or internal) pressure or fear of any external (or internal) pressure and that is decisional independence. It is also manifested in the ability of the institution to have functional independence. A comprehensive and composite definition of independence of the judiciary is elusive but it is easy to perceive. It is clear from the aforesaid quoted passages that the independence of the judiciary refers to both decisional and functional independence. There is reference to a report titled Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights (Contributors: Professor Dr. Jutta Limbach, Professor Dr. Pedro Villalon, Roger Errera, The Rt Hon Lord Lester of Herne Hill QC, Professor Dr. Tamara Morschakova, The Rt Hon Lord Justice Sedley, Professor Dr. Andrzej Zoll.) which had observed that judges are not elected by the people (relevant in the context of India and the United Kingdom) and, therefore, derive their authority and legitimacy from their independence from political or other interference. 88. We have referred to the decisions and viewpoints to highlight the contentious nature of the issue of transparency, accountability and judicial independence with various arguments and counter- arguments on both sides, each of which commands merit and cannot be ignored. Therefore, it is necessary that the question of judicial independence is accounted for in the balancing exercise. It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information. Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. Further, while applying the proportionality test, the type and nature of the information is a relevant factor. Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision. In the former, public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the information provider, resulting from the furnishing of such details and particulars. The position represents a principled conflict between various factors in favour of disclosure and those in favour of withholding of information. Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the future. Questions referred to the Constitution Bench are accordingly answered, observing that it is not possible to answer these questions in absolute terms, and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest. CONCLUSIONS
### Response:
0
### Explanation:
by the object, scope and purpose of the protection and the right to access information and in Section 11(1), the possible harm and injury to the third party. It imports a discretionary value judgment on the part of the PIO and the appellate forums as it mandates that any conclusion arrived at must be fair and just by protecting each right which is required to be upheld in public interest. There is no requirement to take a fortiori view that one trumps the otherIt is clear from the aforesaid quoted passages that the independence of the judiciary refers to both decisional and functional independence. There is reference to a report titled Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights (Contributors: Professor Dr. Jutta Limbach, Professor Dr. Pedro Villalon, Roger Errera, The Rt Hon Lord Lester of Herne Hill QC, Professor Dr. Tamara Morschakova, The Rt Hon Lord Justice Sedley, Professor Dr. Andrzej Zoll.) which had observed that judges are not elected by the people (relevant in the context of India and the United Kingdom) and, therefore, derive their authority and legitimacy from their independence from political or other interference88. We have referred to the decisions and viewpoints to highlight the contentious nature of the issue of transparency, accountability and judicial independence with various arguments and counter- arguments on both sides, each of which commands merit and cannot be ignored. Therefore, it is necessary that the question of judicial independence is accounted for in the balancing exercise. It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to betaken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information. Reference to the principle of judicial independence is not to undermine and avoid accountability which is an aspect we perceive and believe has to be taken into account while examining the public interest in favour of disclosure of information. Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence. Further, while applying the proportionality test, the type and nature of the information is a relevant factor. Distinction must be drawn between the final opinion or resolutions passed by the collegium with regard to appointment/elevation and transfer of judges with observations and indicative reasons and the inputs/data or details which the collegium had examined. The rigour of public interest in divulging the input details, data and particulars of the candidate would be different from that of divulging and furnishing details of the output, that is the decision. In the former, public interest test would have to be applied keeping in mind the fiduciary relationship (if it arises), and also the invasion of the right to privacy and breach of the duty of confidentiality owed to the candidate or the information provider, resulting from the furnishing of such details and particulars. The position represents a principled conflict between various factors in favour of disclosure and those in favour of withholding of information. Transparency and openness in judicial appointments juxtaposed with confidentiality of deliberations remain one of the most delicate and complex areas. Clearly, the position is progressive as well as evolving as steps have been taken to make the selection and appointment process more transparent and open. Notably, there has been a change after concerns were expressed on disclosure of the names and the reasons for those who had not been approved. The position will keep forging new paths by taking into consideration the experiences of the past and the aspirations of the futureQuestions referred to the Constitution Bench are accordingly answered, observing that it is not possible to answer these questions in absolute terms, and that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would beexempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interestThe aforesaid exemption originates from a long time of judge made law concerning breach of confidence (which are recently termed as misuse of private information)31. Section 8(1)(d) of the RTI Act has limited the action of defence of confidentiality to only commercial information, intellectual property rights and those which are concerned with maintaining the competitive superiority. Therefore, aforesaid section is only relatable to breach of confidence of commercial information as classically developed. Although there are examples wherein commercial confidentiality are also expanded to other types of breach of confidential information, however, under Section 8(1)(d) does not take into its fold such breach of confidential information actions32. Coming to other types of confidentiality, we need to note that the confidentiality cannot be only restricted to commercial confidentiality, rather needs to extend to other types of confidentialities as well. [Duchess of Argyll v. Duke of Argyll, 1967 Ch 302] Under the RTI Scheme such other confidential information are taken care under Section 11 of the RTI Act. The language and purport under Section 11 extends to all types of confidentialities, inclusive of both commercial and other types of confidentialities. The purport of this Section is that an opportunity should be provided to third party, who treats the information as confidential. The test of balancing public interest needs to be applied in cases of confidential information other than commercial information as well, under Section 11 of the RTI Act, as discussed. In this light, the concerned third parties need to be heard and thereafter the authorities are required to pass order as indicated herein.
|
Mahadayal Premchandra Vs. Commercial Tax Officer Calcutta & Anr | goods and who has, in the customary course of business, authority to sell goods belonging to principals is a dealer ; Explanation 3 : -The manager or an agent in West Bengal of a dealer who resides outside West Bengal and carries on the business of selling goods in West Bengal shall, in respect of such business, be deemed to be a dealer ........................... (i)Turnover :-Used in relation to any period means the aggregate of the sale-prices or parts of sale-prices receivable, or if a dealer so elect, actually received by the dealer during such period after deducting the amounts, if any, refunded by the dealer in respect of any goods returned by the purchaser within such period. 21. It may be noted that under S. 4 of the Act every dealer whose gross turnover during the year immediately preceding the commencement of the Act exceeded the taxable quantum was liable to pay tax under the Act on all sales effected after the date so notified; and under S. 5 the tax payable by a dealer under the Act was levied at the rate therein specified on his taxable turnover. Unless, therefore the sales were effected by the dealer and the sale proceeds received by him such sales could not be included in his taxable turnover and he would not be liable to pay sales-tax thereon. 22. The position as it obtains in the present case is that even according to the first respondents own showing in the assessment order the sales in question were made by the Kanpur Woollen Mills, Kanpur, in West Bengal and they were primarily the dealers in regard to such sales. The appellants were however sought to be made liable to sales tax in respect of these sales by virtue of the expanded definition of the term dealer given in Explanation 3 to S. 2 (c) of the Act. The question, therefore, arises whether the appellants fall within the definition of dealer therein mentioned. 23. Explanation 2 to S. 2 (c) does not apply for the simple reason that even though the appellants were the commission agents of the Mills they had not in the customary course of business authority to sell-goods belonging to the principals. As a matter of fact Cl. 14 of the Agreement dated 2nd June 1952, in terms provided that the selling agents shall under no circumstances whatsoever make or purport to make or hold themselves out as empowered to make, on behalf of the Mills any contract or contracts for the purchase or supply of any goods manufactured by the Mills. Explanation 3 to S. 2 (c) was, therefore relied upon; but that so would not apply to the appellants. The appellants were no doubt agents of the Mills which resided outside West Bengal but it could not be said of them that they carried on the business of selling goods in West Bengal. The Mills had neither any office in West Bengal nor had they established any business through the appellants or otherwise of selling the goods in question in West Bengal. The only thing which was done in this connection was that the appellants canvassed orders as commission agents of the Mills in West Bengal and forwarded these orders to the Mills, which accepted them and executed the same. The privity of contract was established between the customers on the one hand and the Mills on the other; but, that also could only be on the acceptance of these orders by the Mills in Kanpur. Even through a number of orders placed in this manner by the appellants with the Mills were accepted by the Mills in Kanpur, it could not be said that the Mills were carrying on business of selling goods in West Bengal. The business was, if at all one of selling goods in Kanpur and despatching them to West Bengal for the purpose of consumption therein. These transaction were, therefore, not covered by the Explanation 3 to S. 2 (c) of the Act and the appellants could not in respect of such business be deemed to be a dealer within the meaning of that explanation. The position which was adopted by the first respondent, though under the behest of the Assistant Commissioner (C. S.) was therefore untenable. 24. A more formidable difficulty, however, faces the first respondent and it is that the sale price of the goods thus delivered by the Mills to the respective customers in West Bengal could not be included in the gross turnover of the appellants. The goods in question were directly supplied by the Mills to the customers, whether they were supplied in pursuance of the orders placed by the appellants with the Mills or were supplied in pursuance of orders directly placed by the customers with them. The invoices were all made out in the names of the customers and the relevant documents were negotiated by the Mills with the customers through the Banks. The customers released those documents from the Banks on payment of the relevant drafts and the sale price of the goods was thus received by the Mills through those Banks. At no time whatever was there any handling of the goods or the receipt of the sale price thereof by the appellants regard to the goods in question and under those circumstances the sale price thereof could not be included in the gross turnover of the appellants. If that was the true position, the appellants were not liable to sales-tax in respect of the disputed transactions, even though, per chance, they could be included within the expanded definition of Dealer in the Explanation 3 to S. 2 (c) of the Act - a contentions which we have already negatived. 25. It, therefore, follows that in regard to the disputed transactions which were of the total value of Rs. 6,21,369-10-3, the appellants were not at all liable to pay sales-tax thereupon and the first respondent was clearly in error in assessing the same to sales-tax. | 1[ds]19. We are really surprised at the manner in which the first respondent dealt with the matter of this assessment. It is clear that he did not exercise his own judgment in the matter and faithfully followed the instructions conveyed to him by the Assistant Commissioner (C. S.) without giving the appellants an opportunity to meet the points urged against them. The whole procedure was contrary to the principles of natural justice. The procedure adopted was, to say the least, unfair and was calculated to undermine the confidence of the public in the impartial and fair administration of the sales-tax Department concerned. We would have, simply on this ground, set aside the assessment order made by the first respondent and remanded the matter back to him for his due consideration in accordance with law; but as the matter is old and a remand would lead to unnecessary harassment of the appellants, we have preferred to deal with the appeal on merits25. It, therefore, follows that in regard to the disputed transactions which were of the total value of Rs. 6,21,369-10-3, the appellants were not at all liable to pay sales-tax thereupon and the first respondent was clearly in error in assessing the same to sales-tax24. A more formidable difficulty, however, faces the first respondent and it is that the sale price of the goods thus delivered by the Mills to the respective customers in West Bengal could not be included in the gross turnover of the appellants. The goods in question were directly supplied by the Mills to the customers, whether they were supplied in pursuance of the orders placed by the appellants with the Mills or were supplied in pursuance of orders directly placed by the customers with them. The invoices were all made out in the names of the customers and the relevant documents were negotiated by the Mills with the customers through the Banks. The customers released those documents from the Banks on payment of the relevant drafts and the sale price of the goods was thus received by the Mills through those Banks. At no time whatever was there any handling of the goods or the receipt of the sale price thereof by the appellants regard to the goods in question and under those circumstances the sale price thereof could not be included in the gross turnover of the appellants. If that was the true position, the appellants were not liable to sales-tax in respect of the disputed transactions, even though, per chance, they could be included within the expanded definition of Dealer in the Explanation 3 to S. 2 (c) of the Act - a contentions which we have already negatived23. Explanation 2 to S. 2 (c) does not apply for the simple reason that even though the appellants were the commission agents of the Mills they had not in the customary course of business authority to sell-goods belonging to the principals. As a matter of fact Cl. 14 of the Agreement dated 2nd June 1952, in terms provided that the selling agents shall under no circumstances whatsoever make or purport to make or hold themselves out as empowered to make, on behalf of the Mills any contract or contracts for the purchase or supply of any goods manufactured by the Mills. Explanation 3 to S. 2 (c) was, therefore relied upon; but that so would not apply to the appellants. The appellants were no doubt agents of the Mills which resided outside West Bengal but it could not be said of them that they carried on the business of selling goods in West Bengal. The Mills had neither any office in West Bengal nor had they established any business through the appellants or otherwise of selling the goods in question in West Bengal. The only thing which was done in this connection was that the appellants canvassed orders as commission agents of the Mills in West Bengal and forwarded these orders to the Mills, which accepted them and executed the same. The privity of contract was established between the customers on the one hand and the Mills on the other; but, that also could only be on the acceptance of these orders by the Mills in Kanpur. Even through a number of orders placed in this manner by the appellants with the Mills were accepted by the Mills in Kanpur, it could not be said that the Mills were carrying on business of selling goods in West Bengal. The business was, if at all one of selling goods in Kanpur and despatching them to West Bengal for the purpose of consumption therein. These transaction were, therefore, not covered by the Explanation 3 to S. 2 (c) of the Act and the appellants could not in respect of such business be deemed to be a dealer within the meaning of that explanation. The position which was adopted by the first respondent, though under the behest of the Assistant Commissioner (C. S.) was therefore untenable22. The position as it obtains in the present case is that even according to the first respondents own showing in the assessment order the sales in question were made by the Kanpur Woollen Mills, Kanpur, in West Bengal and they were primarily the dealers in regard to such sales. The appellants were however sought to be made liable to sales tax in respect of these sales by virtue of the expanded definition of the term dealer given in Explanation 3 to S. 2 (c) of the Act18. From the detailed narration of the facts regarding this particular assessment it is quite clear that the first respondent did not exercise his own judgment in the matter of the assessment in question. Even though he was convinced to the contrary, he asked for the instructions of the Assistant Commissioner (C. S.) and followed the same and assessed the appellants to sales-tax in respect of the disputed transactions.The order which he ultimately passed on 15th January 1955, further showed that he was merely voicing the opinion of the Assistant Commissioner (C. S.) without any conviction of his own and the only thing he had to say in regard to the various grounds mentioned in the letters dated 21st November 1953, and 19th June 1954, was that they appeared to him to be not at all satisfactory. This was hardly a satisfactory way of dealing with the matter. If the Assistant Commissioner (C. S.) had been dealing with the same he could have by all means given in the assessment order which he made his reasons for doing so and these reasons would have been open to scrutiny in further proceedings taken by the appellants either by way of appeal or otherwise.The Assistant Commissioner (C. S.) however, had delegated this work of assessment to the first respondent and then it was the duty of the first respondent to make the assessment order giving his own reasons for doing so.The file of the assessee, however, shows that even though the 1st respondent was satisfied on the materials placed by the appellants and their representative before him that the appellants were not liable to pay sales-tax in regard to these transactions, he referred the matter first for instructions and then for obtaining the valued opinion of his superior, the Assistant Commissioner (C. S.) and the latter expressed his opinion that the appellants were liable in respect of these transactions. All this was done behind the back of the appellants and the appellants had no opportunity of meeting the point of view which had been adopted by the Assistant Commissioner (C. S.) and the first respondent quietly followed these instructions and advice of the Assistant Commissioner (C. S.) | 1 | 4,332 | 1,384 | ### 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:
goods and who has, in the customary course of business, authority to sell goods belonging to principals is a dealer ; Explanation 3 : -The manager or an agent in West Bengal of a dealer who resides outside West Bengal and carries on the business of selling goods in West Bengal shall, in respect of such business, be deemed to be a dealer ........................... (i)Turnover :-Used in relation to any period means the aggregate of the sale-prices or parts of sale-prices receivable, or if a dealer so elect, actually received by the dealer during such period after deducting the amounts, if any, refunded by the dealer in respect of any goods returned by the purchaser within such period. 21. It may be noted that under S. 4 of the Act every dealer whose gross turnover during the year immediately preceding the commencement of the Act exceeded the taxable quantum was liable to pay tax under the Act on all sales effected after the date so notified; and under S. 5 the tax payable by a dealer under the Act was levied at the rate therein specified on his taxable turnover. Unless, therefore the sales were effected by the dealer and the sale proceeds received by him such sales could not be included in his taxable turnover and he would not be liable to pay sales-tax thereon. 22. The position as it obtains in the present case is that even according to the first respondents own showing in the assessment order the sales in question were made by the Kanpur Woollen Mills, Kanpur, in West Bengal and they were primarily the dealers in regard to such sales. The appellants were however sought to be made liable to sales tax in respect of these sales by virtue of the expanded definition of the term dealer given in Explanation 3 to S. 2 (c) of the Act. The question, therefore, arises whether the appellants fall within the definition of dealer therein mentioned. 23. Explanation 2 to S. 2 (c) does not apply for the simple reason that even though the appellants were the commission agents of the Mills they had not in the customary course of business authority to sell-goods belonging to the principals. As a matter of fact Cl. 14 of the Agreement dated 2nd June 1952, in terms provided that the selling agents shall under no circumstances whatsoever make or purport to make or hold themselves out as empowered to make, on behalf of the Mills any contract or contracts for the purchase or supply of any goods manufactured by the Mills. Explanation 3 to S. 2 (c) was, therefore relied upon; but that so would not apply to the appellants. The appellants were no doubt agents of the Mills which resided outside West Bengal but it could not be said of them that they carried on the business of selling goods in West Bengal. The Mills had neither any office in West Bengal nor had they established any business through the appellants or otherwise of selling the goods in question in West Bengal. The only thing which was done in this connection was that the appellants canvassed orders as commission agents of the Mills in West Bengal and forwarded these orders to the Mills, which accepted them and executed the same. The privity of contract was established between the customers on the one hand and the Mills on the other; but, that also could only be on the acceptance of these orders by the Mills in Kanpur. Even through a number of orders placed in this manner by the appellants with the Mills were accepted by the Mills in Kanpur, it could not be said that the Mills were carrying on business of selling goods in West Bengal. The business was, if at all one of selling goods in Kanpur and despatching them to West Bengal for the purpose of consumption therein. These transaction were, therefore, not covered by the Explanation 3 to S. 2 (c) of the Act and the appellants could not in respect of such business be deemed to be a dealer within the meaning of that explanation. The position which was adopted by the first respondent, though under the behest of the Assistant Commissioner (C. S.) was therefore untenable. 24. A more formidable difficulty, however, faces the first respondent and it is that the sale price of the goods thus delivered by the Mills to the respective customers in West Bengal could not be included in the gross turnover of the appellants. The goods in question were directly supplied by the Mills to the customers, whether they were supplied in pursuance of the orders placed by the appellants with the Mills or were supplied in pursuance of orders directly placed by the customers with them. The invoices were all made out in the names of the customers and the relevant documents were negotiated by the Mills with the customers through the Banks. The customers released those documents from the Banks on payment of the relevant drafts and the sale price of the goods was thus received by the Mills through those Banks. At no time whatever was there any handling of the goods or the receipt of the sale price thereof by the appellants regard to the goods in question and under those circumstances the sale price thereof could not be included in the gross turnover of the appellants. If that was the true position, the appellants were not liable to sales-tax in respect of the disputed transactions, even though, per chance, they could be included within the expanded definition of Dealer in the Explanation 3 to S. 2 (c) of the Act - a contentions which we have already negatived. 25. It, therefore, follows that in regard to the disputed transactions which were of the total value of Rs. 6,21,369-10-3, the appellants were not at all liable to pay sales-tax thereupon and the first respondent was clearly in error in assessing the same to sales-tax.
### Response:
1
### Explanation:
pursuance of orders directly placed by the customers with them. The invoices were all made out in the names of the customers and the relevant documents were negotiated by the Mills with the customers through the Banks. The customers released those documents from the Banks on payment of the relevant drafts and the sale price of the goods was thus received by the Mills through those Banks. At no time whatever was there any handling of the goods or the receipt of the sale price thereof by the appellants regard to the goods in question and under those circumstances the sale price thereof could not be included in the gross turnover of the appellants. If that was the true position, the appellants were not liable to sales-tax in respect of the disputed transactions, even though, per chance, they could be included within the expanded definition of Dealer in the Explanation 3 to S. 2 (c) of the Act - a contentions which we have already negatived23. Explanation 2 to S. 2 (c) does not apply for the simple reason that even though the appellants were the commission agents of the Mills they had not in the customary course of business authority to sell-goods belonging to the principals. As a matter of fact Cl. 14 of the Agreement dated 2nd June 1952, in terms provided that the selling agents shall under no circumstances whatsoever make or purport to make or hold themselves out as empowered to make, on behalf of the Mills any contract or contracts for the purchase or supply of any goods manufactured by the Mills. Explanation 3 to S. 2 (c) was, therefore relied upon; but that so would not apply to the appellants. The appellants were no doubt agents of the Mills which resided outside West Bengal but it could not be said of them that they carried on the business of selling goods in West Bengal. The Mills had neither any office in West Bengal nor had they established any business through the appellants or otherwise of selling the goods in question in West Bengal. The only thing which was done in this connection was that the appellants canvassed orders as commission agents of the Mills in West Bengal and forwarded these orders to the Mills, which accepted them and executed the same. The privity of contract was established between the customers on the one hand and the Mills on the other; but, that also could only be on the acceptance of these orders by the Mills in Kanpur. Even through a number of orders placed in this manner by the appellants with the Mills were accepted by the Mills in Kanpur, it could not be said that the Mills were carrying on business of selling goods in West Bengal. The business was, if at all one of selling goods in Kanpur and despatching them to West Bengal for the purpose of consumption therein. These transaction were, therefore, not covered by the Explanation 3 to S. 2 (c) of the Act and the appellants could not in respect of such business be deemed to be a dealer within the meaning of that explanation. The position which was adopted by the first respondent, though under the behest of the Assistant Commissioner (C. S.) was therefore untenable22. The position as it obtains in the present case is that even according to the first respondents own showing in the assessment order the sales in question were made by the Kanpur Woollen Mills, Kanpur, in West Bengal and they were primarily the dealers in regard to such sales. The appellants were however sought to be made liable to sales tax in respect of these sales by virtue of the expanded definition of the term dealer given in Explanation 3 to S. 2 (c) of the Act18. From the detailed narration of the facts regarding this particular assessment it is quite clear that the first respondent did not exercise his own judgment in the matter of the assessment in question. Even though he was convinced to the contrary, he asked for the instructions of the Assistant Commissioner (C. S.) and followed the same and assessed the appellants to sales-tax in respect of the disputed transactions.The order which he ultimately passed on 15th January 1955, further showed that he was merely voicing the opinion of the Assistant Commissioner (C. S.) without any conviction of his own and the only thing he had to say in regard to the various grounds mentioned in the letters dated 21st November 1953, and 19th June 1954, was that they appeared to him to be not at all satisfactory. This was hardly a satisfactory way of dealing with the matter. If the Assistant Commissioner (C. S.) had been dealing with the same he could have by all means given in the assessment order which he made his reasons for doing so and these reasons would have been open to scrutiny in further proceedings taken by the appellants either by way of appeal or otherwise.The Assistant Commissioner (C. S.) however, had delegated this work of assessment to the first respondent and then it was the duty of the first respondent to make the assessment order giving his own reasons for doing so.The file of the assessee, however, shows that even though the 1st respondent was satisfied on the materials placed by the appellants and their representative before him that the appellants were not liable to pay sales-tax in regard to these transactions, he referred the matter first for instructions and then for obtaining the valued opinion of his superior, the Assistant Commissioner (C. S.) and the latter expressed his opinion that the appellants were liable in respect of these transactions. All this was done behind the back of the appellants and the appellants had no opportunity of meeting the point of view which had been adopted by the Assistant Commissioner (C. S.) and the first respondent quietly followed these instructions and advice of the Assistant Commissioner (C. S.)
|
Lila Dhar Vs. State of Rajasthan and Others | by the Chairman, Rajasthan Public Service Commission on whose behalf a counter affidavit has been filed before us that the marks obtained by the candidates at the written examination were not made available to the members of the interview Board either before or at the time of the interview. We are unhesitatingly of the view that the selection cannot be struck down on the ground that more than due weightage was given to the interview test.The second ground of attack must fail for the same reason as the first ground of attack. The rules themselves do not provide for the allocation of marks under different heads at the interview test. Th e criteria for the interview test bas been laid down by the rules. lt is for the interviewing body to take a general decision whether to allocate marks under different heads or to award marks in a single lot. The award of marks under diff erent heads may lead to a distorted picture of the candidate on occasions. On the other hand the totality of the impression created by the candidate on the interviewing body may give a more accurate picture of the candidates personality. It is for the interviewing body to choose the appropriate method of marking at the selection to each service. There cannot be any magic formulae in these matters and courts cannot sit it judgment over the methods of marking employed by interviewing bodies unless, as we said, it is proven or obvious that the method of marking was chosen with oblique motive. 7. Both the cases cited before us Periakaruppans case and Ajay Hasias case were cases of admission to colleges. We have already pointed out that the provision for marks for interview test need not and cannot be the same for admission to colleges and entry into public services. In fact in Periakaruppans case, even in the case of college admissions the Court observed:"While we do feel that the marks allotted for interview are on the high side and it may be appropriate for the Government to re-examine the question, we are unable to uphold the contention that it was not within the power of the Government to provide such high marks for interview or that there was any arbitrary exercise of power". 8. It is true that in Periakaruppans case the Court held that the non allocation of marks under various heads in the interview test was illegal but that was because the instructions to the Selection Committee provided that marks were to be awarded at the interview on the basis of five distinct tests. It was thought that the failure to allocate marks under each head or distinct test was an illegality. But, in the case before us, the rule merely and generally indicates the criteria to be considered in the interview test without dividing the interview test into distinct, if we may so call them, sub-tests. We do not think that Periakaruppans case, which, as we said, deals with admission to a college, affords any true guidance to us. Ajay Hasias case was also a case of admission to a college. The Court while upholding the interview test as not irrational or irrelevant though unsatisfactory and capable of abuse, made the following observation:"We would, however, like to point out that in the matter of admission of colleges or even in t he matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification". 9. The Court then proceeded to consider the next question raised before them, whether the allocation of 33 113 percent of the total marks for the interview test vitiated the selection procedure as arbitrary and unreasonable. It was held that it did and reference was made to the fact that even for selection of candidate s for the Indian Administrative Service the marks allocated for the interview test were only 12.2 percent of the total. It was then observed,"under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid". The observations of the Court were made, primarily in connection with the problem of admission to colleges, where naturally, academic performance must be given prime importance. The words "or even in The matter of public employment" occurring in the first extracted passage and the reference to the marks allocated for the interview test in the Indian Administrative Service examination were not intended to lay down any wide, general rule that the same principle that applied in the matter of admission to colleges also applied in the matter of recruitment to public services. The observation relating to public employment was per incuriam since the matter did not fall for the consideration of the Court in that case. Nor do we think that the Court intended any wide construction of their observation. As already observed by us the w eight to be given to the interview test should depend on the requirement of the service to which recruitment is made, the source material available for recruitment, the composition of the interview Board and several like factors. Ordinarily recruitment to public services is regulated by rules made under the proviso to Art. 309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative w eight to be attached to the various tests. If we do that we would be rewriting the rules but we guard ourselves against being understood as saying that we would not interfere even in cases of proven or obvious oblique motive. There is none in the present case. | 0[ds]It is now well recognised that while a written examination assesses a candidates knowledge and intellectual ability, an interview test is valuable to assess a candidates overall intellectual and personal qualities. While a written examination has certain distinct advantage over the interview test there are yet no written tests which can evaluate a candidates initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness, in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrityThus, the written exa mination assesses the mans intellect and the interview test the man himself and "the twain shall meet" for a proper selection. If both written examination and interview test are to be essential features of proper selection, the question may aris e as to the weight to be attached respectively to them. In the case of admission to a college, for instance, where the candidates personality is yet to develop and it is too early to identify the personal qualities for which greater impo rtance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The importance to be attached to the interview test must be minimalIt is a matter for determination by experts. It is a matter for research. It is not for Courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives. The Kothari Committee also suggested that in view of the obvious importance of the subject, it may be examined in detail by the Research Unit of the Union of Public Service Commission.In this background, let us now examine the situation presented by the Rajasthan rules. The Rajasthan Judicial Service rules leave been made by the Governor of Rajasthan in consultation with the High Court of Rajasthan and the Rajasthan Public Service Commission. The High Court may be expected to know the precise requirements of the judicial service of the State and the calibre of the available source-material, while the Public Service Commission is an expert body thoroughly conversant with recruitment policies and selection methods. Both the High Court and the Public Service Commission are independent bodies, outside executive control, occupying special positions and enjoying special status under the constitution. Neither is an outside agency. Both are well-acquainted with the particular needs of their State and the peopleWe are unhesitatingly of the view that the selection cannot be struck down on the ground that more than due weightage was given to the interview test.The second ground of attack must fail for the same reason as the first ground of attack. The rules themselves do not provide for the allocation of marks under different heads at the interview test. Th e criteria for the interview test bas been laid down by the rules. lt is for the interviewing body to take a general decision whether to allocate marks under different heads or to award marks in a single lot. The award of marks under diff erent heads may lead to a distorted picture of the candidate on occasions. On the other hand the totality of the impression created by the candidate on the interviewing body may give a more accurate picture of the candidates personality. It is for the interviewing body to choose the appropriate method of marking at the selection to each service. There cannot be any magic formulae in these matters and courts cannot sit it judgment over the methods of marking employed by interviewing bodies unless, as we said, it is proven or obvious that the method of marking was chosen with oblique motiveThe Court then proceeded to consider the next question raised before them, whether the allocation of 33 113 percent of the total marks for the interview test vitiated the selection procedure as arbitrary and unreasonable. It was held that it did and reference was made to the fact that even for selection of candidate s for the Indian Administrative Service the marks allocated for the interview test were only 12.2 percent of the total. It was then observed,"under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid".The observations of the Court were made, primarily in connection with the problem of admission to colleges, where naturally, academic performance must be given prime importance. The words "or even in The matter of public employment" occurring in the first extracted passage and the reference to the marks allocated for the interview test in the Indian Administrative Service examination were not intended to lay down any wide, general rule that the same principle that applied in the matter of admission to colleges also applied in the matter of recruitment to public services. The observation relating to public employment was per incuriam since the matter did not fall for the consideration of the Court in that case. Nor do we think that the Court intended any wide construction of their observation. As already observed by us the w eight to be given to the interview test should depend on the requirement of the service to which recruitment is made, the source material available for recruitment, the composition of the interview Board and several like factors. Ordinarily recruitment to public services is regulated by rules made under the proviso to Art. 309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative w eight to be attached to the various tests. If we do that we would be rewriting the rules but we guard ourselves against being understood as saying that we would not interfere even in cases of proven or obvious oblique motive. There is none in the present case | 0 | 3,548 | 1,063 | ### 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:
by the Chairman, Rajasthan Public Service Commission on whose behalf a counter affidavit has been filed before us that the marks obtained by the candidates at the written examination were not made available to the members of the interview Board either before or at the time of the interview. We are unhesitatingly of the view that the selection cannot be struck down on the ground that more than due weightage was given to the interview test.The second ground of attack must fail for the same reason as the first ground of attack. The rules themselves do not provide for the allocation of marks under different heads at the interview test. Th e criteria for the interview test bas been laid down by the rules. lt is for the interviewing body to take a general decision whether to allocate marks under different heads or to award marks in a single lot. The award of marks under diff erent heads may lead to a distorted picture of the candidate on occasions. On the other hand the totality of the impression created by the candidate on the interviewing body may give a more accurate picture of the candidates personality. It is for the interviewing body to choose the appropriate method of marking at the selection to each service. There cannot be any magic formulae in these matters and courts cannot sit it judgment over the methods of marking employed by interviewing bodies unless, as we said, it is proven or obvious that the method of marking was chosen with oblique motive. 7. Both the cases cited before us Periakaruppans case and Ajay Hasias case were cases of admission to colleges. We have already pointed out that the provision for marks for interview test need not and cannot be the same for admission to colleges and entry into public services. In fact in Periakaruppans case, even in the case of college admissions the Court observed:"While we do feel that the marks allotted for interview are on the high side and it may be appropriate for the Government to re-examine the question, we are unable to uphold the contention that it was not within the power of the Government to provide such high marks for interview or that there was any arbitrary exercise of power". 8. It is true that in Periakaruppans case the Court held that the non allocation of marks under various heads in the interview test was illegal but that was because the instructions to the Selection Committee provided that marks were to be awarded at the interview on the basis of five distinct tests. It was thought that the failure to allocate marks under each head or distinct test was an illegality. But, in the case before us, the rule merely and generally indicates the criteria to be considered in the interview test without dividing the interview test into distinct, if we may so call them, sub-tests. We do not think that Periakaruppans case, which, as we said, deals with admission to a college, affords any true guidance to us. Ajay Hasias case was also a case of admission to a college. The Court while upholding the interview test as not irrational or irrelevant though unsatisfactory and capable of abuse, made the following observation:"We would, however, like to point out that in the matter of admission of colleges or even in t he matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification". 9. The Court then proceeded to consider the next question raised before them, whether the allocation of 33 113 percent of the total marks for the interview test vitiated the selection procedure as arbitrary and unreasonable. It was held that it did and reference was made to the fact that even for selection of candidate s for the Indian Administrative Service the marks allocated for the interview test were only 12.2 percent of the total. It was then observed,"under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid". The observations of the Court were made, primarily in connection with the problem of admission to colleges, where naturally, academic performance must be given prime importance. The words "or even in The matter of public employment" occurring in the first extracted passage and the reference to the marks allocated for the interview test in the Indian Administrative Service examination were not intended to lay down any wide, general rule that the same principle that applied in the matter of admission to colleges also applied in the matter of recruitment to public services. The observation relating to public employment was per incuriam since the matter did not fall for the consideration of the Court in that case. Nor do we think that the Court intended any wide construction of their observation. As already observed by us the w eight to be given to the interview test should depend on the requirement of the service to which recruitment is made, the source material available for recruitment, the composition of the interview Board and several like factors. Ordinarily recruitment to public services is regulated by rules made under the proviso to Art. 309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative w eight to be attached to the various tests. If we do that we would be rewriting the rules but we guard ourselves against being understood as saying that we would not interfere even in cases of proven or obvious oblique motive. There is none in the present case.
### Response:
0
### Explanation:
It is now well recognised that while a written examination assesses a candidates knowledge and intellectual ability, an interview test is valuable to assess a candidates overall intellectual and personal qualities. While a written examination has certain distinct advantage over the interview test there are yet no written tests which can evaluate a candidates initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness, in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrityThus, the written exa mination assesses the mans intellect and the interview test the man himself and "the twain shall meet" for a proper selection. If both written examination and interview test are to be essential features of proper selection, the question may aris e as to the weight to be attached respectively to them. In the case of admission to a college, for instance, where the candidates personality is yet to develop and it is too early to identify the personal qualities for which greater impo rtance may have to be attached in later life, greater weight has per force to be given to performance in the written examination. The importance to be attached to the interview test must be minimalIt is a matter for determination by experts. It is a matter for research. It is not for Courts to pronounce upon it unless exaggerated weight has been given with proven or obvious oblique motives. The Kothari Committee also suggested that in view of the obvious importance of the subject, it may be examined in detail by the Research Unit of the Union of Public Service Commission.In this background, let us now examine the situation presented by the Rajasthan rules. The Rajasthan Judicial Service rules leave been made by the Governor of Rajasthan in consultation with the High Court of Rajasthan and the Rajasthan Public Service Commission. The High Court may be expected to know the precise requirements of the judicial service of the State and the calibre of the available source-material, while the Public Service Commission is an expert body thoroughly conversant with recruitment policies and selection methods. Both the High Court and the Public Service Commission are independent bodies, outside executive control, occupying special positions and enjoying special status under the constitution. Neither is an outside agency. Both are well-acquainted with the particular needs of their State and the peopleWe are unhesitatingly of the view that the selection cannot be struck down on the ground that more than due weightage was given to the interview test.The second ground of attack must fail for the same reason as the first ground of attack. The rules themselves do not provide for the allocation of marks under different heads at the interview test. Th e criteria for the interview test bas been laid down by the rules. lt is for the interviewing body to take a general decision whether to allocate marks under different heads or to award marks in a single lot. The award of marks under diff erent heads may lead to a distorted picture of the candidate on occasions. On the other hand the totality of the impression created by the candidate on the interviewing body may give a more accurate picture of the candidates personality. It is for the interviewing body to choose the appropriate method of marking at the selection to each service. There cannot be any magic formulae in these matters and courts cannot sit it judgment over the methods of marking employed by interviewing bodies unless, as we said, it is proven or obvious that the method of marking was chosen with oblique motiveThe Court then proceeded to consider the next question raised before them, whether the allocation of 33 113 percent of the total marks for the interview test vitiated the selection procedure as arbitrary and unreasonable. It was held that it did and reference was made to the fact that even for selection of candidate s for the Indian Administrative Service the marks allocated for the interview test were only 12.2 percent of the total. It was then observed,"under the existing circumstances, allocation of more than 15% of the total marks for the oral interview would be arbitrary and unreasonable and would be liable to be struck down as constitutionally invalid".The observations of the Court were made, primarily in connection with the problem of admission to colleges, where naturally, academic performance must be given prime importance. The words "or even in The matter of public employment" occurring in the first extracted passage and the reference to the marks allocated for the interview test in the Indian Administrative Service examination were not intended to lay down any wide, general rule that the same principle that applied in the matter of admission to colleges also applied in the matter of recruitment to public services. The observation relating to public employment was per incuriam since the matter did not fall for the consideration of the Court in that case. Nor do we think that the Court intended any wide construction of their observation. As already observed by us the w eight to be given to the interview test should depend on the requirement of the service to which recruitment is made, the source material available for recruitment, the composition of the interview Board and several like factors. Ordinarily recruitment to public services is regulated by rules made under the proviso to Art. 309 of the Constitution and we would be usurping a function which is not ours, if we try to redetermine the appropriate method of selection and the relative w eight to be attached to the various tests. If we do that we would be rewriting the rules but we guard ourselves against being understood as saying that we would not interfere even in cases of proven or obvious oblique motive. There is none in the present case
|
A. Robert Vs. The United Insurance Co. Ltd | counsel for Respondent No.1 - Insurance Company in this appeal. The name of Respondent No. 2, who was the insured of the motor vehicle, has stood deleted and the SLP against him has been dismissed by order dated 14.9.1998 on account of absence of service to him. Hence, the question of statutory liability of the Insurance Company survives for our consideration. 2. The appellant at the age of 15 years met with a serious motor vehicle accident caused by the motor lorry belonging to the insured, the original respondent No. 2 which dashed against the appellant at Shivaji Nagar in Bangalore city on 17.6.1984. He suffered from various injuries which were decided as under :(i) Fracture of left humerus;(ii) Lacerated wound on the middle aspect of the left knee 3" wide and suspected fracture of pelvis; and(iii) cut wound over the lateral aspect of right knee 1/2" X 1/8".3. After the first aid, the appellant was referred to Orthopaedic wing of Bowring Hospital. One Dr. Hafeezullah treated the appellant and confirmed that the appellant suffered fracture of left humerus. The said fracture was reduced on conservative lines. The appellants left hand was put under plaster cast for six weeks. On account of the various injuries suffered by him due to the aforesaid motor accident, the appellant filed a claim petition under Section 110-A of the Motor Vehicles Act, 1939. The claim for compensation was for Rs. 2,83,000/- against the insured, driver of the motor vehicle as well as the Insurance Company, the remaining sole respondent in the present case.4. The Tribunal on diverse heads after hearing the parties, granted compensation of Rs. 99,000/- taking the view that the accident was caused due to rash and negligent driving of the insured lorry. The appellant in search of higher compensation filed an appeal in the High Court. The Insurance Company-the respondent herein filed cross-objections. The High Court substantially confirmed the award of the Tribunal but by correcting an arithmetical error reduced it to Rs. 96,500/-. The appellant-claimant has filed the present appeal for grant of higher compensation in the light of the injuries suffered by him.5. Even apart from the question whether the Insurance Company could have filed cross-objections challenging the quantum of compensation as granted by the Tribunal, we find that for the accidental injuries caused in the present case, the Insurance Companys statutory liability under the 1939 Act would be Rs. 1,50,000/- at the highest as the insured is now not a party respondent before us. The only question which survives for our consideration is whether the said statutory liability of the Insurance Company is required to be fully foisted on the respondent. 6. In order to decide this question, we have to look at the injuries suffered by the victim of the accident. The question of negligence of the lorry driver is no longer open for consideration in this appeal by the claimant and the Insurance Company also cannot have anything to say on this aspect. Therefore, proceeding on the basis that the accident was caused by rash and negligent driving of the driver of the offending motor lorry we have to see as to what is the appropriate compensation which could be awarded to the appellant. The Tribunal has noted, amongst others, the appellant suffered from the following injuries :1. Fracture of pelvis.2. Bladder was distended.3. Fracture of left humerus.7. It has been further observed in the light of the evidence of P.W. 1 that on 18.6.1984 he did the supra-pubic systostomy emergently. He inserted catheter over the urethra for the purpose of discharge of urine. On 8.2.1985 under general anaesthesia urethro-plasty was done by P.W. 1. The claimant was then examined by him as he was complaining burning sensation while passing urine with little difficulty. Subsequent X-rays taken showed that there was evidence of pyelonephritis on the right side i.e. inflammation in the right kidney. It was also found that there was stricture at the bulbo membranous region. The witness deposed that on 8.2.1986 dilatation was done under general anaesthesia. Because of the strictures referred to earlier the claimant had to undergo repeated dilatations throughout his life. On account of the stricture over urethra inflammation would be caused whenever there is blockage of urine. It has been further observed by the Tribunal that the claimant will have difficulty while passing urine throughout his life. If the urethra is affected, sexual life of the claimant will also be affected in future. It was also pointed out by P.W. 1 that the claimant had to undergo dilatation once in a month. All these evidence has stood well sustained on record. The evidence of P.W. 1 revealed that because of the injuries suffered by the claimant, a boy of 15 years, his future life is seriously affected including his sexual life. These are serious injuries which required appropriate compensation to be awarded on the head of pain, shock and suffering. The Tribunal granted on this head only Rs. 44,000/-. In our view, looking at the injuries which are permanent in nature suffered by the claimant and which have permanent adverse effect on his future healthy life including sexual life, an additional amount of at least Rs. 56,000/- was required to be granted to the claimant on the head of pain, shock and suffering so as to make it Rs. 1 lakh instead of Rs. 44,000/-. The High Court unfortunately has not considered the gravity of the injuries suffered by the claimant as established on record and, therefore, has confirmed the award of Rs. 44,000/- on the head of pain, shock and suffering. Once it is increased to Rs. 1 lakh, the total amount awardable to the claimant would work upto Rs, 1,52,500/-. However, the respondent-Insurance Companys statutory liability is confined to Rs. 1,50,000/-. We, therefore, confine the award to Rs, 1,50,000/- only which will include compensation already allowed on all remaining items of expenditure on nourishment, medical treatment, travelling expenses and for actual injuries and disablement suffered by the claimant. | 1[ds]The Tribunal has noted, amongst others, the appellant suffered from the following injuries :1. Fracture of pelvis.2. Bladder was distended.3. Fracture of left humerus.7. It has been further observed in the light of the evidence of P.W. 1 that on 18.6.1984 he did thesystostomy emergently. He inserted catheter over the urethra for the purpose of discharge of urine. On 8.2.1985 under general anaesthesiawas done by P.W. 1. The claimant was then examined by him as he was complaining burning sensation while passing urine with little difficulty. Subsequenttaken showed that there was evidence of pyelonephritis on the right side i.e. inflammation in the right kidney. It was also found that there was stricture at the bulbo membranous region. The witness deposed that on 8.2.1986 dilatation was done under general anaesthesia. Because of the strictures referred to earlier the claimant had to undergo repeated dilatations throughout his life. On account of the stricture over urethra inflammation would be caused whenever there is blockage of urine. It has been further observed by the Tribunal that the claimant will have difficulty while passing urine throughout his life. If the urethra is affected, sexual life of the claimant will also be affected in future. It was also pointed out by P.W. 1 that the claimant had to undergo dilatation once in a month. All these evidence has stood well sustained on record. The evidence of P.W. 1 revealed that because of the injuries suffered by the claimant, a boy of 15 years, his future life is seriously affected including his sexual life. These are serious injuries which required appropriate compensation to be awarded on the head of pain, shock and suffering. The Tribunal granted on this head only Rs.In our view, looking at the injuries which are permanent in nature suffered by the claimant and which have permanent adverse effect on his future healthy life including sexual life, an additional amount of at least Rs. 56,000/was required to be granted to the claimant on the head of pain, shock and suffering so as to make it Rs. 1 lakh instead of Rs.The High Court unfortunately has not considered the gravity of the injuries suffered by the claimant as established on record and, therefore, has confirmed the award of Rs. 44,000/on the head of pain, shock and suffering. Once it is increased to Rs. 1 lakh, the total amount awardable to the claimant would work upto Rs,nce Companys statutory liability is confined to Rs.We, therefore, confine the award to Rs, 1,50,000/only which will include compensation already allowed on all remaining items of expenditure on nourishment, medical treatment, travelling expenses and for actual injuries and disablement suffered by the claimant. | 1 | 1,136 | 497 | ### 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:
counsel for Respondent No.1 - Insurance Company in this appeal. The name of Respondent No. 2, who was the insured of the motor vehicle, has stood deleted and the SLP against him has been dismissed by order dated 14.9.1998 on account of absence of service to him. Hence, the question of statutory liability of the Insurance Company survives for our consideration. 2. The appellant at the age of 15 years met with a serious motor vehicle accident caused by the motor lorry belonging to the insured, the original respondent No. 2 which dashed against the appellant at Shivaji Nagar in Bangalore city on 17.6.1984. He suffered from various injuries which were decided as under :(i) Fracture of left humerus;(ii) Lacerated wound on the middle aspect of the left knee 3" wide and suspected fracture of pelvis; and(iii) cut wound over the lateral aspect of right knee 1/2" X 1/8".3. After the first aid, the appellant was referred to Orthopaedic wing of Bowring Hospital. One Dr. Hafeezullah treated the appellant and confirmed that the appellant suffered fracture of left humerus. The said fracture was reduced on conservative lines. The appellants left hand was put under plaster cast for six weeks. On account of the various injuries suffered by him due to the aforesaid motor accident, the appellant filed a claim petition under Section 110-A of the Motor Vehicles Act, 1939. The claim for compensation was for Rs. 2,83,000/- against the insured, driver of the motor vehicle as well as the Insurance Company, the remaining sole respondent in the present case.4. The Tribunal on diverse heads after hearing the parties, granted compensation of Rs. 99,000/- taking the view that the accident was caused due to rash and negligent driving of the insured lorry. The appellant in search of higher compensation filed an appeal in the High Court. The Insurance Company-the respondent herein filed cross-objections. The High Court substantially confirmed the award of the Tribunal but by correcting an arithmetical error reduced it to Rs. 96,500/-. The appellant-claimant has filed the present appeal for grant of higher compensation in the light of the injuries suffered by him.5. Even apart from the question whether the Insurance Company could have filed cross-objections challenging the quantum of compensation as granted by the Tribunal, we find that for the accidental injuries caused in the present case, the Insurance Companys statutory liability under the 1939 Act would be Rs. 1,50,000/- at the highest as the insured is now not a party respondent before us. The only question which survives for our consideration is whether the said statutory liability of the Insurance Company is required to be fully foisted on the respondent. 6. In order to decide this question, we have to look at the injuries suffered by the victim of the accident. The question of negligence of the lorry driver is no longer open for consideration in this appeal by the claimant and the Insurance Company also cannot have anything to say on this aspect. Therefore, proceeding on the basis that the accident was caused by rash and negligent driving of the driver of the offending motor lorry we have to see as to what is the appropriate compensation which could be awarded to the appellant. The Tribunal has noted, amongst others, the appellant suffered from the following injuries :1. Fracture of pelvis.2. Bladder was distended.3. Fracture of left humerus.7. It has been further observed in the light of the evidence of P.W. 1 that on 18.6.1984 he did the supra-pubic systostomy emergently. He inserted catheter over the urethra for the purpose of discharge of urine. On 8.2.1985 under general anaesthesia urethro-plasty was done by P.W. 1. The claimant was then examined by him as he was complaining burning sensation while passing urine with little difficulty. Subsequent X-rays taken showed that there was evidence of pyelonephritis on the right side i.e. inflammation in the right kidney. It was also found that there was stricture at the bulbo membranous region. The witness deposed that on 8.2.1986 dilatation was done under general anaesthesia. Because of the strictures referred to earlier the claimant had to undergo repeated dilatations throughout his life. On account of the stricture over urethra inflammation would be caused whenever there is blockage of urine. It has been further observed by the Tribunal that the claimant will have difficulty while passing urine throughout his life. If the urethra is affected, sexual life of the claimant will also be affected in future. It was also pointed out by P.W. 1 that the claimant had to undergo dilatation once in a month. All these evidence has stood well sustained on record. The evidence of P.W. 1 revealed that because of the injuries suffered by the claimant, a boy of 15 years, his future life is seriously affected including his sexual life. These are serious injuries which required appropriate compensation to be awarded on the head of pain, shock and suffering. The Tribunal granted on this head only Rs. 44,000/-. In our view, looking at the injuries which are permanent in nature suffered by the claimant and which have permanent adverse effect on his future healthy life including sexual life, an additional amount of at least Rs. 56,000/- was required to be granted to the claimant on the head of pain, shock and suffering so as to make it Rs. 1 lakh instead of Rs. 44,000/-. The High Court unfortunately has not considered the gravity of the injuries suffered by the claimant as established on record and, therefore, has confirmed the award of Rs. 44,000/- on the head of pain, shock and suffering. Once it is increased to Rs. 1 lakh, the total amount awardable to the claimant would work upto Rs, 1,52,500/-. However, the respondent-Insurance Companys statutory liability is confined to Rs. 1,50,000/-. We, therefore, confine the award to Rs, 1,50,000/- only which will include compensation already allowed on all remaining items of expenditure on nourishment, medical treatment, travelling expenses and for actual injuries and disablement suffered by the claimant.
### Response:
1
### Explanation:
The Tribunal has noted, amongst others, the appellant suffered from the following injuries :1. Fracture of pelvis.2. Bladder was distended.3. Fracture of left humerus.7. It has been further observed in the light of the evidence of P.W. 1 that on 18.6.1984 he did thesystostomy emergently. He inserted catheter over the urethra for the purpose of discharge of urine. On 8.2.1985 under general anaesthesiawas done by P.W. 1. The claimant was then examined by him as he was complaining burning sensation while passing urine with little difficulty. Subsequenttaken showed that there was evidence of pyelonephritis on the right side i.e. inflammation in the right kidney. It was also found that there was stricture at the bulbo membranous region. The witness deposed that on 8.2.1986 dilatation was done under general anaesthesia. Because of the strictures referred to earlier the claimant had to undergo repeated dilatations throughout his life. On account of the stricture over urethra inflammation would be caused whenever there is blockage of urine. It has been further observed by the Tribunal that the claimant will have difficulty while passing urine throughout his life. If the urethra is affected, sexual life of the claimant will also be affected in future. It was also pointed out by P.W. 1 that the claimant had to undergo dilatation once in a month. All these evidence has stood well sustained on record. The evidence of P.W. 1 revealed that because of the injuries suffered by the claimant, a boy of 15 years, his future life is seriously affected including his sexual life. These are serious injuries which required appropriate compensation to be awarded on the head of pain, shock and suffering. The Tribunal granted on this head only Rs.In our view, looking at the injuries which are permanent in nature suffered by the claimant and which have permanent adverse effect on his future healthy life including sexual life, an additional amount of at least Rs. 56,000/was required to be granted to the claimant on the head of pain, shock and suffering so as to make it Rs. 1 lakh instead of Rs.The High Court unfortunately has not considered the gravity of the injuries suffered by the claimant as established on record and, therefore, has confirmed the award of Rs. 44,000/on the head of pain, shock and suffering. Once it is increased to Rs. 1 lakh, the total amount awardable to the claimant would work upto Rs,nce Companys statutory liability is confined to Rs.We, therefore, confine the award to Rs, 1,50,000/only which will include compensation already allowed on all remaining items of expenditure on nourishment, medical treatment, travelling expenses and for actual injuries and disablement suffered by the claimant.
|
ASHWINI KUMAR UPADHYAY Vs. UNION OF INDIA | in any way professionally engaged. This prohibition, however, does not prevent an Advocate from bidding for or purchasing for his client any property, which his client may, himself legally bid for or purchase, provided the Advocate is expressly authorised in writing in this behalf. 22A. An advocate shall not directly or indirectly bid in court auction or acquire by way of sale, gift, exchange or any other mode of transfer either in his own name or in any other name for his own benefit or for the benefit of any other person any property which is subject matter of any suit appeal or other proceedings in which he is in any way professionally engaged. 23. An Advocate shall not adjust fee payable to him by his client against his own personal liability to the client, which liability does not arise in the course of his employment as an Advocate. 24. An Advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. 25. An Advocate should keep accounts of the client‘s money entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars. 26. Where moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses, and during the course of the proceedings, no Advocate shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees. 27. Where any amount is received or given to him on behalf of his client the fact of such receipt must be intimated to the client as early as possible. 28. After the termination of the proceeding the Advocate shall be at liberty to appropriate towards the settled fee due to him any sum remaining unexpended out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding. 29. Where the fee has been left unsettled, the Advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he had been engaged, the fee payable under the rules of the Court, in force for the time being, of by then settled and the balance, if any, shall be refunded to the client. 30. A copy of the client‘s account shall be furnished to him on demand provided the necessary copying charge is paid. 31. An Advocate shall not enter into arrangements whereby funds in his hands are converted into loans. 32. An Advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client. Explanation:- An Advocate shall not be held guilty for a breach of this rule, if in the course a pending suit or proceeding, and without any arrangement with the client in respect of the same, the Advocate feels compelled by reason of the rule of the Court to make a payment to the Court on account of the client for the progress of the suit of proceeding. 33. An Advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party shall not act, appear or plead for the opposite party. xxx xxx xxx" Resultantly, the case of professional misconduct will have to be pleaded and proved on case to case basis. 19. Thus, merely because the advocate concerned is an elected people‘s representative, it does not follow that he/she has indulged in professional misconduct. Similarly, the conferment of power on the legislators (MPs) to move an impeachment motion against the judge(s) of the Constitutional Courts does not per se result in conflict of interest or a case of impacting constitutional morality or for that matter institutional integrity. In the context of the relief claimed in the main petition, we do not wish to dilate on the other arguments that India needs dedicated and full-time legislators, who will sincerely attend Parliament on all working days when called upon to do so. For, the limited question considered by us is whether legislators are and can be prohibited from practising as advocates during the relevant period. That can be answered on the basis of the extant statutory provisions governing the conduct of advocates. As observed in Kalpana Mehta Vs. Union of India 10 , the Court cannot usurp the functions assigned to the legislature. In other words, sans any express restriction imposed by the Bar Council of India regarding the legislators to appear as an advocate, the relief as claimed by the petitioner cannot be countenanced. 20. To sum up, we hold that the provisions of the Act of 1961 and the Rules framed thereunder, do not place any restrictions on the legislators to practise as advocates during the relevant period. The closest rule framed by the Bar Council of India is Rule 49 which, however, has no application to the elected people‘s representatives as they do not fall in the category of full-time salaried employee of any person, firm, government, corporation or concern. As there is no express provision to prohibit or restrict the legislators from practising as advocates during the relevant period, the question of granting relief, as prayed, to debar them from practising as advocates cannot be countenanced. Even the alternative relief to declare Rule 49 as unconstitutional, does 10 (2018) 7 SCC 1 not commend to us. As of now, the Bar Council of India has made its stand explicitly clear that no such prohibition can be placed on the legislators. As a result, the reliefs claimed in this writ petition are devoid of merit. | 0[ds]10. It is indisputable that the Bar Council of India is bestowed with the function and duty to regulate enrollments of advocates and the terms and conditions of professional conduct of advocates. The conditions to be fulfilled for continuing as advocates, however, must be reasonable restrictions. The right to practise any profession in that sense is not an absolute right. At the same time, the restriction must be expressly stated either in the Advocates Act, 1961 or the Rules framed thereunder. Chapter IV of the said Act deals with the right to practise as an advocate. Section 49 of the said Act empowers the Bar Council of India to make Rules for discharging its functions under the Act on matters specified in(1) (a) to 1(j) therein. The Bar Council has already framed Rules regarding restrictions on other employment, in exercise of powers under Sections 16 (3) and 49(1)(g) of the said Act.There is no other express provision in the Act of 1961 or the Rules framed thereunder to even remotely suggest that any restriction has been imposed on the elected people‘s representatives, namely, MPs/MLAs/MLCs to continue to practise as advocates. In absence of an express restriction in that behalf, it is not open for this Court to debar the elected people‘s representatives from practising during the period when they are MPs/MLAs/MLCs. It is also not possible to strike down Rule 49 on the ground that the stated class of persons is excluded from its sweep, not being a case of discrimination between equals or unequals being treated equally. As expounded in the case of Dr. Haniraj L. Chulani (supra), it is for the Bar Council of India to frame Rules to impose restrictions as may be found appropriate. As of today, no rule has been framed to restrict the elected people‘s representatives from practising as advocates. On the other hand, an unambiguous stand is taken by the Bar Council that being legislators per se is not a disqualification to practice law.Our attention was invited to the judgment of the Constitution Bench in M. Karunanidhi (supra). In that case, the Court was called upon to examine the purport of Section 21(12) of the Indian Penal Code wherein the expression "public servant" has been defined to denote a person falling under any of the descriptions specified therein. Clause (12) of Section 21 postulates that every person in the service or "pay of the Government" or remunerated by fees or commission for the performance of any public duty by the Government. The question before the Constitution Bench was whether the Chief Minister or a Minister is deemed to be a public servant in any sense of the term. The Court noted that even though the Chief Minister may not stricto sensu be in the service of the Government which undoubtedly signifies the relationship of master and servant where the employer employs employee on the basis of salary or remuneration; but then the Court went on to observe that so far as the second limb of Section 21(12) of IPC is concerned it predicates "in the pay of the Government". That was of much wider amplitude so as to include within its ambit even public servant who may not be a regular employee receiving salary from his master. The Court then proceeded to consider the constitutional scheme whereunder the Chief Minister is "appointed" by the Governor and the duties to be performed by him in that capacity are defined. As the Court arrived at the conclusion that the Governor"appoints" the Chief Minister and is also paid a salary according to the statute made by the Legislature, from the Government funds it went on to conclude that the Chief Minister becomes a person "in the pay of the Government" so as to fall squarely within clause (12) of Section 21 of IPC.Thus, merely because the advocate concerned is an elected people‘s representative, it does not follow that he/she has indulged in professional misconduct. Similarly, the conferment of power on the legislators (MPs) to move an impeachment motion against the judge(s) of the Constitutional Courts does not per se result in conflict of interest or a case of impacting constitutional morality or for that matter institutional integrity. In the context of the relief claimed in the main petition, we do not wish to dilate on the other arguments that India needs dedicated andlegislators, who will sincerely attend Parliament on all working days when called upon to do so. For, the limited question considered by us is whether legislators are and can be prohibited from practising as advocates during the relevant period. That can be answered on the basis of the extant statutory provisions governing the conduct of advocates. As observed in Kalpana Mehta Vs. Union of India 10 , the Court cannot usurp the functions assigned to the legislature. In other words, sans any express restriction imposed by the Bar Council of India regarding the legislators to appear as an advocate, the relief as claimed by the petitioner cannot be countenanced.To sum up, we hold that the provisions of the Act of 1961 and the Rules framed thereunder, do not place any restrictions on the legislators to practise as advocates during the relevant period. The closest rule framed by the Bar Council of India is Rule 49 which, however, has no application to the elected people‘s representatives as they do not fall in the category ofsalaried employee of any person, firm, government, corporation or concern. As there is no express provision to prohibit or restrict the legislators from practising as advocates during the relevant period, the question of granting relief, as prayed, to debar them from practising as advocates cannot be countenanced. Even the alternative relief to declare Rule 49 as unconstitutional, does 10 (2018) 7 SCC 1 not commend to us. As of now, the Bar Council of India has made its stand explicitly clear that no such prohibition can be placed on the legislators. As a result, the reliefs claimed in this writ petition are devoid of merit. | 0 | 8,738 | 1,138 | ### 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:
in any way professionally engaged. This prohibition, however, does not prevent an Advocate from bidding for or purchasing for his client any property, which his client may, himself legally bid for or purchase, provided the Advocate is expressly authorised in writing in this behalf. 22A. An advocate shall not directly or indirectly bid in court auction or acquire by way of sale, gift, exchange or any other mode of transfer either in his own name or in any other name for his own benefit or for the benefit of any other person any property which is subject matter of any suit appeal or other proceedings in which he is in any way professionally engaged. 23. An Advocate shall not adjust fee payable to him by his client against his own personal liability to the client, which liability does not arise in the course of his employment as an Advocate. 24. An Advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. 25. An Advocate should keep accounts of the client‘s money entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars. 26. Where moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses, and during the course of the proceedings, no Advocate shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees. 27. Where any amount is received or given to him on behalf of his client the fact of such receipt must be intimated to the client as early as possible. 28. After the termination of the proceeding the Advocate shall be at liberty to appropriate towards the settled fee due to him any sum remaining unexpended out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding. 29. Where the fee has been left unsettled, the Advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he had been engaged, the fee payable under the rules of the Court, in force for the time being, of by then settled and the balance, if any, shall be refunded to the client. 30. A copy of the client‘s account shall be furnished to him on demand provided the necessary copying charge is paid. 31. An Advocate shall not enter into arrangements whereby funds in his hands are converted into loans. 32. An Advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client. Explanation:- An Advocate shall not be held guilty for a breach of this rule, if in the course a pending suit or proceeding, and without any arrangement with the client in respect of the same, the Advocate feels compelled by reason of the rule of the Court to make a payment to the Court on account of the client for the progress of the suit of proceeding. 33. An Advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party shall not act, appear or plead for the opposite party. xxx xxx xxx" Resultantly, the case of professional misconduct will have to be pleaded and proved on case to case basis. 19. Thus, merely because the advocate concerned is an elected people‘s representative, it does not follow that he/she has indulged in professional misconduct. Similarly, the conferment of power on the legislators (MPs) to move an impeachment motion against the judge(s) of the Constitutional Courts does not per se result in conflict of interest or a case of impacting constitutional morality or for that matter institutional integrity. In the context of the relief claimed in the main petition, we do not wish to dilate on the other arguments that India needs dedicated and full-time legislators, who will sincerely attend Parliament on all working days when called upon to do so. For, the limited question considered by us is whether legislators are and can be prohibited from practising as advocates during the relevant period. That can be answered on the basis of the extant statutory provisions governing the conduct of advocates. As observed in Kalpana Mehta Vs. Union of India 10 , the Court cannot usurp the functions assigned to the legislature. In other words, sans any express restriction imposed by the Bar Council of India regarding the legislators to appear as an advocate, the relief as claimed by the petitioner cannot be countenanced. 20. To sum up, we hold that the provisions of the Act of 1961 and the Rules framed thereunder, do not place any restrictions on the legislators to practise as advocates during the relevant period. The closest rule framed by the Bar Council of India is Rule 49 which, however, has no application to the elected people‘s representatives as they do not fall in the category of full-time salaried employee of any person, firm, government, corporation or concern. As there is no express provision to prohibit or restrict the legislators from practising as advocates during the relevant period, the question of granting relief, as prayed, to debar them from practising as advocates cannot be countenanced. Even the alternative relief to declare Rule 49 as unconstitutional, does 10 (2018) 7 SCC 1 not commend to us. As of now, the Bar Council of India has made its stand explicitly clear that no such prohibition can be placed on the legislators. As a result, the reliefs claimed in this writ petition are devoid of merit.
### Response:
0
### Explanation:
the Bar Council of India is bestowed with the function and duty to regulate enrollments of advocates and the terms and conditions of professional conduct of advocates. The conditions to be fulfilled for continuing as advocates, however, must be reasonable restrictions. The right to practise any profession in that sense is not an absolute right. At the same time, the restriction must be expressly stated either in the Advocates Act, 1961 or the Rules framed thereunder. Chapter IV of the said Act deals with the right to practise as an advocate. Section 49 of the said Act empowers the Bar Council of India to make Rules for discharging its functions under the Act on matters specified in(1) (a) to 1(j) therein. The Bar Council has already framed Rules regarding restrictions on other employment, in exercise of powers under Sections 16 (3) and 49(1)(g) of the said Act.There is no other express provision in the Act of 1961 or the Rules framed thereunder to even remotely suggest that any restriction has been imposed on the elected people‘s representatives, namely, MPs/MLAs/MLCs to continue to practise as advocates. In absence of an express restriction in that behalf, it is not open for this Court to debar the elected people‘s representatives from practising during the period when they are MPs/MLAs/MLCs. It is also not possible to strike down Rule 49 on the ground that the stated class of persons is excluded from its sweep, not being a case of discrimination between equals or unequals being treated equally. As expounded in the case of Dr. Haniraj L. Chulani (supra), it is for the Bar Council of India to frame Rules to impose restrictions as may be found appropriate. As of today, no rule has been framed to restrict the elected people‘s representatives from practising as advocates. On the other hand, an unambiguous stand is taken by the Bar Council that being legislators per se is not a disqualification to practice law.Our attention was invited to the judgment of the Constitution Bench in M. Karunanidhi (supra). In that case, the Court was called upon to examine the purport of Section 21(12) of the Indian Penal Code wherein the expression "public servant" has been defined to denote a person falling under any of the descriptions specified therein. Clause (12) of Section 21 postulates that every person in the service or "pay of the Government" or remunerated by fees or commission for the performance of any public duty by the Government. The question before the Constitution Bench was whether the Chief Minister or a Minister is deemed to be a public servant in any sense of the term. The Court noted that even though the Chief Minister may not stricto sensu be in the service of the Government which undoubtedly signifies the relationship of master and servant where the employer employs employee on the basis of salary or remuneration; but then the Court went on to observe that so far as the second limb of Section 21(12) of IPC is concerned it predicates "in the pay of the Government". That was of much wider amplitude so as to include within its ambit even public servant who may not be a regular employee receiving salary from his master. The Court then proceeded to consider the constitutional scheme whereunder the Chief Minister is "appointed" by the Governor and the duties to be performed by him in that capacity are defined. As the Court arrived at the conclusion that the Governor"appoints" the Chief Minister and is also paid a salary according to the statute made by the Legislature, from the Government funds it went on to conclude that the Chief Minister becomes a person "in the pay of the Government" so as to fall squarely within clause (12) of Section 21 of IPC.Thus, merely because the advocate concerned is an elected people‘s representative, it does not follow that he/she has indulged in professional misconduct. Similarly, the conferment of power on the legislators (MPs) to move an impeachment motion against the judge(s) of the Constitutional Courts does not per se result in conflict of interest or a case of impacting constitutional morality or for that matter institutional integrity. In the context of the relief claimed in the main petition, we do not wish to dilate on the other arguments that India needs dedicated andlegislators, who will sincerely attend Parliament on all working days when called upon to do so. For, the limited question considered by us is whether legislators are and can be prohibited from practising as advocates during the relevant period. That can be answered on the basis of the extant statutory provisions governing the conduct of advocates. As observed in Kalpana Mehta Vs. Union of India 10 , the Court cannot usurp the functions assigned to the legislature. In other words, sans any express restriction imposed by the Bar Council of India regarding the legislators to appear as an advocate, the relief as claimed by the petitioner cannot be countenanced.To sum up, we hold that the provisions of the Act of 1961 and the Rules framed thereunder, do not place any restrictions on the legislators to practise as advocates during the relevant period. The closest rule framed by the Bar Council of India is Rule 49 which, however, has no application to the elected people‘s representatives as they do not fall in the category ofsalaried employee of any person, firm, government, corporation or concern. As there is no express provision to prohibit or restrict the legislators from practising as advocates during the relevant period, the question of granting relief, as prayed, to debar them from practising as advocates cannot be countenanced. Even the alternative relief to declare Rule 49 as unconstitutional, does 10 (2018) 7 SCC 1 not commend to us. As of now, the Bar Council of India has made its stand explicitly clear that no such prohibition can be placed on the legislators. As a result, the reliefs claimed in this writ petition are devoid of merit.
|
Bhag Singh & Ors. Etc., Gurmukh Singh And Another Vs. State Of Punjab | According to the prosecution version, the occurrence in this case happened on the night of 27-1-1985 at about 8.00 P.M. when deceased Bagicha Singh was going in the company of PW-12, PW-13 and PW-14 to reach their village. They were waylaid by eight assailants including the appellants herein near the yard of one Harbans Singh. Appellant Gurmukh Singh (A-1) made an exhortation to his companion assailants to carry out the onslaughts for avenging the murder of his father Karnail Singh. A-4 Satnam Singh shot at the deceased with a gun and A-1 Gurmukh Singh, A-3 Gurbinder Singh and A-6 Gurbux Singh attacked the deceased with kirpans and A-2 Harjinder Singh with a spear. A-5 Mohinder Singh and A-7 Darshan Singh dealt blows on PW-13 Swarn Singh with kirpans while A-8 Bhag Singh fired a gun shot at him. As the assailants thought that their mission was accomplished, they all fled from the place with the weapons.4. Bagicha Singh died on the spot and PW-13 Swarn Singh injured was removed to the hospital. First Information was lodged by PW-14 Hardip Singh. All the accused were arrested and some weapons were recovered by the police and on completion of investigation, eight persons including the appellants were challaned. Though the Sessions Court convicted all the eight accused of offences of murder, attempt to commit murder and rioting etc, the High Court of Punjab and Haryana acquitted A-2 Harjinder Singh, A-4 Satnam Singh and A-5 Mohinder Singh. The conviction and sentence passed on the appellants were, however, confirmed by the High Court and hence these appeals by special leave. 5. There is no dispute that PW-13 Swarn Singh was present at the scene and he also sustained serious injuries including lacerated and incised wounds on the head. This fact helps us to agree with the finding of the two Courts that PW-13 Swarn Singh was able to see the assailants who attacked him and the deceased. He mentioned the names of the appellants as assailants without doubt. Evidence shows that it was a moonlit night. The other two eye witnesses - PW-12 Balkar Singh and PW-14 Hardip Singh-supported the version of PW-13 Swarn Singh.6. Learned counsel for the appellants adopted a three-pronged contention on the above evidence. First is, as the witnesses were all ill-disposed to the appellants by the fact that they were convicted in the earlier murder case (in which Karnail Singh died) on the strength of the evidence given by the appellants, the testimony of those witnesses ought not have been relied on. Second is, there was no reason for the appellants to persist with the revenge for the murder of Karnail Singh as the murderers were convicted by the court. Third is, it was impossible for any person to recount with meticulous exactitude the various individual acts done by each assailant and since the witnesses in this case have testified so, their testimony should have been rejected on that score alone. 7. It may be true that PW-12 Balkar Singh, PW-13 Swarn Singh and PW-14 Hardip Singh must have been simmering with grouse against the appellants for giving evidence against them which led to their conviction. Bad blood would have existed as between them. But it is a fact that PW-13 Swarn Singh had also suffered injuries in this occurrence. Hence it is most unlikely that he would have spared the actual assailants and falsely implicated these appellants merely because he is otherwise ill disposed to them. 8. It is in evidence that despite conviction and sentence passed on the accused in Karnail Singh murder case, they were released on bail as per orders of this Court during the pendency of the appeals filed by them. So the fact of conviction would not have quenched the revenging thirst towards the murderers of Karnail Singh. 9. The third point which was forcibly pressed into service by counsel is that no eyewitnesses can be expected to speak with precision regarding the respective roles played by each assailant including the situs of the body where each blow fell particularly since the occurrence happened during night time and in that case when the witnesses spoke with exactitude their testimony becomes highly incredible. 10. It is a general handicap attached to all eyewitnesses, if they fail to speak with precision their evidence would be assailed as vague and evsasive; on the contrary if they speak to all events very well and correctly, their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case, an eye witness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequences in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witnessed was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequences as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone.11. Here the trial Court which had the opportunity to hear the narration of the incident from those witnesses was impressed by the truth of the version. It is not fair to say now that the testimony of those witnesses deserved rejection for its precision. That apart, they would have spoken in the Court as answers to different questions put to them by the chief examiner. It depends on the ability of the chief examiner in eliciting answers from the witness in the correct order of events. Looking at the evidence from this angle we are not disposed to castigate the evidence of the eye witness in this case for speaking to the details correctly. | 0[ds]10. It is a general handicap attached to all eyewitnesses, if they fail to speak with precision their evidence would be assailed as vague and evsasive; on the contrary if they speak to all events very well and correctly, their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case, an eye witness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequences in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witnessed was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequences as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone.11. Here the trial Court which had the opportunity to hear the narration of the incident from those witnesses was impressed by the truth of the version. It is not fair to say now that the testimony of those witnesses deserved rejection for its precision. That apart, they would have spoken in the Court as answers to different questions put to them by the chief examiner. It depends on the ability of the chief examiner in eliciting answers from the witness in the correct order of events. Looking at the evidence from this angle we are not disposed to castigate the evidence of the eye witness in this case for speaking to the details correctly. | 0 | 1,218 | 328 | ### 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:
According to the prosecution version, the occurrence in this case happened on the night of 27-1-1985 at about 8.00 P.M. when deceased Bagicha Singh was going in the company of PW-12, PW-13 and PW-14 to reach their village. They were waylaid by eight assailants including the appellants herein near the yard of one Harbans Singh. Appellant Gurmukh Singh (A-1) made an exhortation to his companion assailants to carry out the onslaughts for avenging the murder of his father Karnail Singh. A-4 Satnam Singh shot at the deceased with a gun and A-1 Gurmukh Singh, A-3 Gurbinder Singh and A-6 Gurbux Singh attacked the deceased with kirpans and A-2 Harjinder Singh with a spear. A-5 Mohinder Singh and A-7 Darshan Singh dealt blows on PW-13 Swarn Singh with kirpans while A-8 Bhag Singh fired a gun shot at him. As the assailants thought that their mission was accomplished, they all fled from the place with the weapons.4. Bagicha Singh died on the spot and PW-13 Swarn Singh injured was removed to the hospital. First Information was lodged by PW-14 Hardip Singh. All the accused were arrested and some weapons were recovered by the police and on completion of investigation, eight persons including the appellants were challaned. Though the Sessions Court convicted all the eight accused of offences of murder, attempt to commit murder and rioting etc, the High Court of Punjab and Haryana acquitted A-2 Harjinder Singh, A-4 Satnam Singh and A-5 Mohinder Singh. The conviction and sentence passed on the appellants were, however, confirmed by the High Court and hence these appeals by special leave. 5. There is no dispute that PW-13 Swarn Singh was present at the scene and he also sustained serious injuries including lacerated and incised wounds on the head. This fact helps us to agree with the finding of the two Courts that PW-13 Swarn Singh was able to see the assailants who attacked him and the deceased. He mentioned the names of the appellants as assailants without doubt. Evidence shows that it was a moonlit night. The other two eye witnesses - PW-12 Balkar Singh and PW-14 Hardip Singh-supported the version of PW-13 Swarn Singh.6. Learned counsel for the appellants adopted a three-pronged contention on the above evidence. First is, as the witnesses were all ill-disposed to the appellants by the fact that they were convicted in the earlier murder case (in which Karnail Singh died) on the strength of the evidence given by the appellants, the testimony of those witnesses ought not have been relied on. Second is, there was no reason for the appellants to persist with the revenge for the murder of Karnail Singh as the murderers were convicted by the court. Third is, it was impossible for any person to recount with meticulous exactitude the various individual acts done by each assailant and since the witnesses in this case have testified so, their testimony should have been rejected on that score alone. 7. It may be true that PW-12 Balkar Singh, PW-13 Swarn Singh and PW-14 Hardip Singh must have been simmering with grouse against the appellants for giving evidence against them which led to their conviction. Bad blood would have existed as between them. But it is a fact that PW-13 Swarn Singh had also suffered injuries in this occurrence. Hence it is most unlikely that he would have spared the actual assailants and falsely implicated these appellants merely because he is otherwise ill disposed to them. 8. It is in evidence that despite conviction and sentence passed on the accused in Karnail Singh murder case, they were released on bail as per orders of this Court during the pendency of the appeals filed by them. So the fact of conviction would not have quenched the revenging thirst towards the murderers of Karnail Singh. 9. The third point which was forcibly pressed into service by counsel is that no eyewitnesses can be expected to speak with precision regarding the respective roles played by each assailant including the situs of the body where each blow fell particularly since the occurrence happened during night time and in that case when the witnesses spoke with exactitude their testimony becomes highly incredible. 10. It is a general handicap attached to all eyewitnesses, if they fail to speak with precision their evidence would be assailed as vague and evsasive; on the contrary if they speak to all events very well and correctly, their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case, an eye witness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequences in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witnessed was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequences as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone.11. Here the trial Court which had the opportunity to hear the narration of the incident from those witnesses was impressed by the truth of the version. It is not fair to say now that the testimony of those witnesses deserved rejection for its precision. That apart, they would have spoken in the Court as answers to different questions put to them by the chief examiner. It depends on the ability of the chief examiner in eliciting answers from the witness in the correct order of events. Looking at the evidence from this angle we are not disposed to castigate the evidence of the eye witness in this case for speaking to the details correctly.
### Response:
0
### Explanation:
10. It is a general handicap attached to all eyewitnesses, if they fail to speak with precision their evidence would be assailed as vague and evsasive; on the contrary if they speak to all events very well and correctly, their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case, an eye witness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequences in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witnessed was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequences as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone.11. Here the trial Court which had the opportunity to hear the narration of the incident from those witnesses was impressed by the truth of the version. It is not fair to say now that the testimony of those witnesses deserved rejection for its precision. That apart, they would have spoken in the Court as answers to different questions put to them by the chief examiner. It depends on the ability of the chief examiner in eliciting answers from the witness in the correct order of events. Looking at the evidence from this angle we are not disposed to castigate the evidence of the eye witness in this case for speaking to the details correctly.
|
Maneklal Chhotalal & Ors Vs. M. G. Makwana & Ors | Bearing these principles in mind, the question is whether the grievance of the petitioners, in this regard, is well founded. No doubt, it is seen that the petitioners, as stated earlier, have been allotted, under the Scheme. a smaller extent of land and they have also been directed to pay certain amounts as their share of contribution. But, having due regard to the scheme of the Act and the object sought to be achieved, such results are inevitable. At every stage, from the beginning to the end, we have already indicated, the Act and the Rules, make very elaborate provisions regarding the formalities to be gone through, by the local authority, by the State Government and by the usher authorities concerned, in the matter of preparing and finalising a Town Planning Scheme. At all stages, a very wide publicity is given by the authorities concerned, in the matter of making known its proposals to the public and to the owners of land who are sought to be affected by the Scheme. Provisions have been made for filing of objections and suggestions and the authorities being bound to take into account those objections and suggestions. The procedure to be adopted by the Town Planning Officer, in the matter of giving his decisions, on the various aspects referred to in S. 32 have been not only indicated, in that section, but also provided for, under the Rules.49. It is also seen from the affidavit of the petitioners themselves, that at all relevant stages, they have filed objections or suggestions before the appropriate authorities. Nor are we impressed with the contention advanced on behalf of the petitioners that there has been unfettered and arbitrary power vested in the Town Planning Officer in the matter of deciding the various points covered by S. 32 of the Act. We have already indicated that the procedure to be adopted by the Town Planning Officer has been dealt with elaborately, by the relevant rules.As to how exactly be has to decide the particular matters referred to in Cls. (iii), (viii). (ix), (xii) and (xii) of S. 32 (1) of the Act have been indicated in the reference made by those sub-clauses to Ss. 64, 65, 66, 67 and 68, respectively. Those sections have also been referred to by us earlier, and they give very clear indication as to what matters are to be adverted to by him, when a matter has to be decided in accordance with those sections.50. It is also seen from Cl. (e) of S. 26 (2) of the Act, that the primary intention in a draft Town Planning Scheme is to allot a plot to any owner dispossessed of land. With reference to very few people, to whom it may not be possible to allot any land, S. 71 comes into operation. Therefore, it will be seen that it is not as if the Town Planning Officer is left with any unguided discretion and arbitrary owner in dealing with matter under S. 32 (1).51. No doubt, every decision given by the Town Planning Officer, under S. 32, is not appealable, but some of the important decisions that are to be given by him, for instance, under Cls. (v), (vi), (viii), (ix), (x) and (xiii), are appealable under S. 34 to a Board of Appeal, which is presided over by a Judicial Officer of the standing of a District Judge. The procedure to be adopted by that Board is also clearly indicated in the rules. It is, after all these matters are gone through, that ultimately, the State Government sanctions the final Scheme.52. Therefore, having due regard to the substantive and procedural aspects, we are satisfied that the Act imposes only reasonable restrictions, in which case, it is saved under Art. 19(5) of the Constitution. The considerations referred to above will also show that the grievance of the petitioners that Art. 14 is violated, is also not acceptable.53. The petitioners, no doubt, urge that a very exorbitant price is being fixed by the Town Planning Officer regarding the value of the reconstituted plots allotted to them. Those are matters of detail, and they are covered by the provisions of the Act referred to above.54. The petitioners, no doubt, make a grievance of their having lost a fairly large extent of land, which, according to them, amounts to deprivation. We are not satisfied that the petitioners grievance is well founded in this regard. Though the petitioners may have originally owned larger extents of land, in different areas, which may or may not be fit for building purposes, there can be no controversy, that the reconstituted plots, though of a lesser area, have a higher value, as building sites, in view of the various improvements and amenities provided under the Town Planning scheme. What parties, like the petitioners, may have lost in actual area of land, can certainly be considered to have been more than sufficiently compensated by the increased value of the reconstituted plots. There is no question of any deprivation of property, therefore, so as to attract Art. 31.55. The petitioners make a grievance that they have to pay fairly large amounts by way of contribution to the Scheme. No doubt, the petitioners stand appears to be that the amount collected or demanded is really a tax, or fee, at any rate, which also the local authority has no right to ask for. Here again, the matter will have to be approached in an entirely different way. The amount that the petitioners have been asked to contribute is only towards the cost of the Scheme, which has to be incurred by the local authority. As to how exactly that contribution is to be worked out and the proportion in which the plots are to bear that burden, have all been indicated in the Act. Therefore, the liability of the petitioners to pay contribution has to be upheld, once we come to the conclusion that the Act. as a whole, will have to be sustained.56. | 0[ds]We have already very elaborately referred to the various provisions contained in the Act and we have also pointed out that the original Act of 1915 was passed with a view to regulate the development of certain areas with the general object of framing proper schemes for the healthy, orderly, development of the area in question and it is with a view to achieve this purpose that a very elaborate procedure and machinery has been prescribed in the Act. Therefore, the contention of learned counsel for the appellant that the State Legislature was not competent to enact the statute, in question, cannot be accepted.No doubt, every decision given by the Town Planning Officer, under S. 32, is not appealable, but some of the important decisions that are to be given by him, for instance, under Cls. (v), (vi), (viii), (ix), (x) and (xiii), are appealable under S. 34 to a Board of Appeal, which is presided over by a Judicial Officer of the standing of a District Judge. The procedure to be adopted by that Board is also clearly indicated in the rules. It is, after all these matters are gone through, that ultimately, the State Government sanctions the final Scheme.Therefore, having due regard to the substantive and procedural aspects, we are satisfied that the Act imposes only reasonable restrictions, in which case, it is saved under Art. 19(5) of the Constitution. The considerations referred to above will also show that the grievance of the petitioners that Art. 14 is violated, is also not acceptable.The petitioners, no doubt, urge that a very exorbitant price is being fixed by the Town Planning Officer regarding the value of the reconstituted plots allotted to them. Those are matters of detail, and they are covered by the provisions of the Act referred to above.The petitioners, no doubt, make a grievance of their having lost a fairly large extent of land, which, according to them, amounts to deprivation. We are not satisfied that the petitioners grievance is well founded in this regard. Though the petitioners may have originally owned larger extents of land, in different areas, which may or may not be fit for building purposes, there can be no controversy, that the reconstituted plots, though of a lesser area, have a higher value, as building sites, in view of the various improvements and amenities provided under the Town Planning scheme. What parties, like the petitioners, may have lost in actual area of land, can certainly be considered to have been more than sufficiently compensated by the increased value of the reconstituted plots. There is no question of any deprivation of property, therefore, so as to attract Art. 31.The petitioners make a grievance that they have to pay fairly large amounts by way of contribution to the Scheme. No doubt, the petitioners stand appears to be that the amount collected or demanded is really a tax, or fee, at any rate, which also the local authority has no right to ask for. Here again, the matter will have to be approached in an entirely different way. The amount that the petitioners have been asked to contribute is only towards the cost of the Scheme, which has to be incurred by the local authority. As to how exactly that contribution is to be worked out and the proportion in which the plots are to bear that burden, have all been indicated in the Act. Therefore, the liability of the petitioners to pay contribution has to be upheld, once we come to the conclusion that the Act. as a whole, will have to be sustained. | 0 | 9,211 | 694 | ### 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:
Bearing these principles in mind, the question is whether the grievance of the petitioners, in this regard, is well founded. No doubt, it is seen that the petitioners, as stated earlier, have been allotted, under the Scheme. a smaller extent of land and they have also been directed to pay certain amounts as their share of contribution. But, having due regard to the scheme of the Act and the object sought to be achieved, such results are inevitable. At every stage, from the beginning to the end, we have already indicated, the Act and the Rules, make very elaborate provisions regarding the formalities to be gone through, by the local authority, by the State Government and by the usher authorities concerned, in the matter of preparing and finalising a Town Planning Scheme. At all stages, a very wide publicity is given by the authorities concerned, in the matter of making known its proposals to the public and to the owners of land who are sought to be affected by the Scheme. Provisions have been made for filing of objections and suggestions and the authorities being bound to take into account those objections and suggestions. The procedure to be adopted by the Town Planning Officer, in the matter of giving his decisions, on the various aspects referred to in S. 32 have been not only indicated, in that section, but also provided for, under the Rules.49. It is also seen from the affidavit of the petitioners themselves, that at all relevant stages, they have filed objections or suggestions before the appropriate authorities. Nor are we impressed with the contention advanced on behalf of the petitioners that there has been unfettered and arbitrary power vested in the Town Planning Officer in the matter of deciding the various points covered by S. 32 of the Act. We have already indicated that the procedure to be adopted by the Town Planning Officer has been dealt with elaborately, by the relevant rules.As to how exactly be has to decide the particular matters referred to in Cls. (iii), (viii). (ix), (xii) and (xii) of S. 32 (1) of the Act have been indicated in the reference made by those sub-clauses to Ss. 64, 65, 66, 67 and 68, respectively. Those sections have also been referred to by us earlier, and they give very clear indication as to what matters are to be adverted to by him, when a matter has to be decided in accordance with those sections.50. It is also seen from Cl. (e) of S. 26 (2) of the Act, that the primary intention in a draft Town Planning Scheme is to allot a plot to any owner dispossessed of land. With reference to very few people, to whom it may not be possible to allot any land, S. 71 comes into operation. Therefore, it will be seen that it is not as if the Town Planning Officer is left with any unguided discretion and arbitrary owner in dealing with matter under S. 32 (1).51. No doubt, every decision given by the Town Planning Officer, under S. 32, is not appealable, but some of the important decisions that are to be given by him, for instance, under Cls. (v), (vi), (viii), (ix), (x) and (xiii), are appealable under S. 34 to a Board of Appeal, which is presided over by a Judicial Officer of the standing of a District Judge. The procedure to be adopted by that Board is also clearly indicated in the rules. It is, after all these matters are gone through, that ultimately, the State Government sanctions the final Scheme.52. Therefore, having due regard to the substantive and procedural aspects, we are satisfied that the Act imposes only reasonable restrictions, in which case, it is saved under Art. 19(5) of the Constitution. The considerations referred to above will also show that the grievance of the petitioners that Art. 14 is violated, is also not acceptable.53. The petitioners, no doubt, urge that a very exorbitant price is being fixed by the Town Planning Officer regarding the value of the reconstituted plots allotted to them. Those are matters of detail, and they are covered by the provisions of the Act referred to above.54. The petitioners, no doubt, make a grievance of their having lost a fairly large extent of land, which, according to them, amounts to deprivation. We are not satisfied that the petitioners grievance is well founded in this regard. Though the petitioners may have originally owned larger extents of land, in different areas, which may or may not be fit for building purposes, there can be no controversy, that the reconstituted plots, though of a lesser area, have a higher value, as building sites, in view of the various improvements and amenities provided under the Town Planning scheme. What parties, like the petitioners, may have lost in actual area of land, can certainly be considered to have been more than sufficiently compensated by the increased value of the reconstituted plots. There is no question of any deprivation of property, therefore, so as to attract Art. 31.55. The petitioners make a grievance that they have to pay fairly large amounts by way of contribution to the Scheme. No doubt, the petitioners stand appears to be that the amount collected or demanded is really a tax, or fee, at any rate, which also the local authority has no right to ask for. Here again, the matter will have to be approached in an entirely different way. The amount that the petitioners have been asked to contribute is only towards the cost of the Scheme, which has to be incurred by the local authority. As to how exactly that contribution is to be worked out and the proportion in which the plots are to bear that burden, have all been indicated in the Act. Therefore, the liability of the petitioners to pay contribution has to be upheld, once we come to the conclusion that the Act. as a whole, will have to be sustained.56.
### Response:
0
### Explanation:
We have already very elaborately referred to the various provisions contained in the Act and we have also pointed out that the original Act of 1915 was passed with a view to regulate the development of certain areas with the general object of framing proper schemes for the healthy, orderly, development of the area in question and it is with a view to achieve this purpose that a very elaborate procedure and machinery has been prescribed in the Act. Therefore, the contention of learned counsel for the appellant that the State Legislature was not competent to enact the statute, in question, cannot be accepted.No doubt, every decision given by the Town Planning Officer, under S. 32, is not appealable, but some of the important decisions that are to be given by him, for instance, under Cls. (v), (vi), (viii), (ix), (x) and (xiii), are appealable under S. 34 to a Board of Appeal, which is presided over by a Judicial Officer of the standing of a District Judge. The procedure to be adopted by that Board is also clearly indicated in the rules. It is, after all these matters are gone through, that ultimately, the State Government sanctions the final Scheme.Therefore, having due regard to the substantive and procedural aspects, we are satisfied that the Act imposes only reasonable restrictions, in which case, it is saved under Art. 19(5) of the Constitution. The considerations referred to above will also show that the grievance of the petitioners that Art. 14 is violated, is also not acceptable.The petitioners, no doubt, urge that a very exorbitant price is being fixed by the Town Planning Officer regarding the value of the reconstituted plots allotted to them. Those are matters of detail, and they are covered by the provisions of the Act referred to above.The petitioners, no doubt, make a grievance of their having lost a fairly large extent of land, which, according to them, amounts to deprivation. We are not satisfied that the petitioners grievance is well founded in this regard. Though the petitioners may have originally owned larger extents of land, in different areas, which may or may not be fit for building purposes, there can be no controversy, that the reconstituted plots, though of a lesser area, have a higher value, as building sites, in view of the various improvements and amenities provided under the Town Planning scheme. What parties, like the petitioners, may have lost in actual area of land, can certainly be considered to have been more than sufficiently compensated by the increased value of the reconstituted plots. There is no question of any deprivation of property, therefore, so as to attract Art. 31.The petitioners make a grievance that they have to pay fairly large amounts by way of contribution to the Scheme. No doubt, the petitioners stand appears to be that the amount collected or demanded is really a tax, or fee, at any rate, which also the local authority has no right to ask for. Here again, the matter will have to be approached in an entirely different way. The amount that the petitioners have been asked to contribute is only towards the cost of the Scheme, which has to be incurred by the local authority. As to how exactly that contribution is to be worked out and the proportion in which the plots are to bear that burden, have all been indicated in the Act. Therefore, the liability of the petitioners to pay contribution has to be upheld, once we come to the conclusion that the Act. as a whole, will have to be sustained.
|
Air India Cabin Crew Association Vs. Yeshawinee Merchant | of the parties to undertake the exercise of merging of two cadres. 74. It is true that the pending dispute before the National Industrial Tribunal is between employees of India Airlines and its employer but there is ample material on record to show that Air India and its important employees associations have been noticed to participate in the pending dispute before the National Industrial Tribunal. It is also on record that statements of claims have been submitted by appellants/All India Cabin Crew Association as also by the respondent/association. The respondent/association, only after it succeeded in the petition before the High Court and could get a favourable judgment, which is subject matter of these appeals before us, withdrew their claims from the National Industrial Tribunal. When the matter of fixing the terms and conditions of employees of Indian Airlines, in which Air India and its employees had also been noticed, was pending before the National Industrial Tribunal, it was wholly uncalled for the High Court to have allowed the employer to come forward with proposals for creating parity in age of superannuation between air hostesses and flight pursers only on the condition of merging of the two cadres with withdrawal of all earlier benefits conferred on air hostesses like accelerated promotions, higher salaries, higher allowances and pension packages. Proceedings under Article 226 of the Constitution, are neither appropriate nor a substitute of industrial adjudication in the industrial courts and tribunals constituted in industrial law. In our opinion, the High Court was clearly in error in exceeding its jurisdiction by trenching upon an industrial field and adjudicating disputes inter se employer and employees and employees. Before the High Court not all the parties likely to be affected were the parties to the writ petitions. The appellant/All India Cabin Crew Association was only allowed intervention and it could not have foreseen that conditions of service of both male and female members working in cabin would be adversely affected by High Court by recording a so called consensual order directing merger of cadres. The consensual order seriously prejudices the air hostesses of the workman category represented by appellant/AICCA. The order freezes their salaries and allowances for two years, forces them to opt within a month as to whether they would fly after 50 year of age or not, makes their duties interchangeable and forces them to continue with the arduous jobs with males on board with flight duties up to the age of 58 years. 75. It is also to be noted that Air India Officers Association as one of the appellants on leave before us was not even a party before the High Court. The impugned judgment rendered in favour of the respondent/association comprising air hostesses of executive category has also adversely affected the service conditions of its male and female members of officers category. The High Court, therefore, adopted a hazardous course of fixing the terms and conditions of employees of Air India of various categories of males and females which was an exercise to be undertaken in pending industrial dispute before the National Industrial Tribunal. 76. A request was made in the course of hearing on behalf of the some of the parties that this Court should direct the National Industrial Tribunal to decide the disputes inter se Air India and its employees - males and females. 77. On behalf of the All India Cabin Crew Association, an alternative submission has been made that the ideal situation for them would be that the air hostesses are allowed more than one option. They may be allowed to retire from flight duties at the age of 50 years, to opt for ground duties after the age of 50 years up to 58 years of age or to opt flight duties throughout up to the age of 58 years. Whether such several options can be given and would be condusive to an efficient and sound management of the business of the employer is a matter better left for adjudication to a legally chosen industrial forum by the parties. 78. We do not consider it proper or necessary for us to make any direction in the pending reference to the National Industrial Tribunal as in doing so, we would be committing a similar mistake as was done by the High Court.79. It is open to the Central Government to enlarge the terms of the reference under section 10 of the Industrial Disputes Act to specifically include for adjudication the dispute of Air India and its employees and/or the employees inter se. It would also be open to the air hostesses represented by appellant/AICCA and the respondent/AHSA to make their demands in the pending reference before the Tribunal by seeking a fresh reference from the Central Government. It would be than open to the National Industrial Tribunal to take a fair and just decision in accordance with law after examining all aspects of the matter, on hearing the employer and considering its business and administrative exigencies. 80. Lastly in desperate attempt, to support a part of the judgment of the High Court which declares denial of flight duties to the air hostesses up to the age of 58 years at par with males as invalid, on behalf of the respondents/associations, an alternative submission is advanced that the other part of the impugned judgment whereby conditional proposal of Air India or merger of the two cadres [males and females] was accepted, may alone be quashed and the remaining part be left undisturbed and intact as valid. 81. In view of the detailed discussion of the various grounds urged before us, we have held that both impugned parts of the judgment of the High Court are unsustainable. It is, therefore, not possible for us to accept the alternative submission made on behalf of the respondents/associations that since two parts of the impugned judgment are severable, one of the parts fixing age of retirement for air hostesses on flight duties up to the age of 58 years be upheld. | 1[ds]50. We have already found above that early retirement age fixed for women for flying duties with option to them to go after 50 years of age to ground duties is a condition of service fixed after negations and settlements with association of air hostesses represented by AICCA with appropriately matching numerous advantages and betterment to match the. We have also found that early retirement age for women from flying duties has been found favourable by majority of air hostesses represented through the appellant/AICCA before us who support the age of retirement and option for ground duties given to them. Air India is a travel industry. Pleasing appearance, manners and physical fitness are required for members of the crew of both sexes. The air hostesses have agreed to the early retirement age, as they need an option to go for ground duties after the age of 50 years. The arguments advanced on behalf of respondent/association, therefore, cannot be accepted that the air hostesses are made to retire at an age earlier than males because of their failing physical appearance and it is a practice derogatory to the dignity of women. For services on board of an Air Craft both male and female members of the crew are expected to be smart, alert and agile.51. The early retirement age of 50 years from flying duties for female members of the crew with an option to them to accept ground duties beyond 50 years up to the age of 58 years being a service condition agreed to and incorporated in a binding agreement or settlement and award reached with the employer, the same cannot be held to be either arbitrary or discriminatory under Articles 15 and 16 of the Constitution. It is not a discrimination against females only on ground of sex. As a result of the impugned judgment of the High Court, there would be merger of two cadres of air hostesses and flight pursers and the air hostesses would have to compulsorily continue on flying duties up to the age of 58 years even though for health and family reasons they are unable to fly after the age of 50 years. On the order of the High Court and after the merger of cadres of male and female employees, the females have to resign from their jobs if they do not want to fly up to the age of 58 years. The order of the High Court requires the air hostesses to give up their more advantageous conditions of service for which they had held negotiations with the employer and obtained binding settlements and awards in the course of industrial adjudication.52. The decision in Nergesh Meerzas case (supra) was binding on the High Court. The High Court was clearly wrong in holding that it had become inapplicable by passage of time. It is not open to a High Court to indirectly overrule a judgment of this Court or try to sidetrack it on the basis of subsequent events which were not relevant for pre-1997 recruits. The separation of male and female cadres with differences in their conditions of service, seniority, emoluments and allowances remained unchanged for pre-1997 recruits and the merger has taken place only for male and female new recruits after 1997.53. For the aforesaid reasons, we do not find that the conditions of services applicable to the air hostesses both presently working in air or on ground are discriminatory under Articles 14, 15 and 16 of the Constitution.The term and condition of age of retirement settled in course of industrial adjudication by air hostesses through their associations is a term and condition of their employment fixed in accordance with the adjudicatory machinery provided in Industrial Law. It gives them a special treatment as found by them to be favourable to them. We have already noticed that there is nothing objectionable for the air hostesses to agree for a lower retirement age from flight duties with option for grounds duties after the age of 50 years up to the age of 58 years. Duties on flight demand of air hostesses physical fitness, agility and alertness.60. A service condition giving a special treatment to women is saved by clause a) of Section 15 of the E.R. Act of 1976. It is also saved by sub-clause (ii) of clause b) of the said section which allows special treatment to women in terms and conditions of service relating to retirement. We, therefore, hold that the early age retirement policy of airhostesses in Air India does not contravene Section 5 of the E.R. Act of 1976 and otherwise, it is saved by section 15(a) and 15(b)(ii) of the E.R. Act of 1976. The challenge, therefore, to the terms and conditions of early retirement of air hostesses and option to them to go for ground duties up to the age of 58 years, fails. These terms and conditions are now part of Statutory Regulations w.e.f. 30.3.2000, framed under Air Corporation Act and Standing Order framed under Industrial Employment (Standing Order) Act, 1946 w.e.f. 21.10.2000.In our opinion, the above affidavit should be held to be decisive with regard to the effect and efficacy of the clarificatory letter dated 29.12.1989. The direction of the Central Government under Section 34 of the Act of 1953 have to be understood on the basis of both the communications dated 16.10.1989 and 29.12.1989. Reading them together the directive can only be construed to mean that the air hostesses have to be continued in service up to the age f 58 years and as per the terms and settlements reached between the parties they can be assigned ground duties at their option after retirement from flight duties at the age of 45 years which is now raised to 50 years.In our opinion, reference to Article 77 is wholly inappropriate. The exercise of statutory power under section 34 by the Central Government, even though not expressed to have been taken in the name of President, does not render it invalid. Clause 2 of Article 77 insulates an executive action of the government formally taken in the name of President from challenge on the ground that it is not an order or instrument made or executed by the President. Even if an executive action of the Central Government is not formally expressed to have been taken in the name of President, Article 77 does not provide that it would, therefore, be rendered void or invalid. We need not, therefore, deal with the argument advanced on the basis of Article 77 of the Constitution because the respondent/association itself is relying on the directive dated 16.10.1989 of the Central Government which is not formally expressed in the name of President in terms of Article 77 of the Constitution.In view of the detailed discussion of the various grounds urged before us, we have held that both impugned parts of the judgment of the High Court are unsustainable. It is, therefore, not possible for us to accept the alternative submission made on behalf of the respondents/associations that since two parts of the impugned judgment are severable, one of the parts fixing age of retirement for air hostesses on flight duties up to the age of 58 years be upheld.We have already dealt with the challenge made to the retirement of the air hostesses from flight duties at the age of 50 years and grounding them thereafter up to the age of 58 years. We have held that the conditions of retirement hare not a discrimination based only on sex. The dir4ecties issued by the Central Government, therefore, also cannot be held to be in any manner in violation of Articles 14, 15 and 16 of the Constitution or the provisions of Equal Remuneration Act, 1976.We have already held above that the High Court committed a serious error of procedure and law in entertaining proposals from the employer - the Air India Limited and accepting them as consented by all parties, to make it as a part of its judgment. We have already held that Nergesh Meerzas case (supra) was binding on the High Court and could not have been sidetracked by observing that by passage of time the cadres of flight pursers and air hostesses have virtually been merged and the distinction between them has been obliterated. We have also held that such conclusion on the part of the High Court is not borne out fro the facts on record. The two cadres of males and females on cabin came to be merged only after the year 1997 for fresh recruits and the conditions of service and distinction between two cadres continued with regard to the existing cabin staff up to the year 1997. The impugned order of the High Court is self-contradictory. It holds that with passage of time the distinction between two cadres and their conditions of service have been obliterated and at the same time, it allows the employer/Air India to make proposals for merger of cadres and interchangeability on all allied matters. Before the High Court, there was neither any pleadings nor materials placed by any of the parties to undertake the exercise of merging of two cadres.It is also to be noted that Air India Officers Association as one of the appellants on leave before us was not even a party before the High Court. The impugned judgment rendered in favour of the respondent/association comprising air hostesses of executive category has also adversely affected the service conditions of its male and female members of officers category. The High Court, therefore, adopted a hazardous course of fixing the terms and conditions of employees of Air India of various categories of males and females which was an exercise to be undertaken in pending industrial dispute before the National Industrial Tribunal.We do not consider it proper or necessary for us to make any direction in the pending reference to the National Industrial Tribunal as in doing so, we would be committing a similar mistake as was done by the High Court.79. It is open to the Central Government to enlarge the terms of the reference under section 10 of the Industrial Disputes Act to specifically include for adjudication the dispute of Air India and its employees and/or the employees inter se. It would also be open to the air hostesses represented by appellant/AICCA and the respondent/AHSA to make their demands in the pending reference before the Tribunal by seeking a fresh reference from the Central Government. It would be than open to the National Industrial Tribunal to take a fair and just decision in accordance with law after examining all aspects of the matter, on hearing the employer and considering its business and administrative | 1 | 15,168 | 1,900 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
of the parties to undertake the exercise of merging of two cadres. 74. It is true that the pending dispute before the National Industrial Tribunal is between employees of India Airlines and its employer but there is ample material on record to show that Air India and its important employees associations have been noticed to participate in the pending dispute before the National Industrial Tribunal. It is also on record that statements of claims have been submitted by appellants/All India Cabin Crew Association as also by the respondent/association. The respondent/association, only after it succeeded in the petition before the High Court and could get a favourable judgment, which is subject matter of these appeals before us, withdrew their claims from the National Industrial Tribunal. When the matter of fixing the terms and conditions of employees of Indian Airlines, in which Air India and its employees had also been noticed, was pending before the National Industrial Tribunal, it was wholly uncalled for the High Court to have allowed the employer to come forward with proposals for creating parity in age of superannuation between air hostesses and flight pursers only on the condition of merging of the two cadres with withdrawal of all earlier benefits conferred on air hostesses like accelerated promotions, higher salaries, higher allowances and pension packages. Proceedings under Article 226 of the Constitution, are neither appropriate nor a substitute of industrial adjudication in the industrial courts and tribunals constituted in industrial law. In our opinion, the High Court was clearly in error in exceeding its jurisdiction by trenching upon an industrial field and adjudicating disputes inter se employer and employees and employees. Before the High Court not all the parties likely to be affected were the parties to the writ petitions. The appellant/All India Cabin Crew Association was only allowed intervention and it could not have foreseen that conditions of service of both male and female members working in cabin would be adversely affected by High Court by recording a so called consensual order directing merger of cadres. The consensual order seriously prejudices the air hostesses of the workman category represented by appellant/AICCA. The order freezes their salaries and allowances for two years, forces them to opt within a month as to whether they would fly after 50 year of age or not, makes their duties interchangeable and forces them to continue with the arduous jobs with males on board with flight duties up to the age of 58 years. 75. It is also to be noted that Air India Officers Association as one of the appellants on leave before us was not even a party before the High Court. The impugned judgment rendered in favour of the respondent/association comprising air hostesses of executive category has also adversely affected the service conditions of its male and female members of officers category. The High Court, therefore, adopted a hazardous course of fixing the terms and conditions of employees of Air India of various categories of males and females which was an exercise to be undertaken in pending industrial dispute before the National Industrial Tribunal. 76. A request was made in the course of hearing on behalf of the some of the parties that this Court should direct the National Industrial Tribunal to decide the disputes inter se Air India and its employees - males and females. 77. On behalf of the All India Cabin Crew Association, an alternative submission has been made that the ideal situation for them would be that the air hostesses are allowed more than one option. They may be allowed to retire from flight duties at the age of 50 years, to opt for ground duties after the age of 50 years up to 58 years of age or to opt flight duties throughout up to the age of 58 years. Whether such several options can be given and would be condusive to an efficient and sound management of the business of the employer is a matter better left for adjudication to a legally chosen industrial forum by the parties. 78. We do not consider it proper or necessary for us to make any direction in the pending reference to the National Industrial Tribunal as in doing so, we would be committing a similar mistake as was done by the High Court.79. It is open to the Central Government to enlarge the terms of the reference under section 10 of the Industrial Disputes Act to specifically include for adjudication the dispute of Air India and its employees and/or the employees inter se. It would also be open to the air hostesses represented by appellant/AICCA and the respondent/AHSA to make their demands in the pending reference before the Tribunal by seeking a fresh reference from the Central Government. It would be than open to the National Industrial Tribunal to take a fair and just decision in accordance with law after examining all aspects of the matter, on hearing the employer and considering its business and administrative exigencies. 80. Lastly in desperate attempt, to support a part of the judgment of the High Court which declares denial of flight duties to the air hostesses up to the age of 58 years at par with males as invalid, on behalf of the respondents/associations, an alternative submission is advanced that the other part of the impugned judgment whereby conditional proposal of Air India or merger of the two cadres [males and females] was accepted, may alone be quashed and the remaining part be left undisturbed and intact as valid. 81. In view of the detailed discussion of the various grounds urged before us, we have held that both impugned parts of the judgment of the High Court are unsustainable. It is, therefore, not possible for us to accept the alternative submission made on behalf of the respondents/associations that since two parts of the impugned judgment are severable, one of the parts fixing age of retirement for air hostesses on flight duties up to the age of 58 years be upheld.
### Response:
1
### Explanation:
The challenge, therefore, to the terms and conditions of early retirement of air hostesses and option to them to go for ground duties up to the age of 58 years, fails. These terms and conditions are now part of Statutory Regulations w.e.f. 30.3.2000, framed under Air Corporation Act and Standing Order framed under Industrial Employment (Standing Order) Act, 1946 w.e.f. 21.10.2000.In our opinion, the above affidavit should be held to be decisive with regard to the effect and efficacy of the clarificatory letter dated 29.12.1989. The direction of the Central Government under Section 34 of the Act of 1953 have to be understood on the basis of both the communications dated 16.10.1989 and 29.12.1989. Reading them together the directive can only be construed to mean that the air hostesses have to be continued in service up to the age f 58 years and as per the terms and settlements reached between the parties they can be assigned ground duties at their option after retirement from flight duties at the age of 45 years which is now raised to 50 years.In our opinion, reference to Article 77 is wholly inappropriate. The exercise of statutory power under section 34 by the Central Government, even though not expressed to have been taken in the name of President, does not render it invalid. Clause 2 of Article 77 insulates an executive action of the government formally taken in the name of President from challenge on the ground that it is not an order or instrument made or executed by the President. Even if an executive action of the Central Government is not formally expressed to have been taken in the name of President, Article 77 does not provide that it would, therefore, be rendered void or invalid. We need not, therefore, deal with the argument advanced on the basis of Article 77 of the Constitution because the respondent/association itself is relying on the directive dated 16.10.1989 of the Central Government which is not formally expressed in the name of President in terms of Article 77 of the Constitution.In view of the detailed discussion of the various grounds urged before us, we have held that both impugned parts of the judgment of the High Court are unsustainable. It is, therefore, not possible for us to accept the alternative submission made on behalf of the respondents/associations that since two parts of the impugned judgment are severable, one of the parts fixing age of retirement for air hostesses on flight duties up to the age of 58 years be upheld.We have already dealt with the challenge made to the retirement of the air hostesses from flight duties at the age of 50 years and grounding them thereafter up to the age of 58 years. We have held that the conditions of retirement hare not a discrimination based only on sex. The dir4ecties issued by the Central Government, therefore, also cannot be held to be in any manner in violation of Articles 14, 15 and 16 of the Constitution or the provisions of Equal Remuneration Act, 1976.We have already held above that the High Court committed a serious error of procedure and law in entertaining proposals from the employer - the Air India Limited and accepting them as consented by all parties, to make it as a part of its judgment. We have already held that Nergesh Meerzas case (supra) was binding on the High Court and could not have been sidetracked by observing that by passage of time the cadres of flight pursers and air hostesses have virtually been merged and the distinction between them has been obliterated. We have also held that such conclusion on the part of the High Court is not borne out fro the facts on record. The two cadres of males and females on cabin came to be merged only after the year 1997 for fresh recruits and the conditions of service and distinction between two cadres continued with regard to the existing cabin staff up to the year 1997. The impugned order of the High Court is self-contradictory. It holds that with passage of time the distinction between two cadres and their conditions of service have been obliterated and at the same time, it allows the employer/Air India to make proposals for merger of cadres and interchangeability on all allied matters. Before the High Court, there was neither any pleadings nor materials placed by any of the parties to undertake the exercise of merging of two cadres.It is also to be noted that Air India Officers Association as one of the appellants on leave before us was not even a party before the High Court. The impugned judgment rendered in favour of the respondent/association comprising air hostesses of executive category has also adversely affected the service conditions of its male and female members of officers category. The High Court, therefore, adopted a hazardous course of fixing the terms and conditions of employees of Air India of various categories of males and females which was an exercise to be undertaken in pending industrial dispute before the National Industrial Tribunal.We do not consider it proper or necessary for us to make any direction in the pending reference to the National Industrial Tribunal as in doing so, we would be committing a similar mistake as was done by the High Court.79. It is open to the Central Government to enlarge the terms of the reference under section 10 of the Industrial Disputes Act to specifically include for adjudication the dispute of Air India and its employees and/or the employees inter se. It would also be open to the air hostesses represented by appellant/AICCA and the respondent/AHSA to make their demands in the pending reference before the Tribunal by seeking a fresh reference from the Central Government. It would be than open to the National Industrial Tribunal to take a fair and just decision in accordance with law after examining all aspects of the matter, on hearing the employer and considering its business and administrative
|
International Contractors Ltd Vs. Prasanta Kumar Sur (deceased) & Others | solicitor for respondent No. 1 wrote a letter to the appellant stating that that respondent was ready and willing to have the purchase completed as early as possible on payment of Rs. 10,001 along with that letter a draft conveyance was sent for approval but all this was subject to the result of a search as to the encumbrances if any created by the appellant. On November 30,1942, the solicitors for the appellant company wrote back saying that immediate arrangements should be made for giving inspection of the agreement of sale on which the respondents were relying as the appellant was unable to trace the copy of the said agreement from its record. Again on December 11, 1942, the respondents solicitor sent a letter stating:"My client is very eager to complete the purchase and the full consideration money therefore is lying idle in his hands awaiting the return of the relative draft conveyance as approved by you on your clients behalf."To this the reply of the appellants solicitors dated December 18, 1942, was:-"Our clients deny that there was any concluded or valid agreement for sale with your client or with any other person in respect of the above premises".4. On June 10, 1943, respondent No. 1 filed a suit for specific performance and in the alternative for redemption on the footing that the transaction was in reality a mortgage. The trial court dismissed the suit on May 16,1950, holding that the transaction on the basis of which the suit was brought was not a mortgage but was out and out sale with an agreement for repurchase and as the vendor had not paid the money "punctually according to the terms of the contract, the right to repurchase was lost and could not be specifically enforced", and the court had no power to afford any relief against forfeiture of this breach. The plaintiff-respondent took an appeal to the High Court and it was there held that the failure on the part of the respondents to actually tender the amount of the consideration does not bar a suit for specific performance because after the repudiation of the contract by the appellant, the tender would have been a useless formality. The appeal was therefore allowed and the suit for specific performance decreed. It is against this judgment and decree that the appellant has come in appeal to this Court.5. The correspondence which has been proved in this case shows that when the respondents solicitor called upon the appellant to reconvey the property in dispute to the respondent and also sent a draft conveyance, the appellant denied that there was any concluded or valid agreement for sale in respect of the property in dispute. This was a complete repudiation of the contract to reconvey which the appellant had agreed to by cl. 3 of the agreement which has set out above. As the appellant had repudiated the contract and had thus failed to carry out his part of the contract it was open to the respondent to sue for its enforcement. But it was argued on behalf of the appellant that the respondent did not tender the price, i.e., Rs. 10,001 nor was he in a position to do so and in that view of the matter the respondent is not entitled to get a decree for specific performance. In cases of this kind no question of formal tender of the amount to be paid arises and the question to be decided is not whether any money was within the power of the respondent but whether the appellant definitely and unequivocally refused to carry out his part of the contract and intimated that money will be refused if tendered. The principle laid down in Hunter v. Daniel, (1845) 4 Hare 420 is applicable to cases of this kind. In that case Wigram. V. C., stated the position as follows:-"The practice of the Courts is not to require a party to make a formal tender where from the facts stated in the Bill or from the evidence it appears the tender would have been a mere form and that the party to whom it was made would have refused to accept the money".Lord Buckmaster in Venkatarayanim v. Zamindar of Tuni, 50 Ind. App. 41 at p. 47 : (AIR 1923 P C 26 at p. 28) accepted this statement of the law and observed:-"Their Lordships think that that is a true and accurate expression of the law, and the question therefore is whether the answer that was sent on behalf of the mortgagee amounted to a clear refusal to accept the money".This Principle applies to the facts of the present case also and the question is whether the answer sent on behalf of the appellant amounted to an unequivocal refusal to carry out its part of the contract which in our opinion it was.6. It was next contended that the offer made by a solicitor is not a proper offer in law and therefore when the solicitor for the respondent called upon the appellant to execute the documents they were not bound to do so. We are unable to accord our assent to this proposition. The case upon which the Counsel for the appellant relied, i.e., Ismail Bhai Rahim v. Adam Osman I. L. R. (1938) 2 Cal. 337 : (A. I. R. 1939 Cal.131), in our opinion has no application to the facts and circumstances of this case. It was held in that case that the offer made by a promisor through a solicitor to pay a debt with interest thereon at the date of the offer does not of itself afford a reasonable opportunity to the promisee of ascertaining that the primisor is able and willing to perform his promise. Unless there is something peculiar in the circumstances of that case that case does not lay down good law. It is difficult to see why a tender made through a solicitor who is for that purpose an agent, is not a proper tender. | 0[ds]5. The correspondence which has been proved in this case shows that when the respondents solicitor called upon the appellant to reconvey the property in dispute to the respondent and also sent a draft conveyance, the appellant denied that there was any concluded or valid agreement for sale in respect of the property in dispute. This was a complete repudiation of the contract to reconvey which the appellant had agreed to by cl. 3 of the agreement which has set outthe appellant had repudiated the contract and had thus failed to carry out his part of the contract it was open to the respondent to sue for itscases of this kind no question of formal tender of the amount to be paid arises and the question to be decided is not whether any money was within the power of the respondent but whether the appellant definitely and unequivocally refused to carry out his part of the contract and intimated that money will be refused if tendered. The principle laid down in Hunterv. Daniel, (1845) 4 Hare420 is applicable to cases of thisare unable to accord our assent to this proposition. The case upon which the Counsel for the appellant relied, i.e., Ismail Bhai Rahim v. Adam Osman I. L. R. (1938) 2 Cal. 337 : (A. I. R. 1939 Cal.131), in our opinion has no application to the facts and circumstances of this case. It was held in that case that the offer made by a promisor through a solicitor to pay a debt with interest thereon at the date of the offer does not of itself afford a reasonable opportunity to the promisee of ascertaining that the primisor is able and willing to perform his promise. Unless there is something peculiar in the circumstances of that case that case does not lay down good law. It is difficult to see why a tender made through a solicitor who is for that purpose an agent, is not a proper tender. | 0 | 1,325 | 357 | ### 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:
solicitor for respondent No. 1 wrote a letter to the appellant stating that that respondent was ready and willing to have the purchase completed as early as possible on payment of Rs. 10,001 along with that letter a draft conveyance was sent for approval but all this was subject to the result of a search as to the encumbrances if any created by the appellant. On November 30,1942, the solicitors for the appellant company wrote back saying that immediate arrangements should be made for giving inspection of the agreement of sale on which the respondents were relying as the appellant was unable to trace the copy of the said agreement from its record. Again on December 11, 1942, the respondents solicitor sent a letter stating:"My client is very eager to complete the purchase and the full consideration money therefore is lying idle in his hands awaiting the return of the relative draft conveyance as approved by you on your clients behalf."To this the reply of the appellants solicitors dated December 18, 1942, was:-"Our clients deny that there was any concluded or valid agreement for sale with your client or with any other person in respect of the above premises".4. On June 10, 1943, respondent No. 1 filed a suit for specific performance and in the alternative for redemption on the footing that the transaction was in reality a mortgage. The trial court dismissed the suit on May 16,1950, holding that the transaction on the basis of which the suit was brought was not a mortgage but was out and out sale with an agreement for repurchase and as the vendor had not paid the money "punctually according to the terms of the contract, the right to repurchase was lost and could not be specifically enforced", and the court had no power to afford any relief against forfeiture of this breach. The plaintiff-respondent took an appeal to the High Court and it was there held that the failure on the part of the respondents to actually tender the amount of the consideration does not bar a suit for specific performance because after the repudiation of the contract by the appellant, the tender would have been a useless formality. The appeal was therefore allowed and the suit for specific performance decreed. It is against this judgment and decree that the appellant has come in appeal to this Court.5. The correspondence which has been proved in this case shows that when the respondents solicitor called upon the appellant to reconvey the property in dispute to the respondent and also sent a draft conveyance, the appellant denied that there was any concluded or valid agreement for sale in respect of the property in dispute. This was a complete repudiation of the contract to reconvey which the appellant had agreed to by cl. 3 of the agreement which has set out above. As the appellant had repudiated the contract and had thus failed to carry out his part of the contract it was open to the respondent to sue for its enforcement. But it was argued on behalf of the appellant that the respondent did not tender the price, i.e., Rs. 10,001 nor was he in a position to do so and in that view of the matter the respondent is not entitled to get a decree for specific performance. In cases of this kind no question of formal tender of the amount to be paid arises and the question to be decided is not whether any money was within the power of the respondent but whether the appellant definitely and unequivocally refused to carry out his part of the contract and intimated that money will be refused if tendered. The principle laid down in Hunter v. Daniel, (1845) 4 Hare 420 is applicable to cases of this kind. In that case Wigram. V. C., stated the position as follows:-"The practice of the Courts is not to require a party to make a formal tender where from the facts stated in the Bill or from the evidence it appears the tender would have been a mere form and that the party to whom it was made would have refused to accept the money".Lord Buckmaster in Venkatarayanim v. Zamindar of Tuni, 50 Ind. App. 41 at p. 47 : (AIR 1923 P C 26 at p. 28) accepted this statement of the law and observed:-"Their Lordships think that that is a true and accurate expression of the law, and the question therefore is whether the answer that was sent on behalf of the mortgagee amounted to a clear refusal to accept the money".This Principle applies to the facts of the present case also and the question is whether the answer sent on behalf of the appellant amounted to an unequivocal refusal to carry out its part of the contract which in our opinion it was.6. It was next contended that the offer made by a solicitor is not a proper offer in law and therefore when the solicitor for the respondent called upon the appellant to execute the documents they were not bound to do so. We are unable to accord our assent to this proposition. The case upon which the Counsel for the appellant relied, i.e., Ismail Bhai Rahim v. Adam Osman I. L. R. (1938) 2 Cal. 337 : (A. I. R. 1939 Cal.131), in our opinion has no application to the facts and circumstances of this case. It was held in that case that the offer made by a promisor through a solicitor to pay a debt with interest thereon at the date of the offer does not of itself afford a reasonable opportunity to the promisee of ascertaining that the primisor is able and willing to perform his promise. Unless there is something peculiar in the circumstances of that case that case does not lay down good law. It is difficult to see why a tender made through a solicitor who is for that purpose an agent, is not a proper tender.
### Response:
0
### Explanation:
5. The correspondence which has been proved in this case shows that when the respondents solicitor called upon the appellant to reconvey the property in dispute to the respondent and also sent a draft conveyance, the appellant denied that there was any concluded or valid agreement for sale in respect of the property in dispute. This was a complete repudiation of the contract to reconvey which the appellant had agreed to by cl. 3 of the agreement which has set outthe appellant had repudiated the contract and had thus failed to carry out his part of the contract it was open to the respondent to sue for itscases of this kind no question of formal tender of the amount to be paid arises and the question to be decided is not whether any money was within the power of the respondent but whether the appellant definitely and unequivocally refused to carry out his part of the contract and intimated that money will be refused if tendered. The principle laid down in Hunterv. Daniel, (1845) 4 Hare420 is applicable to cases of thisare unable to accord our assent to this proposition. The case upon which the Counsel for the appellant relied, i.e., Ismail Bhai Rahim v. Adam Osman I. L. R. (1938) 2 Cal. 337 : (A. I. R. 1939 Cal.131), in our opinion has no application to the facts and circumstances of this case. It was held in that case that the offer made by a promisor through a solicitor to pay a debt with interest thereon at the date of the offer does not of itself afford a reasonable opportunity to the promisee of ascertaining that the primisor is able and willing to perform his promise. Unless there is something peculiar in the circumstances of that case that case does not lay down good law. It is difficult to see why a tender made through a solicitor who is for that purpose an agent, is not a proper tender.
|
Dev Raj Anand Vs. Bhagwandas & Another | the application dated September 10, 1968 containing the additional particulars. The better particulars which were furnished were, however, incorporated in the amended petition filed on September 20, 1968 In clause (h) of pare 6 of the amended petition it was stated that respondent No 1 had offered gratification by providing liquor on an extensive scale to the voters for the purpose of securing their votes. Seven localities were mentioned where liquor was alleged to have been distributed between May 11 and 13, 1968 to voters whose names were given. Some of these persons were produced as witnesses.12. Pursuant to a notification Exht. R. W. 2/1 the liquor vend shops in the State of Haryana from May 11 to 14, 1968 were closed presumably to stop the sale of liquor during the days of polling. The learned judge considered the evidence of Man Singh P. W. 17. Sukh Ram P. W. 18. Rup Chand P. W. 19, Shamlal P. W. 20, Faqir Chand P. W. 21, Inder Sain Chadha P. W. 23, Kanahya Ram P. W. 24, Ghisa Ram P. W. 25, Babu Lal P. W. 26 Ram Rakha P. W. 27, Paras Ram P. W. 28 and Ram Krishan P. W. 30. The evidence produced by respondent No. 1 was also discussed. The learned judge observed that the oral evidence of witnesses was hardly of much assistance in proving an allegation of the nature under consideration. According to him the witnesses for the appellant who had given evidence about the corrupt practice of bribery for being treated to liquor could not be relied upon implicitly particularly when persons had been produced from the localities by respondent No. 1 to testify that no liquor was distributed. The following portion of the judgment deserves to be reproduced in this connection:"The evidence in this case gives rise to a suspicion that the first respondent had distributed liquor but the failure of the petitioner to connect the liquor obtained from Faqir Chands vend with the bottles actually distributed on 11th, 12th and 13th May, 1968, is a circumstance which goes against the allegation. The liquor vends in Haryana were closed from 11th to 14th May, 1968 and the positive evidence led on behalf of the petitioner shows, and it is indeed also stated in the petition itself, that liquor was widely distributed in the specified localities between 11th and 13th May, 1968. There is no evidence that the liquor purchased from Faqir Chands vend had been stored anywhere for 2/3 days prior to its distribution."The learned judge further observed that although on the material dates the liquor vends were closed yet the witnesses of the appellant had asserted that liquor was being widely distributed by respondent No. 1 during those dates. There was no evidence to show how such large quantities of liquor were procured and where they were stored prior to distribution.13. Counsel for the appellant has pointed out that apart from Faqir Chand certain other liquor contractors had also been sought to be produced in the list of witnesses which was supplied on behalf of the appellant on October 3, 1968. The name of Ram Murti, Excise Contractor, Lalru had been included in the list for being summoned together with his books containing entries relating to the supply of liquor to respondent No. 1 from May 4, 1968 to May 14, 1968. There was yet a third liquor contractor of the name of Om Prakash whose name was included in the list of witnesses to be summoned. The learned judge made an order on October 8, 1968 directing the summoning of Faqir Chand liquor contractor of R. A Bazar, Ambala Cantt. As regards Om Prakash it was observed that in para 6 (h) of the petition there was no allegation of any liquor having been Supplied to respondent No. 1 from the liquor shop of Om Prakash at village Mohra. His production was disallowed. Although nothing was stated about summoning of Ram Murti in the order, summons of which a copy is to be found on the record appears to have been actually sent to him on behalf of respondent No. I it has been submitted that this witness was given up. At any rate there is nothing to show that the appellant made any serious attempt to produce Ram Murti as a witness. We do not find any substance in the submission on behalf of the appellant that the evidence of Om Prakash and Ram Murti had been shut out without any justification. We are satisfied that sufficient grounds have not been made out for not accepting the conclusion of the learned judge that the appellant had failed to discharge the burden of proving the issue relating to treatment of voters by means of serving liquor as alleged in the election petition.14. The only other point which remains for disposal relates to issue Nos. 6 (a) and (b). This issue involves the publication of a poster by the Secretary of the Punjabi Gurdwara, Ambala Cantonment and it was alleged that it had been published at the instance or with the consent of respondent No 1 It was common ground that if the poster Exht. P. W. 4/4 was published either on behalf of or with the consent of respondent No. 1 it would amount to commission of a corrupt practice of undue influence within the meaning of S. 123 (2) of the Act. It is unnecessary to state its contents because, in our opinion, the learned judge was right in not accepting the evidence produced by the appellant relating to its publication at the instance or with the consent of respondent No. 1. The learned judge considered that the evidence produced by the appellant relating to the publication of the poster and its distribution was extremely unsatisfactory and he had no hesitation in rejecting it. We have not been shown any infirmity in the reasoning or conclusion of the learned judge with regard to the publication and distribution of this poster. | 0[ds]4. We shall deal only with the determination of the questions which have been agitated before us. The first matter which has been argued before us arises out of issueNo 1 (i). It related to the commission of the corrupt practice of bribery by respondent No. 1, approaching Sant Singh Sethi on May 8, 1968 with a view to getting his support and later paying Rs. 501/on May 12, 1968 to Punjabi Gurdwara as detailed in para 6 of thepetition. It was alleged, inter alia, that after Sant Singh Sethi had been approached for securing the support of Sikh voters and after payment of Rs. 501/had been made on May 12, 1968 Akhand Path was held in the Gurudwara. The Bhog of the Akhand Path took place on May 12, 1968 in the presence of respondent No. 1 It was announced in the congregation by Kuldip Singh, a member of the Gurudwara Executive Committee, that the Akhand Path had been performed for the purpose of wishing success to respondent No. 1 and securing the support of Sikh voters for his election which he was contesting from the Ambala Cantonment constituency.9. In our judgment the effect of the simile of the help given by the Guru to Makhan Shah must be ruled out of consideration. It found no mention in the pleadings in which the case was founded primarily on a bargain having been effected between respondent No. 1 and the Sikh voters, the payment of Rs. 501/having been made as a part of such bargain. The evidence of Jaswant Singh was quite unequivocal on the point that he never asked the persons present at the congregation to vote for respondent No. 1 after he had announced the donation of Rs. 501/having been made by him for the construction of the Gurdwara building. In view of the pleading the appellant is not entitled to invoke any principle other than the one contained in Ghasi Ram v. Dal Singh, (1968) 3 SCR 102 = (AIR 1968 SC 1191 )that the gist of the corrupt practice of bribery lay in attempting to do something for those opposed to the candidate with a view to changing their votes and as a bargain forfind no error in the view expressed by the learned judge that it had not been proved by satisfactory evidence that respondent No. 1 had made the donation by way of a bargain for procuring Sikh votes.10. The next point which has been pressed on behalf of the appellant arises out of issueNo. 1 (vii) which was based on the allegation that the corrupt practice of bribery had been committed by payment of Rs. 300/to Captain Bhagat Singh and Barkat Singh on May 12, 1968 as alleged in pare 6 (i) of thepetition. The allegation in the aforesaid para related to Topkhana Bazar Gurdwara and was similar to what had been alleged in respect of the Gurdwara on the Idgah Road concerning the donation of Rs.It was stated, inter alia, that the respondent No. 1 with the object of inducing Sikh voters who visited the Topkhana Gurdwara to vote for him paid a sum of Rs. 300/on the morning of May 12, 1968 to Captain Bhagat Singh and Barkat Singh who were theof the Committee managing that Gurdwara. The payment had been shown in the books of the Gurdwara and had been utilised for its benefit. It was claimed that on the receipt of the amount of Rs. 300/an appeal was actually made on May 13, 1968 to the congregation in the Gurdwara to vote for respondent No. 1. Two witnesses were examined in support of the allegation made in pare 6 (i) of the petition. Kulwant Singh P. W. 29 who runs a factory for making scientific instruments stated that he used to go to the aforesaid Gurdwara in which katha was held on May 13, 1968. Respondent No. 1 came there and asked for votes. Captain Bhagat Singh, Secretary of the Managing Committee made a speech in his favour. It was announced by Captain Bhagat Singh that respondent No. 1 had given a donation of Rs. 300/for the Gurdwara and that the congregation should assist him in the election. This witness has not been believed by the learned judge. Although in the first instance Kulwant Singh denied that he had signed the poster Exh. P. W. 29/1 which contained an appeal to vote in favour of the appellant in the General Election of 1967 but he admitted, though in amanner, that he was a signatory to the aforesaid poster. Bakshi Barkat Singh P. W. 64 was the Vice President of the Gurdwara and according to him respondent No. 1 came to him on May 12, 1968 and asked for his help in the election. Simultaneously the latter made a donation of Rs. 300/for the Gurdwara fund for purchase of fans. It was arranged that some persons should be invited on the following day in the morning to the Gurdwara where respondent No. 1 himself addressed the gathering. It was announced that a donation of Rs. 300/had been made by him. Captain Bhagat Singh and Bakshi Barkat Singh both laid emphasis on the services which had been rendered to the Gurdwara by respondent No. 1. This witness was also not believed by the learned judge as he was clearly interested in the appellant. There were other infirmities in his statement which were noticed and the learned judge considered that his statement did not inspire confidence. We have not been shown anything basically or inherently wrong in the appraisement of evidence by the learned judge relating to the allegation made in pare 6 (j) of the petition. We would, therefore, affirm the conclusion arrived at by the Highdo not find any substance in the submission on behalf of the appellant that the evidence of Om Prakash and Ram Murti had been shut out without any justification. We are satisfied that sufficient grounds have not been made out for not accepting the conclusion of the learned judge that the appellant had failed to discharge the burden of proving the issue relating to treatment of voters by means of serving liquor as alleged in the election petition.14. The only other point which remains for disposal relates to issueNos. 6 (a) and (b). This issue involves the publication of a poster by the Secretary of the Punjabi Gurdwara, Ambala Cantonment and it was alleged that it had been published at the instance or with the consent of respondent No 1It was common ground that if the poster Exht. P. W. 4/4 was published either on behalf of or with the consent of respondent No. 1 it would amount to commission of a corrupt practice of undue influence within the meaning of S. 123 (2) of the Act. It is unnecessary to state its contents because, in our opinion, the learned judge was right in not accepting the evidence produced by the appellant relating to its publication at the instance or with the consent of respondent No. 1. The learned judge considered that the evidence produced by the appellant relating to the publication of the poster and its distribution was extremely unsatisfactory and he had no hesitation in rejecting it. We have not been shown any infirmity in the reasoning or conclusion of the learned judge with regard to the publication and distribution of this poster. | 0 | 3,725 | 1,345 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the application dated September 10, 1968 containing the additional particulars. The better particulars which were furnished were, however, incorporated in the amended petition filed on September 20, 1968 In clause (h) of pare 6 of the amended petition it was stated that respondent No 1 had offered gratification by providing liquor on an extensive scale to the voters for the purpose of securing their votes. Seven localities were mentioned where liquor was alleged to have been distributed between May 11 and 13, 1968 to voters whose names were given. Some of these persons were produced as witnesses.12. Pursuant to a notification Exht. R. W. 2/1 the liquor vend shops in the State of Haryana from May 11 to 14, 1968 were closed presumably to stop the sale of liquor during the days of polling. The learned judge considered the evidence of Man Singh P. W. 17. Sukh Ram P. W. 18. Rup Chand P. W. 19, Shamlal P. W. 20, Faqir Chand P. W. 21, Inder Sain Chadha P. W. 23, Kanahya Ram P. W. 24, Ghisa Ram P. W. 25, Babu Lal P. W. 26 Ram Rakha P. W. 27, Paras Ram P. W. 28 and Ram Krishan P. W. 30. The evidence produced by respondent No. 1 was also discussed. The learned judge observed that the oral evidence of witnesses was hardly of much assistance in proving an allegation of the nature under consideration. According to him the witnesses for the appellant who had given evidence about the corrupt practice of bribery for being treated to liquor could not be relied upon implicitly particularly when persons had been produced from the localities by respondent No. 1 to testify that no liquor was distributed. The following portion of the judgment deserves to be reproduced in this connection:"The evidence in this case gives rise to a suspicion that the first respondent had distributed liquor but the failure of the petitioner to connect the liquor obtained from Faqir Chands vend with the bottles actually distributed on 11th, 12th and 13th May, 1968, is a circumstance which goes against the allegation. The liquor vends in Haryana were closed from 11th to 14th May, 1968 and the positive evidence led on behalf of the petitioner shows, and it is indeed also stated in the petition itself, that liquor was widely distributed in the specified localities between 11th and 13th May, 1968. There is no evidence that the liquor purchased from Faqir Chands vend had been stored anywhere for 2/3 days prior to its distribution."The learned judge further observed that although on the material dates the liquor vends were closed yet the witnesses of the appellant had asserted that liquor was being widely distributed by respondent No. 1 during those dates. There was no evidence to show how such large quantities of liquor were procured and where they were stored prior to distribution.13. Counsel for the appellant has pointed out that apart from Faqir Chand certain other liquor contractors had also been sought to be produced in the list of witnesses which was supplied on behalf of the appellant on October 3, 1968. The name of Ram Murti, Excise Contractor, Lalru had been included in the list for being summoned together with his books containing entries relating to the supply of liquor to respondent No. 1 from May 4, 1968 to May 14, 1968. There was yet a third liquor contractor of the name of Om Prakash whose name was included in the list of witnesses to be summoned. The learned judge made an order on October 8, 1968 directing the summoning of Faqir Chand liquor contractor of R. A Bazar, Ambala Cantt. As regards Om Prakash it was observed that in para 6 (h) of the petition there was no allegation of any liquor having been Supplied to respondent No. 1 from the liquor shop of Om Prakash at village Mohra. His production was disallowed. Although nothing was stated about summoning of Ram Murti in the order, summons of which a copy is to be found on the record appears to have been actually sent to him on behalf of respondent No. I it has been submitted that this witness was given up. At any rate there is nothing to show that the appellant made any serious attempt to produce Ram Murti as a witness. We do not find any substance in the submission on behalf of the appellant that the evidence of Om Prakash and Ram Murti had been shut out without any justification. We are satisfied that sufficient grounds have not been made out for not accepting the conclusion of the learned judge that the appellant had failed to discharge the burden of proving the issue relating to treatment of voters by means of serving liquor as alleged in the election petition.14. The only other point which remains for disposal relates to issue Nos. 6 (a) and (b). This issue involves the publication of a poster by the Secretary of the Punjabi Gurdwara, Ambala Cantonment and it was alleged that it had been published at the instance or with the consent of respondent No 1 It was common ground that if the poster Exht. P. W. 4/4 was published either on behalf of or with the consent of respondent No. 1 it would amount to commission of a corrupt practice of undue influence within the meaning of S. 123 (2) of the Act. It is unnecessary to state its contents because, in our opinion, the learned judge was right in not accepting the evidence produced by the appellant relating to its publication at the instance or with the consent of respondent No. 1. The learned judge considered that the evidence produced by the appellant relating to the publication of the poster and its distribution was extremely unsatisfactory and he had no hesitation in rejecting it. We have not been shown any infirmity in the reasoning or conclusion of the learned judge with regard to the publication and distribution of this poster.
### Response:
0
### Explanation:
having been effected between respondent No. 1 and the Sikh voters, the payment of Rs. 501/having been made as a part of such bargain. The evidence of Jaswant Singh was quite unequivocal on the point that he never asked the persons present at the congregation to vote for respondent No. 1 after he had announced the donation of Rs. 501/having been made by him for the construction of the Gurdwara building. In view of the pleading the appellant is not entitled to invoke any principle other than the one contained in Ghasi Ram v. Dal Singh, (1968) 3 SCR 102 = (AIR 1968 SC 1191 )that the gist of the corrupt practice of bribery lay in attempting to do something for those opposed to the candidate with a view to changing their votes and as a bargain forfind no error in the view expressed by the learned judge that it had not been proved by satisfactory evidence that respondent No. 1 had made the donation by way of a bargain for procuring Sikh votes.10. The next point which has been pressed on behalf of the appellant arises out of issueNo. 1 (vii) which was based on the allegation that the corrupt practice of bribery had been committed by payment of Rs. 300/to Captain Bhagat Singh and Barkat Singh on May 12, 1968 as alleged in pare 6 (i) of thepetition. The allegation in the aforesaid para related to Topkhana Bazar Gurdwara and was similar to what had been alleged in respect of the Gurdwara on the Idgah Road concerning the donation of Rs.It was stated, inter alia, that the respondent No. 1 with the object of inducing Sikh voters who visited the Topkhana Gurdwara to vote for him paid a sum of Rs. 300/on the morning of May 12, 1968 to Captain Bhagat Singh and Barkat Singh who were theof the Committee managing that Gurdwara. The payment had been shown in the books of the Gurdwara and had been utilised for its benefit. It was claimed that on the receipt of the amount of Rs. 300/an appeal was actually made on May 13, 1968 to the congregation in the Gurdwara to vote for respondent No. 1. Two witnesses were examined in support of the allegation made in pare 6 (i) of the petition. Kulwant Singh P. W. 29 who runs a factory for making scientific instruments stated that he used to go to the aforesaid Gurdwara in which katha was held on May 13, 1968. Respondent No. 1 came there and asked for votes. Captain Bhagat Singh, Secretary of the Managing Committee made a speech in his favour. It was announced by Captain Bhagat Singh that respondent No. 1 had given a donation of Rs. 300/for the Gurdwara and that the congregation should assist him in the election. This witness has not been believed by the learned judge. Although in the first instance Kulwant Singh denied that he had signed the poster Exh. P. W. 29/1 which contained an appeal to vote in favour of the appellant in the General Election of 1967 but he admitted, though in amanner, that he was a signatory to the aforesaid poster. Bakshi Barkat Singh P. W. 64 was the Vice President of the Gurdwara and according to him respondent No. 1 came to him on May 12, 1968 and asked for his help in the election. Simultaneously the latter made a donation of Rs. 300/for the Gurdwara fund for purchase of fans. It was arranged that some persons should be invited on the following day in the morning to the Gurdwara where respondent No. 1 himself addressed the gathering. It was announced that a donation of Rs. 300/had been made by him. Captain Bhagat Singh and Bakshi Barkat Singh both laid emphasis on the services which had been rendered to the Gurdwara by respondent No. 1. This witness was also not believed by the learned judge as he was clearly interested in the appellant. There were other infirmities in his statement which were noticed and the learned judge considered that his statement did not inspire confidence. We have not been shown anything basically or inherently wrong in the appraisement of evidence by the learned judge relating to the allegation made in pare 6 (j) of the petition. We would, therefore, affirm the conclusion arrived at by the Highdo not find any substance in the submission on behalf of the appellant that the evidence of Om Prakash and Ram Murti had been shut out without any justification. We are satisfied that sufficient grounds have not been made out for not accepting the conclusion of the learned judge that the appellant had failed to discharge the burden of proving the issue relating to treatment of voters by means of serving liquor as alleged in the election petition.14. The only other point which remains for disposal relates to issueNos. 6 (a) and (b). This issue involves the publication of a poster by the Secretary of the Punjabi Gurdwara, Ambala Cantonment and it was alleged that it had been published at the instance or with the consent of respondent No 1It was common ground that if the poster Exht. P. W. 4/4 was published either on behalf of or with the consent of respondent No. 1 it would amount to commission of a corrupt practice of undue influence within the meaning of S. 123 (2) of the Act. It is unnecessary to state its contents because, in our opinion, the learned judge was right in not accepting the evidence produced by the appellant relating to its publication at the instance or with the consent of respondent No. 1. The learned judge considered that the evidence produced by the appellant relating to the publication of the poster and its distribution was extremely unsatisfactory and he had no hesitation in rejecting it. We have not been shown any infirmity in the reasoning or conclusion of the learned judge with regard to the publication and distribution of this poster.
|
Apollo Institute Of Medical Sciences And Research Vs. Union Of India | and while recommending to the Ministry to confirm the conditional permission granted to the college in 2016-17, however recommended not to permit the petitioners college to admit students in the MBBS course for the academic session 2017-18 and to apply afresh for renewal of permission for the academic session 2018-19, as per MCI Regulations. On the basis of the said recommendation, the Ministry passed an order on 10.08.2017. The relevant portion of the said order reads thus:"17. Now, in compliance with the above direction of Honble Supreme Court dated 01.08.2017, the Ministry granted hearing to the college on 04.08.2017. The Hearing Committee after considering the record and oral & written submission of the college submitted its report to the Ministry. The findings of the Hearing Committee are as under:The college does not seem to have any infrastructural deficiency. MCI has pointed out faculty and resident deficiency at 12.3% and 8.69%.The deficiency is not of high order. The contention of college that 7 of the 8 faculty shown as deficient were assigned for medical camp organized on the day of inspection is supported by the note written by Principal of the college on the last page of the SAF form which is also signed by all the four assessors. The Principal has mentioned that the 7 faculty and 3 residents had already left for the camp before the surprise inspection. The Committee has also noted the medical camp order dated 19.11.2016 and that the deficiencies of faculty correspond to those sent for the camp duty. However, the assessors have not noted the 10 names in the SAF form as `faculty/residents present but not counted if they had come late. Further the column on RHTC in the SAF form is devoid of any details and no reference to camp could be seen.The college has submitted a certificate from MCI vendor which states that 158 faculty have been enrolled on 26.07.2017 for biometric attendance system.The other deficiencies regarding 2 tables in OTs, AERB and PNDT approval have been rectified post assessment as per documentary evidence furnished.In view of the above, the Committee is of the opinion that the deficiency of faculty and residents is marginal. The submission of the college regarding medical camp on the day of assessment as a result of which 10 doctors could not be available for head count seems bonafide but cannot be confirmed. In such case debarring the college for two years seems excessive even though the recommendation is as per the conditions of OC approval.The committee recommends that conditional LoP for 2016-17 may be confirmed. No fresh batch for 2017-18 may be allowed. The college may apply for renewal permission to MCI for the session 2018-19.18. Accepting the recommendations of the Hearing Committee, the Ministry confirms the conditional permission granted to the College in 2016-17. Further, it has been decided not to permit admission of students in MBBS courses for the academic session 2017-18 at the College. The College may apply afresh for renewal of permission for the academic session 2018-19 as per MCI Regulation.19. Admission made in violation of above conditions will be treated as irregular and action will be taken as per provision of IMC Act, 1956 and the Regulations made thereunder."(emphasis supplied)5. The petitioners would contend that in view of the favourable observations by the Hearing Committee, it is incomprehensible as to why the petitioners college should be deprived from admitting students for the academic session 2017-18 and especially when no significant deficiency has been noticed by either the Hearing Committee or the Competent Authority of the Central Government which would justify the drastic order passed against the petitioners college. The petitioner enjoys high reputation. The petitioners college aims to impart quality education. It is submitted that the conclusion reached by the Hearing Committee or, for that matter, by the Competent Authority, against the petitioners college, cannot stand the test of judicial scrutiny. No tangible reason has been assigned to deprive the petitioners college from admitting students in the MBBS course for the academic session 2017-18. This Court ought to intervene and issue appropriate directions against the respondents.6. The respondents, on the other hand, have supported the conclusion arrived at by the Hearing Committee and the Competent Authority. According to the respondents, it may not be permissible to sit over the subjective satisfaction of the expert body and to issue directions to the contrary. The respondents have prayed for dismissal of the writ petition and the interlocutory application.7. Having considered the rival submissions, we have no hesitation in taking the view that the Hearing Committee, as well as the Competent Authority of the Central Government, have shown complete disregard to the fact situation and moreso when they have found that the infrastructure and academic requirements were fully in place in so far as the petitioners college is concerned. Infact, we find that the impugned order acknowledges the fact that the petitioners college is a compliant college in respect of infrastructure and academic matters. In such a situation, we are at a loss to discern as to what weighed with the Hearing Committee and Competent Authority of the Central Government to prohibit the petitioners college from admitting students in the MBBS course for the academic session 2017-18. No tangible reason whatsoever has been assigned by the said authorities in that regard, leave alone any reason.8. We have no hesitation in observing that the approach of the statutory authorities is bordering on abdication of their statutory duty and is against the letter and spirit of the direction given by this Court on the earlier occasion to reconsider the case of the petitioners college afresh on the basis of material available on record. Admittedly, the petitioners college has started functioning from the academic session 2016-17, on the basis of a conditional Letter of Permission. The conditions specified therein have been substantially fulfilled in all respects including infrastructure and academic requirements. Therefore, we allow this petition and the application filed by the petitioners in the larger public interest. | 1[ds]7. Having considered the rival submissions, we have no hesitation in taking the view that the Hearing Committee, as well as the Competent Authority of the Central Government, have shown complete disregard to the fact situation and moreso when they have found that the infrastructure and academic requirements were fully in place in so far as the petitioners college is concerned. Infact, we find that the impugned order acknowledges the fact that the petitioners college is a compliant college in respect of infrastructure and academic matters. In such a situation, we are at a loss to discern as to what weighed with the Hearing Committee and Competent Authority of the Central Government to prohibit the petitioners college from admitting students in the MBBS course for the academic sessionNo tangible reason whatsoever has been assigned by the said authorities in that regard, leave alone any reason.8. We have no hesitation in observing that the approach of the statutory authorities is bordering on abdication of their statutory duty and is against the letter and spirit of the direction given by this Court on the earlier occasion to reconsider the case of the petitioners college afresh on the basis of material available on record. Admittedly, the petitioners college has started functioning from the academic sessionon the basis of a conditional Letter of Permission. The conditions specified therein have been substantially fulfilled in all respects including infrastructure and academic requirements. Therefore, we allow this petition and the application filed by the petitioners in the larger public interest. | 1 | 1,881 | 273 | ### 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:
and while recommending to the Ministry to confirm the conditional permission granted to the college in 2016-17, however recommended not to permit the petitioners college to admit students in the MBBS course for the academic session 2017-18 and to apply afresh for renewal of permission for the academic session 2018-19, as per MCI Regulations. On the basis of the said recommendation, the Ministry passed an order on 10.08.2017. The relevant portion of the said order reads thus:"17. Now, in compliance with the above direction of Honble Supreme Court dated 01.08.2017, the Ministry granted hearing to the college on 04.08.2017. The Hearing Committee after considering the record and oral & written submission of the college submitted its report to the Ministry. The findings of the Hearing Committee are as under:The college does not seem to have any infrastructural deficiency. MCI has pointed out faculty and resident deficiency at 12.3% and 8.69%.The deficiency is not of high order. The contention of college that 7 of the 8 faculty shown as deficient were assigned for medical camp organized on the day of inspection is supported by the note written by Principal of the college on the last page of the SAF form which is also signed by all the four assessors. The Principal has mentioned that the 7 faculty and 3 residents had already left for the camp before the surprise inspection. The Committee has also noted the medical camp order dated 19.11.2016 and that the deficiencies of faculty correspond to those sent for the camp duty. However, the assessors have not noted the 10 names in the SAF form as `faculty/residents present but not counted if they had come late. Further the column on RHTC in the SAF form is devoid of any details and no reference to camp could be seen.The college has submitted a certificate from MCI vendor which states that 158 faculty have been enrolled on 26.07.2017 for biometric attendance system.The other deficiencies regarding 2 tables in OTs, AERB and PNDT approval have been rectified post assessment as per documentary evidence furnished.In view of the above, the Committee is of the opinion that the deficiency of faculty and residents is marginal. The submission of the college regarding medical camp on the day of assessment as a result of which 10 doctors could not be available for head count seems bonafide but cannot be confirmed. In such case debarring the college for two years seems excessive even though the recommendation is as per the conditions of OC approval.The committee recommends that conditional LoP for 2016-17 may be confirmed. No fresh batch for 2017-18 may be allowed. The college may apply for renewal permission to MCI for the session 2018-19.18. Accepting the recommendations of the Hearing Committee, the Ministry confirms the conditional permission granted to the College in 2016-17. Further, it has been decided not to permit admission of students in MBBS courses for the academic session 2017-18 at the College. The College may apply afresh for renewal of permission for the academic session 2018-19 as per MCI Regulation.19. Admission made in violation of above conditions will be treated as irregular and action will be taken as per provision of IMC Act, 1956 and the Regulations made thereunder."(emphasis supplied)5. The petitioners would contend that in view of the favourable observations by the Hearing Committee, it is incomprehensible as to why the petitioners college should be deprived from admitting students for the academic session 2017-18 and especially when no significant deficiency has been noticed by either the Hearing Committee or the Competent Authority of the Central Government which would justify the drastic order passed against the petitioners college. The petitioner enjoys high reputation. The petitioners college aims to impart quality education. It is submitted that the conclusion reached by the Hearing Committee or, for that matter, by the Competent Authority, against the petitioners college, cannot stand the test of judicial scrutiny. No tangible reason has been assigned to deprive the petitioners college from admitting students in the MBBS course for the academic session 2017-18. This Court ought to intervene and issue appropriate directions against the respondents.6. The respondents, on the other hand, have supported the conclusion arrived at by the Hearing Committee and the Competent Authority. According to the respondents, it may not be permissible to sit over the subjective satisfaction of the expert body and to issue directions to the contrary. The respondents have prayed for dismissal of the writ petition and the interlocutory application.7. Having considered the rival submissions, we have no hesitation in taking the view that the Hearing Committee, as well as the Competent Authority of the Central Government, have shown complete disregard to the fact situation and moreso when they have found that the infrastructure and academic requirements were fully in place in so far as the petitioners college is concerned. Infact, we find that the impugned order acknowledges the fact that the petitioners college is a compliant college in respect of infrastructure and academic matters. In such a situation, we are at a loss to discern as to what weighed with the Hearing Committee and Competent Authority of the Central Government to prohibit the petitioners college from admitting students in the MBBS course for the academic session 2017-18. No tangible reason whatsoever has been assigned by the said authorities in that regard, leave alone any reason.8. We have no hesitation in observing that the approach of the statutory authorities is bordering on abdication of their statutory duty and is against the letter and spirit of the direction given by this Court on the earlier occasion to reconsider the case of the petitioners college afresh on the basis of material available on record. Admittedly, the petitioners college has started functioning from the academic session 2016-17, on the basis of a conditional Letter of Permission. The conditions specified therein have been substantially fulfilled in all respects including infrastructure and academic requirements. Therefore, we allow this petition and the application filed by the petitioners in the larger public interest.
### Response:
1
### Explanation:
7. Having considered the rival submissions, we have no hesitation in taking the view that the Hearing Committee, as well as the Competent Authority of the Central Government, have shown complete disregard to the fact situation and moreso when they have found that the infrastructure and academic requirements were fully in place in so far as the petitioners college is concerned. Infact, we find that the impugned order acknowledges the fact that the petitioners college is a compliant college in respect of infrastructure and academic matters. In such a situation, we are at a loss to discern as to what weighed with the Hearing Committee and Competent Authority of the Central Government to prohibit the petitioners college from admitting students in the MBBS course for the academic sessionNo tangible reason whatsoever has been assigned by the said authorities in that regard, leave alone any reason.8. We have no hesitation in observing that the approach of the statutory authorities is bordering on abdication of their statutory duty and is against the letter and spirit of the direction given by this Court on the earlier occasion to reconsider the case of the petitioners college afresh on the basis of material available on record. Admittedly, the petitioners college has started functioning from the academic sessionon the basis of a conditional Letter of Permission. The conditions specified therein have been substantially fulfilled in all respects including infrastructure and academic requirements. Therefore, we allow this petition and the application filed by the petitioners in the larger public interest.
|
Gyanendra Sahay Vs. M/S. Tata Iron & Steel Co. Ltd | The appellant-in-person has argued his case. He invited our attention to various letters and correspondence that were exchanged between the appellant and the respondent-company and also drew our attention to the order passed by the Labour Court, the learned Single Judge and the Division Bench. He also invited our attention to the evidence led before the Labour Court. Since the appellant is a party-in-person, we allowed him to argue this case at length and gave him a full and patient hearing. The appellant reiterated the grounds raised in the Civil Appeal at the time of hearing and submitted that he was summoned to Jamshedpur and compelled to submit the letter of premature/voluntary retirement. 8. We have also heard Mr. Raju Ramachandran, learned senior counsel for the respondent. He also explained the circumstances under which the letter of resignation was accepted. According to Mr. Raju Ramachandran, after the resignation was accepted, the management has paid his entire retiral benefits to the appellant herein. Mr. Ramachandran also submitted that even though the appellant has submitted his letter of premature/voluntary retirement on 01.04.1995, he represented to the management after 48 days requesting them to re-consider his request for premature/voluntary retirement and reinstate him in service. 9. The only issue which arises for re-consideration is whether the appellant was compelled to write and sign the application for premature/voluntary retirement due to undue and excessive pressure, exercised by officers of the respondent-company. 10. We have carefully read the judgment passed by the learned Judges of the Division Bench of the High Court. The learned Judges while rejecting the contention of the appellant herein have given cogent and convincing reasons in arriving at the conclusion in the appeal. This apart, the appellant in his own handwriting submitted the letter dt.01.04.1995 for premature/voluntary retirement which was accepted on the same day. When the letter was written in the handwriting of the appellant and presented the same in-person to the authority concerned, it cannot be said that the service of the respondent was dispensed with by the respondent-employer unauthorisedly. 11. We have carefully perused the letter dt.01.04.1995 which reads thus:- "G.M. (O.M. & Q) N.I.M. Dt.1.4.95 Dear Sir, I have been working with the Company for the last 15 years. Now I wish to retire prematurely from the Company with all retiring benefits. I would also request the company to consider paying me some Ex-gratia amount considering my long association with the Company. Thanking you, Yours faithfully Sd/ -Gyanendra Sahay (GYANENDRA SAHAY) P.No. 110017 Dy. Manager (Admn.)" 12. The above request was accepted by the General Manager on the same date i.e. 1st April, 1995 and the following letter was handed over to the respondent, accepting his premature/voluntary retirement. The said letter reads as follows:- "THE TATA IRON AND STEEL COMPANY LIMITED JAMSHEDPUR 831001 INDIA AO/6458/95 Mr. Gyanendra Sahay P.No.110017 Dy. Manager (Admn.) Mines Division, Noamundi Dear Mr. Sahay, Re: - Your letter dt.1.4.95 Kindly refer to your letter of 1.4.95. After due consideration, and also keeping in view your long association the Company has agreed, as a special case, to retire you as requested by you with immediate effect. You will be entitled to all the retiral benefits of the Company which would have otherwise been available to you at your superannuation. In addition, your request for ex-gratia is being considered separately. Please get in touch with the General Manager (Finance & Accounts) for your full and final settlement. We wish you and your family the very best in life. Yours sincerely, Sd/- (illegible) (M. Fasihuddin) General Manager (O M & Q)" 13. It is seen from the said letter that the request for premature/voluntary retirement was accepted by the management on 01.04.1995 with immediate effect. The letter also clearly states that the appellant will be entitled to all the retiral benefits of the Company which would have otherwise been available to him at his superannuation. The management has also stated that the appellants request for ex-gratia is being considered separately. By the said letter, the appellant was directed to get in touch with the General Manager (Finance & Accounts) for his full and final settlement. 14. In this context, it is useful to refer page 96 of the appeal paperbook which was marked as Annexure P-5 which is a letter dt. 12.4.1995 addressed to the appellant. It is stated in the letter that the management has decided to extend the following facilities to the appellant on his premature retirement :- "1. Retiring Gratuity as per rules for the actual service rendered by you. 2. Provident Fund, including Co.s contribution in full. 3. Superannuation Fund, as per rules. 4. Payment of cash, equivalent to the privilege and furlough leave including proportionate leave due to you. 5. Free medical facilities as applicable to the retiring officers in the respective divisions. In addition to the above, you will be eligible for an ex-grade payment, details of which will be available with DM (Accounts), Mines Division. You may kindly contact him on any working day during office hours." 15. We have also perused the Memo of Appeal and other representation made by the appellant. The appellant has made a vague allegation that he was forced to take retirement. Neither he has made it specific nor had given the name of any officer who compelled him to write the letter dt.1st April, 1995 or exercised undue and excessive pressure to sign the letter of premature/voluntary retirement. Though the Labour Court has come to the conclusion that the appellant was compelled to submit the letter of resignation, the same is not supported by any acceptable evidence. It is settled law that suspicion and doubt cannot take the place of evidence. No finding of fact can be given on mere doubt and suspicion or on the basis of baseless allegations. The appellant having written letter of voluntary retirement and after having accepted the retiral benefits without any protest cannot now turn round and say that he was compelled to submit his premature/voluntary retirement. | 0[ds]We have carefully read the judgment passed by the learned Judges of the Division Bench of the High Court. The learned Judges while rejecting the contention of the appellant herein have given cogent and convincing reasons in arriving at the conclusion in the appeal. This apart, the appellant in his own handwriting submitted the letter dt.01.04.1995 for premature/voluntary retirement which was accepted on the same day. When the letter was written in the handwriting of the appellant and presented the same in-person to the authority concerned, it cannot be said that the service of the respondent was dispensed with by the respondent-employer unauthorisedlyWe have also perused the Memo of Appeal and other representation made by the appellant. The appellant has made a vague allegation that he was forced to take retirement. Neither he has made it specific nor had given the name of any officer who compelled him to write the letter dt.1st April, 1995 or exercised undue and excessive pressure to sign the letter of premature/voluntary retirement. Though the Labour Court has come to the conclusion that the appellant was compelled to submit the letter of resignation, the same is not supported by any acceptable evidence. It is settled law that suspicion and doubt cannot take the place of evidence. No finding of fact can be given on mere doubt and suspicion or on the basis of baseless allegations. The appellant having written letter of voluntary retirement and after having accepted the retiral benefits without any protest cannot now turn round and say that he was compelled to submit his premature/voluntary retirement. | 0 | 1,770 | 284 | ### 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:
The appellant-in-person has argued his case. He invited our attention to various letters and correspondence that were exchanged between the appellant and the respondent-company and also drew our attention to the order passed by the Labour Court, the learned Single Judge and the Division Bench. He also invited our attention to the evidence led before the Labour Court. Since the appellant is a party-in-person, we allowed him to argue this case at length and gave him a full and patient hearing. The appellant reiterated the grounds raised in the Civil Appeal at the time of hearing and submitted that he was summoned to Jamshedpur and compelled to submit the letter of premature/voluntary retirement. 8. We have also heard Mr. Raju Ramachandran, learned senior counsel for the respondent. He also explained the circumstances under which the letter of resignation was accepted. According to Mr. Raju Ramachandran, after the resignation was accepted, the management has paid his entire retiral benefits to the appellant herein. Mr. Ramachandran also submitted that even though the appellant has submitted his letter of premature/voluntary retirement on 01.04.1995, he represented to the management after 48 days requesting them to re-consider his request for premature/voluntary retirement and reinstate him in service. 9. The only issue which arises for re-consideration is whether the appellant was compelled to write and sign the application for premature/voluntary retirement due to undue and excessive pressure, exercised by officers of the respondent-company. 10. We have carefully read the judgment passed by the learned Judges of the Division Bench of the High Court. The learned Judges while rejecting the contention of the appellant herein have given cogent and convincing reasons in arriving at the conclusion in the appeal. This apart, the appellant in his own handwriting submitted the letter dt.01.04.1995 for premature/voluntary retirement which was accepted on the same day. When the letter was written in the handwriting of the appellant and presented the same in-person to the authority concerned, it cannot be said that the service of the respondent was dispensed with by the respondent-employer unauthorisedly. 11. We have carefully perused the letter dt.01.04.1995 which reads thus:- "G.M. (O.M. & Q) N.I.M. Dt.1.4.95 Dear Sir, I have been working with the Company for the last 15 years. Now I wish to retire prematurely from the Company with all retiring benefits. I would also request the company to consider paying me some Ex-gratia amount considering my long association with the Company. Thanking you, Yours faithfully Sd/ -Gyanendra Sahay (GYANENDRA SAHAY) P.No. 110017 Dy. Manager (Admn.)" 12. The above request was accepted by the General Manager on the same date i.e. 1st April, 1995 and the following letter was handed over to the respondent, accepting his premature/voluntary retirement. The said letter reads as follows:- "THE TATA IRON AND STEEL COMPANY LIMITED JAMSHEDPUR 831001 INDIA AO/6458/95 Mr. Gyanendra Sahay P.No.110017 Dy. Manager (Admn.) Mines Division, Noamundi Dear Mr. Sahay, Re: - Your letter dt.1.4.95 Kindly refer to your letter of 1.4.95. After due consideration, and also keeping in view your long association the Company has agreed, as a special case, to retire you as requested by you with immediate effect. You will be entitled to all the retiral benefits of the Company which would have otherwise been available to you at your superannuation. In addition, your request for ex-gratia is being considered separately. Please get in touch with the General Manager (Finance & Accounts) for your full and final settlement. We wish you and your family the very best in life. Yours sincerely, Sd/- (illegible) (M. Fasihuddin) General Manager (O M & Q)" 13. It is seen from the said letter that the request for premature/voluntary retirement was accepted by the management on 01.04.1995 with immediate effect. The letter also clearly states that the appellant will be entitled to all the retiral benefits of the Company which would have otherwise been available to him at his superannuation. The management has also stated that the appellants request for ex-gratia is being considered separately. By the said letter, the appellant was directed to get in touch with the General Manager (Finance & Accounts) for his full and final settlement. 14. In this context, it is useful to refer page 96 of the appeal paperbook which was marked as Annexure P-5 which is a letter dt. 12.4.1995 addressed to the appellant. It is stated in the letter that the management has decided to extend the following facilities to the appellant on his premature retirement :- "1. Retiring Gratuity as per rules for the actual service rendered by you. 2. Provident Fund, including Co.s contribution in full. 3. Superannuation Fund, as per rules. 4. Payment of cash, equivalent to the privilege and furlough leave including proportionate leave due to you. 5. Free medical facilities as applicable to the retiring officers in the respective divisions. In addition to the above, you will be eligible for an ex-grade payment, details of which will be available with DM (Accounts), Mines Division. You may kindly contact him on any working day during office hours." 15. We have also perused the Memo of Appeal and other representation made by the appellant. The appellant has made a vague allegation that he was forced to take retirement. Neither he has made it specific nor had given the name of any officer who compelled him to write the letter dt.1st April, 1995 or exercised undue and excessive pressure to sign the letter of premature/voluntary retirement. Though the Labour Court has come to the conclusion that the appellant was compelled to submit the letter of resignation, the same is not supported by any acceptable evidence. It is settled law that suspicion and doubt cannot take the place of evidence. No finding of fact can be given on mere doubt and suspicion or on the basis of baseless allegations. The appellant having written letter of voluntary retirement and after having accepted the retiral benefits without any protest cannot now turn round and say that he was compelled to submit his premature/voluntary retirement.
### Response:
0
### Explanation:
We have carefully read the judgment passed by the learned Judges of the Division Bench of the High Court. The learned Judges while rejecting the contention of the appellant herein have given cogent and convincing reasons in arriving at the conclusion in the appeal. This apart, the appellant in his own handwriting submitted the letter dt.01.04.1995 for premature/voluntary retirement which was accepted on the same day. When the letter was written in the handwriting of the appellant and presented the same in-person to the authority concerned, it cannot be said that the service of the respondent was dispensed with by the respondent-employer unauthorisedlyWe have also perused the Memo of Appeal and other representation made by the appellant. The appellant has made a vague allegation that he was forced to take retirement. Neither he has made it specific nor had given the name of any officer who compelled him to write the letter dt.1st April, 1995 or exercised undue and excessive pressure to sign the letter of premature/voluntary retirement. Though the Labour Court has come to the conclusion that the appellant was compelled to submit the letter of resignation, the same is not supported by any acceptable evidence. It is settled law that suspicion and doubt cannot take the place of evidence. No finding of fact can be given on mere doubt and suspicion or on the basis of baseless allegations. The appellant having written letter of voluntary retirement and after having accepted the retiral benefits without any protest cannot now turn round and say that he was compelled to submit his premature/voluntary retirement.
|
UNION OF INDIA & ANR Vs. OMKAR NATH DHAR (D) THROUGH L.Rs | Transit Accommodation units are being constructed for Kashmiri Migrants Employees in various districts of Kashmir Valley at an estimated cost of Rs.920 Cr. So far, 1,025 dwelling units have already been constructed which include 721 dwelling units in the district of Budgam, Kulgam, Kupwara, Anantnag and Pulwama. Another 1,488 units are under construction and land has been identified for about 2444 units. 11. We do not find that any modification is required to the order dated 5.8.2021. In J.L. Koul, an affidavit of Chief Secretary of the State was filed disclosing that out of 54 appellant/Migrants, 23 had already vacated Government accommodation whereas 31 Migrants were still occupying the Government accommodation. The appellants were allotted residential accommodation at Jammu in the year 1989-1990 being Government servants. The writ petitions were filed before the High Court in the year 1995 which were decided by the learned Single Bench. Aggrieved against the directions issued by the learned Single Bench of the High Court, the occupants filed intra-court appeal before the High Court which was dismissed. Still further, appeal was filed before this Court. 12. This Court noticed that during the period of 12 years when the matter remained pending, directions were issued to prepare a Rehabilitation Scheme which was ultimately prepared and placed on record by the Chief Secretary of the State. Accepting the Scheme, it was held that no further action/direction was required. However, the appeal was disposed of with a pious hope that the State shall take all endeavours to rehabilitate the persons who have been victim of terrorism and till the State is able to rehabilitate and provide the appropriate accommodation to 31 appellant retirees/oustees, they shall continue to possess the accommodations which are in their respective possession on this date. 13. We do not find any merit in the argument that directions in J.L. Koul were not under Article 142 of the Constitution of India. This Court accepted the Rehabilitation Scheme produced on affidavit by the Chief Secretary of the State and thereafter expressed a pious hope. This Court did not decide any question of law or fact but merely expressed a compassionate view to alleviate the difficulties being faced by Kashmiri Migrants. The Rehabilitation Package approved by this Court itself contemplated that transit accommodations were being constructed at three sites but if such transit accommodation was not available, Rupees One Lakh per family towards rental and incidental expenses would be given to those who may not be accommodated in transit accommodation. Thus, even if they have not been given alternate accommodation, the Scheme approved by this Court contemplates cash compensation towards rental and incidental expenses. The compassion could not be extended in perpetuity and has to end some day or the other. Therefore, seeking parity with 31 retirees who were granted benefit in J.L. Koul is not tenable. The applicants are occupying the government accommodation at the cost of other Government servants who are waiting in queue for allotment of a government accommodation to discharge their official duties. The compassion shown to Kashmiri Migrants has to be balanced with the expectations of the serving officers to discharge their duties effectively. The Government accommodation is meant for serving officers and cannot be taken as a recourse to stay in Government accommodation for the life time of the Government servants or his/her spouse. 14. The Office Memorandum issued on 28.3.2017 was in terms of the directions of the High Court of Delhi. Such order of High Court has not been approved by this Court vide order dated 5.8.2021. Therefore, the entire basis of issuance of Office Memorandum falls flat as the very foundation of such Scheme stands knocked down. 15. We find that the Office Memorandum allowing government accommodation to the retired Government employees who are Kashmiri Migrants cannot meet the touchstone of Article 14 of the Constitution of India. The Government houses/flats are meant for serving Government employees. Post retirement, the government employees including Kashmiri Migrants are granted pensionary benefits including monthly pension. The classification made in favour of Government employees who were Kashmiri Migrants stands on the same footing as that of other Government employees or public figures. There cannot be any justification on the basis of social or economic criteria to allow the Kashmiri Migrants to stay in Government accommodation for indefinite long period. 16. To say that they would return to the Valley when the situation will improve is an open-ended statement capable of being interpreted in different ways. The satisfaction of improvement of situation would be widely different by the erstwhile Government employees and the State. But in no case it can be countenanced that the former Government employee, may be a Kashmiri Migrant, is entitled to stay in a government accommodation for an indefinite period. Thus, we are unable to uphold the Office Memorandum and strike it down as being totally arbitrary and discriminatory. 17. In Para 2(ii) of the Scheme, Kashmiri Pandits were to be accommodated in Delhi for first five years starting from the date of their retirement and thereafter be shifted to National Capital Region. Thus, we find it reasonable if Kashmiri Migrants are allowed government accommodation for a period of three years from the date of retirement so as to make alternative arrangements within such period. If an alternative accommodation is not available for them at their instance, they are at liberty to move to the transit accommodation or to avail cash amount in lieu of transit accommodation. Thus, a government employee who is a Kashmiri Migrant would not be entitled to retain Government accommodation for a period exceeding three years, may be in Delhi or in the National Capital Region or for that matter anywhere in the country. 18. The three-years period can also be considered as cooling off period for the officers who were in active intelligence work so that they can resume normal life but the excuse of once working for intelligence agency is not a valid ground to occupy the Government accommodation for indefinite period. | 0[ds]11. We do not find that any modification is required to the order dated 5.8.2021. In J.L. Koul, an affidavit of Chief Secretary of the State was filed disclosing that out of 54 appellant/Migrants, 23 had already vacated Government accommodation whereas 31 Migrants were still occupying the Government accommodation. The appellants were allotted residential accommodation at Jammu in the year 1989-1990 being Government servants. The writ petitions were filed before the High Court in the year 1995 which were decided by the learned Single Bench. Aggrieved against the directions issued by the learned Single Bench of the High Court, the occupants filed intra-court appeal before the High Court which was dismissed. Still further, appeal was filed before this Court.13. We do not find any merit in the argument that directions in J.L. Koul were not under Article 142 of the Constitution of India. This Court accepted the Rehabilitation Scheme produced on affidavit by the Chief Secretary of the State and thereafter expressed a pious hope. This Court did not decide any question of law or fact but merely expressed a compassionate view to alleviate the difficulties being faced by Kashmiri Migrants. The Rehabilitation Package approved by this Court itself contemplated that transit accommodations were being constructed at three sites but if such transit accommodation was not available, Rupees One Lakh per family towards rental and incidental expenses would be given to those who may not be accommodated in transit accommodation. Thus, even if they have not been given alternate accommodation, the Scheme approved by this Court contemplates cash compensation towards rental and incidental expenses. The compassion could not be extended in perpetuity and has to end some day or the other. Therefore, seeking parity with 31 retirees who were granted benefit in J.L. Koul is not tenable. The applicants are occupying the government accommodation at the cost of other Government servants who are waiting in queue for allotment of a government accommodation to discharge their official duties. The compassion shown to Kashmiri Migrants has to be balanced with the expectations of the serving officers to discharge their duties effectively. The Government accommodation is meant for serving officers and cannot be taken as a recourse to stay in Government accommodation for the life time of the Government servants or his/her spouse.14. The Office Memorandum issued on 28.3.2017 was in terms of the directions of the High Court of Delhi. Such order of High Court has not been approved by this Court vide order dated 5.8.2021. Therefore, the entire basis of issuance of Office Memorandum falls flat as the very foundation of such Scheme stands knocked down.15. We find that the Office Memorandum allowing government accommodation to the retired Government employees who are Kashmiri Migrants cannot meet the touchstone of Article 14 of the Constitution of India. The Government houses/flats are meant for serving Government employees. Post retirement, the government employees including Kashmiri Migrants are granted pensionary benefits including monthly pension. The classification made in favour of Government employees who were Kashmiri Migrants stands on the same footing as that of other Government employees or public figures. There cannot be any justification on the basis of social or economic criteria to allow the Kashmiri Migrants to stay in Government accommodation for indefinite long period.16. To say that they would return to the Valley when the situation will improve is an open-ended statement capable of being interpreted in different ways. The satisfaction of improvement of situation would be widely different by the erstwhile Government employees and the State. But in no case it can be countenanced that the former Government employee, may be a Kashmiri Migrant, is entitled to stay in a government accommodation for an indefinite period. Thus, we are unable to uphold the Office Memorandum and strike it down as being totally arbitrary and discriminatory.17. In Para 2(ii) of the Scheme, Kashmiri Pandits were to be accommodated in Delhi for first five years starting from the date of their retirement and thereafter be shifted to National Capital Region. Thus, we find it reasonable if Kashmiri Migrants are allowed government accommodation for a period of three years from the date of retirement so as to make alternative arrangements within such period. If an alternative accommodation is not available for them at their instance, they are at liberty to move to the transit accommodation or to avail cash amount in lieu of transit accommodation. Thus, a government employee who is a Kashmiri Migrant would not be entitled to retain Government accommodation for a period exceeding three years, may be in Delhi or in the National Capital Region or for that matter anywhere in the country.18. The three-years period can also be considered as cooling off period for the officers who were in active intelligence work so that they can resume normal life but the excuse of once working for intelligence agency is not a valid ground to occupy the Government accommodation for indefinite period. | 0 | 3,256 | 886 | ### 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:
Transit Accommodation units are being constructed for Kashmiri Migrants Employees in various districts of Kashmir Valley at an estimated cost of Rs.920 Cr. So far, 1,025 dwelling units have already been constructed which include 721 dwelling units in the district of Budgam, Kulgam, Kupwara, Anantnag and Pulwama. Another 1,488 units are under construction and land has been identified for about 2444 units. 11. We do not find that any modification is required to the order dated 5.8.2021. In J.L. Koul, an affidavit of Chief Secretary of the State was filed disclosing that out of 54 appellant/Migrants, 23 had already vacated Government accommodation whereas 31 Migrants were still occupying the Government accommodation. The appellants were allotted residential accommodation at Jammu in the year 1989-1990 being Government servants. The writ petitions were filed before the High Court in the year 1995 which were decided by the learned Single Bench. Aggrieved against the directions issued by the learned Single Bench of the High Court, the occupants filed intra-court appeal before the High Court which was dismissed. Still further, appeal was filed before this Court. 12. This Court noticed that during the period of 12 years when the matter remained pending, directions were issued to prepare a Rehabilitation Scheme which was ultimately prepared and placed on record by the Chief Secretary of the State. Accepting the Scheme, it was held that no further action/direction was required. However, the appeal was disposed of with a pious hope that the State shall take all endeavours to rehabilitate the persons who have been victim of terrorism and till the State is able to rehabilitate and provide the appropriate accommodation to 31 appellant retirees/oustees, they shall continue to possess the accommodations which are in their respective possession on this date. 13. We do not find any merit in the argument that directions in J.L. Koul were not under Article 142 of the Constitution of India. This Court accepted the Rehabilitation Scheme produced on affidavit by the Chief Secretary of the State and thereafter expressed a pious hope. This Court did not decide any question of law or fact but merely expressed a compassionate view to alleviate the difficulties being faced by Kashmiri Migrants. The Rehabilitation Package approved by this Court itself contemplated that transit accommodations were being constructed at three sites but if such transit accommodation was not available, Rupees One Lakh per family towards rental and incidental expenses would be given to those who may not be accommodated in transit accommodation. Thus, even if they have not been given alternate accommodation, the Scheme approved by this Court contemplates cash compensation towards rental and incidental expenses. The compassion could not be extended in perpetuity and has to end some day or the other. Therefore, seeking parity with 31 retirees who were granted benefit in J.L. Koul is not tenable. The applicants are occupying the government accommodation at the cost of other Government servants who are waiting in queue for allotment of a government accommodation to discharge their official duties. The compassion shown to Kashmiri Migrants has to be balanced with the expectations of the serving officers to discharge their duties effectively. The Government accommodation is meant for serving officers and cannot be taken as a recourse to stay in Government accommodation for the life time of the Government servants or his/her spouse. 14. The Office Memorandum issued on 28.3.2017 was in terms of the directions of the High Court of Delhi. Such order of High Court has not been approved by this Court vide order dated 5.8.2021. Therefore, the entire basis of issuance of Office Memorandum falls flat as the very foundation of such Scheme stands knocked down. 15. We find that the Office Memorandum allowing government accommodation to the retired Government employees who are Kashmiri Migrants cannot meet the touchstone of Article 14 of the Constitution of India. The Government houses/flats are meant for serving Government employees. Post retirement, the government employees including Kashmiri Migrants are granted pensionary benefits including monthly pension. The classification made in favour of Government employees who were Kashmiri Migrants stands on the same footing as that of other Government employees or public figures. There cannot be any justification on the basis of social or economic criteria to allow the Kashmiri Migrants to stay in Government accommodation for indefinite long period. 16. To say that they would return to the Valley when the situation will improve is an open-ended statement capable of being interpreted in different ways. The satisfaction of improvement of situation would be widely different by the erstwhile Government employees and the State. But in no case it can be countenanced that the former Government employee, may be a Kashmiri Migrant, is entitled to stay in a government accommodation for an indefinite period. Thus, we are unable to uphold the Office Memorandum and strike it down as being totally arbitrary and discriminatory. 17. In Para 2(ii) of the Scheme, Kashmiri Pandits were to be accommodated in Delhi for first five years starting from the date of their retirement and thereafter be shifted to National Capital Region. Thus, we find it reasonable if Kashmiri Migrants are allowed government accommodation for a period of three years from the date of retirement so as to make alternative arrangements within such period. If an alternative accommodation is not available for them at their instance, they are at liberty to move to the transit accommodation or to avail cash amount in lieu of transit accommodation. Thus, a government employee who is a Kashmiri Migrant would not be entitled to retain Government accommodation for a period exceeding three years, may be in Delhi or in the National Capital Region or for that matter anywhere in the country. 18. The three-years period can also be considered as cooling off period for the officers who were in active intelligence work so that they can resume normal life but the excuse of once working for intelligence agency is not a valid ground to occupy the Government accommodation for indefinite period.
### Response:
0
### Explanation:
11. We do not find that any modification is required to the order dated 5.8.2021. In J.L. Koul, an affidavit of Chief Secretary of the State was filed disclosing that out of 54 appellant/Migrants, 23 had already vacated Government accommodation whereas 31 Migrants were still occupying the Government accommodation. The appellants were allotted residential accommodation at Jammu in the year 1989-1990 being Government servants. The writ petitions were filed before the High Court in the year 1995 which were decided by the learned Single Bench. Aggrieved against the directions issued by the learned Single Bench of the High Court, the occupants filed intra-court appeal before the High Court which was dismissed. Still further, appeal was filed before this Court.13. We do not find any merit in the argument that directions in J.L. Koul were not under Article 142 of the Constitution of India. This Court accepted the Rehabilitation Scheme produced on affidavit by the Chief Secretary of the State and thereafter expressed a pious hope. This Court did not decide any question of law or fact but merely expressed a compassionate view to alleviate the difficulties being faced by Kashmiri Migrants. The Rehabilitation Package approved by this Court itself contemplated that transit accommodations were being constructed at three sites but if such transit accommodation was not available, Rupees One Lakh per family towards rental and incidental expenses would be given to those who may not be accommodated in transit accommodation. Thus, even if they have not been given alternate accommodation, the Scheme approved by this Court contemplates cash compensation towards rental and incidental expenses. The compassion could not be extended in perpetuity and has to end some day or the other. Therefore, seeking parity with 31 retirees who were granted benefit in J.L. Koul is not tenable. The applicants are occupying the government accommodation at the cost of other Government servants who are waiting in queue for allotment of a government accommodation to discharge their official duties. The compassion shown to Kashmiri Migrants has to be balanced with the expectations of the serving officers to discharge their duties effectively. The Government accommodation is meant for serving officers and cannot be taken as a recourse to stay in Government accommodation for the life time of the Government servants or his/her spouse.14. The Office Memorandum issued on 28.3.2017 was in terms of the directions of the High Court of Delhi. Such order of High Court has not been approved by this Court vide order dated 5.8.2021. Therefore, the entire basis of issuance of Office Memorandum falls flat as the very foundation of such Scheme stands knocked down.15. We find that the Office Memorandum allowing government accommodation to the retired Government employees who are Kashmiri Migrants cannot meet the touchstone of Article 14 of the Constitution of India. The Government houses/flats are meant for serving Government employees. Post retirement, the government employees including Kashmiri Migrants are granted pensionary benefits including monthly pension. The classification made in favour of Government employees who were Kashmiri Migrants stands on the same footing as that of other Government employees or public figures. There cannot be any justification on the basis of social or economic criteria to allow the Kashmiri Migrants to stay in Government accommodation for indefinite long period.16. To say that they would return to the Valley when the situation will improve is an open-ended statement capable of being interpreted in different ways. The satisfaction of improvement of situation would be widely different by the erstwhile Government employees and the State. But in no case it can be countenanced that the former Government employee, may be a Kashmiri Migrant, is entitled to stay in a government accommodation for an indefinite period. Thus, we are unable to uphold the Office Memorandum and strike it down as being totally arbitrary and discriminatory.17. In Para 2(ii) of the Scheme, Kashmiri Pandits were to be accommodated in Delhi for first five years starting from the date of their retirement and thereafter be shifted to National Capital Region. Thus, we find it reasonable if Kashmiri Migrants are allowed government accommodation for a period of three years from the date of retirement so as to make alternative arrangements within such period. If an alternative accommodation is not available for them at their instance, they are at liberty to move to the transit accommodation or to avail cash amount in lieu of transit accommodation. Thus, a government employee who is a Kashmiri Migrant would not be entitled to retain Government accommodation for a period exceeding three years, may be in Delhi or in the National Capital Region or for that matter anywhere in the country.18. The three-years period can also be considered as cooling off period for the officers who were in active intelligence work so that they can resume normal life but the excuse of once working for intelligence agency is not a valid ground to occupy the Government accommodation for indefinite period.
|
Delhi Golf Club Ltd Vs. N D M C | case of necessity. 8. The next ground of challenge is based on the taxability of the property in question in the hands of the appellant-Club. Section 61 of Act enables the Municipal Committee to impose the various categories of tax enumerated therein. The power to levy the house/property tax in question is traceable to Clause (a) which refers to “a tax payable by the owner of building and lands not exceeding fifteen percent of the annual value”. In dealing with this aspect of the matter, the High Court seems to have proceeded on the basis of the definition of the word “owner” with reference to the dictionary and other meanings of the word in its generic sense as also upon the alleged object assumed to be underlying Section 61(1)(a), i.e., to tax all persons who possess and use the land within Municipal limits for the reason that any one possessing land and using the same does make use of Municipal services. Fist of all, the levy is not a fee to be viewed as referable to the availing of Municipal services. Further, the levy envisaged under Section 61(1)(a) is property tax levied qua ownership of the property within the Municipal limits and income therefrom, not a service tax payable for the service rendered to the person in occupation of the land or building. That apart, the Act itself has a definition of its own rendering it unnecessary to delve into general connotation of the word and Section 3(11) defines `owner’ to include the person for the time being receiving the rent of land and building, or either of them, whether on his own account or as agent or trustee for any person or society or for any religious or charitable purpose or who would so receive the same if the land or building were let to a tenant. In contrast, Clause (e) and (ee) of Sub-section (1) of Section 61 specifically enables the levy of tax envisaged therein on the occupier for availing of civic services and amenities. That apart, the proviso to clause (a), in stipulating that in the case of lands and buildings occupied by “tenants in perpetuity” the tax shall be payable by such tenants, declares the legislative intent in specific and unmistakable terms as well as by necessary and inevitable implication that tenants of the category other than `tenants in perpetuity’ are outside the purview of Section 61(1)(a) of the Act. Therefore, no tenant other than one holding a lease in perpetuity can be saddled with any liability to tax qua his status as a mere tenant under Section 61(1)(a) of the Act. Periodical leases with provision therefor and actual such renewals from time- to-time cannot be affixed with the character of leases in perpetuity merely because cumulatively considered the lessee might be in physical possession for long, particularly when there is no vested right of renewal as such in the lessee. The Government of India in the Ministry of Urban Development, the lessor, is the indisputable owner of the property leased in favour of the Club and they have not done anything which could even indicate slightly of the grant of their rights of ownership in favour of the Club. The respondent-Local Authority, therefore, cannot act in a manner which is likely to even cast a cloud around the title, ownership and right to possession of the Government of India. Consequently, the view expressed by the High Court that the Club would constitute `owner’ for purposes of the levy in question, does not either sound to reason or can be said to be in conformity with the statutory provisions in force and, therefore, does not merit our approval. 9. The incidental question that also needs reference and consideration is as to whether the appellant-Club can be held or said to hold the property in question as a ‘tenant in perpetuity’. Even a cursory perusal of the orders sanctioning the lease as well as the terms and conditions of the lease would make it beyond any doubt that the lease in question is merely a tempoary allotment/temporary lease and the further stipulation that any continuance, beyond even the expiry of 20 years for which the temporary lease has been granted shall also be a lease on tempoary basis leaves the matter beyond any controversies whatsoever. The various clauses in the lease deed restricting and regulating the mode and character of enjoyment by the lessee and the specific stipulation reserving absolute power in the lessor to terminate the lease and resume possession as and when required on giving a notice for the stipulated period militates against the lease being characterised as one in perpetuity. In the light of the above, the respondent has no legal authority or jurisdiction to levy the house/property tax against the appellant-Club in its capacity merely as a tenant in respect of the property, which is the subject-matter of the lease. The fact that certain constructions have been put up by the Club or that while so applying to the Municipal Body for permission to put up such constructions, the appellant-Club represented itself to be an owner is besides the point and wholly irrelevant in the matter of consideration of levy and collection of house/property tax on the property of the lease-hold and which is the subject-matter of the lease on the Club qua its position and status as a mere lessee. In respect of the vacant land or land over which constructions have been put up by the owner of the land and all the buildings which were themselves the subject-matter of lease granted in favour of the appellant-Club, the appellant cannot be assessed to house/property tax in question or saddled with any liability therefor. The Club was not in the present case sought to be made liable only in respect of constructions put up by it and held by it during the period of subsistence of the lease. We do not, therefore, decide whether the Club can be made so liable. | 1[ds]9. The incidental question that also needs reference and consideration is as to whether the appellant-Club can be held or said to hold the property in question as a ‘tenant inEven a cursory perusal of the orders sanctioning the lease as well as the terms and conditions of the lease would make it beyond any doubt that the lease in question is merely a tempoary allotment/temporary lease and the further stipulation that any continuance, beyond even the expiry of 20 years for which the temporary lease has been granted shall also be a lease on tempoary basis leaves the matter beyond any controversies whatsoever. The various clauses in the lease deed restricting and regulating the mode and character of enjoyment by the lessee and the specific stipulation reserving absolute power in the lessor to terminate the lease and resume possession as and when required on giving a notice for the stipulated period militates against the lease being characterised as one in perpetuity. In the light of the above, the respondent has no legal authority or jurisdiction to levy the house/property tax against the appellant-Club in its capacity merely as a tenant in respect of the property, which is the subject-matter of the lease. The fact that certain constructions have been put up by the Club or that while so applying to the Municipal Body for permission to put up such constructions, the appellant-Club represented itself to be an owner is besides the point and wholly irrelevant in the matter of consideration of levy and collection of house/property tax on the property of the lease-hold and which is the subject-matter of the lease on the Club qua its position and status as a mere lessee. In respect of the vacant land or land over which constructions have been put up by the owner of the land and all the buildings which were themselves the subject-matter of lease granted in favour of the appellant-Club, the appellant cannot be assessed to house/property tax in question or saddled with any liability therefor. The Club was not in the present case sought to be made liable only in respect of constructions put up by it and held by it during the period of subsistence of the lease. We do not, therefore, decide whether the Club can be made so liable. | 1 | 3,848 | 406 | ### 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:
case of necessity. 8. The next ground of challenge is based on the taxability of the property in question in the hands of the appellant-Club. Section 61 of Act enables the Municipal Committee to impose the various categories of tax enumerated therein. The power to levy the house/property tax in question is traceable to Clause (a) which refers to “a tax payable by the owner of building and lands not exceeding fifteen percent of the annual value”. In dealing with this aspect of the matter, the High Court seems to have proceeded on the basis of the definition of the word “owner” with reference to the dictionary and other meanings of the word in its generic sense as also upon the alleged object assumed to be underlying Section 61(1)(a), i.e., to tax all persons who possess and use the land within Municipal limits for the reason that any one possessing land and using the same does make use of Municipal services. Fist of all, the levy is not a fee to be viewed as referable to the availing of Municipal services. Further, the levy envisaged under Section 61(1)(a) is property tax levied qua ownership of the property within the Municipal limits and income therefrom, not a service tax payable for the service rendered to the person in occupation of the land or building. That apart, the Act itself has a definition of its own rendering it unnecessary to delve into general connotation of the word and Section 3(11) defines `owner’ to include the person for the time being receiving the rent of land and building, or either of them, whether on his own account or as agent or trustee for any person or society or for any religious or charitable purpose or who would so receive the same if the land or building were let to a tenant. In contrast, Clause (e) and (ee) of Sub-section (1) of Section 61 specifically enables the levy of tax envisaged therein on the occupier for availing of civic services and amenities. That apart, the proviso to clause (a), in stipulating that in the case of lands and buildings occupied by “tenants in perpetuity” the tax shall be payable by such tenants, declares the legislative intent in specific and unmistakable terms as well as by necessary and inevitable implication that tenants of the category other than `tenants in perpetuity’ are outside the purview of Section 61(1)(a) of the Act. Therefore, no tenant other than one holding a lease in perpetuity can be saddled with any liability to tax qua his status as a mere tenant under Section 61(1)(a) of the Act. Periodical leases with provision therefor and actual such renewals from time- to-time cannot be affixed with the character of leases in perpetuity merely because cumulatively considered the lessee might be in physical possession for long, particularly when there is no vested right of renewal as such in the lessee. The Government of India in the Ministry of Urban Development, the lessor, is the indisputable owner of the property leased in favour of the Club and they have not done anything which could even indicate slightly of the grant of their rights of ownership in favour of the Club. The respondent-Local Authority, therefore, cannot act in a manner which is likely to even cast a cloud around the title, ownership and right to possession of the Government of India. Consequently, the view expressed by the High Court that the Club would constitute `owner’ for purposes of the levy in question, does not either sound to reason or can be said to be in conformity with the statutory provisions in force and, therefore, does not merit our approval. 9. The incidental question that also needs reference and consideration is as to whether the appellant-Club can be held or said to hold the property in question as a ‘tenant in perpetuity’. Even a cursory perusal of the orders sanctioning the lease as well as the terms and conditions of the lease would make it beyond any doubt that the lease in question is merely a tempoary allotment/temporary lease and the further stipulation that any continuance, beyond even the expiry of 20 years for which the temporary lease has been granted shall also be a lease on tempoary basis leaves the matter beyond any controversies whatsoever. The various clauses in the lease deed restricting and regulating the mode and character of enjoyment by the lessee and the specific stipulation reserving absolute power in the lessor to terminate the lease and resume possession as and when required on giving a notice for the stipulated period militates against the lease being characterised as one in perpetuity. In the light of the above, the respondent has no legal authority or jurisdiction to levy the house/property tax against the appellant-Club in its capacity merely as a tenant in respect of the property, which is the subject-matter of the lease. The fact that certain constructions have been put up by the Club or that while so applying to the Municipal Body for permission to put up such constructions, the appellant-Club represented itself to be an owner is besides the point and wholly irrelevant in the matter of consideration of levy and collection of house/property tax on the property of the lease-hold and which is the subject-matter of the lease on the Club qua its position and status as a mere lessee. In respect of the vacant land or land over which constructions have been put up by the owner of the land and all the buildings which were themselves the subject-matter of lease granted in favour of the appellant-Club, the appellant cannot be assessed to house/property tax in question or saddled with any liability therefor. The Club was not in the present case sought to be made liable only in respect of constructions put up by it and held by it during the period of subsistence of the lease. We do not, therefore, decide whether the Club can be made so liable.
### Response:
1
### Explanation:
9. The incidental question that also needs reference and consideration is as to whether the appellant-Club can be held or said to hold the property in question as a ‘tenant inEven a cursory perusal of the orders sanctioning the lease as well as the terms and conditions of the lease would make it beyond any doubt that the lease in question is merely a tempoary allotment/temporary lease and the further stipulation that any continuance, beyond even the expiry of 20 years for which the temporary lease has been granted shall also be a lease on tempoary basis leaves the matter beyond any controversies whatsoever. The various clauses in the lease deed restricting and regulating the mode and character of enjoyment by the lessee and the specific stipulation reserving absolute power in the lessor to terminate the lease and resume possession as and when required on giving a notice for the stipulated period militates against the lease being characterised as one in perpetuity. In the light of the above, the respondent has no legal authority or jurisdiction to levy the house/property tax against the appellant-Club in its capacity merely as a tenant in respect of the property, which is the subject-matter of the lease. The fact that certain constructions have been put up by the Club or that while so applying to the Municipal Body for permission to put up such constructions, the appellant-Club represented itself to be an owner is besides the point and wholly irrelevant in the matter of consideration of levy and collection of house/property tax on the property of the lease-hold and which is the subject-matter of the lease on the Club qua its position and status as a mere lessee. In respect of the vacant land or land over which constructions have been put up by the owner of the land and all the buildings which were themselves the subject-matter of lease granted in favour of the appellant-Club, the appellant cannot be assessed to house/property tax in question or saddled with any liability therefor. The Club was not in the present case sought to be made liable only in respect of constructions put up by it and held by it during the period of subsistence of the lease. We do not, therefore, decide whether the Club can be made so liable.
|
Commissioner of Income Tax Bihar, Patna Vs. Sahu Jain Limited | decisive. As a matter of fact no single factor can be decisive but having regard to the totality of the circumstances revealed in the case and the conduct of the transactions of the company taken with the relationship which, in the circumstances of the case is not a negligible element, we are clearly of the opinion that it is a case in which it cannot be said that the public is substantially interested in 25 per cent or more shares of the company. Even if we allow A. K. Jain to be a member of the public, he only holds 10, 000 shares and taken with 2, 000 shares of Ashoka Agencies Ltd., the total shareholding comes only to 12, 000 shares, that is to say, 500 less than the minimum shareholding requisite to earn the benefit of the third proviso to section 23A read with the Explanation.16. Further, between August 1], 1951 and May 1, 1952, A. K. Jails and two employee-Directors, the latter having a modicum of 10 shares each, apparently too k all decisions for the company in the Boards meetings. This is not ordinarily possible but for collaboration with the major shareholders. This is a case where more is meant than meets the eye. We are unable to hold in this case, in absence of any reliable evidence to the contrary, that the voting power of the three Directors was free and uninhibited and not within the orbit of control of the other major shareholders, S. P.` Jain and Rama Jain acting in concert. It is a clear case of all the shareholders acting in concert and in unions and the two employee-Directors were merely dummies. There is not the slightest inkling of public being interested, far less substantially interested, in this company. There was no one who could come within the term public outside the ring of the shareholders acting in concert for their own ends with a common purpose. There is no evidence whatsoever in this case that the shareholders did not cohere together in the matter of transaction of the companys affairs. When the reality is manifest some reliable evidence within the special knowledge of the assessee must be forthcoming from its side to contradict the obvious in order to be covered by the exception. This has not happened in this case.Unless the two employees were nominees of the major shareholders it is ordinarily absurd to suppose that they could aspire to be and become Directors of the company. The Appellate Assistant Commissioner in his order, which is annexed with the statement of the case, mentions that-"In fact Shri S. P. Jain as a controlling shareholder had brought himself in as a Director of the company right from the inception of the company and was the first Director of the company from 3-8-SO to 25-9-50. From September SO to March 54, however, he temporarily gave up the directorship by putting in an employee as a nominee-director, Sri N. C. Jain, for the intervening period so that there may be no hitch in the appellant-company being appointed as Managing Agent of certain other companies under his control on which also Sri S. P. Jain was a Director, such as the Rohtas Industries Ltd., Bharat Collieries Ltd., S. K. G. Sugar Ltd., Dehri Rohtas Light Railway Co. Ltd. and New Central Jute Mills Ltd. As soon as this objective was achieved, Sri S. P. Jain staged a come back as a Director of the appellant company on 25-3-54 when the nominee-director Sri N. C. Jain resigned his directorship to make room for his master Sri S. p Jain".17. The factual position, not the opinion, revealed in the above extract is more than eloquent with regard to the core o f the company.18. Having regard to the intimate relationship of the shareholders, with not the least evidence of any disconcert amongst them, the ordinary expectation for individual profit in commercial undertakings, natural reluctance to forego the same, the history of the company and its continued smooth working in a manner which is normally inconsistent with anything other than full unison amongst the shareholders in decisions about the conduct of companys affairs in common interest of all, this was a company of one paramount mind operating with out the least doubt. The Boards meetings are evidence of a well organised, well-knit close unity of views in all affairs and which in ordinary course of human conduct would not have been at all possible but for a single or concerted action in the companys management by a controlling group. When all the above conditions are present in a company, the onus would be on the assessee to satisfy by some reliable evidence that what appears on the surface is that which is real. That is not to say that the Revenue has no burden to bring the case within the mischief of section 23A.Application of law cannot be bereft of commonsense. The object of section 23A being to prevent avoidance of super- tax by the share holders by piling up the profits of the company in its own hands, the facts and circumstances revealed in this case clearly bring the company within the reach of that section. We are unable to accede to the submission of Mr. Hardy in this case that because A. K. Jain and Rama Jain were independent assessees and A. K. Jain was pre siding in the Boards meetings and as such was taking independent decisions and was also doing extra work for the company in Calcutta on salary basis, they should be held to be members of the public who were substantially interested in the company with the requisite shareholding for the purpose of the Explanation read with the third proviso.29. The High Court was therefore, not right in answering the question in favour of the assessee and against the Revenue. We, therefore, answer the original question in the negative and the revised question in the affirmative both in favour of the Revenue. | 1[ds]The factual position, not the opinion, revealed in the above extract is more than eloquent with regard to the core o f theregard to the intimate relationship of the shareholders, with not the least evidence of any disconcert amongst them, the ordinary expectation for individual profit in commercial undertakings, natural reluctance to forego the same, the history of the company and its continued smooth working in a manner which is normally inconsistent with anything other than full unison amongst the shareholders in decisions about the conduct of companys affairs in common interest of all, this was a company of one paramount mind operating with out the least doubt. The Boards meetings are evidence of a well organised, well-knit close unity of views in all affairs and which in ordinary course of human conduct would not have been at all possible but for a single or concerted action in the companys management by a controlling group. When all the above conditions are present in a company, the onus would be on the assessee to satisfy by some reliable evidence that what appears on the surface is that which is real. That is not to say that the Revenue has no burden to bring the case within the mischief of section 23A.Application of law cannot be bereft of commonsense. The object of section 23A being to prevent avoidance of super- tax by the share holders by piling up the profits of the company in its own hands, the facts and circumstances revealed in this case clearly bring the company within the reach of that section. We are unable to accede to the submission of Mr. Hardy in this case that because A. K. Jain and Rama Jain were independent assessees and A. K. Jain was pre siding in the Boards meetings and as such was taking independent decisions and was also doing extra work for the company in Calcutta on salary basis, they should be held to be members of the public who were substantially interested in the company with the requisite shareholding for the purpose of the Explanation read with the thirdHigh Court was therefore, not right in answering the question in favour of the assessee and against the Revenue. We, therefore, answer the original question in the negative and the revised question in the affirmative both in favour of the Revenue. | 1 | 6,233 | 417 | ### 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:
decisive. As a matter of fact no single factor can be decisive but having regard to the totality of the circumstances revealed in the case and the conduct of the transactions of the company taken with the relationship which, in the circumstances of the case is not a negligible element, we are clearly of the opinion that it is a case in which it cannot be said that the public is substantially interested in 25 per cent or more shares of the company. Even if we allow A. K. Jain to be a member of the public, he only holds 10, 000 shares and taken with 2, 000 shares of Ashoka Agencies Ltd., the total shareholding comes only to 12, 000 shares, that is to say, 500 less than the minimum shareholding requisite to earn the benefit of the third proviso to section 23A read with the Explanation.16. Further, between August 1], 1951 and May 1, 1952, A. K. Jails and two employee-Directors, the latter having a modicum of 10 shares each, apparently too k all decisions for the company in the Boards meetings. This is not ordinarily possible but for collaboration with the major shareholders. This is a case where more is meant than meets the eye. We are unable to hold in this case, in absence of any reliable evidence to the contrary, that the voting power of the three Directors was free and uninhibited and not within the orbit of control of the other major shareholders, S. P.` Jain and Rama Jain acting in concert. It is a clear case of all the shareholders acting in concert and in unions and the two employee-Directors were merely dummies. There is not the slightest inkling of public being interested, far less substantially interested, in this company. There was no one who could come within the term public outside the ring of the shareholders acting in concert for their own ends with a common purpose. There is no evidence whatsoever in this case that the shareholders did not cohere together in the matter of transaction of the companys affairs. When the reality is manifest some reliable evidence within the special knowledge of the assessee must be forthcoming from its side to contradict the obvious in order to be covered by the exception. This has not happened in this case.Unless the two employees were nominees of the major shareholders it is ordinarily absurd to suppose that they could aspire to be and become Directors of the company. The Appellate Assistant Commissioner in his order, which is annexed with the statement of the case, mentions that-"In fact Shri S. P. Jain as a controlling shareholder had brought himself in as a Director of the company right from the inception of the company and was the first Director of the company from 3-8-SO to 25-9-50. From September SO to March 54, however, he temporarily gave up the directorship by putting in an employee as a nominee-director, Sri N. C. Jain, for the intervening period so that there may be no hitch in the appellant-company being appointed as Managing Agent of certain other companies under his control on which also Sri S. P. Jain was a Director, such as the Rohtas Industries Ltd., Bharat Collieries Ltd., S. K. G. Sugar Ltd., Dehri Rohtas Light Railway Co. Ltd. and New Central Jute Mills Ltd. As soon as this objective was achieved, Sri S. P. Jain staged a come back as a Director of the appellant company on 25-3-54 when the nominee-director Sri N. C. Jain resigned his directorship to make room for his master Sri S. p Jain".17. The factual position, not the opinion, revealed in the above extract is more than eloquent with regard to the core o f the company.18. Having regard to the intimate relationship of the shareholders, with not the least evidence of any disconcert amongst them, the ordinary expectation for individual profit in commercial undertakings, natural reluctance to forego the same, the history of the company and its continued smooth working in a manner which is normally inconsistent with anything other than full unison amongst the shareholders in decisions about the conduct of companys affairs in common interest of all, this was a company of one paramount mind operating with out the least doubt. The Boards meetings are evidence of a well organised, well-knit close unity of views in all affairs and which in ordinary course of human conduct would not have been at all possible but for a single or concerted action in the companys management by a controlling group. When all the above conditions are present in a company, the onus would be on the assessee to satisfy by some reliable evidence that what appears on the surface is that which is real. That is not to say that the Revenue has no burden to bring the case within the mischief of section 23A.Application of law cannot be bereft of commonsense. The object of section 23A being to prevent avoidance of super- tax by the share holders by piling up the profits of the company in its own hands, the facts and circumstances revealed in this case clearly bring the company within the reach of that section. We are unable to accede to the submission of Mr. Hardy in this case that because A. K. Jain and Rama Jain were independent assessees and A. K. Jain was pre siding in the Boards meetings and as such was taking independent decisions and was also doing extra work for the company in Calcutta on salary basis, they should be held to be members of the public who were substantially interested in the company with the requisite shareholding for the purpose of the Explanation read with the third proviso.29. The High Court was therefore, not right in answering the question in favour of the assessee and against the Revenue. We, therefore, answer the original question in the negative and the revised question in the affirmative both in favour of the Revenue.
### Response:
1
### Explanation:
The factual position, not the opinion, revealed in the above extract is more than eloquent with regard to the core o f theregard to the intimate relationship of the shareholders, with not the least evidence of any disconcert amongst them, the ordinary expectation for individual profit in commercial undertakings, natural reluctance to forego the same, the history of the company and its continued smooth working in a manner which is normally inconsistent with anything other than full unison amongst the shareholders in decisions about the conduct of companys affairs in common interest of all, this was a company of one paramount mind operating with out the least doubt. The Boards meetings are evidence of a well organised, well-knit close unity of views in all affairs and which in ordinary course of human conduct would not have been at all possible but for a single or concerted action in the companys management by a controlling group. When all the above conditions are present in a company, the onus would be on the assessee to satisfy by some reliable evidence that what appears on the surface is that which is real. That is not to say that the Revenue has no burden to bring the case within the mischief of section 23A.Application of law cannot be bereft of commonsense. The object of section 23A being to prevent avoidance of super- tax by the share holders by piling up the profits of the company in its own hands, the facts and circumstances revealed in this case clearly bring the company within the reach of that section. We are unable to accede to the submission of Mr. Hardy in this case that because A. K. Jain and Rama Jain were independent assessees and A. K. Jain was pre siding in the Boards meetings and as such was taking independent decisions and was also doing extra work for the company in Calcutta on salary basis, they should be held to be members of the public who were substantially interested in the company with the requisite shareholding for the purpose of the Explanation read with the thirdHigh Court was therefore, not right in answering the question in favour of the assessee and against the Revenue. We, therefore, answer the original question in the negative and the revised question in the affirmative both in favour of the Revenue.
|
M/S Iba Health(I) P.Ltd Vs. M/S Info-Drive Systems Sdn.Bhd | value from SP and/or SP/JV to enable the payment of upto the maximum amount of the settlement sum to be made on or before 31.12.2006, which is the Cut-off date. Further, it is seen that one of the terms of the compromise was that the respondent would make reasonable efforts to persuade M/s. Solutions Protocol to settle the invoices of the appellant at the earliest.24. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties. A company petition cannot be pursued in respect of contingent debt unless the contingency has happened and it has become actually due. In the absence of any evidence, it is not possible to conclude that M/s. Solutions Protocol Sdn. Bhd. had in fact paid any amount to the appellant company towards commission charges due to the respondent company before the cut-off date. A legal notice prior to the institution of the company petition could be served on the company only in respect of a debt (then due) and a company could be wound up only if it was unable to pay its debts. In this case, there is a bona fide dispute as to whether the amount claimed is presently due and if, at all, it is due, whether the appellant company is liable to pay the sum unless they have received the same from M/s. Solutions Protocol Sdn. Bhd. Where the company has a bona fide dispute, the petitioner cannot be regarded as a creditor of the company for the purposes of winding up. “Bona fide dispute” implies the existence of a substantial ground for the dispute raised. Where the Company Court is satisfied that a debt upon which a petition is founded is a hotly contested debt and also doubtful, the Company Court should not entertain such a petition. The Company Court is expected to go into the causes of refusal by the company to pay before coming to that conclusion. The Company Court is expected to ascertain that the company’s refusal is supported by a reasonable cause or a bona fide dispute in which the dispute can only be adjudicated by a trial in a Civil Court. In the instant case, the Company Court was very casual in its approach and did not make any endeavour to ascertain as to whether the company sought to be wound up for non-payment of debt has a defence which is substantial in nature and if not adjudicated in a proper Forum, would cause serious prejudice to the company.MALICIOUS PROCEEDINGS FOR WINDING UP25. We may notice, so far as this case is concerned, there has been an attempt by the respondent company to force the payment of a debt which the respondent company knows to be in substantial dispute. A party to the dispute should not be allowed to use the threat of winding up petition as a means of enforcing the company to pay a bona fide disputed debt. A Company Court cannot be reduced as a debt collecting agency or as a means of bringing improper pressure on the company to pay a bona fide disputed debt. Of late, we have seen several instances, where the jurisdiction of the Company Court is being abused by filing winding up petitions to pressurize the companies to pay the debts which are substantially disputed and the Courts are very casual in issuing notices and ordering publication in the newspapers which may attract adverse publicity. Remember, an action may lie in appropriate Court in respect of the injury to reputation caused by maliciously and unreasonably commencing liquidation proceedings against a company and later dismissed when a proper defence is made out on substantial grounds. A creditor’s winding up petition implies insolvency and is likely to damage the company’s creditworthiness or its financial standing with its creditors or customers and even among the public.PUBLIC POLICY CONSIDERATIONS26. A creditor’s winding-up petition, in certain situations, implies insolvency or financial position with other creditors, banking institutions, customers and so on. Publication in the Newspaper of the filing of winding-up petition may damage the credit-worthiness or financial standing of the company and which may also have other economic and social ramifications. Competitors will be all the more happy and the sale of its products may go down in the market and it may also trigger a series of cross-defaults, and may further push the company into a state of acute insolvency much more than what it was when the petition was filed. The Company Court, at times, has not only to look into the interest of the creditors, but also the interests of public at large.27. We have referred to the above aspects at some length to impress upon the Company Courts to be more vigilant so that its medium would not be misused. A Company Court, therefore, should act with circumspection, care and caution and examine as to whether an attempt is made to pressurize the company to pay a debt which is substantially disputed. A Company Court, therefore, should be guarded from such vexatious abuse of the process and cannot function as a Debt Collecting Agency and should not permit a party to unreasonably set the law in motion, especially when the aggrieved party has a remedy elsewhere. | 1[ds]23. We have gone through various terms and conditions of the deed of settlement as also the compromise agreement and the allegations raised in the company petition and the objections filed by the appellant company. Both the parties are in agreement that they are bound by the terms and conditions of the deed of settlement. The respondent maintained the stand that substantial payments have been released by M/s. Solutions Protocol Sdn. Bhd. in respect of various invoices raised by the appellant on or before 31.12.2006, this is the cut-off date mentioned in the deed of settlement. The appellant company categorically denied that it had received payments on or before 31.12.2006, except the amount already received from M/s. Solutions Protocol Sdn. Bhd. had been paid over to the respondent. Clause (2) of the deed of settlement states that the parties had agreed that the settlement sum was formulated based on the following proportions of the total amounts of MEDICOM produce licence fee and/or all other payments received by MEDICOM from SP and/or SP/JV by virtue of the HICT Package I Contract. Further, it is stated therein that the settlement sum shall be valid for payments received by MEDICOM from SP and/or SP/JV under the HICT Package I Contract and/or the HIS Software applications modules contracted for the HICT Package I Contract with SP/JV only and it was conclusively agreed to that BITECH shall not in any circumstances whatsoever be entitled in law or otherwise for any payment for any other contracts including contracts involving MEDICOM and Solutions Protocol from the Government of Malaysia or otherwise, whether in Malaysia or any other country. Further, Clause (4) also stipulated that the parties have acknowledged that the obligation of MEDICOM to pay BITECH the settlement sum shall always be subject to MEDICOM (or its representatives or nominees) having received payments of sufficient value from SP and/or SP/JV to enable the payment of upto the maximum amount of the settlement sum to be made on or before 31.12.2006, which is the Cut-off date. Further, it is seen that one of the terms of the compromise was that the respondent would make reasonable efforts to persuade M/s. Solutions Protocol to settle the invoices of the appellant at the earliest.24. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties. A company petition cannot be pursued in respect of contingent debt unless the contingency has happened and it has become actually due. In the absence of any evidence, it is not possible to conclude that M/s. Solutions Protocol Sdn. Bhd. had in fact paid any amount to the appellant company towards commission charges due to the respondent company before the cut-off date. A legal notice prior to the institution of the company petition could be served on the company only in respect of a debt (then due) and a company could be wound up only if it was unable to pay its debts. In this case, there is a bona fide dispute as to whether the amount claimed is presently due and if, at all, it is due, whether the appellant company is liable to pay the sum unless they have received the same from M/s. Solutions Protocol Sdn. Bhd. Where the company has a bona fide dispute, the petitioner cannot be regarded as a creditor of the company for the purposes of winding up.implies the existence of a substantial ground for the dispute raised. Where the Company Court is satisfied that a debt upon which a petition is founded is a hotly contested debt and also doubtful, the Company Court should not entertain such a petition. The Company Court is expected to go into the causes of refusal by the company to pay before coming to that conclusion. The Company Court is expected to ascertain that therefusal is supported by a reasonable cause or a bona fide dispute in which the dispute can only be adjudicated by a trial in a Civil Court. In the instant case, the Company Court was very casual in its approach and did not make any endeavour to ascertain as to whether the company sought to be wound up for non-payment of debt has a defence which is substantial in nature and if not adjudicated in a proper Forum, would cause serious prejudice to the company.MALICIOUS PROCEEDINGS FOR WINDING UP25. We may notice, so far as this case is concerned, there has been an attempt by the respondent company to force the payment of a debt which the respondent company knows to be in substantial dispute. A party to the dispute should not be allowed to use the threat of winding up petition as a means of enforcing the company to pay a bona fide disputed debt. A Company Court cannot be reduced as a debt collecting agency or as a means of bringing improper pressure on the company to pay a bona fide disputed debt. Of late, we have seen several instances, where the jurisdiction of the Company Court is being abused by filing winding up petitions to pressurize the companies to pay the debts which are substantially disputed and the Courts are very casual in issuing notices and ordering publication in the newspapers which may attract adverse publicity. Remember, an action may lie in appropriate Court in respect of the injury to reputation caused by maliciously and unreasonably commencing liquidation proceedings against a company and later dismissed when a proper defence is made out on substantial grounds. Awinding up petition implies insolvency and is likely to damage thecreditworthiness or its financial standing with its creditors or customers and even among the public.PUBLIC POLICY CONSIDERATIONS26. Awinding-up petition, in certain situations, implies insolvency or financial position with other creditors, banking institutions, customers and so on. Publication in the Newspaper of the filing of winding-up petition may damage the credit-worthiness or financial standing of the company and which may also have other economic and social ramifications. Competitors will be all the more happy and the sale of its products may go down in the market and it may also trigger a series of cross-defaults, and may further push the company into a state of acute insolvency much more than what it was when the petition was filed. The Company Court, at times, has not only to look into the interest of the creditors, but also the interests of public at large.27. We have referred to the above aspects at some length to impress upon the Company Courts to be more vigilant so that its medium would not be misused. A Company Court, therefore, should act with circumspection, care and caution and examine as to whether an attempt is made to pressurize the company to pay a debt which is substantially disputed. A Company Court, therefore, should be guarded from such vexatious abuse of the process and cannot function as a Debt Collecting Agency and should not permit a party to unreasonably set the law in motion, especially when the aggrieved party has a remedy elsewhere. | 1 | 5,681 | 1,394 | ### 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:
value from SP and/or SP/JV to enable the payment of upto the maximum amount of the settlement sum to be made on or before 31.12.2006, which is the Cut-off date. Further, it is seen that one of the terms of the compromise was that the respondent would make reasonable efforts to persuade M/s. Solutions Protocol to settle the invoices of the appellant at the earliest.24. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties. A company petition cannot be pursued in respect of contingent debt unless the contingency has happened and it has become actually due. In the absence of any evidence, it is not possible to conclude that M/s. Solutions Protocol Sdn. Bhd. had in fact paid any amount to the appellant company towards commission charges due to the respondent company before the cut-off date. A legal notice prior to the institution of the company petition could be served on the company only in respect of a debt (then due) and a company could be wound up only if it was unable to pay its debts. In this case, there is a bona fide dispute as to whether the amount claimed is presently due and if, at all, it is due, whether the appellant company is liable to pay the sum unless they have received the same from M/s. Solutions Protocol Sdn. Bhd. Where the company has a bona fide dispute, the petitioner cannot be regarded as a creditor of the company for the purposes of winding up. “Bona fide dispute” implies the existence of a substantial ground for the dispute raised. Where the Company Court is satisfied that a debt upon which a petition is founded is a hotly contested debt and also doubtful, the Company Court should not entertain such a petition. The Company Court is expected to go into the causes of refusal by the company to pay before coming to that conclusion. The Company Court is expected to ascertain that the company’s refusal is supported by a reasonable cause or a bona fide dispute in which the dispute can only be adjudicated by a trial in a Civil Court. In the instant case, the Company Court was very casual in its approach and did not make any endeavour to ascertain as to whether the company sought to be wound up for non-payment of debt has a defence which is substantial in nature and if not adjudicated in a proper Forum, would cause serious prejudice to the company.MALICIOUS PROCEEDINGS FOR WINDING UP25. We may notice, so far as this case is concerned, there has been an attempt by the respondent company to force the payment of a debt which the respondent company knows to be in substantial dispute. A party to the dispute should not be allowed to use the threat of winding up petition as a means of enforcing the company to pay a bona fide disputed debt. A Company Court cannot be reduced as a debt collecting agency or as a means of bringing improper pressure on the company to pay a bona fide disputed debt. Of late, we have seen several instances, where the jurisdiction of the Company Court is being abused by filing winding up petitions to pressurize the companies to pay the debts which are substantially disputed and the Courts are very casual in issuing notices and ordering publication in the newspapers which may attract adverse publicity. Remember, an action may lie in appropriate Court in respect of the injury to reputation caused by maliciously and unreasonably commencing liquidation proceedings against a company and later dismissed when a proper defence is made out on substantial grounds. A creditor’s winding up petition implies insolvency and is likely to damage the company’s creditworthiness or its financial standing with its creditors or customers and even among the public.PUBLIC POLICY CONSIDERATIONS26. A creditor’s winding-up petition, in certain situations, implies insolvency or financial position with other creditors, banking institutions, customers and so on. Publication in the Newspaper of the filing of winding-up petition may damage the credit-worthiness or financial standing of the company and which may also have other economic and social ramifications. Competitors will be all the more happy and the sale of its products may go down in the market and it may also trigger a series of cross-defaults, and may further push the company into a state of acute insolvency much more than what it was when the petition was filed. The Company Court, at times, has not only to look into the interest of the creditors, but also the interests of public at large.27. We have referred to the above aspects at some length to impress upon the Company Courts to be more vigilant so that its medium would not be misused. A Company Court, therefore, should act with circumspection, care and caution and examine as to whether an attempt is made to pressurize the company to pay a debt which is substantially disputed. A Company Court, therefore, should be guarded from such vexatious abuse of the process and cannot function as a Debt Collecting Agency and should not permit a party to unreasonably set the law in motion, especially when the aggrieved party has a remedy elsewhere.
### Response:
1
### Explanation:
to MEDICOM (or its representatives or nominees) having received payments of sufficient value from SP and/or SP/JV to enable the payment of upto the maximum amount of the settlement sum to be made on or before 31.12.2006, which is the Cut-off date. Further, it is seen that one of the terms of the compromise was that the respondent would make reasonable efforts to persuade M/s. Solutions Protocol to settle the invoices of the appellant at the earliest.24. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties. A company petition cannot be pursued in respect of contingent debt unless the contingency has happened and it has become actually due. In the absence of any evidence, it is not possible to conclude that M/s. Solutions Protocol Sdn. Bhd. had in fact paid any amount to the appellant company towards commission charges due to the respondent company before the cut-off date. A legal notice prior to the institution of the company petition could be served on the company only in respect of a debt (then due) and a company could be wound up only if it was unable to pay its debts. In this case, there is a bona fide dispute as to whether the amount claimed is presently due and if, at all, it is due, whether the appellant company is liable to pay the sum unless they have received the same from M/s. Solutions Protocol Sdn. Bhd. Where the company has a bona fide dispute, the petitioner cannot be regarded as a creditor of the company for the purposes of winding up.implies the existence of a substantial ground for the dispute raised. Where the Company Court is satisfied that a debt upon which a petition is founded is a hotly contested debt and also doubtful, the Company Court should not entertain such a petition. The Company Court is expected to go into the causes of refusal by the company to pay before coming to that conclusion. The Company Court is expected to ascertain that therefusal is supported by a reasonable cause or a bona fide dispute in which the dispute can only be adjudicated by a trial in a Civil Court. In the instant case, the Company Court was very casual in its approach and did not make any endeavour to ascertain as to whether the company sought to be wound up for non-payment of debt has a defence which is substantial in nature and if not adjudicated in a proper Forum, would cause serious prejudice to the company.MALICIOUS PROCEEDINGS FOR WINDING UP25. We may notice, so far as this case is concerned, there has been an attempt by the respondent company to force the payment of a debt which the respondent company knows to be in substantial dispute. A party to the dispute should not be allowed to use the threat of winding up petition as a means of enforcing the company to pay a bona fide disputed debt. A Company Court cannot be reduced as a debt collecting agency or as a means of bringing improper pressure on the company to pay a bona fide disputed debt. Of late, we have seen several instances, where the jurisdiction of the Company Court is being abused by filing winding up petitions to pressurize the companies to pay the debts which are substantially disputed and the Courts are very casual in issuing notices and ordering publication in the newspapers which may attract adverse publicity. Remember, an action may lie in appropriate Court in respect of the injury to reputation caused by maliciously and unreasonably commencing liquidation proceedings against a company and later dismissed when a proper defence is made out on substantial grounds. Awinding up petition implies insolvency and is likely to damage thecreditworthiness or its financial standing with its creditors or customers and even among the public.PUBLIC POLICY CONSIDERATIONS26. Awinding-up petition, in certain situations, implies insolvency or financial position with other creditors, banking institutions, customers and so on. Publication in the Newspaper of the filing of winding-up petition may damage the credit-worthiness or financial standing of the company and which may also have other economic and social ramifications. Competitors will be all the more happy and the sale of its products may go down in the market and it may also trigger a series of cross-defaults, and may further push the company into a state of acute insolvency much more than what it was when the petition was filed. The Company Court, at times, has not only to look into the interest of the creditors, but also the interests of public at large.27. We have referred to the above aspects at some length to impress upon the Company Courts to be more vigilant so that its medium would not be misused. A Company Court, therefore, should act with circumspection, care and caution and examine as to whether an attempt is made to pressurize the company to pay a debt which is substantially disputed. A Company Court, therefore, should be guarded from such vexatious abuse of the process and cannot function as a Debt Collecting Agency and should not permit a party to unreasonably set the law in motion, especially when the aggrieved party has a remedy elsewhere.
|
Rebeka Minz and Ors Vs. Divisional Manager, United India Insurance Company Ltd. and Anr | Fakkir Mohamed Ibrahim Kalifulla, J. 1. These appeals at the instance of the claimants before the Motor Accidents claims Tribunals challenge the common order of the High Court of Orissa, Cuttack dated 05.03.2009 passed in MACA No.821 of 2007 and MACA No.953 of 2007. MACA No. 821 of 2007 was preferred by the appellants while MACA No.953 of 2007 was preferred by the first respondent-Insurance company in the High Court. The husband of the first appellant died in an accident on 04.01.1995 when he was returning from the plant site on a scooter bearing registration No. OR-06-7703 around 6.30 a.m. near NALCO Nagar on NH-42 at a place called Smelter Chhak, due to rash and negligent driving of the driver of the truck bearing registration No. ORA-4241.2. The appellants being the wife and children of the deceased preferred the claim before the Motor Accidents Tribunal in MAC case No.21 of 1995. The Tribunal, after analyzing the entire evidence placed before it, awarded a sum of Rs. 10,08,000/- as compensation along with interest at the rate of 7% per annum with effect from 03.02.1995 to 22.08.1995 and again from 16.01.2007 till the payment within one month. While the appellants were aggrieved insofar as the Tribunal applied the multiplier 12 instead of 17, having regard to the fact that the deceased at the time of his death was 35 years old as well as non-grant of interest for certain period, the first respondent was aggrieved of the very award of compensation itself. The High Court while disposing of the appeal reduced the compensation awarded by the Tribunal and also the rate of interest by holding as under:- “Considering the submissions of the learned counsel for the parties and keeping in view findings of the learned Tribunal with regard to the quantum of compensation amount awarded and the basis on which the same has been arrived at, I feel, the interest of justice would be best served if the awarded compensation amount of Rs.10,08,000/- is modified and reduced to Rs. 5,00,000/- which is payable to the claimants. The claimants are also entitled to interest @ 6% per annum from the date of the claim application, till deposit of the amount. The impugned award is modified to the said extent.The appellant insurance company (in MACA No.953 of 2007) is directed to deposit the modified compensation amount of Rs, 5,00,000/- along with interest @6% per annum from the date of filling of claim application with the learned Tribunal within six weeks from today. On deposit of the amount, the same shall be disbursed to the claimants proportionately as per the direction of the learned tribunal given in the impugned award.” 3. At the very outset, it is needless to state that the High Court while reducing the quantum of compensation as well as the rate of interest failed to assign any reason. The impugned order of the High Court being a non- speaking order calls for interference in these appeals.4. As stated by us, the appellants, namely, the claimants alone have come forward with these appeals. Therefore, the only question to be examined is as to what is the multiplier to be applied, which ground was though raised before the High Court, we find that the High Court has not ventured to answer the said question. This question has time and again been considered by this Court. In a recent decision of this Court, namely, Santosh Devi v. National Insurance Company Ltd. & Ors. – 2012 (6) SCC 421 - to which one of us (Hon. G.S. Singhvi. J.) was a party, after referring to the decision in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. – 2009 (6) SCC 121 wherein the formula under different headings including the one relating to selection of multiplier was quoted with approval. The said formula has been set out in Sarla Verma (supra) in para 42 which reads as under:- “42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” 5. The said part of the formula was applied in the said reported decision Santosh Devi v. National Insurance Company Ltd. & Ors.(supra) referred to above while working out the compensation payable to the claimants therein. We, therefore, follow the above referred to decisions and when the said formula is applied since the deceased was stated to be 35 years old at the time of his death, the multiplier would be 16 which has to be applied for calculating the compensation. The Tribunal after examining the materials before it, found that after deducting 1/3rd of personal expenses, the monthly income of the deceased was Rs.7,000/- and the net contribution to the family was ascertained at Rs. 84,000/- per annum. Applying the multiplier of 16, the compensation works out to Rs. 13,44,000/- . Therefore, while setting aside the order of the High Court insofar as it reduced the quantum of compensation, we modify the compensation payable to the appellants in a sum of Rs. 13,44,000/- [84,000/- x 16]. The said sum of Rs. 13,44,000/-should carry interest at the rate of 7% per annum from the date of application till the date of realization. | 1[ds]The said formula has been set out in Sarla Verma (supra) in para 42 which reads asWe therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.The said part of the formula was applied in the said reported decision Santosh Devi v. National Insurance Company Ltd. & Ors.(supra) referred to above while working out the compensation payable to the claimants therein. We, therefore, follow the above referred to decisions and when the said formula is applied since the deceased was stated to be 35 years old at the time of his death, the multiplier would be 16 which has to be applied for calculating the compensation. The Tribunal after examining the materials before it, found that after deducting 1/3rd of personal expenses, the monthly income of the deceased was Rs.7,000/- and the net contribution to the family was ascertained at Rs. 84,000/- per annum. Applying the multiplier of 16, the compensation works out to Rs. 13,44,000/- . Therefore, while setting aside the order of the High Court insofar as it reduced the quantum of compensation, we modify the compensation payable to the appellants in a sum of Rs. 13,44,000/- [84,000/- x 16]. The said sum of Rs. 13,44,000/-should carry interest at the rate of 7% per annum from the date of application till the date of realization. | 1 | 1,093 | 382 | ### 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:
Fakkir Mohamed Ibrahim Kalifulla, J. 1. These appeals at the instance of the claimants before the Motor Accidents claims Tribunals challenge the common order of the High Court of Orissa, Cuttack dated 05.03.2009 passed in MACA No.821 of 2007 and MACA No.953 of 2007. MACA No. 821 of 2007 was preferred by the appellants while MACA No.953 of 2007 was preferred by the first respondent-Insurance company in the High Court. The husband of the first appellant died in an accident on 04.01.1995 when he was returning from the plant site on a scooter bearing registration No. OR-06-7703 around 6.30 a.m. near NALCO Nagar on NH-42 at a place called Smelter Chhak, due to rash and negligent driving of the driver of the truck bearing registration No. ORA-4241.2. The appellants being the wife and children of the deceased preferred the claim before the Motor Accidents Tribunal in MAC case No.21 of 1995. The Tribunal, after analyzing the entire evidence placed before it, awarded a sum of Rs. 10,08,000/- as compensation along with interest at the rate of 7% per annum with effect from 03.02.1995 to 22.08.1995 and again from 16.01.2007 till the payment within one month. While the appellants were aggrieved insofar as the Tribunal applied the multiplier 12 instead of 17, having regard to the fact that the deceased at the time of his death was 35 years old as well as non-grant of interest for certain period, the first respondent was aggrieved of the very award of compensation itself. The High Court while disposing of the appeal reduced the compensation awarded by the Tribunal and also the rate of interest by holding as under:- “Considering the submissions of the learned counsel for the parties and keeping in view findings of the learned Tribunal with regard to the quantum of compensation amount awarded and the basis on which the same has been arrived at, I feel, the interest of justice would be best served if the awarded compensation amount of Rs.10,08,000/- is modified and reduced to Rs. 5,00,000/- which is payable to the claimants. The claimants are also entitled to interest @ 6% per annum from the date of the claim application, till deposit of the amount. The impugned award is modified to the said extent.The appellant insurance company (in MACA No.953 of 2007) is directed to deposit the modified compensation amount of Rs, 5,00,000/- along with interest @6% per annum from the date of filling of claim application with the learned Tribunal within six weeks from today. On deposit of the amount, the same shall be disbursed to the claimants proportionately as per the direction of the learned tribunal given in the impugned award.” 3. At the very outset, it is needless to state that the High Court while reducing the quantum of compensation as well as the rate of interest failed to assign any reason. The impugned order of the High Court being a non- speaking order calls for interference in these appeals.4. As stated by us, the appellants, namely, the claimants alone have come forward with these appeals. Therefore, the only question to be examined is as to what is the multiplier to be applied, which ground was though raised before the High Court, we find that the High Court has not ventured to answer the said question. This question has time and again been considered by this Court. In a recent decision of this Court, namely, Santosh Devi v. National Insurance Company Ltd. & Ors. – 2012 (6) SCC 421 - to which one of us (Hon. G.S. Singhvi. J.) was a party, after referring to the decision in Sarla Verma & Ors. v. Delhi Transport Corporation & Anr. – 2009 (6) SCC 121 wherein the formula under different headings including the one relating to selection of multiplier was quoted with approval. The said formula has been set out in Sarla Verma (supra) in para 42 which reads as under:- “42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.” 5. The said part of the formula was applied in the said reported decision Santosh Devi v. National Insurance Company Ltd. & Ors.(supra) referred to above while working out the compensation payable to the claimants therein. We, therefore, follow the above referred to decisions and when the said formula is applied since the deceased was stated to be 35 years old at the time of his death, the multiplier would be 16 which has to be applied for calculating the compensation. The Tribunal after examining the materials before it, found that after deducting 1/3rd of personal expenses, the monthly income of the deceased was Rs.7,000/- and the net contribution to the family was ascertained at Rs. 84,000/- per annum. Applying the multiplier of 16, the compensation works out to Rs. 13,44,000/- . Therefore, while setting aside the order of the High Court insofar as it reduced the quantum of compensation, we modify the compensation payable to the appellants in a sum of Rs. 13,44,000/- [84,000/- x 16]. The said sum of Rs. 13,44,000/-should carry interest at the rate of 7% per annum from the date of application till the date of realization.
### Response:
1
### Explanation:
The said formula has been set out in Sarla Verma (supra) in para 42 which reads asWe therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.The said part of the formula was applied in the said reported decision Santosh Devi v. National Insurance Company Ltd. & Ors.(supra) referred to above while working out the compensation payable to the claimants therein. We, therefore, follow the above referred to decisions and when the said formula is applied since the deceased was stated to be 35 years old at the time of his death, the multiplier would be 16 which has to be applied for calculating the compensation. The Tribunal after examining the materials before it, found that after deducting 1/3rd of personal expenses, the monthly income of the deceased was Rs.7,000/- and the net contribution to the family was ascertained at Rs. 84,000/- per annum. Applying the multiplier of 16, the compensation works out to Rs. 13,44,000/- . Therefore, while setting aside the order of the High Court insofar as it reduced the quantum of compensation, we modify the compensation payable to the appellants in a sum of Rs. 13,44,000/- [84,000/- x 16]. The said sum of Rs. 13,44,000/-should carry interest at the rate of 7% per annum from the date of application till the date of realization.
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.